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Criminal Appeal Nos. 49 & 24 of 1978.
From the Judgment and Order dated 8.4.1977 of the Madhya Pradesh High Court in Misc.
Criminal Nos. 34 & 35 of 1977.
Vrijendra Jain, Ms. Hima Kohali and Umanath Singh for the Appellant.
The Judgment of the Court was delivered by NATARAJAN, J.
In both the appeals by special leave, a common question of law is involved and hence they were heard together and are being disposed of by a common judgment.
In Crl.
Appeal No. 49/78, a lorry driver and two cleaners and in Crl.
Appeal No. 24/78 a lorry driver and a coolie were prosecuted for exporting fertilisers without a permit there for from Madhya Pradesh to Maharashtra in contravention of the Fertilisers (Movement Control) Order, 1973 (for short the F.M.C. Order) read with Sections 3 and 7 of the Essen tial Commodities Act, 1955, (for short the E.C. Act).
In both 552 the cases, the Trial Magistrate held that the prosecution had failed to prove that the accused were attempting to export the fertilisers and he therefore acquitted them.
On the State preferring appeals against acquittal under Section 378(3) Criminal Procedure Code, the High Court declined to grant leave.
Hence the State has preferred these appeals by special leave.
The facts in the two cases are identical.
In Crl.
Appeal No. 49/78, a truck bearing registration No. M.P. 3668 carry ing 200 bags of fertilisers and proceeding from Indore to Maharashtra was intercepted on 12.2.74 at Sendhwa Sales Tax Barrier situate at a distance of 8 miles from the border of Maharashtra State on the Agra Bombay Road viz. National Highway No. 3.
The lorry driver was in possession of in voices and other records but they did not include a permit issued under the F.M.C. Order.
In Crl.
Appeal No. 24/78, a lorry bearing registration No. MPM 4866 proceeding from Indore to Maharashtra was similarly intercepted on 30.10.1973 at Sendhwa Sales Tax Barrier.
The truck was carrying 170 bags of fertilisers.
The documents seized from the lorry driver contained the invoices and other records but they did not include a permit issued under the F.M.C. Order.
Consequently, the lorry driver and the cleaners in the first case and the lorry driver and the coolie in the second case were prosecuted under the F.M.C. Order read with Sections 3 & 7 of the E.C. Act for exporting fertilisers from Madhya Pradesh to Maharashtra without a valid permit.
In both the cases, the accused did not deny the factum of the transport of fertiliser bags in their respective lorries or the interception of the lorries and the seizure of the fertiliser bags or about the fertiliser bags not being covered by a permit issued under the F.M.C. Order.
The defence however was that they were not aware of the contents of the documents seized from them and that they were not engaged in exporting the fertiliser bags from Madhya Pradesh to Maharashtra in concious violation of the provisions of the F.M.C. Order.
The Trial Magistrate as well as the High Court have taken the view that in the absence of the evidence of an employee of the transport company, there was no material in the cases to hold that the fertiliser bags were being ex ported to Maharashtra from Madhya Pradesh.
The Trial Magis trate and the High Court refused to attach any significance or importance to the invoices recovered from the lorry drivers because the drivers had said they had no knowledge of the contents of the documents seized from them.
The Trial Magistrate and the High Court have further opined that the materials on record would, at best, make out only a case of preparation by the accused to 553 commit the offence and the evidence fell short of establish ing that the accused were attempting to export the fertilis er bags from Madhya Pradesh to Maharashtra in contravention of the FM.C. Order.
As we have already stated, the respondents admit that the trucks in question were intercepted at Sendhwa Sales Tax Barrier on 12.2.74 and 30.10.73 and they were carrying 200 bags and 170 bags of fertilisers respectively and the con signments were not covered by export permits issued under the F.M.C. Order.
In such circumstances what fails for consideration is whether the prosecution must prove mens rea on the part of the accused in exporting are fertiliser bags without a valid permit for securing their conviction and secondly whether the evidence on record established only preparation by the accused for effecting export of fertilis er bags from the State to another without a permit therefor and not an attempt to export fertiliser bags.
For answering these questions, it is necessary to refer to some of the relevant provisions in the Fertiliser (Movement Control) Order, 1973 framed in exercise of the powers conferred under Sec.
3 of the E.C. Act.
In the said Order, the relevant provisions to be noticed are clauses 2(a) and 3.
Definitions In this Order unless the context otherwise requires, (a) "Export" means to take or cause to be taken out of any place within a State to any place outside that State"; "3.
Prohibition of Export of Fertilisers, No person shall export, or attempt to export, or abet the export or any fertilisers from any State." (Emphasis supplied).
Section 7 of the provides the penalty for contravention of any order made under Sec tion 3 and reads as under: "7.
Penalties.
(1) If any person contravenes whether know ingly, intentionally or otherwise any order made under Sec.
3 (a) he shah be punishable (Emphasis supplied) 554 (i) in the case of an order made with reference to clause (h) or clause (i) of sub sec.
(2) of that Sec., with impris onment for a term which may extend to one year and shall also be liable to fine; and (ii) in the case of any other order, with imprisonment for a term which may extend to five years and shall also be liable to fine; XX XX XX Taking up the first question for consideration, we may at once state that the Trial Magistrate and the High Court have failed to comprehend and construe Section 7(1) of the Act in its full perspective.
The words used in Sec.
7(1) are "if any person contravenes whether knowingly, intentionally or otherwise any Order made under Sec. 3".
The Section is comprehensively worded so that it takes within its fold not only contraventions done knowingly or intentionally but even otherwise i.e. done unintentionally.
The element of mens tea in export of fertiliser bags without a valid permit is therefore not a necessary ingredient for convicting a person for contravention of an order made under Sec. 3 if the factum of export or attempt to export is established by the evidence on record.
The sweep of Sec.
7(1) in the light of the changes effected by the Legislature has been considered by one of us (Ahmadi, J.) in Swastik Oil Industries vs State, (Special Criminal Application) 1978 (19) Gujarat Law Reporter 117.
In that case, M/s. Swastik Oil Industries, a licencee under the Gujarat Groundnut Dealers Licensing Order, 1966 was found to be in possession of 397 tins of groundnut oil in violation of the conditions of the licence and the provisions of the Licensing Order.
Consequently, the Collector ordered confis cation of 100 tins of groundnut oil from out of the 397 tins under Sec.
6(1) of the .
On the firm preferring on appeal, the Appellate Authority viz Additional Sessions Judge, Kaira at Nadiad held "that cl.
(11) of the Licensing Order had been contravened but such contravention was not deliberate as it arose out of a mere bona fide misconception regarding the true content of cl.
(11) of the Licensing Order.
" The Additional Sessions Judge therefore held that the contravention was merely a technical one and not a wilful or deliberate one and hence the confis cation of 100 tins of groundnut oil was too harsh a punish ment and that confiscation of only 25 tins would meet the ends of justice.
Against this order, the firm preferred a petition under Arti 555 cle 227 of the Constitution to the High Court.
Dealing with the matter, the High Court referred to Sec. 7 of the Act as it originally stood and the interpretation of the Section in Nathu Lal vs State of Madhya Pradesh, AIR 1966 SC 43 wherein it was held that an offence under Sec. 7 of the Act would be committed only if a person intentionally contravenes any order made under Sec.
3 of the Act as mens rea was an essen tial ingredient of the criminal offence referred to in Sec. 7.
The High Court then referred to the change brought about by the Legislature to Sec.
7 after the decision in Nathu Lal 's case (supra) was rendered by promulgating Ordinance 6 of 1967 which was later replaced by Act 36 of 1967 and the change effected was that with effect from the date of the Ordinance i.e. September 16, 1967 the words "whether know ingly, intentionally or otherwise" were added between the word "contravenes" and the words and figure "any order made under Sec. 3".
Interpreting the amendment made to the Sec.
the High Court held as follows: "The plain reading of the Section after its amendment made it clear that by the amendment, the Legislature intended to impose strict liability for contravention of any order made under Sec. 3 of the Act.
In other words, by the use of the express words the element of mens tea as an essential condi tion of the offence was excluded so that every contravention whether intentional or otherwise was made an offence under Sec. 7 of the Act.
Thus by introducting these words in Sec. 7 by the aforesaid statutory amendment, the Legislature made its intention explicit and nullified the effect of the Supreme Court dicta in Nathu Lal 's case.
" The High Court thereafter proceeded to consider the further amendment effected to Sec. 7 of the Act pursuant to the recommendation of the Law Commission in its 47th Report.
Though for the purpose of the two appeals on hand, it would be enough if we examine the correctness of the view taken by the High Court in the light of the words contained in Sec. 7 of the Act as they stood at the relevant time viz a contravention made of an order made under Sec.
3 "whether knowingly, intentionally or otherwise", it would not be out of place if we refer to the further change noticed by the High Court, which had been made to Sec. 7 by Parliament by an Ordinance which was later replaced by Amending Act 30 of 1974.
The High Court has dealt with the further amendment made to Sec.
7(1) in 556 the Swastik Oil Industries as follows and it is enough if we extract the same. "But again in the year 1974, pursuant to the recommendations of the Law Commission in their 47th Report and the experi ence gained in the working of the Act, by an Ordinance, Sec. 7 of the Act was amended whereby the words "whether knowing ly, intentionally or otherwise" which were introduced by Amending Act 36 of the 1967 were deleted and the material part of sec.
7(1) restored to its original frame and a new provision in Sec.
10 of the Act was added which reads as under: "10. C(I) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation: In this Section, "culpable mental state" in cludes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
(2) For the purposes of this Section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is estab lished by a preponderance of probability.
" This Ordinance was replaced by Amending Act 30 of 1974.
The effect of this subsequent change in the statute is that a presumption of guilty mind on the part of the accused in respect of offences under the Act, including Sec. 7, would arise and it would be open to the accused to rebut the same.
As the law now stands in any prosecution under the Act which requires a culpable mental state on the part of the accused, the 'same must be presumed unless the accused proves that he had no such mental state with respect to the offence for which he is tried.
Now according to the explanation to Sec.
10(c) culpable mental state includes intention, motive, knowledge of a fact and belief in or reason to believe a fact.
The degree of proof expected to rebut the presumption has been indicated by sub sec.
(2) thereof 557 which says that a fact will be said to be proved only if it exists beyond reasonable doubt and it will not be sufficient to prove its existence by preponderance of probability.
Thus the burden of proof lies heavily on the accused to rebut the statutory presumption and the degree of proof expected that required for the proof of a fact by the prosecution.
There can therefore be no doubt that the aforesaid legislative changes have reversed the thrust of the decision of the Supreme Court in Nathu Lal 's case (supra) and the same no longer holds the field." Reverting back to Sec.
7 of the Act as amended by Act 36 of 1967, it is manifestly seen that the crucial words "whether knowingly, intentionally or otherwise" were insert ed in Sec. 7 in order to prevent persons committing offences under the Act escaping punishment on the plea that the offences were not committed deliberately.
The amendment was brought about in 1967 in order to achieve the avowed purpose and object of the legislation.
To the same end, a further amendment came to be made in 1974, with which we are not now directly concerned but reference to which we have made in order to show the scheme of the Act and the amplitude of Sec. 7 at different stages.
We are in full agreement with the enunciation of law as regard Sec.
7 of the Act in Swastik Oil Industries (supra).
We therefore hold that.
the Trial Magistrate and the High Court were in error in taking the view that the respondents in each of the appeals were not liable for conviction for contravention of the F.M.C. Order read with Sec. 3 and 7 of the E.C. Act since the prosecution had failed to prove mens rea on their part in transporting fertiliser bags from Madhya Pradesh to Maharashtra.
As regards the second question, we find that the Trial Magistrate and the High Court have again committed an error in taking the view that the respondents can at best be said to have only made preparations to export fertiliser bags from Madhya Pradesh to Maharashtra in contravention of the F.M.C. Order and they cannot be found guilty of having attempted to export the fertiliser bags.
In the commission of an offence there are four stages viz intention, prepara tion, attempt and execution.
The first two stages would not attract culpability but the third and fourth stages would certainly attract culpability.
The respondents in each case were actually caught in the act of exporting fertiliser bags without a permit therefore from Madhya Pradesh to Maharash tra.
558 The trucks were coming from Indore and were proceeding towards Maharashtra.
The interception had taken place at Sendhwa Sales Tax Barrier which is only 8 miles away from the border of Maharashtra State.
If the interception had not taken place, the export would have become a completed act and the fertiliser bags would have been successfully taken to Maharshtra State in contravention of the F.M.C. Order.
It was not therefore a case of mere preparation viz. the re spondents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to Maharash tra.
They were cases where the bags had been procured and were being taken in the lorries under cover of sales in voices for being delivered to the consignees and the lorries would have entered the Maharashtra border but for their interception at the Sendhwa Sales Tax Barrier.
Surely, no one can say that the respondents were taking the lorries with the fertiliser bags in them for innocuous purposes or for mere thrill or amusement and that they would have stopped well ahead of the border and taken back the lorries and the fertiliser bags to the initial place of despatch or to some other place in Madhya Pradesh State itself.
They were therefore clearly cases of attempted unlawful export of the fertiliser bags and not cases of mere preparation alone.
We have already seen that Clause 3 forbids not only export but also attempt to export and abetment of export of any fertiliser from one State to another without a permit.
It would therefore be wrong to view the act of transporta tion of the fertiliser bags in the trucks in question by the respondents as only a preparation to commit an offence and not an act of attempted commission of the offence.
Hence the second question is also answered in favour of the State.
In the light of our pronouncement of the two questions of law, it goes without saying that the judgments of the Trial Magistrate and the High Court under appeal should be declared erroneous and held unsustainable.
The State ought to have been granted leave under Sec.
378(3) Cr.
P.C. and the High Court was wrong in declining to grant leave to the State.
However, while setting aside the order of acquittal in each case and convicting the respondents for the offence with which they were charged we do not pass any order of punishment on the respondents on account of the fact that more than fifteen years have gone by since they were acquit ted by the Trial Magistrate.
The learned counsel for the appellant State was more interested in having the correct position of law set out than in securing punishment orders for the respondents in the two appeals for the offence committed by them.
Therefore, while allowing the appeals and declaring that the 559 Trial Magistrate and the High Court were wrong in the view taken by them of the Fertilizer (Movement Control) Order read with Sections 3 and 7 of the , we are not awarding any punishment to the respondents for the commission of the aforesaid offence.
T.N.A. Appeals allowed.
| IN-Abs | The respondents who were lorry drivers, cleaners and coolie were carrying fertiliser bags in trucks from Indore (Madhya Pradesh) to Maharashtra.
They were intercepted at a Sales Tax Barrier near the border of Maharashtra State.
The documents seized from the lorry drivers contained the in voices and other records, but did not include permits issued under the Fertilisers (Movement Control) Order, 1973.
Conse quently, they were prosecuted under the Fertiliser (Movement Control) Order, 1973 read with sections 3 and 7 of the for exporting fertilisers from Madhya Pradesh to Maharashtra without a valid permit.
The Trial Court acquitted the respondents holding that: (i) the prosecution had failed to prove mens rea on the part of the respondents, and (ii) the act of transportation of the fertiliser bags in trucks by the respondents constituted merely preparation and not attempted commission of the offence.
Appeals were tided by the State against the acquittal under section 378(3) of the Cr.
P.C. 1973 but the High Court declined to grant leave.
Hence these appeals by the State.
Allowing the appeals, 550 HELD: 1.
The words used in section 7(1) are "if any person contravenes whether knowingly, intentionally or otherwise any Order made under section 3".
The section is comprehensively worded so that it takes within its fold not only contraventions done knowingly or intentionally but even otherwise, i.e., done unintentionally.
The element of mens rea in export of fertiliser bags without a valid permit is therefore not a necessary ingredient for convicting a person for contravention of an order made under section 3 if the factum of export or attempt to export is established by the evidence on record.
[554C D] 1.1.
The crucial words "whether knowingly, intentionally or otherwise" were inserted in section 7 in order to prevent persons committing offences under the Act escaping punish ment on the plea that the offences were not committed delib erately.
The amendment was brought about in 1967 in order to achieve the avowed purpose and object of the legislation.
[557C] 1.2.
Therefore, the Trial Court and the High Court committed an error in taking the view that the respondents in each of the appeals were not liable for conviction for contravention of the Fertiliser (Movement Control) Order, 1973 read with sections 3 and 7 of the because the prosecution had failed to prove mens rea on their part in transporting fertiliser bags from Madhya Pradesh to Maharashtra.
[557E] Swastik Oil Industries vs State, [1978] 19 Guj.
Law Reporter 1117; approved.
Nathu Lal vs State of Madhya Pradesh, A.I.R. 1966 S.C. 43, referred to. 2.
In the commission of an offence there are four stages viz. intention, preparation, attempt and execution.
The first two stages would not attract culpability but the third and fourth stages would certainly attract culpability.
[557G] 2.1.
The respondents in each case were actually caught in the act of exporting fertiliser bags without a permit therefore from Madhya Pradesh to Maharashtra.
If the inter ception had not taken place at the Sales Tax Barrier the export would have become a completed act and the fertiliser bags would have been successfully taken to Maharashtra State in contravention of the Fertiliser (Movement Control) Order, 1973.
It was not therefore a case of mere preparation viz. the resport 551 dents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to Maharash tra.
They were cases where the bags had been procured and were being taken in the lorries under cover of sales in voices for being delivered to the consignees and the lorries would have entered the Maharashtra border but for their interception at the Sales Tax barrier.
Surely, no one can say that the respondents were taking the lorries with ferti liser bags in them for innocuous purposes or for more thrill or amusement and that they would have stopped well ahead of the border and taken back the lorries and the fertiliser bags to the initial place of despatch or to some other place in Madhya Pradesh State itself.
The acts of transportation of the fertiliser hags in the trucks in question by the respondents were therefore clearly cases of attempted unlaw ful export of the fertiliser bags and not cases of mere preparation alone.
[557H, 558A B C D] [Section 7 of the was again amended in 1974 and the words "whether knowingly, intentionally or otherwise" were deleted and a new provision in section 10 of the Act was added.
The effect of this amendment is that a presumption of guilty mind on the part of the accused in respect of offences under the Act, includ ing Sec. 7, would arise and it would be open to the accused to rebut the same.]
|
etition (Criminal) No. 485 of 1988.
(Under Article 32 of the Constitution of India).
T.U. Mehta and S.C. Patel for the Petitioner.
G.A. Shah, Mrs. H. Wahi and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by B.C. RAY, J.
The petitioner has questioned in this writ petition the legality and validity of the impugned order of detention made on October 12, 1988 by the respondent No. 1 under sub.
section 1 of sec.
3 of the Gujarat Prevention of Anti Social Activities Act, 1985 with a view to prevent him from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad city.
The petitioner was detained by the respondents and was served with the grounds of detention alongwith the documents mentioned therein on the very day of detention that is, October 12, 1988.
The grounds of detention were in Gujarati.
The petitioner in the writ petition has stated that he was previously detained under the S.R. No./PCB/ DTN/PASA/37/85 on May 23, 1985 and was released on June 28, 1985.
The petitioner had been detained under the Gujarat Prevention of Anti Social Activities Act, 1985 hereinafter referred to in short, as 'PASA Act '.
The said order was challenged by writ petition before the Guja rat High Court which quashed the same and the petitioner was released from detention.
The main thrust of challenge to the impugned order of detention is that the detaining authority in addition to new facts has taken into consideration the earlier two detention orders as well as the grounds of detention referred to therein presumably for the purpose of arriving at his subjective satisfaction that inspire of the earlier detention order which was of course, quashed and set aside the detenu has been persistently continuing his anti social activities and as such the order of detention was clamped.
This has vitiated the impugned order of detention.
Other challenges such as non disclosure of names and ad dresses of four witnesses whose statements have been men tioned with the grounds of detention and have been served alongwith the grounds as well as the vagueness of the state ments made in the grounds about the alleged criminal activi ties of the detenu has rendered the order illegal and bad as the petitioner was prevented from making an effective repre sentation against the same.
586 The relevant portion of the grounds are extracted hereunder: "You are indulged into anti social activities by selling stocking and keeping in possession of yourself or through other person the Eng lish and Deshi liquor of Dariapur area in this connection the offences under Bombay Prohibi tion Act.
1949 are registered against you, wherein you were arrested, the details of which is as under: S.No.
Police Office Section Stock Disposal Station Regis Seized ter No. Dariapur 106/88 Prohibition 7575 ml.
under Act, sections 66(3), English investi 65(A), (E), 68, 5 Lt. Deshi gation 81, 85(1)(3) Liquor.
Rs. 1971.
Dariapur 120/88 Prohibition 8640 mi.
under Act, secs.
English investi 66(3), 65(A), liquor.
gation.
(E), 68, 81, 85(1)(3).
Rs. 940.
137/88 Prohibition 3 105 mi.
" Act, secs.
English 66B, 65(E), liquor.
81, Rs. 940.
" 145/88 " 166 bottles. " English liquor.
Rs. 1300.
" 146/88 Prohibition 82 Lt.
" Act, section 66B, English 65E. liquor.
Rs.800.
Accordingly, upon careful perusal of the complaint and papers enclosed with the propos al it appears that you are a Prohibition Bootlegger, and doing illegal activity of selling English and Deshi liquor.
You and your companions are beating and showing deadly weapons like Rampuri knife to 587 the innocent persons passing through the said locality on the promise of being 'Batmidar ' of police.
And you are beating the person who oppose your activity of liquor, you are com pelling to bring stock of liquor to the Motor Vehicles like Auto Rickshaw and upon denial to do so, you threat to kill him by Rampuri knife your customers who are drunken are teasing to the women passing from there, and if any one oppose or request not to do so, your threats showing Rampuri knife to kill to the innocent persons are and an atmosphere of danger and violence is spread over because of your such offensive activities and as you are doing acts which are obstructive in maintaining public administration.
You are an obstruct in main taining public administration.
You are an obstruct in maintaining public administration in view of the fact and result of your above stated anti social activ ities, and fact of such instances are also stated by the peace loving people doing busi ness in the above area, copies of their state ments are given to you herewith.
As your offensive activities are ob structive in public administration you were detained under NASA 1980 by this office order No. PCB/DTN/NSA/37/85 date 23.5.85 and were released from detention on 28.6.85.
And your offensive activities are ob structive to the maintenance to public admin istration that you were detained under PASA Act, 1985 by this office order No. PCB/DTN/PASA/36/86 dt.
26.9.86, as you have filed writ petition in the Honourable Gujarat High Court against this order the Honourable High Court has on 25.6.87 passed an order to release you from detention.
Accordingly, looking to the overall fact, I am satisfied that you are prohibited bootlegger and known a headstrong and angry person, and an atmosphere of fear and violence is spread over in residents of the said local ity because of your above anti social activi ties, such activities cannot be refrained by taking steps under the common law.
" The affidavit of reply affirmed by Mr. S.N. Sinha, Commis sioner 588 of Police, Ahmedabad city has been filed on December 7, 1988.
In paragraph 4, it has been stated that in fact the petitioner belongs to the gang of Abdul Latif and has not at all been falsely prosecuted in any case, it has also been submitted that the petitioner was not good and was involved in activities which affect the society adversely.
In para graph 9 of the said affidavit it has been denied that the grounds are not relevant for the purpose and the present detention order has been passed totally on a different and fresh grounds.
It has also been submitted therein that it is absolutely wrong to say that the earlier two orders passed against the petitioner were illegal in any manner.
Out of the two detention orders, order of 1985 was passed under the in view of the fact of public riots in the Ahmedabad city and order of 1986 was passed on the ground of the petitioner .being bootlegger and dangerous person on account of pendency of certain prosecution and both of which were passed by his predecessor and therefore, the said orders have nothing to do with the present orders.
It has been further submitted that it is absolutely wrong to say that the sponsoring authority has not submitted the earlier order of release of the petitioner by the Board and the Gujarat High Court.
The grounds of detention make it abundantly clear that this fact was clearly considered and thereafter the detention order has been passed and there fore, there is no substance in the contention that the decision of detention would have been different if the earlier orders of release would have been placed before him.
The most important question that posed itself for con sideration in this case is whether the detaining authority while considering the fresh facts disclosed in the grounds of detention has taken into consideration the earlier two detention orders one of 1985 under the and the other of 1986 under the PASA Act in forming his subjective satisfaction that the detenu inspite of the passing of the earlier two detention orders has been per sistingly indulging in his anti social activities and as such in preventing such criminal activities which posed a threat to the maintenance of public order the impugned order of detention has been made by him.
It is now well settled by the decision of this court while considering the scope of section 15 of PASA Act that the modification and revocation of detention order by the State Government shall not bar making of another detention order on fresh facts when the period of detention has come to an end either by revocation or by expiry of the period of detention.
Reference may be made in this connection to the decision of this court in Abdul Latif Abdul Waheb Sheikh vs
B.K. Jha and Anr., [1987] 589 2 SCC 22 and in Chhagan Bhagwan Kahar vs Shri N.L. Kalna & Ors., JT 1989 1 SC 572 it is therefore, clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the court, and if such previous grounds of detention are taken into consideration while forming the subjective satisfaction by the detaining authority in making a detention order the order of detention will be vitiated.
It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered.
In the present case, admittedly in the grounds of deten tion specific reference has been made to the earlier two orders of detention made in 1985 and 1986 against the peti tioner.
It is also evident that in the schedule of documents annexed to the grounds of detention not only the copies of the order of detention but also of the grounds of detention in the earlier detention cases have been given to the peti tioner.
It also appears from the statements made in the grounds of detention that the detaining authority took into consideration the previous grounds of detention as well as the orders made therein even though the same were nullified by the High Court as well as by the Advisory Body, presuma bly, for the purpose of showing that the detenu inspire of those earlier orders of detention was continuing his boot legging activities.
It has been tried to be contended on behalf of the detaining authority that though the earlier two detention orders have been mentioned in the grounds of detention and the copy of the orders passed in the previous detention cases as well as the grounds of detention were supplied to the detenu yet these were not at all considered by him in forming subjective satisfaction for clamping the order of detention.
This submission cannot be sustained in view of the statements made in the grounds of detention.
The other grounds regarding the vagueness of the aver ments made in the grounds about the petitioner indulging in criminal activities apart from the five criminal cases lodged under the Prohibition Act and mentioned in the ground of detention do not satisfy the requirements envisaged in section 3(1) of the PASA Act in as much as the said five specific criminal cases have no connection with the maintenance of public order.
The aforesaid criminal activity does not appear to have disturbed the even tempo of life of the people of Ahmedabad City or of the particular locality.
Further more the averments have been made in the grounds are; "Accordingly, upon careful perusal of com plaint and 590 papers enclosed with the proposal it appears that you are a prohibition bootlegger, doing illegal activity of selling English and Deshi liquor.
You and your companion are bearing and showing deadly weapons like Ram puri knife to the innocent persons passing through the said locality on the promise of beating 'Batmider ' of police.
And you are beating innocent persons who oppose your activity of liquor etc.
" These statements are vague and without any particulars as to what place or when and to whom the detenu threatened with Rampuff knife and whom he has alleged to have beaten.
These vague averments made in the grounds of detention hereinbe fore are bad in as much as the detenu could not make an effective representation against the impugned order of detention.
As such the detention order is illegal and bad.
It is pertinent to refer to the decision of this court in the case of Writ Petition (Crl.) No. 15/1989 (judgment of which has been pronounced today) on this score.
It is no, necessary to consider and decide other questions raised in this writ petition.
For the reasons aforesaid, we allow the writ petition and set aside the impugned order of detention made against the petitioner.
We direct the respondents to set free the petitioner forthwith.
G.N. Petition allowed.
| IN-Abs | The petitioner was detained on October 12, 1988 under Section 1) of the Gujarat Prevention of Anti Social Activi ties Act, 1985.
The grounds of detention and documents mentioned therein were served on him on the date of deten tion.
Earlier, the petitioner was detained in 1985 under the and was released.
Again in 1986 he was detained under the Gujarat Prevention of Anti Social Activities Act, 1985.
On a writ petition, the Gujarat High Court quashed the detention order and released him.
These two detention orders were also taken into consideration by the Detaining Authority in arriving at his subjective satis faction as regards detention of the petitioner in 1988.
In the present writ petition, the petitioner has chal lenged the detention order passed on 12.10.88 on the grounds that the order was vitiated since the Detaining Authority relied upon earlier detentions in arriving at his subjective satisfaction, non disclosure of names and addresses of witnesses whose statements were mentioned in the grounds of detention and the vagueness of the statements made in the grounds of detention.
On behalf of the Respondents it was contended that though the earlier two detention orders were mentioned in the grounds of detention they were not considered by him in forming his subjective satisfaction for clamping the order of detention.
Allowing the Writ Petition.
HELD: 1.
It is now well settled that while considering the scope of 584 Section 15 of the Act the modification and revocation of detention order by the State Government shall not bar making of another detention order on fresh facts when the period of detention has come to an end either by revocation or by expiry of the period of detention.
But an order of detention cannot he made after considering the previous grounds of detention when the same had been quashed by the court, and if such previous grounds of detention are taken into consid eration while forming the subjective satisfaction by the detaining authority in making a detention order, the order of detention will he vitiated.
It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered.
[588F G, 589A.B] Abdul Latif Abdul Waheb Sheikh vs B.K. Jha and Anr., ; and Chhagan Bhagwan Kahar vs Shri N.L. Kalna & Ors., JT 1989 1 SC 572, relied on.
In the instant case, admittedly in the grounds of deten tion specific reference has been made to the earlier two orders of detention made in 1985 and 1986 against the peti tioner.
The contention that though the earlier two detention orders have been mentioned in the grounds of detention and the copy of the orders passed in the previous detention cases as well as the grounds of detention were supplied to the detenu, yet these were not at all considered by the detaining authority in forming his subjective satisfaction for clamping the order of detention, cannot he sustained in view of the statements made in the grounds of detention.
[589C E] 3.
The other grounds regarding the vagueness of the averments made in the grounds about the petitioner indulging in criminal activities apart from the five criminal cases lodged under the Prohibition Act and mentioned in the grounds of detention do not satisfy the requirements envis aged in section 3(1) of the Act inasmuch as the said five specif ic criminal cases have no connection with the maintenance of public order.
The aforesaid criminal activity does not appear to have disturbed the even tempo of life of the people of the particular locality.
These statements are vague and without any particulars and such vague averments made in the grounds of detention are bad inasmuch as the detenu could not make an effective representation against the impugned order of detention.
As such the detention order is illegal and bad.
[589F H] Abdul Razak Nanhekhan Pathan vs The Police Commissioner, Ahmedabad & Anr., , referred to.
|
(Crl.) No. 15 of 1989.
(Under Article 32 of the Constitution of India).
T.U. Mehta and S.C. Patel for the Petitioner.
G.A. Shah, M.N. Shroff and K.M.M. Khan for the Respond ents.
The Judgment of the Court was delivered by B.C. RAY, J.
We have already pronounced in Court on May 5, 1986 the order allowing the writ petition and stating there in that the written judgment will follow later on.
Pursuant to this, are passing the judgment embodying reasons.
This writ petition is directed against the order of detention made under section 3(1) of Gujarat Prevention of Anti Social Activities Act, 1985, mainly on the grounds that the grounds are not germane and relevant and there has been non application of mind by the detaining authority in making the said order.
The detenu was arrested and kept in Sabarmati Central Jail on 572 October 5,: 1988 under the impugned detention order made on October 5, 1988 by the respondent No. 1, Shri S.N. Sinha, Police Commissioner, Ahmedabad City and the grounds had been served on him.
The detenu immediately thereafter made representations to the detaining authority as well as to the State Govern ment and also to the Advisory Board against the impugned order of detention questioning the legality and validity of the detention order.
But uptil now he has not received any intimation in respect of his aforesaid representation.
The detenu thereafter challenged the impugned order of detention before this Court by the instant Writ Petition No. 15 of 1989for quashing the same.
Before proceeding to consider on merit it is necessary to quote excerpts of the grounds of detention.
"That in the Shahalam Chandola Tank area you, with the help of your companions, are committing acts affecting human body as shown in Chapter XVI of the Indian Penal Code with the help of Rampuri knife, Razor etc.
You are creating atmosphere of terror and danger by causing injuries and by showing lethal weapons to innocent citizens.
You are known as dangerous and terrible person in the said area.
Therefore you are a 'dangerous person ' as defined under section 2(c) of the said Act and you are, by creating atmosphere of danger and terror, becoming hurdle in the way of maintenance of law and order in the said area.
For such acts of yours the following criminal offences under the Indian Penal Code have been registered in the police record against you.
The details thereof are as under: section No. Police Stn.
Crime R. No. Section Result 1.
Kagdapith 96/85 324,504, 114 Compounded IPC, 135(1) B.P. 2.
Maninagar 120/86 Secs.
336,337, Compounded 427, 114 IPC 3.
Kagdapith 225/87 Sec.
135(1) B .P.
Conviction 4.
Maninagar 122/86 Secs.
307/451, 147, 148, 149,436, 440, 1208 IPC, 25C Arms Act, 3, 4, Explosive.
Not proved.
573 5.
Maninagar 33/88 Sec.
324, 504, Under in 114 IPC, 135(1) vestigation.
B.P. Act.
Kagdapith 51/88 307,232, 114 IPC Under in 135(1) B.P. Act.
vestigation.
Kagadapith 81/88 326, 114 IPC, Under in 135(1) B.P Act vestigation.
Thus, on scrutiny of the complaints, proposals and other papers therewith, it appears that you are committing of fences affecting human body in the said area by holding deadly weapons such as knife, razor, tamancha, sword, hockey stick, iron pipes etc.
Therefore, you are a dangerous person as defined in section 2(c) of the said Act.
Further, you are robbing persons who pass from there for business or service by showing deadly weapons.
In the said area in drunken condition you are demanding money from those passing from there.
If they do not give money you are threatening them of murder by showing razor of Rampuri knife.
You are beating peace loving citizens in the said area in public believing that they are giving information of your activities to the police.
By this you are coming in the way of maintenance of public order.
Particulars in support of your aforesaid anti social activities have been given by four persons residing in the said area or doing trade or business in the said area in their statements.
Copies thereof are given herewith.
Being afraid of you.
the aforesaid witnesses have asked not to disclose their names and addresses, because they are afraid of damage to their person and property and their safety and on reliable inquiry it is found to be true.
Therefore, you are not given names and addresses of those witnesses as provided in section 9(2) of PASA ACT, 1985 however contents of the facts states by them are given to you." ". . . . . . . . . . . . . . . " "Taking into consideration all the aforesaid facts, I am fully satisfied that you are committing offences punishable under the Indian Penal Code and affecting to human body.
You are a notorious, terrible and dangerous person.
Due to such activities of yours public order is disturbed very often in the said area.
By such activities you have 574 become hurdle in maintenance of public order.
" The respondent No. 1 has thus referred to seven criminal cases filed against the petitioner and also the statements of four persons residing in the area recorded by the police.
The respondent No. 1 has also made averments in the grounds alleging various anti social activities of the petitioner and after considering the same made the impugned order of detenu on forming an opinion that the petitioner is a dan gerous person within the meaning of section 2(c) of the said Act.
The names and addresses of the four witnesses have not been disclosed claiming privilege under section 9(2) of 'PASA ' Act.
As regards the seven criminal cases, the detenu has been acquitted of the charges ,in the first two cases that is, Kagdapith case No. 96/85 and Maninager case No. 120/86 which have been compounded, In the third case under section 135 of the Bombay Police Act, that is, Kagdapith case No. 225/87, the detenu has been convicted.
But it has no relevance for the purpose of forming an opinion that the petitioner is a dangerous person .under section 2(c) of PASA Act.
As regards the case No. 4, that is criminal case No. 122/86, the petitioner has been acquitted.
The other three criminal cases that is Maninagar case No. 33/88, Kagdapith case No. 51/88, & Kagda pith case No. 81/88 are all under investigation and in these cases the petitioner has been enlarged on bail.
It has also been stated that the grounds of detention supplied to the petitioner are vague and indefinite and as such the detenu could not make an effective and proper representation under article 22(5) of the Constitution.
It has further been stated that out of the aforesaid seven criminal cases, the first two criminal cases are not proximate to the date of making the impugned order of detention.
There is absolute non application of mind by the detaining authority in coming to his subjective satisfaction that the impugned order was necessary to be made to prevent the detenu from acting in any manner prejudicial to the maintenance of public order.
The respondent No. 1, filed an affidavit in reply stat ing inter alia that the petitioner detenu is indulging in criminal activities prejudicial to the maintenance of the public order and as such the order of detention was made against the detenu after considering that recourse to ac tions under the provisions of ordinary law will not be adequate.
It has been further denied in paragraph (d) of the said affidavit the statement that no effective representa tion could be made due to non supply of the names and ad dresses of the so called witnesses and other relevant mate rials as made in the petition.
It has also been stated that on the basis of the apprehension expressed by those four witnesses 575 whose statements have been recorded by the Police Inspector and verified by the Superintendent of Police that their names and addresses have not been disclosed by the detaining authority claiming the privilege available under section 9(2) of the Gujarat Prevention of AntiSocial Activities Act, 1985.
It has also been stated that the detaining authority has been subjectively satisfied that the petitioner is indulging in nefarious activities prejudicial to the maintenance of public order and as such the impugned order of detention was made by him against the detenu It has also been stated that in Criminal Case No. 225/87, the detenu was found with razor and he was convicted in that particular case.
It has also been.
stated that from the cases registered against the detenu from 1985 to 1988 that the detenu is involved in prejudicial activities from 1985 to 1988 and as such it was inferred that the passing of detention order was the only remedy to restrain the petitioner from indulging in similar prejudicial activities.
It is evident from the grounds of detention that the impugned order of detention was made on the ground that the petitioner is a dangerous and terrible person in the area as defined in section 2(c) of the PASA Act.
The said section states: "dangerous person" means a person, who either by himself or as a member or leader of a gang, during a period of three successive years habitually commit, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code (XLV of 1860) or any of the offences punishable under Chapter V of the (54 of 1959).
" In the grounds, it has been stated that the detenu by creat ing atmosphere of danger and terror has become hurdle in the way of maintenance of law and order in the said area.
It has also been stated that for such acts as well as due to the following criminal offences under the Indian Penal Code registered against him, the detenu has become a dangerous person of the area.
It has also been stated that the detenu has been robbing persons who pass from there for business or service by showing deadly weapons.
It has also been stated, "In the said area in drunken condition you are demanding money from those passing from there.
If they do not give money you are threatening them of murder by showing razor or Rampuri knife.
You are beating peace loving citizens in the said area in public believing that they are giving informa tion of your criminal activities to the police.
By this you are coming in the way of maintenance of public order.
" 576 It has already been stated hereinbefore that offences under Chapter XVI of Indian Penal Code have been compounded.
and the detenu has been acquitted.
As regards the third case that is, Kagdapith case No. 225/87 under section 135 of Bombay Police Act, the petitioner was convicted.
This offence is not one of the offences falling within the offences men tioned in section 2(c) of the PASA Act and as such this case cannot be taken into consideration to hold the detenu a dangerous person.
As regards the fourth case Maninagar case No. 122/86, being not proved against the petitioner he has been acquitted of the offences charged in the said case.
The other three remaining cases that is, Maninagar case No. 33/88, Kagdapith case No. 15/88 and 81/88 are all under investigation.
Therefore, the fourth case in which the petitioner had already obtained acquittal could not be taken into consideration.
For the purpose of determining the petitioner as a dangerous person, it is also very relevant to notice that section 2(c) defines dangerous person as a person who habitually commits or attempts to commit offences pun ishable under Chapter XVI or Chapter XVII of Indian Penal Code or any of the offences under Chapter V of the .
From the aforesaid seven criminal cases, two cases are of 1985 and 1986 which are not proximate to the date of the order of detention and so stale.
Moreover, the petitioner being acquitted the said cases could not be taken into consideration.
Similarly case No. 3 also fails outside the purview of the section 2(c) of the said Act.
Fourth case No. 122/86 can also not be considered as petitioner earned acquittal.
Merely on consideration of the other three crimi nal cases which are under investigation and are yet to be decided the detaining authority cannot come to his subjec tive satisfaction that the detenu was a dangerous person who habitually indulges in committing offences referred in section 2(c) of the PASA Act.
The other averments made in the said grounds and referred to hereinbefore are absolutely vague in as much as no particulars as to which persons have been robbed or what offences have been committed by showing deadly weapons at what place have not been mentioned.
There is also no mention when and where the detenu in a drunken condition demanded money from whom nor it has been stated when the detenu threatened whom to murder by showing razor or Rampuri knife.
There is no particular instance also as to which peace loving citizens and in which area the petitioner has beaten in public believing, that they are giving infor mation of his criminal activities to the police.
It is also a vague statement that the detenu is coming in the way of maintenance of public order.
Similarly the statement of the said four witnesses mentioned in the grounds of detention are also very vague and without any particulars of the names of the four witnesses and their addresses were not dis closed.
These statements are also 577 vague.
In such circumstances, it is not at all possible for the detenu to make a proper and effective representation except merely denying the alleged grounds of detention as mandatorily required under article 22(5) of the Constitution of India.
This ArtiCle confers on a detenu two fundamental rights namely, (1) that the detaining authority has to communicate to the detenu the grounds as early as possible on which the order of detention has been made and secondly the right to make an effective representation against the said order.
This obviously requires that the grounds must not be vague but must be specific, relevant in order to enable the detenu to make an appropriate and effecting representation against the same before the Advisory Board as well as before other authorities including detaining author ity.
The grounds and the averments made in the grounds which were served on the detenu are Vague and as such they are violative of the article 22(5) of the Constitution of India.
It is pertinent to refer in this connection the decision re ported in Pushkar Mukharjee & Ors.
vs The State of West Bengal, ; at page 641. "Similarly, if some of the grounds supplied to the detenu are so vague that they would virtually deprive the detenu of the statutory right of making a representation, that again may make the order of detention invalid.
" That has been referred to have been relied upon in the subsequent decision in the matter of Piyush Kantilal Mehta vs Commissioner of Police, Ahmedabad City & Anr., JT 1988(4) SC 703 at page 710.
"It was held by this Court that the ground was extremely vague and gave no particulars to enable the petitioners to make an adequate representation against the order of deten tion and it infringed the constitutional safeguard provided under article 22(5) of the Constitution of India.
" In the case of Pushkar Mukharjee, the ground No. 2 states: "You have become a menace to the society and there have been disturbances and confusion in the lives of peaceful citizens of Barnset and Khardah P.S. areas under 24 Parganas District and the inhabitants thereof are constant threat of disturbances of public order.
" It was held in this case that, "It is manifest that this ground is extremely vague and gives no particulars to enable the petitioner to make an adequate representation against the order of detention and thus infringes the constitutional safeguard provided under article 22(5).
" 578 The second crucial question that fails for consideration in this case is whether the grounds of detention particular ly referring to the seven criminal cases are relevant and germane grounds for passing of an order of detention under section 3(1) of the PASA Act.
All the seven criminal cases men tioned relate to problem of law and order and not public order in as much as they disclose cases relating to particu lar persons which has nothing to do with the maintenance of public order.
As has already been said hereinbefore that out of the seven criminal cases, two have been compounded and in the fourth case the criminal charges have not been proved against the petitioner as such he was acquitted.
The third case being under section 135 of the Bombay Police Act does not fall within the purview of the section 2(c) of the Act and it is ' confined to a private individual.
The other three cases which are under investigation also relate to assault to private individuals and they have nothing to do with the disturbance of even tempo of the life of the community or of men of a particular locality nor does it affect the even flow of life of the public as a whole.
Section 3(1) clearly mandates that the order of detention can be made only when the State Government or its authorised officer has come to a subjective satisfaction that a person is required to be detained in order to prevent him from acting in any manner prejudicial to the maintenance of the public order.
Sub section 4 embodies a deeming clause to the effect that a person should be deemed to act in any manner prejudicial to the maintenance of public order when such person is engaged in any activities as a dangerous person which affect ad versely or are likely to affect adversely the maintenance of public order.
Explanation 2 clause 4 further provides that for the purpose of this sub section public order shall be deemed likely to be affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in this sub section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or wide spread danger of life, property or public health.
Coming to this particular case, the criminal cases mentioned in the grounds do not refer to any dangerous, harmful or adverse act or alarm which gives rise to a feeling of insecurity for the general public amongst the persons of a locality.
The criminal cases are confined to certain private individuals and it is merely a law and order problem and it has nothing to do with maintenance of public order.
Its reach and effect is not so deep as to affect the public at large.
It does not create or tend or create any panic in the mind of people of particular locality or public in general nor it affects adversely the maintenance of public order.
There is nothing to show that the above activities of the petitioner have 579 affected or tended to affect the even tempo of fife of the community.
An act may create a law and order problem but such an act does not necessarily cause an obstruction to the maintenance of public order.
The difference between 'the law and order and public order has been very succinctly stated by this Court in Dr. Ram Manohar Lohia vs State of Bihar & Ors., [966] 1 SCR 709 at page 746 wherein it has been stated that: "It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State" "law and order" also comprehends disor ders of less gravity than those affecting "public order".
One has to imagine three concentric circles.
Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State.
It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.
But using the expression, "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of Indian Rules.
" In Pushkar Mukharjee vs State of West Bengal, (supra), it has been stated that: "It is manifest that every act of assault or injury to specific persons does not lead to public disorder.
When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder.
Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the grounds that they were disturbing public order.
The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large.
In this connection we must draw a line of demarcation between serious and aggravated forms of disor der which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest.
A mere disturbance of law and order leading to.
580 disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act.
A District Magistrate is therefore entitled to take action under section 3(1) of the Act to pre vent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
" It has also been observed in a recent decision of the Supreme Court in Piyush Kantilal Mehta vs The Commissioner of Police, Ahmedabad City, (supra) that: "The allegations made against the petitioner may give rise to a question of law and order but, surely, they have nothing to do with the question of public order.
A person may be very fierce by nature, but so long as the public generally are not affected by his activities or conduct, the question of maintenance of public order will not arise.
In order that an activity may be said to affect adversely the maintenance of public order, there must be materials to show that there has been a feel ing of insecurity among the general public.
If any act of a person creates panic or fear in the minds of the members of the public upset ting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order.
The commission of an offence will not necessarily come within the purview of 'public order '.
" Our attention has been drawn to the decision in the case of Ashok Kumar vs Delhi Administration, In that case in the grounds of detention thirty six criminal cases have been referred to showing the prejudicial activi ties of the detenu leading to public disorder.
This Court in considering these series of criminal cases committed by the detenu held that the detenu appears to have taken a life of crime and become a notorious character.
The fact that the petitioner and his associates are facing trial or the mat ters are still under investigation only shows that they are such dangerous characters that people are afraid of giving evidence against him.
The armed holdup gangsters in an exclusive residential areas of the city where persons are deprived of their belongings at the point of knife or re volver reveal organised crime.
The particular acts enumerat ed in the grounds of detention clearly show that the activi ties of the detenu, cover a wide field and fall within the contours of the concept of public order.
The 581 grounds furnished were also neither vague nor irrelevant or lacking in particulars or were not inadequate or insuffi cient for the objective satisfaction of the detaining au thority.
Considering these, this Court held in the particu lar facts and circumstances of that case that the order of detention made by the detaining authority after being sub jectively satisfied that the acts of the detenu hinder the maintenance of public order.
The facts and circumstances of that case are distin guishable from the facts of the present case and as such it has got no application.
There is nothing in this case to show that the petitioner was a member of a gang which are engaged in criminal activities systematically in a particu lar locality and those create a panic and a sense of insecu rity amongst the residents of that particular area in con sideration of which the impugned order was made.
Considering the above decisions, we are unable to hold that the criminal cases mentioned in the grounds and the statements of the witnesses referred to in the vague and irrelevant grounds of detention do not in any way pose a threat to the maintenance of public order nor it disturbs the even tempo of public life as envisaged in section 3(1) of PASA Act.
So there has been complete non application of mind by the detaining authority before reaching a subjective satisfaction to make the im pugned order of detention.
It has been urged on behalf of the detenu that there has been no consideration by the detaining authority of the relevant facts and circumstances before making an order under section 9(2) of the PASA Act in not disclosing the names and addresses of the witnesses on whose statements the subjective satisfaction has been arrived at.
It has also been stated in this connection that in the grounds of deten tion it has merely been stated, "Being afraid of you the aforesaid witnesses have asked not to disclose their names and addresses because they are afraid of persons.
It has been urged with force that this ground does not refer that the detaining authority has himself considered and satisfied that the disclosure of their names and addresses are likely to cause damages to their person and properly.
It has been stated by the detaining authority that on relevant enquiry, it found those statements to be true and as such the names and addresses of those witnesses have not been given to the detenu is provided in section 9(2) of the PASA Act, 1985.
It has been contended on behalf of the petitioner that there is nothing to show that the detaining authority has himself considered that in public interest the names and addresses of these persons should not be disclosed and so such non disclosure is vague.
We do not want to enter into this controversy and decide the same as in our opinion the 582 detaining authority has been satisfied not to disclose the names of those witnesses under section 9(2) of the said Act.
No other grounds have been urged before us on behalf of the petitioner.
For the reasons aforesaid, we hold the order of deten tion is legal and bad and as such we allow the writ peti tion.
The order of detention is quashed and set aside and the detenu is set free forthwith.
Lal Petition allowed.
| IN-Abs | By the present petition the Petitioner challenged the legality and validity of the detention order passed by the Respondent against him under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985.
The detenu was arrested and kept in Sabarmati Central Jail on 5.10.1988.
The detenu immediately thereafter, made represen tation to the detaining authority as well as to the State Government as also to the Advisory Board against the deten tion order but he having not received any reply, he filed this Writ Petition.
The grounds of detention which were supplied to the detenu inter alia mentioned that by reason of various crimi nal acts committed by him with the help of his companions which included looting of persons, causing injuries by lethal weapons, he had become a terror in the area and as such a dangerous person within the meaning of section 2(c) of the said Act.
Grounds also enumerated seven criminal cases which had been registered against the detenu.
The detenu was stated to have committed offences affecting haman body by holding deadly weapons such as razor, knife, Tamancha, Sword, Hockey stick etc.
It was specifically mentioned that if the passers by refused to pay to the detenu the money as demanded by him, he used to threaten them of murder by showing weapons.
It was also stated in the grounds that particulars of detenu 's anti social activities were given by four persons of the area, who did not desire that their names he disclosed which were accordingly not disclosed claiming: privilege in that behalf.
Taking into consideration all the aforesaid facts the detaining authority felt satisfied that the detenu has been committing offences punishable under I.P.C. and that due to those activities of the detenu, public order was disturbed, he having become a hurdle in the main 570 tenance of public order.
This is how the detention order referred to above came to be passed.
The Petitioner challenged the detention order principal ly on two grounds, viz.,.
(i) that the grounds of detention are not germane and relevant as they are vague lacking in material particulars and (ii) that there has been complete non application of mind by the detaining authority in making the order of detention.
The Court immediately after conclusion of the hearing of the Writ Petition pronounced an order on May 5, 1988 allow ing the Writ Petition and stating that the written judgment shall follow later.
These are the reasons given by the Court in support of the said order whereby the Court, HELD: The averments made in the grounds of detention are absolutely vague inasmuch as no particulars as to which persons have been robbed or what offences have been commit ted by showing deadly weapons and at what place have not been mentioned.
[577B] There is also no mention when and where the detenu in a drunken condition demanded money from whom nor it has been stated when the detenu threatened, whom to murder by showing razor or Rampuri knife.
There is no particular instance also as to which peace loving citizens and in which area the Petitioner has beaten in public believing, that they are giving information of his criminal activities to the police.
It is also a vague statement that the detenu is coming in the way of maintenance of public order.
[575G, 576D G] The grounds and averments made in the grounds which were served on the detenu are vague and as such they are viola tive of Article 22(5) of the Constitution of India.
[576H 577A] Pushkar Mukharjee & Ors.
vs The State of West Bengal,[969] 2 SCR 635 at page 641; and Piyush Kantilal Mehta vs Commissioner of Police, Ahmedabad City & Anr., JT at page 710.
An act may create a 'law and order ' problem but such an act does not necessarily cause an obstruction to the mainte nance of public order.
[579A] Dr. Ram Manohar Lohia vs State of Bihar & Ors., ; at page 746.
571 The criminal cases in the instant case are confined to certain private individuals and it is merely a 'law and order ' problem and it has nothing to do with "maintenance of public order".
Its reach and effect is not so deep as to affect the public at large.
It does not create or tend to create any panic in the mini of the people of a particular locality or public in general nor it affects adversely the maintenance of public order.
There is nothing to show that the activities of the Petitioner have affected or tended to affect the even tempo of life of the community.
[571G 572A] It has been stated by the detaining authority that on relevant inquiry, it found the statements to he true and as such the names and addresses of those witnesses have not been given to the detenu as provided in Section 9(2) of the PASA Act, 1985.
The Court did not enter into that controver sy as in its opinion the detaining authority was satisfied not to disclose then names of those witnesses.
[581G 582A] Ashok Kumar vs Delhi Administration, ; not applicable distinguished.
|
ition No. 801 of 1986 & Etc.
(Under Article 32 of the Constitution of India) K. Parasaran, Attorney General, B. Dutta, Additional Solicitor General, D.D. Thakur, G.L. Sanghi (N.P.) M.S. Gujral, Anil Dev Singh, E.C. Agrawala, V.K. Pandian, Atul Sharma, A.K. Sanghi, N.D. Garg, Pankaj Kalra, H.K. Puri, S.K. Bisaria, R.P. Gupta, Ms. A. Subhashini, R. Venkatarama ni, S.K. Sinha, A.D. Malhotra, P.P. Rao and Sushil Kumar Jain for the appearing parties.
The Judgment of the Court was delivered by DUTT, J.
These Writ Petitions and Civil Miscellaneous Petitions have been filed by the employees of the Supreme Court praying for their pay hike.
Two events, which will be stated presently, seem to have inspired the employees of the Supreme Court to approach the Court by filing Writ Peti tions.
The first of the two events is the report of a Com mittee of Five Judges of this Court consisting of Mr. Jus tice P.N. Bhagwati (as he then was) as the Chairman, Mr. Justice V.D. Tulzapurkar, Mr. Justice D.A. Desai, Mr. Jus tice R.S. Pathak (as he then was) and Mr. Justice section Murtaza Fazal Ali.
The second event, which is the most important one, is the judgments of the Delhi High Court passed in writ proceedings instituted by its employees.
The Five Judge Committee in its report stated, inter alia, that no attempt had been made to provide a separate and distinct identity to the ministerial staff belonging to the Registry of the Supreme Court.
According to the Commit tee, the borrowed designations without any attempt at giving a distinct and independent identity to the ministerial staff in the Registry of the Supreme Court led to invidious com parison.
The committee observed that the salary scale ap plicable to various categories to staff in the Registry would show that at least since the Second Pay Commission appointed by the Central Government for Central Government servants, the pay scales devised by the Pay 495 Commission were practically bodily adopted by the Chief Justice of India for comparable categories in the Supreme Court.
This was repeated after the recommendations of the Third Pay Commission were published and accepted by the Central Government.
Further, it is observed that apparently with a view to avoiding the arduous task of devising a fair pay structure of various categories of staff in the Regis try, this easy course, both facile and superficial, was adopted which led to the inevitable result of linking the pay structure for the various categories of staff in the Registry with the pay structure in the Central Services for comparable posts and the comparison was not functional but according to the designations.
No attempt was made to really ascertain the nature of work of an employee in each category of staff and determine the pay structure and then after framing proper rules invite the President of India to ap prove the rules under Article 146 of the Constitution.
The Committee pointed out that the slightest attempt had not been made to compare the workload, skill, educational quali fications, responsibilities and duties of various categories of posts in the Registry and that since the days of Rajad hyakhsa Commission the work had become so complex and the work of even a clerk in the Supreme Court had such a dis tinct identity that it would be necessary not only to fix the minimum remuneration keeping in view the principles for determination of minimum remuneration but also to add to it the functional evaluation of the post.
This, according to the Committee, required a very comprehensive investigation and the Committee was ill equipped to do it.
The Committee, inter alia, recommended that the Chief Justice of India might appoint a Committee of 'experts to devise a fair pay structure for the staff of the Supreme Court keeping in view the principles of pay determination and on the recommenda tions of the Committee, the Chief Justice of India might frame rules under Article 146 of the Constitution and submit them for the approval of the President of India.
The Commit tee also took notice of the fact that the Fourth Central Pay Commission appointed by the Central Government and presided over by a former Judge of the Supreme Court, Mr. Justice P.N. Singhal, was then examining the question of pay scales and other matters referred to it in respect of the stuff of the Central Government.
According to the Committee, it was an ideal situation that a former Judge of this Court was heading the Panel and he was ideally situated for examining the question of independent pay structure for the staff in the Registry of the Supreme Court.
The Committee recommended that the Chief Justice of India with the concurrence of the Central Government might refer the case of the Supreme Court staff to the Fourth Pay Panel presided over by Mr. Justice P.N. Singhal.
496 Several Writ Petitions were filed before the Delhi High Court by various categories of its employees, namely, the Private Secretaries and Readers to the Judges, Superintend ents, Senior Stenographers, Assistants, Junior Readers, Junior Stenographers, Joint Registrars, Assistant Regis trars, Deputy Registrars and certain categories of Class IV employees.
In all these Writ Petitions, the Delhi High Court revised their respective pay scales.
With regard to certain categories of Class III and Class IV employees, the Delhi High Court revised their pay scales also and granted them Punjab pay scales and Central Dearness Allowance, the de tails of which are given below: SI.
Date of Revised scale No. Judgment No. of W.P. Post of pay Rs. 1.
3.2.86 & W.P. No. 1376/84 Restorer 400 600 23.5.86 2.
11.11.86 W.P. No. 1865/86 L.D.Cs. 400 600 3.
4.12.86 W.P. No. 2236/86 Class IV Sweepers Ushers etc.
300 430 4. 8.1.87 W.P. No. 2318/86 Gestetner Operator 400 600 5.
6.2.87 W.P. 2402/87 Staff Car Drivers 400 600 6.
20.8.87 W.P. No. 1656/87 Despatch Van Drivers 400 600 Several Special Leave Petitions were filed on behalf of the Government to this Court, but all these Special Leave Petitions were summarily rejected by this Court.
The Supreme Court employees have approached this Court by filing the instant Writ Petitions and the Civil Miscella neous Petitions for upward revision of their pay scales as were allowed in the case of the employees working in the Delhi High Court.
According to the petitioners, the duties and the job assignments in respect of the staff of the Supreme Court being more onerous and arduous compared to the work done by the staff of the Delhi High Court, the peti tioners 497 claimed that they are entitled to equal pay for equal work and.
therefore, they are approaching this Court for redres sal of their grievances by means of the present Writ Peti tions.
The Writ Petition No. 801 of 1986 has been filed by the Supreme Court Employees Welfare Association seeking higher pay scales parity in the pay scales with Delhi High Court employees in the corresponding categories.
On July 25, 1986, this Court passed an interim order which provides as fol lows: "By way of an interim arrangement, pending final disposal of the Writ Petition, we direct that the Officers and staff of the Supreme Court Registry may be paid same pay scales and allowances which are at present being enjoyed by the Officers and the members of the staff of the High Court of Delhi belonging to the same category with effect from the date from which such scales of pay have been allowed to the Officers and the members of the staff of the High Court of Delhi, if and in so far as they are higher or better than what the Offi cers and the members of the Registry of the Supreme Court are getting, as proposed by Respondent No. 2.
The Statement showing the posts in the Registry of the Supreme Court and the corresponding posts in the Delhi High Court, which is annexed to the proposal made by Respondent No. 2 will be annexed to this order also.
Learned Addl.
Solicitor General submits that the Petition for interim direc tions may be adjourned for a period of four weeks since the Government is actively consid ering the matter and to his information the Government is inclined to agree with the proposals made by the second respondent.
We do not think, it is necessary to postpone the interim directions.
The question of interim directions with regard to the categories of the Officers and the members of the staff not covered by the Delhi High Court scales of pay will be considered separately after two weeks.
Mr. S.N. Kacker, Counsel for the petitioner, Mr. P.P. Rao for respondent No. 2, Supreme Court of India, and the learned Addl.
Solicitor General are requested to assist us to arrive at a suitable formula in regard to them.
The Writ Petition is adjourned for four weeks.
In the 498 meanwhile, respondent Nos. 1 & 2 may take steps to refer the question of revision of pay scales to the Fourth Pay Commission as sug gested by the Committee consisting of Hon 'ble Mr. Justice V.D. Tulzapurkar, Hon 'ble Mr. Justice D.A. Desai, Hon 'ble Mr. Justice R.S. Pathak and Hon 'ble Mr. Justice section Murtaza Fazal Ali.
" It appears from the interim order extracted above that this Court directed that the officers and the members of the staff of the Registry might get the same pay and allowances which were then being enjoyed by the officers and the mem bers of the staff of the Delhi High Court belonging to the same category with effect from the date from which such scales of pay had been allowed to the officers and the members of the staff of the Delhi High Court.
This Court also by the same interim order directed the respondents Nos. 1 and 2 to take steps to refer the question of revision of pay scales to the Fourth Pay Commission as suggested by the Five Judge Committee.
Another interim order dated August 14, 1986 was passed by this Court in Writ Petition No. 801 of 1986.
The said interim order reads as follows: "Those employees who are not covered by our earlier order will be paid by way of an inter im arrangement, a sum equal to 10% of their basic pay, subject to a minimum of Rs.50.
The order will take effect from 1.1.1986.
The matter was left to us by counsel for all the parties and we have made this interim arrangement.
This interim order will be subject to the result of final order in the writ peti tion.
The writ petition is adjourned and will be listed for further hearing in usual course.
" The said interim order dated August 14, 1986 was, howev er, modified by a subsequent interim order dated November 14, 1986.
The modification was to the effect that the 10 per cent interim relief, subject to a minimum of Rs.50 per month, which was granted with effect from January 1, 1986, was directed to be granted with effect from January 1, 1978, in respect of Class IV staff.
Some other interim orders were also passed by this Court.
This Court passed interim orders 499 giving higher pay scales to certain categories of employees holding Group B, C and D posts.
The Court also ordered that certain Group C posts, that is to say, Junior Clerks, Senior Library Attendants, etc. would be given the same pay scales of Rs.400 600 from 1.1.1978 as given to Lower Division Clerks in the Delhi High Court.
The Court also ordered that Class IV employees would be given the same payscale of Rs.300 430 from 1.1.1978 as given to Class IV employees of the Delhi High Court.
The scales of pay of Rs.400 600 and Rs.300 430 were Punjab pay scales.
All these employees, who were given the Punjab pay scales, were also granted the Central D.A., which brought them at par with the Delhi High Court employees.
Sub clause (1) of clause 2 of the terms of reference of the Fourth Central Pay Commission provides as under: "2(1).
To examine the present structure of emoluments and conditions of service, taking into account the total packet of benefits, including death cum retirement benefits, available to the following categories of Government employees and to suggest changes which may be desirable and feasible: (i) Central Government employees industrial and nonindustrial.
(ii) Personnel belonging to the All India Services.
(iii) Employees of the Union Territories." Pursuant to the interim order of the Supreme Court dated July 25, 1986, the Ministry of Finance, Department of Ex penditure,published a Resolution dated December 24, 1986 in the Gazette of India, Extraordinary, Part I Section I.
By the said Resolution, the terms of reference were amended by the addition of a new sub clause (iv) below paragraph 2(1)(iii) which is as follows: "(iv) Officers and employees of the Supreme Court of India.
" It thus appears that although initially the cases of the employees of the Supreme Court were not referred to the Fourth Pay Commission, the Government, however, in obedience to the order of this Court referred their cases by the amendment of the terms of reference.
500 After the reference of the cases of the Supreme Court employees to the Fourth Pay Commission, the Registry of this Court sent to the Fourth Pay Commission a copy of the report of the Five Judge Committee and also copies of all the interim orders passed by this Court.
A team of officers of the Commission visited various sections of the Registry of the Supreme Court and spent a number of days for a proper understanding of the working of the various categories of the employees.
The FoUrth Pay Commission also visited the Registry to familiarize itself with the nature of their work.
The Commission requested the Registrar to bring to the notice of the Associations as also individual employees of the Supreme Court to submit their Memoranda to the Commis sion.
The Commission had also some discussions with Hon 'ble Mr. Justice Y.V. Chandrachud and Hon 'ble Mr. Justice P.N. Bhagwati, two former Chief Justices of India, and also with Hon 'ble Mr. Justice D.A. Desai, Chairman Law Commission, on various aspects of the pay structure etc.
of the employees of the Supreme Court.
The Commission had also met Hon 'ble Mr. Justice R.S. Pathak (as he then was) in his chamber on May 18, 1987.
The Fourth Pay Commission submitted its recommendations with regard to the Supreme Court employees.
The recommenda tions are contained in Part III of its report.
It is not necessary to state in detail as to the revision of pay scales made by the Fourth Pay Commission with regard to the employees of the Supreme Court.
In a nut shell, it may be stated that the Fourth Pay Commission reduced the existing 153 pay scales to 36 pay scales.
The Commission, however, did not revise the pay scales of the employees of the Su preme Court on the basis of the pay~scales granted to them by the interim orders passed by this Court in the Writ Petitions following the payscales as revised by the Delhi High Court by its judgments passed in the Writ Petitions filed by its employees.
A copy of the Fourth Pay Commission 's report relating to the pay structure of the officers and employees of the Supreme Court was first sent to the Ministry of Finance, Government of India.
The Ministry of Finance forwarded the said copy to the Chief Justice of India.
After the receipt of the said copy of the report of the Fourth Pay Commission with regard to the Supreme Court employees, the Registrar General of this Court, by his letter dated July 22, 1987 addressed to the Secretary, Government of India, Ministry of Finance, Department of Expenditure, New Delhi, stated inter alia that if the pay scales as proposed by the Fourth Pay Commission were accepted, and implemented, it would result in a number of anomalies and the 501 Supreme Court would encounter some difficulties in imple menting the same.
The Registrar General was of the opinion that the Pay Commission should not have made any such recom mendation which had the effect of reducing the pay scales than what had been given by this Court by its various inter im orders dated 25.7.1986, 15.1.1987, 19.2. 1987, etc.
to different categories of employees.
Further, it was stated by him that the Pay Commission should not also have made recom mendation which had the effect of taking away the benefit accrued to other categories of employees by the Court 's order dated August 14, 1986.
It is not necessary for us to refer to the anomalies as pointed out by the Registrar General in his said letter.
Suffice, it to say that the Registrar General dealt with the case of each category of employees affected by the report of the Fourth Pay Commis sion and stressed that while accepting the pay scales pro posed by the Fourth Pay Commission for the officers and employees of the Supreme Court, the Ministry must give full consideration to the anomalies and difficulties pointed out and the suggestions made in his letter and representations enclosed therewith and intimate its decision to the Registry at an early date.
The Joint Secretary to the Government of India, Ministry of Finance, by her letter dated November 23, 1987 addressed to the Registrar General, communicated to him the sanction of the President of India to the revised pay scales in respect of posts as shown in column 4 of the annexure to the said letter.
In other words, the scales of pay as revised and/or recommended by the Fourth Pay Commission in respect of the posts mentioned in the annexure to the said letter, were accepted by the Government.
Further, it was stated that such scales of pay would have effect from January 1, 1986.
In the last paragraph of the said letter, it has been stated that the revision of pay scales for the remaining posts in the Supreme Court Registry, mentioned in Part III of the Report of the Fourth Central Pay Commission, is separately under consideration of the Government.
The pay scales of Junior Clerks and Class IV employees of the Supreme Court, which have not been mentioned in the annexure, are therefore under consideration of the Government.
Nothing has been produced before us to show that the Government has separate ly considered the revision of pay scales of the Junior Clerks and Class IV employees of the Supreme Court.
All the parties including the learned Attorney General, however, proceeded on the assumption that the Government has not sanctioned the pay scales of the Junior Clerks and the Class IV employees as granted to them by this Court by the interim orders and/or the Government has accepted the pay scales as recommended 502 by the Fourth Pay Commission.
Indeed, the learned Attorney General vehemently opposed the granting of Punjab pay scales and also the Central Government D.A. to the Junior Clerks and the Class IV employees.
In view of the submissions made on behalf of the Government, it is clear that although it is stated in the said letter dated November 23, 1987 that the revision of pay scales of the Junior Clerks and the Class IV employees of the Supreme Court is under consideration of the Government and although no communication has been made to this Court as to the result of such consideration, yet the Government has made up its mind not to allow the pay scales given to them by the interim order of this Court.
Be that as it may, we may now proceed to consider the contentions of the respective parties in these proceedings.
Mr. Thakur, learned Counsel appearing in Writ Petition No. 801 of 1986 on behalf of the Supreme Court Employees ' Welfare Association, has made his submissions in two parts.
The first part relates to the Junior Clerks and the Class IV employees of the Supreme Court and the second part relates to the other employees of the Supreme Court, who are members of the Supreme Court Employees ' Welfare Association.
It may be stated here that the Class IV employees have filed a separate Writ Petition, that is, the Writ Petition No. 1201 of 1986.
We shall first of all deal with the submissions of Mr. Thakur with regard to the Junior Clerks and Class IV employ ees of the Supreme Court.
The learned Counsel has placed much reliance upon the judgments of the Delhi High Court in revising the pay scales of certain categories of Class III and Class IV employees, as stated hereinbefore, granting the pay scales of Rs.400 600 and Rs.300 430 respectively to L.D.Cs.
and Class IV employees.
It is submitted that the Delhi High Court was fully empowered under Article 226 of the Constitution to issue appropriate writs, if in its opinion the recommendations of the Third Pay Commission as adopted by the Government of India and as reflected in the revised pay Rules of 1973, in so far as these Rules related to the staff of the Delhi High Court, amounted to discrimi nation and consequently violated Article 14 of the Constitu tion of India.
Counsel submits that the Special Leave Peti tions filed by the Government against the judgments of the Delhi High Court having been dismissed by this Court, the Delhi High Court judgment revising the pay scaleS of its employees including the pay scales of the L.D.Cs.
annd Class IV employees have attained finality and operate as res judicata between the parties, namely, the employees of the Delhi High Court and the Union of India.
It is submitted that this Court was fully 503 justified in passing the interim orders on the basis of the judgments of the Delhi High Court which had become final and conclusive between the parties and binding on them, and that the pay scales granted by this Court by the interim orders were consonant to justice and equity.
It is urged that it was not open to the Fourth Pay Commission while revising the pay scales of the staff of the Supreme Court to take a pay scale lower than the one prescribed by this Court by the interim orders, as the basis for revision, as that would amount to negativing and nutralising the effect of the orders passed by this Court.
It is submitted by the learned Counsel that the recommendations of the Fourth Pay Commis sion, if allowed to prevail, would result in the reduction of the salaries of the Junior Clerks and Class IV employees to a level lower than what they were receiving on the date of the revision and it would be highly discriminatory and violative of Article 14 of the Constitution.
On the other hand, the learned Attorney General appear ing on behalf of the Union of India, in the first instance, points out that the Delhi High Court judgments, particularly the judgment in C.W.P. No. 1376 of 1984, Shri Kamalanand vs Union of India and others, are based on the doctrine of 'equal pay for equal work ' as enshrined in Article 39(d) of the Constitution of India.
The learned Attorney General has made elaborate submissions as to the applicability of the said doctrine to the cases of the employees of the Delhi High Court and also of the Supreme Court.
We shall, of course, consider the submissions of the learned Attorney General in regard to the doctrine of 'equal pay for equal work ', but before we do that we may consider his other submissions.
It is urged by him that the judgments of the Delhi High Court are absolutely erroneous and that, in any event, they are neither final nor do they operate as res judicata, between the parties as contended on behalf of the petition ers.
It is pointed out by him that the scales of pay of Rs.400 600 and Rs.300 430 are Punjab pay scales.
Punjab payscales were higher than the Central pay scales because the Punjab pay scales were linked to higher Consumer Price Index (for short 'CPI ') 320 as on 1.1.1978 instead of CPI 200.
On the other hand, the Central pay scales were linked to CPI 200 as on 1.1.1973.
The Punjab High Court employees were getting higher pay scales because the Dearness Allow ance up to 1.1.1978 had been merged in the pay scales which related to CPI 320 as on 1.1.1978 instead of CPI 200.
The Delhi High Court employees were given the higher Punjab scales of pay linked to CPI 320 and also got the benefit of the difference between 504 CPI 200 and CPI 320 according to the Central Government D.A. formula which came into effect from 1.1.1973.
The Punjab D.A. formula is correspondingly lower than the Central D.A. which is clear from the letter dated April 16, 1980 of the Government of Punjab.
It is submitted by the learned Attor ney General that the employees of the High Court as also of the Supreme Court cannot have the best of both the worlds, that is to say, they cannot get both the Punjab pay scales merging into it the Dearness Allowance between CPI 200 and CPI 320 and, at the same time, the Central Government D.A.
Accordingly, it is submitted that the Delhi High Court judgments are absolutely erroneous and should not be relied upon.
The question whether the High Court judgments relating to the L.D.Cs. and the Class IV employees are right or wrong.
may not be necessary to be considered.
But, the relevant question that requires consideration is whether the said judgments of the Delhi High court have become final and conclusive and binding on the parties.
In case it is held that the judgments have not attained finality and do not operate as res judicata between the parties, the question as to the correctness of the judgments may be considered.
Let us, therefore, advert to the contention of Mr. Thakur that the Delhi High Court judgments have become final and conclu sive between the parties and operate as res judicata.
It has been already noticed that the Special Leave Petitions filed on behalf of the Union of India against the said judgments of the Delhi High Court were summarily dis missed by this Court.
It is now a well settled principle of law that when a Special Leave Petition is summarily dis missed under Article 136 of the Constitution, by such dis missal this Court does not lay down any law, as envisaged by Article 141 of the Constitution, as contended by the learned Attorney General.
In Indian Oil Corporation Ltd. vs State of Bihar, ; it has been held by this Court that the dismissal of a Special Leave Petition in limine by a non speaking order does not justify any inference that, by necessary implication, the contentions raised in the Special Leave Petition on the merits of the case have been rejected by the Supreme Court.
It has been further held that the effect of a non speaking order of dismissal of a Special Leave Petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where Special Leave Petition should be granted.
In Union of India vs All India Services Pensioners Association, AIR 1988 SC 50 1 this Court has given reasons for dismissing the Special Leave 505 Petition.
When such reasons are given, the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India.
It, therefore, follows that when no reason is given, but a Special Leave Petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by this Court under Article 14 1 of the Constitution.
It is true that by the dismissal of a Special Leave Petition in limine, this Court does not lay down any law under Article 141 of the Constitution, but the question is whether after the dismissal of the Special Leave Petition the judgment against which the Special Leave Petition was filed becomes final and conclusive so as to operate as res judicata between the parties thereto.
In repelling the contention of the petitioners that the Delhi High Court judgments relating to the L.D. Cs. and Class IV employees operate as res judicata between the parties, the learned Attorney General has strongly relied upon the decision of this Court in Mathura Prasad Rajoo Jaiswal vs Dossibai N.B. Jeejeebhoy; , In that case, this Court observed as follows : "The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata.
A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto.
A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue.
When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties.
A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the deter mination of the transaction which is the foundation of the right and the relevant law applicable to the determination of the trans actions which is the source of the right is res judicata.
A previous decision on a matter in issue is a composite decision: the decision of law cannot be dissociated from the decision on facts on which the right is founded.
A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the 506 previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law." . . . . . . . . . . . . . . "It is true that in determining the applica tion of the rule of res judicata the Court is not concerned with the correctness or other wise of the earlier judgment.
The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened.
A mixed question of law and fact determined in the earlier pro ceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties.
But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in section 11 Code of Civil Proce dure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue.
Where, howev er, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule or res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, 'for a rule of procedure cannot supersede the law of the land." Thus, a decision on an abstract question of law unrelat ed to facts which give rise to a right, cannot operate as res judicata.
Nor also can a decision on the question of jurisdiction be res judicata in a subsequent suit or pro ceeding.
But, if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subse quent suit or proceeding, if the cause of action is the same.
The Delhi High Court judgments do not decide any abstract question of law and there is also no question of 507 jurisdiction involved.
Assuming that the question of juris diction involved.
Assuming that the judgments of the Delhi High Court are erroneous, such judgments being on questions of fact would still operate as res judicata between the same parties in a subsequent suit or proceeding over the same cause of action.
In Kirit Kumar Chaman Lal Kundaliya vs State of Gujarat, 18 it has been laid down by this Court that the doctrine of res judicata or the principles of finality of judgment cannot be allowed to whittle down or override the express constitutional mandate to the Supreme Court enshrined in Article 32 of the Constitution.
On the basis of this principle, it has been argued by the learned Attorney General that the judgments of the Delhi High Court might operate as res judicata, but they cannot override the provi sion of Article 14 of the Constitution.
In other words, in spite of the judgments of the Delhi High Court, it is per missible to contend that if the judgments are given effect to the employees of the Supreme Court, it would be discrimi natory inasmuch as those who are similarly situated will be getting lesser pay.
In Kirit Kumar 's case, the order of detention of the petitioner under the Conservation of For eign Exchange and Prevention of Smuggling Activities Act was upheld by the High Court.
The petitioner filed a Special Leave Petition against the impugned order of the High Court and also a petition under Article 32 of the Constitution urging certain additional grounds which were not taken before the High Court.
A preliminary objection was raised on behalf of the State that the points not taken in the High Court by the detenu could not be agitated in the Writ Peti tion under Article 32 of the Constitution because that would be barred by the principle of constructive res judicata.
In the context of the facts of that case, this Court laid down the above proposition of law that the doctrine of res judi cata or the principles of finality of judgment could not be allowed to whittle down or override the express constitu tional mandate to the Supreme Court enshrined in Article 32 of the Constitution.
It is, however, the contention of the petitioners, that is, the employees of the Supreme Court, that they are being discriminated against by the Union of India because while the Delhi High Court employees are given a higher scale of pay, the Supreme Court employees who perform at least the same duties are paid a lower scale of pay.
The observation that has been made in Kirit Kumar 's case was in the context of the facts of that case, namely, that even though certain points were not raised before the High Court that would not preclude the detenu from urging those points in a petition under 508 Article 32 of the Constitution relating to the violation of a provision of Article 22(5) of the Constitution.
The fact remains that the Delhi High Court employees would be getting higher scale of pay than the employees of the Supreme Court.
It is not the case of the Union of India that the Delhi High Court employees are not similarly situated as the Supreme Court employees and that, therefore, there is a reasonable justification for making a discrimination between these two classes of employees.
In this connection, we may consider the contention of Mr. P.P. Rao, learned Counsel appearing on behalf of the Registrar of the Supreme Court.
His contention is that the judgments of the Delhi High Court cannot be collaterally challenged and should be treated as res judicata between the parties, even though the said judgments will be violative of Article 14 of the Constitution.
In support of this conten tion, the learned Counsel has placed much reliance upon the decision of this Court in Thakore Sobhag Singh vs Thakur Jai Singh, What happened in that case was that the Board of Revenue rejected the claim of the respondent to be recognised as an adopted son on the ground that under the Jaipur Matmi Rules the adoption, without the previous sanc tion of the Ruler, could not be recognised for the purpose of determining succession to the jagir.
In the Writ Petition filed by the respondents, the High Court held that the Jaipur Matmi Rules had no statutory force because the Ruler had not given his assent to them.
The High Court sent the case back on remand to the Board of Revenue to decide the case in accordance with law declared by the High Court.
After the case was sent back on remand by the High Court, Validation Act, 1961 was passed validating the Matmi Rules.
The Board of Revenue, however, held after remand that the respondent was the adopted son.
On appeal to this Court, it has been held that even though the said Validation Act declared that the Matmi Rules shall have and shall be deemed always to have had the force of law, notwithstanding any thing contained in any judgment in any court, the Act did not supersede the judgment of the High Court.
It could not be contended that the judgment of the High Court should not be treated as res judicata on that ground that if it was regarded as binding between the parties the equal protection clause of the Constitution would be violated if another person, similarly situated, was to be differently treated by the Board of Revenue.
The decision in Thakore Sobhag Singh 's case is an answer to the contention of the learned Attorney General.
The doctrine of res judicata is a universal doctrine laying down 509 the finality of litigation between the parties.
When a particular decision has become final and binding between the parties, it cannot be set at naught on the ground that such a decision is violative of Article 14 of the Constitution.
So far as the parties are concerned, they will always be bound by the said decision.
In other words, either of the parties will not be permitted to reopen the issue decided by such decision on the ground that such decision violates the equality clause under the Constitution.
There is no question of overruling the provision of Article 14, as contended by the learned Attorney General.
The judgment which is binding between the parties and which operates as res judicata between them, cannot be said to overrule the provision of Article 14 of the Constitution even though it may be, to some extent, violative of Article 14 of the Constitution.
So far as the Supreme Court employees are concerned in these proceedings the only enquiry to be made is whether the judgments of the Delhi High Court relating to the L.D.Cs. and the Class IV employees have become final and conclusive between the employees of the Delhi High Court and the Union of India.
It is the contention of the learned Attorney General that the judgments of the Delhi High Court are erroneous on the face of them inasmuch as by these judgments the Delhi High Court has granted to the Restorers L.D.Cs.
and the Class IV employees Punjab pay scales as also the Central D.A.
It is urged by the learned Attorney General that such judgments should not be given effect to so far as the Junior Clerks and Class IV employees of the Supreme Court are concerned.
It is submitted that because the Special Leave Petitions against the Delhi High Court judgments have been dismissed by this Court, the judgments may be final between the parties, but the benefit of that wrong decision should not be conferred on the employees of the Supreme Court or persons similarly situated.
The Delhi High Court has made an error and that error should not be perpetuated.
In support of that contention, the learned Attorney General has placed reliance upon a decision of this Court in State of Orissa vs Durga Charan Das, ; In that case, the respondent claimed that he was discriminated by the State of Orissa is not fixing the amount of his pension on the basis of his confirmation as the Registrar of the High Court on August 28, 1956, that is, the date on which his junior had been confirmed as Registrar.
The re spondent relied upon the fact that one Mr. Beuria was held entitled to get the pay of the Registrar from December 1, 1958 and his junior was promoted.
to the rank of Registrar on that date.
It was held by this Court 510 that granting to Mr. Beuria the salary of the Registrar with effect from December 1, 1948 was erroneous, as it was grant ed to him on the misconstruction of the relevant rule and, thereafter, it was observed as follows: "If the respondent 's plea of discrimination was accepted on the strength of the single case of Mr. Beuria, it would follow that because the appellant placed a misconstruction on the relevant Rule, it is bound to give effect to the said misconstruction for all times; that, plainly cannot be said to be sound." The learned Attorney General has also relied on the decision of this Court in G.V. Ramanaiah vs The Superintend ent of Central Jail, Rajahmundry; , In that case, this Court observed as follows: "Mr. P.K. Rao next contends in a somewhat half hearted manner that even if the State Government had extended the benefit of its G.O. owing to a mistake to four other persons, similarly placed, it was not fair to deny the same treatment to the petitioner.
This conten tion must be repelled for the obvious reason that two wrongs never make a right.
" It is submitted that this Court is both a court of law and a court of equity, as held in Chandra Bansi Singh vs State of Bihar; , The equitable principles require that the court should not apply the result of an erroneous decision in regard to the pay scales to the em ployees of the Supreme Court.
The learned Attorney General has also placed reliance upon the doctrine of prospective overruling and points out that this Court has given effect to the doctrine of prospec tive overruling in Waman Rao vs Union of India, ; ; Minor P. Rajendran vs State of Madras, ; and State of M.P.v.
Ram Raghubir Prasad Agarwal; , We are pressed to hold that the judgments of the Delhi High Court are wrong and even though the benefit which has been conferred under the judgments may not be interfered with in respect of those who have got the same, but such benefits may not be conferred on the future employees of the Delhi High Court and on the employees of this Court.
511 It is also submitted by the learned Attorney General that if this Court is of the opinion that the judgments of the Delhi High Court are erroneous, this Court should ignore that by such judgments a certain section of the employees of the Delhi High Court has been benefitted and also the hard ship that may result in not giving effect to such judgments, so far as the employees of the Supreme Court are concerned.
In support of that contention, the learned Attorney General has placed reliance upon a decision of this Court in Roshan lal Kuthiala vs R.S. Mohan Singh Oberai, ; In that case, it has been observed by Krishna Iyer, J. that our equitable jurisdiction is not hidebound by tradition and blinkered by precedent, though trammelled by judicially approved rules of conscience.
In this connection, we may refer to another observation of Krishna Iyer, J. in Tamil Nadu Education Department Ministerial & General Subordinate Service Association vs State of Tamil Nadu, ; It has been observed that once the principle is found to be rational the fact that a few freak instances of hard ship may arise on either side cannot be a ground to invali date the order or the policy.
At the same time, the learned Attorney General submits that the benefit which has been conferred on the employees of the Supreme Court should not be taken away all at a time but, as a court of equity, this Court may by way of recon ciliation direct freezing of the payscales of the Supreme Court employees, which they are getting by virtue of the interim order of this Court, to be adjusted or neutralised against increments, and if that be done, they would not suffer any appreciate hardship.
We are unable to accept the suggestion of the learned Attorney General that reconciliation can be made by freezing the pay scales of Supreme Court employees, which they are getting by virtue of the interim orders of this Court, to be adjusted or neutralised against the increments.
It is not the business of this Court to fix the pay scales of the employees of any institution in exercise of its jurisdiction under Article 32 of the Constitution.
If there be violation of any fundamental right by virtue of any order or judgment, this Court can strike down the same but, surely, it is not within the province of this Court to fix the scale of pay of any employee in exercise of its jurisdiction under Article 32 of the Constitution.
So far as the judgments of the Delhi High Court are concerned, they do not infringe the fundamen tal rights of the employees of the Supreme Court or any of the petitioners, who are the petitioners before us in the Writ Petitions, and so the question of considering whether the judgments of the Delhi High Court are 512 right or wrong does not arise.
If the judgments of the Delhi High Court had in any manner interfered with the fundamental rights of the petitioners before us, in that case, the question as to the correctness of those judgments would have been germane.
The petitioners, far from making any complaint against the judgments of the Delhi High Court, have strongly relied upon them in support of their respective cases for pay hike and, accordingly, we do not think that we are called upon to examine the propriety or validity of the judgments of the Delhi High Court.
We may also deal with the contention of the learned Attorney General as to the doctrine of 'equal pay for equal work ' which we have so long deferred consideration.
It is urged by him that the doctrine of equal pay for equal work ', as enshrined in Article 39(d) of the Constitution of India, cannot be relied on by the petitioners in support of their claim for the same pay scales as granted by the Delhi High Court by the said judgments.
Article 39(d) being a provision contained in Part IV of the Constitution dealing with Direc tive Principles of State Policy is not enforceable by any court in view of Article 37 of the Constitution.
He submits that as laid down in Kishori Mohanlal Bakshi vs Union of India, AIR 1962 SC 1139 and State of Punjab vs Joginder Singh, [1963] Supp. 2 SCR 169 the abstract doctrine of 'equal pay for equal work ' has nothing to do with Article 14.
In Randhir Singh vs Union of India, ; this Court has considered the decision in Kishori Mohanlal Bakshi 's case and came to same view that the principle of 'equal pay for equal work ' was not an abstract doctrine but one of substance.
Thereafter, this Court observed as fol lows: "The Preamble to 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 condi tions "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".
Constru ing 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 Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the dif ferent scales of pay do identical work under the same employer.
" 513 It follows from the above decisions that although the doctrine of 'equal pay for equal work ' does not come within Article 14 of the Constitution as an abstract doctrine, but if any classification is made relating to the pay scales and such classification is unreasonable and/or if unequal pay is based on no classification, then Article 14 w411 at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work.
In other words, where unequal pay has brought about a discrimi nation within the meaning of Article 14 of the Constitution, it will be a case of 'equal pay for equal work ', as envis aged by Article 14 of the Constitution.
If the classifica tion is proper and reasonable and has a nexus to the object sought to be achieved, the doctrine of 'equal pay for equal work ' will not have any application even though the persons doing the same work are not getting the same pay.
In short, so long as it is not a case of discrimination under Article 14 of the Constitution, the abstract doctrine of 'equal pay for equal work ', as envisaged by Article 39(d) of the Con stitution, has no manner of application, nor is it enforce able in view of Article 37 of the Constitution.
Dhirendra Chamoli vs State of U.P., is a case of 'equal pay for equal work ', as envisaged by Article 14, and not of the abstract doctrine of 'equal pay for equal work '.
The learned Attorney General has also placed reliance on some recent decisions of this Court on the question as to the applicability of the doctrine of 'equal pay for equal work '.
In State of Andhra Pradesh vs G. Sreenivasa Rao, ; it has been observed that 'equal pay for equal work ' does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service.
In V. Markendeya vs State of Andhra Pradesh; , it is laid down that on an analysis of the relevant rules, orders, nature of duties, functions, measure of responsibility and educational qualifications required for the relevant posts, if the Court finds that the classification made by the State in giving different treatment to the two classes of employees is rounded on rational basis having nexus to the object sought to be achieved, the classification must be upheld.
In State of U.P. v J.P. Chaurasia, ; this Court observed as follows: "The first question regarding entitlement to the pay scale admissible to Section Officers should not detain us longer.
514 The answer to the question depends upon sever al factors.
It does not just depend upon either the nature of work or volume of work done by Bench Secretaries.
Primarily it re quires among others, evaluation of duties and responsibilities of the respective posts.
More often functions of two posts may appear to be the same or similar, but there may be differ ence in degrees in the performance.
The quan tity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of.
interested parties.
The equation of posts or equation of pay must be left to the Executive Government.
It must be determined by expert bodies like Pay Commission.
They would be the best judge to evaluate the nature of duties and responsibilities of posts.
If there is any such determination by a Commission or Commit tee, the Court should normally accept it, The Court should not try to tinker with such equivalent unless it is shown that it was made with extraneous consideration.
" Relying upon the decision in Chaurasia 's case, it has been urged by the learned Attorney General that in the instant case also this COurt should accept the recommenda tions of the Fourth Pay Commission.
Normally, when a Pay Commission has evaluated the nature of duties and responsi bilities of posts and has also made the equation of posts, the Court should not interfere with the same.
The question is not whether the Court should interfere with such findings or not, but it will be discussed presently that the Chief Justice of India, who is the appropriate authority, is entitled to accept or reject the recommendations or any finding of the Pay Commission.
Again, in Urnesh Chandra Gupta vs Oil and Natural Gas Commission, AIR 1989 SC 29 it has been observed by this Court that the nature of work and responsibilities of the posts are matters to be evaluated by the management and not for the Court to determine by relying upon the averments in the affidavit in the interest of the parties.
It has been observed by us earlier in this judgment that it is not the business of this Court to fix the pay scales in exercise of its jurisdiction under.
Article 32 of the Constitution.
It is really the business of the Government or the management to fix the pay scales after considering various other mat ters and the Court can only consider whether such fixation of pay scales has resulted in an invidious discrimination or is arbitrary or patently erroneous in law or in fact.
515 The last case that has been relied on by the learned Attorney General is the decision in Tarsem Lal Gautam vs State Bank of Patiala, AIR 1989 SC 30.
In that case, this Court held that it was not an instance to which principle of 'equal pay for equal work ' could straightaway be applied inasmuch as the qualitative differences in regard to degrees of reliability and responsibility could not be put aside as irrelevant.
So far as the judgments of the Delhi High Court are concerned, we find that the High Court has taken into con sideration the decision of this Court on the doctrine of 'equal pay for equal work '.
In one of these judgments in Civil Writ Petition No. 1376 of 1984 relating to the pay scale of the petitioner, who was a Restorer which is equiva lent to L.D.C./Junior Clerk, the learned Judges of the Delhi High Court have held that the principle of 'equal pay for equal work ' would be squarely available to the petitioner, particularly having regard to the admitted fact that of the two High Courts in relation to which parity is claimed one was the predecessor of this Court and the other its succes sor.
The Delhi High Court before applying the doctrine of 'equal pay for equal work ' has come to the finding that if the Restorers working in the Delhi High Court are given a pay scale lower than the Restorers working in the Punjab High Court, which is a predecessor of the Delhi High Court and in Himachal Pradesh High Court which is a successor of the Delhi High Court, it will be discriminatory and viola tive of Article 14 of the Constitution.
It has been already stated by us that we are not called upon to consider the correctness or otherwise of the judgments of the Delhi High Court, but what we would like to point out is that the Delhi High Court has not straightaway applied the doctrine of 'equal pay for equal work ' as an abstract doctrine, as envisaged by Article 39(d) of the Constitution.
Elaborate submissions have been made by the learned Counsel of the parties as to the interpretation and scope of Article 146(2) of the Constitution of India.
Article 146(2) provides as follows: "146(2).
Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose: Provided that the rules made under this clause shall, 516 so far as they relate to salaries, allowances, leave or pensions, require the approval of the President.
" Under Article 146(2) the conditions of service of offi cers and servants of the Supreme Court shall be such as may be prescribed by the rules made by the Chief Justice of India or by some other Judge or officer of the Court autho rised by the Chief Justice of India to make rules for the purpose.
This is, however, subject to the provisions of any law that may be made by Parliament.
It is apparent from Article 146(2) that it is primarily the responsibility of Parliament to lay down the conditions of service of the officers and servants of the Supreme Court, but so long as Parliament does not lay down such conditions of service, the Chief Justice of India or some other Judge or officer of the Court authorised by the Chief Justice of India is empowered to make rules for the purpose.
The legislative function of Parliament has been delegated to the Chief Justice of India by Article 146(2).
It is not disputed that the function of the Chief Justice of India or the Judge or the officer of the Court authorised by him in framing rules laying down the conditions of service, is legislative in nature.
The condi tions of service that may be prescribed by the rules framed by the Chief Justice of India under Article 146(2) will also necessarily include salary, allowances, leave and pensions of the officers and servants of the Supreme Court.
The proviso to Article 146(2) puts a restriction on the power of the Chief Justice of India by providing that the rules made under Article 146(2) shall, so far as they relate to sal aries, allowances, leave or pensions, require the approval of the President of India.
Prima facie, therefore, the conditions of service of the employees of the Supreme Court that are laid down by the Chief Justice of India by framing the rules will be final and conclusive, except that with regard to salaries, allowances, leave or pensions the ap proval of the President of India is required.
In other words, if the President of India does not approve of the salaries, allowances, leave or pensions, it will not have any effect.
The reason for requiring the approval of the President of India regarding salaries, allowances, leave or pensions is the involvement of the financial liability of the Government.
One important thing that is to be noticed is that under clause (3) of Article 146 the administrative expenses of the Supreme Court including all salaries, allowances, leave and pensions payable to or in respect of the officers and serv ants of the Court shall be charged upon the Consolidated Fund of India.
In view of the provision of clause (3), such administrative expenses shall not be submitted to the vote of Parliament, as provided in Article 113 of the Constitu tion.
It is appa 517 rent that in order to maintain the independence of the judiciary, the framers of the Constitution thought it wise and expedient to make such a provision as contained in clause (3) of Article 146.
It is contended by the learned Attorney General that the function of the President of India approving of the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions is legislative in character and it is analogous to the President of India giving assent to a Bill.
It is difficult to accept the contention that the function of the President of India approving of the rules is analogous to giving assent to a Bill.
The rules framed by the Chief Justice of India though it is a piece of subordi nate legislation, it is not a fullfledged legislative act requiring assent of the President of India.
In this connec tion, we may refer to the statement of law as to the dele gated legislation in Foulkes ' Administrative Law, Sixth Edition, Page 57 which reads as follows: "It is common for Parliament to confer by Act on ministers and other executive bodies the power to make general rules with the force of law to legislate.
Parliament is said to delegate to such bodies the power to legis late.
Thus the phrase 'delegated legislation ' covers every exercise of a power to legislate conferred by Act of Parliament.
The phrase is not a term of art, it is not a technical term, it has no statutory definition.
To decide whether the exercise of a power constitutes 'delegated legislation ' we have to ask whether it is a delegated power that is being exer cised and whether its exercise constitutes legislation.
Clearly an Act, public or pri vate.
is not delegated: it is primary legisla tion.
When a minister or other authority is given power by Act of Parliament to make rules, regulations etc.
the power has been delegated to him, and insofar as the rules made by that authority are legislative in their nature.
they comprise delegated legisla tion.
If the contents of the document (made under delegated powers) are not legislative the document will obviously not be a piece of (delegated) legislation.
Ministers and others are in fact given power to make orders, give directions, issue approvals and notices etc.
which one would not, because of their lack of generality.
classify as legislative but rather as administrative . ." It has been observed in the statement of law that if the contents 518 of the document made under delegated powers are not legisla tive, the document would obviously not be a piece of dele gated legislation.
Again, it is stated that Ministers and others are, in fact, given powers to make orders, give directions, issue approval and notices etc.
which one would not, because of their lack of generality, classify as legis lative but rather as administrative.
In view of the said statement of law, it may be contended that the function of the President of India is not strictly legislative in na ture, but an administrative act.
We do not think it neces sary to come to any final decision on the question and we propose to proceed on the assumption that the function of the President of India in approving the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions is a legislative act.
It is vehemently contended by the learned Attorney General that as the President of India performs a legisla tive act in approving the rules framed by the Chief Justice of India, no writ can lie to compel him to give the approval or to withhold the approval.
In support of his contention, reliance has been placed on a decision of this Court in Narinder Chand Hem Raj vs Lt. Governor, Administrator, Union Territory, Himachal Pradesh, ; In that case, Hegde, J. speaking for the Court observed as follows: "What the appellant really wants is a mandate from the court to the competent authority to delete the concerned entry from Schedule A and include the same in Schedule B. We shall not go into the question whether the Government of Himachal Pradesh on its own authority was competent to make the alteration in question or not.
We shall assume for our present pur pose that it had such a power.
The power to impose a tax is undoubtedly a legislative power.
That power can be exercised by the legislature directly or subject to certain conditions, the legislature may delegate that power to some other authority.
But the .exer cise of that power, whether by the legislature or by its delegate is an exercise of a legis lative power.
The fact that the power was delegated to the executive does not convert that power into an executive or administrative power.
No court can issue a mandate to a legislature to enact a particular law.
Simi larly no court can direct a subordinate legis lative body to enact or not to enact a law which it may be competent to enact.
" There can be no doubt that no court can direct a legislature to 519 enact a particular law.
Similarly, when an executive author ity exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legis lature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority.
The next decision which has been relied on by the learned Attorney General is the decision in State of Andhra Pradesh vs T. Gopalakrishnan Murthi, ; This case relates to the proviso to Article 229(2) of the Consti tution of India.
Provision of Article 229(2) including the proviso thereto is a similar to Article 146(2) and its proviso.
Under Article 229(2), it is the Chief Justice of the High Court or his delegate who frames rules relating to the conditions of service of officers and servants of the High Court.
Under the proviso to Article 229(2), if the rules framed by the Chief Justice of the High Court or his delegate relate to salaries, allowances, leave or pensions, it shall require the approval of the Governor of the State.
So far as the two provisos are concerned, while under provi so to Article 229(2) the rules relating to salaries, allow ances, leave or pensions require the approval of the Gover nor of the State, under the proviso to Article 146(2) it will require the approval of the President of India.
In Gopalakrishnan 's case it has been observed that it is not possible to take the view that merely because the State Government does not see its way to give the required approv al, it will justify the issuance of a writ of mandamus under Article 226 of the Constitution, as if the refusal of the State Government was ultra vires or made mala fide and arbitrarily.
Another case which has been cited and relied upon by the learned Attorney General in this regard is the decision in A.K. Roy vs Union of India, ; What happened in that case was that by a Notification the Central Govern ment had brought into force all the sections of the Forty fourth Amendment act except section 3.
The question before this Court was whether this Court could issue a writ of mandamus directing the Central Government to bring into force section 3 of the Fortyfourth Amendment Act.
It has been observed by Chandrachud, C.J. delivering the majority judgment that a mandamus cannot be issued to the Central Government compelling it to bring the provisions of section 3 of the Fortyfourth Amendment Act into force.
On the basis of the principles of law laid down in the above 520 decisions, it is urged by the learned Attorney General that this Court cannot issue a mandate to the President of India to grant approval to the rules framed by the Chief Justice of India relating to salaries, allowances, leave and pen sions of the officers and servants of the Supreme Court.
In other words, the President of India cannot be compelled to grant approval to the proposals of the Registrar General of the Supreme Court, as contained in his letter dated July 22, 1987.
There can be no doubt that an authority exercising legislative function cannot be directed to do a particular act.
Similarly the President of India cannot be directed by the Court to grant approval to the proposals made by the Registrar General of the Supreme Court, presumably on the direction of the Chief Justice of India.
It is not also the contention of any of the parties that such a direction can be made by the Court.
The real question is how and in what manner the Presi dent of India should act after the Chief Justice of India submits to him the rules framed by him relating to the salaries, allowances, leave and pensions of the officers and servants of the Supreme Court.
The President of India is the highest dignitary of the State and the Chief Justice of India also is a high dignitary of the State.
Upon a compara tive study of some other similar provisions of the Constitu tion, we find that under Article 98(3), the President of India has been empowered to make rules regulating the re cruitments and the conditions of service of persons appoint ed to the secretarial staff of the House of the People or the Council of States, after consultation with the Speaker of the House of the People or the Chairman of the Council of States, as the case may be.
Article 148(5) provides that the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor General shall be such as may be prescribed by rules made by the President of India after consultation with the Comptroller and Auditor General.
Similarly, the Governor has been empowered under Article 187(3) to make rules regulating the recruitment, and the conditions of service of persons appointed to the secretari al staff of the Assembly or the Council after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be.
Thus, it appears that except in the cases of the officers and serv ants of the Supreme Court and those of the High Courts, in other cases either the President of India or the Governor has been empowered to frame rules.
So far as the Supreme Court and the High Courts are con cerned, 521 the Chief Justice of India and the Chief justice of the concerned High Court, are empowered to frame rules subject to this that when the rules are framed by the Chief Justice of India or by the Chief Justice of the High Court relating to salaries, allowances, leave or pensions, the approval of the President of India or the Governor, as the case may, is required.
It is apparent that the Chief Justice of India and the Chief Justice of the High Court have been placed at a higher level in regard to the framing of rules containing the conditions of service.
It is true that the President of India cannot be compelled to grant approval to the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions, but it is equally true that when such rules have been framed by a very high dignitary of the State, it should be looked upon with respect and unless there is very good reason not to grant approval, the approv al should always be granted.
If the President of India is of the view that the approval cannot be granted, he cannot straightaway refuse to grant such approval, but before doing there must be exchange of thoughts between the President of India and the Chief Justice of India.
In Gopalakrishnan 's case (supra), relied on by the learned Attorney General, it has been observed that one should expect in the fitness of things and in view of the spirit of Article 229 that ordinarily and generally the approval should be accorded.
Although the said observation relates to the provision of Article 229(2), it also equally applies to the provision of Article 146(2) relating to the grant of approval by the President of India.
In this connec tion, we may also refer to a decision of this Court in Gurumoorthy vs Accountant General Assam & Nagaland, , which was also considered in Gopalakrish nan 's case (supra).
In Gurumoorthy 's case, this Court took the view that the unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and serv ants.
of a High Court, it is the Chief Justice or his nomi nee who is to be the supreme authority and there can be no interference by the Executive except to the limited extent that is provided in that Article.
The same observation will apply to the rules framed by the Chief Justice of India under Article 146(2) of the Constitution.
At this stage, it may be noticed that it has been conceded by the learned Attorney General that the validity of the subordinate legislation as provided in Article 146(2) of the Constitution can be challenged on such grounds as any other legislative acts can be challenged.
So, if the rules framed by the Chief Justice of India and approved by 522 the President of India relating to the salaries, allowances, leave or pensions offend against Article 14 or 16, the same may be struck down by the Court.
In Wade 's Administrative Law, Sixth Edition, Page 863 it is stated as follows: "Acts of Parliament have sovereign force, but legislation made under delegated power can be valid only if it conforms exactly to the power granted.
Even where, as is often the case, a regulation is required to be approved by resolutions of both Houses of Parliament, it still fails on the 'subordinate ' side of the line, so that the court may determine its validity.
" Again, at page 868 it is observed that just as with other kinds of administrative action, the courts must some times condemn rules or regulations for unreasonableness.
Thus a delegated legislation or a subordinate legisla tion must conform exactly to the power granted.
So far as the question of grant of approval by the President of India under the proviso to Article 146(2) is concerned, no such conditions have been laid down to be fulfilled before the President of India grants or refuses to grant approval.
By virtue of Article 74(1) of the Constitution, the President of India shall, in exercise of his functions, act in accord ance with the advice of the Council of Ministers.
In other words, it is the particular Department in the Ministry that considers the question of approval under the proviso to article 146(2)of the Constitution and whatever advice is given to the President of India in that regard, the Presi dent of India has to act in accordance with such advice.
On the other hand, the Chief Justice of India has to apply his mind when he frames the rules under Article 146(2) with the assistance of his officers.
In such circumstances, it would not be unreasonable to hold that the delegation of the legislative function on the Chief Justice of India and also on the President of India relating to the salaries, allow ances, leave and pensions of the officers and servants of the Supreme Court involve, by necessary implication, the application of mind.
So, not only that the Chief Justice of India has to apply his mind to the framing of rules, but also the Government has to apply its mind to the question of approval of the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions.
This condition should be fulfilled and should appear to have been so fulfilled from the records of both the 523 Government and the Chief Justice of India.
The application of mind will include exchange of thoughts and views between the Government and the Chief Justice of India and it is highly desirable that there should be a consensus between the two.
The rules framed by the Chief Justice of India should normally be accepted by the Government and the ques tion of exchange of thoughts and views will arise only when the Government is not in a position to accept the rules relating to salaries, allowances, leave or pensions.
It has been already noticed that this Court by its interim order directed the respondents Nos. 1 and 2 to refer the question of revision of pay scales of the Supreme Court employees to the Fourth Pay Commission pursuant to the recommendation in that regard by the Five Judge Committee and as directed such reference was made.
The report of the Fourth Pay Commission was not sent directly to the Chief Justice of India, but it came through the Ministry of Fi nance, Department of Expenditure, Government of India.
It is significant to note that this is the first time that a reference has been made to the Pay Commission for the revi sion of the pay scales of the employees of the Supreme Court.
If we are to go strictly by Article 146(2) of the Constitution, the question of any reference to the Pay Commission does not arise.
The Chief Justice of India has to frame rules with the aid and assistance of his own officers and other Judges.
The Chief Justice of India may appoint a Committee of Judges or a Committee of experts for the pur pose of assisting him in framing the rules relating to the conditions of service of the employees of the Supreme Court.
Although there is no such provision in Article 146(2), but that is implied and it may be said that the reference to the Fourth Pay Commission was made so that the report or the recommendations of the Fourth Pay Commission relating to the revision of the pay scales of the Supreme Court employees will be of some assistance to the Chief Justice of India to frame rules.
What should go to the President of India for his approval under the proviso to Article 146 is not the report or the recommendation of the Fourth Pay Commission, but the rules framed by the Chief Justice of India.
In considering the rules framed by the Chief Justice of India relating to salaries, allowances, leave and pensions, it will not be the concern of the President of India how and in what manner the Chief Justice of India has laid down the rules.
Be that as it may, after the report or recommendation of the Fourth Pay Commission, was forwarded by the Ministry of Finance to the Chief Justice of India, the Registrar General of the Supreme Court, presumably under the authority of the Chief Justice of India, by 524 his letter dated July 22, 1987, addressed to the Secretary, Government of India, Ministry of Finance, Department of Expenditure, did not agree with some of the recommendations of the Fourth Pay Commission relating to the revision of pay scales including the revision of pay scales of Junior Clerks and Class IV employees of the Supreme Court.
It does not appear that there was any exchange of thoughts or views between the Government Department and the Registry of the Supreme Court.
The Government has not produced before us any material showing that there was exchange of thoughts and views.
But whether that was done or not, is not the question at the present moment.
The most significant fact is that no rules were framed by the Chief Justice of India in accord ance with the provision of Article 146(2) of the Constitu tion.
Instead, what was done was that the Registrar General made certain proposals to the Government and those proposals were turned down as not acceptable to the Government.
There is a good deal of difference between rules framed by the Chief Justice of India under Article 146(2) and certain proposals made by the Registrar General of the Supreme Court, may be under the instructions of the Chief Justice of India.
The provision of Article 146(2) requires that rules have to be framed by the Chief Justice of India and if such rules relate to salaries, allowances, leave or pension, the same shall require the approval of the President of India.
This procedure was not followed.
So, the stage for the consideration by the President of India as to the question of granting approval, as required under the proviso to Article 146(2), had not then reached.
Indeed, it is still in the preliminary stage, namely, that the rules have to be framed by the Chief Justice of India.
We have also noticed that after the Registrar General 's letter a communication in the form of a letter dated Novem ber 23, 2987 was made by the Joint Secretary to the Govern ment of India, Ministry of Finance, Department of Expendi ture, addressed to the Registrar General.
By that letter, the Registrar General was informed of the sanction of the President of India to the revised scales as shown in column 4 of the annexure to the said letter in respect of certain posts.
The revised scales of pay, stated to have been sanc tioned by the President of India, were at par with the recommendations of the Fourth Pay Commission.
The sanction of the President of India, as communicated by the said letter, does not relate to all categories of employees of the Supreme Court.
The most significant fact that should be taken notice of is that contained in paragraph 5 of the said letter which is extracted below: 525 "5.
The revision of pay scales, for the re maining posts in the Supreme Court Registry, mentioned in Part III of the Report of the Fourth Central Pay Commission, is separately under consideration of the Government." The remaining posts referred to in paragraph 5 includes ,the posts held by Junior Clerks and Class IV employees.
Even assuming ;that the Chief Justice of India had prepared the rules as per the provision of Article 146(2) of the Constitution and submitted the same for the approval of the President of India relating to the salaries, allowances.
leave or pensions, the question of approval of the revision of payscales of the remaining posts including the posts held by the Junior Clerks and Class IV employees, is still under consideration of the Government.
It is curious that although the question as to the revision of pay scales of the remain ing posts is still under consideration of the Government, before us the Government proceeded on the basis that upon such consideration the revision of pay scales, as suggested by the Registrar General in his said letter, has been turned down.
In other words, the President of India has not granted approval to the payscales, as suggested by the Registrar General on behalf of the Chief Justice of India in respect of the Junior Clerks and Class IV employees of the Supreme Court.
It is, thus, apparent that the provision of Article 146(2) has not been complied with.
No rules have been framed by the Chief Justice of India as per the provision of Arti cle 146(2) and, accordingly, the question of granting ap proval to the rules by the President of India under Article 146(2) does not at all arise because that stage has not yet reached.
We are, therefore, of the view that the Chief Justice of India should frame rules under Article 146(2) after taking into consideration all relevant factors includ ing the recommendations of the Fourth Pay Commission and submit the same to the President of India for his approval, It has been strenuously urged by Mr. Thakur that the staff and the servants of the Supreme Court of India consti tute a class by themselves totally distinct in the civil services under the Union and the States, having a totally distinct personality and a culture, both because of the nature of the functions assigned to them and because of their being an integral part of the institution which stands on a wholly different pedestal.
Counsel submits that it is because of this distinctive function and locational status of the staff and servants of the Supreme Court that the Constitution treated them as a class by themselves, 526 apart from the other services under the Union and the States by providing that unlike other services the Chief Justice of India and not the President of India or the Governor will prescribe their service conditions.
We have been pressed to hold that the staff and servants of the Supreme Court con stitute a class by themselves having a totally distinct personality.
It is submitted that the pay scales of the employees of the Supreme Court shall be fixed on the basis of their distinct personality, qualifications and the ardu ous nature of work performed by them and not by a mere comparison with the designations of Government employees.
In this connection, our attention has been drawn to the obser vation of the Five Judge Committee.
According to the Commit tee, the borrowed designations without any attempt at giving distinct and independent identity to the staff in the Regis try of the Supreme Court have led to invidious comparison.
The Committee took the view that no attempt was made to really ascertain the nature of the work of the employees in each category of staff and to determine the pay structure and then after framing proper rules invite the President of India to approve the rules under Article 146 of the Consti tution.
It also appears from paragraph 4.6 of Chapter IV of Part III of the report of the Fourth Central Pay Commission that the Commission could not undertake a detailed study of the job contents and different functions in the Supreme Court.
On the other hand, it is the contention of the learned Attorney General that the fact that this Court is the apex Court where the Judges lay down the law for the country and whose independence has been ensured by the Constitution cannot, in any manner, lead to the conclusion that the Supreme Court employees should be treated as a separate class having a distinct and separate identity and that should be done by giving them higher pay scales than the rest of the employees of the Government and that to provide them with different pay scales on the basis of the alleged separate identity of the institution would be contrary to the basic tenets of equality enshrined in the Constitution.
The learned Attorney General has drawn our attention to the Constituent Assembly debates on the draft Article.
122 which is the same as Article 146 of the Constitution.
In particu lar, the learned Attorney General has drawn our attention to the statements of Shri T.T. Krishnamachari and Dr. B.R. Ambedkar made in course of the debate.
Shri T.T. Krishnama chari stated before the Constituent Assembly as follows: "At the same time.
Sir, I think it should be made clear that it is not the intention of this House or of the framers of this 527 Constitution that they want to create special ly favoured bodies which in themselves become an Imperium in Imperio, completely independent of the Executive and the legislature and operating as a sort of superior body to the general body politic.
If that were so, I think we should rather chary of introducing a provi sion of this nature, not merely in regard to the Supreme Court but also in regard to the Auditor General, in regard to the Union Public Service Commission, in regard to the Speaker and the President of the two Houses of Parlia ment and so on, as we will thereby be creating a number of bodies which are placed in such a position that they are bound to come into conflict with the Executive in every attempt they make to superiority.
In actual practice, it is better for all these bodies to more or less fall in line with the regulations that obtain in matters of recruitment to the public services, conditions of promotion and salaries paid to their staff.
" The submission of Dr. B .R.
Ambedkar is also extracted below: "But it seems to me that there is another consideration which goes to support the propo sition that we should retain the phrase "with the approval of the President" and it is this.
It is undoubtedly a desirable thing that salaries, allowances and pensions payable to servants of the State should be uniform, and there ought not to be material variations in these matters with regard to the civil serv ice.
It is likely to create a great deal of heart burning and might impose upon the treas ury an unnecessary burden.
Now, if you leave the matter to the Chief Justice to decide, it is quite conceivable I do not say that it will happen but it is quite conceivable that the Chief Justice might fix scales of allow ances, pensions and salaries very different from those fixed for civil servants, who are working in other departments besides the judiciary, and I do not think that such a state of things is desirable thing." Another contention of the learned Attorney General is that if the Junior Clerks and the Class IV employees are given the Punjab scales of pay and the Central D.A., there would be a heavy financial liability of the Central Govern ment.
The Junior Clerks and Class IV employees of the Su preme Court have already been given the Punjab scales and the Central D .A. with effect from January 1, 1978 and this 528 has cost the exchequer Rs.2 crores.
It is submitted that other employees of the Supreme Court who have not been given this benefit as well as all other Central Government employ ees including armed forces personnel numbering about 50 lakhs may also demand similar benefit and if they are to be given the same benefit with effect from 1.1.1978 to 21.12.1985, it would involve an expenditure of Rs.8,640 crores.
Further, this D.A. would get merged in the pay scale from 1.1.1986 and would also qualify for D.A. after 1.1.1986 leading to a huge additional expenditure.
At this stage, it may be stated that in the course of the hearing, we enquired from Mr. P.P. Rao, learned Counsel appearing on behalf of the Registrar of the Supreme Court, as to whether the Chief Justice of India was agreeable to prescribe the rules relating to the salaries, allowances, etc.
of the Supreme Court employees.
We are glad to record that Mr. Rao has informed us that the Chief Justice of India has agreed to make necessary amendments to the existing rules relating to the salaries and allowances of the Supreme Court employees in accordance with Article 146 of the Con stitution after considering the recommendations of the Fourth Pay Commission and all other relevant materials, and that the said amendments will be forwarded to the President of India for approval.
Mr. Rao has filed a statement in writing signed by the Registrar General, which is extracted below: "After obtaining instructions from the Hon 'ble the Chief Justice, I hereby state that neces sary amendments to the existing rules relating to the salaries and allowances of the Supreme Court employees will be made in accordance with Article 146 of the Constitution after considering the recommendations of the Fourth Pay Commission in respect of the Supreme Court employees and all other relevant materials and that the said amendments to the Rules will be forwarded to the President of India for ap proval and after obtaining the approval of the President, in terms of the proviso to Clause (2) of Article 146 of the Constitution, the same will be implemented.
" In view of the said statement, our task has become easy.
It appears from the said statement that the Chief Justice of India has agreed to prescribe the rules relating to salaries and allowances in accordance with Article 146(2) of the Constitution and has further agreed to forward the same to the President of India for approval and to implement the same after obtaining the approval of the President of 529 India in terms of the proviso to Article 146(2).
In our opinion, the Chief Justice of India is the proper authority to consider the question as to the distinctive nature and personality of the employees of the Supreme Court, keeping in view the statements made by Shri T.T. Krishnamachari and Dr. B.R. Ambedkar in course of the de bates in the Constituent Assembly on the draft Article 122 which is the same as Article 146 of the Constitution.
Fur ther, before laying down the pay structure of the employees of the Supreme Court, it may be necessary to ascertain the job contents of various categories of employees and the nature of duties which are performed by them.
There can be no doubt that at the time of preparing the rules for pre scribing the conditions of service including fixing of the pay scales, the Chief Justice of India will consider the representations and suggestions of the different categories of employees of the Supreme Court also keeping in view the financial liability of the Government as pointed out by the learned Attorney General.
All this can be done by the Chief Justice of India or by some other Judge or officer of this Court authorised by the Chief Justice of India.
The Chief Justice of India may appoint a Committee of Judges to submit a report relating to all relevant matters and, thereafter, the Chief Justice of India may frame rules after taking into consideration the report of the Committee.
It will be abso lutely in the discretion of the Chief Justice of India or his nominee as to how and in what manner the rules will be framed.
Before we conclude, it may be recorded that Mr. Kalra, Mr. Gujral, Mr. Ravi Prakash Gupta, Mr. A.K. Sanghi and Mr. A.D. Malhotra have, besides adopting the arguments of Mr. Thakur, made their own submissions.
Mr. Kalra and Mr. Aggar wal have, in particular, drawn our attention to different pay scales sanctioned to the employees of the Central Secre tariat, Lok Sabha and Rajya Sabha and submit that the Su preme Court employees have been discriminated, although their nature of work is more arduous and they are better qualified.
In view of our decision that the rules have not been framed as per Article 146(2) of the Constitution, we do not think we are called upon to decide the question raised by the learned Counsel.
In the circumstances, as agreed to by the Chief Justice of India he may, after considering the recommendations of the Fourth Pay Commission and other materials that would be available to him and the representations of the employees of the Supreme Court and other matters, as stated hereinbefore, frame rules by making necessary amendments to the existing rules relating to salaries and allowances of 530 the Supreme Court employees and forward the same to the President of India for his approval.
The parties are directed to maintain status quo as regards the scales of pay, allowances and interim relief, as on this day, till the framing of the rules by the Chief Justice of India and the consideration by the President of India as to the grant of approval of such rules relating to salaries, allowances, leave or pensions, and the interim orders passed by this Court will also continue till such consideration by the President of India.
All the Writ Peti tions and the Civil Miscellaneous Petitions are disposed of as above.
There will, however, be no order as to costs in any of them.
THOMMEN, J.
I agree with the judgment of my learned brother, M.M. Dutt, J.
I add the following observations with particular reference to the scope and ambit of clause (2) of Article 146 of the Constitution of India.
This Court has, by order dated 25.7.1986, directed, in the present proceedings, that the officers and servants of the Supreme Court should be placed on the same scales of pay as in the case of the staff of the Delhi High Court.
To the employees of this Court not falling within any of the cate gories of employees corresponding to those of the Delhi High Court, this Court directed payment of a sum equal to 10 per cent of their basic pay subject to a minimum of.
Rs.50 per month.
Counsel appearing for the petitioners in these cases submit that the interim orders of this Court which were made with a view to introducing parity between the employees of this Court and those of the Delhi High Court in regard to pay scales must be made absolute, without prejudice to the claim of the employees of this Court to be placed on a higher scale of pay than the employees of the Delhi High Court by reason of their more arduous duties and responsi bilities and functional and locational distinctions.
The Fourth Central Pay Commission (the "Pay Commission"), coun sel point out, had ignored the legitimate claims of the officers and servants of the Supreme Court.
It is contended on behalf of the Government that it has issued sanction to implement the recommendations of the Pay Commission, and all categories of employees of this Court have benefited by the recommendations except those belonging to Classes III and IV.
Employees of those two Classes, constituting about 60 per cent of the 531 total strength of the Supreme Court Staff, claim pay scales in parity with their counterparts in the Delhi High Court who are paid, by virtue of various judgments of that Court, salary and allowances on the basis of the Punjab pay scales coupled with the Central dearness allowance.
The Class III and Class IV employees of this Court also receive the Punjab pay scales and the Central dearness allowance, notwithstand ing the revised pay scales recommended by the Pay Commis sion, because of the interim orders of this Court in the present proceedings.
The Attorney General contends that the Punjab pay scales of Rs.400600 in the case of Class III employees and Rs.300 430 in the case of Class IV employees are higher than the corresponding Central pay scales because the Punjab pay scales are linked to the higher price index of 320 as on 1.1.1978 while the Central pay scales are linked to the price index of 200 as on 1.1.1973.
The higher Punjab scales have already absorbed all the D.A. instalments sanctioned upto 1.1.1978.
The Punjab D .A. formula is, therefore, correspondingly lower.
There is no justification in linking the Punjab pay scales with the Central D.A.
The decision of the Delhi High Court, although final being res judicata between the parties, is based on wrong reasoning and cannot, therefore, form a legitimate basis for paying the Class III and Class IV employees of this Court the Punjab pay scales and the Central D.A.
Their legitimate entitlement is to the Central Pay scales with the Central D .A.
This has been recommended by the Pay Commission.
Referring to the Delhi High Court employees, the Attor ney General, in his written submissions, points out: "His counterpart in the Punjab High Court enjoyed higher scale of pay but lesser allow ances than he, because the D.A. upto 1978 had been merged with pay scales of employees of the Punjab High Court by taking into account the higher price index of 320 as on 1.1.
1978 whereas the Delhi High Court employees ' pay scales had been fixed as on 1.1.
1973 by linking to price index of 200 but giving him D.A. for the higher price index of the differ ence between 200 and 320.
" This contention of the Attorney General is sought to be met by counsel appearing for the Class IV Employees ' Associ ation in his written submissions in the following words: "The Delhi High Court in Kamalanand 's case has decided that the Class IV employees of that court will get Punjab 532 pay scales and Central D.A.
It is submitted that D.A. has relationship with the place and not with the scale.
As the Delhi High Court happens.
to be located in Delhi it is the Delhi D.A. which is Central D A. which will apply and the same will be the position of the Supreme Court employees who are also in Delhi.
" The Attorney General refutes the petitioners ' contention that the Supreme Court employees, by virtue of the special nature of their work or locational or institutional distinc tion, can legitimately claim higher scales of pay than those applicable to corresponding categories of employees in other sectors of public life.
Any such contention, the Attorney General points out, is contrary to the intent of the Consti tution makers.
The fact that the Delhi High Court has, on a mistaken assumption of law and fact, directed payment to its employees on the basis of Punjab scales of pay with Central D.A. does not justify repetition of the same mistake in respect of other employees, for two wrongs never make a right.
To perpetuate any such error, he contends, is not in conformity with Article 14 of the Constitution.
In any view of the matter, the Attorney General submits, the exercise of power by the Constitutional authorities under Article 146 of the Constitution is beyond judicial scrutiny on grounds other than those relevant to judicial review of legislation.
The President 's approval or disapproval of rules made by the Chief Justice of India is an exercise of legislative power and no direction can be issued to the President as regards the exercise of that power.
The genesis of the recommendations of the Pay Commission regarding the employees of the Supreme Court lies in the suggestions of the Committee of Judges of the Supreme Court in may, 1985 to the effect: "The Chief Justice of India may (a) appoint a Committee of Judges, and experts to devise a fair pay structure for the staff of the Supreme Court of India keeping in view the principles of pay determination; or (b) refer the matter to the 4th Pay Commission which is.
at present considering the question of revision of pay scalas of the Central Government employees and ask it to examine: the question of independent pay structure for the staff of 533 the Supreme Court Registry and submit a sepa rate report in this respect to the Chief Justice of India." Pursuant to the above suggestions and the decision taken thereon, the Government amended; the terms of reference of the Pay Commission to include officers and employees of the Supreme Court of India.
A. copy of the Report of the Commit tee of Judges was made available to the Pay Commission.
The Committee of Judges had pointed out the functional differ ences between the Central Secretariat Services and the Service in the Registry of the Supreme Court.
The Pay Com mission visited the Registry of the Supreme Court to famil iarise themselves with the nature of the work in the Court.
They say: "The Judges Committee had observed that the pay structure for the Supreme Court employees should be devised keeping in view the inde pendent identity of tile Registry of the Su preme Court, in evolving the pay structure, the workload, skill, educational qualifica tions, responsibilities and duties of various categories of posts in the Registry need to be taken into account.
We considered it necessary to collect information about these matters by a small team comprising officers from the Secretariat of the Commission ' and the Regis try of the Supreme Court.
The team spent a number of days visiting various sections in the Registry for a proper understanding of the work of different functionaries.
They had discussions with the concerned staff and the officers in charge of the sections and also observed in, detail the work being performed by different task holders.
The work done by the team of officers within the short: time available and our own visit proved very useful in acquainting ourselves with the role and functions of the personnel in the Supreme Court Registry.
While it has not been possible for us to undertake a detailed study, of the job contents of different functionaries in the Supreme Court, we have examined the duties and responsibilities of various catego ries of posts with the help and assistance of senior officials of the Supreme Court." (emphasis supplied) This observation of the Pay Commission shows that while an earnest attempt had been made by them to study the dis tinctive characteristics of the job contents of the Supreme Court employees at 534 various levels, and they had borne in mind the observations of Judges ' Committee as regards the independent identity of the Registry of the Supreme court, no detailed study of the various aspects of the problem could be undertaken by the Pay Commission within the short time available to them.
The Report of the Pay Commission is apparently not based on any thorough study of the job contents of the different func tionaries of the Supreme Court Registry.
The main thrust of the contentions of the employees of the Supreme Court is not that they should be paid the Punjab scales of pay and the Central D.A. as such, as in the case of the Delhi High Court employees, but that they should be paid at least as much as, if not better than, the employees of the Delhi High Court.
The Supreme Court employees, they say, have to be paid a higher scale of pay than what is paid to the corresponding categories of employees in the Central Government Secretariat or the Secretariat of the Central Legislature because of the functional and institutional distinction of the Supreme Court.
Although the employees of the Central Government Secretariat and those of the Supreme Court Registry at various levels are designated alike, there is no functional similarity between them, the nature and quality of their work being dissimilar.
If a proper compari son is possible, they say, the Supreme Court employees must be compared with the employees of the Delhi High Court.
It would be an anomaly, and a source of discontent, if the Supreme Court employees are not paid at least as much as, if not better than, what the employees of the Delhi High Court are paid.
The fact that the judgment of the Delhi High Court, pursuant to which the employees of that court are placed on a higher scale of pay, may be regarded as wrong in law and fact does not make any difference because those judgments have become final and binding, and consequently the employees of the Delhi High Court, in the absence of any law made by the legislature to the contrary, are entitled to be paid according to the Punjab scales of pay and the Cen tral D.A.
It is neither just nor fair, they say, to deny the Supreme Court employees at least the same salary scale as is now current in respect of the Delhi High Court employees.
In the written submissions on behalf of the Assistant Registrars and Deputy Registrars, it is pointed out that the recommendations of the Pay Commission have resulted in their being subjected to invidious discrimination vis a vis the Section Officers.
It is further contended that there is no justification to place these two categories of Officers on a lower scale of pay than what is applicable to the Under Secretaries and Deputy Secretaries in the Secretariat of the Lok Sabha or the 535 Rajya Sabha.
They contend that the Pay Commission, in view of the admitted constraint of time, did not make an exhaus tive and proper study of the nature of the functions per formed by different categories of employees of the Supreme Court Registry in comparison to those working in the Central Government Secretariat and that of the Lok Sabha and the Rajya Sabha.
These are weighty arguments and they require thorough investigation.
In this connection, reference may be made to Part II, Chapter I, of the Report of the Committee of Judges stating that despite the functional distinctions, no attempt had been made to provide a separate and distinct identity to the ministerial staff of the Supreme Court Registry.
The Committee pointed out that even the designations of various posts had been borrowed from the Central Secretariat Service with marginal modifications.
So stating the Committee ob served: "These borrowed designations without any attempt at giving a distinct and independent indentity to the ministerial staff in the Registry of the Supreme Court led to invidious comparison and as a sequel to an unacceptable outcome.
History with regard to the salary scale applicable to various categories of staff in the Registry would show that at least since the Second Pay Commission appointed by the Central Government for Central Government servants, the payscales devised by the Pay Commission were practically bodily adopted by the Chief Justice of India for comparable categories in the Supreme Court.
This was repeated after the recommendations of the Third Pay Commission were published and ac cepted by the Central Government.
Apparently with a view to avoiding the arduous task of devising a fair pay structure for various categories of staff in the Registry, this easy course both facile and superficial was adopted which led to the inevitable result of linking the pay structure for the various categories of staff in the Registry with the pay structure in the Central Services for comparable posts.
And the comparison was not functional but according to the designations.
No attempt was made to really ascertain the nature of work of an employee in each category of staff and determine the pay structure and then after framing proper rules invite the President to approve the rules under article 146 of the Constitution.
" The Committee further pointed out: 536 "Equal pay for equal work postulates scientific determina tion of principles of fair comparison and primarily it must be functional and not by designation because a comparison by designation is more often misleading . . not the slight est attempt has been made to compare the workload, skill, educational qualification, responsibilities and duties of various categories of posts in the Registry." The Committee concluded: "article 146(2) casts a duty on the Chief Justice of India to frame rules for determining the conditions of service of officers and servants of the Supreme Court.
This is undoubt edly subject to the provisions of any law that may be made by Parliament but so far none has been made.
This power conferred on the Chief Justice of India precludes and pro hibits the Central Government from undertaking any exercise unless the Parliament enacts a law on the subject to deter mine conditions of service of officers and staff of the Supreme Court.
Whenever therefore the Central Government decides to set up a Pay Panel for revising the pay structure of the Central Government staff, the terms of reference do not include the officers and servants of the Supreme Court.
As a necessary corollary they cannot appear before the Pay Panel because their case is not covered by the terms of reference of the Pay Panel.
However, when the Pay Panel completes its task and submits its recommendations and the Govt.
after accepting the recommendations devises a revised pay structure, the same is bodily applied to the staff of the Supreme Court of India by comparison by designation.
Consequently the staff of the Supreme Court of India without any opportunity to influence the thinking of the Pay Panel by its representations and submissions has the unenviable misfortune of being bound by the recommendations of the Pay Panel." (emphasis supplied) For these reasons the Committee of Judges recommended that in order to assist the Chief Justice in making the rules under Article 146, either a Committee of Judges and experts should be appointed to devise a fair pay structure for the staff of the Supreme Court or refer the whole ques tion to the Pay Commission for theft recommendations.
It is pursuant to the recommendations of the Committee of Judges that 537 the matter was, as stated earlier, referred to the Pay Commission.
The Pay Commission 's report was forwarded by the Government to the Registrar of the Supreme Court for his comments on the pay structure of the Supreme Court employees as recommended by the Pay Commission.
The Registrar General of this Court wrote to the concerned Secretary of the Cen tral Government a detailed letter pointing out various anomalies and difficulties if the recommendations of the Pay Commission were implemented.
He pointed out that implementa tion of such recommendations would have the unfortunate effect of reducing the pay scales of certain categories of employees of the Supreme Court whose pay has already been enhanced by reason of various orders of this Court.
This anomaly, he pointed out,.
was glaringly striking in respect of Class IV and Class III employees and certain other cate gories.
The various suggestions of the Registrar General were rejected by the Government except his suggestion for the enhancement of the salaries of the Private Secretaries to the Judges of this Court.
This is what is stated on the point by Shri section Ghosh, Additional Registrar, in his affida vit sworn on 3rd March, 1989: "That except the enhancement of the salaries of the Private Secretaries of the Judges of the Supreme Court of India, the rest of the anomalies and infirmities as pointed out by the Registrar General, on behalf of the Chief Justice of India were not appreciated by the Ministry of Finance and the pay 'scales recommended by the Registrar General in respect of various cadres on behalf of the Chief Justice of India were not approved as those recommended by the Pay Commission were sanctioned." In the light of these facts, which my learned brother, Dutt, J. has discussed more elaborately, I must now examine the scope and ambit of Article 146 of the Constitution of India so far as it concerns the salaries, allowances, leave or pensions of the officers and servants of this Court.
The relevant portion of this Article is clause (2) which reads: "Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose: 538 Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President.
" It is clear from clause (2) that, subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court are governed by rules made by the Chief Justice of India or by some other Judge or officer of the Court duly authorised by him.
Howev er, these rules, to the extent that they relate to the salaries, allowances, leave or pensions, require the approv al of the President of India.
These provisions, albeit subject to the abovesaid conditions, are intended to protect the special position of the Court.
Rules were made in this regard by the Chief Justice of India with the approval of the President of India and they are contained in Part II of the Supreme Court Officers ' and Servants ' (Conditions of Service and Conduct) Rules, 1961 as amended upto 16th Decem ber, 1985.
No amendment of these Rules has been made subse quent to 1985 and consequently the Rules do not reflect the enhanced pay scales adopted on the basis of the interim orders of this Court or the pay scales recommended by the Pay Commission.
The regulation of the conditions of service of the Supreme Court employees is thus the constitutional responsi bility and power of the Chief Justice of India, subject, of course, to the two conditions postulated in clause (2) of Article 146.
The Pay Commission was in the past not con cerned with this category of employees because of the spe cial position of the latter under the Constitution.
These employees, however, came to be included within the purview of the Pay Commission on account of the recommendations of the Committee of Judges.
The Judges had intended the Pay Commission to study all aspects of the matter in depth and make their recommendations to the Chief Justice of India to aid him in the discharge of his constitutional function under clause (2) of Article 146.
In this respect the Chief Justice must necessarily act on the basis of data made available to him by persons he might in that regard appoint, or, as has been done in the present case, by the Pay Commis sion themselves to whom a reference was made by the Govern ment pursuant to the recommendations of the Judges ' Commit tee.
The cardinal function of the Pay Commission, while duly acting in connection with the employees of the Supreme Court, is to render effective assistance to the Chief Jus tice of India to discharge his responsibility of formulating rules under Article 146(2).
This is the first step towards the final adoption of the rules governing the conditions of service in relation to salaries, allowances, etc.
It is only by 539 formulating specific rules in that respect can the President (that means the Government of India) exercise the mind over the question and approve or disapprove the rules.
The ap proval of the President follows the making of the rules, and unless and until rules are made by the Chief Justice of India specifically in regard to salaries, allowances, etc., the President, acting as a constitutional authority, does not and cannot exercise the power of granting or refusing approval.
Similar provisions are contained in the Constitu tion in relation to the High Court (see Article 229).
These constitutional requirements are not an empty formality, but are prescriptions required to be strictly complied with to insulate the judiciary from undue executive interference with a view to according it, subject to any law made by the competent legislature, a special position of comparative independence in accordance with the fundamental constitu tional scheme of maintaining a harmonious balance between the three organs of State.
[See M. Gurumoorthy vs Accountant General Assam & Nagaland & Ors., ,429].
In the present case, as stated earlier, no rules have been so far made with reference to the recommendations of the Pay Commission or with reference to the pay scales of the Delhi High Court employees, which have been extended to the Class III and Class IV employees of this Court, pursuant to the interim orders of this Court, and consequently the disapproval of the Registrar General 's proposals was not an exercise of power by the constitutional authority in terms of clause (2) of Article 146.
That this is the correct position is not seriously disputed by any party to the present proceedings.
The Attorney General does not dispute that rules have not been so far made by the Chief Justice of India, although certain suggestions had been received from the Registrar General by the concerned Ministry.
A statement dated 5.5.
1989 has been filed by the Registrar General of this Court reading as follows: "After obtaining instructions from the Hon 'ble the Chief Justice, I hereby state that necessary amendments to the existing rules relating to the salaries and allowances of the Supreme Court employees will be made in accordance with Article 146 of the Constitution after considering the recom mendations of the Fourth Pay Commission in respect of the Supreme Court employees and all other relevant materials and that the said amendments to the Rules will be forwarded to the President of India for approval and after obtaining the approval of the President, in terms of the proviso to 540 clause (2) of Article 146 of the Constitution, the same will be implemented.
" It is not and cannot be disputed that the Chief Justice of India, by virtue of the constitutional grant, exercises legislative power when he makes rules under Article 146(2).
Those rules are in the nature of subordinate legislation having .the force of law to the extent, and subject to the conditions, prescribed by the Constitution.
Like all statu tory instruments, they are subordinate to the parent law.
The power of the President under the proviso to clause (2) of Article 146 to approve or disapprove the rules made by the Chief Justice of India (relating to salaries, allowances etc.) is likewise legislative in character.
It is the ap proval of the President that stamps such rules, so far as they relate to salaries, allowances, etc,, with the authori ty of subordinate legislation.
The making of the rules by the Chief Justice of India in that respect is a step indeed a vital step in the process of law making, but they assume the character of subordinate legislation only on their approval by the President.
The Attorney General strenuously contended that the power of the President under the proviso to clause (2) of Article 146 to grant or refuse approval tantamounts to a legislative function comparable in its nature, ambit and quality to the President 's power under Article 111 to assent to, or withhold assent from, a Bill passed by the Houses of Parliament, and consequently his actions in that regard are beyond judicial review.
No court can, he says, sit in judg ment over the validity or correctness or reasonableness of the President 's act of approval or disapproval of the rules.
This comparison of the President 's power under Article 146 with his power under Article 111 is, with great respect to the Attorney General, misplaced.
The power of the President under Article 111 is primary and plenary and not delegated and subordinate.
He exercises legislative power under Article 111 in his capacity as a part of the legislature (see Article 79) and not as a dele gate.
On the other hand, he acts as a delegate when he acts under the proviso to Article 146(2).
This power is no doubt legislative in character, but subordinate in quality and efficacy.
The Constitution envisages that the President is not only a part of the legislature, but he is also the ultimate repository of the executive power of the Union (see Article 53(1).
It is in the latter capacity that the Presi dent acts as a delegate.
In the exercise of this function, he does not assume the mantle of the legislature, but func tions as the head of the executive to whom the Constitution has delegated specific legisla 541 tive power to make subordinate legislation.
This power is limited by the terms, and subordinate to the objects, of delegation.
On the advice of his Council of Ministers, the President grants or refuses approval of the rules made by the Chief Justice of India.
It is indeed this power of approval, which the Constitution has under the proviso to clause (2) of Article 146 delegated to the President that can vitalise and activate the rules, so far as they relate to salaries, allowances etc.
, as subordinate legislation.
In the making of such instruments, both the Chief Justice and the President act as delegates by virtue of the constitu tional conferment of power.
They must in this regard neces sarily act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts.
The fact that the power exercised by the Chief Justice of India or the President under Article 146(2) is derived directly from the Constitution, and not from a statute, makes no difference to the power of judicial review by a competent court.
Any action taken (or refusal to act) on the strength of power derived directly by constitutional delega tion is as much justiciable or reviewable upon the same grounds and to the same extent as in the case of any statu tory instrument.
The fundamental question in determining whether the exercise of power by an authority is subject to judicial review is not whether the source of his power is the Constitution or a statute, but whether the subject matter under challenge is susceptible to judicial review.
Pure questions of facts or questions which cannot be decided without recourse to elaborate evidence or matters which are generally regarded as not justiciable such as, for example, those relating to the conduct of the external affairs or the defence of the nation are not amenable to judicial review.
See in this connection the principle enunciated in C.C.S.U. & Ors.
vs Minister for the Civil Service, [1984] 3 All E.R. 935,948,950.
Rules made under Article 146 being subordinate legisla tion do not partake of the character of ordinances which are legislation in the true sense for the limited period of their operation, K. Nagaraj & Ors.
vs State of A.P. & Anr.
, [1985] I SCC 523; 548; A.K. Roy vs Union India.
; , 291 and R.K. Garg vs Union of India, ; ,687.
While ordinances cannot perhaps be questioned on any ground which is not relevant to the validity of legisla tion, it is not so in the case of rules made by virtue of power granted under the Constitution which are, as stated above, liable to be declared void for any of the reasons for which instruments made by virtue of delegation by Acts of Parliament can be declared void.
Rules, whether made under the 542 Constitution or a statute, must be intra vires the parent law under which power has been delegated.
They must also be in harmony with the provisions of the Constitution and other laws.
If they do not tend in some degree to the accomplish ment of the objects for which power has been delegated to the authority, courts will declare them to be unreasonable and, therefore, void.
There is indeed a higher degree of presumption of con stitutionality in favour of subordinate legislation than in respect of administrative orders.
This.is especially the case where rules are made by virtue of constitutional con ferment of power.
Rules made directly under the Constitution may have in a certain sense greater legislative efficacy than rules made under a Statute; within the field demarcated by the Constitution, the former can, if so provided, operate retrospectively.
These rules are, of course, as in the case of all statutory instruments, controlled by the Constitution and the laws: see K. Nagaraj vs State of A.P., (supra); Raj Kumar vs Union of India, , 14 and B.S. Vadera vs Union of India, Where the validity of a subordinate legislation (whether made directly under the Constitution or a statute) is in question, the Court has to consider the nature, objects and scheme of the instrument as a whole, and, on the basis of that examination, it has to consider what exactly was the area over which, and the purpose for which, power has been delegated by the governing law.
Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or violative of the general principles of the law of the land or so vague that it cannot be predi cated with certainty as to what is prohibited by them or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith.
In the words of Lord Russel of Kilowen, C.J. in Kruse vs Johnson, , 99: "If, for instance, they were found to be partial or unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justifica tion in the minds of reasonable men, the Court might well say, "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.
" 543 In Union of India & Anr.
vs Cynamide 'India Ltd. & Anr., , 734 Chinnappa Reddy, J. observed that price fixation being a legislative activity, it was: "neither the function nor the forte of the court.
We concern ourselves neither with the policy nor with the rates.
But we do not totally deny ourselves the jurisdiction to enquire into the question, in appropriate proceedings, whether relevant considerations have gone in and irrelevant consid erations kept out of the determination of the price." (emphasis supplied) In S.I. Syndicate Ltd. vs Union of India, ; this Court stated: "Reasonableness, for purposes of judging whether there was an 'excess of power ' or an 'arbitrary ' exercise of it, is really the demonstration of a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power." In P.C.S. Mills v,.
Union of India; , , this Court, referring to statutory fixation of fair price, stat ed: ".
But this does not mean that Government can fix any arbitrary price or a price fixed on extraneous considera tions or such that it does not secure a reasonable return on the capital employed in the industry.
Such a fixation would at once evoke a challenge, both on the ground of its being inconsistent with the guidelines build in the sub section and its being in contravention of articles 19(1)(f) and (g)." (emphasis supplied) See also observation to the same effect in Shree Meenakshi Mills vs Union of India, ; Any arbitrary exercise of power by a public authority, whether or not it is in the nature of subordinate legisla tion, is liable to be condemned as violative of Article 14.
As stated in E.P. Royappa vs State of Tamil Nadu, ; " . . equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to 544 the whim and caprice of an absolute monarch . " See also Maneka Gandhi vs Union of India, AIR 1978 SC 597 Ajay Hasia vs Khalid Mujib, AIR (1981) SC 485 and D.S. Nakara vs Union of India, ; An act is ultra vires either because the authority has acted in excess of its power in the narrow sense, or because it has abused its power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasona bleness: see the principle stated by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation, ,885.
Power is exercised in bad faith where its repository is motivated by personal animosity towards those who are directly affected by its exercise.
Power is no less abused even when it is exercised in good faith, but for an unauthorised purpose or on irrele vant grounds, etc.
As stated by Lord Magnaghten in Westmin ster Corporation vs London and North Western Railway, , 430: " .
It is well settled that a public body invested with statutory powers such as those conferred upon the Corpora tion must take care not to exceed or abuse its powers.
1t must keep within the limits of the authority committed to it.
It must act in good faith.
And it must act reasonably.
The last proposition is involved in the second, if not in the first . " This principle was restated by this Court in Barium Chemi cals Ltd. vs Company Law Board, ; ; " .
Even if (the statutory order) is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extra neous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation.
In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts.
545 The true position thus appears to be that, just as in the case of an administrative action, so also in the case of subordinate legislation (whether made directly under the Constitution or a Statute), its validity is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of the laws of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.
See the test adopted by Lord Russet in Kruse vs Johnson, and by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation, ; See also Mixnam Properties Ltd. vs Chertsey U.D.C., ; Commissioners of Customs and Excise vs Cure and Deeley Ltd., ; Meeldowney vs Forde, [1971] AC 632; Carltona Ltd. vs Commissioners of Works and others, [19431 , 564; Point of Ayr.
Collieries Ltd. vs Lloyd George, ; Scott vs Glasgow Corpo ration, , 492; Robert Baird L.D. and others vs City of Glasgow, , 42; Manhattan General Equip ment Co. vs Commissioner, ; , 134; Yates (Arthur) & Co. Pty. Ltd. vs Vegetable Seeds Committee, ; ; Bailey vs Conole, [1931] 34 W.A.L.R. 18; Boyd Builders Ltd. vs City of Ottawa, [1964] 45 D.L.R. (2d) 211; Re Burns and Township of Haldimand, and Lynch vs Tilden Produce Co., ; ,320 322.
Even if it were to be assumed that rules made by virtue of power granted by a provision of the Constitution are of such legislative efficacy and amplitude that they cannot be questioned on grounds ordinarily sufficient to invalidate the generality of statutory instruments, they are neverthe less liable to be struck down if found to be intrinsically arbitrary or based on an irrational classification or other wise repugnant to constitutional principles.
As stated by this Court in E.P. Royappa vs State of Tamil Nadu, (Supra): "Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 and if it affects any matter relating to public employment, it is also violative of Article 16.
Articles 14 and 16 strike at arbi trariness in State action and ensure fairness and equality of treatment.
They require that State action must be based on valid relevant principles applicable alike to all simi larly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality.
Where the operative reason for State action, as distin 546 guished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to malla fide exercise of power and that is hit by Articles 14 and 16.
Mala fide exercise of power and arbi trariness are different lethal radiations emanating from the same vice; in fact the latter comprehends the former.
Both are inhibited by Articles 14 and 16.
" These are some of the general principles which must guide the repository of power in all his actions.
They apply with equal force to the exercise of power contemplated under Article 146(2), including its proviso.
These principles must, therefore, necessarily weigh with the court whenever the action of a constitutional or statutory authority is under challenge.
These principles are, however, subject, as stated earlier, to the overriding consideration as to the amenability of the impugned subject matter to judicial review.
That of course is a question which must in each case, when challenged, be decided by the court with refer ence to the facts in issue.
As stated earlier, the constitutional process envisaged under Article 146(2) has not been completed.
Initial steps had indeed been taken in that regard and to that end.
Con stituting the Committee of Judges and their suggestion to refer the question to the Pay Commission, the decision to refer the matter to the Pay Commission, the recommendations of the Pay Commission, and, consideration of the same by the Registrar General and his letter to the Government contain ing certain suggestions, form the components of a link in the chain leading to the ultimate end; but they are not themselves the ultimate end, which means the making of the rules by the Chief Justice and submitting the same to the President for approval, and the final decision of the.
President in that behalf.
The Registrar General 's letter and the Government 's reaction to that letter were at best only the process of consultation preceding the rule making act.
The ultimate authority in this regard being the Chief Justice of India, he alone is competent to make, or autho rise the making of the rules.
Until the rules are made by him (or by a Judge or officer of the court authorised by him), the question of approval or disapproval by the Presi dent does not arise.
In making the rules, the Chief Justice would no doubt take into account the recommendations of the Pay Commission or of any other body or experts he may have consulted.
He will also take into account the objections raised by the Government 547 to the suggestions made by the Registrar General who, of course, acted as an agent of the Chief Justice.
But the refusal of the Government to accede to the proposals of the Registrar General is not a refusal of the President under Article 146(2), for such refusal or approval can arise only upon submission to him of duly framed rules.
It is of course true that no court will direct the President to grant approval, for a writ of mandamus will not lie to compel a person to exercise a legislative function in a particular fashion (See A.K. Roy etc.
vs Union of India and Anr., (supra) Narinder Chand Hem Raj & Ors.
vs Lt. Governor, Administrator, Union Territory, Himachal Pradesh & Ors., ; 945.
But the President must, upon submission to him of the Rules made by the Chief Justice of India under Article 146(2), exercise his mind as to whether or not he would grant approval, and, without undue delay, come to a decision on the point: See Aeltemesh Rein, Advo cate Supreme Court of India vs Union of India and Others, ; In the present case, the time for decision by the President has of course not come.
The approval of the President is not a matter of mere formality.
It would, of course, be wrong to say that in no case can the President, which means the Government, refuse to accord approval.
However, once the rules are duly framed by so high a constitutional dignitary as the Chief Justice of India, it will only be in the truly exceptional cases that the President would withhold assent.
It is but proper and appropriate that, in view of the spirit of the constitu tional provision, approval would be accorded in all but the exceptional cases: see the observations of this Court in State of Andhra Pradesh & Anr.
vs T. Gopalakrishna Murthi & Ors., ; In this connection the observation of Mukharji, J. in State of U.P. & Ors.
vs Renusagar Power Co. & Ors., ; , 104 is apposite: "The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.
Similarly, if the power has been exercised on a non consideration or non application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous.
If a power (whether legislative or administra tive) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated.
" 548 We place on record the statement made by the Registrar General that necessary amendments to the existing rules relating to the salaries and allowances of the Supreme Court employees will be made in accordance with Article 146 of the Constitution after considering the recommendations of the Pay Commission in respect of the Supreme Court employees and all other relevant materials, and that the said amendments to the Rules will be forwarded to the President of India for approval, and, after obtaining the approval of the President in terms of the proviso to clause (2) of Article 146 of the Constitution, the same will be implemented.
In the circumstances, no further order is required in the present proceedings ', apart from directing that, until rules are properly made by way of amendments to the existing rules in accordance with Article 146 of the Constitution, the interim orders of this Court dated 25.7.1986, 14.8.1986 and 15.1.1987 shall remain in full force and the status quo as on this day as regards pay and allowances shall be main tained.
Accordingly, I agree that there shall be a direction as stated by my learned brother in the final paragraph of his judgment.
Y. Lal.
Petitions Disposed of.
| IN-Abs | These writ Petitions have been filed by the employees of the Supreme Court through their Welfare Associations pray ing, in substance, for enhancement of their present pay scales.
Writ Petition No. 801 of 1986 has been filed by the Welfare Association representing class II and class 111 employees whereas Writ Petition No. 1201/86 has been filed by Welfare Association representing class IV employees and the third Writ Petition has been filed by retired employees.
In order to deal with and make recommendations in regard to various representations highlighting grievances regarding service conditions made by the staff.
of the Supreme Court, the Chief Justice of India constituted a committee consist ing of five Judges of the Supreme Court.
The committee was also asked to make recommendations whether the pay scales of different categories of the staff warranted 489 upward revision.
The Committee after consideration of the issues raised, made several recommendations but as regards the pay scale revision, it recommended that the matter be referred to the Third Pay Commission, then sitting.
However in the meanwhile, the High Court of Delhi, allowed various Writ Petitions filed before it by the members of the staff of Delhi High Court belonging to different categories.
The result of the Orders passed by the Delhi High Court was.
that the staff of that High Court started drawing more pay in some categories of class IV, class Il & III employees, than the employees of the Supreme Court similarly placed.
Taking cue from the orders of the Delhi High Court, the petitioners have filed these petitions invoking in aid the principle of "Equal pay for equal work".
It is urged by the petitioners that the duties performed by the staff of the Supreme Court are similar rather more responsible, arduous and onerous to those performed by the members of the staff of Delhi High Court, hence they are entitled to pay like similar if not enhanced pay scales.
It is urged that Special Leave Petition filed by the Government before this Court against the orders of the Delhi High Court having been dismissed by this Court, the order of Delhi High Court has became final.
In Writ Petition No. 801 of 1986, by an interim order dated 25.7.86 this Court directed that the officers and members of the staff of the registry should get the same pay and allowances which were then being enjoyed by the officers and the members of the staff of the Delhi High Court belong ing to the same category with effect from the date from which such scales of pay has been allowed to the officers and the members of the staff of the Delhi High Court.
The Court also by the same order directed Respondent Nos. 1 and 2 to take necessary steps to refer the question of revision of pay scales to the Fourth Pay Commission as suggested by the five Judges Committee.
Some other interim orders were also passed giving higher pay to certain categories of employees, as was done by Delhi High Court.
The Fourth Pay Commission to which the question of revision of pay scales of the staff of Supreme Court was referred did not grant any enhancement.
It did not even grant the benefit of higher pay given under the interim orders of this Court.
After the report of Fourth Pay Commis sion, the petitions have been listed for final hearing.
Disposing of the Writ Petitions, this Court 490 HELD: Per M. M. Dutt, J.
When no reason is given, but a Special Leave Petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by this Court under Article 141 of the Constitution.
[505B] Indian Oil Corporation Ltd. vs State of Bihar, ; ; Union of India vs All India Services Pensioner Association, ; A decision on an abstract question of law unrelated to facts which give rise to a right cannot operate as res judicata.
Nor, also can a decision on the question of juris diction be res judicata in a subsequent suit or proceeding but, if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent, suit or proceeding, if the cause of action is the same.
[506G H; 507A B] Mathura.
Prasad Rajoo Jaiswal vs Dossibai N.B. Jeejeeb hoy; , and Thakore Sobhag Singh vs Thakur Jai Singh, The doctrine of res judicata is a universal doctrine laying down the finality of litigation between the parties.
When a particular decision has become final and binding between the parties, it cannot be set at naught on the ground that such a decision is violative of Article 14 of the Constitution.
So far as the parties are concerned, they will always be bound by the said decision.
In other words, either of the parties will not be permitted to reopen the issue decided by such decision on the ground that such decision violates the equality clause under the Constitu tion.
[508H; 509A B] From Article 146(2) it is apparent that it is primarily the responsibility of Parliament to lay down the conditions of service of the officers and servants of the Supreme Court, but so long as Parliament does not lay down such conditions of service.
the Chief Justice of India or some other Judge or officer of the Court authorised by the Chief Justice of India is empowered to make rules for the purpose.
[516B C] The conditions of service that may be prescribed by the rules framed by the Chief Justice of India under Article 146(2) will also necessarily include salary.
allowances, leave and pensions of the officers and servants of the Supreme Court.
[516D] 491 The proviso to Article 146(2) puts a restriction on the power of the Chief Justice of India by providing that the rules made under Article 146(2) shall.
so far as they.
relate to salaries, allowances, leave or pensions, require the approval of the President of India.
[516E] The rules framed by the Chief Justice of India though it is a piece of subordinate legislation, it is not a full fledged legislative act requiring assent of the President of India.
[517C] Going strictly by Article 146(2) of the Constitution, the question of any reference to the Pay Commission does not arise.
The Chief Justice of India has to frame rules with the aid and assistance of his own officers and other Judges.
The Chief Justice of India may appoint a Committee of Judges or a Committee of experts for the purpose of assisting him in framing the rules relating to the conditions of service of the employees of the Supreme Court.
Although there is no such provision in Article 146(2), but that is implied and it may be said that the reference to the Fourth Pay Commission was made so that the report or the recommendations of the Fourth Pay Commission relating to the revision of the pay scales of the Supreme Court employees will be of some as sistance to the Chief Justice of India to frame rules.
[523D F] What should go to the President of India for his approv al under the proviso to Article 146(2) is not the report or the recommendation of the Fourth Pay Commission, but the rules framed by the Chief Justice of India.
In considering the rules framed by the Chief Justice of India relating to salaries, allowances, leave and pension, it will not be the concern of the President of India how and in what manner the Chief Justice of India has laid down the rules.
[523F G] All this can be done by the Chief Justice of India or by some other Judge or officer of this Court authorised by the Chief Justice of India.
The Chief Justice of India may appoint a Committee of Judges to submit a report relating to all relevant matters and, thereafter, the Chief Justice of India may frame rules after taking into consideration the report of the Committee.
It will be absolutely in the dis cretion of the Chief Justice of India or his nominee as to how and in what manner the rules will be framed.
[529D E] Per Thommen, J.
The regulation of the conditions of service of the Supreme Court 492 employees is the constitutional responsibility and power of the Chief justice of India, subject.
of course, to the two conditions postulated in clause (2) of Article 146.
[538E] Rules were made in this regard by the Chief Justice of India with the approval of the President of India and they are contained in Part II of the Supreme Court Officers and Servants ' (Conditions of Service and Conduct) Rules, 1961 as amended upto 16th December, 1985.
No amendment of these Rules has been made subsequent to 1985 and consequently the Rules do not reflect the enhanced pay scales adopted on the basis of the interim Orders of this Court or the pay scales recommended by the Pay Commission.
[538C D] Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end/or violative of the general principles of the law of the land or so vague that it cannot be predi cated with certainty as to what is prohibited by them or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith.
[542F] Union of India & Ant.
vs Cynamide India Ltd. & Anr., [1987] 2 SCC 720, 734; S.I. Syndicate Ltd. vs Union of India, ; ; P.C.S. Mills vs Union of India, ; ; Shree Meenakshi Mills ' vs Union of India, ; ; E.P. Royappa vs State of Tamil Nadu. ; ; Maneka Gandhi vs Union of India, AIR (1978) SC 597; Ajay Hasia vs Khalid Mujib, AIR (1981) SC 485; D.S. Nakara vs Union of India, ; ; Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation, ; ; Westminster Corporation vs London and North Western Railway, 430; Barium Chemi cals Ltd. vs Company Law Board, ; referred to.
Until the rules are made by the Chief Justice (or by a Judge or Officer of the Court authorised by him), the ques tion of approval or disapproval by the President does not arise.
In making the rules, the Chief Justice would no doubt take into account the recommendations of the Pay Commission or of any other body of experts he may have consulted.
He will also take into account the objections raised by the Government to the suggestions made by the Registrar General who, of course.
acted as an agent of the Chief Justice.
But the refusal of the Government to accede to the proposals of the Registrar General is not a refusal of the President under Article 146(2), 1or such refusal or approval can arise only upon submission to him to duly framed rules.
[546G H; 547A B] 493 The approval of the President is not a matter of mere formality.
It would, of course, be wrong to say that in no case can the President, which means the Government, refuse to accord approval.
However.
once the rules are duly framed by so high a constitutional dignitary as the Chief Justice of India, it will only be in the truly exceptional cases that the President would withhold assent.
[547D E] Kirit Kumar Chaman Lal Kundaliya vs State of Gujarat, ; State of Orissa vs Durga Charan Das, ; ; G.V. Ramanaiah vs The Superintendent of Central Jail.
Rajahmundry.
; ; Chandra Bansi Singh vs State of Bihar, ; ; Waman Rao vs Union of India; , ; Minor P. Rajendran vs State of Madras, ; ; State of M.P.v.
Ram Raghubir Prasad Agarwal; , ; Roshanlal Kuthiala vs R.B. Mohan Singh Oberai.
; ; Tamil Nadu Education Department Ministerial & General Subordinate Service Associ ation vs State of Tamil Nadu; , ; Kishori Mohanlal Bakshi vs Union of India, AIR 1962 SC 1139; State of Punjab vs Joginder Singh.
[1963] Supp. 2 SCR 169; Randhir Singh vs Union of India, ; ; Dhirendra Chamoli vs State of U.P., [1986] 1 SCC 687; State of Andhra Pradesh vs
G. Sreenivasa Rao, [1989] 1 .IT 615; V. Markendeya vs State of Andhra Pradesh; , ; State of U.P. vs J.P. Chaurasia; , ; Umesh Chandra Gupta vs Oil & Natural Gas Commission, AIR 1989 SC 29; Tarsera Lal Gautam vs State Bank of Patiala, AIR 1989 SC 30;Narinder Chand Hem Raj vs Lt. Governor, Administrator, Union Territory, Hima chal Pradesh; , ; State of Andhra Pradesh vs
T. Gopalakrishnan Murthi; , ; A.K. Roy vs Union of India,, ; ; Gurumoorthy vs Accountant General Assam & Nagaland, ; K. Nagaraj & Ors.
vs State of A.P. & Anr.
, ; , 548; R.K. Garg vs Union of India, ; , 687; Aeltemesh Rein, Advocate Supreme Court of India vs Union of India & Ors.
, ; ; State of U. P. & Ors.
vs Renusagar Power Co. & Ors., ; , 104; Kruse vs Johnson, ; Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation, ; ; Mixnam Properties Ltd. vs Chertsey U.D.C., ; Commissioners of Customs & Excise vs Cure & Deeley Ltd., ; Mceldowney vs Forde, [1971] AC 632; Carltona Ltd., vs Commissioners of Works & Ors., , 564; Point of Ayr.
Collieries Ltd. vs Lloyd George, ; Scott vs Glasgow Corporation.
,492; Robert Baird L.D. & Ors.
vs City of Glas gow, ; Manhattan General Equipment Co. vs Commissioner. ; , 134; Yates (Arthur) & 494 Co. Pty Ltd., vs Vegetable Seeds Committee, ; Bailey vs Conole, ; ; Boyd Build ers Ltd. vs City of Ottawa, [1964] 45 D.L.R. (2nd) 211; Re Burns &.
Township of Haldimand, and Lynch vs Tilden Produce Co., ; , 320 322, referred to.
|
Civil Appeal No. 351 of 1974.
From the Judgment and Order dated 23.2.1973 of the Delhi High Court in R.S.A. No. 69 of 1968.
Rajinder Sachar, Sr.
Ad vs and K.C. Dua for the Appellants.
N.S. Das Bahal and D.N. Puri for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal is by special leave and the sole legal representative of the original plaintiff is in appeal.
The plaintiff sued for declaration that inclusion of the disputed property in the land records of the respondent Gaon Sabha on the basis that it had vested under the provi sions of the Delhi Land Reforms Act, 1954, (hereinafter referred to as 'the Act ') was wrong, void and without juris diction and for a further declaration that she was entitled to bhumidhari rights in the property under section 11 of the Act.
Her suit was decreed in the trial court and the said decree was affirmed in appeal but at the instance of defend ant No. 1, Gaon Sabha, the High Court in second appeal reversed the decrees of the courts below and dismissed the suit.
593 The suit was instituted on 16.8.1966.
The decision of this Court in the case of Hatti vs Sunder Singh, ; settled the legal position that a claim under sec tion 11 of the Act for declaration of bhumidhari right was not maintainable in the Civil Court in view of section 185 of the Act read with Schedule I and exclusive jurisdiction for adjudication of such claims vested in the appropriate Revenue Court.
This position of law is not disputed before us.
In regard to the relief of bhumidhari rights the High Court had, therefore, rightly held that the plaintiff 's suit was not maintainable.
The only other submission advanced on behalf of the plaintiff for our consideration is that the disputed proper ty did not constitute 'land ' as defined in section 3(13) of the Act and, therefore, the right, title and interest of the appellant as proprietor of the property was in no way af fected by the provisions of the Act and the inclusion of the property in L.R. 2 was void, and liable to vacation.
In paragraph 4(d) of the plaint, plaintiff pleaded that the suit land was not 'land ' and was not banjar (waste) and did not come within section 154(1)(i) to (vii) of the Act and, therefore, there was no vesting in law.
The proprietor, according to the plaintiff, grew fuel wood and partly used the property as ghatwars and used the stones for building purposes.
The High Court has found that the property came within the definition of 'land ' and, therefore, was subjected to the legal incidence of the statutory provisions.
Section 3(13) defines land to mean: "land held or occupied for purposes connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes (a) buildings appurtenant therto, (b) village, abadis, (c) grovelands, (d) lands for village pasture or land covered by water and used for growing singharas and other produce or land in the bed of a river and used for casual or occasional cultivation . " The definition of land in the Act is wide and in paragraph 4(d) ' 594 the admitted position is fuel wood was being grown on the property. 'Horticulture ', 'garden ' and 'groveland ' in the absence of statutory definitions, would have the common parlance meaning. 'Horticulture ', as the Shorter Oxford English Dictionary indicates means: "the cultivation of a garden." 'Garden ', according to the Dictionary, means "an area of land, usually planted with grass, trees, flower beds, etc.; an area of land used for the cultivation of ornamental plants, herbs, fruit, vegetables, trees, etc.
A grove, as the Dictionary puts it means; "A small wood.
; small woodland area or plantation".
A land on which fuel wood is grown would constitute groveland.
In view of the inclusive definition of 'land ', the finding of the High Court that the disputed property consti tuted land cannot be said to be wrong.
Reliance was placed on the decision of the Punjab High Court in Nemi Chand vs Financial Commissioner, Punjab & Anr., where the meaning of land in Punjab Security of Land Tenures Act was under examination and the Court was called upon to decide whether banjar Jadid and banjar quadim came within the definition.
For that purpose the meaning of land occurring in the Tenures Act and the Punjab Tenancy Act of 1887 was examined.
The Court also referred to the definition of land in Punjab Alienation of Land Act, 1900.
In the presence of a definition in the Act under consideration, we find no justification to refer to definitions in different statutes for finding out whether the disputed property was land.
Appellant 's counsel also placed reliance on the decision of a Full Bench of the same High Court in the case of Ra jinder Prasad & Anr.
vs The Punjab State & Ors., AIR 1966 (53) Punjab 185.
Here again the question for consideration was whether gair mumkin land was land within the Punjab Security of Land Tenures Act.
For the reason indicated above, we do not think that the appellant is entitled to any support from the Full Bench Judgment.
Lastly, reliance was placed on :he decision of this Court in Munshi Ram & Ors.
vs Financial Commissioner, Haryana & Ors.
, ; The Court was considering the true meaning of 'permissible area ' under the Punjab Security of Land Tenures Act and for that purpose the meaning of land was being examined; whether banjar Jadid should be excluded with reference to 595 the meaning of land under the East Punjab Displaced Persons (Land Settlement) Act and the Punjab Tenancy Act was being debated before the Court.
We do not think in view of the statutory definition any digration is necessary.
It is impermissible to rely on definitions containing meanings different from the definition under the Act for a proper resolution of the dispute.
The High Court, in our opinion, came to the correct conclusion when it held that the disput ed property constituted land under the Act and became liable to vest in the Gaon Sabha under the Act.
The judgment of the High Court, therefore, is upheld and the appeal is dis missed.
In the peculiar facts of this case, the parties are directed to bear their respective costs in this Court.
N .V.K.
Appeal dis missed.
| IN-Abs | The appellant plaintiff sued for declaration that inclu sion of the disputed property in the land records of the respondent Gaon Sabha on the basis that it had vested under the provisions of the Delhi Land and Reforms Act, 1954 was wrong, void and without jurisdiction, and for a further declaration that she was entitled to bhumidhari rights in the property under section 11 of the Act.
In paragraph 4(d) of the plaint, it was pleaded that the suit land was not 'land ' and was not banjar (waste) and did not come within section 154(1)(i) to (vii) of the Act and, therefore, there was no vesting in law.
The proprietor, according to the plaintiff, grew fuel wood and partly used the property as ghatwars and used the stones for building purposes.
The suit was decreed in the trial court, and the said decree was affirmed in appeal, but at the instance of the respondent defendant No. Gaon Sabha, the High Court in second appeal reversed the decrees of the courts below and dismissed the suit.
The High Court found that the property came within the definition of 'land ' and, therefore, was subjected to the legal incidence of the statutory provisions.
In regard to the relief of bhumidhari rights, it held that the plain tiffs ' suit was not maintainable.
Dismissing the appeal this Court, HELD: The definition of 'land ' in section 3(13) of the Delhi Land Reforms Act, 1954 is wide.
A land on which fuel wood is grown would 592 constitute groveland.
In view of the inclusive definition of 'land ', the finding of the High Court that the dispute property constituted land cannot be said to be wrong.
[594C D] Nemi Chand vs Financial Commissioner, Punjab & Anr., ; Rajinder Prashad & Anr.
vs The Punjab State & Ors., AIR 1966 (53) Punjab 185; Munshi Ram & Ors.
vs Financial Commissioner, Haryana & Ors.
, ; ; Haiti vs Sunder Singh, ; referred to.
It is impermissible to rely on definitions containing meanings different from the definition under the Delhi Land Reforms Act, 1954 for a proper resolution of the dispute.
[595A] The High Court therefore came to the correct conclu sion when it held that the disputed property Constituted 'land ' under the Act, and became liable to vest in the Gaon Sabha under the Act.
[595B]
|
ivil Appeal Nos.
224 & 734 of 1988.
From the Judgment and Order dated 17.6.87 of the Calcut ta High Court in Ref.
No. 1/83 from C.R. Case No. 2938 40/81 & Civil Order No. 2537/81, C.R. Case No. 75/81, Civil Order No. 362/82, & C.R. No. 3803 of 1980.
Dr. Shankar Ghosh, Badar Durrez Ahmed, Parijat Sinha, A.K. Sarkar, A.K. Sahay for the Appellants.
Kuldip Singh, Additional Solicitor General, A ,K. Gan guli, C.V. Subba Rao, A. Subba Rao and Hemant Sharma for the Respondent.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
These appeals, by certificate, pre ferred against the common order dated 17.6.1987 of the High Court of Calcutta in Full Bench Reference 1 of 1983 raise a short and interesting question, of some general importance, whether the choice of the forum for the cognizance of suits envisaged in Section 80 of the Indian Railways Act, 1890 (As substituted by Section 14 of the Indian Railways (Amendment) Act, 1961 (Act 39 of 1961) is limited by Section 80 itself or whether provisions of Section 20 of the Code of Civil Procedure, 1908 and Section 19 of the , as the cases may be, in regard to places of suing, are also applicable to the suits referred to in the said Section 80.
The question, in other words, is whether the said Sec tion 80 is a complete, self contained, exhaustive Code in regard to the place of suing respecting suits constituting a special law for such suits excluding, by necessary implica tion, the operation of provisions of Section 20 of the Code of Civil Procedure, 1908 and Section 18 of the Presidency 443 Small Cause Courts Act, 1882.
The Full Bench, resolving the earlier conflicts of Judicial opinion in the High Court on the points has held Section 80 as containing within it a self contained scheme for suits envisaged by it and that Section 20 of the Code of Civil Procedure and Section 18 of the stand excluded from operation.
The Full Bench, however, has left open the question whether Section 80 also over rides clause 12 of the letters patent.
In the original proceedings from which C.A. 224 of 1988 arises, appellant instituted Money Suit No. 35 of 1978 against the Respondent in the Court of the 6th Sub Judge at Alipore, Distt. 24 Parganas, West Bengal, seeking recovery of Rs. 13,200 respecting an alleged short delivery of a consignment booked with the Respondent on 94.4.1975 Ex Ernakulam to Ranchi, a station under the South Eastern Railway Administration.
Respondent contested the suit on grounds, inter alia, that having regard to the said Section 80, the Court at Alipore had no jurisdiction.
The trial Court by its order 22.5.
1981 having rejected this objection as to jurisdiction, Respondent preferred C.R. 2938 of 1981 under Section 115 of the Code of Civil Procedure, before the High Court to have that order revised.
The matter was re ferred to a Full Bench, culminating in the order now under appeal.
In C.A. 734 of 1988, appellant instituted a Suit No. 3831 of 1985 in the Court of the Small Causes, Calcutta, for the recovery of a sum of Rs.6,573.50p.
on account of snort deliveries of two consignments booked with the Respondent on 27.4.1984 and 24.7.1984 respectively, Ex Saugar in Central Railway to Ramkrishtopur in Eastern Railway.
Similar objec tion as to jurisdiction having been urged, the trial Court rejected that objection and decreed the suit.
This was assailed before the High Court by the Respondent.
The Full Bench, by its common order, has held that the trial Court had no jurisdiction and directed the return of the plaint for presentation to the proper Court.
In order that the contentions of Dr. Shankar Ghosh urged in support of these appeals are apprehended in their proper perspective, it becomes necessary to refer to and notice the legislative history of the provision.
Section 14 of the Indian Railways (Amendment) Act, 1961, substituted the old Section 80 by a new provision.
The old Section reads: "Section 80: suit for compensation for injury to through booked traffic: 444 Notwithstanding anything in any agreement purporting to limit the liability of Railway Administration with respect to traffic while on the Railway of the another Administration, a suit for compensation for loss of the life of, or personal injury to, a passenger, or for loss, destruction or deterioration of animals or goods where the passenger was or the ani mals or goods were booked through over the Railways of two or more Railway Administra tions, may be brought either against the Railway Administration from which the passen gers obtained his pass or purchased his tick et, or to which the animals or goods were delivered by the consignor thereof, as the case may be, or against the Railway Adminis tration on whose Railway the loss, injury, destruction or deterioration occurred." The new Section 80 substituted in 1961 by the amending Act provides: "80.
Suits for Compensation: A suit for com pensation for loss of the life of, or personal injury to, a passenger or for loss, destruc tion, damage, deterioration or non delivery of animals or goods may be instituted.
(a) if the passenger was, or the animals or goods were, booked from one station to another on the railway of the same railway administration against that railways adminis tration; (b) if the passenger was, or the animals or goods were, booked through over the railway of two or more railway administration against the railway administration from which the passenger obtained his pass or purchased his ticket or to which the animals or goods were delivered for carriage, as the case may be, or against the railway administration on whose railway the destination station lies, or the loss, injury, destruction, damage or deterioration occurred; and, in either case the suit may be instituted in a Court having jurisdic tion over the place at which the passenger obtained his pass or purchased his ticket or the animals or goods were delivered for car riage, as the case may be, or 445 over the place in which the destination sta tion lies, or the loss injury, destruction, damage or deterioration occurred.
" The changes brought about in the scheme of the provisions are quite marked.
The old Section did not deal with liabil ity for claims in respect of goods carried by a single Railway.
It concerned itself with goods etc., carried by more than one Railways or what, in the concerned jargon, is called "through booked traffic" and provided that a suit inter alia for loss, destruction, damage, deterioration or nondelivery could be brought against the Railway Administra tion with which the booking had taken place or against the Railway Administration of the delivery station.
The old section spoke nothing of the places where such suits could be laid.
The choice of the forum was regulated by Section 20 of the Code of Civil Procedure or the relevant provisions of the , as the case may be.
This Court in Union of India vs Ladu Lal Jain, ; observed that the principal place of Railway Administra tion can be said to be the place where the Railways can be said to carry on business for purposes of clause (a) of Section 20 of the Code of Civil Procedure.
It was held: "The principle behind the provisions of Cls.
(a) and (b) of section 20 is that the suit be instituted at a place where the defendant be able to defend the suit without undue trouble." " . .
Union of India carries on the busi ness of running railways and, can be sued in the Court of the subordinate Judge of Gauhati within whose territorial jurisdiction the head quarters of one of the railways run by the Union is situated.
" This was said in a case governed by the old Section.
Does the position continue to hold good even after the new Sec tion 80 was substituted in place of the old? the new Section 80 (substituted by Act 39 of 1961), however, brought about far reaching changes in its scheme, the notable amongst them being three.
The new Section made specific reference to a certain class of suits having regard to their subject matter, to be dealt with under that Sec tion.
Secondly, the new Section also dealt with identity of the Railway Administrations which were made liable to the claim 446 and, thirdly, the section specifically provided the places where such suits "may be instituted".
Referring generally to the scope of the changes brought about by the 1961 amendment to Chapter VII of the Railways Act, 1890, this Court, in Union of India vs The Steel Stock Holders Syndicate, Poona, ; observed: "The history and the object with which the radical provisions of the new Act were intro duced bear testimony to change of the nature of the liability of the railway administra tion." "We, therefore, agree with the learned counsel for the respondent that under the new Act the liability of the Railway has been increased so as to take upon itself the responsibility of a common carrier." The new comprehensiveness of the scheme of the amend ments was one of the circumstances that commended itself to the High Court to persuade it to hold that the new Section 80 in Chapter VII, constituted a complete and self contained special law as to the place of suing respecting suits envis aged by that Section derogating from the generality of the provisions of Section 20 of the Code of Civil Procedure or the provisions touching the jurisdiction of the Small Cause Courts and that with the enactment of the new Section 80 there was an implied repeal of those other provisions re specting such suits.
The High Court took due notice of the fact that the new Section did not expressly provide that in respect of suits envisaged by it, the provisions of Section 20 of the Code of Civil Procedure or Section 18 of the , as the case may be, shall no longer be applicable.
The High Court took due note of the situation emerging from this omission.
It noticed: "the new Section 80, no doubt, did not ex pressly provide that the said provision of Section 80 of the Act would override all other laws.
But Section 80 of the Indian Railways Act is in the nature of the special provision applicable only to suits for compensation against the Railways." "The point is whether by enacting" . the suit may be instituted" in the Courts having jurisdiction over the places mentioned in the last part of Section 80 of the Indian Railways Act, 1890, the said Section of the Railways Act by 447 implication overrides section 20 of the Civil Procedure Code, 1908 and Section 18 of the ." The High Court took into consideration what, according to it, was the real intention in enacting the new Section 80 and was persuaded to the view that the Section brought about an implied repeal of the other provisions as to the juris diction of Courts by itself providing a jurisdiction to these suits.
It was observed: "By mentioning the Courts in which the suits for compensation may be filed, Section 80 of the Railways Act purports to deal with matters which have been dealt with in Section 20 of the Code and Section 18 of the Presidency Small Causes Courts Act.
These two sets of laws deal with the same subject of territorial jurisdiction of Courts.
We are, therefore, required to ascertain whether in respect of suits for compensation against the Railways, the intention was to override the general law." "We have already indicated that Section 80 of the Railways Act was a particular or special legislation.
Section 80 of the Railways Act purports to deal with the subject of places for instituting particular class of suits which was previously covered by Section 20 of the Code which was a general enactment.
Two statutes cover the same field, i.e., territo rial jurisdiction.
Mentioning for the first time in Section 80 of the Railways Act of the places where suits for compensation may be instituted was itself introductive of a new law implying a negative.
When the same subject of territorial jurisdiction has been dealt with in the subsequent legislation (i.e., Section 80 of the Railways Act) the prior laws (Section 20 of the Code and Section 13 of the ) on the same subject were not intended to subsist." "In other words, Section 80 of the Indian Railways Act by requiring something special to be done repealed by necessary implication the former general statute relating to territorial jurisdiction of Courts in so far as the suits for compensation against the Railways were concerned." Any other construction, according to the High Court, would lead 448 to anomalies and render Section 80 a surplus age.
High Court said: "If it was to be held that clause (c) of Section 20 of the Code still applied to suits for compensation against the Railways, then the cause of action for the purpose of juris diction of Courts would arise not only at the three places mentioned in Section 80 of the Act but at several other places.
In other words, the provisions of Section 80 of the Act relating to places where the suits for compen sation may be instituted, would be, in that event, surplusage and unnecessary.
In the view of the High Court, the distinction be tween provisions in the New Section 80 on the one hand and Section 20 of the Code of Civil Procedure or Section 18 of the Small Cause Courts Act on the other, assumed particular significance as qualifying the Court 's jurisdiction in respect of a particular subject matter as distinct from those that relate to a Court 's territorial jurisdiction or pecuniary jurisdiction.
The High Court observed: "Section 80 of the Railways Act, in effect, limits the application of Section 20 of the Code by specifying the Courts which shall have jurisdiction over the suits whose subject matter is the claim for compensation against the Railways for loss of life or personal injury to a passenger or loss, destruction, damage, deterioration or non delivery of animals or goods.
We have already held that Section 80 of the Act, in other words is in the nature of a special provision in respect of classes of suits mentioned in Section 80 of the Indian Railways Act.
Dr. Shankar Ghosh assailing the soundness of the High Court 's view, urged that the proposition on which its con clusions rest, if accepted, would render what was intended as a mere an enabling entitlement to lose its character as such and become, on the contrary, a limiting factor and convert a right into a liability.
Dr. Ghosh said that the legislative intent was clear; it did not render Section 80 over riding by not expressly excluding Section 20 of the Code of Civil Procedure.
It expressly supplied, says Dr. Ghosh, an enabling provision when it chose the expression" . . may be instituted".
It is further con tended that the doctrine of implied repeal was, clearly inapplicable to the situation.
449 Dr. Ghosh commended for acceptance the reasoning of the Assam and Madras High Courts, in Assam Cold Storage vs Union of India, AIR 1971 Assam 69 and Hindustan Machine fools vs Union of India, AIR 1985 Madras 130, respectively, in pref erence to the views of the Calcutta, Bombay, Delhi and Karnataka High Courts in Oghamal Chaudhury vs Union of India, ; Union of India vs Indian Hume Pipe Co. Ltd., AIR 1981 Bombay 414; New India Assurance Co. vs Union of India, AIR 1981 Delhi 135 and Union of India vs C.R. Prabhanna, AIR 1977 132 respectively.
The thrust of the arguments of Dr. Ghosh is that the construction placed by the High Court ignores the crucial aspect that while the old Section 80 did not render the destination railway as such, liable to be sued if loss was not proved to have occurred there, the new Section, however, renders the destination Railway also liable even though no loss occurred there.
The provision in the new Section 80 enabling the suit to be instituted at the place of the destination Railway, where no part of the cause of action might otherwise be shown to have arisen, was, it is urged, a mere consequential provision to give effect to the substan tive provision, that the destination Railway was also li able.
Dr. Ghosh emphasised the expression "may be institut ed" in Section 80 to reinforce his contention that Section 80 did really expand the rights of and not seek to restrict therein suitors.
Learned counsel also emphasised that sec tion 80 did not contain any words expressly excluding clauses (a) and (b) of Section 20, Code of Civil Procedure, in so far as suits contemplated by Section 80 were con cerned.
The new Section 80, it is contended, did not intend to impair the choice of the forum afforded by Section 20 of the Code of Civil Procedure and that any contrary view, offends settled principles of statutory construction guiding the matter.
Learned counsel invited attention to the follow ing observations in Ajay Kumar Banerjee & Others etc.
vs Union of India & Others etc.
; , at page 282: "The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one.
In other words, a prior special law, would yield to a later general law, if either of the two fol lowing conditions is satisfied: (i) The two are inconsistent with each other; (ii) There is some express reference in the later to the earlier enactment.
450 If either of these two conditions is ful filled, the later law, even though general, would prevail.
" and submitted that even if, conversely, the provisions of Section 80 are held to be a later special law, the principle of implied repeal could not be invoked as there was no inconsistency between the two provisions and that, on the contrary, both set of provisions could co exist and prevail.
Learned counsel invited our attention to and relied upon the following passage in Shah Babulal Khimji vs Jaya Ben D. Kania and Another, ; "We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case section 104 read with Order 43, Rule 1 does not in any way abridge, interfere with or curb the powers conferred on the Trial Judge by Clause 15 of the Letters Patent.
What Section 104 read with Order 43, Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a larger Bench.
" The learned counsel also placed reliance on the following observations of this Court in Municipal Council, Palai vs
T.J. Joseph and Others, ; at page 98: "In order to ascertain whether there is repug nancy or not this Court has laid down the following principles in Deep Chand vs The State of Uttar Pradesh,: 1. Whether there is direct conflict between the two provisions; 2.
Whether the legislature intended to lay down an exhaustive code in respect of the subject matter replacing the earlier law; 3.
Whether the two laws occupy the same field.
Reliance was also placed on Section 21 A inserted by Section 4 of the Presidency Small Cause Courts (West Bengal Amendment) Act, 1980 which provides: "21A. Act to override other laws including Letters Patent: The provisions of this Act shall have effect notwithstanding 451 anything to the contrary in any other law, including in particular the Letters Patent of the High Court." to contend that the construction opted for by the High Court would run in the teeth of this express provision.
Lastly, learned counsel invited our attention to the following passage in Crawford on Statutory construction: "All laws are presumed to be passed with deliberation, and with full knowledge of all existing cases on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to inter fere with or abrogate any former law relating to the same matter,unless the repugnancy between the two is irreconcilable.
Bowen vs Lease, 5 Will 225.
It is a rule, says Sedwick that a general statute without negative words will not repeal the particular provisions of a former one, unless the two acts are irrecon cilably inconsistent." (p. 633) "And, as we have already suggested, it is essential that the new statute cover the entire subject matter of the old; otherwise there is no indication.
of the intent of the Legislature to abrogate the old law.
Conse quently, the latter enactment will be con structed as continuation of the old one." (624) It was urged that repeal by implication is not to be pre sumed and that, on the contrary, there is always presumption against a repeal by implication.
In order that there be a repeal by implication, there should be a clear, irreconcila ble conflict between the two sets of provisions and the later enactment should be an exhaustive code in itself in respect of the subject matter.
On these submissions, Dr. Ghosh says that the view taken by the High Court is clearly unsustainable in law.
The contention emphasised is that where a statute merely recognises a right pre existing in common law and provides a remedy, such a remedy, unless the statute ex pressly bans or excludes other remedies, could only be an additional or concurrent one open to an election.
It is true that where a statute does not itself bring into being a 452 new right not a pre existing right and also provides a remedy therefore so however that the right and the remedy cannot be said to have been brought into existence for the first time uno flatu, such a remedy would not generally be held to be exclusive but only an additional and concurrent one, along with the pre existing remedies, unless there are express indications to the contrary in the statute itself.
In Municipal Council, Palai vs T.J. Joseph, ; , this Court considered the tests of repugnancy applied under Article 254(2) of the Constitution, relevant in the examination of circumstances bringing about an implied repeal.
Strictly speaking the examination of the question whether an act of Parliament prevails against the law enact ed by a State under Article 254, does not really involve any question of repeal.
In Zaver Bhai Amaidas vs State of Bom bay, AIR 1954 SC 752 this Court applied the test conversely, of the principle of implied repeal to cases of repugnancy under Article 254(2).
It was observed: "It is true, as already pointed out, that on a question under article 25(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises, but the principle on which the rule of implied repeal rests, namely, that if the subject matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question trader article 254(2) where the fur ther legislation by Parliament is in respect of the same matter as that of the State law.
" The doctrine of implied repeal is based on the postulate that the legislature which is presumed to know the existing state of the law did not intend to create any confusion by retaining conflicting provisions.
Courts, in applying this doctrine, are supposed merely to give effect to the legisla tive intent by examining the object and scope of the two enactments.
But in a conceivable case, the very existence of two provisions may by itself, and without more, lead to an inference of mutual irreconcilability if the later set of provisions is by itself a complete code with respect to the same matter.
In such a case the actual detailed comparison of the two sets of provisions may not be necessary.
It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneously.
Section 80 is a special provi 453 sion.
It deals with certain class of suits distinguishable on the basis of their particular subject matters.
The High Court has come to the conclusion that new Section 80 made a conscious departure on the law as to the place of suing in respect of suits of a particular subject matter envisaged by that Section.
The High Court has held that the new Section 80 is a selfcontained provision in regard to the choice of fora for such suits.
According to the High Court, there was no need for the legislature to specify the places of suing which would otherwise be covered by Section 20 C.P.C. unless the special prescription as to places of suing was considered to be necessary in deroga tion to the general law as contained in Sec.
20 CPC or the provisions in the Small cause Courts Act.
As to the words "may be instituted" occurring in that Section, the High Court observed: "The use of the expression 'may be instituted ' in Section 80 of the Railways Act was equiva lent to 'shall be instituted '.
Section 80 conferred right to institute suits for compen sation against the Railways for breach of their obligations for carrying passengers, animals or goods specified in Chapter VII of the Indian Railways Act.
Both the obligation on the part of the Railways and the right of the consignor and the consignee to institute suits are now statutory in their nature.
The clear intendment of the Legislature was that it would be obligatory for the plaintiffs to institute suits only in the Courts mentioned in Section 80 of the Railways Act for enforce ment of the claims for compensation against the Railways.
After a consideration of the matter, we are inclined to the view that the reasoning of and the conclusion reached by the Full Bench of the Calcutta High Court that the new Section 80 is a selfcontained provision are sound and re quire to be preferred to the view expressed by the Assam and the Madras High Courts.
The view of the Full Bench is to be preferred having regard to the weight and preponderance of the relevant interpretatory criteria.
No appeal, in our opinion, could be made to Section 21A of the State Amendment to the Small Cause Courts Act either, in as much as, that provision cannot be understood to have been intended to cover a situation of the present 454 type.
It does not exclude a special law applicable to and governing a distinct class of subject matter intended to be covered by that special law.
In the result, for the fore going reasons, these appeals fail and are dismissed; but in the circumstances, without any directions as to costs.
N.P.V. Appeals dismissed.
| IN-Abs | Under Section 80 of the Indian Railways Act, 1890, prior to its substitution by the Amendment Act, 1961, the choice of forum for filing suits for compensation for loss, de struction, damage, deterioration or non delivery of goods etc.
carried by the Railways was regulated by Section 20 of the Code of Civil Procedure or Section 18 of the , as the case may be.
However, the new section, besides making specific reference to a certain class of suits, to be dealt with under the section and identifying the Railways Administrations which were liable to the claim, also specifically provided the places where such suits may be instituted.
The appellants filed two separate suits in the courts at Alipore and Calcutta for recovery of certain amounts from the Railways for short deliveries of consignments booked by them.
The respondent contended that in view of Section 80 of the Indian Railways Act, 1890, the trial courts concerned had no jurisdiction.
The trial courts rejected the objection and decreed the suits.
In the revisions filed by the respondent, the Full Bench of the High Court, by its common order, held that the trial courts had no jurisdiction.
It was of the view that the new Section 80, was a complete and self contained special law, as to the place of suing, respecting suits envisaged by the section derogating from the generally of the provisions of Section 20 of the Code of Civil Procedure, 1890 and Section 18 of the Presidency Town Small Cause Courts Act, 1882 and that it brought about an implied repeal of those provisions as to the jurisdiction of 441 courts by itself providing a jurisdiction to those suits.
In the appeals before this Court it was contended on behalf of the appellants that the legislative intent was clear: that it did not render Section 80 over riding, by not expressly excluding Section 20 of the Code of Civil Proce dure, 1890, and that even if the provisions of Section 80 were held to be a later special law, the principle of im plied repeal could not be invoked, as there was no incon sistency between the two provisions and, on the contrary, both sets of provisions could exist and prevail.
Dismissing the appeals, HELD: The doctrine of implied repeal is based on the postulate that the legislature which is presumed to know the existing state of the law did not intend to create any confusion by retaining conflicting provisions.
Courts in applying this doctrine, are supposed merely to give effect to the legislative intent by examining the object and scope of the two enactments.
But in a conceivable case, the very existence of two provisions may by itself, lead to an infer ence of mutual irreconcilability if the later set of provi sions is by itself a complete code with respect to the same matter.
In such a case, the actual detailed comparison of the two sets of provisions may not be necessary.
[452F G] It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneous ly.
[452H] Section 80 is a special provision dealing with certain class of suits distinguishable on the basis of their partic ular subject matter.
It made a conscious departure on the law as to the place of suing in respect of suits envisaged by that Section, and is a self contained provision in regard to the choice of fora for such suits.
There was no need for the legislature to specify the places of suing which would otherwise be covered by Section 20 C.P.C. unless the special prescription as to places of suing was considered to be necessary in derogation to the general law as the matter contained in Section 20 C.P.C. or the provisions in the Small Cause Courts Act.
[453B C] Assam Cold Storage vs Union of India, AIR 1971 Assam 69; Hindustan Machine Tools vs Union of India, AIR 1985 Madras 130; Oghamal Chaudhury vs Union of India, and Union of India vs Indian Hume Pipe Co. Ltd., AIR 1981 Bombay 414, approved.
442 New India Assurance Co. vs Union of India, AIR 1981 Delhi 135 and Union of India vs C.R. Prabhanna, AIR 1977 132, over ruled.
Shah Babulal Khimji vs Jaya Ben D. Kania and another; , ; Municipal Council, Palai vs T.J. Joseph and others; , ; Zaver Bhai Amaidas vs State of Bombay, AIR 1954 SC 752; Union of India vs Ladu Lal Jain, ; and Union of India vs The Steel Stock Holders Syndicate, Poona, ; , referred to.
|
vil Appeal No. 3 108 of 1989.
From the Judgment and Order dated 27.1.86 of the Punjab and Haryana High Court in R.S.A. No. 1510 of 1977.
Harbans Lal and Ashok K. Mahajan for the Appellant.
Jitender Sharma for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
We grant leave in the Special Leave Peri 612 tion and proceed to dispose of the appeal on the merits after hearing both sides.
The appellant is the successor in interest of the mort gagor of the suit property.
The suit property was mortgaged on 22.5.
In the normal course the suit for redemption should have been filed on or before 22.5.
1946, the limita tion for such a suit being 60 years under the Limitation Act, 1908.
The appellant, however, filed the suit for re demption only on 28.12.
He sought to meet the plea of limitation by urging that the son of the original mortgagee, while selling the property on 1.11.19 13, had specifically acknowledged the right of the mortgagor to redeem the property.
It was claimed that this acknowledgment constitut ed a fresh starting point for computing the period of limi tation.
If the plea of the mortgagor were right and the Limita tion Act, 1908, had continued to be operative, the suit for redemption could have been filed on or before the 1st of November, 1973.
However, in the meantime the replaced the of 1908.
The period of limitation for a suit for redemption was reduced under the new Act to 30 years.
Section 30 of the Act, however, provid ed as follows: section 30.
Provision for suits, etc., for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908.
Notwithstanding anything contained in this Act (a) any suit for which the period of limita tion is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of seven years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier: By virtue of this provision, the suit for redemption could have been filed, if the appellant 's plea that the sale deed dated 1.11.1913 constituted a fresh starting point for computation of the period of limitation is accepted, on or before the 1st of January, 1971, having regard to the fact that the came into force on 1.1.1964.
613 The first question for consideration in this appeal is whether the sale deed of 1.11.19 13 contained an acknowl edgement by the original mortgagee of a subsisting right of redemption on the part of the mortgagor as on the date of the sale deed viz. 1.11.19 13.
The sale deed contained the following recitals: "Now I of my own accord have sold all my mortgagee rights along with the original mortgage consideration and interest which according to the terms of the aforesaid mort gage deed has accrued and is payable to the instant vendor . .
The rights and interest regarding recovery of original mort gage money and interest according to mortgage deeds executed by Jangi Khan original mortga gor deceased and redemption of the mortgaged land which hence to fore vested in the instant vendor stand vested in the purchaser . . (underlining by us) On behalf of the appellants it is submitted that the words extracted above clearly contained a specific acknowl edgement by the mortgagee of a subsisting right of redemp tion in the mortgagor.
On the other hand.
for the respond ents, it is contended and this contention was accepted by the High Court that the recitals mentioned above do not serve as an acknowledgment.
The High Court observed: "The mortgagee Mool Raj gave the description of the mortgage only with a view to showing his status but nowhere did he acknowledge his liability for redemption of the mortgage.
According to the recital in the deed, whatever rights as a mortgagee he had in the suit land were transferred to the vendee.
There was nothing more than this.
The right of the mortgagor to redeem the land, and his liabili ty to redeem the same, was nowhere acknowl edged.
" The respondents strongly rely on this finding and also rely on the decision of this court in Tilak Ram vs Nathu, AIR 1967 S.C. 935.
We are of the opinion that the High Court erred in accepting the above contention.
It is true, as pointed out in Tilak Ram vs Nathu, that the period of limitation cannot be extended by a mere passing recital regarding the factum of the mortgage but that the statement on which the plea of an acknowledgement is based must relate to a subsisting liability.
The words used must indicate the jural relation ship between 614 the parties and it must appear that such a statement is made with the intention of admitting such jural relation ship.
But, in our opinion, the recitals in the sale deed on 1.11.1913 fulfil_ the above requirements.
The fact of Nanak Chand having obtained a mortgage with possession had already been recited in an earlier part of the sale deed.
The pass sages in the sale deed, which have been extracted by us above, contain two specific recitals.
The first is that "the original consideration and interest under had accrued and Was payable to the instant vendor.
" These words acknowledge that the mortgage had not been redeemed and that the mort gage moneys remained outstanding to the mortgagee From the mortgagor as on the ' date of the sale deed.
The second recital is even more specific.
It says that what stands transferred to the purchaser is not only the fight of the mortgagee for recovering the principal amounts and interest according to the mortgage deed (which, as earlier stated, still remained outstanding) but also "the rights and inter est" regarding the redemption of the mortgaged land.
These words are, of course, a little inappropriate because the right of redemption is in the mortgagor and not in the mortgagee.
But, read as a whole, the second sentence we have quoted here from the sale deed clearly manifests an inten tion on the part of the mortgagee to acknowledge that his right to recover the moneys under the mortgage deed as well as his liability to have the property redeemed by the mort gagor in the event of his paying off the moneys due under the instrument both stand vested in the purchaser.
We are of the opinion that it is not correct to treat the recitals in the document as a mere narration of the previous mortgage that had been created on the property.
The words spell out a clear intention that the moneys due under the mortgage still remained unpaid and also that the mortgagor had a subsisting right of redemption which he could enforce against the mortgagee.
In this view of the matter the contention on behalf of the appellant that the recitals in the document of 1.11.1913 constituted an acknowledgement of liability for redemption within the meaning of section 19 of the Limita tion Act deserves to be accepted.
On behalf of the respondents it is submitted that, even if the above position is accepted, the suit should have been filed on or before 1.4.1971 but that it was actually insti tuted only on 18.4.1973.
Our attention is drawn to the cause title of the suit in the trial court where the suit is described as Case Civil Suit No. 204 of 1973 and the date of institution is set out as 28.12.1968/18.4.1973.
It is sub mitted that perhaps the suit had been flied on 28.12.1968 with defects and that the defects had been rectified subse quently so that the suit can be properly said to have been instituted only on 18.4.1973.
It has been numbered 615 only as a suit of 1973.
It is, therefore, contended that in any event the suit was barred by limitation being beyond 1.4.1971.
This contention is without force.
This point does not appear to have been specifically taken either in the trial court or in the first appellate court.
On the other hand in the trial court the plaintiff had adverted to the provisions of the Limitation Act and the position that the suit should have been filed within 7 years of the applica tion of the new Act and urged that the suit was within time.
This contention was accepted by the trial court.
It could not have been so accepted if the suit had in fact been instituted Only in 1973 as at present submitted.
That apart the High Court in the course of its judgment has pointed out that the present suit had been filed on 28th of December, 1968.
In this state of the record we have to proceed on the basis that the suit had been filed on 28th of December, 1968, and, therefore hold, for the reasons stated earlier, it had been filed in time.
For the reasons above mentioned, we set aside the order of the High Court confirming the order of the Additional District Judge and restore the decree for redemption passed by the trial court.
We would only like to clarify that there were two mortgage deeds the redemption of which had been sought by the plaintiff in the suit.
We are concerned in this appeal only with the property mortgaged under the deed of mortgage dated 22.5.1986 by Jangi Khan in favour of Nanak Chand and sold on 1.11.1913 by Mool Raj, son of Nanak Chand, to the predecessor in interest of the present respondent.
The concurrent findings of the three courts in respect of the other mortgage are not, in any way, disturbed by our judgment.
The appeal, therefore, stands allowed and the appellant will be entitled to his costs.
R.S.S. Appeal allowed.
| IN-Abs | The appellant is the successor in interest of the mort gagor of the suit property.
The suit property was mortgaged on 22.5.1886.
In the normal course the suit for redemption should have been filed on or before 22.5.1946, the limita tion for such a suit being 60 years under the Limitation Act, 1906.
The appellant, however, filed the suit for re demption only on 28.12.1968.
The defence to the plea of limitation urged was that the son of the original mortgagee, while selling the property on 1.11.
1913, had specifically acknowledged the right of the mortgagor to redeem the property.
It was claimed that this acknowledgment constitut ed a fresh starting point for computing the period of limi tation.
The Trial Court accepted the plea and granted decree for redemption.
The Additional District Judge however ac cepted the appeal of the respondents.
The High Court, in appeal, confirmed the order of the Additional District Judge and held that the sale deed had nowhere acknowledged the right of the mortgagor to redeem the land.
Before this Court, it was contended on behalf of the appellant that the recital in the sale deed clearly con tained a specific acknowledgment by the mortgagee of a subsisting right of redemption in the mortgagor.
On the other hand, it was contended that the said recital did not serve as an acknowledgment.
It was further urged by the respondents that even otherwise the suit should have been filed within 7 years of the coming into force of the Limita tion Act, 1963, i.e., on or before 1.4.1971, and that it was actually instituted only on 18.4.1973.
Allowing the appeal, setting aside the orders of the Additional District Judge and the High Court, and restoring the decree for redemption passed by the Trial Court, this Court, 611 HELD: (1) The period of limitation cannot be extended by a mere passing recital regarding the factum of the mortgage but the statement on which the plea of an acknowledgment is based must relate to a subsisting liability.
The words used must indicate the jural relationship between the parties and it must appear that such a statement is made with the inten tion of admitting such jural relationship.
[613G 6 14A] Tilak Ram vs Nathu, AIR 1967 S.C. 935, referred to.
(2) In the instant case, it is not correct to treat the recitals in the document as a mere narration of the previous mortgage that had been created on the property.
The words spell out a clear intention that the moneys due under the mortgage still remained unpaid and also that the mortgagor had a subsisting right of redemption which he could enforce against the mortgagee.
[614E F] (3) In the Trial Court the plaintiff appellant had adverted to the provisions of the and the position that the suit should have been filed within 7 years of the application of the new Act, and had urged that the suit was within time.
The Trial Court had accepted the contention of the plaintiff appellant on this point.
It could not have been so accepted if the suit had in fact been instituted only in 1973.
In the cause title of the suit in the Trial Court the date of institution is set out as 28.12.1968/18.4.1973.
This position does not appear to have been specifically challenged either in the Trial Court or in the first Appellate Court.
The High Court in its judgment has pointed out that the suit had been filed on 28th of December, 1968.
In this state of the record, this Court has to proceed on the basis that the suit had been filed on 28th of December, 1968 and therefore to hold that the suit had been filed in time.
[615B C]
|
ivil Appeal No. 2548 of 1983 From the Judgment and Order dated 15.9.82 of the Allaha bad High Court in Civil Misc.
W.P. No. 14807 of 1981.
Pramod Swarup for the Appellant.
R.B. Mehrotra for the Respondents.
562 The Judgment of the Court was delivered by KANIA, J.
This is an Appeal by Special Leave against a judgment and order dated September 15, 1982 delivered by the Allahabad High Court in Civil Miscellaneous Writ No. 14807 of 1981.
The appellant before us is the tenant of the shop in question.
Respondent No. 1 is a proforma party, namely, the Prescribed Authority, and respondent No. 2 is the landlord of the building containing the shop in question, situated at Mandi Harbansganj Dhampur.
We propose to refer to the appel lant as the tenant and respondent No. 2 as the landlord.
In 1959 the landlord filed an application under section 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as "the U.P. Rent Act of 1947") for the eviction of the tenant from the said shop.
The said application was made on the ground that the landlord wanted to demolish the shops in the building including the said shop and in their place wanted to construct new shops and also to construct the residential portion on the first floor.
In the new building the accommodation would be much larger and, apart from shops, even residential premises would be constructed.
In paragraph 7 of the application, the landlord gave an "assurance (undertaking that the applicant will give the new shop to the second party after the new shops are constructed on a reasonable rent.
" It is common ground that the applicant referred to was the landlord and the second party referred to was the tenant.
This applica tion was contested by the tenant along with other tenants, against whom also, the similar applications were filed.
The application was made to the District Magistrate within the meaning of the said expression in sub section (d) of section 2 of the U.P. Rent Act of 1947.
The Rent Controller and Eviction Officer who acted as District Magistrate with in the connotation of the said term under the said Act, about which there is no dispute, granted the permission and rejected the contentions of the tenant.
In the order grant ing the permission, which order.
is dated February 27, 1980, the Rent Controller and Eviction Officer noted that the landlord was ready to give the newly constructed shops to the tenants on a reasonable rent.
Taking into account all relevant facts and circumstances including the aforesaid fact of the assurance cure undertaking given by the land lord, the permission to evict the tenant was granted.
Against this decision all the tenants including the tenant herein filed revision petitions which were dismissed by the Commissioner, Rukhilkand and Division, Bareilly.
The tenants applied by way of further revision to the State Governor under Section 7 F of the said U.P. Rant Act of 1947.
In disposing of the revision 563 petitions, the Special Secretary, who disposed of the same in the name of the Governor of the State of U.P., noted that the landlord had given an undertaking to the tenants that they would be given newly constructed shops on standard rent and that during the period taken for construction, alterna tive accommodation would also be given to them.
Thereafter, the landlord filed a suit on the basis of the aforesaid permission for eviction of the tenant.
During the pendency of the suit, the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter re ferred to0 as 'the U.P. Rent Act of 1972") came into force.
The U.P. Rent Act of 1947 was repealed by sub,section (1) of section 43 of the U.P. Rent Act of 1972 save and except to the extent provided in the savings clause set out at subsec tion (2) of that section.
Some amendments were made to section 43(2) (rr) in the U.P. Rent Act of 1972 by the U .P.
Act of XXXIII of 1976, whereby the landlords who had on the basis of the permissions granted to them under section 3(1) of the U.P. Rent Act of 1947 instituted suits for the evic tion of their tenants were given the right to apply for eviction of their tenants straightaway if the permission granted to them under section 3(1) of the U.P. Rent Act of 1947 had been obtained on any ground specified in sub,sec tion (1) or subsection (2) of section 21 of the U.P. Rent Act of 1972.
Taking advantage of these provisions, the landlord filed an application for an order of eviction against the tenant on the ground that the permission had been obtained by the landlord on the ground specified in clause (b) of section 21(1) of the U.P. Rent Act of 1972 and hence, he was entitled to an order of eviction straightaway under section 43(2) (rr) of the U.P. Rent Act of 1972.
The Prescribed Authority dismissed the application of the land lord on the ground that the permission obtained by him was a conditional permission and it could not come into operation unless the landlord had complied with the offer made by him before the Rent Controller and Eviction Officer, namely, to make available to the tenant an alternative shop.
It was held by the Prescribed Authority that till that condition was satisfied by the landlord, he could not claim the evic tion of the tenant under section 43(2) (rr) of the U.P. Rent Act of 1972.
Against this order, the landlord preferred the aforesaid writ petition which was disposed of by the learned Single Judge of the High Court by the impugned judgment.
The learned Judge took the view that the Prescribed Authority was bound to allow the application of the landlord under section 43(2) (rr) of the U.P. Rent Act of 1972 and order eviction.
It was held by the learned Judge that the ground on which permission was granted by the Rent Controller and Eviction Authorities under the U.P. Rent Act of 1947 fell within clause (b) of sub section (1) of section 21 of the U.P. 564 Rent Act of 1972 and hence, the Prescribed Authority under the Act of 1972 had no jurisdiction to embark upon any fresh enquiry as to the nature of the permission.
It was held by the learned Judge that the finding of the Rent Control authorities was that the building was in a dilapidated condition and required demolition and hence, the Prescribed Authority had no jurisdiction to impose any condition before granting an eviction order.
It was held by him that the Prescribed Authority had failed to exercise its statutory duty to order the eviction of the tenant.
The learned Single Judge directed the Prescribed Authority to pass an order of eviction against the tenant.
It is this judgment of the learned Single Judge which is impugned before us by Shri Parmod Swaroop, learned counsel for the appellant.
Learned counsel for the appellant submitted that the decision of the prescribed Authority to decline the prayer for eviction made by respondent No. 2 was justified in view of the undertakings given by respondent No. 2 when the permission to file a suit for eviction was given under the U.P. Rent Act of 1947 and the High Court was in error in upsetting the decision of the Prescribed Authority.
It was, on the other hand, contended by Mr.Mehrotra, learned counsel for respondent No. 2 that in view of the provisions of section 43(2) (rr) of the U.P. Rent Act of 1972, the Pre scribed Authority had no jurisdiction to go behind the permission and was bound to give an order for eviction unconditionally as held by the High Court in its impugned judgment.
Although the judgment of the Prescribed Authority, which was set aside by the High Court, is not before us, it appears clear from the impugned judgment that the Prescribed Authority took the view that the permission granted to respondent No. 2 to file the suit for eviction was a condi tional one and was operative only on the performance of the condition incorporated in the undertaking given by the landlord.
We are of the view that the entire argument before us proceeds to a large extent on a misapprehension.
However, before dealing with the rival submissions, we propose to refer to the relevant provisions of the aforestated two Acts very briefly.
U.P. Rent Act of 1947 was a temporary measure enacted with the object of continuing during a limited period the powers to control the letting and the rent of residential and non residential accommodation and to prevent the evic tion of tenants from the same.
The relevant portion of sub section (1) of section 3 of that Act runs as follows: 565 "3.
Restrictions on eviction.
(1) Subject to any order passed under sub section (3) no suit shall, without the permis sion of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds:" Thereafter, clauses (a) to (g) set out the grounds on which a suit for eviction could be filed without the permission of the District Magistrate.
Sub section (2) of section 3 pro vides for an application for revision against the order of the District Magistrate granting or refusing the grant of permission to file a suit for eviction of a tenant to the Commissioner.
Sub section (4) provides that the order of the Commissioner made in such revision application as set out above, shall be subject to any order passed by the State Government under section 7F of that Act.
Sub section (d) of section 2 of the U.P. Rent Act of 1947 gives an inclusive definition of the term "District Magistrate" ,red states that the said term would include an officer authorised by the District Magistrate to perform any of his functions under that Act.
The U.P. Rent Act of 1972 was enacted to make provisions in the interest of the general public for the regulation of letting and rent of, and the eviction of tenants from, certain classes of buildings situated in the urban areas.
Section 21 of this Act provides for release of a building under occupation of the tenants, that is, very briefly, for the eviction of tenants from the buildings under tenancy and also inter alia prescribes grounds on which such eviction can be ordered.
It may be mentioned that eviction of tenants is not permitted except on prescribed grounds.
Section 43 of the U.P. Rent Act of 1972 provides for repeal and savings.
Under sub section (1) of that sec tion the U.P. Rent Act of 1947 is repealed.
The relevant portion of sub section (2) of section 43 of the U.P. Rent Act of 1972 which is in the nature of a savings provision runs as follows: "43 Repeal and savings.
(1) x x x x (2) Notwithstanding such repeal X X X (rr) where any permission referred to in section 3 of the 566 old Act has been obtained on any ground speci fied in subsection (1) or sub section (2) of section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub section, after the commencement of this Act, whether or not a suit for the eviction of the tenant has been instituted, the landlord may apply to the prescribed authority for his eviction under section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the pre scribed authority to satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall not be open to appeal under section 22".
The provisos to the clause are not relevant for our purpose.
The main contention of the learned counsel for respond ent No. 2 before us was that in view of the provisions of clause (rr) of sub section (2) of section 43 of the U.P. Rent Act of 1972, once the permission to file the suit for eviction was granted by the authorities concerned under the U.P. Rent Act of 1947 and that permission was on a ground specified in sub section (1) or sub section (2) of section 21 of the U.P. Rent Act of 1972, it was not open to the Prescribed Authority before which the application for evic tion was filed to reconsider the same.
The Prescribed Au thority, in the present case, has tried to analyse that permission and declined to grant the decree for eviction on the basis that the permission was conditional and the land lord was not willing to carry out those conditions.
In our view, the question of the authority under the U.P. Rent Act of 1947 having imposed any condition, does not arise at all.
A plain reading of the order of the Rent Controller and Eviction Officer, Bijnor as well as the orders of the Com missioner in revision and that of the State Government makes it clear that the permission given to the landlord to file the suit was not subject to any condition at all.
At the same time, the judgment of the Rent Controller clearly shows that one d the circumstances which constituted the basis for the grant of the permission to file the ,suit for eviction was that the landlord gave an assurance cum undertaking to give newly constructed shops to the tenants sought to be evicted including the tenant before us and that the landlord also gave a similar assurance to give alternative accommoda tion to the tenant during the period which would be taken in completing the new construction.
As we have already pointed out, the petition for permission to file a suit, flied before the Rent Controller by the landlord, in terms, con tained an 567 assurance cum undertaking that the landlord would give the newly constructed shops after the new shops were constructed to the tenants sought to be evicted on a reasonable rent.
It appears that the offer to provide for alternative accommoda tion during the period when the new construction was coming up was made by the landlord in the course of the hearing before the said Eviction Officer, Bijnor.
The revision petition against that said order was dismissed by the Com missioner, Rukhilkhand Division, as we have already pointed out earlier.
The order passed under section 7F of the U.P. Rent Act of 1947 by the State Government also dismissed the revision petition preferred by the tenant to the State Government.
The order of the State Government which was passed on behalf of the Governor of the State by the Special Secretary, however, clearly notes that the landlord had given an undertaking to the tenants that they would be giving the newly constructed shops to them on standard and that during the period taken up in completing the new con struCtion, alternative accommodation would also be given to them.
However, no condition in this connection was imposed by the State Government on the permission to file the suit for eviction.
Under these circumstances, we propose to proceed on the assumption that the High Court was justified in coming to the conclusion that the Prescribed Authority under the U.P. Rent Act of 1972 had no jurisdiction to go behind the permission granted by the relevant authorities under the U.P. Rent Act of 1947 for the filing of the eviC tion suit.
However, it appears to us that the High Court was, with respect, in error in not taking into account the undertakings cumassurance given by the landlord to the tenant in his application for permission to file a suit as well as in the course of the hearing before the aforemen tioned authorities.
We do not find anything in the provi sions of seCtion 43(2) (rr) of the U.P. Rent Act of 1972 which would enable the landlord to evade his duty to comply with the undertakings cum assurances given by him.
These undertakings cum assurances givenby the landlord certainly formed part of the basis on which the permission to file the suit for eviCtion was unconditionally given to him.
It is but fair that the court should see to it that the tenant is not deprived of the benefit of the undertakingscum assur ances.
In fact, no good reason has been shown as to how the landlord can justly claim that he is no longer bound by the undertakingscum assurances given by him as set out earlier.
In these circumstances, we set aside the order of the High Court and pass the following order in its place: (1) We direct that the Prescribed Authority, Nagina, District Bijnor, to pass an order of eviCtion against the appellant tenant before us but the ' Prescribed Authority will give the necessary directions or 568 orders to respondent No. 2 landlord to provide alternative accommodation to the appellant during the period when the new construction is coming up and also pass appropriate orders for ensuring that after the new construction is completed, a comparable shop is given to the appellant herein.
(2) In order not to delay the construction of the new shops, the Prescribed Authority may provide that, in case the landlord fails to or is unable to provide alternative accommodation to the appellanttenant during the period when the new construction is being completed, he shall pay a certain sum as fixed by the Prescribed Authority per month to the appellant tenant which would be reasonably adequate to enable that tenant to obtain alternative accommodation for that period.
For the aforesaid purpose, the Prescribed Authority may give such directions as it may think fit.
Before parting with the matter, we may refer to two decisions which were cited before us.
The first of these is the decision of a Full Bench of the Allahabad High Court in Asa Singh vs B.D. Sanwal & Ors., AIR 1969 All. 474.
The Full Bench of that High Court inter alia held in that case that while granting permission under section 3 of the U.P. Rent Act of 1947 the District Magistrate was bound to consider also the need of the tenant for the accommodation, if such a case is set up by the tenant.
This case was cited by the learned counsel for the tenant.
Learned counsel for respond ent No. 2, on the other hand, cited the decision of another Full Bench of the Allahabad High Court in Bansilal Sahu vs The Prescribed Authority & Anr., AIR 1980 All. 194 which, very briefly stated, laid down that the Prescribed Authority under the U.P. Rent Act of 1972 is bound while acting under clause (rr) of section 43(2) of the said Act, irrespective of the occurrence of subsequent events, to order eviction according to the permission granted by the Prescribed Au thority under section 3 of the U.P. Rent Act of 1947.
In our view, it is not necessary for us to enter into a discussion of either of the authorities because they do not touch upon the question which has arisen before us, namely, enforcing the undertakings cumassurances given by the land lord in obtaining the permission under section 3 of the U.P. Rent Act of 1947.
The Appeal is allowed to the extent aforestated.
Looking to the facts and circumstances of the case, there will be no order as to costs.
R.N.J. Appeal allowed.
| IN-Abs | In 1959 the landlord filed an application under section 3(1) of the U.P. (Temporary) Control of Rent & Eviction Act, 1947 for the eviction of the tenant from the shop on the ground that the landlord wanted to demolish the shops in the building including the shop of the appellant/ tenant and in their place wanted to construct new shops and residential portion on the first floor.
In the application the landlord gave an assurance (undertaking) that he would give new shop to the tenant/appellant after the new shops were construct ed, at a reasonable rent.
This application was contested by the appellant/tenant alongwith other tenants.
The applica tion was made to the District Magistrate u/s 2(d) of the U .P.
Rent Act, 1947.
The Rent Controller and Eviction Officer who acted as District Magistrate under the said Act granted the permission and rejected the contentions of the tenants.
Against this decision all the tenants filed revi sion petitions which were dismissed by the commissioner Rohilkhand Division, Bareilly.
The tenants preferred further revision to the State Govt.
u/s 7 F of the said Act.
In disposing of the revision petitions the Special Secretary noted that the landlord had given an undertaking to the tenants that they would he given newly constructed shops on standard rent and that during the period taken for construc tion alternative accommodation would he given to them.
Thereafter the landlord filed a suit on the basis of the, permission for eviction of the tenants.
During the pendency of the suit the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 came into force.
The U.P. Rent Act of 1947 was repealed and some amendments were made to section 43(2)(rr) in the U.P. Rent Act of 1972 whereby the landlords who had on the basis of permission granted to them u/s 3(1) of the U.P. Rent Act of 1947 instituted suits for the eviction of the tenants were given the right to apply for eviction of their tenants straightaway if the permission granted to them under section 3(1) of the U.P. Rent Act of 1947 had been obtained on any ground 561 specified in sub section (1) or subsection (2) of section 21 of the U.P. Rent Act of 1972.
Taking advantage of these provisions, the landlord filed an application for an order of eviction u/s 43(2)(rr) of the U.P. Rent Act 1972.
The Prescribed Authority dismissed the application of the land lord on the ground that the permission obtained by him was conditional permission and it would come into operation when the landlord had complied with the offer made by him and until then he could not claim eviction of the tenant u/s 43(2)(rr) of the U.P. Rent Act, 1972.
Against that order the landlord preferred a writ petition in the High Court of Allahabad.
The High Court took the view that the Prescribed Authority was bound to allow the application of the landlord u/s 43(2) (rr) and order eviction.
Against this judgment the tenant appellant came up by way of special leave.
In setting aside the order of the High Court, this Court in allowing the appeal, HELD: One of the circumstances which constituted the basis for the grant of the permission to tile the suit for eviction was that the landlord gave an assurance cum under taking to give the newly constructed shops to the tenants sought to he evicted including the tenant in the appeal and that the landlord also gave a similar assurance to give alternative accommodation to the tenant during the period which would he taken in completing the new construction.
Nothing is found in the provisions of Section 43(2)(rr) of the U.P. Rent Act of 1972 which would enable the landlord to evade his duty to comply with the undertaking cum assurances given by him.
The undertaking cum assurances given by the landlord in the instant case certainly formed part of the basis on which the permission to file suit for eviction was unconditionally given to him.
It is but fair that the Court should see to it that the tenant is not deprived of the benefit of the undertakings cum assurances.
[566G, 567F] Asa Singh vs
B.D. Sanwal & Ors., AIR 1969 All.
474 and Bansilal Sahu vs The Prescribed Authority & Anr., AIR 1980 All. 194, referred to.
|
ivil Appeal No. 656 of 1989.
From the Judgment and Order dated 27.11.
1987 of the Patna High Court in C.W.J .C. No. 1254 of 1987.
Tapas Ray and D.P. Mukharjee for the Appellants.
M.K. Ramamurthi, P.P. Singh, A.N. Trehan and Promod Swarup for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by special leave is directed against the decision of the Patna High Court dated 27.11.
1987 quashing the notification dated 18.11.1986 under which in terms of the Subordinate Education Service (Teach ing Branch) Determination of Seniority Rules framed under the proviso to Article 309 of the Constitution, the hitherto single cadre known as Secondary Education Service was bifur cated.
On 20th of February, 1975, the State Government pub lished a joint seniority list of teachers of Subordinate Education Service belonging to the Boys school branch and the Higher Secondary Teachers 660 of the Subordinate Education Service.
The joint gradation list was challenged before the High Court in Writ Petition No. 2956 of 1975.
The High Court dismissed the writ petition as also an application for review of such dismissal.
On 30th March, 198 1, this Court dismissed the special leave peti tion carried against the decision of the High Court.
When with the dismissal of the special leave petition the posi tion was getting settled, the State Minister of Education came forward with a proposal that the cadre should be sepa rated and the Higher Secondary teachers and Secondary teach ers of the Upper Division of the Subordinate Education Service should have a separate gradation list.
Ultimately by the impugned notification the bifurcation was done.
The Government took the stand that the demand to bifurcate was taken up in the Legislature and in terms of the decision taken by the Implementation Committee of the Bihar Legisla tive Council, the new scheme of bifurcate came to be done.
The High Court considered the matter at great length and with care.
The legal position as settled by several deci sions of this Court was noticed.
Towards the end of the judgment the High Court has said: "We have referred to the judgment of the Supreme Court in K.S. Vora & Ors.
vs State of Gujarat & Ors., only to illustrate that the courts have at no time ignored the interest of the employees and questioned the authority of the State to frame rules in terms of the proviso to Article 309 of the Constitution of India, but the courts have always taken notice of the fact that those who stood together and fell in line to proceed further have to be provided all opportunities in respect of their avenues of promotion alike without breaking that order, so that one who ranks higher in the grade may not go down in due course of service.
It is in this context that we have no hesitation in holding that rules in the notification dated 18.11.1986 are ultra vires Articles 16(1) and 14 of the Constitu tion.
We do not propose to predicate into what is alleged to be the mala fide of the respondent State inasmuch as after the judg ment of this Court in C '.W.J.C.
No. 2956 of 1975, the Minister of State decided to find means to disintegrate the already integrated cadre or the Chairman of the Legislative Council, having no apparent role in the proc ess of making rules in terms of proviso to Article 309 of the Constitution appeared and influenced the process.
We 661 refrain from going into this aspect, for we think, with our conclusion as above, the upper division of the Subordinate Education Service shall continue to have the same respect as it got from the judgment of this Court in C.W.J.C. No. 2956 of 1975 and no one in the Government shall in future again attempt to deny to the members of the said service their due rights for promotion to the selection grade and other higher posts.
" In course of hearing of the matter, counsel for the State was not able to dislodge the conclusion that bifurca tion was the outcome of an attempt to provide quick promo tional avenues to those who were lower down in the joint cadre and would not have come within the range of considera tion for promotional benefits but by bifurcation became entitled to such benefits.
The High Court, in our opinion, rightly found fault with such action.
We have considered the matter from different angles keeping the relevant aspects in view but have not been able to satisfy ourselves that the judgment of the High Court suffers from any infirmity to justify its vacation.
The appeal is accordingly dismissed but parties are left to bear their respective costs.
N.V.K. Appeal dis missed.
| IN-Abs | On 20th February, 1975, the State Government published a joint seniority list of teachers of subordinate Education Service belonging to the Boys branch, and the Higher Second ary Teachers of the Subordinate Educational Service.
This joint gradation list was challenged before the High Court, but the writ petition was dismissed as also an application for review of the dismissal.
The Special Leave Petition against the aforesaid decision was dismissed by this Court on 30th March, 1981.
The aforesaid single cadre known as Secondary Education Service was difurcated by the State Government by its Noti fication dated 8th November 1986 under which the Subordinate Education Service (Teaching Branch) Determination of Senior ity Rules, were framed under the proviso to Article 309 of the Constitution This bifurcation scheme was challenged in the High Court.
The stand of the Government was that the demand for such bifurcation was taken up in the legislature and in terms of the decision of the Implementation Committee of the Bihar Legislative Council, the new scheme for bifurcation had to he implemented.
The High Court by its decision dated 27th November, 1987 quashed the Notification dated 18th November, 1986 under which the bifurcation was done.
The High Court was of the view that though the authority of the state to frame rules in terms of the proviso to Article 309 was unquestionable, yet notice had to he tam of time fact that those who stood 659 together and fell in line to proceed further in the seniori ty list have to he provided all opportunities in respect of their avenues of promotion alike without breaking that order, so that one who ranks higher in the grade may not go down in due course of service, and held that the rules in the Notification dated 18th November, 1986 were ultra vires Articles 16(1) and 14 of the Constitution.
Dismissing the Special Leave Petition to this Court, HELD: The High Court, rightly found fault with the State Government action, and holding that the rules in the Notifi cation dated 18th November, 1986 are ultra vires Articles 16(1) and 14 of the Constitution.
[660F] Counsel for the State was not able to dislodge the conclusion that bifurcation was the outcome of an attempt to provide quick promotional avenues to those who were lower down in the joint cadre and would not have come within the range of consideration for promotional benefits but by bifurcation became entitled to such benefits.
[661C]
|
minal Appeal No. 178 of 1957.
117 920 Appeal by special leave from the order dated May 28, 1956, of the former Nagpur High Court in Criminal Revision No. 150 of 1956 arising out of the order dated February 2, 1956, of Shri K. L. Pandey, Special Magistrate at Nagpur in Criminal Case No. I of 1955.
R. Patnaik, for the appellant.
section N. Bindra and R. H. Dhebar, for the respondent.
May 22.
The Judgment of the Court was delivered by KAPUR J.
This is an appeal against the judgment and order of the High Court of Nagpur confirming the decision of the Special Magistrate disallowing the application of the appellant to give evidence as a witness under section 342A of the Criminal Procedure Code.
The Advocate General of Madhya Pradesh, on January 13, 1953, filed a complaint against the appellant and three others under section 282 of the Indian Companies Act and sections 465 and 477A of the Indian Penal Code.
The proceedings commenced in 1954 before a Magistrate but on May 18, 1955, they were transferred to a Special Magistrate who commenced the recording of evidence on July 4, 1955.
On August 12, 1955, the Criminal Procedure Code (Amendment) Act (26 of 1955) received the assent of the President and came into force on January 2, 1956.
In this judgment it will be referred to as the Amending Act and the Code of Criminal Procedure as the Code.
On January 14, 1956, the appellant made an application to the Magistrate claiming the right to appear as a witness on his own behalf under section 342A of the amended Code "in disproof of the charges made against him ".
His application was dismissed and so was his revision to the High Court of Nagpur which held: " While it must be conceded that the wording of clause (c) as also the other clauses of section 116 of the amending Act could have been put in simpler and more direct language, its ingenuous circumlocution cannot be allowed to cloak.
its true meaning or to permit the construction which the applicant seeks to 921 put upon it.
The language used doe, , not justify hold ing that when the statute says " this Act it means only " some of the provisions of this Act Thus the High Court was of the opinion that the proceedings pending before the Special Magistrate would be according to the procedure laid down in the unamended Code and the appellant could not therefore appear as a witness under section 342A of the amended Code.
According to the provisions of the unamedded Code an accused person could not appear as a witness in his defence although for the purpose of enabling him to explain circumstances appearing in the evidence against him the Court could put such questions as it considered necessary.
Section 118 of the Evidence Act deals with persons who are competent to testify as witnesses but in view of section 342 of the unamended Code no accused person could appear as a witness and there fore section 118 was inapplicable to such persons.
Article 20(3) of the Constitution provides that no person accused of an offence shall be compelled to be a witness against himself and section 342A was inserted into the Code by section 61 of the amending Act.
It provides: S.342A " Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that (a) he shall not be called as a witness except on his own request in writing; or (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court to give rise to any presumption against him:self or any person charged together with him at the same trial." Thus the law was amended and the accused person has become a competent witness for the defence but he cannot be compelled to be a witness and cannot be called as a witness except at his own request in writing and his failure to give evidence cannot be 922 made the subject matter of comment by the parties or the Court.
The question that arises for decision is whether to a pending prosecution the provisions of the amended Code have become applicable.
There is no controversy on the general principles applicable to the case.
No person has a vested right in any course of procedure.
He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode.
See Maxwell on Interpretation of Statutes on p. 225; The Colonial Sugar Refining Co. Ltd. vs Irving (1).
In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective.
The amending Act contains provisions in regard to the procedure to be applied to pending cases in section 116 which is as follows: S.116 " Notwithstanding that all or any of the provisions of this Act have come into force in any State (a)the provisions of section 14 or section 30 or section 145 or section 146 of the principal Act as amended by this Act shall not apply to or affect, any trial or other proceeding which, on the date of such commencement, is pending before any Magistrate and every such trial or other proceeding shall be continued and disposed of as if this Act had not been passed ; (b)the provisions of section 406 or section 408 or section 409 of the principal Act as amended by this Act shall not apply to, or affect, any appeal which, on the date of such commencement, is pending before the District Magistrate or any Magistrate of the First class empowered by the State Government to hear such appeal, and every such appeal shall, notwithstanding the repeal of the first proviso to section 406 or of section 407 of the principal Act, be heard and disposed of as if this Act had not been passed; (i)(1905) A.C. 369,"372. 923 (c)the provisions of clause (w) of section 4 or section 207A or section 251A or section 260 of the principal Act as amended by this Act shall not apply to, or affect, any inquiry or trial before a Magistrate in which the Magistrate has begun to record evidence prior to the date of such commencement and which is pending on that date, and every such inquiry or trial shall be continued and disposed of as if this Act had not been passed; (d)the provisions of Chapter XXIII of the principal Act as amended by this Act shall not apply to, or affect, any trial before a Court of Sessions either by jury or with the aid of assessors in which the Court of Sessions has begun to record evidence prior to the date of such commencement and which is pending on that date, and every such trial shall be continued and disposed of as if this Act had not been passed; but save as aforesaid, the provisions of this Act and the amendments made thereby shall apply to all pro ceedings instituted after the commencement of this Act and also to all proceedings pending in any Criminal Court on the date of such commencement.
" It was contended on behalf of the respondent that the following words in clause (c) of section 116 of the amending Act " and every such enquiry or trial shall be continued and disposed of as if this Act had not been passed " mean that no provision of the Act would be applicable to pending trials and particular stress was laid on the words " as if this Act had not been passed".
If that is the interpretation to be put then it would be in conflict with the last portion of the section i. e. " Save as aforesaid the provisions of this Act and the amendments made thereby shall apply to all proceedings instituted after the commencement of this Act and also to all proceedings pending in any Criminal Court on the date of such commencement.
" The language used in this portion of the section in regard to the proceedings which are instituted after the commencement of the amended Code is identical with that dealing with proceedings pending in a Criminal Court on the date of its commencement.
Therefore if this Act applies to all proceedings which commenced 924 after the Act came into force they would equally apply to proceedings which had already commenced except those provisions which have been expressly excluded.
If the whole section is construed in the manner contended for by the respondent then there will be a conflict between the words used in the various clauses and words used in the main section 116 and it is one of the principles of interpretation that the words should be construed in such a manner as to avoid a conflict.
Thus construed the words of cl.
(c) and the words of the rest of the section 116 would mean this that the pro visions of sections 4 (w), 207A, 251A or 260 of the Code as amended shall not apply or affect any enquiry or trial before a Magistrate where the recording of evidence has started prior to the date of the commencement of the amending Act and every such enquiry should be continued and disposed of as if these sections had not been enacted.
Except as to this and except as to the provisions mentioned in sub cls.
(a), (b) and (d) the other provisions of the amended Code would be applicable to such proceedings which is also in accordance with the general principles applicable to amendments in procedural law.
By section 34 of the amending Act, section 251 of the Code was substituted by two sections i. e. 251 and 251A. Section 251 lays down the procedure in warrant cases.
It provides: section 251 " In the trial of warrant cases by Magi.
strates,the Magistrate shall, (a) in any case instituted on a police report, follow the procedure specified in section 215A; and (b) in any other case, follow the procedure specified in the other provisions of this Chapter.
" Sub clause (a) deals with cases instituted on a police report and sub cl.
(b) with other cases.
To the former section 251A is applicable and to other cases procedure specified in other provisions in Chapter 21 is made applicable.
Section 342A is in Chapter 24 and there is nothing in the amending Act or the amended Code which makes the provision of section 342A inapplicable to criminal proceeding , which are pending before a Magistrate and in which the recording of evidence has commenced.
925 In our opinion on the plain construction of the words used in section 116 of the amending Act, section 342A available to the appellant.
The High Court, it appears, was misled into construing the words in clause (c) of section 116 i. e. "as if this Act had not been passed".
The High Court was therefore in error and the appellant is entitled, in our view, as a competent witness for the defence to testify in disproof of the charges made against him or any other person charged together with him at the same trial.
We would, therefore., allow this appeal, set aside the order of the courts below and hold that the application made by the appellant to appear as a witness was well founded and should have been allowed.
Appeal allowed.
| IN-Abs | A complaint was filed against the appellant on January 13,1953, and the Special Magistrate trying him commenced the recording of evidence on July 4, 955.
During the trial the Criminal Procedure Code (Amendment) Act (26 of 955) came into force on January 2, 1956, which introduced section 342 A in the Code of Criminal Procedure.
The appellant made an application to the Magistrate claiming the right to appear as a witness on his own behalf under section 342 A in disproof of the charges made against him.
The Magistrate rejected the application on the ground that section 342 A could not be applied to pending proceedings which would be according to the procedure laid down in the unamended Code: Held, that on a plain construction of section ii6 of the amending Act which provided for procedure to be followed in pending cases section 342 A was clearly applicable in such cases.
Under the general law also a change in procedure operates retrospectively.
|
ivil Appeal No. 1800(N) of 1974 From the Judgment and Order dated 2.11.73 of the Delhi High Court in C.W. No. 906 of 1973.
S.N. Mehta for the Appellant.
G. Ramaswamy, Additional Solicitor General, G. Venkatesh Rao and A.V. Rangam for the Respondents.
652 The Judgment of the Court was delivered by OZA, J.
This is an appeal on leave under Article 136 of the Constitution.
The appellant is a transporter and it is alleged that he brought goods into the limits of Delhi and were seized within the Union Territory as it was alleged that they were brought in without the payment of terminal tax.
A penalty of ten times of the amount of the terminal tax was also demanded from the appellant and he was informed that if the terminal tax alongwith the penalty is not paid within four days the goods will be sold at his risk.
By a writ petition the appellant challenged this demand before the High Court of Delhi and by the impugned judgment the Delhi High Court dismissed the writ petition and hence the present appeal.
The High Court has considered the law of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the 'Act ') coupled with the provisions contained in the imposition of terminal tax and also examined the legislative competence of the Parliament to enact the law and ultimately came to the conclusion that the law was applicable in the territory.
There was also some controversy raised before the High Court in respect of the facts as to whether the cylin ders on which the duty was demanded were empty or were full and as to whether the appellant stopped its vehicle at the post and was allowed to go and later on he was stopped by the Squad or he got into the territory without payment of tax and was therefore caught but all these controversial questions of facts the High Court refused to consider as the appellant had an opportunity to pursue the remedy under the law where these facts could be investigated and therefore as that was not done and it was a writ petition filed before the High Court, the High Court rightly did not go into the disputed questions of facts.
The only question which was canvassed before the High Court and was considered is the question as to whether this penalty imposed under Section 464 of the Act could be imposed by the taxing authority without a prosecution having been filed before a competent magistrate and the High Court in its judgment dismissed the petition upholding the contention of the Delhi Municipal Corporation and the learned counsel appearing for the appel lant also canvassed that question alone as it was the ques tion on which High Court held against the appellant.
It was contended by learned counsel for the appellant that Sections 463 and 464 both fall in the Chapter "Offences and Penalties".
By referring to the language of Section 464, he contended that in the body of this Section language indicate that what is levied against the appellant is de scribed as "fine".
He also referred to Sections 469 and 470 and contended that according to the scheme of this Chapter, the 653 punishment provided in Section 463 and the penalty (or fine) provided in Section 464 could only be imposed by a Magis trate after a proper trial.
He also contended that the learned Judges of the High Court placing reliance on Section 59 and the notification delegating the functions by the Commissioner to the terminal tax authority came to the conclusion that under Section 464 it is the tax authority who has the jurisdiction to impose the penalty but according to the learned counsel the residuary powers of the Commis sioners under Section 59 are only administrative powers and according to him the High Court was not right in placing reliance on that The main emphasis by the learned counsel was that impo sition of penalty as provided in Section 464 where a wide discretion is given to impose penalty upto ten times of the tax payable itself indicates that the functions of the authority who is expected to exercise the jurisdiction under Section 464 is in the nature of judicial function and there fore it could not have been left to the executive authority of the Commissioner or a delegate to whom the powers may have been delegated.
According to the learned counsel the penalty was not imposed by the competent authority.
Learned counsel for the respondent on the other hand contended that the language used at the heading of the Chapter which starts with Section 461 itself indicates that this Chapter deals with .two types of matters (i) where offences are alleged to have been committed and (ii) where only penalties could be imposed and the scheme of this Chapter indicates that wher ever the offences are alleged to have been committed it has been provided that they will be tried by a competent magis trate and the punishment could only be inflicted by the competent magistrate on conviction of the person for the offences alleged against him.
Whereas wherever penalties are provided it has been provided that where the facts attract the relevant provisions pertaining to penalty the tax plus penalty could be imposed and these penalty provisions nei ther talk of any offence nor talk of conviction before a competent court of a Magistrate.
It was contended that on the basis of this distinction, if the two sections 463 and 464 which are relevant are examined it is clear that Section 464 do not pertain to any offence and therefore the penalty thus imposed under this Section is not a punishment which could only be inflicted under Section 463 after conviction and therefore for imposition of penalty under Section 464 the prosecution of the appellant before a competent magis trate is not at all necessary.
Learned counsel also contend ed that even reading the provisions of Section 470 or 469 do not indicate contrary.
As regards the authority of the tax authority to impose this pen 654 alty, learned counsel referred to the notifications which have been relied on by the High Court and contended that Section 59 confers very wide powers on the Commissioner of Municipal Corporation and he is also authorised to delegate the functions and in accordance with the provisions of law by a notification the functions have been delegated.
The Commissioner had the authority as regards the authority of the tax authority to impose this penalty under Section 464 and it is in this delegated authority that the terminal tax authority has imposed this penalty against the appellant as has been held by this Court.
The only question which arises in this appeal is as to whether penalty as provided in Section 464 of the Act could be imposed by the terminal tax authority or it could not be imposed unless the appellant is convicted and found guilty by a competent Magistrate as is contemplated in Section 463 of the Act.
Section 463 reads: 463: Punishment for offences relating to terminal tax.
"Whoever brings within the Union Territory of Delhi any goods liable to terminal tax without the payment of such tax shall, on conviction, be punishable with imprisonment for a term which may extend to six months or with the fine which may extend to one thousand rupees or with both, and the court trying an offence under this section may, on such conviction, also confiscate the goods in respect of which the offence has been committed.
" Sec. 464 reads: Penalty for evasion of terminal tax: "Where any goods imported into Delhi are liable to the payment of terminal tax, any person, with the intention of evading payment of the tax introduces or attempts to introduce or causes or abets introduction of any such goods within the Union Territory of Delhi, upon which payment of terminal tax due on such introduction, has neither been made nor ten dered, shall be punishable with fine which may extend to ten times the amount of such termi nal tax.
" It is significant that in Sections 463 and 464 the language used is that "a 655 person who brings the goods into the Union Territory of Delhi liable to terminal tax without the payment of tax shall on conviction be punishable." Whereas in Section 464 the Section talks of bringing the goods into the Union Territory on which terminal tax is due and is not tendered or paid a fine which may extend to ten times the amount of terminal tax could be levied.
This different phraseology used in the two Sections clearly go to show that where the ingredients of Section 463 are not in doubt it is open to the corporation authorities to launch a prosecution against the person who introduces the goods without payment of terminal tax and in this event the person on conviction only can be punished but the pun ishment is also imprisonment but the highest limit of fine is limited to Rs. 1,000 whereas under Section 464 neither there is any reference to a conviction nor any reference to the Court of a Magistrate and the only penalty provided is monetary which may extend to ten times.
It is therefore clear that Section 463 refers to a criminal offence if committed, could only be tried by a competent criminal court and on conviction alone the punishment could be imposed but Section 464 is in the nature of a revenue provision where non payment of tax could be remedied by imposition of penal ty and the limit of penalty has been prescribed at ten times of the tax which is payable.
In view of different language used in the two sections and also the language used in the marginal note it is clear that the two can not be said to be same or similar.
Even the heading of the Chapter talks of "Offences and Penalties".
It therefore clearly appears that this chapter deals with two categories of matters; (i) 'offences ' and the other 'penalties ' and the scheme of this Chapter indicates that so far as offences are concerned they could only be tried by a competent criminal court and punishment could only be awarded after conviction whereas so far as penalties are concerned they could be imposed by the taxing authority itself.
Even the language or Sections 470 or 469 does not help the appellant in any manner.
It is no doubt true that as regards the offences, a specific provision has been made in Section 469 for appoint ment of a Municipal Magistrate but in respect of penalties there is no specific provision authorising any officer or authority to exercise jurisdiction under the Section where for evasion of tax, penalty could be levied, like Section 464 but it could not be doubted that Section 59 gives a very wide power to the Municipal Commissioner either to exercise these powers himself 656 or to delegate.
It is not in dispute that in exercise of power under Section 59 the Municipal Commissioner had the authority and exercising the powers under Section 491 of the Act by notification dated September 17, 1973 he delegated the functions under Section 464 to the taxing authorities and it is the conclusion that the taxing authorities were competent under the scheme of this Act to impose the penalty to the tune of ten times of the tax which is payable.
Section 59 of the Act reads: 59: Functions of the Commissioner; "Save as otherwise provided in this Act, the entire executive power for the purpose of carrying out the provisions of this Act other than those pertaining to the Delhi Electric Supply Undertaking and of any other Act for the time being in force which confers, any power or imposes any duty on the Corporation, shall vest in the Commissioner who shall also (a) exercise all the powers and perform all the duties specifically conferred or imposed upon him by this Act or by any other law for the time being in force; (b) prescribe the duties of, and exercise supervision and control over the acts and proceedings of, all municipal officers and other municipal employees other than the Municipal Secretary and the Municipal Chief Auditor and the municipal officers and other municipal employees immediately subordinate to them and subject to any regulation that may be made in this behalf, dispose of all questions relating to the service of the said officers and other employees their pay, privileges, allowances and other conditions of service; (c) on the occurrence or threatened occurrence of any sudden accident or any unforeseen event or natural calamity involving or likely to involve extensive damage to any property of the Corporation, or danger to human fife, take such immediate action as he considers necessary and made a report forth with to the Standing Committee and the Corpo ration of the action he has taken and the reasons for the same as also of the amount of cost, if any, incurred or 657 likely to be incurred in consequence of such action, which is not covered by a budget grant; (d) exercise the powers and perform the duties conferred or imposed by or under this Act upon the General Manager (Electrici ty) in this absence or on failure by him to exercise or perform the same." This Section clearly shows that the Municipal Commissioner had wide powers and he could therefore exercise powers to impose the penalty as contemplated under Section 464.
Sec tion 491 of the Act reads: 491: Power to delegate functions of Commissioner: "The Commissioner may by order direct that any power conferred or any duty imposed on him by or under this Act shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercised and performed also by any municipal officer or other municipal employee specified in the order." This Section authorises the Commissioner to delegate the authority vested in him and it is in exercise of these powers that in fact he had delegated the authority to the tax officer to exercise powers under Section 464.
Under these circumstances therefore the contention advanced by the learned counsel for the appellant that the penalty under Section 464 could not be imposed without a conviction by a criminal court is not sustainable in law.
We therefore see no reason to entertain this appeal.
It is therefore dismissed.
In the circumstances of the case par ties are directed to bear their own costs.
G.N. Appeal dis missed.
| IN-Abs | The appellant, a transporter, brought some goods to Delhi without paying terminal tax.
Under Section 464 of the Delhi Municipal Corporation Act, 1957, a penalty of ten times the amount of terminal tax was demanded from the appellant.
The demand was challenged before the High Court by way of a Writ Petition.
The High Court considered the question as to whether the penalty imposed under section 464 of the Act could be imposed by the taxing authority without a prosecution having been filed before a competent magis trate, and answered it in the affirmative.
This appeal by special leave is against the High Court 's judgment.
On behalf of the appellant, it was contended that Sec tion 464 of the Act gives a wide discretion to impose penal ty upto ten times of the tax payable and as such is a judi cial function which cannot be left to the executive authori ty and hence the authority who imposed the penalty was not competent to do so.
The respondents contended that Section 464 does not pertain to any offence and penalty levied under this section is not punishment; that section 463 provides for punishment after conviction and so, for imposition of penalty under Section 464, the prosecution of the appellant before a competent magistrate is not at all necessary.
It was also contended that Section 59 confers very wide powers on the Commissioner and he is also authorised to delegate the functions, and under such delegated authority the penalty has been imposed under Section 464.
Dismissing the appeal, HELD: 1. Penalty under Section 464 of the Delhi Munici pal Corporation Act, 1957 could be imposed without a convic tion by a 651 criminal court.
The different phraseology used in sections 463 and 464 clearly go to show that where the ingredients of Section 463 are not in doubt it is open to the corporation authorities to launch a prosecution against the person who introduces the goods without payment of terminal tax and in this event the person, on conviction only, can be punished and the punishment is also imprisonment, but the highest limit of fine is limited to Rs.1,000 whereas under Section 464 neither there is any reference to a conviction nor any reference to the Court of a Magistrate and the only penalty provided is monetary which may extend to ten times.
It is therefore clear that Section 463 refers to a criminal of fence if committed, could only be tried by a competent criminal court and on conviction alone the punishment could be imposed but Section 464 is in the nature of a revenue provision where non payment of tax could be remedied by imposition of penalty and the limit of penalty has been prescribed at ten times of the tax which is payable.
In view of different language used in the two sections and also the language used in the marginal note it is clear that the two cannot be said to be same or similar.
It is no doubt true that as regards the offences, a specific provision has been made in Section 469 for appoint ment of a Municipal Magistrate but in respect of penalties there is no specific provision authorising any officer or authority to exercise jurisdiction under the section where for evasion of tax, penalty could be levied, like Section 464, but it could not be doubted that Section 59 gives a very wide power to the Municipal Commissioner either to exercise these powers himself or to delegate.
It is not in dispute that in exercise of powers under Section 59 the Municipal Commissioner had the authority, and exercising the powers under Section 491 of the Act, by notification dated September 17, 1973 he delegated the functions under Section 464 to the taxing authorities.
Hence the taxing authorities were competent under the scheme of this Act to impose the penalty to the tune of ten times of the tax which is pay able.
[655G H; 656A, B]
|
vil Appeal No. 1826 (N) of 1974.
From the Judgment and Order dated 6.4.1972 of the Madhya Pradesh High Court in F.A. No. 23 of 1966.
M.V. Goswami for the Appellants.
U.A. Rana and S.K. Agnihotri for the Respondents.
The Judgment of the Court was delivered by SAIKIA, J.
This plaintiffs ' appeal by special leave is from the appellate Judgment of the Madhya Pradesh High Court dismissing the appeal upholding the Judgment of the trial court dismissing the plaintiffs ' suit on the ground of limitation.
A registered firm Rai Saheb Nandkishore Rai Saheb Ju galki 599 shore (Appellants) was allotted contracts for manufacture and sale of liquor for the calendar year 1959 and for the subsequent period from 1.1.
1960 to 31.3.
1961 for Rs.2,56,200.00 and Rs.4,71,900.00, respectively, by the Government of Madhya Pradesh who also charged 7 1/2 per cent over the auction money as mahua and fuel cess.
As writ petitions challenging the Government 's right to charge this 7 1/2 per cent were pending in the Madhya Pradesh High Court, the Government announced that it would continue to charge it and the question of stopping it was under consid eration of the Government whose decision would be binding on the contractors.
The firm (appellants) thus paid for the above contracts a total extra sum of Rs.54,606.00.
On 17.10.1961 the Under Secretary to Government, M.P., Forest Department, Bhopal wrote the following letter No. 10 130 X/61 (Exhibit D 23) to the Chief Conservator of Forests, Madhya Pradesh, Rewa: "Subject: Levy of cess on liquor contractors.
Under former M.P. Government (Forest Depart ment) memo No. 4595 CR 73 XI dated 25th July, 1953, a royalty at 7 1/2 per cent of the license fee for liquor shops was imposed on liquor contractors to cover the value of mahua & fuel extracted from the reserved or protect ed forests by the contractors for their still.
The M.P. High Court has since decided that the levy of the aforesaid cess is illegal and the cess cannot be recovered from the liquor contractors.
In pursuance of this decision, Government desires that all process es whenever issued or proceedings instituted against liquor contractors for recovery of the mahua or fuel cess should forthwith be with drawn and no revenue recovery certificates should be issued in respect of this cess.
Simultaneously no free supply of mahua or fuel should be permitted by virtue of the imposition mentioned above.
Immediate compliance is requested.
No . .
X/61 Dt.
Bhopal the . . 661 Copy forwarded for immediate compliance to: 600 1.
Conservator of Forests, Bilaspur. 2.
All Divisional Forest Officers, Bilaspur Circle.
Copy to C.F. Raipur Circle for similar auction in this cess levied in any division of his Circle.
" On 24.4.1959 the Madhya Pradesh High Court 's Judgment in Surajdin vs State of M.P., declaring the collection of 7 1/2 per cent illegal was reported in 1960 MPLJ 39.
Even after this decision Government continued to charge 7 1/2 per cent extra money.
Again on 31.8.
1961 the High Court of Madhya Pradesh in N.K. Doongaji vs Collector, Surguja, decided that the charging of 7 1/2 per cent by the Government above the auction money was illegal.
This Judgment was reported in 1962 MPLI 130.
It is the appellants ' case that they came to know about this decision only in or about September 1962.
On 17.10.
1964 they served a notice on Government of Madhya Pradesh under section 80 of the Code of Civil Procedure request ing the refund of Rs.54,606.00, failing which, a suit for recovery would be filed; and later they instituted Civil Suit No. of 1964 in the court of Additional District Judge, Jabalpur on 24.12.1964.
The Government resisted the suit on, inter alia, ground of limitation.
The trial court taking the view that Articles 62 and 96 of the First Schedule to the Limitation Act, 1908 were applicable and the period of limitation began to run from the dates the payments were made to the Government, held the suit to be barred by limi tation and dismissed it.
In appeal, the High Court took the view that Article 113 read with section 17, and not Article 24, of the Schedule to the , was applicable; and held that the limitation began to run from 17.10.
1961 on which date the Government decided not to charge extra 7 1/2 per cent on the auction money, and as such, the suit was barred on 17.12.
1964 taking into consideration the period of two months prescribed by section 80 of the Code of Civil Procedure.
Consequently, the appeal was dismissed.
The appellants ' petition for leave to appeal to this Court was also rejected observing, "it was unfortunate that the peti tioners filed their suit on 24.12.
1964 and as such the suit was barred by time by seven days." Mr. M.V. Goswami, learned counsel for the appellants, submits, inter alia, that the High Court erred in holding that the limitation started running from 17.16.1961 being the date of the letter, Exhibit D 23, which was not communi cated to the appellants or any other contractor and there fore the appellants had no opportunity to know 601 about it on that very date with reasonable diligence under section 17 and the High Court ought to allow atleast a week for knowledge of it by the appellants in which case the suit would be within time.
Counsel further submits that the High Court while rightly discussing that section 17 of the was applicable, erred in not applying that section to the facts of the instant case, wherefore, the impugned Judgment is liable to be set aside.
Mr. Ujjwal A. Rana, the learned counsel for the respond ent, submits, inter alia, that 17.10.2961 having been the date on which the Government finally decided not to recover extra 7 1/2 per cent above the auction .money, the High Court rightly held that the limitation started from that date and the suit was clearly barred under Article 24 or 113 of the Schedule to the ; and that though the records did not show that the Government decision was communicated to the appellants, there was no reason why they, with reasonable diligence, could not have known about it on the same date The only question to be decided, therefore, is whether the decision of the High Court is correct.
To decide that question it was necessary to know what was the suit for.
There is no dispute that 7 1/2 per cent above the auction money was charged by the Government of Madhya Pradesh as mahua and fuel cess, and the High Court subsequently held that it had no power to do so.
In view of those writ peti tions challenging that power, Government asked the contrac tors to continue to pay the same pending Government 's deci sion on the question; and the appellants accordingly paid.
Ultimately on 17.10.1961 Government decided not to recover the extra amount any more but did not yet decide the fate of the amounts already realised.
There is no denial that the liquor contracts were performed by the appellants.
There is no escape from the conclusion that the extra 7 1/2 per cent was charged by the Government believing that it had power, but the High Court in two cases held that the power was not there.
The money realised was under a mistake and without authority of law.
The appellants also while paying suffered from the same mistake.
There is therefore no doubt that the suit was for refund of money paid under mistake of law.
The question is what was the law applicable to the case. 'Nul ne doit senrichir aux depens des autres ' No one ought to enrich himself at the expense of others.
This doctrine at one stage of English common law was remedied by 'indebitatus assumpsit ' which action lay for money "had and received to the use of the plaintiff".
It lay to recover 602 money paid under a mistake, or extorted from the plaintiff by duress of his goods, or paid to the defendant on a con sideration which totally tailed.
On abolition of 'indebit atus assumpsit ', courts used to imply a promise to pay which, however, in course of time was held to be purely fictitious.
Lord Manslied in Moses vs Macferlan, ; at 10 12 explained the juridical basis of the action for money "had and received" thus: "This kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged.
It lies only for money which, 'ex aequo et bono ', the defendant ought to refund; it does not lie for money paid by the plain tiff, which is claimed of him as payable in point of honour and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon a usurious contract, or, for money fairly lost at play; because in all these cases, the defendant may retain it with a safe conscience, though by positive law he was barred from recovering.
But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, (express or implied); or extortion; or oppression; or an undue advan tage taken of the plaintiff 's situation, contrary to laws made for the protection of persons under those circumstances.
In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural jus tice and equity to refund the money." In that case Moses received from Jacob four promissory notes of cash each.
He endorsed these to Macferlan who, by a written agreement, contracted that he would not hold Moses liable on the endorsement.
Subsequently, however, Macferlan sued Moses on the notes in a Court of Conscience.
The Court refused to recognise the agreement, and Moses was forced to pay.
Moses then brought an action against Macferlan in the king 's Bench for money "had and received" to his use.
Lord Manslied allowed him to recover observing as above.
Courts in England have since been trying to formulate a juridicial basis of this obligation.
Idealistic formulations as 'aequum et bonum ' and 'natural justice ' were considered to be inadequate and the 603 more legalistic basis of unjust enrichment is formulated.
The doctrine of 'unjust enrichment ' is that in certain situation it would be 'unjust ' to allow the defendant to retain a benefit at the plaintiff 's expense.
The relatively modern principle of Restitution is of the nature of quasi contract.
But the English law has not yet recognised any generalised right to restitution in every case of unjust enrichment.
As Lord Diplock has said, "there is no general doctrine of "unjust enrichment" recognised in English law.
What it does is to provide specific remedies in particular cases of what might be classed as unjust enrichment in a legal system i.e. based upon the civil law.
" In Sinclair vs Brougham, Lord Haldane said that law could 'de jure ' impute promises to repay whether for money "had and received" otherwise, which may, if made defacto, it would inexorably avoid.
The principle of unjust enrichment requires: first, that the defendant has been 'enriched ' by the receipt of a "benefit"; secondly, that this enrichment is "at the expense of the plaintiff"; and thirdly, that the retention of the enrichment be unjust.
This justifies restitution.
Enrichment may take the form of direct advantage to the recipient wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved.
Another analysis of the obligation is of quasi contract.
It was said; "if the defendant be under an obligation from the ties of natural justice, to refund; the law implies a debt, and give this action rounded in the equity of the plaintiff 's case, as it were, upon a contract (quasi ex contracts) as the Roman law expresses it." As Lord Wright in Fibrosa Spolka vs Fairbairn Lawson, [1943] AC 32 1942 pointed out, "the obligation is as efficacious as if it were upon a contract.
Such remedies are quasi contract or restitution and theory of unjust enrichment has not been closed in English law.
" Section 72 of the Indian Contract Act deals with liabil ity of person to whom money is paid or thing delivered, by mistake or under coercion.
It says: "A person to whom money has been paid, or anything delivered, by mistake or under coer cion, must repay or return it." Illustration (b) to the section is: "A Railway Company refuses to deliver up certain goods to the consignee, except upon the payment of an illegal 604 charge for carriage.
The consignee pays the sum charged in order to obtain the goods.
He is entitled to recover so much of the charge as was illegally excessive.
" Our law having been codified, we have to apply the law.
It is true, as Pollock wrote in 1905 in the preface to the first Edition of Pollock and Mulla 's Indian Contract and Specific Relief Acts: "The Indian Contract Act is in effect . . a code of English law.
Like all codes based on an existing authoritative doctrine, it assumes a certain knowledge of the principles and habits of thought which are embodied in that doctrine.
" It is, therefore, helpful to know "those fundamental notions in the common law which are concisely declared, with or, without modification by the text.
" There is no doubt that the instant suit is for refund of money paid by mistake and refusal to refund may result in unjust enrichment depending on the facts and circumstances of the case.
It may be said that this court has referred to unjust enrichment in cases under section 72 of the Contract Act.
See ; ; and ; The next question is whether, and if so, which provision of the will apply to such a suit.
On this question we find two lines of decisions of this Court, one in respect of civil sulks and the other in respect of peti tions under Article 226 of the Constitution of India.
Though there is no constitutionally provided period of limitation for petitions under Article 226, the limitation prescribed for such suits has been accepted as the guideline, though little more latitude is available in the former.
A tax paid under mistake of law is refundable under section 72 of the .
In Sales Tax Officer vs Kanhaiya Lal, where the respondent, a regis tered firm, paid sales tax in respect of the forward trans actions in pursuance of the assessment orders passed by the Sales Tax Officer for the year 1949 51; in 1952 the Allaha bad High Court held in M/s Budh Prakash Jai Prakash vs Sales Tax Officer, Kanpur, that the levy of sales tax on forward transactions was ultra vires.
The respondent asked for a refund of the mounts paid, filing a writ peti tion under Article 226 of 605 the Constitution.
It was contended for the Sales Tax Author ities that the respondent was not entitled to a refund because (1) the amounts in dispute were paid by the respond ent under a mistake of law and were, therefore, irrecovera ble, (2) the payments were in discharge of the liability under the Sales Tax Act and were voluntary payments without protest, and (3) inasmuch as the monies which had been received by the Government had not been retained but had been spent away by it and the respondent was disentitled to recover the said amounts.
This Court held that the term "mistake" in section 72 of the comprised within its scope a mistake of law as well as a mistake of fact and that, under that section a party is entitled to recover money paid by mistake or under coercion, and if it is established that the payment, even though it be of a tax, has been made by the party labouring under a mistake of law, the party receiving the money is bound to repay or return it though it might have been paid voluntarily, subject, howev er, to questions of estoppel, waiver, limitation or the like.
On the question of limitation, it was held that section 17(1)(c) of the would be applicable and that where a suit will be to recover "monies paid under a mistake of law, a writ petition within the period of limita tion prescribed, i.e., within 3 years ' of the knowledge of the mistake, would also lie.
" It was also accepted that the period of limitation does not begin to run until the plain tiff has discovered the mistake or could, with reasonable diligence, have discovered it.
The money may not be recoverable if in paying and re ceiving it the parties were in pan delicto.
In Kiriri Cotton Co. Ltd. vs Ranchhoddas Keshavji Dewani, , where the appellant company, in consideration of granting to the respondent a sub lease asked for and received from him a premium of Sh.
10,000 and the latter.claimed refund thereof, the Privy Council held that the duty of observing the law was firmly placed by the Ordinance on the shoulders of the landlord for the protection of the tenant, and the appellant company and the respondent were not therefore in pari delic to in receiving and paying respectively the illegal premium, which, therefore, in accordance with established common law principles, the respondent was entitled to recover from the landlord and that the omission of a statutory remedy did not in cases of this kind exclude the remedy by money had and received.
In the instant case also the parties could not be said to be in pari delicto in paying and receiving the extra 7 1/2% per cent.
Had the appellants not paid this amount, they would not have been given the contracts.
In D. Cawasji &.
Co. vs The State of Mysore & Anr.
, ; , the appellants paid certain amount to the Government as 606 excise duty and education cess for the years 195 1 52 to 1965 66 in one case and from 1951 52 to 1961 62 in the other.
The High Court struck down the provisions of the relevant Acts as unconstitutional.
In Writ Petitions before the High Court claiming refund, the appellants contended that the payments in question were made by them under mis take of law; that the mistake was discovered when the High Court struck down the provisions as unconstitutional and the petitions were, therefore, in time but the High Court dis missed them on the ground of inordinate delay.
Dismissing the appeals, this Court held that where a suit would lie to recover monies paid under a mistake of law, a writ petition for refund of tax within the period of limitation would lie.
For filing a writ petition to recover the money paid under a mistake of law the starting point of limitation is from the date on which the judgment declaring as void the particular law under which the tax was paid was rendered.
It was held in D. Cawasji (supra) that although section 72 of the Contract Act has been held to cover cases of payment of money under a mistake of law, as the State stands in a peculiar position in respect of taxes paid to it, there are perhaps practical reasons for the law according different treatment both in the matter of the heads under which they could be recovered and the period of limitation for recovery.
P.N. Bhagwati, J., as he then was, in Madras Port Trust vs Hymanshu Inter national, , deprecated any resort to plea of limitation by public authority to defeat just claim of citizens observing that though permissible under law, such technical plea should only be taken when claim is not well founded.
Section 17(1)(c) of the , provides that in the case of a suit for relief of the ground of mistake, the period of limitation does not begin to run until the plaintiff had discovered the mistake or could with reasonable diligence, have discovered it.
In a case where payment has been made under a mistake of law as contrasted with a mistake of fact, generally the mistake become known to the party only when a court makes a declaration as to the invalidity of the law.
Though a party could, with reasonable diligence, discover a mistake of fact even before a court makes a pronouncement, it is seldom that a person can, even with reasonable diligence, discover a mistake of law before a judgment adjudging the validity of the law.
E.S. Venkataramiah, J., as his Lordship then was, in Shri Vallabh Glass Works Ltd. vs Union of India, ; , where the appellants claimed refund of excess duty paid under Central Excise and Salt Act, 1944, laid down that the excess amount paid by the appellants would have become refundable by virtue of section 72 of the 607 if the appellants had filed a suit within the period of limitation; and that section 17(1)(c) and Article 113 of the would be applicable.
In Commissioner of Sales Tax, U.P.v.
M/s Auriaya Chamber of Commerce Allahabad; , , the Supreme Court in its decision dated May 3, 1954 in Sales Tax Officer vs Budh Prakash Jai Prakash, [1954] 5 STC 193 having held tax on forward contracts to be illegal and ultra vires the U.P. Sales Tax Act, and that the decision was applicable to the assessee 's case, the assessee filed several revisions for quashing the assessment order for the year 1949 50 and for subsequent years which were all dismissed on ground of limitation.
In appeal to this Court Sabyasachi Mukharji, J. while dismissing the appeal held that money paid under a mistake of law comes within mistake in section 72 of the Contract Act; there is no question of any estoppel when the mistake of law is common to both the assessee and taxing authority.
His Lordship observed that section 5 of the Limitation Act, 1908 and Article 96 of its First Schedule which prescribed a period of 3 years were applicable to suits for refund of illegally collected tax.
In Salonah Tea Co. Ltd. & Ors.
vs Superintendent of Taxes, Nowgong and Ors.
, ; , the Assam Taxa tion (on Goods carried by Road or Inland Waterways) Act, 1954 was declared ultra vies the Constitution by the Supreme Court in Atiabari Tea Co. Ltd. vs State of Assam, ; A subsequent Act was also declared ultra vires by High Court on August 1, 1963 against which the State of Assam and other respondents preferred appeals to Supreme Court.
Meanwhile the Supreme Court in a writ petition Khyer bari Tea Co. Ltd. vs State of Assam, ; , declared on December 13, 1963 the Act to be intra vires.
Consequently the above appeals were allowed.
Notices were, therefore, issued requiring the appellant under section 7(2) of the Act to submit returns.
Returns were duly filed and assessment orders passed thereon.
On July 10, 1973, the Gauhati High Court in its Judgment in Loong Soong Tea Es tate 's case, Civil Rule No. 1005 of 1969, decided on July 10, 1973, declared the assessment to be without jurisdic tion.
In November, 1973 the appellant filed writ petition in the High Court contending that in view of the decision in Loong Soong Tea Estate 's case he came to know about the mistake in paying tax as per assessment order and also that he became entitled to refund of the amount paid.
The High Court set aside the order and the notice of demand for tax under the Act but declined to order refund of the taxes paid by the appellant on the ground of delay and laches as in view of the High Court it was possible for the appellant to know about 608 the illegality of the tax sought to be imposed as early as in 1963, when the Act in question was declared ultra vires.
Allowing the assessee 's appeal, Mukharji, J. speaking for this Court held: "In this case indisputably it appears that tax was collected without the authority of law.
Indeed the appellant had to pay the tax in view of the notices which were without juris diction.
It appears that the assessment was made under section 9(3) of the Act.
Therefore, it was without jurisdiction.
In the premises it is manifest that the respondents had no authority to retain the money collected with out the authority of law and as such the money was liable to refund.
" The question there was whether in the application under article 226 of the Constitution, the Court should have refused refund on ground of laches and delay, the case of the appel lant having been that it was after the Judgment in the case of Loong Soong tea Estate, the cause of action arose.
That judgment was passed in July, 1973.
The High Court was, therefore, held to have been in error in refusing to order refund on the ground that it was possible for the appellant to know about the legality of the tax sought to be imposed as early as 1973 when the Act in question was declared ultra vires.
The Court observed: "Normally speaking in a society governed by rule of law taxes should be paid by citizens as soon as they are due in accordance with law.
Equally, as a corollary of the said statement of law it follows that taxes col lected without the authority of law as in this case from a citizen should be refunded because no State has the right to receive or to retain taxes or monies realised from citizens without the authority of law.
" On the question of limitation referring to Suganmal vs State of M.P., AIR 1965 SC 1740, and Tilokchand Motichand vs H.B. Munshi, , his Lordship observed that the period of limitation prescribed for recovery of money paid by mistake started from the date when the mistake was known.
In that case knowledge was attributable from the date of the Judgment in Loong Soong Tea Estate 's case on July 10, 1973.
There had been statement that the appellant came to know of that matter in October, 1973 and there was no denial of the averment made.
On that ground, the High Court was held to be in 609 error.
It was accordingly held that the writ petition filed by the appellants were within the period of limitation prescribed under article 113 of the Schedule read with section 23 of the .
It is thus a settled law that in suit for refund of money paid by mistake of law, section 72 of the Contract Act is applicable and the period of limitation is three years as prescribed by Article 113 of the Schedule to the Indian and the provisions of section 17(1)(c) of that Act will be applicable so that the period will begin to run from the date of knowledge of the particular law, where under the money was paid, being declared void; and this court be the date of judgment of a competent court declaring that law void.
In the instant case, though the Madhya Pradesh High Court in Surajdin vs State of M.P., declared the collection on 7 1/2% per cent illegal and that decision was reported in , the Government was still charging it saying that the matter was under consideration of the Government.
The final decision of the Government as stated in the letter dated 17.10.
1961 was purely an internal communication of the Government copy whereof was never communicated to the appellants or other liquor contractors.
There could, there fore, be no question of the limitation starting from that date.
Even with reasonable diligence, as envisaged in section 17(1)(c) of the , the appellants would have taken at least week to know about it.
Mr. Rana has fairly stated that there was nothing on record to show that the appellants knew about this letter on 17.10.
1961 itself or within a reasonable time thereafter.
We are inclined to allow at least a week to the appellants under the above provision.
Again Mr. Rana has not been in a position to show that the statement of the appellants that they knew about the mistake only after the judgment in Doongaji 's case reported in , in or about September, 1962, whereafter they issued the notice under section 80 C.P.C. was untrue.
This statement has not been shown to be false.
In either of the above cases, namely, of knowledge one week after the letter dated 17.10.
1961 or in or about September, 1962, the suit would be within the period of limitation under Article 113 of the Schedule to the .
In the result, we set aside the Judgment of the High Court, allow the appeal and remand the suit.
The records will be sent down forthwith to the trial court to decide the suit on merit in accordance with law, expeditiously.
The appellants shall be entitled to the costs of this appeal.
R.N .J.
Appeal allowed.
| IN-Abs | The appellant firm was allotted contracts for manufac ture and sale of liquor for the year 1959 and for the subse quent periods from 1.1.
1960 to 31.3.1961 for Rs.2,56,200 and Rs.4,71,900 respectively by the M.P. Govt.
who also charged 7 1/2% over the auction money as mahua and fuel cess.
As writ petitions challenging the government 's right to charge this 7 1/2% were pending in the M.P. High Court, the Govt.
announced that it would continue to charge it and the question of stopping it was under consideration of Govt.
whose decision would be binding on the contractors.
The appellant firm paid for the above contracts a total extra sum of Rs.54,606.00.
On 24.4.1959 the M.P. High Court in Surajdin vs State of M.P., declared the collection of 7 1/2% as illegal.
Even after this decision the Govt.
continue to charge 7 1/2% extra money.
Again on 31.8.1961, the High Court of Madhya Pradesh in N.K. Doongaji vs Collector, Surguja, decided that charg ing of 7 1/2% by the Govt.
above the auction money was illegal.
Appellants came to know of this decision only in or about September, 1962.
On 17.10.1964 the appellants gave a notice under section 80 C.P.C. to the Govt.
of Madhya Pradesh requesting for the refund of Rs.54,606.00.
failing which a suit for recovery would be filed and later they instituted a civil suit in the court of additional District Judge, Jabalpur on 24.12.1964.
The Govt.
resisted the suit inter alia on the ground of limitation.
The Trial Court held that the suit was barred by 597 limitation and dismissed it.
The High Court also dismissed the appeal.
The appellants then came up in appeal by special leave.
While allowing the appeal and remanding the suit to the Trial Court for decision on merits.
This Court, HELD: 'Nul ne doit senrichir aux depens des autres ' No one ought to enrich himself at the expense of others.
This doctrine at one stage of English common Law was remedied by 'indebitatus assumpsit ' which action lay for money ' had and received to the use of the plaintiff '.
It lay to recover money paid under a mistake or extorted from the plaintiff by duress of his goods, or paid to the defendant on a consider ation which totally failed.
On abolition of 'indebitatus assumpsit ', courts used to imply a promise to pay which, however, in course of time was held to be purely fictitious.
[601G 602A] Courts is England have since been trying to formulate a juridical basis of this obligation.
Idealistic formulations as 'aequum et bonum ' and 'natural justice ' were considered to be inadequate and the more legalistic basis of unjust enrichment is formulated.
The doctrine of 'unjust enrich ment ' is that in certain situations it would be 'unjust ' to allow the defendant to retain a benefit at the plaintiff 's expense.
The relatively modern principle of restitution is of the nature of quasi contract.
But the English law has not yet recognised any generalised right to restriction in every case of unjust enrichment.
[602H 603B] The principle of unjust enrichment requires; first, that the defendant has been 'enriched ' by the receipt of a "benefit"; secondly.
that this enrichment is "at the expense of the plaintiff" and thirdly, that the retention of the enrichment be unjust.
This justified restitution.
Enrichment may take the form of direct advantage to the recipient wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved.
[603C 603D] There is no doubt that the suit in the instant case, is for refund of money paid by mistake and refusal to refund may result in unjust enrichment depending on the facts and circumstances of the case.
[604D] Though there is no constitutionally provided period of limitation for petitions under Article 226, the limitation prescribed for such suits has been accepted as the guide line, though little more latitude is available in the for mer.
[604F] For filing a writ petition to recover the money paid under a mis 598 take of law the starting point of limitation is three years is prescribed by Article 113 of the Schedule to the Indian and the provisions of section 17(1)(c) of the Act will be applicable so that the period will begin to run from the date of knowledge of the particular law, where under the money was paid, being declared void and this could be the date of the judgment of a competent court declaring that law void.
[609B] Moses vs Macferlan, ; at 1012; Sin clair vs Brougham, ; Fibrosa Spolka vs Fair bairn Lawson; , = ; ; Sales Tax Officer vs Kanhaiya Lal, ; M/s Budh Prakash Jai Prakash vs Sales Tax Officer, Kanpur, ; Kiriri Cotton Co. Ltd. vs Ranchhoddas Keshavji Dewani, ; D. Cawasji & Co. vs The State of Mysore & Anr., ; ; Madras Port 7rust vs Hymanshu Inter national, ; Shri Vallabh Glass Works Lid.
vs Union of India; , ; Commissioner of Sales Tax, U.P.v.
M/s. Auriaya Chamber of Commerce Allahabad; , ; Sales Tax Officer vs Budh Prakash Jai Prakash, [1954] 5 STC 193; Salonah Tea Co. Ltd. & Ors.
vs Superin tendent of Taxes, Nowgong & Ors.
, ; ; Atiabari Tea Co. Ltd. vs State of Assam, ; ; Khyerbari Tea Co. Ltd. vs State of Assam, ; ; Loong Soong Tea Estate 's, case decided on July 10, 1973; Suganmal vs State of M.P., AIR 1965 SC 1740; Tilokchand Motichand vs H.B. Munshi, , referred to.
|
vil Appeal Nos.
6 147 6 148 of 1983.
From the Judgment and Order dated 17.1.83 of the Rajas than High Court in D.B. Spl.
Appeal No. 43 of 1978 & D.B.S.A. No. 14 of 1975.
Sharma for the Appellants.
672 Dalveer Bhandari, K.R.R. Pillai, Surya Kant, P.T. Mathur and Sambandhan for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The question for consideration in these two appeals is whether the creation of two cadres, consist ing of Nursing Superintendent Grade I, Nursing Superintend ent Grade II, Assistant Nursing Superintendent and Nursing Tutor (hereinafter called 'nursing cadre ') and of Compounder Grade I, Compounder Grade 1I and Compounder Grade III (hereinafter called 'compounders cadre ') under the Rajasthan Medical and Health Subordinate Service Rules, 1965 (herein after called 'Rules '), is arbitrary and as such violative of Articles 14 and 16 of the Constitution of India.
The relevant facts are as under.
Bansi Lal Sharma was appointed as Male Nurse in 1941.
He qualified Punjab Nursing Registration Council Examination in 1944 and was confirmed as Compounder Grade I in 1950.
He was officiating as Sister Tutor when the Rules came into force in March, 1966.
He filed writ petition in the Rajasthan High Court in 1971 challenging the creation of two separate cadres under the rules.
It was pleaded that hitherto there was combined channel of promotion for compounders and nurses but the rules have arbitrarily deprived compounders Grade I of their right to promotion to the higher posts of Assistant Nursing Superintendent, Nursing Superintendent Grade II and Nursing Superintendent Grade I.
It was further urged that recruitment to the nursing cadre was confined to females alone which resulted in discrimination on the ground of sex and as such violative of Article 15 of the Constitution of India.
Kan Singh, J. rejected the contentions of Sharma and held that there was no arbitrariness in creating two sepa rate cadres for nurses and compounders.
The learned Judge further found as a fact that males and females were both eligible for recruitment to the nursing cadre and as such repelled the attack on ground of Article 15.
Shanti Lal Jain, in the second case, was appointed compounder Grade IV in 1955.
He was confirmed as compounder Grade I in the year 1959 and in March, 1966 when the rules were enforced, he was holding the post of Sister Tutor on officiating basis.
He also challenged the vires of the Rules on the grounds of Articles 14, 15 and 16 of the Constitution of India.
Dwarka Prasad, J. dismissed the writ petition 673 holding that creation of two separate cadres did not in fringe the equality clause and also that there was no dis crimination on the ground of sex.
Both Sharma and Jain filed separate special appeals before a Division Bench of the Rajasthan High Court.
The Division Bench upheld the findings of learned single Judges on Article 15 in the following terms: "Both the learned single Judges were, in our opinion, fight in holding that the Rules did not exclude the appointment of males on the posts mentioned in group A of the Schedule and the said categorisation of group A and E could not be held to be unconstitutional on the ground that it was based on sex alone.
The argument of Shri Mridul that the Rules were violative of the provisions of Article 15 of the Constitution cannot, therefore, be accept ed.
" So far as the attack on the grounds of Articles 14 and 16 was concerned, the Division Bench set aside the judgments of learned single Judges and found that there was no justi fication for creating separate cadres and denying channel of promotion to compounders Grade I to the higher posts in the nursing cadre.
The Bench held the Rules to be arbitrary and violative of Articles 14 and 16 of the Constitution of India and directed the State Government to consider Sharma and Jain for promotion to the post of Assistant Nursing Superin tendent and other higher posts from the dates when they filed writ petitions in the High Court.
This is how these two appeals by way of special leave, filed by the State of Rajasthan, are before us.
There is no material on the record to show as to what was the cadre composition before coming into force of the Rules.
Prior to 1966 there was no statutory Rules pertaining to the service.
No executive order creating cadres in the department or a joint seniority list indicating common cadre for nurses and compounders have been produced.
Simply be cause Sharma and Jain were working as Sister Tutors in officiating capacity in 1966 it cannot be assumed that there was a joint cadre of compounders and nurses.
Even if we assume that prior to coming into force of the Rules there was a combined cadre of nurses and compounders, Articles 14 and 16 of the Constitution do not forbid the State Govern ment from creating new cadres, bifurcating one cadre into two or more or uniting two or more cadres into one.
The creation of cadres in the service of the State is a matter which has to be left entirely to the State Government.
In Reserve Bank of India vs N.C. Paliwal & others; , this Court held as under: 674 "It is now well settled, as a result of the decision of this Court in kishori Mohanlal Bakshi vs Union of India, A.I.R. 1962 S.C. 1139 that Article 16 a fortiori also Article 14 do not forbid the creation of different cadres for government service.
And if that be so, equally these two Articles cannot stand in the way of the State integrating different cadres into one cadre.
It is entirely a matter for the State to decide whether to have sever al different cadres or one integrated cadre in its services.
That is a matter of policy which does not attract the applicability of the equality clause.
" The High Court has, by strained reasoning, come to the conclusion that the nurses and compounders form one class and as such treating them differently by creating two sepa rate cadres is discriminatory and violative of Articles 14 and 16 of the Constitution of India.
To appreciate the High Court reasoning we may reproduce Rule 4(1) of the Rules and relevant part of Schedule to the Rules: "4. Composition and Strength of the Service (1) The service shall consist of X eleven groups.
The fight of promotion shall be confined to each group except the extent specified in the Schedule.
section Name of Source of Minimum Post from Minimum remarks No. Post recruitment qualification which pro qualifica with and motion is tion & percentage experience to be experience for direct made required recruitment for promotion 1 2 3 4 5 6 7 GROUP A 1.
Nursing 50% by 1.
R.N.C.R.
Nursing 3 years Supdt.
direct or its Supdt. service as Gr.
I recruitment equivalent Gr.
II Nursing with per qualification Superin centage & recognised tendent 50% by by Govern Gr.
II promotion ment 2.
Regd. 'A ' 675 grade Nurse 3.
Sister Tutor course passed 4.12 years experience out of which 4 years must be as Sister Tutor & 3 years as Nursing Supdt.
II or at an equi valent post 2.
Nursing 25% by 1.
R.N.C.R. Asstt. 2 years Supdt.
direct or its equi Nursing service as Gr.
II recruitment valent quaIi Supdt.
Asstt.
75% by fication re Nursing promotion cognised by Supdt.
Government 2.
Regd. 'A ' Grade Nurse 3.
Sister Tutors ' course passed 4. 10 years ' experience out of which 4 years ' should be as sisters Tutor & 3 years as Asstt.
Nursing Supdt.
or at an equi valent post.
676 3.
Asstt.
25% by 1.
R.N.C.R.
Sister 2 years Nursing direct or its equi or Nursing service as Supdt.
recruitment valent quali Tutor Sister or and 75% by fication re Nursing promotion cognised by Tutor Government 2.
Regd. 'A ' grade Nurse.
Sister Tutors course passed 4.7 years exper ience out of which at least 3 years should be as Nursing Tutor 1 .
Sister or 25% by 1.
R.N .C.R.
Staff 5 years Nursing direct or its equi Nurse/ service Tutor recruitment valent quaIi Comp.
as Staff and 75% by fication re Gr.
II Nurse/ promotion cognised by Comp.
Government II or 4 2.Regd. 'A ' years ser vice as grade Nurse Staff Nurse 3.
Sister out of Tutors which 3 Course passed.
years con tinuous 4.3 years service experience should be as staff in opera Nurse/Comp.
tion Thea Gr.
II tre or 3 years ser vice as Staff Nurse with Sister Tutor Certif icate 677 Note: For the post of Sister Tutor, Sister Tutor 's Certificate will be compulsory 5.
Staff 75% by PNRC or Midwife &7 years Nurse direct its equi Auxiliary service as Comp.
recruitment valent Nurse Midwife or Gr.
II & 25% by qualification Midwife Auxiliary promotion Recognised Nurse by Midwife Government 6, Midwife 100% by Auxiliary & Auxi direct Nurse liary Nurse recruitment Midwifery Midwife trained and VIII standard passed GROUP 'E ' 1.
Compoun 100% by Compoun PNRC or der Gr.
I promotion der Gr.
II its equi valent qualifica tion recog nised by Govern ment with 5 years service as Compoun der Gr.
Compoun do Compoun PNRC or der Gr.
II der Gr.
III its equi valent qualifica tion recog nised by Govern ment 678 3.
Compoun 100% by Matriculate der Gr.
III direct or equivalent recruitment qualification recognised by Government.
A bare reading of the Rules show that the composition of the two cadres including designations, qualifications and methods of appointment to various posts, is entirely differ ent.
We do not agree with the High Court that nurses and compounders belong to one class and as such must be encadred together.
The attention of the High Court was invited to wards the qualifications prescribed for the nursing cadre and it was argued that the compounders do not possess the said qualifications and hence are not eligible to be consid ered for promotion in nursing cadre.
The High Court repelled the argument with the following reasoning: "Special qualification in midwifery is re quired for the purpose of maternity cases only.
But maternity cases form only a small part of the patients undergoing treatment in the hospitals and special qualification in midwifery is not required for other patients.
In this regard it may be pointed out that under the original Schedule to the Rules a person having P.N.C.R. or its equivalent qualification recognised by Government was eligible for direct recruitment or the post of Staff nurse and it was not necessary that he should be midwifery trained.
Such a person on being appointed as Staff nurse could be pro moted to all the higher nursing posts enumer ated in group 'A ' of the schedule.
In other words, the absence of special qualification in midwifery would not preclude a person who was directly recruited as Staff nurse being pro moted to the higher posts.
There is no reason why the same person should be denied this right if he, instead of joining as staff nurse, joined as compounder Gr.
" We do not agree with the approach of the High Court.
It is not for the High Court to assume the extent of maternity cases which are treated in the hospitals or to lay down that compounders though not qualified to treat maternity cases must be equated with nurses because they can treat other type of cases.
The High Court further errored when it equat ed the qualifications of Punjab Nursing Registration Certif icate with that of matriculation for holding that staff nurses and com 679 pounders Grade III possess the same qualifications for entry into service.
On the face of it Nursing Certificate is a specialised qualification and cannot be equated with matric ulation.
We may mention that by amending the Rules in 1978 an opening has been provided for compounders Grade 11 to enter the nursing cadre by competing with the staff nurses for promotion to the post of Sister Nursing Tutor.
The compound ers Grade II have thus been provided with two channels of promotion, one in their own cadre and the other to the nursing cadre.
Thus the grievance of the compounders that they were denied channel of promotion of the higher posts m nursing cadre has also been removed.
We, therefore, see no legal or equitable grounds to sustain the judgment of the High Court.
We accept the ap peals and set aside the judgment of the Division Bench of the High Court.
Affirming the judgments of the learned single Judges we hold that the Rules are constitutionally valid.
There shall be no order as to costs.
R.S.S. Appeals allowed.
| IN-Abs | Bansi Lal Sharma, respondent in one appeal, was appoint ed as Male Nurse in 1941 and was officiating as Sister Tutor in March 1966 when the Rajasthan Medical and Health subordi nate Service Rules, 1965 came into force.
Shanti Lal Jain, respondent in the second appeal, was appointed as Compounder Grade I in the year 1959 and was holding the post of Sister Tutor in March 1966.
In their separate petitions fried in the Rajasthan High Court, the respondents challenged the creation of two separate cadres Nursing Cadre and Compound ers Cadre under the Rules as arbitrary and as such viola tive of Articles 14, 15 and 16 of the Constitution of India.
It was pleaded that hitherto there was combined channel of promotion for compounders and nurses but the Rules had arbitrarily deprived Compounders Grade I of their right to promotion to higher posts of Assistant Nursing Superintend ent and Nursing Superintendent Grade II/Grade I.
It was further urged that recruitment to the Nursing Cadre was confined to females alone which resulted in discrimination on the ground of sex.
The writ petitions were dismissed by the learned Single Judges who held that creation of two separate cadres was not arbitrary, did not infringe the equality clause, and was not discriminatory on the ground of sex. 'The Division Bench, on appeal, upheld the findings of the learned Single Judges on Article 5 but set aside their judgments and found that there was no justification for creating separate cadres and deny ing channel of promotion to Compounders Grade I to the higher posts in the Nursing Cadre.
The Division Bench ac cordingly held the Rules to be arbitrary and violative of Articles 14 and 16 of the Constitution.
Allowing the appeals filed by the State, this Court, 671 HELD: 1.
Prior to 1966 there was no statutory Rules pertaining to the service.
No executive order creating cadres in the department or a joint seniority list indicat ing common cadre for nurses and compounders have been pro duced.
[673F] 2.
Even assuming that prior to coming into force of the Rules there was a combined cadre of nurses and compounders, Articles 14 and 16 of the Constitution do not forbid the State Government from creating new cadres, bifurcating one cadre into two or more, or uniting two or more cadres into one.
The creation of cadres in the service of the State is a matter which has to be left entirely to the State Govern ment.
[673G H] Reserve Bank of India vs N.C. Paliwal & Ors., ; ; referred to.
A bare reading of the Rules show that the composition of the two cadres including designations, qualifications and methods of appointment to various posts, is entirely differ ent.
This Court does not agree with the High Court that Nurses and Compounders belong to one class and as such must be encadred together.
[678B] 4.
It is not for the High Court to assume the extent of maternity cases which are treated in the hospitals or to lay down that compounders though not qualified to treat maternity cases must be equated with nurses because they can treat other type of cases.
[678G] 5.
By amending the Rules in 1978 an opening has been provided for compounders Grade II to enter the Nursing cadre by competing with the staff nurses for promotion to the post of Sister/Nursing Tutor.
The Compounders Grade II have thus been provided with two channels of promotion, one in their own cadre and the other to the Nursing Cadre.
Thus the grievance of the Compounders that they were denied channel of promotion to the higher posts in Nursing Cadre has also been removed.
[679B C]
|
ivil Appeal No. 331 of 1978.
From the Judgment and Order dated 3.9.1976 of the Cal cutta High Court in Appeal from Original decree No. 407 of 1974.
B. Sen, A.K. Verma and section Suikumaran for the Appellants.
Tapash Chandra Ray and H.K. Puri for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave arises out of a suit filed by the appellants for eviction of the respondent tenant (hereinafter referred to as the Corpora tion) from certain premises on Lalbazar Street, Calcutta, on the ground of sub letting.
The City Civil Court, Calcutta, decreed the suit, but on appeal by the tenant Corporation, the Calcutta High Court reversed the judgment and dismissed the suit.
Admittedly the defendant Corporation was inducted as a tenant under a registered deed of lease dated 23.4.1948 for a period of three years from 1.5.1948.
After expiry of the period in 1951, the Corporation continued in possession, and by holding over became a month to month tenant.
The premises consists of a big room, described as room No. 3, along with a small room for the use of a Darwan (porter), staying there as guard.
The big room was, from time to time, leased out by the tenant Corporation in portions to differ ent subtenants and in 1960 the landlord brought a suit, registered as Ejectment Suit No. 978 of 1960, for the evic tion of the Corporation on several grounds including sub letting.
In the meantime West Bengal Premises Tenancy Act, 1956 had been enacted, and the provisions of section 13(1)(a) which are in the following terms, were relied on by the parties: "section 13.
Protection of tenant against evic tion.
(1) Notwithstanding anything to the contrary in any other law, no 635 order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely: (a) where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sub lets in whole or in part the premises held by him . ; . " 3.
The tenant Corporation contended that it was permit ted to create sub leases under clause 6 of the lease docu ment which is quoted below and it cannot, therefore, be accused of sub letting without the consent of the landlords: "That the lessees shall use the demised prem ises as office in connection with their busi ness and shall be entitled to sublet the portion which may not be used by them.
" It was asserted on behalf of the tenant Corporation that all the subtenants had been inducted in the premises in question in pursuance of the aforesaid permission and before the expiry of the lease period in 1951.
The City Civil Court decided the issue ,n favour of the tenant Corporation on the ground that all the sub tenancies had been created within the period covered by the lease deed and before coming in force of the West Bengal Premises Tenancy Act, 1956.
The suit was held to be not maintainable also on the ground that a legally valid notice terminating the tenancy had not been served on the tenant.
The suit was thus dismissed on 30.8.
1962 by the judgment Ext.
B(2). 4.
The present suit was filed in 1972 alleging that the tenant Corporation has, without the consent of the land lords, created fresh sub tenancies in the premises in favour of other sub tenants after the dismissal of the earlier suit.
The case is that after the original lease exhausted itself by efflux of time, and otherwise also came to an end by the landlords ' notice terminating it, the general permis sion under clause 6 of the lease deed, mentioned above, also disappeared.
Alternatively the appellants have contended that even assuming that the term in clause 6 continues to bind the parties, it does not authorise the respondent Corporation to sub let the entire premises.
The dominant purpose of the lease was actual user by the tenant itself for the purpose of running its office and clause 6 permitted it to sub let 636 only such portion which was left unused as surplus.
The appellants have also alleged default of payment of rent, but the plea has been rejected by the trial court and has not been pressed before us.
The suit was defended by the respondent Corporation contending that as held in the earlier suit the defendant was and is entitled to grant sub tenancies, and the plain tiffs ' case is fit to be dismissed.
Reliance was placed, besides the plea of res judicata, on the language of clause 6 which according to the defendant continues to bind the parties.
The City Civil Court rejected the defendant 's case of res judicata and agreeing with the plaintiffs on the question of sub letting, decreed the suit.
It held that a number of sub tenants who were in possession of the premises at the time of the earlier suit have been substituted later by another set of sub tenants after the coming into force of the Act.
The learned Judge also agreed with the plaintiffs that the entire premises was let out to sub tenants which was not consistent with the terms of the permission as mentioned in clause 6.
The Court, holding that the tenant had violated the provisions of the 1956 Act, passed a decree for eviction in favour of the plaintiffs.
The tenant Corpo ration appealed before the Calcutta High Court.
The High Court disagreed with the City Civil Court on the interpretation of clause 6 of the lease deed, and held that by reason of the judgment in the earlier suit, the present suit was barred by the rule of res judicata.
The appeal was, accordingly, allowed and the suit dismissed.
Mr. B. Sen, the learned counsel appearing in support of the appeal contended that since large portion of the disputed property was sub let to fresh sub tenants after the institution of the earlier suit of 1960, there was no scope for applying the doctrine of res judicata to the present litigation.
He inter alia argued that having regard to the change in the law brought about by the 1956 Act and special ly in view of the provisions of sections 13, 14 and 16, the appellants are entitled to a decree.
The factual position is that there are 16 sub ten ants as mentioned in Annexure B to the plaint who are occu pying the disputed room now.
Out of them 5 had been inducted before the 1960 suit and were parties thereto (as was right ly pointed out by the respondent Corporation in its applica tion dated 17.12.1973 for amendment of the written state ment).
The other 11 sub lessees were let in after the earli er suit, when the 1956 Act was in force.
The question is whether the creation of these sub tenancies violated the provisions of the Act.
637 In the earlier suit all the sub lesses were inducted during the period the lease was operative, i.e., much before the present Act was passed.
The question of violation of the provisions of the present Act, therefore, did not arise there.
It follows that so far this issue is concerned the earlier judgment can not operate by way of res judicata.
The main question which remains to be decided is whether in the circumstances, the plaintiffs ' case, based on alleged violation of the Act can be accepted.
section 14 enjoins that after the commencement of the Act no tenant shall, without the previous consent in writing of the landlord, sub let the whole or any part of the premises held by him as a tenant; or transfer or assign his rights in the tenancy or in any part thereof.
According to Mr. Tapas Ray, the learned counsel of the respondent Corporation, clause 6 of the lease deed, which continued to bind the parties by reason of the Corporation holding over, must be treated to contain the necessary consent of the appellants.
As has been seen earli er, this clause granted a general permission to the tenant to induct a sub tenant.
Can such a provision in general terms satisfy the requirements of the Act? Or, as has been suggested on behalf of the appellant, the consent contem plated by the Act has to be specific in regard to each sub lease? 10.
section 13 protects a tenant from eviction except on the grounds, enumerated therein and one of the grounds in clause (a) of sub section
(1) is in the following terms: "(a) where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sub lets in whole or in part the premises held by him;" The language of Ss. 13 and 14 by itself does not resolve the issue.
However, the provisions of section 16 which is quoted below clearly indicate that permission to the tenant to sub let in general terms can not be deemed to be consent for the purposes of Ss. 13 and 14: "section 16 Creation and termination of sub tenan cies to be notified (1) Where after the commencement of this Act, any premises are sub let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant and every sub tenant to whom the premises are sub let shall give notice to the landlord in the prescribed manner of the creation of the sub tenancy within one 638 month from the date of such sub letting and shall in the prescribed manner notify the termination of such subtenancy within one month of such termination (2) Where before the commencement of this Act, the tenant with or without the consent of the landlord, has sub let any premises either in whole or in part, the tenant and every sub tenant to whom the premises have been sub let shall give notice to the landlord of such sub letting in the prescribed manner (within six months) of the commencement of this Act and shall in the prescribed manner notify the termination of such sub tenancy within one month of such termination (3) Where in any case mentioned in sub section (2) there is no consent in writing of the landlord and the landlord denies that he gave oral consent, the Controller shall, on an application made to him in this behalf either by the landlord or the sub tenant within two months of the date of the receipt of the notice of sub letting by the landlord or the issue of the notice by the sub tenant, as the case may be, by order declare that the ten ant 's interest in so much of the premises as has been sub let shall cease and that the subtenant shall become a tenant directly under the landlord from the date of the order.
The Controller shall also fix the rents payable by the tenant and such sub tenant to the landlord from the date of the order.
Rents so fixed shall be deemed to be fair rent for purposes of this Act.
" It is plain from the above that the Act contemplates that while one sub tenant may be evicted another may continue in the premises as a tenant directly under him, depending on the circumstances.
We are, therefore, of the view that previous consent in writing of the landlord with respect to each sub letting separately is essential and a general authority to the tenant in this regard will not be suffi cient in law.
Our view is supported by the observations in M/s Shalimar Tar Products Ltd. vs H.C. Sharma and Others, ; ; a case arising under the Delhi Rent Control Act.
An examination of Ss. 14(1)(b), 16, 17 and 18 of the Delhi Rent Control Act would show that the two Acts (West Bengal Act and the Delhi Act) are similar so far the present question is concerned.
In the present case, since it is not suggested on behalf of the respondent that consent of the appellants was obtained specifically for each of the sub tenancies, the respondent Corporation 639 must be held to have violated section 14.
The appellants have thus, established the ground mentioned in section 13(1)(a) and are entitled to succeed.
None of the sub tenants has been impleaded in the present suit, but as it is not the case of the tenant Corpo ration that any of them had sent any notice to the plain tiffs, the suit, so far the present respondent is concerned, can not fail on the ground of their non impleading.
However, the sub tenants can not be bound by the finding in this suit that they have failed to serve a notice as prescribed by the Act on the plaintiffs and will be entitled to be heard if and when the plaintiffs seek their eviction.
So far the sub tenants who had been inducted in the premises earlier and were parties to the 1960 suit may have still a better claim on the strength of the decree in their favour and may insist that they would be entitled to continue in possession as tenants directly under the plaintiffs.
For the reasons mentioned above, the decision of the High Court is set aside and the decree of eviction passed by the City Civil Court against the respondent Corporation is restored.
The appeal is accordingly allowed with costs throughout.
P.S.S. Appeal allowed.
| IN-Abs | Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956 provides for recovery of possession where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the land lord transfers, assigns or subsets in whole or in part the premises held by him.
Section 14 forbids the tenant from sub letting the premises without the previous consent in writing of the landlord.
Sub section (1) of section 16 requires the tenant and every sub tenant to whom the premises are sub.let to give notice to the landlord of the creation of the sub tenancy within one month from the date of such sub letting and also to notify the termination of such sub tenancy within one month of such termination.
Sub section (2) prescribes such a notice in respect of sub tenancies created with or without the consent of the landlord before the commencement of the Act, within the time specified therein.
Where there is no such consent in writing from the landlord, sub section (3) provides for cessation of tenant 's interest in the portion sub let and the sub tenant becoming a tenant directly under the landlord in certain circum stances.
Clause 6 of the lease deed creating tenancy for a period of 'three years from 1st May 1948 permitted the respondent tenant to sub.let any portion of the demised premises which was left unused or surplus.
After expiry of the lease period in 1951, the said tenant continued in possession, and by holding over became a month to month tenant.
It had, howev er, created certain sub tenancies within the period covered by the lease and before the Act came into force.
A suit for its eviction brought by the landlord in 1960 was dismissed by the trial court.
The landlord filed a fresh suit in 1972 on the Found that the tenant had created sub.tenancies in the premises after the dismissal of the earlier suit.
The tenant advanced the plea of res judicata and con 632 633 tended that it was and is entitled to grant sub tenancies under cl. 6 of the lease deed which continues to bind the parties.
Rejecting the case of res judicata, the trial court held that a number of sub tenants who were in possession of the premises at the time of the earlier suit had been sub stituted later by another set of sub tenants after the coming into force of the Act, and that the entire premises was let out to sub tenants which was not consistent with the terms of the permission as mentioned in cl. 6.
Allowing the appeal, the High Court, however, held that the suit was barred by the rule of res judicata.
In this appeal by special leave, it was contended for the appellants that since a large portion of the disputed property was sublet to fresh sub tenants after the institu tion of the earlier suit of 1960 there was no scope for applying the doctrine of res judicata, and that the consent contemplated by the 1956 Act has to be specific in regard to each sublease, which requirement was not satisfied by the general permission granted by cl. 6 of the lease deed.
Allowing the appeal, HELD: 1.
In the earlier suit all the sub lessees were inducted during the period the lease was operative, i.e., much before the Tenancy Act was passed.
The question of violation of the provisions of the said Act, therefore, did not arise there.
The earlier judgment cannot thus operate by way of res judicata.
[637A] 2.1 The provisions of section 16 of the Act clearly indicate that permission to the tenant to sub let in general terms cannot be deemed to be consent for the purposes of sections 13 and 14.
[637F] 2.2.
The Act contemplates that while one sub tenant may be evicted another may continue in the premises as a tenant directly under the landlord, depending on the circumstances.
Therefore, previous consent in writing of the landlord with respect to each sub letting separately is essential.
Since in the instant case consent of the appellant landlord was not obtained specifically for each of the sub tenancies, the respondent tenant must be held to have violated section 14.
The appellants are thus entitled to succeed under section 13(1)(a).
[638F, H] M/s Shalimar Tar Products Ltd. vs H.C. Sharma & Ors., ; , referred to.
It was not the case of the respondent that any of the sub 634 tenants had sent any notice to the landlord as prescribed by the Act.
Therefore, the eviction suit cannot fail on the ground of non impleading of the sub tenants.
However, the sub tenants cannot be bound by that finding in the suit.
They will be entitled to be heard if and when the landlord seeks their eviction.
[639B]
|
vil Appeal No. 6 184 of 1983.
From the Judgment and Order dated 28.7.1983 of the Bombay High Court in S.C.A. No. 5/B/1982.
S.K. Mehta, Dhruv Mehta, Aman Vachher and Atul Nanda for the Appellant.
S.K. Dholakia and Praveen Kumar for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The only point involved in this appeal is whether the document (Ext. 20) executed by the parties at the time the appellant was inducted in the disputed premises is an agreement of leave and licence or a deed of lease.
The building belongs to the respondent, and the appellant claims to be in its occupation as a month to month tenant.
The respondent instituted the suit in the civil court, out of which this appeal by special leave arises, for a decree for eviction of the appellant alleging that he has been in occupation of the building as a licensee and has illegally refused to vacate in spite of service of notice.
The appel lant 's defence is that he is a tenant protected by the provisions of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968, and in view of section 56 there of the suit in the civil court is not maintainable.
Agreeing with the plaintiff respondent, the trial court passed a decree which was confirmed on appeal by the District Judge.
The High Court dismissed the second appeal filed by the appellant observing that it was concluded by concurrent findings of fact.
We do not agree with the High Court that the findings of the courts below were those of fact so as to be binding on the High Court under section 100 of the Code of Civil Proce dure.
The case has to be decided on the nature of possession of appellant which is dependent on a correct interpretation of the document Ext.
20. 3.
The document Ext.
20 has been described as an agreement of 629 leave and licence and the parties as the Licensor and the Licensee.
But it is significant to note that in the very first sentence of the document the respondent is described as "Landlord hereinafter called the Licensor".
However, this cannot answer the disputed issue as it is firmly established that for ascertaining whether a document creates a licence or lease, the substance of the document must be preferred to the form.
As was observed by this Court in Associated Hotels of India Ltd. v .R.N.
Kapoor; , , the real test is the intention of the parties whether they intended to create a lease or licence.
If an interest in the property is created by the deed it is a lease but if the document only permits another person to make use of the property "of which the legal possession continues with the owner", it is a licence.
If the party in whose favour the document is executed gets exclusive possession of the property, prima facie he must be considered to be a tenant; although this factor by it self will not be decisive.
Judged in this light, there does not appear to be any scope for interpret ing Ext.
20 as an agreement of leave and licence.
The document has been placed before us by the learned counsel for the appellant.
Although as stated earlier, it has been described as an agreement of leave and licence and the parties as the "Licensor" and the "Licensee", its provi sions unmistakably indicate that the,appellant was being let in as a tenant on the monthly rental of Rs.350 (besides water and electricity charges) to be paid regularly on or before the 5th day of each consecutive month.
By clause 5, it was agreed that the appellant "shall not sub let, under let or part possession of the premises to any stranger nor shall he keep the premises vacant for more than 3 months without the consent of the Licensor", that is, the respond ent.
The question of executing a sub lease or subletting can arise only by a tenant.
If a licensee inducts any person in the property as his tenant, it cannot be described as sub letting.
In clause 15 it is stated that on the expiry of the period, the deed "shall be renewable thereafter at the will of the licensee"; and in the event of the licensee not desiring to renew, "shall give one month 's notice in writ ing".
These terms are not consistent with the respondent 's case of licence, and indicate that an interest in the property was created in favour of the appellant in pursuance of which he was put in possession with a right of renewal.
When compared with the terms of the documents set out in the judgments in Associated Hotels of India Ltd. vs R.N. Kapoor, ; and Sohan Lal Naraindas vs Laxmidas Raghu nath Gadit, , relied upon by the learned counsel for the appellant, which were construed by this Court as creating lease inspite of their description as licence deeds, the appellant 's 630 case stands out as stronger.
If the approach adopted by the courts below in interpreting the document is accepted, it shall defeat the object of the Rent Acts, by permitting the parties to camouflage the real nature of the transaction by resorting to skilful drafting.
Mr. Dholakia, learned counsel for the respondent, streneously, contended that the test of exclusive possession is an out dated one which should not now be taken into account for the purpose of deciding the nature of posses sion.
Reliance was placed on the observations of Lord Den ning MR in Shell Mex and BP Ltd. vs Manchester Garages Ltd., We do not agree that exclusive pos session of a party is irrelevant as is suggested; but at the same time as has been observed in the earlier cases of this Court, referred to above, it is not conclusive.
The other tests, namely, intention of the parties and whether the document creates any interest in the property or not, are important considerations.
The observations in the English case, relied upon by the learned counsel for the respondent cannot be understood to suggest that the test of exclusive possession has been now rendered irrelevant and redundant as they are immediately followed by the statement; "As I have said manytimes, exclusive posses sion is no longer decisive." The position stands further clarified by the following statement in the concurring judgment of Buckley, L J,; "The only clause which points one way or the other, I think, is cl. 19 in Sch. 1 which Lord Denning MR has already read, which clearly recognises that notwithstanding the bargain between the parties, the plaintiffs retained rights of possession and control over the property in question.
That seems to me to be consistent only with the fact that this trans action was in truth a licence transaction and not a tenancy under which the defendants would obtain an exclusive right to possession of the property during the term of the tenancy, subject, of course, to any rights reserved by the plaintiffs.
" We are also not in a position to agree with Mr. Dholakia when he says that if the parties themselves have chosen to describe the transaction as a licence, we cannot make out a different case for them.
It is well settled that the main purpose of enacting the Rent statutes is to protect 631 the tenant from the exploitation of the landlord, who being in the dominating position is capable of dictating his terms at the inception of the tenancy; and, the Rent Acts must receive that interpretation which may advance the object and suppress the mischief.
By adopting a different approach the Rent laws are likely to be defeated altogether.
The surrounding circumstances are also consistent with the deed being one of lease.
The notice to vacate the premises was served on the appellant after several years of expiry of the term of the agreement.
It is not suggested on behalf of the respondent that there is any relationship between the parties or that they were friends which induced him to allow the appellant to occupy the building.
Realisa tion of rent which has been described in the document (Ext. 20) as "compensation reserved for use and occupation" was the sole consideration of the transaction.
In this back ground the description of the parties as lessor and lessee or the rent as compensation does not carry much weight.
For the reasons mentioned above, we hold that Ext.
20 was in reality a document of lease and the appellant has been enjoying the exclusive possession thereof in the capac ity of month to month tenant.
As a result the suit was, in view of the provisions of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, not maintainable.
The appeal is accordingly allowed but without costs, the decree passed by the courts below is set aside and the suit is dismissed.
T.N.A. Appeal allowed.
| IN-Abs | The respondent landlord inducted the appellant into the suit premises pursuant to an agreement.
The agreement was described as agreement of leave and licence, the parties as licensor and licensee and the rent as compensation for use and occupation, and it was provided that the appellant (i) shall pay monthly rent regularly on or before the 5th day of each consecutive month; (ii) shall not sub let, under let or part with possession nor shall keep the premises vacant for more than three months without the consent of the licensor; (iii) that on the expiry of the deed, it shah be renewable at the will of the licensee.
Several years after the expiry of the above agreement the respondent instituted a civil suit for a decree of eviction of the appellant on the ground that the appellant was in occupation as a licensee and has illegally refused to vacate.
Rejecting the plea of the appellant that he was a month to month tenant protected by the provisions of, the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 and that the suit was barred by section 56 the Trial Court passed a decree for eviction which was confirmed in appeal by the District Judge.
The second appeal filed by the appellant was also dismissed by the High Court holding that it was concluded by concurrent findings of fact.
Hence this appeal.
Allowing the appeal, and setting aside the decree of the Courts below, 627 HELD: 1.
The findings of the Courts below were not those of fact so as to be binding on the High Court under section 100 of the Civil Procedure Code.
The case has to be decided on the nature of possession of the appellant which is de pendent on a correct interpretation of the document.
[628G] 2.
It is well settled that the main purpose of enacting the Rent statutes is to protect the tenant from the exploi tation of the landlord, who being in the dominating position is capable of dictating his terms at the inception of the tenancy; and, the Rent Acts must receive that interpretation which may advance the object and suppress the mischief.
By adopting a different approach the Rent laws are likely to be defeated altogether.
[630H, 631A] 3.
For ascertaining whether a document creates a licence or lease, the substance of the document must be preferred to the form.
The real test is the intention of the parties whether they intended to create a lease or licence.
If an interest in the property is created by the deed it is a lease but if the document only permits another person to make use of the property of which the legal possession continues with the owner, it is a licence.
The test of exclusive possession is not irrelevant but at the same time it is not conclusive.
If the party in whose favour the document is executed gets exclusive possession of the property, prima facie he must he considered to he a tenant; although this factor by itself will not be decisive.
[629A B C, 630B C] Associated Hotels of India Ltd. vs R.N. Kapoor, ; ; Sohanlal Naraindas vs Laxmidas Raghunath, ; applied.
Shell Mex and BP Ltd. vs Manchester Garages Ltd., ; explained 4.
In the instant case, the terms of the deed are not consistent with the respondent 's case of licence, and indi cate that an interest in the property was created in favour of the appellant in pursuance of which he was put in posses sion with a right of renewal The surrounding circumstances are also consistent with the deed being one of lease.
The notice to vacate the premises was served on the appellant after several years of expiry of the agreement.
There was no relationship or friendship between the parties, which would have induced the respondent to allow the appellant to occupy the building.
Realisation of rent was the sole considera tion.
The description of the parties as licensor and 628 licensee or the rent as compensation does not carry too much weight.
The agreement was in reality a document of lease, and the appellant has been enjoying the exclusive possession in the capacity of month to month tenant.
The suit filed by the respondent was, therefore, not maintainable.
[629F, 631 B C, D E]
|
ivil Appeal No. 1750 of 1974.
642 From the Judgment and Order dated 7.3.74 of the Gauhati High Court in C.R. No. 96 of 1973.
A.R. Barthakur, J.D. Jainand Mrs. Kawaljit Kocher for the Appellant.
P.H. Parekh, Ms. Geetanjali Mathrari, Shishir Sharma for the Respondents.
The Judgment of the Court was delivered by OZA, J.
This appeal on leave has been filed against the judgment of the Gauhati High Court delivered in Civil Revi sion No. 96 of 1973 decided on March 7, 1974.
The short question that arises in this appeal is in respect of the jurisdiction of the civil court to entertain a suit that was filed against the respondent defendant.
The appellant plain tiff was an employee of M/s Empire of India and Ceylone Tea CO.
Pvt. Ltd Calcutta.
The Manager of the COmpany who wag defendant No. 2, on 16.10.1971 served a notice on the appel lant plaintiff asking him to explain certain charges of misconduct.
In the course of domestic enquiry held by the management, the appellant plaintiff was ultimately dismissed from service on 28th November, 1971.
According to the appel lant plaintiff the order of dismissal is contrary to provi sions of the Standing Orders framed under Industrial Employ ment (Standing Orders), Act, 1946 and on this ground he sought the relief of declaration that the dismissal is null and void and inoperative as he was not guilty of any miscon duct as no enquiry was conducted, the dismissal was bad in accordance with the Standing Orders.
He also sought the relief of back wages and injunction not to give effect to the order of dismissal.
This suit was filed by the appellant plaintiff before the Court of Munsiff.
The defendant re spondent in their written statement raised the plea that the suit is not maintainable as the relief which is sought is available to the appellant plaintiff under Section 2A of the .
It was also pleaded that the suit is not maintainable under Section 14(1)(b) of the Specific Relief Act and that the Civil Court has no juris diction to entertain the suit.
The trial Court on the basis of these pleadings framed two preliminary issues which were: (i) Whether the suit is maintainable in the present form? (ii) Whether this Court has jurisdiction to try the suit? The trial court came to the conclusion that the Civil Court has the 643 jurisdiction to try the suit and the suit is not barred because of Section 14(1)(b) of the Specific Relief Act.
Against this order of the trial court a revision petition was taken to the High Court and by the impugned judgment the High Court held that the nature of relief which was sought by the appellant plaintiff was such which could only be granted under the and therefore the civil court had no jurisdiction to try the suit.
Learned counsel for the appellant on the basis of lan guage of Section 9 of the Code of Civil Procedure contended that the civil court will have jurisdiction to try all kind of suits except those which are either expressly or implied ly barred and on this basis it was contended that there is no express bar on the jurisdiction of the Civil Court and the High Court was not right in reaching the conclusion that it was impliedly barred whereas learned counsel for the respondent contended that the relief which was sought by the appellant plaintiff in substance was the relief of rein statement with back wages which relief is not the right of the appellant plaintiff under the contract or under the civil law.
This right is only conferred on him because of the and the relief which is avail able only in the .
The Act itself provides the procedure and remedy and it is not open to the appellant to approach the Civil Court for getting the relief which he could only get under the scheme of the procedure of conciliation, reference to the labour court and ultimately decision of the labour court.
It was in the scheme of the itself that the enforcement of the Standing Orders could be made and an order which is not in accordance with the Standing Orders could be set aside and the relief as was claimed by the appellant plaintiff could be granted.
It is in this view that the jurisdiction of the civil court is impliedly barred.
Learned counsel placed reliance on the decision of this Court in Bombay Union of Journalists & Ors.
vs The State of Bombay & Anr., ; Section 9 of the Code of Civil Procedure reads: "Courts to try all civil suits unless barred The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation (1) A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the 644 decision of questions as to religious rites or ceremonies.
Explanation II For the purposes of this Section it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.
" It is clear that wherever the jurisdiction of the civil court is expressly or impliedly barred, the civil court will have no jurisdiction.
It could not be disputed that a con tract of employment for personal service could not be spe cifically enforced and it is also clear that except the industrial law, under the law of contract and the civil law, an employee whose services are terminated could not seek the relief of reinstatement or backwages At best he could seek the relief of damages for breach of contract.
The manner in which the relief has been framed by the appellant plaintiff in this case, although he seeks a declaration and injunction but in substance it is nothing but the relief of reinstate ment and backwages.
The relief which could only be available to a workman under the .
It is not disputed before us that the Industrial Dis putes Act was applicable to the present case and it is also not disputed that the Industrial Employment (Standing Or ders) Act was also applicable.
It is also not in dispute that the enquiry for misconduct was conducted against the appellant in accordance with the Standing Orders and the main plea which was raised by the appellant plaintiff was that the enquiry was not strictly in accordance with the Standing Orders.
It is in this context that the learned Judge of the High Court came to the conclusion that the civil court will have no jurisdiction to try the present suit.
Learned counsel appearing for the appellant plaintiff mainly contended that in the scheme of the Industrial Dis putes Act, the starting point for an industrial dispute is the conciliation proceedings and if the conciliation pro ceedings fail then the conciliation officer is expected to submit his report to the Govt.
as contemplated under Section 12 and thereafter it is the discretion of the Govt to make a reference to the labour court.
He frankly conceded that if a reference is made then the labour court will have juris diction to determine the dispute as was raised by the appel lant before the civil court but according to the learned counsel as firstly it is the discretion of the conciliation officer to proceed with the conciliation proceedings and even after the report of the conciliation officer, it is the discretion of 645 the State Govt.
to make a reference or not.
Thus it could not be said that there is a remedy available to the appel lant under the scheme of the and thus the jurisdiction of the civil court could not be barred by implication.
Learned counsel placed reliance on the decision in Calcutta Electric Supply Corporation Ltd. and another vs Ramratan Mahato, AIR 1973 Calcutta 258.
Learned counsel for the appellant also contended that the decision in Dhulabhai etc.
vs State of Madhya Pradesh and another; , also helps him to some extent.
On the other hand the learned counsel for the respondent contended that in view of decision in Bombay Union of Journalists case the discretion of the Govt.
to make a reference or not is not arbitrary and in appropriate cases if the Govt.
chooses not to make a reference, a direction could be issued under Article 226 by the High Courts.
It was contended that after this decision of this Court, the contention that remedy under the is merely discretionary is not at all available to the appellant.
Learned counsel also placed reliance on the Dhulabhai 's case and Nanoo Asan Madhavan vs State of Kerala and others, [1970] Vol.
I LLJ Kerala 272.
It is not in dispute that the dispute which was raised by the appellant plaintiff fell within the ambit of the definition of 'industrial dispute ' as defined in Section 2(k) of the .
It is also no in dis pute that the dispute can be taken up by conciliation offi cer under Section 12.
Section 12 of the provides that when the conciliation officer fails he has to make a report as provided in sub clause (4) of Section 12.
Section 12 reads: "Duties 01 ' Conciliation Officers (1) Where any industrial dispute exists or is apprehend ed, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner.
(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send 646 a report thereof to the appropriate Government (or an officer authorised in this behalf by the appropriate Government) together with a memorandum of the settlement signed by the parties to the dispute.
(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investiga tion, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circum stances relating to the dispute and for bring ing about a settlement thereof, together with a full statement of such facts and circum stances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration 1 of the report referred to in sub section (4), the appropriate Government is satisfied that there is a case for reference to a Board (Labour Court, Tribunal or National Tribunal), it may make such reference.
Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore.
(6) A report under this Section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government.
Provided that subject to the approv al of the conciliation officer, the time for the submission of the report may be extended by such period as may be agreed upon m writing by all the parties to the dispute.
" Sub clause (5) provides for making a reference by the State Govt.
to a labour court or an appropriate Tribunal.
In Bombay Union of Journalists case it has been held that the discretion of the Government is a discretion which has been exercised not arbitrarily and therefore it could not be said that the reference to the labour court or tribunal is not available to a worker who raises in industrial dispute.
It was observed.
"This argument must be rejected, because when the appropriate Government considers the question as to 647 whether a reference should be made under section 12(5), it has to act under section 10(1) of the Act and section 10(1) confers discretion on the appro priate Government either to refer the dispute, or not to refer it, for industrial adjudica tion according as it is of the opinion that it is expedient to do so or not.
In other words, in dealing with an industrial dispute in respect of which a failure report has been submitted under section 12(4) the appropriate Government ultimately exercises its power under 'section 10(1), subject to this that section 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under section 12(4).
This question has been considered by this Court in the case of the State of Bombay vs K.P. Krish nan & Others, The decision in that case clearly shows that when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not.
It is true that if the dispute in question raise questions of law, the appropri ate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal.
Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal.
But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under section 10(1) read with section 12(5) or not.
If the claim made is patently frivo lous, or is clearly belated, the appropriate Government may refuse to make a reference.
Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be ad verse, the appropriate Government may take that into account in deciding whether a refer ence should be made or not.
It must therefore be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under section 10(1), and so, the argument that the 648 appropriate Government exceeded its jurisdic tion in expressing its prima facie view on the nature of the termination of service of appel lants 2 and 3, cannot be accepted.
" It is therefore clear that that in view of language of Section 10 read with Section 12(5) as has been held by this Court an adequate remedy is available to the appellant plaintiff under the scheme of the itself which is the Act which provides for the relief of reinstatement and back wages which in fact the appellant sought before the civil court by filing a suit.
Section 10 of the reads: "Reference of disputes to Boards, Courts or Tribunals (1) Where the appropriate Govern ment is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudica tion: Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Gov ernment may, if it so thinks fit, make the reference to a Labour Court under clause (c); Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it con 649 siders that the notice has been frivolously or vexatiously given or that it would be inexpe dient so to do, make a reference under this sub section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced: Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be compe tent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.
" It is therefore clear that this Act i.e. not only confers the right on a worker for reinstatement and backwages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief.
Under these circumstances therefore there is an apparent implied exclusion of the jurisdiction of the civil court.
In Dhulabhai 's case a five Judges Bench of this Court consid ered the language of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was observed: "Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the in quiry may be decisive.
In the latter case, it 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 deter mined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
" It is therefore clear that the scheme of the clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are avail able under this Act and for which a complete procedure and machinery has been provided in this Act.
Under these circumstances therefore so far as the present suit filed by the appellant plaintiff is concerned, there appears to be no doubt that civil court had no juris diction and the High Court was fight in coming to the con clusion.
The appeal is therefore dismissed but as it is an appeal filed by an employee who lost his employment long ago, parties are directed to bear their own costs.
R.S.S. Appeal dis missed.
| IN-Abs | The appellant plaintiff, who was an employee of the respondent company, was dismissed from service on the bais of a domestic enquiry held against him in respect of certain charges of misconduct.
Thereupon, he filed a civil suit before the Court of Munsiff and sought the relief of back wages and injunction not to give effect to the order of dismissal The respondents in their written statement raised inter alia the plea that the suit was not maintainable as the relief sought was available to the plaintiff under section 2A of the .
The Trial Court came to the conclusion that the Civil Court had the jurisdiction to try the suit.
The High Court, in revision, held that the nature of the relief which was sought by the appellant plaintiff was such which could only be granted under the , and therefore the civil court had no jurisdiction to try the suit.
Before this Court it was contended on behalf of the appellant (i) on the basis of the language of section 9 of the Code of Civil Procedure the civil court had jurisdiction to try all kinds of suits except those which were either expressly or impliedly barred, and the High Court was not right in reaching the conclusion that it was impliedly barred; (ii) as the remedy under the was discretionary, it could not he said that there was a remedy available to the appellant under the scheme of the Act and thus the jurisdiction of the civil court could not be barred by implication.
On the other hand, it was contend ed on behalf of the respondents that (i) the relief sought by the appellant in substance was the relief of reinstate ment with backwages which relief was available only in the ; (ii) the Act itself provided the procedure and remedy and it was not open to the appellant to approach the civil court for getting the relief which he could get only under the scheme of the Act; and (iii) the discretion of the Government to make a reference or not was not arbitrary.
Dismissing the appeal, this Court.
641 HELD: (1) It is clear that wherever the jurisdiction of the civil court was expressly or impliedly barred, the civil court will have no jurisdiction.
[644B] (2) It is clear that except under the industrial law, under the law of contract and the civil law, an employee whose services are terminated could not seek the relief of reinstatement or backwages.
At best, he could seek the relief of damages for breach of contract.
(3) The manner in which the relief has been framed by the appellant in this case, although he seeks a declaration and injunction but in substance it is nothing but the relief of reinstatement and backwages.
This relief could only be available to a workman under the .
[644C D] (4) The discretion of the State Government for making a reference under section 12(5) of the is not arbitrary and it would not be said that the reference to the labour court or tribunal is not available to a worker who raises an industrial dispute.
[646G] Bombay Union of Journalists & Ors.
vs The State of Bombay & Anr., ; ; Calcutta Electric Supply Corporation Ltd. vs Ramratan Mahato, AIR 1973 Cal 258; Dhulabhai etc.
vs State of Madhya Pradesh; , ; Nanoo Asan Madhavan vs State of Kerala, [1970] Vol.
I LLJ Kerala 272, referred to.
(5) In view of the language of section 10, read with section 12(5) of the , an adequate remedy was available to the appellant under the scheme of the itself which is the Act which provides for the relief of reinstatement and backwages which in fact the appellant sought before the civil court by filing a suit.
[648B] (6) The scheme of the clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under the Indus trial Disputes Act and for which a complete procedure and machinery has been provided in this Act.
[649F G]
|
ivil Appeal No. 2941 of 1982.
From the Judgment and Order dated 26.2.82 of the Punjab Haryana High Court in L.P.A. No. 1120 of 1981.
P.A. Choudhary, Mrs. K. Sarada Devi and B. Kanta Rao for the Appellants.
C.M. Nayyar for the Respondents.
The following Order of the Court was delivered ORDER This appeal by special leave is directed against the decision of the 682 High Court of Punjab & Haryana which dismissed the writ petition of the appellant and sustained the order of his compulsory retirement In March 1949, the appellant entered into service as a clerk in the Police Department.
When he was working in the office of Inspector General of Police, he appeared for selection to the posts of Excise Sub Inspector in the Excise Department of the State.
He was selected and appointed as Excise Sub Inspector He continued in the post for a number of years.
In October 1963, he was repatriated to his parent department But it was not a simple repatriation.
The post of Excise Sub Inspector was in the higher scale than his original post in the Police Department So he was reverted and sent back to his parent department.
The appellant challenged the reversion and repatriation in O.S. No. 126 of 1965 before the Court of Subordinate Judge 1st Class, Patiala.
He sought for a declaration that the order of reversion was illegal and void.
It was an infringement of his legal right to continue as Sub Inspector in the Excise Department. 'The learned Subordinate Judge accepted his claim and decreed the suit.
He made some perti nent observation.
"The plaintiff continued to hold the post beyond the prescribed period of probation and his services were not dispensed with at the end of two years and he was not reverted.
The plaintiff, in fact, continued to hold the post for more than 6 years, after the maximum period of probation had expired.
Consequently, the rule laid down in and on the basis there of, it is held that the plaintiff must be taken to have so continued in a substantive capacity.
On this conclusion, that the plain tiff was in October, 1963, holding his post substantively, that termination of his service necessarily amounted to punishment, and must be deemed to be removal from service, which of course was not permissible without a proper enquiry.
The conclusion must, therefore, be that the termination of the plaintiff 's serv ices was illegal.
" It is thus clear from the above observation that the Court expressed the view that the appellant was holding a substantive post in the Excise Department.
After completing his probationary period, he was holding the post of Sub Inspector in a substantive capacity.
So his reversion and repatriation .amounted to penalty which was illegal since made without proper enquiry.
683 Since repatriation of the appellant was set aside by the Civil Court, the appellant was allowed to continue without interruption in the Excise Department itself.
On October 1, 1975, the Excise Commissioner made an order compulsorily retiring him from service.
The order was made under Rule 3(1)(a) and (b) of the Punjab Civil Services (Premature Retirement) Rules, 1975.
The appellant challenged the valid ity of that order before the High Court mainly on the ground that the Excise Commissioner was not competent to make that order since he belonged to Police Department.
He claimed that his lien in the Police Department was not removed and, therefore, the Inspector General of Police was alone compe tent to deal with him.
In support of the contention, he placed reliance on the decision of this Court in T.C. Sharma vs Prithvi Singh & Ors., ; The High Court, however, distinguished that decision and dismissed the writ petition.
It was held that the appellant had not gone to the Excise Department on deputation from the Police Department, but he held a fresh appointment as an Excise Sub Inspector.
Counsel for the appellant placed strong reliance on rule 3.14 of the Punjab Civil Services Rules (Vol.
I) Part I and also on the decision in T.C. Sharma case.
He urged that the appellant was no doubt holding a substantive post in the Excise Department, but he had not acquired a lien against that post, since he was not confirmed in that post.
It was claimed that the lien in the parent department ought to have been suspended so that it could ensure to his benefit as and when he wanted to return back to his parent department.
The contention, in other words, proceeded on the premise that the lien against original post in the Police Department could not vanish even though the appellant was holding a substantive post in the Excise Department.
We do not think that the contention urged for the appel lant as to Rule 3.14 could be accepted.
Rule 3.14 provides that a competent authority shall suspend the lien of a Government servent when he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne.
It seems to us that this rule cannot be operated to the prejudice of a Government servant who on his own has acquired legal right to an ex cadre post.
Indeed, the rule is for the benefit of a Government servant who intends to return back to his parent department.
That was also the view expressed in T.C. Sharma case.
But then, the appellant never wanted to return back to his parent department.
He was stoutly opposing repatriation and asserting his right to remain in the ex cadre post.
He has thus denied himself of the benefit or ' that rule.
684 The other contention urged for the appellant that he was not confirmed in the Excise Department and unless confirmed, he acquired no lien cannot also be accepted.
Lien is not a word of article It just connotes the right of a civil servant to hold the post substantively to which he is appointed.
Generally when a person with a lien against a post is ap pointed substantively to another post, he acquires a lien against the latter post.
Then the lien against his previous post automatically disappears.
The principle being that no Government servant can have simultaneously two liens against two posts in two different cadres.
It is a well accepted principle of service jurisprudence.
In the instant case, the civil court has already ruled that the appellant had a right to continue in his substan tive appointment as Excise Sub Inspector.
He secured that declaration when the Excise Department repatriated him to his parent department.
After obtaining that decree from a court of competent jurisdiction, he could not turn round and say that he still retained lien against his post in the parent department.
The lien in his parent department must be held to have been cancelled consequent on the decree of the Civil Court.
Therefore, the Excise Commissioner seems to be the only competent authority to pass the order compulsorily retiring him from service.
The appeal, therefore, fails and is dismissed in the circumstances of the case, we make no order as to costs.
Before parting with the case, we may however add a word more.
It was stated that in view of pendency of the proceed ings in this Court and in the High Court, the pension due to the appellant has not been finalised.
We, therefore, direct the respondent to determine the pensionary benefits of the appellant and pay the same to his legal heirs within three months, if not already paid.
G.N. Appeal dismissed.
| IN-Abs | The appellant, while working in the Police Department as a clerk, was selected, and subsequently appointed, as Excise Sub Inspector.
After several years, he was reverted and sent back to his parent department.
He challenged the reversion order before the Sub Judge, who allowed him to continue in the Excise Department, where he was holding a substantive post.
After a decade, he was compulsorily retired by the Excise Commissioner.
The appellant moved the High Court by way of a writ petition challenging the said order and con tending that the Excise Commissioner was not competent to pass the order as the appellant belonged to the Police Department where his lien continued.
The High Court rejected the writ petition.
This appeal by special leave is against the said deci sion of the High Court.
It was contended that the lien against original post in the police Department could not vanish even though the appellant was holding a substantive post in the Excise Department.
Dismissing the appeal, HELD: 1.
Rule 3.14 of the Punjab Service Rules provides that a competent authority shall suspend the lien of a Government servant when he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne.
This rule cannot be operated to the prejudice of a Government servant who on his own has acquired legal right to an ex cadre post.
Indeed, the rule is for the benefit of a Government servant who intends to return back to his parent department.
But the appellant never wanted to return back to his parent department.
He was stoutly opposing repatriation and asserting his right to remain in the ex cadre post.
He has thus denied himself of the benefit of that rule.
[683F H] 681 T.C. Sharma vs Prithvi Singh & Ors., 16: referred to.
Lien is not a word of article It just connotes the right of a civil servant to hold the post substantively to which he is appointed.
Generally when a person with a lien against a post is appointed substantively to another post, he ac quires a lien against the latter post.
Then the lien against his previous post automatically disappears.
It is a well accepted principle of service jurisprudence that no Govern ment servant can have simultaneously two liens against two posts in two different cadres.
[684A B] 3.
In the instant case, the civil court has already ruled that the appellant had a right to continue in his substantive appointment as Excise Sub Inspector.
He secured that declaration when the Excise Department repatriated him to his parent department.
Alter obtaining that decree from a court of competent jurisdiction, he could not turn round and say that he still retained lien against his post in the parent department.
The lien in his parent department must be held to have been cancelled consequent on the decree of the civil court.
Therefore, the Excise Commissioner seems to be the only competent authority to pass the order compulsorily retiring him from service.
[689C D] This Court directed the respondent to determine the pensionary benefits of the appellant and pay the same to his legal heirs within three months, if not already paid.]
|
1830 32 of 1981.
(Under Article 32 of the Constitution of India).
U.R. Lalit, V.N. Ganpule, A.B. Lal and Ms. Punam Kumari for the Petitioners.
V.C. Mahajan, Ms. A Subhashini, P.H. Parekh, A.S. Bhasme and A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
The petitioners in these petitions under Arti cle 32 of the Constitution hold land within the city of Sholapur in the State of Maharashtra.
According to the petitioners development plan has been sanctioned with regard to land situated m the city of Sholapur including the peti tioners ' land under the Maharashtra Regional and Town plan ning Act, 1976 (hereinafter referred to as the Maharashtra Act No. 37 of 1966) and some land of the petitioners was re served for public purpose under that Act.
The Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as the Act was brought into force on 28th February, 1976 and proceedings for acquisition of vacant land in excess of the ceiling limit placed under the Act were initiated against the petitioners.
These writ petitions have been filed for the following reliefs: (a) It may be declared that the Urban Ceiling Act does not apply to lands reserved for a public purpose under the Maharashtra Regional Town Planning Act, 1966: (b)The proceedings for determination of ceil ing be declared void and quashed so far as the lands are reserved for public purpose; 619 (c) The State Government be restrained from taking any action under Section 10(3) of the Ceiling Act; (d) The final statement under Section 9 of the Ceiling Act be amended suitably; (e) A Writ of Mandamus or in the nature of Mandamus be issued restraining the State Government or its agents from acquiring and/or taking possession of final plots Nos. 26, 22, 42, 28A and 44A/1; (f) Sections 10, 11 and 23 of the Ceiling Act be declared ultra vires of Articles 14 and 31 of the Constitution; (g) Any other order and/or direction as this Hon 'ble Court may deem fit, be passed.
It has been pointed out by the learned counsel for the petitioners that Section 125 of the Maharashtra Act No. 37 of 1966 contemplates, inter alia, that any land required, reserved or designated in a development plan for a public purpose shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894 whereas Section 126 thereof contains the procedure for acquisition of land required for public purposes.
According to learned counsel if land is acquired as contemplated by Sections 125 and 126 aforesaid, the provisions of the Land Acquisition Act shall apply to the acquisition of the said land with the modification that the market value of the land shall be computed as contemplated by sub section (3) of Section 126 whereas if the land was acquired under the Act, compensation payable would be much less as contemplated by Section 11 of the Act and that too with a ceiling of two lakhs of rupees as provided by sub section (6) thereof.
It has been urged that it is left to the sweet will of the authorities concerned to acquire land either under Sections 125 and 126 of the Maharashtra Act No. 37 of 1966 or under the provisions of Section 10 of the Act and that since in the event of proceedings for acquisition being taken under Section 10 of the Act as is sought to be done in the case of the petitioners the compensation payable would be far less than the compensation payable if the acquisition is made under the Maharashtra Act No. 37 of 1966, discrimination under Article 14 of the Constitution was writ large, and in this view of the matter the petitioners are entitled to the reliefs claimed in these writ petitions.
Having heard learned counsel for the parties, we are of the 620 opinion that none of the reliefs prayed for in the writ petitions can be granted to the petitioners.
At the very outset, it may be pointed out that the Act has been placed in the 9th Schedule to the Constitution at SI.
No. 132 and consequently comes under the protective umbrella of Article 31 B of the Constitution.
In Maharao Sahib Shri Bheem Singh vs Union of India and others, [1985] Suppl.
1 S.C.R. Page 862 it has been held by a Constitution Bench of this Court that the Act is constitutionally valid save and except Section 27(1) to the extent mentioned in the judgment.
With regard to sub section (6) of Section 11, it has specifically been held at page 879 of the Report that this sub section which provides that compensation payable under Section 11 shall in no case exceed two lakhs of rupees is valid.
The amount thus payable is not illusory and the provision is not confiscatory.
Rupees two lakhs are not like a earthing even if the excess land may be a fortune.
In this connection, it may be pointed out that it has not been urged by the learned counsel for the petitioners that the provisions of the Act which have been impugned in the present writ petitions in any way damage or destroy a basic or essential feature of the Constitution or its basic structure.
No statutory provi sion either in the Act or even in the Maharashtra Act No. 37 of 1966 has been brought to our notice excluding the opera tion of the Act with regard to lands reserved for public purpose under the Maharashtra Act No. 37 of 1966.
On the other hand, there is a specific overriding provision in Section 42 of the Act which provides that the provisions of this Act shall have effect notwithstanding anything incon sistent therewith in any other law for the time being in force or any custom usage or agreement or decree or order of a Court, Tribunal or other authority.
It is in this view of the matter that we are of the opinion that none of the relief prayed for in the present writ petitions can be granted.
What has, however, been urged by the learned counsel for the petitioners is that notwithstanding the specific relief (f) referred to above, the petitioners are really not chal lenging the validity of Sections 10, 11 & 23 of the Act but they are challenging the action which is being taken with regard to the petitioners ' land on the ground that it is discriminatory.
We find no substance in this submission either.
In Union of India etc.
vs Valluri Basavaiah Chaucer etc.
, [1979] 3 S.C.R. Page 802 it was pointed out by a Constitution Bench of this Court that the primary object and the purpose of the Act as the long title and preamble show, is to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit to regulate the construction of 621 buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein, and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good, in furtherance of the Directive Principles of Article 39(b) and (c).
That this was the object and the purpose of the Act has been reiterated in a recent decision of this Court in State of Gujarat & others vs Parshottamdas Ramdas Patel & Others, [1988] 1 S.C.R. Page 997.
It is in this background that the submission of learned counsel for the petitioners about discrimination in the matter of implementation or taking action under the Act has to be considered.
While elaborating this argument of dis crimination it was pointed out by learned counsel for the petitioners that if land belonging to 'A ' and 'B ' within an urban agglomeration is reserved for a public purpose under development scheme and 'A ' is holding land within ceiling area whereas 'B ' holds land in excess of such ceiling area, 'A ' will get compensation under the Maharashtra Act No. 37 of 1966 whereas 'B ' will get compensation under the Ceiling Act and the basis and method of compensation will drastical ly vary.
In support of this submission reliance was placed on a decision of this Court in Nagpur Improvement Trust & Another vs Vithal Rao & Others, [1973] 3 S.C.R. Page 39.
In that case land was sought to be acquired under the Nagpur Improvement Trust Act.
In a petition under Articles 226 and 227 of the Constitution the validity of the Nagpur Improvement Trust Act was challenged inter alia on the ground that the said Act was in violation of Article 14 of the Constitution inasmuch as it empowered the acquisition of lands at prices lower than those which could have been payable if they had been acquired under the Land Acquisition Act.
The writ petition was allowed by the High Court and it was held that paragraphs 10(2) and 10(3) in so far as they added a new clause 3(a) to section 23 and a proviso to sub section (2) of section 23 of the Land Acquisition Act, 1894 were ultra vires as violating the guarantee of Article 14 of the Constitution.
Suffice it to say, so far as this submission is con cerned that the land to the extent which falls within the ceiling area stands in a class different from the land which is in excess of the ceiling area and is liable to be de clared surplus to give effect to the purpose and object of the Act. ' What is the purpose and object of the Act has already been noticed earlier.
Further unlike the Nagpur Improvement Trust Act, 1936 the validity whereof was 'chal lenged in the case of Vithal Rao 622 (supra), the Act has been placed in the 9th Schedule.
As a result thereof the Act comes within the protective umbrella of Article 31 B of the Constitution which was not available to the Nagpur Improvement Trust Act.
The decision in the case of Vithal Rao (supra) came up for consideration before a Constitution Bench of this Court with reference to Bombay Town Planning Act, 1954 in Prakash Chand Amichand Shah vs State of Gujarat and others, [1986] 1 S.C.C. Page 581.
It was held: "In order to appreciate the contentions of the appellant it is necessary to look at the object of the legislation in question as a whole.
The object of the Act is not just acquiring a bit of land here or a bit of land there for some public purpose.
It consists of several activities which have as their ulti mate object the orderly development of an urban area.
It envisages the preparation of a development plan, allocation of land for various private and public uses, preparation of a Town Planning Scheme and making provi sions for future development of the area in question.
The various aspects of a Town Plan ning Scheme have already been set out.
On the final Town Planning Scheme coming into force under Section 53F of the Act there is an automatic vesting of all lands required by the local authority.
It is not a case where the provisions of the Land Acquisition Act, 1894 have to be set in motion either by the Collec tor or by the Government.
" It was further held: "The provision under consideration in the above decision corresponds to Section 11 and to Section 84 of the Act, which we are now considering.
Section 59 of the Nagpur Improve ment Trust Act, 1936 provided that the Trust might, with the previous sanction of the State Government acquire land under the provisions of the Land Acquisition Act, 1894 as modified by the provisions of the said Act for carrying out any of the purposes of the said Act.
But the provisions which are questioned before us are of a different pattern altogether.
They deal with the preparation of a scheme for the development of the land.
On the final scheme coming into force the lands affected by the scheme which are needed for the local authori ty for purposes of the scheme automatically vest in the local authority.
There is 623 no need to set in motion the provisions of the Land Acquisition Act, 1894 either as it is or as modified in the case of acquisition under Section 11 or Section 84 of the Act.
Then the Town Planning Officer is authorised to deter mine whether any reconstituted plot can be given to a person whose land is affected by the scheme.
Under Section 51(3) of the Act the final scheme as sanctioned by the Government has the same effect as if it were enacted in the Act.
The scheme has to be read as part of the Act.
Under Section 53 of the Act all rights of the private owners in the original plots would determine and certain consequen tial rights in favour of the owners would arise therefrom.
If in the scheme, reconsti tuted or final plots are allotted to them they become owners of such final plots subject to the rights settled by the Town Planning Offi cer in the final scheme.
In some cases the original plot of an owner might completely be allotted to the local authority for a public purpose.
Such private owner may be paid compensation or a reconstituted plot in some other place.
It may be a smaller or a bigger plot.
It may be that in some cases it may not be possible to allot a final plot at all.
Sections 67 to 71 of the Act provide for cer tain financial adjustments regarding payment of money to the local authority or to the owners of the original plots.
The development and planning carried out under the Act is pri marily for the benefit of public.
The local authority is under an obligation to function according to the Act.
The local authority has to bear a part of the expenses of development.
It is in one sense a package deal.
The pro ceedings relating to the scheme are not like acquisition proceedings under the Land Acqui sition Act, 1894.
Nor are the provisions of the Land Acquisition Act, 1894 made applicable either without or with modifications as in the case of the Nagpur Improvement Trust Act, 1936.
We do not understand the decision in Nagpur Improvement Trust case as laying down generally that wherever land is taken away by the government under a separate statute com pensation should be paid under the Land Acqui sition Act, 1894 only and if there is any difference between the compensation payable under the Land Acquisition Act, 1894 and the compensation payable under the statute con cerned the acquisition under the statute would be discriminatory.
That case is distinguisha ble from the present case.
" 624 In the instant case also the purpose and object of the Act being entirely different from just acquiring a bit of land here or a bit of land there for some public purpose, and the Act being a serf contained Code having an overriding provision in Section 42, the decision in the case of Vithal Rao (supra) is wholly inapplicable in so far as acquisition of surplus land under the Act is concerned.
It was also urged that if one person holds land in excess of ceiling area and the excess therein is reserved for a public purpose under the development scheme there will still be discriminatory results if the land in excess of ceiling is reserved for different purposes.
According to learned counsel if the purpose of reservation is construc tion of buildings the land will be given compensation under the Ceiling Act whereas when the purpose of reservation is parks, gardens etc.
compensation would be given under the Maharashtra Act 37 of 1966.
The result, according to learned counsel, is discriminatory.
This submission again has appar ently no substance inasmuch as the provisions of the Ceiling Act are applicable with regard to vacant land and if for some fortuitous circumstances a particular category of land does not fail within the definition of vacant land the provisions with regard to vacant land can obviously not be applied to such land.
Here again, the lands failing under the two categories constitute separate classes and cannot consequently be treated alike.
Learned counsel for the petitioners also referred .to some other cases wherein a similar view, as in the case of Vithal Rao (supra), was taken but we do no consider it necessary to deal with those cases separately for the rea sons already stated above.
With regard to the submission of learned counsel that the question as to whether a land reserved for public purpose under the Maharashtra Act No. 37 of 1966 should be acquired under that Act or under Section 10 of the Act has been left to the sweet will of the author ity concerned, we are of the opinion that it is not so.
Once the land falls beyond the ceiling limit prescribed by the Act and is capable of being acquired as surplus land under Section 10 of the Act it would be wholly inappropriate to acquire the same very land or a portion thereof under the Maharashtra Act No. 37 of 1966 inasmuch as it would inter alia apparently result in misuse of public funds by granting higher compensation when the purpose of acquisition can be achieved on payment of the lesser amount of compensation prescribed in Section 11 of the Act.
In the case of Parshottamdas Patel (supra), the State Government of Gujarat issued a notification under section 4(1) of the Land 625 Acquisition Act, 1894 stating that the lands of the respond ents were likely to be needed for the public purpose of providing housing accommodation for the employees of the Municipal Corporation.
Subsequently, a notification under Section 6 of the said Act declaring that the aforesaid lands along with the other lands were needed for the said public purpose, was also made.
In the meantime, the Act came into force and the respondents filed writ petitions contending inter alia that the acquisition proceedings under the Land Acquisition Act should be proceeded with and the acquisition proceedings to the extent it related to the surplus land under the ceiling law should be dropped.
The writ petitions were allowed.
Reversing the judgment of the High Court, this Court held: "The declaration made by the High Court in these cases that the land acquisition proceedings did not suffer from an infirmity which indirectly suggests that the proceedings should go on is again erroneous.
It is open to the State Government to drop the land acquisi tion proceedings and to withdraw the lands from acquisition under section 48 of the Land Acquisition Act, 1894.
We are informed that the State Government has in fact subsequently withdrawn these lands from acquisition.
The proceedings under the Land Acquisition Act, 1894 cannot therefore have any beating on the question whether the lands in question are vacant lands or not for purposes of the ceil ing law contained in the Act.
When the lands in question or bulk of them are likely to be acquired under the ceiling law by paying compensation as provided therein, it would not be proper to compel the Government to acquire them under the provisions of the Land Acquisi tion Act, 1894.
As already stated the Act has the overriding effect on all other laws.
" In view of the foregoings discussion, we find no merit in these writ petitions and they are accordingly dismissed.
There shall, however, be no order as to costs.
Petitions dismissed.
| IN-Abs | The State Government sanctioned development plan in respect of and situated in Sholapur under the Maharashtra Regional and Town planning Act, 1966.
Though the sanction covered the land of petitioners also, some of their land was reserved for public purpose under the said Act.
Thereafter, the Urban Land (Ceiling & Regulation) Act, 1976 came into force and proceedings for acquisition of land in excess of the ceiling limit were initiated.
Against such proceedings, the petitioners have approached this Court by way of writ petitions.
The petitioners contended that the Urban Ceiling Act would not apply to the lands reserved for a public purpose under the Town Planning Act and that the proceedings should be quashed.
They also challenged the constitutional validity of sections 10, 11 and 23 of the Ceiling Act, as being ultra vires of Articles 14 and 31, and prayed for a Writ of Manda mus restraining the State Government from acquiring the petitioners ' land under the Ceiling Act.
Dismissing the writ petitions, HELD: 1.1.
The Act has been placed in the Ninth Schedule to the Constitution at SI.
No. 132 and consequently comes under the protective umbrella of Article 31 B of the Consti tution.
[620A B] 1.2.
It is not the case of the petitioners that the provisions of the 617 Ceiling Act in any way damage of destroy a basic or essen tial feature of the Constitution or its bask structure.
Also there is no statutory provision either in the Ceiling Act or in the Town Planning Act, which would exclude the operation of the Ceiling Act with regard to lands reserved for public purpose under the Town Planning Act.
[620C E] Maharao Sahib Shri Bheem Singh vs Union of India and others, [1985] Suppl.
1 S.C.R. 862; applied.
The primary object and the purpose of the Ceiling Act is to provide for the imposition of a ceiling an vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit to regulate the con struction of building on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein, to bring about an equitable distribu tion of land is urban agglomerations to subserve the common good, in furtherance of the Directive Principles of Articles 39(b) and (c).
The land to the extent which falls within the ceiling area stands in a class different from the land which is in excess of the ceiling area and is liable to be de clared surplus to give effect to the purpose and object of the Ceiling Act.
[620G H; In the instant case, the purpose and object of the Ceiling Act is entirely different from just acquiring a bit of land here or a bit of land there for some public purpose.
The Ceiling Act is a self contained Code having an overrid ing provision in Section 42.
Once the land fails beyond the ceiling limit prescribed by the Ceiling Act and is capable of being acquired as surplus land under Section 10 thereof it would he wholly inappropriate to acquire the same very Land or a portion thereof under the Town planning Act inas much as it would inter alia apparently result in misuse of public funds by granting higher compensation when the pur pose of acquisition can he achieved on payment of the lesser amount of compensation prescribed in Section 11 of the Ceiling Act.
[624A, B, F & G] Union of India etc.
vs Valluri Basavaiah Chowdhary etc.
; , ; State of Gujarat & Others vs Parshottamdas Ramdas Patel & Others, ; ; relied on.
Nagar Improvement Dust & Another vs Vithal Rao & Oth ers; , , distinguished.
Prakash Chand Amichand Shah vs State of Gujarat and others; , ; referred to.
618 3.
The alleged discrimination that if the purpose of reservation is construction of buildings, the land will be given compensation under the Ceiling Act whereas when the purpose of reservation is parks, gardens etc.
compensation would be given under the Town Planning, Act, does not exist.
The provisions of the Ceiling Act are applicable with regard to vacant land and if for same fortuitous circumstances a particular category of land does not fall within the defini tion of vacant land the provisions with regard to the vacant land can obviously not be applied to such land.
The lands falling under the two categories constitute separate classes and cannot consequently be treated alike.
[624B, C & D]
|
ivil Appeal No. 955 of 1981.
From the Judgment and Order dated 11.5.79 of the Allaha bad High Court in W.P. No. 3048 of 1973.
P.N. Lekhi and M.K. Garg for the Appellant.
K.M. Sinha, Deepak Jaiswal and Pramod Swarup for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
This appeal by special leave under Article 136 of the Constitution of India is against the judgment of a learned Single Judge of the Allahabad High Court in Writ Petition No. 3048 of 1973 decided on May 11, 1979.
The subject matter of the dispute is a holding compris ing of Khata No. 141 in village Khera, Laxmipur, Pargana Kashipur in District Naimtal of which one Chain Sukh was initially the occupancy tenant.
The said Chain Sukh died issueless prior to the date of vesting, that is, 1.7.1952 under the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the Zamindari Abolition Act") survived by his widow, Smt.
Sukhia.
The interest of Chain Sukh as the occupancy tenant of the holding devolved upon his widow, Smt.
Sukhia, in accordance with section 35 of the United Provinces Tenancy Act, 1939 (hereinafter referred to as "the Tenancy Act") in the absence of any male lineal descendant of Chain Sukh.
The appellant, Smt.
Mainia, is the sister of deceased Chain Sukh.
Even according to the appellant, Smt.
Mainia, Chain Sukh 's widow, Smt.
Sukhia, remarried Gopal Singh in "Karwa" form according to the caste custom about two years after the death of Chain Sukh and a son, Chander Pal, respondent No. 4, was born to Sukhia during her wedlock with Gopal Singh.
Sukhia continued to remain in possession of this holding till her death in 1965.
A dispute arose between appellant, Smt.
Mainia and respondent No. 4, Chander Pal, during the consolidation proceedings under the U.P. Consolidation of Land Holdings Act in respect of this holding, each of them claiming sole interest therein to the exclusion of the other.
Ultimately, the Consolidation Officer, Afzalgarh, by his order dated 29.1.1972 (Annexure III) passed under section 9 A of the Act 689 dismissed Chander Pal 's claim to the holding.
The Consolida tion Officer held that Smt.
Sukhia on her remarriage with Gopal Singh lost her interest in the holding and by virtue of section 171 of the Zamindari Abolition Act, appellant, Smt.
Mainia, being the sister of Chain Sukh inherited the interest in the holding.
It was held that Chander Pal, not being the son of Smt.
Sukhia from Chain Sukh but the son born to Smt.
Sukhia after her remarriage with Gopal Singh, could not inherit as a heir of Chain Sukh.
The Settlement Officer, Consolidation, Nainital dismissed Chander .Pal 's appeal under Section 11 against the order of the Consolida tion Officer by order dated 14.2.1972 (Annexure IV).
Howev er, the Settlement Officer held that even though Smt.
Sukhia lived in the house of Gopal Singh for several years there is no positive evidence of her remarriage with Gopal Singh and therefore a legal marriage of Smt.
Sukhia with Gopal Singh is not proved.
It was held that Smt.
Sukhia cultivated the land throughout as the widow of Chain Sukh and therefore Chain Sukh 's sister Smt.
Mainia inherited it after the death of Smt.
Sukhia.
A revision by Chander Pal to the Deputy Director Consolidation, Moradabad, Camp Kashipur, under Section 48 was also dismissed by order dated 15.11.1972 (Annexure V).
It was observed that Smt.
Mainia in her reply dated 10.12.1970 had stated that Smt.
Sukhia did "Karwa" with Gopal Singh but Smt.
Sukhia had been shown in the family register as widow of Chain Sukh which shows that Smt.
Sukhia was treated as a widow of Chain Sukh till the time of her death.
It was held that Smt.
Sukhia 's "Karwa" with Gopal Singh not being proved to be a legal marriage, the succes sion would be governed on the basis that she.
was Chain Sukh 's widow at the time of her death.
A writ petition under Article 226 of the Constitution was then filed by Chander Pal in the High Court which has been allowed by the impugned judgment dated May 11, 1979.
The High Court has quashed the orders passed by the Consoli dation Authorities and directed the Deputy Director (Consol idation) to decide the revision of Chander Pal afresh on the basis of the decision given in the writ petition.
The High Court has held that the consolidation authorities erred in deciding the matter on the basis that Smt.
Sukhia 's marriage with Gopal Singh was not proved to be legal and, therefore, Smt.
Sukhia 's possession of the holding till the time of her death was merely as widow of Chain Sukh.
It was pointed out that in view of appellant Smt.
Mainia 's clear admission that Smt.
Sukhia was remarried to Gopal Singh in "Karwa" form, according to caste custom, after Chain Sukh 's death and that they had been living together as husband and wife for sever al years no further proof of legality of the remarriage was necessary.
Reliance was placed 690 by the High Court on a decision of the Supreme Court in Badri Prasad vs Deputy Director Consolidation, ; for reaching its conclusion and it was held that this strong presumption of validity of Smt.
Sukhia 's remar riage with Gopal Singh was not rebutted by the entry in the family register which continued to show Smt.
Sukhia as the widow of Chain Sukh.
Consequently, it was held by the High Court that the finding of the consolidation authorities that Smt.
Sukhia 's interest in the holding continued to be as widow of Chain Sukh was a manifest error of law.
The High Court then proceeded to examine the legal consequences of Smt.
Sukhia remarriage with Gopal Singh prior to the date of vesting i.e., 1.7.1952 under the Zamindari Abolition Act and her continuous possession over the holding after her remar riage.
It was held by the High Court that the effect of the provisions of the Tenancy Act was that her interest in the holding after her remarriage was in her own right and not as widow of Chain Sukh; and therefore, by virtue of section 180(2) of the Tenancy Act she acquired an independent right which did not devolve upon her death to Chain Sukh 's sister, appellant Smt.
Mainia, but to her son Chander Pal born to her after her remarriage with Gopal Singh.
It is on this basis that the High Court has directed the Deputy Director, Consolidation, to decide respondent No. 4, Chander Pal 's revision afresh.
Hence this appeal by special leave.
Shri P.N. Lekhi, learned counsel for the appellant, Smt.
Mainia, has assailed the decision of the High Court substan tially on the ground that Smt.
Sukhia 's interest in the holding continued till her death only as widow of Chain Sukh since her initial interest in the holding was by revolution as widow of Chain Sukh under section 35 of the Tenancy Act.
Learned Counsel for the appellant also contended before us that Smt.
Sukhia 's remarriage with Gopal Singh was not proved and, therefore, the consequences of remarriage, if any, did not arise.
He argued that Smt.
Sukhia 's name was recorded throughout only as the widow of Chain Sukh which negatived the case of her remarriage with Gopal Singh after the death of Chain Sukh.
He argued that since the possession of Smt.
Sukhia till her death in 1965 was as widow of Chain Sukh, there was no occasion for attracting the provisions contained in section 180(2) of the Tenancy Act.
It was urged that on the death of Smt.
Sukhia in 1965 the succession was governed by section 172 read with section 171 of the Zamind ari Abolition Act on account of which by virtue of clause (m) of section 171 appellant Smt.
Mainia being the married sister of Chain Sukh inherited the interest in the holding instead of respondent No. 4, Chander Pal by virtue of sec tion 174 of that Act.
691 In reply, Shri K.M. Sinha, learned counsel for re spondent No. 4 contended that remarriage of Smt.
Sukhia with Gopal Singh after the death of Chain Sukh prior to the date of vesting i.e., 1.7. 1952 under the Zamindari Abolition Act being the admitted case of appellant Smt.
Mainia herself, the appellant cannot now be permitted to take a contrary stand.
It was urged that the conclusion of the High Court is correct and that consequence is obvious from the provisions of the Tenancy Act.
On this basis, it was urged that the possession of Smt.
Sukhia in the holding at the time of her death not being as a widow of Chain Sukh but in her own right the succession is governed not by section 172 but by section 174 of the Zamindari Abolition Act under which respondent No. 4, Chander Pal, inherited Smt.
Sukhia 's interest in the holding as her son.
In our opinion, the contention of learned counsel for the appellant cannot be accepted and on the case set up by Smt.
Mainia herself no fault can be found with the reasoning or conclusion of the High Court.
It is obvious even from the orders of the consolida tion authorities that Smt.
Sukhia 's remarriage in "Karwa" form according to the caste custom with Gopal Singh a couple of years after the death of Chain Sukh was pleaded by Smt.
Mainia herself in her reply dated 10.12.1970 as mentioned in the order dated 15.11.1972 (Annexure V) by the Deputy Direc tor (Consolidation) while deciding Chander Pal 's revision.
The controversy between the parties before the consolidation authorities was at best only about the validity of the remarriage and not its factum.
Moreover, the order of the Consolidation Officer dated 29.1.
1972 (Annexure III) also indicates that before the Consolidation Officer appellant, Smt.
Mainia, did not dispute even the validity of Smt.
Sukhia 's remarriage with Gopal Singh and the case of the appellant before the Consolidation Officer was put on the basis of Smt.
Sukhia being remarried to Gopal Singh and Chander Pal being the son born to Smt.
Sukhia after her remarriage so that Chander Pal could not claim to be a legal heir of Smt.
Sukhia 's first husband Chain Sukh.
The High Court was, therefore, right in taking the view that the matter must be decided on the basis of Smt.
Sukhia being remarried to Gopal Singh a couple of years after the death of her first husband Chain Sukh and the question of factum or validity of Smt.
Sukhia 's remarriage with Gopal Singh did not really arise.
This being so, the mere fact of Smt.
Sukhia 's name being shown in the family register as widow of Chain Sukh till the time of her death in 1965 did not have the effect of continuing Smt.
Sukhia 's status as widow of Chain Sukh even after she 692 had become the wife of Gopal Singh as a result of her remar riage.
The effect of the statutory provisions on the continued possession of Smt.
Sukhia in this altered status has, there fore, to be examined.
The relevant provisions of the Tenancy Act may now be noticed.
Admittedly, succession to the interest of Chain Sukh on his death was governed by section 35 of the Tenancy Act according to which the interest of Chain Sukh in the holding devolved upon Smt.
Sukhia as his widow in the ab sence of any male lineal descendant in the male line of descendant.
Section 36 of the Tenancy Act is as under: "36(1) When a female tenant, other than a tenant mentioned in section 34, who either before or after the commencement of this Act has inherited an interest in a holding as a widow, as a mother, as.a step mother, as a father 's mother, or, as a daughter dies or abandons such holding, or surrenders such holding, or a part of such holding or, in the case of a tenant inheriting as a widow or as a daughter, marries such holding or such part of such holding shall, notwithstanding anything in section 45, devolve in accordance with the order of succession laid down in section 35 on the heir of the last male tenant, other than a tenant who inherited as a father 's father under the provisions of that section . . (emphasis supplied)" The applicability of section 36 in the present case was disputed by the learned counsel for the appellant.
We are unable to agree.
Section 36 clearly provides for succession to a female tenant holding an interest inherited as a widow in the case of her marriage thereafter, or, in other words, remarriage.
The learned counsel for the appellant contends that this is not so.
In our opinion, the argument overlooks the clear words "in the case of a tenant inheriting as a widow . marries" which show that the situation where a female tenant who inherited as a widow marries, or, in other words, remarries is specifically covered by section 36.
The contrary construction placed on section 36 by the learned counsel for the appellant would render these words redun dant.
The word 'marries ' instead of the word 'remarries ' has been used for the obvious reason that it refers both to a widow as well as a daughter.
We have, therefore, no doubt that section 36 was attracted in the 693 present case when Smt.
Sukhia remarried Gopal Singh after the death of Chain Sukh.
Section 36 also overrides section 45 since it clearly says, "notwithstanding anything in section 45" which provides generally for extinguishment of the interest of a tenant in the manner specified therein.
The argument of the learned counsel for the appellant that clause (a) of section 45 deals with the situation of death of a tenant and, therefore, attracted, in the present case, on the death of Smt.
Sukhia in 1965 is untenable in view of the express provision made in section 36.
The result is that according to section 36 on the remar riage of Sukhia with Gopal Singh the interest devolved in accordance with the order of succession laid down in section 35 on the heir of the last male descendant, that is, Chain Sukh but appellant Smt.
Mainia, married sister of Chain Sukh, not being one of the heirs of Chain Sukh according to section 35 of the Tenancy Act, the interest did not devolve on Smt.
Mainia.
The continued possession of Smt.
Sukhia thereafter attracted section 180 of the Tenancy Act, the relevant portion of which is as under: 180(1) A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accord ance with the provisions of the law for the time being in force, shall be liable to eject ment under the section on the suit of the person so entitled, and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenants: XXX XXX XXX (2) If no suit is brought under this section, or if a decree obtained under this section is not executed, the person in possession shall become a hereditary tenant of such plot, or if such person is a co sharer, he shall become a khudkashtholder, on the expiry of the period of limitation prescribed for such suit or for the execution of such decree, as the case may be: XXX XXX XXX.
" 694 Admittedly, no suit as contemplated by sub section (2) of section 180 of the Tenancy Act was brought at any time against Smt.
Sukhia and the prescribed period of limitation for such a suit expired prior to her death in 1965.
Sub section (2) of section 180 was, therefore, clearly attracted and Smt.
Sukhia had become a hereditary tenant by virtue of section 180(2) of the Tenancy Act with the further conse quences flowing therefrom.
The case of the appellant is based on the applicability of section 172 of the Zamindari Abolition Act which governs succession 'in the case of a woman holding an interest inherited as a widow etc on the ground that Smt.
Sukhia 's interest upto the time of her death was only as the widow of Chain Sukh.
It is by virtue of section 172 that the claim is made by the appellant.
Mainia as the married sister of Chain Sukh under clause (m) of section 171.
We have already indicated that the founda tion of Smt.
Mainia 's claim is non existent.
If such a situation, the appellant 's claim was rightly negatived by the High Court.
The learned counsel for the appellant referred to the decision of this Court in Ram Jivan vs Smt.
Phoola (dead) by Lrs. & Ors.
, In view of the above conclu sion, obviously that decision has no application.
The learned counsel also referred to two Single Bench decisions of the Allahabad High Court, namely, Jaganath and others vs Deputy Director of Consolidation Gorakhpur and others, [1976] AWC 654 and Chhiddoo Singh vs Deputy Director of Consolidation & others, [1976] AWC 809.
The first decision did not involve this point.
The learned single Judge in the other decision under provisions of the Agra Tenancy Act took the view that when a widow initially enters into possession as a limited owner, the character of her subsequent posses sion after remarriage cannot change in the absence of evi dence of a change in her animus.
It was held that in such a case it is for the widow to show that later she had asserted her absolute right and was possessing adversely as an abso lute owner in order to prescribe for absolute ownership.
It is sufficient for us to say that the legal consequence flowing from sections 36 and 180 of the U.P. Tenancy Act is enough to indicate that the character of widow 's possession after her remarriage altered by operation of law and any further animus is not required to bring about the effect of the statutory provisions which ensue on expiry of the limi tation prescribed for a suit to evict her.
That decision does not indicate consideration of the effect of a provision like section 180(2) of the Tenancy Act, assuming there was such a provision in the Agra Tenancy Act and also that section 24 of the Agra Tenancy Act was similar to section 36 of the U.P. Tenancy Act.
These decisions are clearly distin guishable.
However, if the other decision 695 under the Agra Tenancy Act is read as taking a contrary view, we are unable to subscribe to that view.
In the result, the appeal fails and is dismissed.
Howev er, in the circumstances of the case, we make no order as to costs.
R.S.S. Appeal dis missed.
| IN-Abs | One Chain Sukh died issueless.
His interest as the occupancy tenant of the land in dispute therefore devolved upon his widow, Smt.
Sukhia, in accordance with section 35 of the United Provinces Tenancy Act, 1939.
A couple of years after the death of Chain Sukh, Sukhia remarried Gopal Singh in "Karwa" form according to the caste custom, prior to the date of vesting, i.e., 1.7.1952, under the U.P. Zamindari Abolition and Land Reforms Act, 1950.
A son Chartder Pal, respondent No. 4, was born to Sukhia.
Sukhia continued to remain in possession of this holding till her death in 1965.
The appellant is the sister of deceased Chain Sukh.
A dispute arose between the appellant and Chander Pal during the consolidation proceedings under the U.P. Consolidation of Land Holdings Act, each of them claiming interest to the exclusion of the other.
The Consolidation Officer held that Smt.
Sukhia on her remarriage lost her interest in the holding and by virtue of section 171 of the Zamindari Aboli tion Act, Smt.
Mainia being the sister of Chain Sukh inher ited the interest in the holding.
The Settlement Officer, Consolidation, dismissed Chander Pal 's appeal.
The Settle ment Officer, however, held that a legal marriage of Smt.
Sukhia with Gopal Singh was not proved; that Smt.
Sukhia cultivated the land throughout as the widow of Chain Sukh, and that, after her death the appellant inherrited it.
In revision, the Deputy Director Consolidation held that Smt.
Sukhia 's "Karva" with Gopal Singh not being proved to he a legal marriage, the succession would he governed on the basis that she was Chain Sukh 's widow at the time of her death.
Chander Pal filed a writ under Article 226, and the High Court 686 while allowing the petition held that the consolidation authorities erred in deciding the matter on the basis that Smt.
Sukhia 's marriage with Gopal Singh was not proved to he legal.
The High Court observed that in view of appellant Smt.
Mainia 's clear admission that Smt.
Sukhia was remarried to Gopal Singh in "Karwa" form, and that they had been living together as husband and wife for several years, no further proof of legality of the remarriage was necessary.
The High Court further held that the effect of the provi sions of the Tenancy Act was that her interest in the hold ing after her remarriage was in her own right and not as widow of Chain Sukh, and therefore, by virtue of section 180(2) of the Tenancy Act she acquired an independent right which did not devolve upon her death to Chain Sukh 's sister, but to her son Chander Pal born to her after her remarriage with Gopal Singh.
Before this Court it was contended on behalf of the appellant that Smt.
Sukhia 's interest in the holding contin ued till her death only as widow of Chain Sukh since her initial interest in the holding was by devolution as widow of Chain Sukh under section 35 of the Tenancy Act; that Smt.
Sukhia 's remarriage with Gopal Singh was not proved; that since the possession of Smt.
Sukhia was recorded throughout as widow of Chain Sukh, there was no occasion for attracting the provisions contained in section 180(2) of the Tenancy Act; and that on her death in 1965 the succession was gov erned by section 172 read with section 171 of the Zamindari Abolition Act.
In reply, it was contended that remarriage of Smt.
Sukhia prior to the date of vesting, i.e., 1.7. 1952, under the U.P. Zamindari Abolition and Land Reforms Act, 1950 being the admitted case of the appellant, Smt.
Mainia, herself, the appellant could not now he permitted to take contrary stand; that the possession of Smt.
Sukhia in the holding at the time .of her death not being as a widow of Chain Sikh but in her own right, the succession was governed not by section 172 but by section 174 of the Zamindari Abolition Act under which Chartder Pal inherited Smt.
Suk hia 's interest in the holding as her son.
Dismissing the appeal, this Court, HELD: (1) The case of the appellant before the Consoli dation Officer was put up on the basis of Smt.
Sukhia being remarried to Gopal Singh and Chander Pal being the son born to Smt.
Sukhia after her remarriage could not claim to be a legal heir of Smt.
Sukhia 's first husband Chain Sukh.
The High Court was, therefore.
right in taking the view that the matter must he decided on that basis.
[691F G] (2) The mere fact of Smt.
Sukhia 's name being shown in the 687 family register as widow of Chain Sukh till the time of her death in 1965 did not have the effect of continuing Smt.
Sukhia 's status as widow of Chain Sukh even after she had become the wife of Gopal Singh as a result of her remar riage.
[691H 692A] BadriPrasad vs Deputy Director Consolidation, A.I.R. 1978S.C. 1557, referred to.
(3) Section 36 of the Tenancy Act, which clearly pro vides for succession to a female tenant holding an interest inherited as a widow in the case of her marriage thereafter, or, in other words, remarriage, was attracted in the present case.
[692F] (4) According to section 36, on the remarriage of Smt.
Sukhia with Gopal Singh the interest devolved in accordance with the order of succession laid down in section 35 on the heirs of the last male descendant, that is, Chain Sukh but appellant Smt.
Mainia, married sister of Chain Sukh, not being one of the heirs of Chain Sukh according to section 35 of the Tenancy Act, the interest did not devolve on Smt.
Mainia.
(5) The continued possession of Smt.
Sukhia after her remarriage attracted section 180 of the Tenancy Act.
[693D] (6) Admittedly, no suit as contemplated by sub section (2) of section 180 of the Tenancy Act was brought at any time against Smt.
Sukhia and the prescribed period of limi tation for such a suit expired prior to her death in 1965.
Sub section (2) of section 180 of the Tenancy Act was, therefore, clearly attracted and Smt.
Sukhia had become a hereditary tenant by virtue of that section with the further consequences flowing therefrom.
[694A B] (7) The legal consequence flowing from sections 36 and 180 of the U.P. Tenancy Act is enough to indicate that the character of widow 's possession after her remarriage altered by operation of law and any further animus is not required to bring about the effect of the statutory provisions which ensue on expiry of the limitation prescribed for a suit to evict her.
[694G] Ram Jivan vs Smt.
Phoola (dead) by Lrs., ; Jagarnath and others vs Deputy Director of Consolida tion Gorakhpur and others, [1976] AWC 654 and Chhiddoo Singh vs Deputy Director of Consolidation & others.
, [1976] AWC 809, distinguished.
|
vil Appeal No. 2931 (N) of 1981.
From the Judgment and Order dated 7.10.1980 of the Madhya Pradesh High Court in Miscellaneous First Appeal No. 78 of 1974.
L.M. Singhvi, D. Bhandari and A.K. Sanghi for the Appellant.
T.S. Krishnamurthy Iyer and S.K. Gambhir for the Respondent.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This Civil Appeal by special leave is from the order dated 7.10.1980 of the High Court of Madhya Pradesh, Jabalpur in Misc (F) Appeal No. 78 of 1974, allow ing the appeal and enhancing compensation for land acquired by the Improvement Trust, Bhopal.
The Improvement Trust, Bhopal, hereinafter referred to as 'the Trust ', acquired 152 acres of land of Village Jamal pura by Notification dated 30th April, 1965 issued under Section 68 of the Madhya Pradesh Town Improvement Trust Act, 1960, hereinafter referred to as 'the Act ', and took posses sion of the land sometimes in June, 1967.
Out of these acquired land the instant appellant owned 12.62 acres where upon stood a house, a well and some trees.
The whole of the acquired land including that of the appellant was within the limits of Bhopal Municipal Corporation.
On 25.3.1966 Notifi cation under Section 71 of 911 the Act was issued vesting the land in the Trust.
The Trust offered compensation at the rate of Rs.950 per acre (@ 14 paise per sq.
ft.) amounting to Rs.11,997.00; for the well Rs.3,108; and for the trees Rs.815 and for compulsory acqui sition 15% amounting to Rs.2,400.
The appellant made refer ence, No. 8 of 1970 to the Compensation Tribunal under Section 72(3) of the Act.
The Tribunal awarded compensation at the rate of Rs.6,000 per acre (Rs.0.28 Paise per sqr.
ft.) for the land, Rs.5,000 for the building, Rs.3,000 for the well and Rs.815 for the trees.
Thus the Tribunal by its award dated 25th November, 1972 awarded a total sum of Rs.1,20,060 inclusive of interest as compensation to the appellant, as against his claim at the rate of Rs.20,000 per acre for the land, Rs.20,000 for the building, Rs.5,000 for the well, Rs.2,500 for the trees and Rs. 10,000 for loss of business and earnings, his total claim amounting to Rs. 13,39,560.
On appeal, being Misc.
(F) Appeal No. 78 of 1974, the High Court maintained the award in respect of the Build ing, well and the trees, but enhanced the compensation in respect of the land determining the market value at Rs. 12,000 per acre and the total area being 12.62 acres the total compensation inclusive of that allowed for the house etc.
and 15% solatium worked out to Rs. 1,84,293.
Dissatis fied, the appellant obtained leave and filed this appeal.
Dr. L.M. Singhvi learned counsel for the appellant submits, inter alia, that the house and the well were gross ly undervalued; that both the Tribunal as well as the High Court misdirected themselves in treating the land as agri cultural land but not as urbanised developed land on the erroneous ground that there was no building activity of substantial nature at the time of acquisition in spite of the fact that a part of the land was already converted to Abadi, that both the Tribunal as well as the High Court failed to take into consideration the potential value of the land; and that evidence of sales of similar plots was not accepted on the ground that those pertained to small plots; and that the High Court committed an error when it deducted the development charge from the agreed price instead of adding it to the agreed price while calculating the market value.
Mr. Krishnamurthi learned counsel for the respondent Trust submits that the house and the well were properly valued; that it was not correct that the Tribunal did not correctly consider the question of the nature of the land which it held to be agricultural because it did not find therein any building activity of substantial nature.
At any rate, counsel submits, the High Court took into considera tion the potential value of the land and as such there was no omission to consider any 912 relevant material or misdirection in this regard.
Counsel, however, fails to explain the reason of deducting the devel opment charge from the agreed price, instead of adding it, while calculating market value of the lands on the basis of evidence produced by the claimant.
This, however, according to counsel, is not a sufficient ground for our interference in this appeal under Article 136 of the Constitution of India.
In an appeal under Article 136 of the Constitution of India involving the question of valuation of acquired land, this Court will not interfere with the award unless some erroneous principle has been invoked or some important piece of evidence has been overlooked or misapplied, as was held in Atmaram Bhagwant vs Collector of Nagpur, A.I.R. 1929 P.C. 92.
In Dollar Company, Madras vs Collector of Madras, the Land Acquisition Officer awarded Rs. 800 per ground as compensation and the City Civil Court on reference awarded at the rate of Rs. 1,000 pet ground, and the High Court on appeal awarded Rs.1800 per ground.
The appellant himself purchased the suit land about 10 months before the Notification under Section 4 was made at a price of Rs.410 per ground whereafter the appellant has spent a little money on filling up a pond.
Dismissing the appeal it was observed that this Court interferes with the judgment of the High Court only if the High Court applies a principle wrongly or because some important point affecting valuation has been overlooked or misapplied.
A Court of appeal inter feres not when the judgment under attack is not right, but only when it is shown to be wrong.
As there was no error in principle in the High Court judgment nor had any of the limited grounds on which that Court 's jurisdiction could be legitimately exercised was made out, the appeal was dis missed.
Therefore, it is for the the appellant to show that there is ground for interference in this case.
As regards the value of the house, the Land Compensation Tribunal clearly observed that it visited the spot and found that the house 'was in extremely dilapidated condition having big cracks in foundation, walls and pillars.
The foundation was getting loose.
The roof of asbestos sheets was sagging, indicating that the wood rafters had been badly damaged.
Doors and windows were in bad condition.
The two verandahs of the house were temporary, with roof of asbestos sheets. ' The house, according to the Tribunal might be 20 to 25 years old and depreciation would be 5% per year.
Considering the above factors 913 we are of the view that the compensation awarded, namely, Rs.5,000 is reasonable.
Also from evidence we find that Rs.3,000 for the well was reasonable.
There was no error of principle and hence there can be no grievance on these counts.
Regarding nature of the land the Tribunal noted that the claimants in most of the references asserted that the ac quired land should be valued as urban house site because of alleged potential value and had claimed compensation between the Rs.3 to Rs. 1 per sqr.
The Trust disputed the claim and urged that the lands at the time of acquisition, were either agricultural or merely fallow land and they had absolutely no urban site value.
The claimants also urged that the lands were situated within Corporation limits and lands of some of the claimants were already diverted (con verted).
We agree with Mr. Krishnamurthi that though the Tribunal treated it as agricultural, the High Court proceed ed on the principle of developed land.
It is true that the market value of the land acquired has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner.
Dr. Singhvi argues that failing to consider potential value is an error of principle.
It is an accepted principle as was laid down in Gajapatiraju vs Rev. Divisional Officer, A.I.R. 1939 P.C. 98 that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to obtain from willing purchaser.
The disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must alike be disregarded.
Neither must be considered as acting under compulsion.
The value of the land is not to be estimated at its value to the purchaser but this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded.
The wish of a particular purchaser, though not his compulsion, may always be taken into consideration for what it is worth.
Any sentimental value for the vendor need not be taken into account.
The vendor is to be treated as a vendor willing to sell at the market price.
Section 23 of the Land Acquisition Act, 1894, enumerates the matters to be considered in determining compensation The first to be taken into consideration is the market value of the land on the date of the publication of the Notification under Sec tion 4(1).
Market value is that of a willing vendor and a willing purchaser.
A willing vendor would naturally take into consideration such factors as would contribute to the value of his land including its unearned increment.
A will ing purchaser would also consider more or less the same factors.
There may be many ponder 914 able and imponderable factors in such estimation or guess work.
Section 24 of the Act enumerates the matters which the Court shall not take into consideration in determining compensation.
Section 25 provides that the amount of compen sation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11.
As was observed in Gajapatiraju (supra) sometimes, it happens that the land to be valued possesses some unusual, and it may be, unique features, as regards its position or its potentiali ty.
In such a case the court has to ascertain as best as possible from the materials before it what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with that particular potentiality.
In the instant case also the ac quired land possesses Some important features being located within the Corporation area and its potentiality for being developed as a residential area.
In such a situation in determining its market value, where there was no sufficient direct evidence of market price, the Court was required to ascertain as best as possible from the materials before it, what a willing vendor would reasonably have expected to obtain from a willing purchaser from the land in this par ticular position and with this particular potentiality.
It is an accepted principle that the land is not to be valued, merely by reference to the use to which it has been put at the time at which its value has to be determined, that is, the date of the notification under Section 4, but also by reference to the use to which it is reasonably capable of being put in the future.
A land which is certainly or likely to be used in the immediate or reasonably near future for building purposes but which at the valuation date is waste land or has been used for agricultural purposes, the owner, however willing a vendor he is.
is not likely to be content to sell the land for its value as waste or agricultural land as the case may be.
The possibility of its being used for building purposes would have to be taken into account.
However, it must not be valued as though it had already been built upon.
It is the possibilities of the land and not its realised possibilities that must be taken into considera tion, In other words, the value of the land should be deter mined not necessarily according to its present disposition but laid out in its lucrative and advantageous way in which the owner can dispose it of.
It is well established that the special, though natural, adaptability of the land for the purpose for which it is taken, is an important element to be taken into consideration in determining the market value of the land.
In such a situation the land might have already been valued at more than its value as agricultural land, if it had any other capabilities.
However, only rea sonable and fair capabilities but not far fetched and hypo thetical capabilities are to be taken into consideration.
In sum, in estimating 915 the market value of the land all of the capabilities of the land, and all its legitimate purposes to which it may be applied or for which it may be adapted are to be considered and not merely the condition it is in and the use to which it is at the time applied by the owner.
The proper principle is to ascertain the market value of the land taking into consideration the special value which ought to be attached to the special advantage possessed by the land; namely, its proximity to developed urbanised areas.
The value of the potentiality has to be determined on such materials as are available and without indulgence in fits of the imagination.
In Mahabir Prasad Santuka vs Col lector, Cuttack, [1987] 1 S.C.C. 587 the evidence on record was that the land was being used for agricultural purposes but it was fit for non agricultural purposes and it had potentiality for future use as factory or building site and that on industrialisation of the neighbouring areas the prices increased tremendously, and that aspect, it was held, could not be ignored in determining compensation.
On the question as to whether the land was urbanised developed land or not we find that the Tribunal consolidated all the 15 references arising out of the acquisition for the purpose of recording evidence and, that is, how it came to consider the Exts.
P 1, P 2, P 3, and P 8 being agreements of sale executed by Phool Chand Gupta who was father of the claimant in reference No. 1 of 1970 while the petitioners reference was No. 8 of 1970.
Similarly the Ext.
D 1 to D 6 also pertained to small plots of land out of land in refer ence No. 1 of 1970.
The High Court rightly held that the Exts.
P 1, P 2, P 3 and P 8 and the sale deeds Exts.
D 1 to D 6 furnished a more reliable data for working out the market value.
If those lands were the urban developed house site lands, their prices would have reflected the same.
It cannot, therefore be said that High Court was in error in taking the above Exts.
into consideration.
However, poten tial value was not separately considered.
P 1, P 2, P 3 and P 8 were agreements of sale executed on 29th July, 1961 in respect of small parcels of land wherein the vendor agreed to sell the land at that time at the rate of 14 annas per sqr.
to Rs. 1 per sqr.
It was further agreed that the vendees would pay development charges at the rate of 4 annas per sqr.
The vendor and the respective vend ees were examined It should be noted that the Exts. were agreements to sell and not sales.
The High Court observed.
that the idea behind those transactions was that the vendor would apply to the revenue authority for diversion and the town planning authority for sanction of lay out plan and the sale deeds would be executed after the land was developed.
The High Court also noted that 916 there was nothing to show that the agreements were prepared only to be used later as evidence of market value.
In Decem ber 1960 Phool Chand Gupta applied for diversion of his land to the Sub Divisional Officer.
In January 1961 application was also made to the Town Planning Authority for sanction of the lay out plan but in the meantime the land was notified for acquisition under the Land Acquisition Act sometimes in 1962 and Phool Chand Gupta tried to extricate his land from acquisition which, however, did not materialise and, as already noted, on 30.4.65 the instant notification to ac quire under Section 68 of the Act was issued.
Rejecting the contention that the agreements were spurious, the High Court observed that the very fact that applications were made for diversion and for sanction of lay out plan went to show that the owner was interested in the development in the land and in selling it after dividing it into plots.
Thus, the High Court, rightly took into consideration the above Exts, which pertained to a part of the acquired land of 152 acres.
The High Court also considered the sale deeds Exts.
D 1 to D 6 which pertained to small plots of lands out of land in reference No. 1 of 1970.
Those sale deeds were registered in 1966 67, but the agreements to sale were entered into in 1959 62.
The respective purchasers and the vendors were examined.
The market value on the basis of Ext.
D 2 made in the sale deed of 1962 selling only to 12.50 sqr.
for Rs.260 which worked out to Rs.8712 per acre.
The High Court did not say that these Exts. were rejected.
By Ext.
P 5, P 6 and P 32 small parcels of land, at Kumharpura were sold.
Kumharpura was noted to be two to three furlongs away from the acquired land.
The market rate according to these Exts.
ranged from Rs. 1.88 to 2.34 per sqr.
The High Court observed that these sales could not be a useful guide for determining the market value of land acquired.
We are of the view that compared to Exts.
P 1, P 2, P 3 and P 8 Exts.
P 5 and P 6 and P 32 were less indicative of the market value of the acquired land.
We feel that the appellant should have no grievance for rejection of these sales of Kumharpura.
We find force in the contention of Dr. Singhvi that potential value was not taken into account in this case to the extent it should have been done.
From the award dated 25.11.1972 it appears that the acquired land was situated at Village Nissatpura, within Corporation limits of Bhopal Town and consisting of Khasra No. 190/ 73, 136/74, 178/74, 135/75 76, the total area being 12.62 acres.
The High Court found that the land was bounded on three sides by three roads: towards the eastern side by Berasia road; towards the western side by Sultania road; and towards the northern side by P.G.B.T. College Road.
Southern boundary of the land was a Nala.
The High 917 Court also noticed that the land abutted to roads, namely, Berasia road and P.G.B.T. College road and the claimant had a house on the land and that the claimant had stated that he had obtained water and electricity connection from the Corporation and the electricity Board.
: 7.60 acres of land out of 12.62 acres had been diverted and the land was even.
At paragraph 14 of the special leave petition it is stated that the land is approachable from two different and important localities of Bhopal Town.
From Bajaria Chowk Shahjanabad, a road, called Sultania Infantry road, proceeds Military Lines called Sultania Infantry lines.
On both sides of this road, there is the thickly habited locality of Shahjahanabad, till about two furlongs.
Slightly ahead is the enterance porch gate of the Military lines.
Just before the gate, a tarred road bifurcates on the right hand side and it enters the acquired land of Swatantra Kumar Ref.
No. 1/70.
This tarred road was constructed by the Trust after acquisition of the lands.
It goes on all sides of village Jamalpura, which is surrounded on all sides by the lands of Ref.
No. 1/70.
A part of land of Ref.
No. 1/70 was developed after acquisition, and the tarred road reaches the developed plots.
We have to note that such detail evidence was not there before the Tribunal and no benefit of development pursuant to and after the acquisition can be taken into consideration.
Even so, from the map and juxtaposition we have no doubt that the acquired land had potentialities which deserved to be counted.
In U.P. Government vs
H.S. Gupta, A.I.R. 1957 S.C. 202 where in computing compensation for acquisition of an estate outside the Municipal area the High Court had given valid and weighty reasons for adopting the principle that the valuation should be on plot wise though there was certain advantages in computing the value at the block rate where vast area of land was acquired, this Court held that in the circumstances of that case the proper mode of valuation was plot rate basis.
In the instant case the application of the principle that if the land has to be sold in one block consisting of a large area, the rate likely to be fixed per sq.
ft. would be lower than if an equal extent of land is parcelled out into smaller bits and sold to different pur chasers could not be found fault with.
The price fetched for smaller extent of land similarly situated with the same kind of advantages and drawbacks can also be applied to a large area valued plot wise instead of block wise.
In the instant case relying on Exts.
P 1, P 2, P 3 and P~8 and considering the fact that applications were made for diversion and for sanction of a lay out plan the High Court found that it went to show that the owner was interested in developing the land and in selling it by 918 dividing it into plots.
The lowest rate of price in these agreements was 14 annas per sqr.
and the agreements mentioned that 4 annas per sqr.
ft. Would be needed for developing the land.
This charge was to be paid by the purchaser.
So the price of developed land would be Rs. 1/2 per sqr.
The evidence of M.P. Jain (D.W. 9), Senior Draftsman of the Improvement Trust went to show that ex penses for improvement of land ranged from Rs. 1.50 to 2 per sqr.
The statement of Shri Jain was recorded in 1972.
Making some allowance for the increase in the rate the High Court considered it proper to hold that in 1965 when this land was acquired the charges for improvement would have worked at 75 paise (12 annas) per sqr.
It had also come in the evidence of Shri Jain that 50 to 60 per cent of the land had to be left for roads, drainage, gardens, school etc.
and it was only then that the lay out plan was sanc tioned.
High Court, accordingly, deducted improvement charges at the rate of 12 annas per sqr.
ft., and the market rate for unimproved land in the light of these agreements worked out to 6 annas per sqr.
As 50% of the land at least had to be left out for roads etc; so the market rate of 3 annas per sqr.
ft. was applied for the entire unde veloped land.
Market rate thus worked out to Rs.8,000 per acre approximately.
However, the High Court awarded Rs. 12,000 per acre.
There was an additional factors in the calculation.
Mr. Krishnamurthi therefore submitted that the High Court took into consideration the potential value of the land as a developed area but while making calculation it may have committed mistake.
To our mind the error was in wholly overlooking the basic price agreed to be paid by the purchaser and the standard of development they visualised.
The whole of the basic price could not be expected to be eaten up by the development of the land to the standard contemplated by the vendor and purchaser.
When the willing vendor has agreed to sell land at 14 annas per sqr.
after development and the development charge was to be paid by the willing purchaser, it could be reasonable to deduct only 50% on account of the land to be set apart for roads, drains etc.
and not beyond that.
Considering this aspect of the matter and the potential value of the land as urban developed area we are of the view that the compensation may justly be enhanced by 1/6th to Rs. 14,000 per acre and we do so.
We maintain 15% solatium but raise the rate of interest to 9% on the enhanced compensation from today till payment.
We leave it open for the appellant to move for higher inter est and solatium if entitled by virtue of subsequent judg ment of this Court, if any.
In the result, this appeal is allowed as above.
We make no order as to costs.
Y.L. Appeal allowed.
| IN-Abs | Respondent Town Improvement Trust Bhopal acquired 152 acres of land in village Jamalpura under section 68 of the Madhya Pradesh Town Improvement Trust Act within the munici pal limits of Bhopal.
That land included 12.62 acres of land belonging to the appellant on which stood a house, a well and some trees.
The appellant being not satisfied with the amount of compensation offered to him by the Trust, made a Reference to the Compensation Tribunal.
The Tribunal awarded compensation at the rate of Rs.6,000 per acre for the land, Rs.5,000 for the building, Rs.3,000 for the well and Rs.815 for the trees.
Thus the Tribunal awarded a total sum of Rs.1,20,000 as compensation as against a claim of Rs.13,39,560 made by the appellant.
On appeal, the High Court, maintained the award in respect of the building, well and the trees but enhanced the same so far as the land is concerned by determining the market value of Rs.12,000 per acre.
Working or this basis, including 15% solatium, the total amount of compensation awarded worked out to he Rs. 1,84,923.
Being dissatisfied with the Order of the High Court, he has come up to this Court after obtaining special leave.
The main contentions urged by the appellant are (i) that the house and well are undervalued; (ii) that the land ought to have been treated as urbanised developed land; (iii) that potential value of the land has not 909 been taken into consideration while determining compensa tion; (iv) that the value of the sales of similar plots has wrongly been rejected.
Partly allowing the appeal, this Court, HELD: In determining market value, where there was no sufficient direct evidence of market price, the Court is required to ascertain as best as possible from the materials before it, what a willing vendor would reasonably have expected to obtain from a willing purchaser from the land in its particular position and with its particular potentiali ty.
[914C D] A land which is certainly or likely to be used in the immediate or reasonably near future for building purposes but which at the valuation date is waste land or has been used for agricultural purposes, the owner, however, willing a vendor he is, is not likely to be content to sell the land for its value as waste or agricultural land as the case may be.
The possibility of its being used for building purposes would have to be taken into account.
However, it must not be valued as though it had already been built upon.
It is the possibilities of the land and not its realised possibilities that must be taken into consideration.
[914E F] In estimating the market value of the land, all the capabilities of the land and all its legitimate purposes to which it may be applied, or for which it may be adapted are to be considered and not merely the condition it is in and the use to which it is put at the time applied by the owner.
The proper principle is to ascertain the market value of the land taking into consideration the special value which ought to be attached to the special advantage possessed by the land; namely, its proximity to developed urbanised areas.
[915A B] The value of the potentiality has to be determined on such materials as are available and without indulgence in fits of imagination.
[915B C] A court of appeal interferes not when the judgment under attack is not right, but only when it is shown to be wrong.
[912E] In an appeal under article 136 of the Constitution of India involving the question of valuation of acquired land, the Supreme Court will not interfere with the award unless some erroneous principle has been invoked or some important piece of evidence has been overlooked or misapplied [912B C] 910 When the willing vendor had agreed to sell land at 14 annas per sq.
feet after development and the development charge was to be paid by the willing purchaser it could be reasonable to deduct only 50% on account of the land to be set apart for roads, drains etc.
and not beyond that.
Con sidering this aspect of the matter and the potential value of the land as urban developed area the Court took the view that the compensation may justly be enhanced by 1/6th i.e. to Rs.14,000 per acre.
Solatium 15% was maintained but the rate of interest was raised to 9% on the enhanced compensa tion till payment.
[918F G ] Atmaram Bhagwant vs Collector ofNagpur, A.I.R. 1929 P.C. 92, followed; Dollar Company Madras vs Collector of Madras, ; Gajapatiraju vs Rev. Divisional Officer, ; Mahabir Prasad Santuka vs Collector, Cuttack, [1987] 1 S.C.C. 587 and U.P. Government vs
H.S. Gupta, A.I.R. 1957 S.C. 202.
|
Appeal No. 150 of 1955.
Appeal from the judgment and decree dated August 20, 1952, of the Punjab High Court in Regular First Appeal No. 107 of 1949 arising out of the judgment 140 1100 and decree dated March 22, 1948, of the Court of the sub Judge 1st Class, Panipat, in Suit No. 361 of 1947.
Dr. J. N. Banerjee and K. L. Mehta, for the appellant.
Gopal Singh, for respondents Nos.
1 to 9.
May 23.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
If a Hindu governed by the customary law prevailing in the Punjab succeeds to his maternal grandfather 's estate, is the property in his hands ancestral property qua his own sons? This is the short and interesting question of law which arises in this appeal.
The appellant is the son of Sarup, respondent 10.
On the death of his mother Musammat Rajo, respondent 10 inherited the suit properties from his maternal grandfather Moti.
On March 22, 1927, he executed a registered mortgage deed in respect of the said properties in favour of Shibba the ancestor of respondents I to 9 for Rs. 5,000.
Subsequently, on April 12, 1929, he sold the equity of redemption to the said mortgagee Shibba for Rs. 11,000.
In Suit No. 145 of 1946 filed by the appellant in the court of the Sub Judge, Panipat, from which the present appeal arises, the appellant had claimed a declaration that the two transactions of mortgage and sale in question did not bind his own reversionary rights, because the impugned transactions were without consideration and were not supported by any legal necessity. 'His allegation was that his family was governed by the custom prevailing in the Punjab and, under this custom, the property in suit was ancestral property and he was entitled to challenge its alienation by his father respondent 10.
Respondents 1 to 9 disputed the appellant 's right to bring the present suit and urged that the alienations by respondent 10 were for consideration and for legal necessity.
It was, however, common ground that respondent 10 and the appellant were governed by the custom prevailing in the Punjab.
The learned trial judge held that the property in dispute was ancestral qua the appellant 1101 and that the impugned alienations were not effected for consideration or for legal necessity.
He, however, held that the appellant was not born at the time when the mortgage deed in question was executed and so he was not entitled to challenge it.
In the result the appellant was given a declaration that the sale in dispute did not bind the appellant 's reversionary rights in the property after the death of respondent 10.
The appellant 's claim in regard to the mortgage was dismissed.
Respondents 1 to 9 went in appeal against this decree to the District Judge at Karnal and contended that the suit had abated in the trial court as a result of the death of one of the defendants pending the decision of the learned trial judge.
The learned District Judge rejected this contention but he set aside the decree and remanded the suit for proceedings for substituting the legal representatives of the deceased defendant Ram Kala.
After remand the legal representatives of the deceased Ram Kala were brought on record and ultimately the original decree passed by the trial court ",as confirmed by the learned trial judge.
Respondents I to 9 again challenged this decree by preferring an appeal to the District Judge at Karnal.
The learned District Judge held that the value of the subject matter of the suit was more than Rs. 5,000 and so he ordered that the memorandum of appeal should be returned to respondents I to 9 to enable them to file an appeal before the High Court.
That is how respondents I to 9 took their appeal to the High Court of Punjab.
The High Court took the view that the appeal had in fact been properly filed the District Court; but even so it did not ask respondents 1 to 9 to go back to the District Court, but condoned the delay made by the said respondents in the presentation of the appeal before itself and proceeded to deal with the appeal on the merits.
The High Court held that the property inherited by respondent 10 was 'not ancestral property qua the appellant, and so it allowed the appeal preferred by respondents 1 to 9 and dismissed the appellant 's suit.
In view of the fact that the point of law raised before the High Court was not free from doubt the High 1102 Court ordered that parties should bear their own costs throughout.
The appellant then applied for and obtained a certificate from the High Court under the first part of section 110 of the Code of Civil Procedure.
It is with this certificate that the present appeal has come before this Court and the only point which has been raised for our decision is whether the property in suit can be held to be ancestral property between the appellant and respondent 10.
Under the Hindu law, it is now clear that the only property that can be called ancestral property is property inherited by a person from his father, father 's father or father 's father 's father.
It is true that in Raja Chelikani Venkayyamma Garu vs Raja Chelikani Venkataraman ayyamma (1) the Privy Council had held that under Mitakshara law the two sons of a Hindu person 's only daughter succeed on their mother 's death to his estate jointly with benefit of survivorship as being joint ancestral estate.
This decision had given rise to a conflict of judicial opinion in the High Courts of this country.
But in Muhammad Husain Khan vs Babu Kishva Nandan Sahai (2) this conflict was set at rest when the Privy Council held that under Hindu law a son does not acquire by birth an interest jointly with his father in the estate which the latter inherits from his maternal grandfather.
The original text of the Mitakshara was considered and it was observed that the ancestral estate in which, under the Hindu law, a son acquires jointly with his father an interest by birth, must be confined to the property descending to the father from his male ancestor in the male line.
Sir Shadi Lal, who delivered the judgment of the Board, explained the earlier decision of the Privy Council in Raja Chelikani Venkayyamma Garu 's case (1) and observed that in the said case " it was unnecessary to express any opinion upon the abstract question whether the property which the daughter 's son inherits from his maternal grandfather is ancestral property in the technical sense that his son acquires therein by birth an interest jointly with him." The learned Judge further clarified the position by stating that the (1) (19O2) L.R. 29 I.A. 156.
(2) (1937) L.R. 64 I.A. 250.
1103 phrase 'ancestral property ' used in the said judgment was used in the ordinary meaning, viz., property which devolves upon a person from his ancestor and not in the restricted sense of the Hindu law which imports the idea of the acquisition of interest on birth by a son jointly with his father.
Thus there is no doubt that under the Hindu law property inherited by a person from his maternal grandfather is not ancestral property qua his sons.
The question which arises in the present appeal is: what is the true position in regard to such a property under the Customary law prevailing in the Punjab ? This question has been considered by Full Benches of the High Court of Punjab on three occasions.
Let us first consider these decisions.
In Lehna vs Musammat Thakri (1), it was held by the Full Bench (Roe section J. and Rivaz J., Chatterji J. dissenting) that " in the village community where a daughter succeeds, either in preference to, or in default of, heirs male, to property which, if the descent had been through a son, would be ancestral property, she simply acts as a conduit to pass on the property as ancestral property to her sons and their descendants and does not alter the character of the property simply because she happens to be a female ".
Chatterji J., however, held that the word "ancestral" can only be used in a relative and not in a fixed or absolute sense in customary law, and before this character can be predicated of any property in the hands of a male owner, it must be found that it has descended to him from a male ancestor and in the case of a claim by collaterals, from a male ancestor common to him and the claimants.
It is apparent from the majority judgment that the learned judges did not find the alleged custom about the character of the property proved by any evidence.
They proceeded to deal with the question rather on a priori considerations and the main basis for the decision appears to be that the property cannot lose its character of ancestral property merely because it has come through a female who succeeded her father in default of male heirs.
Chatterji J. dissented from this (1) [1895] 30 P.R. 124.
1104 approach.
He observed that he could not recall any instance in which property derived from or through any female ancestor among Hindus had been decided to fall within the category of ancestral property under the customary law.
He also pointed out that the statement of the learned author of the Digest on the Customary Law of the Punjab on this point did 'not support the majority view.
Thus it would not be unreasonable to say that the majority decision in this case is not a decision on the proof of custom as such.
The same point was again raised before a Full Bench of the High Court of Punjab in Musammat Attar Kaur vs Nikkoo (1).
Sir Shadi Lal C. T. who delivered the principal judgment of the Full Bench conceded that there was " a great deal to be said in favour of the proposition that, unless the land came to a person by descent from a lineal male ancestor in the male line, it should not be treated as ancestral." He also conceded that the decision in the earlier Full Bench case of Lehna (2) did not rest upon any evidence relating to custom on the subject but was based on what the majority of the judges considered to be the general principles of the customary law, and upon the argument abinconvenienti.
The learned Chief Justice then took into account the fact that the question about the character of such property even under the Hindu law was not free from doubt and he referred to the conflict of judicial opinion on the said point.
Having regard to this conflict the learned Chief Justice was not inclined to reopen the issue which had been concluded by the earlier Full Bench decision, and basin(, himself on the doctrine of stare decisis he held that the majority decision in Lehna 's case (2), should be treated as good law.
It would be noticed that the judgment of Sir Shadi Lal C. J. clearly indicates that, on the merits, he did not feel quite happy about the earlier decision in Lehna 's case (2).
It appears that the same question was again raised before another Full Bench of the High Court of Punjab in Narotam Chand vs Mst.
Durga Devi (3).
In this (1) Lah. 356.
(2) [1895] 30 P.R. 124.
(3) I.L.R. 1105 case the main question which arose for decision was under article 2 of the Punjab Limitation (Custom) Act I of 1920.
This article governs suits for possession of ancestral immoveable property which has been alienated on the ground that the alienation is not binding on the plaintiff according to custom.
It provides for two periods of limitation according as a declaratory decree is or is not claimed.
In dealing with the point as to whether the suit in question attracted the provisions of article 2 of Act I of 1920, the Full Bench had to consider whether the property in suit was ancestral property or not; and that raised the same old question whether property from maternal grand father in the hands of a grandson can be described as ancestral property or that such property in the hands of a daughter can be given that description.
The matter appears to have been elaborately argued before the Full Bench.
The previous Full Bench decisions were cited and reference was made to two decisions of the Privy Council which we will presently consider.
Mahajan J., as he then was, who delivered the main judgment of the Full Bench held that the property inherited by a Hindu from his maternal grandfather is not ancestral qua his descendants under the customary law of the Punjab.
The learned judge also held that the two Privy Council decisions cited before the court had in effect overruled the earlier Full Bench decisions of the Punjab High Court.
It is this last decision of the Full Bench which has been followed by the High Court in the present proceedings.
The appellant contends that the high Court was in error in not following the earlier Full Bench decisions on this point and it is urged on his behalf that the decision of the last Full Bench in Narotam Chand 's case (1), should not be accepted as correct.
We do not think that the appellant 's contention is well founded.
So far as the statement of the customary law itself is concerned, Rattigan 's Digest which is regarded as an authority on the subject, does not support the appellant 's case.
Inpara.
59 of the Digest of Civil Law for the Punjab chiefly based on the customary law it is (1) I.L.R. 1106 stated that ancestral immoveable property is ordinarily inalienable (especially amongst Jats, residing in the Central Districts of the Punjab) except for necessity or with the consent of male descendants or, in the case of a sonless proprietor, of his male collaterals.
Provided that the proprietor can alienate ancestral immoveable property at pleasure if there is at the date of such alienation neither a male descendant nor a male collateral in existence.
Following this statement of the law the learned author proceeds to explain the meaning of ancestral property in these words: "Ancestral property means, as regards sons, property inherited from a direct male lenial ancestor, and as regards collaterals property inherited from a common ancestor ".
Thus, so far as the customary law in the Punjab can be gathered, the statement of Rattigan is clearly against the appellant.
Then as regards the first Fall Bench decision in Lehna 's case (1), as we have already pointed out, there is no discussion about any evidence of custom and indeed no evidence about the alleged custom appears to have been led before the learned judges.
It is, therefore, difficult to accept this decision as embodying the learned judges ' considered view on the question of custom as such.
That in effect is the criticism made by Chatterji J. in his dissenting judgment and we are inclined to agree with the views expressed by Chatterji J. When this question was raised before the second Full Bench in Mst.
Attar Kaur 's case (2), Sir Shadi Lal C. J. rested his decision on stare decisis mainly because the true position on the said question even under the Hindu law was then in doubt.
This consideration has now lost all its validity because, as we have already indicated, the true position under the Hindu law about the character of such property has been authoritatively explained by Sir Shadi Lal himself in the Privy Council decision in Muhammad Husain Khan 's case (3 ).
That is why we think not much useful guidance or help can be derived from this second Full Bench decision.
The last Full Bench decision in Narotam Chand 's case (4), is (1) [1895] 30 P.R. 124.
(2) Lah.
(3) (1937) L.R. 64 I.A. 250.
(4) I.L.R. 1107 based substantially on the view that, as a result of the Privy Council decision in Muhammad Husain Khan 's case (1), the two earlier Full Bench decisions must be taken to have been overruled.
Besides, the learned judges who constituted this Full Bench have also examined the merits of the two earlier judgments and have given reasons why they should not be takedas correctly deciding the true position under the customary law.
In our opinion, the view taken by this Full Bench is on the whole correct and must be confirmed.
It would now be necessary to consider the two Privy Council decisions on which reliance has been placed by Mahajan J., as he then was, in support of his conclusion that they have overruled the earlier Full Bench decisions.
In Attar Singh vs Thakar Singh(") the Privy Council was dealing with a suit by Hindu minors to set aside their father 's deed of sale of the lands in suit to the defendants on the ground that they were ancestral.
It was held that, as the plaintiffs claimed through their father as son and heir of Dhanna Singh, the onus was on them to show that the lands were not acquired by Dhanna Singh and, as that onus was not discharged, the lands must be deemed to be acquired properties of Dhaiina Singh and that deed could not be set aside.
The parties to this litigation were governed by the customary law of the Punjab.
In dealing with the character of the property in suit, Lord Collins who delivered the judgment of the Board observed that " it is through father, as heir of the above named Dhanna Singh, that the plaintiffs claimed, and unless the lands came to Dhanina Singh by descent from a lineal male ancestor in the male line, through whom the plaintiffs also in like manner claimed, they are not deemed ancestral in Hindu law.
" This statement indicates that, according to the Board, it is only where property descends from the lineal male ancestor in the male line that it partakes of the character of ancestral property.
It may be conceded that the question as to whether property inherited from a maternal grandfather is ancestral property or (1) (1937) L.R. 64 I.A. 250.
(2) (1908) L.R. 35 I.A. 206.
141 1108 not did not arise for the decision of the Board in this case; but it is significant that the words used by Lord Collins in describing the true position under the Hindu law in regard to the character of ancestral property are emphatic and unambiguous and this statement has been made while dealing with the case governed by the customary law of the Punjab.
This statement of the law was cited with approval and as pertinent by Sir Shadi Lal when he delivered the judgment of the Board Muhammad Husain Khan 's case (1).
The learned judge has then added that " Attar Singh 's case (2), however, related to the property which came from male collaterals and not from the maternal grandfather and it was governed by the custom of the Punjab; but it was not suggested that the custom differed from the Hindu law on the issue before their Lordships ".
The effect of these observa tions would clearly appear to be that the test laid down in Attar Singh 's case(2) would apply as much to the Hindu law as to the customary law of the Punjab.
In our opinion, these observations made by Sir Shadi Lal are entitled to respect and have been rightly relied upon by Mahajan J., as he then was, in the last Full Bench case (Narotam Chand 's case (3)), to which we have already referred.
We may add that it may not be technically correct to say that these observations overrule the earlier Full Bench decision of the Punjab High Court on the point.
We entertain no doubt that, if the relevant observations of Lord Collins in Attar Singh 's case (2) had been considered in the second Full Bench decision, they would have hesitated to rely on the doctrine of stare decisis in support of their final decision.
There is one more point which still remains to be considered.
Having regard to the principle of stare decisis, would it be right to hold that the view expressed by the High Court of Punjab as early as 1895 was erroneous ? the principle of stare decisis is thus stated in Halsbury 's Laws of England(4): (1) (1937) L.R. 64 I.A. 250.
(2) (1908) L.R. 35 I.A. 206.
(3) I.L.R. (4) 2nd Edn., Vol.
XIX, P. 257, para.
1109 " Apart from any question as to the Courts being of co ordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other, ways, will generally be followed by courts of higher authority than the court establishing the rule, even though the court before whom the matter arises afterwards might not have given the same decision had the question come before it originally.
But the supreme appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake.
" The same doctrine is thus explained in Corpus Juris Secundum(1) " Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases.
This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts, it is not universally applicable.
" The Corpus Juris Secundum (2), however, adds a rider that "previous decisions should not be followed to the extent that grievous wrong may result; and, accordingly, the courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous.
The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result.
" In the present case it is difficult to say that the doctrine of stare decisis really applies because the (1) VOL XXI P. 302, para. 187.
(2) VOI.
P. 322, para.
110 Correctness of the first Full Bench decision has been challenged in the Punjab High Court from time to time and in fact the said decision has been reversed in .950.
Besides, in 1908, the Privy Council made emphatic observations in Attar Singh 's case (1) which considerably impaired the validity of the first Full Bench decision ; so it would be difficult to say that the decision of the first Full Bench has been consistently followed by the community since 1895.
It cannot also be said that reversal of the said decision shakes any title or contract.
The only effect of the said decision was to confer upon the son of the person who inherited the property from his maternal grandfather the right to challenge his alienation of the said property.
It is doubtful if such a right can be regarded as the right in property.
It merely gives the son 'in option either to accept the transaction or to avoid it.
It cannot be said today that any pending actions would be disturbed because this right has already been taken away by the Full Bench in 1950.
In this connection, it may also be relevant to consider another aspect of this matter.
If it is held that the property inherited from maternal grandfather is not ancestral property, then it would tend to make the titles of the alienees of such property more secure.
Besides, we are satisfied that the decision of the first Full Bench is wholly unsustainable as a decision on the point of the relevant custom.
We are, therefore, inclined to take the view that the doctrine of stare decisis is in applicable and should present no obstacle in holding that the earlier cases of the Full Bench of the Punjab High Court were not correctly decided.
In the result we confirm the finding of the High Court that the property in suit is not ancestral property and that the appellant has no right to bring the present suit.
The appeal accordingly fails and must be dismissed.
The appellants will pay the respondent 's costs in this Court; and parties will bear their own costs in the courts below.
Appeal dismissed.
(1) (1908) L.R. 35 I.A. 2o6.
| IN-Abs | Under the customary law of the Punjab property inherited by a Hindu male from his maternal grandfather is not ancestral property qua his sons.
Narotam Chand vs Mst.
Durga Devi, I. L. R. (1950) Punj. 1, approved.
Lehna vs Musammat Thakyi, (1895) 30 P. R. I24 and Musammat Attar Kaur vs Nikkoo, Lah. 356, not approved.
The rule of stare decisis is not an inflexible rule and is inapplicable where the decision is clearly erroneous and when its reversal does not shake any titles or contracts or alter the general course of dealing.
|
Civil Appeal No. 326164 of 1988.
From the Judgment and Order dated 3.7.1987 of the Kerala High.
Court in T.R.C. Nos.
54 to 57 of 1983.
A.K. Ganguli and C.N. Sreekumar for the Appel lant.
A.S. Nambiar and K.R. Nambiar for the Respond ents.
The Judgment of the Court was delivered by 722 RANGANATHAN, J.
M/s. Cardamom Planters ' Association, Bodinayakanur, (hereinafter referred to as 'the society ') appeals from orders of the Kerala High Court upholding its liability to the levy of surcharge under the Kerala (Sur charge on Taxes) Act, 1957, as amended in 1970.
The Kerala General Sales Tax Act, 1963, imposes sales tax on every dealer whose total turnover for any year ex ceeds a specific sum.
The sum prescribed was initially Rs. 10,000 but was gradually stepped up to Rs.20,000 in 1971, Rs.25,000 in 1976, Rs.35,000 in 1980, Rs.50,000 in 1981, Rs.75,000 in 1982 and Rs.1 lakh in 1984.
The expressions 'dealer ', 'taxable turnover ', 'total turnover ' and 'turn over ' are defined in section 2 of the Act.
The relevant portions of these definitions read as follows: Section 2 (viii) "Dealer" means any person who carries on the business of buying, selling, supplying or distributing goods, executing works contract, transferring the right to use any goods or supplying by way of or as part of any service, any goods directly or otherwise, whether, or for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes.
(b) XX XX XX (c) a commission agent, a broker or a del credere agent or an auctioneer or any other merchantile agent, by whatever name called, who carries on the business of buying, sell ing, supplying or distributing goods (execut ing works contract, transferring the right to use any goods or supplying by way of or as part of any service, any goods) on behalf of any principal.
" Section 2 (xxiv) "taxable turnover" means the turnover on which a dealer shall be liable to pay tax as deter mined after making such deductions from his total turnover and in such manner as may be prescribed .
Section 2 (xxvi) 723 "total turnover" means the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax . .
Section 2 (xx vii) "turnover" means the aggregate amount for which goods are either bought or sold, or supplied or distributed, by a dealer, either directly or through another, on his own ac count or, on account of others, whether for cash or for deferred payment or other valuable consideration, provided that the proceeds of the sale by a person of agricultural or horti cultural produce grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise,, shall be excluded from his turn over.
Explanation (i)"Agricultural or horticultural produce" shall not include XXX XXX XXX (ii) tea, coffee, rubber, cardamom or timber.
XXX XXX XXX In 1957, the Kerala Legislature introduced a surcharge on sales tax.
Section 3 of the Kerala Surcharge on Taxes Act, 1957 reads as follows: "The tax payable under the Kerala General Sales Tax Act, 1963, shall, in the case of a dealer whose turnover exceeds Rs.30,000 a year, be increased by a surcharge at the rate of five per centum of the tax payable for that year and the provisions of the Kerala General Sales Tax Act, 1963 shall, as the case may be, apply to the levy and collection of the said surcharge.
" Kerala Act 40 of 1976 stepped up the rate of surcharge by amending section 3(1) to read as follows: (1) The tax payable under the Kerala General Sales Tax Act, 1963, shall, in the case of a dealer whose turnover 724 (a) is not less than one lakh rupees but does not exceed ten lakhs rupees in a year, be increased by a surcharge at the ,rate of five per centum, and (b) exceeds ten lakhs rupees in a year, be increased by a surcharge at the rate of eight per centum, of the tax payable for that year and the provisions of the Kerala General Sales Tax Act, 1963, shall apply in relation to the said surcharge as they apply in relation to the tax payable under the said Act.
We may note here two important features of the latter Act.
the first is that, unlike sales tax which the dealer is entitled to get reimbursed from the purchaser of the goods sold by him, the surcharge has to be borne by the dealer himself, for sub section (2) of section 3 of the Surcharge Act prohibits the dealer from collecting the surcharge payable by him under sub section (1) on pain of prosecution under sub section (3).
The second is that while a dealer might be liable to sales tax at different rates on the turnover of the different goods dealt in by him, he has to pay a surcharge calculated on the amount of the sales tax payable by him in respect of his total dealings throughout the year.
The assessee is a society registered under the Socie ties ' Registration Act.
Its members are cardamom growers in the State of Kerala.
Under the Cardamom Act (Act 42 of 1965), read with the Cardamom (Licensing & Marketing) Rules, 1977, no person is entitled to carry on business as auction eer, dealer or exporter of cardamom except under and in accordance with the terms and conditions of a licence issued under the Act and Rules.
One of the conditions of the grant of licence to a person as an auctioneer is that he "shall not charge more than one per cent of the sale price as commission for the services rendered by him".
It is common ground that it is the society that has obtained the relevant licence for this purpose and that the individual cardamom growers who are members of the society have no such licence.
The society conducts weekly cardamom auction sales at two places, Santhanpara and Bodinayakanur.
The planters leave their produce with the society.
The produce of all the growers is mixed together and put to auction.
It is open to the planters to be present at the auction.
If any planter desires to sell at a specific price he can express his opinion in advance to the association.
If he wants to with draw his lot put up for sale he could do so.
Stitching charges and miscellaneous 725 charges are to be paid to the society.
The society collects 1% as commission out of the sale proceeds from each of the planters.
Besides sale of cardamom, which constitutes the major part of its turnover, the society also sells other goods such as gunnies, pesticides, sprayers, manure and the like.
It is contended on behalf of the appellants that the society has sold the goods only in its capacity as a commis sion agent for various principals and that, on the general principles of agency, an agent like the assessee can be liable to surcharge only to the same extent as the principal whom it represents.
Hence it cannot be made liable for any surcharge in respect of the sales effect by it on behalf of principals whose sales through the society do not exceed the limits set out in section 3(1) of the Surcharge Act.
The above contention was accepted by the Tribunal in the appeals against the assessments made on the society for the assessment years 1967 68 to 1969 70.
The sales tax assess ments of the society for 1973 74 to 1976 77 were completed by the 'Sales Tax Officer on the basis of the Tribunal 's order.
These assessments were, however, set aside by the Deputy Commissioner of Sales tax who was of the opinion that the society was liable to pay surcharge on its aggregate turnover in each of these years and he directed accordingly.
The assessee preferred appeals to the Appellate Tribunal from the orders of the Deputy Commissioner.
The Tribunal allowed the appeals by a common order dated 3rd November, 1982 following its order for the earlier assessment years.
It set aside the revisional orders passed by the Deputy Commissioner and restored the assessments made by the Sales Tax Officer for the assessment years 1973 74 to 1976 77.
The High Court, on revision by the Department, has set aside the orders of the Tribunal and restored the orders of the Deputy Commissioner.
Hence these appeals.
We are unable to see any flaw in the High Court 's rea soning.
The present assessee is clearly a dealer within the meaning of the statute, particularly in view of the inclu sive part of the definition contained in clause (c).
This is also the finding of the Tribunal and is also admitted by the assessee.
Likewise, the provisions of section 5 of the Sales Tax Act and section 3 of the Surcharge Act, read with the definitions of the words 'turnover ' 'taxable turnover ' and 'total turnover ', leave no doubt that the assessee 's taxable turnover has to be determined by taking the aggregate price of all the goods sold by it.
There is no statutory warrant for breaking up the sales turnover of the assessee by reference to 726 the turnover of the principals on whose behalf it deals.
Also, a logical corollary of the assessee 's argument would be that, even in respect of tax, the society can be assessed to sales tax only on the aggregate turnover relating to those of its principals who are liable to tax under section 5 of the Act.
The High Court has rightly pointed out that the assessee had not claimed, for purposes of sales tax, that the turnover of goods dealt with by it on behalf of principals who did not have a taxable turnover should be excluded.
If this be so, the High Court observes rightly, it is difficult to see on what principle the assessee can seek, in the matter of surcharge, the exclusion from its taxable turnover, of the turnover of principals who would not have been subjected to a surcharge if they had directly sold the goods entrusted by them to the assessee for sale.
This is particularly so because the Surcharge Act does not envisage a fresh determination of the assessee 's turnover at all.
It prescribes nothing more than a simple arithmetical calcula tion of the prescribed percentage on the sales tax deter mined as payable by the assessee for that year.
There can be no doubt about this figure.
The statute does not permit the computation of the surcharge, for whatever reason, on a part only of the tax determined as payable by the assessee for the year in question.
On behalf of the assessee, objection has been taken to the levy of surcharge in the manner in which it has been levied on three grounds: 1.
The general principle of law is that the liability of an agent is co extensive with that of the principal and his liability to tax or surcharge, in respect of transactions put through on behalf of a principal, cannot be higher than that which the principal would have himself incurred had he directly sold the goods; 2.
It is contrary to the principle underlying rule 9(k) of the Kerala Sales Tax Rules under which "the turnover of sales or purchases made by a dealer through his agent in respect of which tax has been paid by the agent" is excluded from his taxable turnover; 3.
The assessee has been placed in a financial predicament because .all that the assessee can get out of the sales is the commission which cannot exceed 1% of the turn over and, since the statute has prohibited it from collecting any part of the surcharge from the purchasers or the principals the society, has to meet the surcharge liability out of its meagre commission earnings.
We are unable to see how these contentions can help the assessee 727 to overcome the surcharge levy.
The general principle of the law of agency, as rightly pointed out by the High Court, cannot prevail in the face of the statutory provisions.
The assessee 's contention, upheld by the Tribunal in its earlier order, is this: " . . an agent is as many dealer as he has principals . an agent can be assessed . only on the aggregate of the turnover relating to principals who are liable to tax under section 5 and surcharge can likewise be levied only in respect of the turnover of the princi pals where total turnover is not less than Rs.30,000.
" This will also mean that, after the amendment of section 3 of the Surcharge Act in 1976 that the agent will be liable to a surcharge at 8% in respect of the turnover on behalf of principals whose total turnover exceeds Rs. 10 lakhs, at 5% in respect of the turnover on behalf of principals having turnover of between Rs.1 lakh and Rs. I0 lakhs and no sur charge in respect of the turnover on behalf of principals with turnovers of less than Rs. 1 lakh.
This may be equita ble but it clearly amounts to running a coach and pair through the statutory provisions.
As already pointed out, these provisions clearly treat a commission agent as a dealer and make him liable to sales tax as well as surcharge in respect of his entire turnover.
The Act does not contem plate any dissection of this turnover into transactions on behalf of various principals by reference to their individu al liability to pay either sales tax or surcharge.
The question of statutory interpretation apart, it will easily be seen that the assessee 's contention, which is equally applicable to the levy of both sales tax and sur charge, would make the whole Act unworkable.
A commission agent will be dealing on behalf of hundreds of constituents and each of his constituents may be dealing not only through him but also through several other agents.
The transactions may not be confined to the territories of one State and may be spread over the entire Indian sub continent.
The sales through different agents may be of different goods attract ing liability to tax at different rates.
It may be that a principal whose sales through one commission agent may not come upto the limits of turnover for levy of tax or sur charge may have been dealing through other agents and, if assessed directly, may have a turnover exceeding those limits.
In this state of affairs, it will be absolutely impracticable, if not impossible, for a Sales Tax Officer having jurisdiction over one particular commission agent to make his sales tax assessment on the basis suggested 728 by the assessee.
That would require the collection of data, in the assessment of every commission agent, regarding the entire sales turnover of each of his constituents who may or may not be assessed by the officer assessing the particular commission agent.
The assessment order on the commission agent would then have to be split up, as it were , into a number of parts each containing the determination of turn over, tax and surcharge qua each of the constituents.
These determinations require exercises which cannot be practically undertaken by an officer assessing a commission agent but can easily be undertaken by the different officers assessing the principals.
That is why the statute evolved a very simple procedure to meet the situation.
It brought the commission agent within the definition of a dealer and made his aggregate turnover liable to tax.
But it provided at the same time that the turnover so included and taxed in the hands of the agent should be excluded from the turnover of the principal, where he is separately assessed.
This is rule 9(k).
Rule 9(k) confers an exemption not on the commission agent but on the principal and does not help the assessee.
So far as sales tax is concerned, this rule provides com plete protection against double taxation.
The rate of tax on any type of goods being uniform irrespective of the turn over, the turnover in regard to that item will get assessed only at one place: either in the hands of the principal or in the hands of the agent but not both.
The treatment of the commission agent as a dealer no doubt means that an agent will be taxed where his turnover exceeds the relevant limits even though some or all the principals who sold through him may have turnovers below those limits.
But he is not really affected as he can collect the sales tax from the purchasers and thus reimburse himself.
The difficulty that has arisen in regard to the sur charge stems principally from the requirement that the society has to pay it out of its funds and cannot reimburse itself either from its vendees or its principals.
This difficulty has been further accentuated by the fact that, in regard to cardamom, its earnings are limited to a small commission which cannot be varied by it at its desire.
These considerations cannot however justify a different interpre tation as the statutory provisions are clear.
A suggestion was mooted before us that the hardship to the assessee on this account is so substantial that this requirement should be held to be an unreasonable restriction violating article 19.
This is a new contention involving investigation into facts which we are not inclined to permit the assessee raise here for the first time.
We may, howev er, mention that during, the hearing of these appeals, we 729 adjourned the appeals to enable the assessee to move the State in this behalf but we were told that its efforts were unsuccessful.
We need hardly say that the assessee will be at liberty to pursue the matter, put forward its difficul ties and seek to persuade the State Government to either reduce or dispense with the surcharge in regard to cardamom sales or to sanction an increase in the rate of commission chargeable by the assessee on its cardamom sales and, fail ing such efforts, to challenge the validity of the levy for the future, if so advised, in appropriate proceedings.
In the circumstances, we affirm the view taken by the High Court and dismiss these appeals.
We, however, make no order as to costs.
Y. Lal Appeals dismissed.
| IN-Abs | The appellant assesse is a Society registered under the Societies Registration Act.
Its members are Cardamom growers in the State of Kerala.
The Society conducts the business as an auctioneer under a licence issued to it under the Carda mom Act (Act 42 of 1965) read with the Cardamom (Licensing and Marketing) Rules, 1977, one of the Conditions of this licence being that as an auctioneer it shall not charge more than one percent of the sale price as commission for the services rendered by it.
It is common ground that the socie ty has obtained the relevant licence and the individual members/growers of Cardamom had no such licence.
The mode of the business was that planters left their produce with the Society and the Society after mixing the produce of all the growers, put the same to auction.
The Society collected 1% as commission out of the sale proceeds from each of the planters.
Besides cardamom, the Society sold other goods also.
The Kerala General Sales Tax Act 1963 imposes sales tax on every dealer whose total turnover for any year exceeds a specified sum which differed from year to year.
In 1957 the Kerala Legislature introduced a surcharge on sales tax.
Section 3 of the Kerala Surcharge on taxes Act 1957 pre scribes that the tax payable under the Kerala General Sales Tax Act 1963, shall, in the case of a dealer whose turnover exceeds Rs.30,000 a year, be increased by a surcharge at the rate of 5% of the tax payable for that year.
The provisions of the Kerala General Sales Tax Act were made applicable to the levy and collection of the said surcharge.
Kerala Act 40 of 1976 stepped up the .rate of surcharge.
The important feature of the latter Act is that unlike sales tax, which the dealer was entitled to get reimbursed from the purchaser of the goods sold by him, the surcharge had to be borne by the dealer himself, as 720 Sub Section (2) of Section 3 of the Surcharge Act prohibited the dealer from collecting the surcharge payable by him.
Further the dealer might be liable for sales tax at differ ent rates on the turnover of the different goods dealt with by him, he was to pay surcharge calculated on the amount of the sales tax payable by him in respect of his total deal ings throughout the year.
The assessee 's contention was that the Society sold goods only in its capacity as a commission agent for various principals and that on the general principle of agency, an agent like the assessee could be liable to surcharge only to the same extent as the principal whom it represented.
On this plea, it could not be made liable for any surcharge in respect of the sales effected by it on behalf of the princi pals whose sales through the Society did not exceed the limits set out in Sec.
3(1) of the Surcharge Act.
The Tribunal had accepted the above contention of the appellant in the appeals against the assessment for the assessment years 1967 68 to 1969 70.
The sales Tax assess ments of the appellant for the assessment years 1973 74 to 1976 77 were completed by the Sales Tax Officer following the aforesaid order of the Tribunal.
These assessments were set aside by the Dy.
Commissioner of Sales Tax who took the view that the Society was liable to pay surcharge on its aggregate turnover in each of the assessment years.
The appellant assessee preferred appeals to the Appellate Tribu nal against the orders of the Deputy Commissioner.
The Tribunal allowed the appeals following its order relating to the earlier assessment years.
It accordingly set aside the orders of the Dy.
Commissioner and restored the assessments made by the Sales Tax Officer for the assessment years 1973 74 to 1976 77.
The Department moved revision petitions before the High Court against the order of the Appellate Tribunal.
The High Court accepted the revision of the De partment and set aside the order of the Tribunal.
Hence these appeals by the assessee.
It was contended by the appellant (i) that the liability of an agent is co extensive with that of principal and its liability cannot be higher than that of principal; (ii) that it is contrary to the principle underlying rule 9(k) of the Kerala General Sales Tax Act whereunder the turnover of sales or purchases made by a dealer through his agent in respect of which tax has been paid by the agent, is excluded from his taxable turnover and (iii) that the assessee has been placed in a financial predicament in that it has to pay he surcharge from out of the meagre commission of 1% limited by the statute.
721 Dismissing the appeals, this Court, HELD: The Surcharge Act does not envisage a fresh deter mination of the assessee 's turnover at all.
It prescribes nothing more than a simple arithmetical calculation of the prescribed percentage on the sales tax determined as payable by the assessee for that year.
It does not permit the compu tation of the surcharge, for whatever reason, on a part only of the tax determined as payable by the assessee for the year in question.
It does not contemplate any dissection of the turnover into transactions on behalf of various princi pals by reference to their individual liability to pay either sales tax or surcharge.
The contentions urged on behalf of the petitioner create a number of difficulties and or about a very simple procedure, evolved by the statute to meet the present situation It brought the Commission agent within the definition of a dealer and made his aggregate turnover liable to tax.
But it provided at the same time that the turnover so included and taxed in the hands of the agent should he excluded from the turnover of the principal, where he is separately assessed.
[726C D, 727E F, 728C] Rule 9(k) confers an exemption not on the Commission agent but on the Principal and does not help the assessee.
[728D] The rate of tax on any type of goods being uniform irrespective of the turnover, the turnover in regard to that item will get assessed only at one place: either in the hands of the principal or in the hands of the agent but not both.
[728D] A suggestion was mooted before us that the hardship to the assessee on this account is so substantial that this requirement should be held to he an unreasonable restriction violating Article 19.
This is a new contention involving investigation into facts which this Court is not inclined to permit the assessee to raise here for the first time.
[728G H]
|
ivil Appeal No. 3255 of 1989.
From the Judgment and Order dated 29.7.1985 of the Bombay High Court in W.P. No. 2137 of 1979.
V.A. Bobde, S.D. Mudaliar and A.G. Ratnapaxkhi for the Appellant.
S.K. Dholakia, A.S. Bhasme and A.M. Khanwilkar for the Respondents.
For the Respondent No. 4 in person (not present).
The Judgment of the Court was delivered by SHARMA, J.
Notice for final disposal of the case was served on the respondents.
Heard the learned counsel for the parties.
Special leave is granted.
This case is dependent on the correct meaning and scope of Rule 59 of the Mineral Concession Rules, 1960 (hereinafter referred to as the Rules).
A certain area in village Bazargaon, District Nagpur was reserved for Nistar purposes (that is, for grazing of cattle etc.).
The respond ent No. 4 applied for grant of a mining lease in regard to the said area which was allowed.
The appellant, who is a local resident, challenged the allotment on the ground that the procedure for settlement as laid down in Rule 59 read with Rule 58 was not followed before the grant.
Rule 58 deals with availability of areas for re grant of a mining lease and requires an entry to that effect to be made in a 832 register referred to in Rule 21(2) of the Rules, and a notification to be published in the official gazette at least 30 days in advance.
The purpose obviously is to enable the members of general public to apply for the proposed lease.
Rule 59 directs the procedure in Rule 58 to be fol lowed in the cases mentioned thereunder in the following terms: "59.
Availability of certain areas for grant to be notified In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a prospecting licence or a mining lease on the ground that the land should be reserved for any purpose, the State Government shall, as soon as such land becomes again available for the grant of a prospecting licence or mining lease, grant the licence or lease after following the procedure laid down in rule 58.
" The appellant contends that as the prescribed procedure had not been followed, the grant in favour of the respondent No. 4 is illegal and fit to be set aside. ' 4.
Admittedly the disputed area was reserved for Nistar purposes and when an application for grant of mining lease was earlier made by a third party it was rejected on the ground that it was so~ reserved.
Further, there is no dis pute that before the impugned grant was made in favour of the respondent No. 4 the procedure prescribed by Rule 58 was not followed, and no opportunity was given to any other person before entertaining the request of the respondent No. 4.
The question in this background is whether Rule 59 is attracted to the case.
The appellant 's application under Article 226 of the Constitution was dismissed by the Bombay High Court on the ground that Rule 59 was confined to cases where earlier reservation was made for mining purposes.
The stand of the respondents that the expression "reserved for any purpose" in rule 59 does not cover a case where the area was reserved for Nistar purposes or for any purpose other than that of mining was accepted.
Earlier the expression "reserved for any purpose" was followed by the words "other than prospecting or mining for minerals", which were omitted by an amendment in 1963.
Mr. Dholakia, learned counsel for the respondents, appearing in support of the 833 impugned judgment, has contended that as a result of this amendment the expression must now be confined to cases of prospecting or mining for minerals and all other cases where the earlier reservation was for agricultural, industrial or any other purpose must be excluded from the scope of the rule.
We are not pursuaded to accept the suggested interpre tation.
Earlier the only category which was excluded from the application of Rule 59 was prospecting or mining leases and the effect of the amendment is that by omitting this exception, prospecting and mining leases are also placed in the same position as the other cases.
We do not see any reason as to why by including in the rule prospecting and mining leases, the other cases to which it applied earlier would get excluded.
The result of the amendment is to extend the rule and not to curtail its area of operation.
The words "any purpose" is of wide connotation and there is no reason to restrict its meaning.
We do not see any ground for limiting the scope of the rule so as to deprive the members of general public to approach the State with competitive terms.
It is clearly in the public interest to notify the proposal to grant a mining lease, so that the best deserving person may have a chance to be considered.
The State and its authorities will, in that case, have the choice of selecting the most suitable person by following the just and equitable criteria laid down by the Rules.
If, on the other hand, the rule is con strued as suggested by the respondents, a resourceful appli cant can succeed in striking an un deserved bargain to the prejudice of the public interest.
We are, therefore, of the view that Rule 59 covered the present case and the grant in favour of the respondent No. 4 was illegally made in violation of Rule 58.
According ly, the appeal is allowed, the judgment of the High Court is set aside and the decision to grant the mining lease in question to the respondent No. 4 is quashed.
The State Government may now issue a notification and take other steps in accordance with law before proceeding further.
There will be no order as to costs.
P.S.S. Appeal allowed.
| IN-Abs | Rule 58 of the Mineral Concession Rules, 1960, which deals with availability of areas for regrant of a mining lease, requires a notification to be published in the offi cal gazette at least 30 days in advance.
Rule 59 directs the procedure laid down in Rule 58 to be followed in the case of any land in respect of which the State Government had re fused to grant a prospecting licence or a mining lease on the ground that it was required to be reserved for any purpose.
The expression "reserved for any purpose" was earlier followed by the words "other than prospecting or mining for minerals", which was omitted by an amendment in 1963.
An application for grant of mining lease in respect of the disputed area had been rejected earlier on the ground that it was reserved for some other purpose.
Subsequently, however, a mining lease in regard to the said area was granted in favour of respondent No. 4.
The appellant chal lenged the allotment on the ground that the procedure for settlement as laid down in Rule 59 read with Rule 58 was not followed before the grant.
The High Court dismissed that application on the ground that Rule 59 was confirmed to cases where earlier reservation was made for mining pur poses.
Allowing the appeal, HELD: 1.
The grant of mining lease in favour of respond ent No. 4 was illegally made in violation of Rule 58 of the Mineral Concession Rules, 1960.
[833E F] 2.1 Rule 59 covered the instant case.
Earlier the only category which was excluded from the application of this Rule was prospecting 831 or mining leases.
The effect of the 1963 amendment is that by omitting the words "other than prospecting or mining for minerals", prospecting and mining leases have also been placed in the same position as the other cases.
The other cases to which the Rule applied earlier have not thus been excluded.
[833E B] 2.2 It is clearly in the public interest to notify the proposal to grant a mining lease.
The State and its authori ties will, in that case, have the choice of selecting the most suitable person by following the just and equitable criteria laid down by the Rules.
[833D]
|
ivil Appeal No. 2443 of 1980.
From the Judgment and Order dated 8.9.80 of the Delhi High Court in S.A.O. No. 339 of 1980.
732 Mukul Mudgal for the Appellant.
Rajinder Sachhar and Mrs. J. Wad for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
This is a tenant 's appeal against the decree for his eviction from certain disputed premises passed by the Rent Controller, Delhi and confirmed in appeal and second appeal.
The respondent, the owner of the premises, let it out to the appellant in 1961 as a monthly tenant.
An unregis tered deed of lease was executed on that occasion containing the following statement as one of the clauses: "That they will not assign or underlet or part with the premises hereby demised without the permission in writing of the landlord subject however to this proviso that they shall be entitled to assign or otherwise part with the possession of the said premises or any part thereof to their associate concerns without such consent but in any event the lessees shall be liable for the payment of the rent during the term hereby granted.
The appellant is a manufacturing company of Scooters, Pickup Vans and Auto Three Wheelers.
Alleging that the appellant had sub let the premises to M/s. United Automo biles without his consent, the respondent contended that the ground mentioned in section 14 (1) Proviso (b) of the Delhi Rent Control Act, 1958 was made out and the appellant was liable to be evicted.
The eviction proceeding was defended by the appellant on the ground that the M/s. United Automobiles are the authorised dealer and distributor of the product manufac tured by the appellant and has been in occupation of the premises in that capacity and can not, therefore, be de scribed as a sub tenant.
It was alternatively argued that in view of the term of the lease as quoted above the arrange ment with the M/s. United Automobiles can not be condemned as a sublease without the consent of the respondent.
The stand of the respondent has been that the above mentioned term, of the lease can not be looked into as document was not registered and further the M/s. United Automobiles can not be assumed to be an 'associate a concern ' within the meaning of the term.
The Rent Controller, as well as, the 733 appellate authority held that the afore mentioned term of the lease was not inadmissible and the appellant was enti tled to rely upon the same, but ordered eviction on the ground that M/s. United Automobiles was inducted in the premises as a sub lessee.
The High Court dismissed the appellant 's second appeal in limine, and in this situation the present appeal by special leave has been filed.
It has been strenuously contended by the learned counsel for the appellant that as, (i) the United Automo biles is a distributor of the product manufactured by the appellant on the basis of commission, (ii) it pays the same amount to the appellant as the rent of the premises payable by the appellant to the respondent, and (iii) is entitled to be in possession only as long as it continues to be a dis tributor, it should be held to be an 'associate concern ' within the meaning of the aforementioned term of the lease.
In reply of the respondent 's contention that the term can not be taken into consideration as the deed is not a regis tered one, it was urged that the appellant, in view of the provisions of section 49 of the Registration Act, is entitled to rely upon the term for 'collateral purpose '.
The argument is that the document may not be admissible for the purpose of proving the existence of a lease or the terms thereof, but as the afore mentioned clause does not come within that category, in as much as, it merely amounts to a written permission to the appellant to create a sub lease, it can not be excluded from consideration on the ground of non registration.
There is no dispute that the appellant has put M/s. United Automobiles in possession of the premises and has thus parted with the possession within the meaning of section 14(1) Proviso (b) of the Act.
The appellant Company has a separate legal entity and has nothing to do with M/s. United Automobiles 'except that the latter is the dealer distribu tor of some of its manufactured articles.
M/s. United Auto mobiles is not a licensee and is not in possession of the premises on behalf of the appellant.
The monetary benefit available to the dealer is confined to the commission it receives on the sale of every vehicles; and does not include the right of enjoyment of the premises.
The dealer pays a fixed sum as rent to the appellant and the rent is not related or dependant on the sale of any vehicle. 'The fact that this amount is same as what is paid by the appellant to the respondent does not appear to be material.
The irresist ible conclusion is that the appellant has created a sub lease in favour of its dealer.
The question now is whether the clause in the lease mentioned above amounts to the respondent 's consent in writing.
The contention of the learned counsel for the respondent that 734 the aforesaid clause can not be looked into for want of registration of the lease deed appears to be correct.
Reli ance has been placed on the observations of Fazal Ali, J. in Sachindra Mohan Ghose vs Ramjash Agarwalla, A.I.R. 1932 Patna 97 that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose.
The learned counsel for the appellant attempted to meet the point by saying that so far the consent of the landlord permitting sub letting is concerned, it does not require registration and the clause, therefore, must be excepted from the requirement of registration and consequent exclusion from evidence.
We do not see any force in this argument.
The question whether a lessee is entitled to create a sub lease, or not is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it can not be disassociated from the lease and considered separately in isolation.
If a document is inad missible for non registration, all its terms are inadmissi ble including the one dealing with landlord 's permission to his tenant to sub let.
It follows that the appellant can not, in the present circumstances, be allowed to rely upon the clause in his unregistered lease deed.
There is still another reason to hold that the afore said clause can not come to the aid of the appellant.
A perusal of its language would show that it contains the respondent 's consent in general terms without reference to M/s. United Automobiles.
As a matter of fact M/s. United Automobiles came to be inducted as a sub tenant much later.
Can such a general permission be treated to be the consent as required by section 14 (1) Proviso (b) of the Act? It was held by this Court In M/s. Shalimar Tar Products vs S.C. Sharma, ; ; that Ss.
14(1) Proviso (b) and 16(2) and (3) of the Delhi Rent Control Act, 1958 enjoin the tenant to obtain consent of the landlord in writing to the specific sub letting and any other interpretation of the provisions will defeat the object of the statute and is, therefore, inpermissible.
Since it is not suggested that the consent of the respondent was obtained specifically with reference to the Sub letting in favour of M/s. United Automobiles, the clause in the lease deed, which has been relied on can not save the appellant, even if it be assumed in its favour that the clause is admissible and the sUb lessee is appel lant 's associate concern.
The appeal, therefore, fails and is dismissed with Costs.
| IN-Abs | The respondent let out his premises to the appellant by way of an unregistered lease deed which inter alia stated that without the permission of the landlord the premises should not he sub let except to associate concerns, and the lessee was liable for payment of rent.
Alleging that the appellant, a manufacturing company of automobiles, had sub let the premises to M/s United Automobiles without his consent, the respondent initiated eviction proceedings.
The appellant contended that M/s United Automobiles, being the authorised dealer and distributor of the products manufactured by it, has been in occupation of the premises in that capacity and cannot therefore he described as a sub tenant.
Alternatively, in view of the specific term in the lease deed, the arrangement with the associate concern was not a sub lease without the consent of the respondent, it was contended.
The respondent took the stand that the term cannot be looked into, as the document was not regis tered and that M/s United Automobiles cannot be assumed to he an 'associate concern ' within the meaning of the term.
Both the Rent Controller and the appellate authority held that the term of the lease was not inadmissible, but ordered eviction on the ground that M/s United Automobiles was inducted in the premises as a sub lessee.
The appellant filed a second appeal before the High Court which dismissed it in limine.
Hence this appeal by special leave.
Dismissing the appeal, HELD: 1.
The appellant has created a sub lease in favour of its dealer, and has thus parted with the possession within the meaning of section 14(1) Proviso (b) of the Delhi Rent Control Act.
The appellant Com 730 731 pany has a separate legal entity and has nothing to do with M/s United Automobiles except that the latter is the dealer distributor of some of its manufactured articles.
M/s United Automobiles is not a licensee and is not in posses sion of the premises on behalf of the appellant.
The mone tary benefit available to the dealer is confined to the commission it receives on the sale of every vehicle; and does not include the right of enjoyment of the premises.
The dealer pays a fixed sum as rent to the appellant and the rent is not related or dependant on the sale of any vehicle.
The fact that this amount is same as what is paid by the appellant to the respondent does not appear to be material.
[733E G] 2.
The question whether a lessee is entitled to create a sub lease or not is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it cannot be disassociated from the lease and considered separately in isolation.
If a document is inadmissible for non registra tion, all its terms are inadmissible including the one dealing with landlord 's permission to his tenant to sub let.
The appellant cannot, in the present circumstances, be allowed to rely upon the clause in the unregistered lease deed.
[734C D] Sachindra Mohan Ghose vs Ramesh Agarwalla, A.I.R. 1932 Patna 97; referred to.
In the instant case, a perusal of the clause relied on by the appellant would show that it contains the respond ent 's consent in general terms without reference to M/s United Automobiles.
As a matter of fact M/s United Automo biles came to be inducted as a sub tenant much later.
Such a general permission cannot be treated to be the consent as required by section 14(1) Proviso (b) of the Act.
Since consent of the respondent was not obtained specifically with refer ence to the sub letting in favour of M/s United Automobiles, the clause in the lease deed cannot save the appellant, even if it be assumed in its favour that the clause is admissible and the sub lessee is appellant 's associate concern.
[734E G] M/s Shalimar Tar Products vs S.C. Sharma, ; ; relied on.
|
ivil Appeal No. 2169 of 1970.
From the Judgment and Order dated 12.8.68 of the Gujarat High Court in F.A. No. 233 of 1963.
B.K. Mehta, U.A. Rana, Bhushan B. Oza and K.L. Hathi for the Appellants.
G.A. Shah and M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by special leave granted by this Court under Article 136 of the Constitution.
The appeal arises out of land acquisition proceedings.
The appellants before us are the heirs and legal repre sentatives of the original claimants.
Appellants Nos.
1(a) to 1(c) are the heirs and legal representatives of original claimant No. 1 and appellants Nos.
2(i) to 2(ii) are the heirs and legal representatives of original claimant No. 2.
The acquisition was in respect of an area admeasuring 15 acres and 1 guntha belonging to claimant No. 1 (Original) and area admeasuring 6 acres and 25 gunthas belonging to claimant Nos. 1 and 2 (Original).
The lands are situated in the Bhavnagar District and are on the outskirts of the Bhavnagar City and adjoining the Bhavnagar Rajkot Road.
The acquisition forms part of a larger acquisition for the construction of an industrial estate at Bhavnagar.
The preliminary notification under section 4(1) of the Land Acquisition Act, 1894 was published on August 6, 1956.
The claimants made their claims before the Land Acquisition Officer who classified the lands as superior of Bagayat type of agricultural land and awarded compensation at the rate of Rs.2200 per acre which would come to about 0.48 p. per sq. yard.
This award was not accepted by the claimants and they made a reference which came up for hearing before the learned Civil Judge, Senior Division, Bhavnagar.
The evi dence of some instances of sale 746 was led before the learned Civil Judge by the respective parties but he did not rely upon any of the instances proved before him.
He considered the general situation of the lands and held that on the evidence it was shown that the lands had a considerable building potentiality and the Land Acqui sition Officer was in error in so far as he did not take that potentiality into account.
The learned Civil Judge considered the general situation of the land under acquisi tion and the potential value of the same for building pur poses and fixed the rate of compensation at Rs.4,400 per acre which had come to about 0.90p.
per sq. yard.
Being dissatisfied, the claimants preferred an appeal against the decision of the learned Civil Judge, Bhavnagar to the High Court of Gujarat.
The Division Bench of.
the High Court, which disposed of the appeal, took the view that the valua tion fixed by the learned Civil Judge was justified and dismissed the appeal.
This appeal is directed against the said decision of the High Court.
We do not feel called upon to enter into a detailed scrutiny of the evidence led by the parties before the learned Civil Judge.
The main instance relied upon by the claimants was by way of an agreement to sell dated January 21, 1957 and a sale deed dated April 2, 1957 in respect of the sale of 42552 square yards of land out of survey No. 333/2 which is adjoining the land with which we are con cerned which forms part of survey No. 33 1.
The land sold under this instance was known as "Kesarbagh" and was sold to Mahalaxmi Mills Limited by Prince Nirmal kumar singhji.
The rate at which it was sold works out to Rs.3 per sq. yard.
On the basis of this instance, the claimants had made their claim at Rs.3 per sq. yard before the Land Acquisition Officer.
The High Court inter alia rejected this instance on the basis that the contents of the sale deed were not prop erly proved.
However, after an order for remand made by this Court on August 25, 1981 evidence has been led regarding this sale and the sale deed has been duly proved by the evidence of one Dharamdas, a director of Mahalaxmi Mills Limited, the purchaser, and the vendor Prince Nirmal kumar singhji.
It was marked originally as Exhibit 87 and after the evidence on remand as Exhibit 152.
The evidence shows that this land was just adjacent to the land of the purchas er, Mahalaxmi Mills Limited.
The agreement of sale is dated January 21, 1957 and the conveyance or sale deed is dated April 2, 1957 as aforestated.
The price has been fixed under the agreement of sale.
This agreement of sale was entered into about five months after the publication of section 4 notification in the case before us The High Court rejected the said instance on the ground that the contents of the sale deed were not proved although the execution was thereof duly proved.
In view of the 747 evidence led after remand, it cannot be disputed that this agreement of sale as well as the sale deed have been duly proved and they have been duly marked as exhibits.
The High Court further took the view that in any event, no reliance could be placed on this instance of sale because the acqui sition of the land in question before us was for the con struction of an industrial estate at Bhavnagar and such construction was bound to have pushed up the price of land in the surrounding area.
There is, however, nothing in the evidence to show that there was any sharp or speculative rise in the price of the land after the acquisition and this has been noticed by the High Court.
It appears that under these circumstances, the High Court was not justified in not taking this instance into account at all as it has done on the ground that it was a post acquisition sale and could not be regarded as a comparable instance at all.
The market value of a piece of property for purposes of section 23 of the Land Acquisition Act is stated to be the price at which the property changes hands from a willing seller to a will ing, but not too anxious a buyer, dealing at arms length.
Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual and, indeed the best, evidences of market value.
(See: Administrator General of West Bengal vs Collector, Varanasi, ; at para 8. ) Keeping these factors in mind, we feel that although the instance reflected in the sale deed (Exhibit 152) and the agreement for sale in connection with that land, pertains to a sale after the acquisition, it can be fairly regarded as reasonably proximate to the acquisition and, in the absence of any evidence to show that there was any speculative or sharp rise in the prices after the acquisition the agreement to sell dated January 21, 1957 must be regarded as furnish ing some light on the market value of the land on the date of publication of section 4 notification.
However, certain factors have to be taken into account and appropriate deduc tions made from the rate disclosed in the said agreement to sell in estimating the market value of the land with which we are concerned at the date of the acquisition.
One of these factors is that there seems to have been some rise in the price of land on account of the acquisition of the land in question before us for purposes of constructing an indus trial estate.
Another factor is that the land proposed to be purchased under the said agreement to sell was adjoining the land of the purchaser and the purchaser might have paid some extra amount for the convenience of getting the neighbouring land.
We find that the High Court placed reliance on the evidence 748 furnished by the instances at Exhibit 112 relied on by the State.
By Exhibit 112 land admeasuring 4 acres (19,360 sq. yard) was sold from Survey No. 384 for Rs.8,000.
This sale deed is dated February 23, 1953, that is, over a year prior to the date of the section 4 notification in the case before us.
The purchaser stated in the witness box that apart from Rs.8,000 mentioned as the consideration in the sale deed, he had to pay an extra amount of Rs.4,000.
Although the High Court has not relied upon this statement, it cannot be altogether ignored.
The land was sold at a Government auc tion which means that it was a distress sale.
There were execution applications pending against the vendor.
Under these circumstances, there is a little doubt that it was a distress sale and it hardly furnishes any reliable evidence for estimating the market value of the land.
Therefore, although the price of the land appearing in that instance comes to about 0.62p.
per sq.
yard, it furnishes no reliable guidance regarding the market price of the land.
As far as the sale instance evidenced by Exhibit 118 is concerned, it has been discarded by the High Court and, in our view, rightly so.
In the Trial Court neither the vendor nor the purchaser nor any person conversant with the sale was exam ined.
Not the original but only a certified copy of the sale deed was produced.
After the remand the situation appears to be hardly any better.
The State examined one Virbhadrasingh on whose behalf the land was purchased under the said sale deed.
He was a minor at the time when the sale deed (Exhibit 118) was executed.
Virbhadrasingh 's father had purchased the land in Virbhadrasingh 's name as Virbhadrasingh was a minor only about 12 years old at that time.
The evidence of Virbhadrasingh has no evidentiary value as he has no personal information regarding the sale under Exhibit 118.
One Ratilal who prepared the said document gave evidence in court but he did not have any personal knowledge about the transaction either.
Under these circumstances, no reliance can be placed on Exhibit 118.
In our view, the only comparable instance on the basis of which the market value at the time of the section 4 notification in respect of the acquired land can be deter mined is the sale proved by the sale deed (Exhibit 152) and the preceding agreement for sale in respect of the land sold which was entered into about five months after the notifica tion.
The price thereunder is Rs.3 per sq. yard.
From that price certain deductions have to be made on account of the various factors which have been enumerated earlier such as the rise in prices of land after the acquisition and so on.
Taking into account all these factors including the situa tion and potentialities of the acquired land, it ap 749 pears to us that it would be proper to fix the market value of the acquired land at Rs.8,800 per acre which comes to about Rs. 1.80 per sq. yard and we direct accordingly.
The decree passed by the Civil Judge, Senior Division, Bhavnagar will be amended accordingly.
The respondent will pay to the appellants one half of the costs of the appeal in this Court.
There will be no change as far as the rest of the order is concerned.
| IN-Abs | Certain lands situated on the outskirts of a large city were acquired by the respondent State after issuing prelimi nary notification under section 4(1) of the Land Acquisition Act, 1894 on August 6, 1956 for construction of an industrial estate.
The appellants claimed compensation at the rate of Rs.3 per sq. yard and cited in support thereof an agreement of sale dated January 21,1957 and a conveyance dated April 2, 1957 pertaining to a piece of land adjoining the acquired land showing the sale price at the rate of Rs.3 per sq. yard.
The respondent State relied on an auction sale dated February 23, 1953 at about 41p.
per sq. yard, evidenced by exhibit 112, and the instance evidenced by exhibit 118 pertaining to sale to a minor, transacted by his father.
The Land Acquisition Officer classified the land as superior agricultural land and awarded the compensation at the rate of Rs.2200 per acre, i.e., about 45p.
per sq. yard.
In the reference, the Civil Judge did not rely upon any of the instances proved before him, but considering the general situation of the land and its considerable building potentiality fixed the rate of compensation at Rs.4400 per acre, i.e., about 90p.
per sq. yard.
Dismissing the appeal, the High Court took the view that the valuation fixed by the Civil Judge was justified.
It held that a postacquisition sale could not be regarded as a comparable instance at all, since the acquisition for con struction of the industrial estate was bound to have pushed up the prices in the surrounding area.
It placed reliance on the evidence furnished by the instance at exhibit 112, over a year prior to 744 the date of section 4 notification, but discarded the instance evidence by exhibit 118 relied on by the State.
Allowing the claimants ' appeal by special leave, the Court, HELD: The market value of a piece of property for pur poses of section 23 of the Land Acquisition Act, is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arm 's length.
Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual and, indeed, the best, evidence of market value.
[747C] Administrator General of West Bengal vs Collector, Varanasi, ; , referred to.
In the instant case, the instance evidenced by exhibit 112 pertaining_ to sale of land in government auction relied on by the High Court was a distress sale.
There were execution proceedings pending against the vendor.
It could, thus, hardly furnish any reliable evidence for estimating the market value of the land in question.
The instance evidenced by exhibit 118 was rightly discarded by the High Court.
Only a certified copy of the sale deed pertaining thereto was produced in.
the trial court.
The evidence of the purchaser, who was minor at the time when the sale deed was executed, had no evidentiary value as he had no personal information regarding the sale.
No other person conversant with the sale was examined by the State.
[748AB, CF] The only comparable instance on the basis of which the market value at the time of the section 4 notification in respect of the acquired land could be determined was, therefore, the sale proved by the sale deed dated April 2, 1957 and the preceding agreement of sale dated January 21, 1957.
Though entered into about five months alter the notification it could be fairly regarded as reasonably proximate to the acquisition.
The price fixed under the said agreement was Rs.3 per sq. yard.
However, there seem to have been some rise in the price of land on account of the acquisition of the land in question for purposes of constructing the indus trial estate.
Further, the land proposed to be purchased under the agreement was adjoining the land of the purchaser and the purchaser might have paid some extra amount for the convenience of getting the neighbouring land.
These factors have to be taken into account and appropriate deductions made from the rate disclosed in the agreement in estimating the market value.
Considering these together with 745 the situation and potentialities of the acquired land, it would be proper to fix its market value at Rs.8800 per acre, which comes to about Rs. 1.80p.
per sq. yard.
The decree passed by the Civil Judge to be amended accordingly.
[748G, 747E]
|
: Criminal Appeal Nos.
467 468 of 1989.
From the Judgment and Order dated 27.4.1989 of the Calcutta High Court in Crl.
Revision No. 641 and 720 of 1989.
737 A.D. Giri, D.P. Ghosh, S.B. Pathak and B.S. Chauhan for the Appellants.
N.N. Gooptu, Attorney General, P.P. Rao, D.K. Sinha, J.R. Das, N .A.
Choudhary, R.B. Mahato, Raj K. Gupta, Siba Pada Banerjee, Subhrangshu Banerjee and P.C. Kapur for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
The special leave is granted and the appeal stands disposed of by this order.
The appellants accused are facing trial for an offence under secs.
302 34 IPC and alternatively under secs.
364 34 IPC before the City Sessions Court, 13th Bench, Calcutta in Sessions Trial No. 1 of November, 1987 (Session Case No. 5/87).
The prosecution examined in all 34 witnesses.
The last witness examined is the investigating officer (PW 34).
His examination went on for a number of days and came to an end on March 16, 1989.
On the next day that is, on March 17, 1989, the court examined the accused under sec.
313 of the Criminal Procedure Code and recorded their statements.
On March 21, 1989, the public prosecutor filed an appli cation proposing some more questions to be put to the first appellant by way of re examination under sec.
313 of the Code.
On the same day, the trial court by a considered order rejected that application.
The relevant portion of that order runs as under: "I think the Ld. P.P. can argue all these points as the time of advancing argu ments in this case and this case and the accused need not be re examined on this point under sec.
313 Cr.
The Ld.
P.P. has also submitted that in question No. 6 and question No. 7 the word "these witnesses" should be replaced by the name of the witnesses.
I think the names of the witnesses have already been put to the accused persons in the previous questions.
So in the question No. 6 and ques tion No. 7 the name of the witnesses need not be mentioned again.
Then it has been pointed out that the question No. 4 in place of the words "you all", the question should be writ ten as 'Khurshed, Bhulu, Noor Alam and tenea under your order. ' I think it is implied.
If other accused persons did anything at the order of one particular accused it is implied that all the accused persons 738 committed the mischief.
So on this point also the accused need not be re examined again.
Lastly, it has been pointed out that in ques tion No. 2 in place of P.W. 12 Abdullah Daweed the words "P.W. 7 Md. Mein" should be written.
On perusal of the evidence on record I find P.W. 12 Abdullah Dawood is also a witness of the occurrence and so the question need not be corrected.
Discussing the above circumstances, the petition filed by the prosecution this day for re examination of the accused persons under sec.
3 13 Cr.
P.C. for further re exami nation is rejected.
On March 30, 1989 the public prosecutor applied for adjournment of the case on the ground that he would like to move the High Court against the aforesaid order dated March 21, 1988.
The case was accordingly adjourned to April 18, 1989.
It is said that in between these days some correction slip was filed in the Court seeking 25 corrections in the statement of PW 34.
The said slip was not accompanied by any application nor was it served on counsel for the accused.
The trial court, however, in the interest of justice recti fied the typographical errors in the statement of PW 34 but refused to make other corrections which would have changed the substantive part of his evidence.
The State moved the High Court with Criminal Revision No. 64 1 of 1989 praying: (i) Corrections be made in the evidence of PW 34 as per slip supplied to the Trial Court; (ii) Additional statement of the first appellant under section 313 Cr.
P.C. be recorded in respect of questions proposed by the prosecution; and (iii)Transferring the case to some other Bench of the City Sessions Court as the trial judge has acted with bias.
There was another revision application filed by Smt.
Anushila Devi who claims herself to be a sister of the deceased Mahesh Kumar Agarwal and as a party interested in the case.
She also sought transfer of the case from the 13th Bench to some other Bench in the City Sessions Court on the apprehension that there would not be a fair trial in the case.
The High Court on examination of the records found that the correction slip filed before the that court was not part of the records in the case.
The High Court called for an explanation from learned trial judge who wrote to the High Court as follows: "The correction slip as referred to has not been pro 739 perly filed.
It is not signed by anybody.
The case number or the court number has not been mentioned in it.
Nor any petition has been filed by the prosecution along with such concerned correction slip.
Even the copy of the same has not been served upon the defence advocates.
Still then as many as 16 typograph ical mistakes have already been corrected out of 25 mistakes as per correction slip.
Other mistakes are not typographical mistakes and in the name of correction the evidence already recorded cannot be changed.
So other mistakes have not been corrected.
" He has also stated in the explanation: "Unsigned correction slip in 3 loose sheet could not be sent earlier as the case recorded was forwarded in a hurry and the said correc tion slip is now enclosed herewith." The High Court, however, was not satisfied with the explanation and expressed the view that the trial judge has not followed the proper procedure envisaged in sec.
278 of the Code since he has 'a closed mind '.
The Court also found fault with the procedure adopted by the prosecution, but liberty was reserved to the latter to file an application for re examination of PW 34.
As to the claim for re examination of the accused under sec.
3 13 of the Code, the High Court said as follows: "We have heard at length Mr. Durga Pada Dutta, the learned Advocate appearing on behalf of the accused opposite parties who frankly conceded that point Nos. 1, 2, 3, 4 & 5 could be allowed.
But objections were raised with regard to point Nos. 6 & 7 when it was suggested by the prosecution that a question should have been put regarding seizure of hair on 5.11.86 and of forwarding the same to the F.S.I. for comparison with the scalp haft of deceased Mahesh Kumar Agarwal and the report of the F.S.L.
It was suggested in point No. 7 that a question should be put regarding presence of accused Omar near the crossing of B.B. Ganguly Street and C.R. Avenue at about 1.15 a.m. on 5.11.
1986 when the I.O. 's testi mony was not very clear on the point.
" . . "We would have allowed ordinarily the applica tion filed on 21.3. 1989 with regard to point Nos.
1 to 5 and would have left the question on point Nos.
6 740 & 7 to the trial judge on the basis of conces sion made by Mr. Dutt, the learned Advocate for the accused opposite parties and also on the basis of our own opinion on this aspect of the case but then since we direct the trial court to hold the re examination of PW 34 on a proper application being filed by the prosecu tion in this regard.
We would expunge not only the examination under sec.
313 Cr.
P.C. which is already on record in respect of accused Mir Mohd. Omar but also in respect of the other accused persons and direct the court below to proceed afresh in the matter after the record ing of evidence including the re examination of PW 34 is complete and we would direct the court below further to hear out the submis sions of the prosecution as welt as defence regarding framing of proper questions under sec.
313 Cr.
P.C." The High Court also accepted the demand for transfer of the case and the matter was left to the Chief Judge, City Sessions Court either to try the case by himself or to transfer to some other Bench regard being had to the conges tion of the different Benches.
In this appeal, the accused have challenged the legality of the order of the High Court.
We have heard Mr. A.D. Giri, learned counsel for the appellants and learned Advocate General for the State of West Bengal, besides Mr. P.P. Rao, learned senior counsel for the private party.
We have also perused the material on record.
We find it difficult to support the impugned order.
It seems to us that the High Court has needlessly interfered with the discretion exercised by the trial court with regard to correction slip as well as on re examination of the accused under sec.
3 13 of the Code.
We do not find any infirmity in the procedure followed by the trial Judge and if there is any, it is only in the order of the High Court.
The High Court was uncharitable to the trial judge when it observed that he has 'a closed mind '.
It may be noted that the correction slip was not filed when the day to day evi dence of PW 34 was recorded and read over to him.
Nor it was filed on the last day of recording his evidence.
It does not bear any signature or the date.
The trial judge, however, thought fit to correct typographical errors in the statement of PW 34 which he would have corrected even otherwise.
He refused to make any correction or alter the substantive part of the evidence.
Indeed, he was fight in not tinkering with the substantive part of the evidence on the basis of an unsigned correction slip.
741 In the Sessions trial the court has limited jurisdiction with regard to correction of the recorded evidence of any witness.
Section 273 provides: "Procedure in regard to such evi dence when completed (1) As the evidence of such witness taken under sec.
275 or sec.
276 is completed it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the cor rectness of any part of the evidence when the same is read over to him, the magistrate or presiding judge may, instead of correcting the evidence make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary.
" The object of sec.
278 is two fold: firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes, if any.
If the correction suggested by the witness is one which the judge considers necessary he will make it at once as required by sub sec.
(1) but if the correction is such that the judge does not consider neces sary, sub sec.
(2) requires that a memorandum of the objec tion be made and the Judge add his remarks, if any, thereto.
In the present case, the learned trial judge corrected all the typographical errors which he considered necessary but refused to carry out the substantive part of his deposition.
The section is not intended to permit a witness to resile from his statement in the name of correction.
The learned trial judge was justified in refusing to effect the change which he thought was intended to change the earlier version.
He did not make a memorandum as the correction slip was unsigned and was not properly filed.
Now, since the correc tion slip as well as the remarks of the learned trial judge have become a part of the record, nothing more need be done as the provisions of sec.
278 are substantially complied with.
We equally see no justification for the High Court for giving liberty to the prosecution to file an application for re examination of PW 34.
In fact it will be seen from the operative portion of the impugned order the High Court proceeds on the assumption that PW 742 34 would be recalled for further examination.
Here again it may be noted that the prosecution has closed the evidence.
The accused have been examined under sec.
3 13 of the Code.
The prosecution did not at any stage move the trial judge for recalling PW 34 for further examination.
In these cir cumstances, the liberty reserved to the prosecution to recall PW 34 for re examination is undoubtedly uncalled for.
There is yet another grave error committed by the High Court.
It has expunged the entire examination under sec.
3 13 of the Code of all the accused.
We fail to understand the need for this extraordinary step.
It is unfortunate that the High Court should make that order.
Assuming it was on ac count of its permission to re examine PW 34, even in that case it would be sufficient to further examine the accused with reference to the additional circumstances, ' if any, appearing against the accused on such re examination.
The object of sec.
3 13 was that the accused may be given an opportunity of explaining each and every circumstance ap pearing against him.
The trial judge need not consult or hear the public prosecutor or the counsel for the accused as to the nature of the circumstances or the type of questions to be put to the accused.
It is his duty to examine the accused as per law.
It is, however, open to the prosecution to invite the attention of the Court if any incriminating circumstance is left out and not put to the accused.
We reserve liberty to the prosecution in this regard.
The question of transfer of the case to another Bench of the City Sessions Court also does not arise now.
We are told that the that judge has since retired and another judge has taken over his place.
He shall, therefore, take up this case expeditiously and proceed preferably day to day, as earlier ordered by the High Court.
In the result, the appeal is allowed and the order of the High Court is reversed.
This order shall be communicated to the that court within two days by cougher service.
The parties should appear before the trial court on August 14, 1989 to receive further orders.
T.N.A. Appeal allowed.
| IN-Abs | In the Sessions trial of the appellants accused under section 302/ 34, I.P.C., the prosecution examined 34 wit nesses including the Investigation Officer (PW 34).
The Trial Court examined the accused under section 313 of the Code of Criminal Procedure, 1973 and recorded their state ments.
Thereafter the Public Prosecutor filed an application for re examination of the first appellant under section 313 which was rejected by the Trial Court.
An unsigned correction slip, without any application and service on the defence counsel, was also filed seeking correction in the statement of PW 34.
The Trial Court recti fied the typographical errors, but refused to make other corrections which would have changed the substantive part of the evidence.
The State preferred a Criminal Revision in the High Court which stated that the Trial Court has not followed proper procedure regarding correction or recorded evidence.
The High Court expunged the examination under section 3 13 of all the accused reserving liberty to the prosecution to file application for re examination of PW 34 and accepted the demand for transfer of the case.
Hence these appeals.
Allowing the appeals, and reversing the order of the High Court, HELD: 1.
The object of section 278 is two fold: firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes.
If the 736 correction suggested by the suggested by the witness is one which the judge consideration necessary he will make it at once as required by sub section (1), but if the correction is such that the judge does net consider necessary, subsec tion (2) requires that a memorandum of the objection be made, and the Judge add his remarks, if any, thereto.
[741E] 1. 1 In the instant case, the trial judge corrected all the typographical errors which he considered necessary but refused to carry out the substantive part of his deposition.
The section is not intended to permit a witness to resile from his statement in the name of correction.
The trial judge was justified m refusing to effect the change which he thought was intended to change the earlier version.
He did not make a memorandum as the correction slip was unsigned and was not properly filed.
Since the correction slip as well as the remarks of the trial judge have become a part of the record, nothing more need he done as the provisions of section 278 are substantially complied with.
[741F G] 2.
The object of section 313 is that the accused may he given an opportunity of explaining each and every circum stance appearing against him.
The trial judge need not consult or hear the public prosecutor or the counsel for the accused as to the nature of the circumstances or the type of questions to he put to the accused.
It is his duty to exam ine the accused as per law.
It is, however, open to the prosecution to invite the attention of the Court to any incriminating circumstance left out and not put to the accused.
[742C D] 2.
I In the instant case, after the prosecution has closed the evidence the accused were examined under section 313 of the Code.
The prosecution did not at any stage move the trial judge for recalling PW 34 for further examination.
Therefore there was no justification for the High Court for giving liberty to the prosecution for re examination of PW 34 and expunging the examination of all the accused under section 313.
[742A 741H] 3.
In the instant case, as the trial judge has since retired the question of transfer of the case to another Bench of the City Sessions Court does not arise.
[742E]
|
vil Appeal Nos.
2990 91 of 1980.
From the Judgment and Order dated 20.9.
1979 & 11.9.79 of the Madhya Pradesh High Court in Misc.
Appeal No. 113 of 1976.
Shiv Dayal Srivastava, T.S. Krishna Moorthy lyer, D.N. Mishra, R.P. Srivastava, section Sukumaran and H.K. Puri, Harish N. Salve, K.K. Mohan, A.K. Sanghi, S.K. Agnihotri, Ashok Singh, H.K. Puri and 700 S.K. Gambir for appearing parties.
The Judgment of the Court was delivered by OJHA, J.
These two appeals by special leave raise an interesting question as to whether the provisions contained in Order 34 Rule 5 of the Code of Civil Procedure (hereinaf ter referred to as the Code) are attracted during the course of execution of an order of sale of mortgaged property passed under section 32 of the State Financial Corporation Act, 1951 (hereinafter referred to as the Act).
Necessary facts in order to appreciate the context in which this question arises may be stated in brief.
Maganlal who is the appellant in Civil Appeal No. 2990 of 1980 executed a mort gage on July 16, 1965 in favour of M.P. State Financial Corporation (hereinafter referred to as the Corporation) as security for a loan taken by him from the Corporation.
The amount of loan not having been paid by Maganlal the Corpora tion initiated proceedings under section 31 of the Act for recovery of Rs.51,799, which according to it was the amount due, by attachment and sale of the mortgaged property.
This application was made as contemplated by Section 31 of the Act before the District Judge.
After adopting the procedure contemplated by section 31 of the Act the District Judge passed an order for sale of the property which was ultimate ly sold for Rs.53,000 in an auction.
M/s Jaiswal Industries (hereinafter referred to as the first purchaser) was the highest bidder.
Magahlal made an application under Order 21 Rule 90 of the Code for setting aside the sale.
This appli cation was allowed by the Additional District Judge and the sale was set aside.
Aggrieved by that order the first pur chaser preferred a miscellaneous appeal in the High Court and also made an application for staying further proceedings for re sale.
The High Court, however, did not stay further proceedings for re sale but only ordered that the fresh sale should not be confirmed till the disposal of the appeal.
Fresh auction accordingly took place and the sale was knocked down in favour of Ramnarayan and others (hereinafter referred to as the second purchaser) who are the appellants in Civil Appeal No. 2991 of 1980.
The appeal of the first purchaser was subsequently allowed by the High Court.
The application made by Maganlal under Order 21 Rule 90 of the Code was dismissed and the sale in favour of the first purchaser was confirmed.
It is this order which has been challenged in Civil Appeal No. 2990 of 1980 by Maganlal and by the second purchaser in Civil Appeal No. 2991 of 1980, as already indicated above.
Maganlal has made an application before this Court under order 701 34 Rule 5 of the Code being C.M.P. No. 9940 of 1982 to which an objection has been filed.
This application was ordered to be put up at the time of the hearing of the appeal.
Subse quent events and proceedings of the court below on the basis whereof this application has been made as stated therein are these.
A sum of Rs.65,000 was paid by Maganlal to the Corpora tion on December 3, 1988 in full and final settlement of its claim and the Corporation acknowledged it by granting a receipt.
Certification of the adjustment thus made was recorded by the District Judge on April 6, 1981.
An applica tion purporting to be under Order 34 Rule 5 of the Code was made on November 20, 1981 by Maganlal for depositing Rs.2,650 equivalent of 5% of Rs.53,000 which was the highest bid of the first purchaser and a further sum of Rs.7,300, that is, 5% of Rs. 1,46,000 which was the highest bid of the second purchaser.
The prayer which was made in this applica tion was that the aforesaid sums may be paid to the first and second purchasers respectively and a final decree be passed in his favour in accordance with Order 34 Rule 5 of the Code.
The Additional District Judge by his order dated November 27, 1981 permitted Maganlal to deposit the two amounts separately at his risk and we are informed by his learned counsel that these amounts were deposited in pursu ance of the said permission.
According to learned counsel for Maganlal no final orders were passed on the aforesaid application by the Additional District Judge in view of the pendency of these appeals in this Court and it was as such that C.M.P. No. 9940 of 1982 referred to above was filed in this Court.
It was urged by learned counsel for Maganlal that in case C.M.P. No. 9940 of 1982 is allowed it will not be necessary for him to press the merits of the appeals and it is only in the event of the said application being dismissed that merits of the appeal will have to be pressed.
He, therefore, made a request that the said application may be decided first.
Learned counsel for the first and the second purchasers did not seriously dispute the above contention.
We have accordingly heard learned counsel for the parties on the said application and have not heard them on the merits of the appeals at this stage.
The aforesaid application has been opposed by learned counsel for the first and second purchasers on the ground that an order of sale of the mortgaged property passed by the District Judge under Section 32 of the Act after affect ing an attachment under section 31 thereof will not come within the purview of a final decree for sale of mortgaged property contemplated by Order 34 Rule 5 of the Code and as such the 702 benefit of that provision could not be extended to Maganlal.
According to learned counsel for the purchasers Order 34 Rule 5 of the Code could be applied only if in a suit insti tuted in this behalf on the basis of a mortgage deed a final decree for sale was obtained and the property was put to auction in pursuance of such decree.
The other submission which was made by them was that in any view of the matter the High Court after allowing the appeal filed by the first purchaser having confirmed the sale in his favour, an appli cation under Order 34 Rule 5 of the Code was not maintain able inasmuch as the said provision contemplated payment "on or before the day fixed or at any time before the confirma tion of a sale".
Learned counsel for Maganlal on the other hand urged that notwithstanding an order of confirmation of sale in favour of the first purchaser having been passed by the High Court Order 34 Rule 5 of the Code would still be attracted inasmuch as these appeals have been filed against the said order and till these appeals are decided the sale in favour of the first purchaser cannot become absolute.
As regards the second purchaser he pointed out that while permitting fresh sale during the pendency of the appeal by the first purchaser the High Court had specifically directed that the fresh sale which may take place shall not be confirmed.
He also urged that Order 34 Rule 5 of the Code was attracted even to an order of sale of mortgaged property passed under section 32 of the Act and since the right of redemption which vests in Maganlal has not yet extinguished in view of the pendency of these appeals there was no impediment in the relief contemplated by Order 34 Rule 5 of the Code being granted.
We shall first deal with the question with regard to the effect of an appeal being pending against an order dismiss ing an application under Order 21 Rule 90 of the Code.
In Chandra Mani vs Anarjan Bibi, A.I.R. 1934 P.C. Page 134 in execution of two final mortgage decrees for sale, the mort gaged properties were sold by auction.
The judgment debtors filed applications under Order 21 Rule 90 of the Code which were dismissed and the sales were confirmed in pursuance of Order 21 Rule 92 on April 22, 1924.
Appeals were filed against this order by some of the judgment debtors in the High Court which were dismissed on March 17, 1927.
Sale certificates were thereafter granted to the two auction purchasers on May 19, 1928 and June 6, 1928 respectively, who thereupon applied on September 10, 1928 for possession of the properties purchased by them.
These applications were objected to by the judgment debtors on the ground that they were barred by limitation under Article 180 of the Limita tion Act, 1908 703 which provided that such an application must be made within three years from the time when the sale becomes absolute.
The Subordinate Judge overruled the objection on the ground that in view of the pendency of the appeals filed by the judgment debtors against the order dismissing their applica tions under Order 21 Rule 90 of the Code time did not begin to run until March 17, 1927 when the said appeals were dismissed by the High Court.
On appeal by the judgment debtors the High Court took the view that the sale became absolute on April 22, 1924 when the Subordinate Judge con firmed the sales.
On further appeal by the auction purchas ers the order of the High Court was reversed by the Privy Council and it was held: "Upon consideration of the sections and orders of the Code, their Lordships are of opinion that in construing the meaning of the words "when the sale becomes absolute" in Act.
180, Tim.
Act, regard must be had not only to the provisions of 0.21, R. 92(1) of the schedule to the Civil Procedure Code, but also to the other material sections and orders of the Code, including those which relate to appeals from orders made under 0.21, R.92(1).
The result is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of article 180, Lim.
Act, until the disposal of the appeal, even though the Subor dinate Judge may have confirmed the sale, as he was bound to do, when he decided to disal low the above mentioned application.
Their Lordships therefore are of opinion that on the facts of this case the sales did not become absolute within the meaning of article 180, Lim.
Act, until 17th March 1927, and that the applications for possession of the properties purchased at the auction sales were not barred by the Limita tion Act.
" A similar view was taken by this Court in Sri Ranga Nilayam Ramkrishan Rao vs Kandokari Chellayamma and another; , where it was held that when an appeal is filed against an order refusing to set aside an execution sale under Order 21 Rule 90 of the Code no finality can be attached to the order confirming the sale until the appeal is decided.
In S.V. Ramalingam & others vs K.E. Rajagopalan and other, [1975] 2 M.L.J. Page 494 the question came up directly in connection with the applicability of Order 34 Rule 704 5 itself which contemplates payment into court "on or before the day fixed or at any time before the confirmation of a sale".
In that case too in pursuance of a final decree passed in this behalf the mortgaged property was sold and the applications made by the mortgagors for setting aside the sale were dismissed and the sale was confirmed and the sale certificate was also engrossed on stamp papers.
The mortgagors filed an appeal against that order before the High Court and during the pendency of the appeal an applica tion under Order 34 Rule 5 was filed for redemption of the mortgage.
This application was opposed inter alia on the ground that such an application could not lie after the sale had been confirmed by the lower court.
While repelling the objection of the auction purchaser and holding that the judgment debtors were entitled to the benefit of Order 34 Rule 5 of the Code it was held by Mr. Justice section Natarajan (as His Lordship then was): "The confirmation of a sale subsequent to the dismissal of a petition under Order 21, rule 90 cannot, in reality, alter the situation when the mortgagor judgment debtor has pre ferred within time an appeal against the dismissal of his petition under Order 21 Rule 90.
Though the confirmation of the sale does take the auction purchaser a step further than before the confirmation of the sale, the confirmation by itself, is in one sense, inchoate.
The confirmation gives the sale only viability but does not render the sale an indefeasible one, till such time as the appeal preferred by the mortgagor against the validi ty of the sale remains undisposed.
In that sense, the confirmation effected by the exe cuting Court may become final as far as the executing Court is concerned, but it certainly does not stamp the transaction with irrevoca ble finality when alone the rights of parties get crystallised beyond retracement.
Conse quently, the appeal preferred by the judgment debtor has the effect of rendering a sale and its confirmation fluidal and nebu lous.
It, therefore, follows that the finality of the sale is rendered at large before the appellate Court in appeal and as such, the petitioners will be entitled to exercise the right conferred on them under Order 34, rule 5 to redeem the mortgage.
" The same view was reiterated in almost an identical case by a Bench of the Madras High Court in M. Sevugan Chettiar vs V.A. Narayana Raja, A.I.R. 1984 Madras Page 334.
It was held that so long as there is no confirmation of sale in the eye of law and matter was sub 705 judice in appeal time was available for the judgment debtor to make the deposit under Order 34 Rule 5 of the Code and the process of deposit could be worked out until the confir mation of sale reaches the finality.
Section 60 of the Transfer of Property Act confers on the mortgagor a right to redeem a mortgage.
In so far as it is relevant for the purpose of these appeals the said sec tion reads as hereunder: "60.
Right of mortgagor to redeem .
At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re transfer the mortgaged.property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest trans ferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court." In Raghunath Singh and others vs Pt.
Hansraj Kunwar and others, A.I.R. 1934 P.C. Page 205 in a suit filed for re demption of a mortgage a decree was passed containing the provision that in case of default by the plaintiff in payment his case will stand dismissed.
Payment as contem plated by the decree was, however, not made and subsequently a second suit for redemption was filed.
It was contested inter alia on the ground that in view of the non payment of the decretal amount the previous suit stood dismissed and on account of the dismissal of that suit the subsequent suit was not maintainable inasmuch as right of redemption stood extinguished.
The Privy Council after making reference to the proviso to section 60 of the Transfer of Property Act rejected the aforesaid objection and held: "The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived 706 by means and in manner enacted for that pur pose, and strictly complied with.
In the present case the only basis for the claim that the right to redeem has been extinguished in section 60; but in their Lordships ' view the old decree cannot properly be construed as doing that which it does not purport to do, viz., as extinguishing the fight to redeem.
" This question came up very recently before this Court in Mhadagonda Ramgonda Patil and others vs Shripal Balwant Rainade and others, [1988] 3 S.C.C. Page 298.
The mortgagors in that case filed a suit for redemption and obtained a final decree for sale of the mortgaged property.
They, however, did not execute that decree and allowed the same to be time barred.
Subsequently, a second suit for redemption was, filed claiming that the mortgage still subsisted and the mortgagors were entitled to redeem the same and get possession of the mortgaged property.
The suit was contested inter alia on the ground that as the mortgagors did not pay the decretal dues under the decree passed in the previous suit their right of redemption had been extinguished.
The aforesaid plea raised in defence was repelled by the trial court and the suit for redemption was decreed.
The defend ants preferred an appeal against that decree before the High Court and raised a similar contention as was their defence in the trial court.
It was held by the High Court that in spite of the fact that in the earlier suit a preliminary decree and final decree were passed and the mortgagors did not redeem the mortgages by depositing the decretal dues, still the right of redemption was not extinguished.
The findings of the High Court aforesaid with regard to the maintainability of the second suit for redemption were challenged by the defendants before this Court and it was reiterated by their learned counsel that second suit was not maintainable.
While repelling this submission and interpret ing the provisions to section 60 of the Transfer of Property Act it was held: "It is thus manifestly clear that the right of redemption will be extinguished (1) by the act of the parties or (2) by the decree of a court.
We are not concerned with the question of extinguishment of the right of redemption by the act of the parties.
The question is whether by the preliminary decree or final decrees passed in the earlier suit, the right of the respondents to redeem the mortgages has been extinguished.
The decree that is referred to in the proviso to Section 60 of the Trans fer of Property Act is a final decree in a suit for foreclosure, as provided in sub rule (2) of Rule 3 of Order 34 and a final decree in a redemption suit as 707 provided in Order 34, Rule 8(3)(a) of the Code of Civil Procedure.
Sub rule (2) of Rule 34, inter alia, provides that where payment in accordance with sub rule (1) has not been made, the court shall, on an application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mort gaged property and also, if necessary, order ing the defendant to put the plaintiff in possession of the property.
Thus, in a final decree in a suit for foreclosure, on the failure of the defendant to pay all amounts due, the extinguishment of the right of re demption has to be specifically declared.
Again, in a final decree in a suit for redemp tion of mortgage by conditional sale or for redemption of an anomalous mortgage, the extinguishment of the right of redemption has to be specifically declared, as provided in clause (a) if sub rule (3) of Rule 8 of Order 34 of the Code of Civil Procedure.
These are the two circumstances (1) a final decree in a suit for foreclosure under Order 34, Rule 3(2); and (2) a final decree in a suit for redemption under Order 34, Rule 8(3)(a) of the Code of Civil Procedure When the right of redemption is extinguished.
" It was further held that in a suit for redemption of a mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree, but before the confirmation of such sale.
In view of these provisions the question of merger of mortage debt in the decretal debt does not arise at all.
In this view of the matter we are of the opinion that in case the provisions of Order 34 Rule 5 of the Code are held to be applicable to the facts of the instant case appropri ate relief can be granted thereunder as the order of confir mation of the sale passed by the High Court in favour of the first purchaser has not become absolute due to the pendency of these appeals against that order nor has the right of redemption of Maganlal yet extinguished.
We shall now advert to the question as to what is the nature of an order passed by the District Judge under sec tions 31 and 32 of the Act.
Clause (a) of sub section (1) of Section 31 of the Act which is relevant for the purpose of these appeals reads: "31.
(1) Where an industrial concern, in breach of any 708 agreement, makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation or where the Financial Corporation requires an industrial concern to make immediate repayment of any loan or advance under section 30 and the industrial concern fails to make such repayment, then without prejudice to the provisions of section 29 of this Act and of section 69 of the any officer of the Financial Corporation, generally or specially authorised by the Board in this behalf, may apply to the district judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business for one or more of the following reliefs, namely: (a) for an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance; or Sub section (1) of section 32 of the Act provides: "32.
(1) When the application is for the reliefs mentioned in clauses (a) and (c) of sub section (1) of section 31, the district judge shall pass an ad interim order attaching the security, or so much of the property of the industrial concern as would on being sold realise in his estimate an amount equivalent in value to the outstanding liability of the industrial concern to the Financial Corpora tion, together with the costs of the proceed ings taken under section 31, with or without an ad interim injunction restraining the industrial concern from transferring or remov ing its machinery, plant or equipment.
" Sub section (4) of section 32 contemplates issue of a notice to the industrial concern in the manner stated there in.
Sub section (5) inter alia contemplates that if no cause is shown on or before the date specified in the notice the District Judge shall forthwith make the ad interim order absolute and direct the sale of the attached property.
Sub section (6) on the other hand contains the procedure to be followed by the District Judge if cause is shown by the industrial concern 709 on receipt of the notice and provides that after making an investigation as contemplated the District Judge may inter alia confirm the order of attachment and direct the sale of the attached property.
Sub section (8) of section 32 pro vides: "(8) An order of attachment or sale of proper ty under this section shall be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908 for the attachment or sale of property in execution of a decree as if the Financial Corporation were the decreeholder.
" In Gujarat State Financial Corporation vs M/s. Natson Manufacturing Co. (P) Ltd. & Ors., [1979] 1 S.C.R. Page 372 the question as to what was the nature of proceedings under Sections 31 and 32 of the Act came up for consideration before this Court in connection with an objection about payment of court fee on an application under section 31(1).
It was held that the form of the application, the nature of the relief, the compulsion to make interim order, the limit ed inquiry contemplated by sub section (6) of section 32 and the nature of relief that can be granted and the manner of execution clearly show that the application under section 31(1) is neither a plaint as contemplated by Article 1 of Schedule 1 nor an application in the nature of a plaint as contemplated by Article 7 of the Court Fees Act, 1870.1t was also held that section 31(1) of the Act prescribes a special procedure for enforcement of the claims of the Financial Corporation and it is not even something akin to a suit of a mortgagee to recover mortgage money by sale of mortgaged property.
It was pointed out that the distinguishing fea tures noticeable between a suit for recovery of mortgage money by sale of mortgaged property and an application under section 31 for one or more reliefs specified therein are that even if the Corporation applicant so chooses it cannot in the application pray for a preliminary decree for ac counts or final decree for payment of money nor can it seek to enforce any personal liability even if such one is in curred under the contract of mortgage.
The Corporation cannot pray for a decree of its outstanding dues and can make an application for one of the three reliefs mentioned in section 31(1), none of which if granted results in a money decree or decree for recovery of outstanding loans or advance.
It was further held that a substantive relief in an application under section 31(1) "is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree".
With regard to the scope of sub section (6) of section 32 it was held that it has to be read in the context in 710 which it is placed and it does not expand the context in the application as if it is a suit between a mortgagee and the mortgagor for sale of mortgaged property.
The relief claimed under section 31(1) was held not to be a substantive relief which can be valued in terms of the monetary gain or preven tion of monetary loss.
It was pointed out that the claim of the Corporation in an application under section 31(1) was that there is a breach of agreement or default in making repayment of loan or advance or instalment thereof and, therefore, the mortgaged property could be sold.
In M/s. Everest Industrial Corporation and others vs Gujarat State Financial Corporation, [1987] 3 S.C.C. Page 597 a question arose as to whether an order under section 34 of the Code could be passed in proceedings under section 31(1) of the Act.
After referring to the decision in the case of Gujarat State Financial Corporation (supra) it was held that if as held by this Court in that case the proceed ing instituted under section 31(1) of the Act is something akin to an application for attachment of property in execu tion of a decree at a stage posterior to the passing of the decree no question of passing any other under section 34 of the Code would arise since that section could be applicable only at the stage of the passing of the decree and not to any stage posterior to the decree.
In view of these two decisions the law seems to be settled that an application under section 31(1) of the Act cannot be put on par to a suit for enforcement of a mortgage nor the order passed thereon under section 32 of the Act be put on par as if it was an order in a suit between a mortga gee and the mortgagor for sale of mortgaged property.
On the other hand the substantive relief in an application section 31(1) is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree.
We now turn to the crucial question as to whether the relief contemplated by Order 34 Rule 5 of the Code which in substance is to permit redemption of the mortgage during the course of executing of a final decree for sale of mortgaged property can be granted even after the property which was mortgaged as security for loan taken from the Corporation has, in execution of an Order under Section 32 of the Act passed on an application under Section 31(1) thereof, been sold by the District Judge following the procedure contem plated by Sub section (8) of Section 32 of the Act.
711 In this connection, it is relevant to note that in neither of the two cases namely, Gujarat State Financial Corporation and M/s Everest India Corporation, (supra) Sub section (8) of the Section 32 of the Act came up for consid eration.
Section 46 B of the Act reads as hereunder: "46B.
The provisions of this Act and of any rules or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the memorandum or articles of association of an industrial concern or in any other instrument having effect by virtue of any law other than this Act, but save as aforesaid, the provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being applicable to an industrial concern.
" No provision in the Act or any Rule or Order made there under has been brought to our notice stating that the effect of any action taken thereunder including the passing or orders of attachment and sale under Sections 31 and 32 thereof, is to extinguish the right of redemption.
In other words, there is nothing in the Act or in any Rule or Order made thereunder which may be inconsistent with Section 60 of the particularly the proviso there to.
Consequently no provision in the Act can be read "in derogation" of the .
said Section 60.
It is true that under the Code it is not necessary to attach the mortgaged property before putting it to sale but Section 31 of the Act contemplates attachment of even the mortgaged property and Section 32 thereof speaks of an Order of sale of the attached property, but that alone can by no stretch of imagination have the effect of extinguishing the equity of redemption.
Such attachment does not have that effect either under the proviso to Section 60 of the Trans fer of Property Act or under any provision of the Act, or Rule or Order made thereunder Sections 31 and 32 of the Act in so far as they contain the requirement of attaching the mortgaged property before its sale and ordering sale of the attached property read with Sub section (8) of Section 32 of the Act will, therefore, have the only effect that the said requirement "shall be in addition to, and not in derogation of" the provisions contained in the Code for sale of mort gaged property.
The purpose of enacting Sections 31 and 32 of the Act was apparently to provide for a speedy remedy for recovery of the dues of the Financial Corporation.
This purpose however was, in cases covered by 712 clause (a) of Sub section (1) of Section 31 confined to the stage of obtaining an Order akin to a decree in a suit, in execution whereof "the property pledged, mortgaged, hypothe cated or assigned to the Financial Corporation as security for the loan or advance" could be sold.
Sections 31 and 32 of the Act cut across and dispense with the provisions of the Code from the stage of filing a suit to the stage of obtaining a decree in execution whereof such properties as are referred to in clause (a) of Sub section (1) of Section 31 could be sold.
After this stage was reached sale in execution of an Order under Section 32 of the Act was for purposes 'of execution put at par with sale in execution of a decree obtained in a suit, by enacting Sub section (8) of Section 32 of the Act.
This Sub section as noted earlier provides that an order of attachment or sale of property under this section shall be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908 for the attachment or sale of property in execution of a decree as if the Financial Corporation were the decreeholder.
Expressions "as far as practicable" and "in execution of a decree as if the Financial Corporation were the decree holder" are the only expressions which qualify the "manner provided" for "sale of property in execution of a decree", as contained not only in some specific provision of the Code e.g. Order 21 thereof but "in the Code of Civil Procedure, 1908" namely, all the provisions in the Code in this regard ' wherever they may be.
If in its anxiety to ensure speedy recovery of the dues of the Financial Corporation Parliament had intended also to cut across and dispense with the procedure contained in the Code for execution of a decree for sale of such properties.
as are referred to in clause (a) of Sub section (1) of Section 31 of the Act, it would have made some provision analogous to provisions contained in the enactments for revenue recovery.
But that was not done.
Instead, Sub sec tion (8) was incorporated in Section 32 of the Act.
It is in this background that the question whether provisions of Order 34 Rule 5 of the Code will be attracted or not to the facts of the instant case has to be considered.
Relying on a decision of the Karnataka High Court in M/s Hotel Natraj vs Karnataka State Financial Corporation, A.I.R. 1989 Karnataka 90 it was urged by learned counsel for Maganlal that in view of sub section (8) of section 32 of the Act the applicability of the provisions of Order 34 Rule 5 of the Code cannot be denied to the facts of the instant case.
Learned counsel for the purchasers on the other 713 hand urged that section 32(8) of the Act made the manner provided in the Code Applicable only "as far as practicable" and there was neither a decree nor was the Financial Corpo ration as decree holder in a suit for sale but was only deemed to be a decree holder by legal fiction because of the expression in execution of a decree as if the Financial Corporation were the decree holder" We shall first deal with the scope and import of the expres sion far as practicable" and "in execution of a decree as if the Financial Corporation were the decree holder" used in sub section (8) of section 32 of the Act.
Without anything more the expression "as far as practicable" will mean that the manner provided in the Code for attachment or sale of property in execution of a decree shall be applicable in its entirety except such provision therein which may not be practicable to be applied.
It will be for the person assert ing that a particular provision with regard to execution of a decree for sale of an immovable property contained in the Code of Civil Procedure will not apply to execution of an order under section 32 of the Act on the ground that it was not practicable to show as to how and why it was not prac ticable.
As regards the second expression namely "in execu tion of a decree as if the Financial Corporation were the decree holder" it may be pointed out that even though an order under section 32 as seen above is not a decree stricto sensu as defined in section 2(2) of the Code and the Finan cial Corporation would not as such be called the decree holder, section 32(6) of the Act imports a legal fiction whereby the order under section 30 of the Act for purposes of execution would be a decree and the Financial Corporation a decree holder.
Apparently, the person against whom such decree has been executed namely the debtor of the Financial Corporation would be the judgment debtor.
In East End Dwell ings Company Limited vs Finsbury Borough Council, [1952] Appeal Cases 109 Lord Asquith at page 132 observed "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevita bly have flowed from or accompanied it .
The Statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of the state of affairs" It is also settled law that a legal fiction is to be limited to the purpose for which it was created and should not be extended beyond the legitimate field.
Reference for the proposition may be made to the 714 decisions of this Court in The Bengal Immunity Company Limited vs The State of Bihar and others, [1955] 2 S.C.R. Page 603; The Commissioner of Income Tax, Bombay City 1, Bombay vs Amarchand N. Shroff, [1963] Supp. 1 S.C.R. Page 699 and Commissioner of Income Tax.
Gujarat vs VadilaI Lal lubhai, etc.
, As is apparent from the plain language of section 32(8) of the Act the legal fiction was created for the purpose of executing an order under section 32 of the Act for sale of attached property as if such order was a decree in a suit for sale and the Financial Corporation was the decree holder whereas the debtor was the judgment debtor.
Consequently, the provisions of the Code of Civil Procedure with regard to execution of a decree for sale of mortgaged property con tained in Order 21 of the Code including the right to file an appeal against such orders passed during the course of execution which are appealable, shall apply mutatis mutandis to execution of an order under section 32 of the Act unless some provision is not practicable to be applied.
It cannot be disputed that the provisions contained in Order 34 Rule 5 of the Code are attracted as is apparent from the plain language thereof during the proceedings in execution of a final decree for sale and are thus provisions contained in the Code with regard to and having a material beating on the execution of a decree as aforesaid.
As seen above, the provisions contained in Order 34 Rule 5 of the Code in substance permit the judgment debtor to redeem the mortgage even at the stage contemplated by Order 34 rule 5 unless the equity of redemption has got extinguished.
Since the contin gency whereunder an equity of redemption gets extinguished is contained in the proviso to section 60 of the and since as indicated above, in the instant case the equity of redemption has not extinguished we find no good ground to take the view that even though all the remaining provisions with regard to execution of a decree for sale of mortgaged property will apply to execution of an order under section 32 of the Act, the provision contained in Order 34 Rule 5 of the Code shall not apply.
Nothing has been brought to our notice as to how and why it is not practicable to apply the said provision.
As already pointed out earlier it has been held by this Court in the case of Mhadagonda Ramgonda Patil, (supra) that in a suit for re demption of as mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree but before the confirmation of such sale and that in view of these provisions the question of merger of mortgage debt in the decretal debt does not at all arise.
We again do not find any good ground for holding that he said principle will not be attracted to 715 a sale which has taken place pursuant to an order under section 32 of the Act in so far as the provisions in the Code with regard to execution of a decree are concerned.
Of course, in view of the limited scope of legal fiction as indicated above the provisions in the Code shall be applica ble to an order of sale under the Act only with regard to execution of that order as if it was a decree in a suit and the Financial Corporation was a decree holder and the debtor a judgment debtor and this legal fiction will not be capable of being extended so as to treat an order of sale passed under the Act to be a decree in a suit for any other purpose for instance applying section 34 of the Code as was sought to be done in the case of M/s Everest Industrial Corpora tion, (supra) nor could it be extended for treating the application made under section 31(1) of the Act as a plaint for purposes of payment of court fee as was sought to be done in the case of Gujarat State Financial Corporation, (supra).
That the provisions of the Code with regard to execution of a decree for sale of mortgaged property would apply to execution of an order under section 32 of the Act is clear from section 32(8) of the Act and the reasons stated above.
It would also be so inasmuch as even otherwise once the order under section 32 for sale is made executable by a District Judge in his capacity as District Judge and not persona designata the provisions of the Code which are exercisable by the District Judge in execution of a decree for sale of mortgaged property would get attracted.
In National Sewing Thread Co. Ltd. vs James Chadwick & Bros. Ltd., [1953] S.C.R. Page 1028 an appeal was filed before a Single Judge of the Bombay High Court under section 76(1) of the which provides that an appeal shall lie from any decision of the Registrar under the Act or the rules made thereunder to the High Court having jurisdiction.
The , however, did not make any provision with regard to the procedure to be fol lowed by the High Court in the appeal or as to whether the order of the High Court was appealable.
Against the judgment of the Single Judge an appeal was preferred under clause 15 of the Letters Patent.
That appeal was allowed and the judgment of the Single Judge was reversed.
Before the Su preme Court an objection was raised that the Letters Patent appeal was not maintainable.
While repelling the said objec tion it was held: "Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and 716 procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction.
The rule is well settled that when a statute directs that an appeal shall lie to a Court already estab lished, then that appeal must be regulated by the practice and procedure of that Court.
This rule was very succinctly stated by Viscount Haldane L.C. in National Telephone Co., Ltd. vs Postmaster General, [19 13] A.C. 546, in these terms: "When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.
" The same view was expressed by their Lordships of the Privy Council in R.M.A.R. KLA.
Adaikappa Chettiar vs Ra.
Chandrasekhara Thevar, [1974] 741A 264, wherein it was said: "Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a fight of appeal." Again in Secretary of State for India vs Chellikani Rama Rao, Mad 617, when dealing with the case under the Madras Forest Act their Lordships observed as follows: "It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted.
In their Lord ships ' opinion this objection is not well founded.
Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordi nary Courts of the country, with regard to whose procedure, orders, and decrees the 717 ordinary rules of the Civil Procedure Code apply." Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the princi ple enunciated therein is one of general application and has an apposit application to the facts and circumstances of the present case.
Section 76 of the con fers a right of appeal to the High Court and says nothing more about it.
That being so, the High Court being seized as such of the appel late jurisdiction conferred by section 76 it has to exercise the jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the .
" In view of the foregoing discussion we are of the opin ion that the application made by Maganlal under Order '34 Rule 5 of the Code is maintainable and the requirements of the said provision having been satisfied the application deserves to be allowed.
In the result, while C.M.P. No. 19760 of 1984 which is for initiating contempt proceedings is dismissed, C.M.P. No. 99409 1982 under Order 34 Rule 5 of the Code filed by Magan lal is allowed.
Accordingly Civil Appeal No. 2990 of 1980 filed by Maganlal as also the application made by him under Order 21 Rule 90 of the Code are allowed.
The order appealed against passed by the High Court is set aside and the order passed by the Additional District Judge setting aside the auction sale in favour of the first purchaser is restored.
Civil Appeal No. 2991 of 1980 filed by the second purchaser is also allowed in so far as it prays for the setting aside of the order of the High Court.
However, on the view we have taken the subsequent auction sale held in favour of the second purchaser cannot be sustained and is also hereby set aside.
As a consequence we direct that since the Corporation in the instant case has accepted Rs.65,000 in full and final satisfaction of its claim, it shall return the mortgage deed executed by Maganlal to him.
The Additional District Judge in whose court the application under Order 34 Rule 5 of the Code was made as stated earlier shall strike off the execu tion in full and final satisfaction.
The sum of Rs.53,000 deposited by the first purchaser together with Rs.2,650 representing 5% of the said sum deposited by Maganlal and interest which may have accrued on these amounts shall be paid over the first purchaser.
Likewise, the 718 sum of Rs. 1,46,000 deposited by the second purchaser to gether with Rs.7,300 representing 5% of the said sum depos ited by Maganlal and the interest which may have accrued on these amounts shall be paid over to the second purchaser.
There shall be no order as to costs.
R.S.S. Appeals allowed.
| IN-Abs | Maganlal executed a mortgage in favour of M.P. State Financial Corporation as security for a loan.
The amount of loan not having been paid, the Corporation initiated pro ceedings before the District Judge under section 31 of the for attachment and sale of the mortgaged property, which was ultimately auc tioned and purchased by M/s Jaiswal Industries, the first purchaser Maganlal made an application under Order 21 Rule 90 of the Code of Civil Procedure with the result that the sale was set aside by the Additional District Judge.
The first purchaser preferred an appeal against the order set ting aside the sale and also sought stay of further proceed ings for re sale.
The High Court did not grant stay but only ordered that the fresh sale shall not be confirmed till the disposal of the appeal.
Fresh auction was held and sale was knocked down in favour of Ramnarayan, the second purchaser.
The appeal of the first purchaser was subsequently allowed by the High Court and the first sale in his favour was confirmed.
Both Maganlal and Ramnarayan have filed two separate appeals in this Court challenging the order of the High Court.
Maganlal made an application before this Court under Order 34 Rule 5 of the Code, being C.M.P. No. 9940 of 1982, for redemption of the mortgage, and has urged that in case C.M.P No. 9940 of 1982 is allowed, it would not be neces sary for him to press the merits of the appeal.
This conten tion has not been seriously disputed by the first and the second purchasers.
They have however opposed this applica tion on the ground that: (i) an order of sale of the mort gaged property passed 697 by the District Judge under section 32 of the Act after affecting an attachment under section 31 thereof will not come within the purview of a final decree for sale of mort gaged property contemplated by Order 34 Rule 5 of the ' Code and as such the benefit of that provision could not be extended to Maganlal; (ii) the High Court having confirmed the sale in first purchaser 's favour, an application under Order 34 Rule 5 of the Code is not maintainable inasmuch as the said provision contemplates payment 'on or before the day fixed or at any time before the confirmation of a sale '; and (iii) section 32(8) of the State Finance Corporation Act makes the manner provided in the Code applicable only "as far as practicable" and there was neither a decree nor was the Financial Corporation a decree holder in a suit for sale it was only deemed to be a decree holder by legal fiction because of the expression "in execution of a decree as if the Financial Corporation were the decree holder".
On the other hand, it is contended on behalf of Maganlal that (i) Order 34 Rule 5 of the Code is attracted even to an order of sale of mortgaged property passed under section 32 of the Act and since the right of redemption which vests in Maganlal has not yet extinguished in view of the pendency of these appeals, there is no impediment in the relief contem plated by Order 34 Rule 5 of the Code being granted.
and (ii) in view of sub section (8) of section 32 of the Act the applicability of the provisions of Order 34 Rule 5 of the Code cannot be denied to the facts of the instant case.
Allowing the CMP and the appeal filed by Maganlal and granting consequential reliefs to the first and the second purchasers, this Court.
HELD: (1) In case the provisions of Order 34 Rule 5 of the Code are held to be applicable to the facts of the instant case, appropriate relief can be granted thereunder as the order of confirmation of the sale passed by the High Court in favour of the first purchaser has not become abso lute due to the pendency of these appeals against that order nor has the right of redemption of Maganlal yet extin guished.
[707F G] Chandra Mani vs Anarjan Bibi, A.I.R. 1934 P.C. 134; Nilayam Ramkrishan Rao vs Kandokari Chellayamma & Anr., ; ; S.V. Ramalingam & Ors.
vs K.E. Rajagopa lan & Ors., ; M. Sevugan Chettiar vs V.A. Narayana Raja, A.I.R. 1984 Mad 334; Raghunath Singh & Ors.
vs Pt.
Hansraj Kunwar & 698 Ors., A.I.R. 1934 P.C. 205 and Mhadagonda Ramgonda Patil & Ors.
vs Shripal Balwant Rainade & Ors., , referred to.
(2) An application under section 31(1) of the Act cannot be put on par to a suit for enforcement of a mortgage nor the order passed thereon under section 32 of the Act be put on par as if it was an order in a suit between a mortgagee and the mortgagor for sale of mortgaged property.
On the other hand, the substantive relief in an application under section.31(1) is something akin to an application for at tachment of property in execution of a decree at a stage posterior to the passing of the decree.
[710E F] Gujarat State Financial Corporation vs M/s Natson Manu facturing Co. (P) Ltd.; , and M/s Everest Industrial Corporation & Ors.
vs Gujarat State Financial Corporation, ; , referred to.
(3) The purpose of enacting sections 31 and 32 of the Act was apparently to provide for a speedy remedy for recov ery of the dues of the Financial Corporation.
This purpose however was, in cases covered by clause (a) of sub section (1) of section 31, confined to the stage of obtaining an order asking to a decree in a suit, in execution whereof "the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance" could be sold.
Sections 31 and 32 of the Act cut across and dispense with the provisions of the Code from the stage of filing a suit to the stage of obtaining a decree in execution whereof such properties as are referred to in clause (a) of sub section (1) of section 31 could he sold.
After this stage was reached, sale in execution of an order under section 32 of the Act was for purposes of execution put at par with sale in execution of a decree obtained in a suit, by enacting sub section (8) of section 32 of the Act.
[711H 7 12B] (4) If in its anxiety to ensure speedy recovery of the dues of the Financial Corporation Parliament had intended also to cut across and dispense with the procedure contained in the Code for execution of a decree for sale of such properties as are referred to in clause (a) of sub section (1) of section 31 of the Act, it would have made some provi sion analogous to provisions contained in the enactments for revenue recovery.
But that was not done.
Instead, sub sec tion (8) was incorporated in section 32 of the Act.
[712F] (5) As is apparent from the plain language of section 32(8) of the 699 Act, the legal fiction was created for the purpose of exe cuting an order under section 32 of the Act Tim ' sale of attached property as if such order was a decree in a suit for sale and the financial Corporation was the decree holder whereas the debtor was the judgment debtor.
[714B] It is settled law that a legal fiction is to he limited to the purpose for which it was created and should not he extended beyond the legitimate field.
[713H] The Bengal Immunity Company Ltd. vs The State of Bihar & Ors., ; East End Dwellings Company Ltd. vs Finsbury Borough Council, [1952] Appeal Cames 109; The Commissioner of Income tax, Bombay vs Amarchand N. Shroff, [1963] Supp.
1 S.C.R. 699; Commissioner of Income Tax, Gujarat vs Vedilal Lallubhai, ; and Nation al Sewing Thread Co. Ltd. vs Jamesh Chadwick & Bros. Ltd., ; , referred to.
(6) The provisions of the Code of Civil Procedure with regard to execution of a decree for sale of mortgaged property contained in Order 21 of the Code including the right to file an appeal against Such orders passed during the course of execution which are appealable shall apply mutasis mutandis to provisions of an order under section 32 of the Act unless such provision is not practicable to he applied.
[714C] (7) Since, in the instant case, the equity of redemption has not extinguished, there is no good ground to take the view that even though all the remaining provisions with regard to execution of a decree for sale of mortgaged property will apply to execution of an order under section 32 of the Act, the provision contained in Order 34 Rule 5 of the Code shall not apply.
Nothing has been brought to the notice of the Court as to how and why it is not practicable to apply the said provision.
[7 14F]
|
Writ Petition (Crimi nal) No. 2 16 of 1989 (Under Article 32 of the Constitution of India) Surya Kant and M.C. Mehta for the Petitioner.
Anil Dev Singh, Girish Chandra, Ms. A. Subhashini and Dalveer Bhandari for the Respondent.
777 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is a petition under Article 32 of the Constitution filed by one Madhu Mehta, who is the National Convenor of Hindustani Andolan.
This petition seeks a writ of Habeas Corpus or an appropriate direction with regard to one Shri Gyasi Ram, S/o Shri Param aged above 60 years, who, it is claimed, has been waiting decision on his Mercy Petition pending before the President of India for about 8 or 9 years.
The said Gyasi Ram was at all relevant time lodged in "DEATH CELL, CENTRAL JAIL" JHANSI having been convicted for an offence punishable under section 302 of Indian Penal Code and sentenced to death by the learned Sessions Judge, Jhansi on October 19, 1978.
It appears that Gyasi Ram was convicted and sentenced to death by the learned Sessions Judge, Jhansi on 19th October, 1978 for committing murder, which has been described by the Under Secretary (Judicial), Ministry of Home Affairs, Govt.
of India, as the 'cold blooded murder ' of a Government servant, namely, Bhagwan Singh, who was the resident of Mauranipur Tehsil, in District Jhansi, Uttar Pradesh.
There then were arrears of land revenue due from Gyasi Ram and also one Mool Chand.
For the purpose of realising the said arrears of land revenue, their property was attached by Amin Bhagwan Singh and the same was put to sale by auction.
The auction took place on 26th December, 1976 and after the auction while the said Amin was returning along with his Peon Sripat from village Kakwara after delivering the sale certificate to the auction purchaser, they were way laid by Daya Ram (son of Mool Chand) and Gyasi Ram, the convicts involved in this case.
In the evidence, it was stated that Daya Ram who was armed with pistol fired at the deceased Amin Bhagwan Singh who fell down from his cycle.
While Daya Ram held down Amin Bhagwan Singh, Gyasi Ram, the person about whom this peti tion is concerned, cut Bhagwan Singh 's throat with the sword he was carrying and inflicted other injuries also.
After this incident, both Daya Ram and Gyasi Ram, it has been stated, escaped.
Gyasi Ram was, however, arrested, tried, convicted and sentenced to death, as mentioned hereinbefore.
The death sentence was passed on Gyasi Ram by the learned Sessions Judge on 19th October, 1976.
The Allahabad High Court confirmed this death sentenced on 28th February, 1979.
This Court dismissed his Criminal Appeal No. 362/79 on 17th March, 1981.
Mercy Petition was filed by the wife of the convicted to the President of India on 18th December, 1981.
It appears that Mercy Petition has still not been disposed of.
Daya Ram had absconded and could not be put on trial along with Gyasi Ram.
It appears further that Gyasi Ram 's Mercy Petitions dated 6th October, 778 1981 and 26th November, 1981 were rejected by the Governor of Uttar Pradesh on the 26th November, 1981 and were re ceived in the Ministry of Home Affairs on the 5th December, 1981 for the consideration of the President of India.
From the affidavit filed on behalf of the Government of India, it appears that after processing the case, the matter was put up before the President of India on 21st April, 1983 for his orders on the Mercy Petitions and that the President after examining the case file, returned the file on 30th July, 1983 for further consideration.
While the Ministry of Home Affairs was processing the case of Gyasi Ram further, the intimation was received from this Court on 13th November, 1984 that Daya Ram, son of Mool Chand had also filed a Special Leave Petition against the judgment date 17th Octo ber, 1984 of the Allahabad High Court by which the sentence of death was confirmed on him.
It appears from the order of this Court dated 18th February, 1985 dismissing Daya Ram 's Special Leave Petition that this Daya Ram was the same person who was Gyasi Ram 's partner in the crime as mentioned hereinbefore.
Subsequently, .two Mercy Petitions were filed on behalf of Daya Ram which were forwarded for the consider ation of the Governor of Uttar Pradesh in the first instance by the Ministry of Home Affairs dated 9th April, 1984 and 9th August, 1985 respectively.
These still remain undisposed of.
It has been asserted on behalf of the Government of India in the half yearly return dated 8th August, 1985 submitted by the Government of Uttar Pradesh that it was reported that they had received a Mercy Petition from Daya Ram.
Thereafter, in successive half yearly reports, the last of these being dated 16th January, 1989, the State Govern ment had been saying that the Mercy Petition of Daya Ram was still under consideration.
It is the version of the Govern ment that in view of the implications of Daya Ram and Gyasi Ram in the same crime, it was considered, it is stated, that the decision on the Mercy Petition of Daya Ram by the Gover nor of Uttar Pradesh would have a direct bearing on the consideration of the Mercy Petition of Gyasi Ram by the President of India.
It was, accordingly, felt, so it is .asserted, that it was desirable to await the decision of the Governor of Uttar Pradesh on Daya Ram 's Mercy Petition.
But it was only on 18th January, 1989 that by a Wireless Message, the Central Government asked the State Government to let the Ministry of Home Affairs know the decision of the Governor on Daya Ram 's Mercy Petition and to send it immedi ately for consideration of the President of India so that the cases of Gyasi Ram and Daya Ram could be submitted together to the President.
But the Government did not move.
It is further stated that in reply to the Wireless Message of 18th January, 1989 the State Government through its letter dated 1st February, 1989 intimated that the Mercy Petition of 779 Daya Ram was still under consideration.
Thereafter, there was another request to the Chief Secretary by demi official letter of the Ministry of Home Affairs dated 3rd February, 1989 to expedite consideration of Daya Ram 's Mercy Petition.
And upon this, it is stated that by a telex message dated 15th March, 1989, the State Government had intimated that the Governor of Uttar Pradesh had rejected the Mercy Peti tion and that formal letter of State Government would fol low.
It was stated on behalf of the Government of India that Mercy Petition of Daya Ram was received by the Ministry of Home Affairs on 21st March, 1989 along with the letter.
In the affidavit, it is stated that after collecting certain further information from the Supreme Court Registry, the Ministry of Home Affairs "was now ready to process the Mercy Petitions of Gyasi Ram and Daya Ram and submit the same to the President of India for consideration".
The deponent was good enough to state in the affidavit that the delay factor would be kept in view while taking a final decision in the case of Gyasi Ram and he was fully aware of the agony of Gyasi Ram and members of his family.
It was stated that in view of the reasons stated above, it was not possible to avoid the delay.
The learned District and Sessions Judge, Jhansi had, in the meantime, visited the said convict Gyasi Ram in jail on 22nd May, 1988 and had sent a report to the Inspector Gener al of Prisons stating "Gyasi 's mental state is such that he might commit suicide by hanging his head on the iron grill of his cell if a decision on his petition is not taken soon.
If he is to be hanged, it should be done without any delay or he should be released".
The Inspector General 's Office further sent an official to Delhi to expedite the case.
Thereafter, this petition was filed for the condemned pris oner.
Gyasi Ram, until the orders of this Court passed in these proceedings on the 3rd May, 1989, was kept in the Death Cell and it is only pursuant to the orders of this Court that the prisoner was allowed to stay in the Ordinary Cell during the day time.
The petitioner moved this Court on 11th April, 1989 and the notice was issued returnable on 19th April, 1989.
Time was taken to file affidavit and the order of this Court dated 3rd May, 1989 was passed.
The matter was adjourned for three months.
Affidavits have been filed but his Mercy Petition still remains undisposed of.
The question is: what is to be done? This question of delay in these matters has been examined by this Court from time to time, and how far delay in execution of death sentence necessitates the commutation of the death sentence or re lease of the condemned prisoner, has been a matter of some controversy and debate.
In T.V. Vatheeswaran vs State of Tamil Nadu, , a bench of two learned Judges considered this 780 aspect.
Speaking for this Court, Chinnappa Reddy, J. stated in that decision that Article 21 of the Constitution enjoins that any procedure, which deprives a person of his life or liberty must be just, fair and reasonable.
It implies humane conditions of detention, preventive or punitive. 'Procedure established by law ' does not end with the pronouncement of sentence; it includes the carrying out of sentence.
Pro longed detention to await the execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death.
Reddy, J. was of the view that the sentence of death is one thing; sentence of death followed by lengthy impris onment prior to execution is another.
A period of anguish and suffering is an inevitable consequence of sentence of death, but a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not.
And it was no answer to say that the man would struggle to stay alive.
It was, therefore, found in that case that a delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death.
This Court did so and substituted the sentence of imprisonment in that case.
That decision was rendered on 16th February, 1983.
The validity of that deci sion did not last long.
On 24th March, 1983, in Sher Singh & Ors.
vs The State of Punjab, ; , a bench of three learned Judges of this Court held that the prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed.
But no hard and fast rule that 'delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death ' can be laid down as has been done in Vatheeswaran 's case (supra).
It is not necessary, therefore, to go into the aspect of this matter any more.
Chief Justice Chandrachud observed that a self imposed rule should be followed by the executive authority rigorously that every mercy petition should be disposed of within a period of three months from the date on which it was received.
Long and interminable delay in the disposal of these petitions, it was observed, are serious hurdles in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice.
The learned Chief Justice stated that undoubtedly, the executive has the power, in appropri ate cases, to act under the aforesaid provisions but, all exercise of power is preconditioned by the duty to be fair and quick.
Delay defeats justice, it was observed.
In this background, we have to consider the reasons given in the affidavit in this case.
We have set out the 781 reasons advanced on behalf of the Government.
They are self explanatory.
These do not, in our opinion, indicate any justifiable ground for keeping the Mercy Petitions of Daya Ram and Gyasi Ram pending for such a long time.
Indeed, it is not disputed from the affidavit of the Under Secretary, Ministry of Home Affairs, Government of India that in the half yearly return dated 8th October, 1985 and thereafter in the successive half yearly returns of the Uttar Pradesh Government upto 16th January, 1989 year after year, the Mercy Petitions of Daya Ram remained unattended and undis posed of and consequently the Mercy Petition made to the President of India by Gyasi Ram was also undisposed.
The time and the manner in which the Mercy Petition has been dealt with in this case in respect of Gyasi Ram make sad reading and speak of the deplorable lack of speed and promp titude which in these matters should be there.
In the mean time, there is no denying the fact that Gyasi Ram has suf fered a great deal of mental pain and agony.
His condition has been described by the learned Sessions Judge as indicat ed hereinbefore.
Whether death sentence is the appropriate punishment for the crime of murder, cold blooded in certain cases, is another debate.
This Court in Bachan Singh vs State of Punjab; , at page 221 of the report, observed as follows: "To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue.
It has evoked strong, divergent views.
For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, IPC on the ground of reasonable ness in the light of Articles 19 and 21 of the Constitution,, it is not necessary to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct.
It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion, on this issue, is a ground among others, for rejecting the petitioners ' argument that retention of death penalty in the impugned provision is totally devoid of reason and purpose.
If, notwithstanding the view of Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punish ment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public 782 opinion channelised through the people 's representatives in Parliament, has repeatedly in the last three decades, rejected all at tempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware . of the existence of death penalty as punishment for murder, under the Indian Penal Code, if Thirty fifth Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new sections 235(2) and 354(3) in that Code providing for pre sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972 73 it look up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in section 302, Penal Code is unreasonable and not in the public interest.
We would, there fore, conclude that the impugned provision in section 302, violates neither the letter nor the ethos of Article 19.
" In that decision, Bhagwati, J. (as the learned Chief Justice then was), dissented.
He held that death sentence was bad morally as well as constitutionally.
It is no longer necessary in view of the majority judgment to deal with these views in detail.
This aspect was examined in several cases and a bench of five learned Judges considered this question again in Smt.
Triveniben vs State of Gujarat, ; , where Oza, J. speaking for the majority analysed the trend and observed at p. 688 that it was not necessary to go into the jurisprudential theories of punish ment deterrent or retributive in view of what has been laid down in Bachan Singh 's case (supra) with which learned Judges therein agreed.
It is well settled now that undue long delay in execution of the sentence of death would entitle the condemned person to approach this Court or to be approached under Article 32 of the Constitution, but this Court would only examine the nature of delay caused and circumstances that ensued after sentence was finally con firmed by the judicial proces and will have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death.
But the court is entitled and indeed obliged to 783 consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execu tion of sentence should be carried out or should be altered into imprisonment for life.
No fixed period of delay can be considered to be decisive.
It has been emphasised that Article 21 is relevant in all stages.
Speedy trial in crimi nal cases though may not be fundamental right, is implicit in the broad sweep and content of Article 21.
Speedy trial is part of one 's fundamental right to life and liberty.
This principle is no less important for disposal of mercy peti tion.
It has been universally recognised that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture.
See the 'observations of Shetty, J. in Triveniben 's case (supra) at p. 7 13 7 14 of the report, where it has been observed that as between funeral fire and mental worry, it is the latter which is more devastating, for funeral fire burns only the dead body while the mental worry burns the living one.
In the instant case, Gyasi Ram has suffered a great deal of mental agony for over eight years.
It is not disputed that there has been long delay.
We do not find reasons sufficiently commensurate to justify such long delay.
The convict has suffered mental agony of living under the shadow of death for long, far too long.
He should not suffer that agony any longer.
In the aforesaid facts and the circumstances of the case, therefore, we direct that the death sentence should not be carried out and the sentence imposed upon him be altered to imprisonment for life.
We order accordingly.
This Writ Petition is disposed of with the aforesaid direc tion.
Y. Lal Petition dis posed of.
| IN-Abs | This Petition under Article 32 of the Constitution has been filed by one Madhu Mehta National Convenor of Hindusta ni Andolan and a Social worker praying for a writ of Habeas Corpus or an appropriate direction in regard to one Gyasi Ram s/o Param aged 60 years, who, is stated to be waiting for a decision on his mercy petition by the President of India for about 8 or 9 years.
He is stated to be confined in the Death Cell, Central Jail, Jhansi.
The Circumstances under which the Writ Petition has been filed may be stated thus: Gyasi Ram was convicted under Section 302, IPC.
and sentenced to death by Sessions Judge, Jhansi on October 19, 1978 for committing the Cold blooded murder of one Bhagwan Singh, a Government servant.
One Daya Ram was also associat ed with him for the Commission of the said Crime, who had escaped.
The death sentence awarded to Gyasi Ram was con firmed both by the High Court as also by this Court.
On 18.12.1981, the wife of Gyasi Ram filed a mercy Petition before the President of India which remained undis posed till the filing of this Writ Petition.
It appears that mercy petitions presented by Gyasi Ram on 6.10.1981 and 26.11.1981 were rejected by the Governor of the State and were received in the Ministry of Home Affairs on 5.12.1981 for consideration by the President of India.
On 21.4.1983, the mercy petitions were put up for orders before the President, and the President returned the file for further consideration.
In the meantime, information was received by the Govern ment from the Registry of this Court that Daya Ram s/o Moolchand had also 775 filed a Special Leave Petition against the Judgment dated 17.10.1984 of the Allahabad High Court whereby the death sentence imposed upon him was confirmed.
Subsequently two mercy petitions were filed on his behalf which were forward ed to the Governor of the State for consideration in the first instance on 9.4.84 and 9.8.85, which remained undis posed.
In the Counter affidavit filed on behalf of the Union of India attempt has been made to explain this long delay occurred in the disposal of the mercy petitions the main reason, amongst others, that is attributed to the long delay in 'disposing of the mercy petitions of Gyasi Ram, is the pendency of the mercy petitions filed by Daya Ram, with the Governor of the State, in regard to which the Union is stated to be in touch and Correspondence with the State Government.
It is said that the decision on the mercy Peti tion moved on behalf of Daya Ram has a direct bearing to the decision to be taken on the petitions moved on behalf of Gyasi Ram.
It was only on 15.3.89, the Union Government had been informed on telex that the mercy petition of Daya Ram has since been disposed of.
The Sessions Judge, Jhansi had visited the said convict in Jail on 22.5.88 and had sent a report to the effect "Gyasi 's mental state is such that he might commit suicide by hanging his head on the iron grill of his ceil if a decision on his mercy petition is not taken soon.
" Thereafter the instant Petition has been filed.
The question that arose for determination by this Court, in the facts and Circumstances, of the case was whether by reason of the long delay in the execution of the death sentence awarded to Gyasi Ram, he was entitled to any commutation, alteration in his sentence in view of this Court 's Judgments in T.V. Vatheeswaran vs State of Tamil Nadu, and Sher Singh & Ors.
vs The State of Punjab, ; Allowing the Writ Petition, this Court, HELD: Undue long delay in execution of the sentence of death would entitle the condemned person to approach this Court or to he approached under Article 32 of the Constitu tion but this Court would only examine the nature of delay caused and circumstances that ensued after the sentence was finally confirmed by the Judicial process and will have no jurisdiction to re open the conclusions reached by the Court while finally maintaining the sentence of death.
[782G] The Court is entitled and indeed obliged to consider the question 776 of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should he carried out or should he altered into imprisonment for life.
No fixed period of delay can he considered to be decisive.
[782H 783A] Speedy trial in Criminal cases though may not he a fundamental right, is implicit in the broad sweep and con tent of Article 21.
Speedy trial is part of one 's fundamen tal right to life and liberty.
[783B] There is no justifiable ground for keeping the mercy petition of Daya Ram and Gyasi Ram pending for such a long time.
In the half yearly return dated 8th October, 1985, and thereafter in the successive half yearly returns of the Uttar Pradesh Government upto 16th Jan., 1989, year after year, the Mercy Petitions of Daya Ram were shown to have remained unattended and undisposed and consequently the Mercy Petition made to the President of India by Gyasi Ram was also undisposed.
[781B] The time and the manner in which the Mercy Petition has been dealt with in this case in respect of Gyasi Ram make sad reading and speak of the deplorable lack of speed and promptitude which in these matters should he there.
In the meantime, there is no denying the fact that Gyasi Ram has suffered a great deal of mental pain and agony.
[781C] The Convict has suffered mental agony of living under the shadow of death, for long far too long.
He should not suffer that agony any longer.
[783D] The Court directed that the death sentence imposed on Gyasi Ram be altered to imprisonment for life.
[783E] Bachan Singh vs State of Punjab, and Smt.
Triveniben vs State of Gujarat, ; , referred to.
|
tion (Criminal) No. 307 of 1988.
(Under Article 32 of the Constitution of India) Ram Jethmalani, U.R. Lalit, Ms. Kamini Jaiswal and Arvind Nigam for the Petitioner.
T.U. Mehta, Dushiant Dave, M.N. Shroff and Mrs. section Dikshit for the Respondents.
The Judgment of the Court was delivered by RAY, J.
The petitioner who is the brother of detenu, Adbul Latif Abdul Wahab Sheikh of Ahmedabad has challenged in this writ petition the order of detention dated May 23, 1988 passed by the respondent No. 1, the Commissioner of Police, Ahmedabad City, Gujarat issued under Section 3(2) of the Gujarat Prevention of AntiSocial Activities Act, 1985 and served on the detenu while the detenu was in custody at Sabarmati Central Prison under a judicial order of remand made by the Designated Court, Ahmedabad in respect of C.R. No. 40 of 1987, on the grounds inter alia that there has been absolute non application of mind on the part of the detaining authority 895 in clamping the order of detention and also on other grounds.
In order to decide the various contentions raised in this writ petition, it is necessary to consider the back ground as well as the various orders of detention passed against the detenu by the detaining authority, the respond ent No. 1.
On September 11, 1984, the detenu was served with a show cause notice under Section 59 of the Bombay Police Act, 1951 calling upon him to show cause as to why he should not be externed from the limits of Ahmedabad City Police Commissioner 's jurisdiction and its surrounding areas as also from the rural areas of Gandhinagar, Kheda and Mehsana District limits for the activities of February, 1983.
In 1985 the detenu was arrested for alleged offences under Sections 307, 143, 147, 148, 149 and 324 of Indian Penal Code in C.R. No. 37 of 1985.
On February 14, 1985 the detenu was granted bail in the said case by the Sessions Court, Ahmedabad.
On March 18, 1985 communal riots broke out in Ahmedabad city and on March 24, 1985 an order of detention under the National Security Act was passed against the detenu by the respondent No. 1.
During the communal riots one Police Sub Inspector, Mr. Rana was killed in Kalupur P.S.F.I.R. was lodged against the detenu and six other accused on May 9, 1985.
In the FIR the detenu was named as accused No. 2.
On July 6, 1985 charge sheet was submitted in C.R. No. 37 of 1985.
On September 27, 1985 enquiry was completed in externment proceedings and arguments were heard.
On November 12, 1985, the detenu surrendered to police and he was arrested and taken into custody.
In the said case accused Nos. 6 and 7 were discharged, the detenu along with accused No. 4 was tried in the said charge by the Principal Judge, Sessions Court who by his Judgment dated May, 26, 1986 acquitted the detenu and the co accused after recording of the evidence of witnesses and considering the same.
The detenu was, however, enlarged on bail by the Magistrate in the said case vide his order dated June 23, 1986 as no case was made out against the detenu under Sec tion 307 I.P.C. and the offence, if any, was only under Section 324 I.P.C.
The detenu was released from jail on June 23, 1986 and immediately as he came out, an order of deten tion under the Prevention of Anti Social Activities Act (PASA) was served on the detenu there and then and he Was once again taken into custody.
It is relevant to mention in this connection that on January 18, 1986 the order of ex ternment of the detenu from Ahmedabad City and rural areas of Gandhinagar etc. was made while he was in custody.
The detenu preferred an appeal against the externment order which was heard by the Deputy Secretary (Home).
The State Government confirmed the order of externment on June 23, 1986.
On August 7, 1986, 896 the State Government revoked the order of detention dated June 23, 1986 on the ground that no Advisory Board was constituted.
On the same day, however, the State Government passed the second order of detention under PASA and the same was served on the detenu on the same day.
The detenu filed a Special Criminal Application No. 862 of 1986 challenging the externment order dated January 18, 1986 and its confirmation order dated June 23, 1986 before the High Court of Gujarat.
The detenu also filed another Special Criminal Application No. 889 of 1986 before the High Court challenging the second order of detention dated August 7, 1986.
The Special Crimi nal Application No. 889 of 1986 was dismissed by the High Court on October 21, 1986.
Against this judgment the detenu filed a Special Leave Petition (Crl.) No. 3762 of 1986 before this Court and the said Petition was finally heard in part on January 23, 1987 and it was adjourned to February 3, 1987.
This Court released the detenu on parole only on January 23, 1987 for the reason that the detenu was required to be in Ahmedabad because the Corporation elections were to take place on January 25, 1987.
Unfortunately, the mother of the detenu expired on January 23, 1987, but in spite of the order of parole made by this Court, the State Government permitted the detenu to attend his mother 's funeral by granting him parole for only four hours and after the funer al, the detenu was again taken into custody.
Thereafter, the detenu was released on parole on January 24, 1987.
The elections for the Corporation were held on January 25, 1987 and the detenu was declared elected from all the wards from which he had contested.
On February 3, 1987, the appeal of the detenu was heard finally by this Court and this Court extended the parole granted to him till the judgment was delivered in the case.
However, on February 3, 1987 in spite of the orders of parole, the detenu was kept in custody and was released only on the next day i.e. February 4, 1987.
This Court by its judgment dated February 9, 1987 quashed the detention order and directed the respondents to set the detenu at liberty forthwith.
The detenu in terms of his earlier bail orders was required to be present before Kalupur P.S. every morning at 11 a.m. and he continued to do so from February 9 to Febru ary 14, 1987.
On February 14, 1987 when the detenu reported at Kalupur P.S. along with his Advocate to record his presence, he was asked to wait there.
At about 12.30 p.m., he was informed that he was taken into custody for breach of orders of externment dated January 18, 1986.
The FIR against this case was registered and the detenu was produced before the Metropolitan Magistrate at about 1.30 p.m.
The Metropol itan Magistrate 897 granted bail to the detenu.
At that time the detenu received the news that disturbances had broken out in the city of Ahmedabad and, therefore, he declined to avail of the bail order and requested the Magistrate to take him into custody.
On February 15, 1987, the order of detention under Section 8(a) of the National Security Act was passed against the detenu by the Commissioner of Police, Ahmedabad City.
The detenu was served with the order which was confirmed by the State Government on February 18, 1987.
This order of deten tion was challenged by the detenu by a writ petition under Section 32 of the Constitution of India before this Court being Writ Petition (Crl.) No. 246 of 1987.
This Court issued rule returnable on April 4, 1987.
Pending disposal of the writ petition, the detenu was released on April 3, 1987 by the AdviSory Board constituted under the National Securi ty Act.
Furthermore, to harass the detenu two FIRs being C.R. Nos. 34 and 40 of 1987 were lodged against the detenu in Kalupur P.S.
On June 22, 1987 the detenu on receiving notices of two meetings, one of the General Body and the other of Suez Refugee Committee of the Ahmedabad Municipal Corporation to be held on June 26 and June 23, 1987 respec tively, made an application to the Home Secretary, Govern ment of Gujarat seeking permission to visit Ahmedabad for one month.
As no reply was received by the detenu, the detenu moved Crl.
Petition No. 1345 of 1987 before the High Court for permission to visit Ahmedabad.
the aforesaid Miscellaneous applications were rejected by the High Court.
Thereafter, the detenu filed Special Leave Petition (Crl.) No. 1952 of 1987 before this Court against the impugned order of externment of the detenu for a period of two years with effect from January 18, 1986.
Notice was issued on the said petition but as the period of externment expired, the said petition was finally disposed of by this Court.
On October 16, 1987, the detenu was arrested by the police for an alleged offence committed by the detenu in respect of the incident of February 14, 1987 i.e. breach of externment order dated January 18, 1986.
The detenu applied for bail to the Designated Court, Ahmedabad but the bail application was rejected vide order dated November 24, 1987.
The detenu filed an appeal before this Court under Section 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1985.
This appeal being Criminal Appeal No. 316 of 1988 was dis posed of by this Court on April 27, 1988 setting aside the impugned order of the Designated Court rejecting application for bail and remitting the case to the Designated Court for a decision afresh.
The Designated Court was also directed to enlarge the applicant on bail on such terms as it deems fit pending disposal of the application 898 for bail on merits.
The respondents being afraid that this Court may allow the said Criminal Appeal No. 3 16 of 1987 made another order of detention on January 25, 1988 and served the order on the detenu on the same day.
This deten tion order was made under Section 3 of the Gujarat Preven tion of Anti Social Activities Act, 1985.
This order of detention was challenged by Criminal Writ Petition No. 114 of 1988 before this Court.
Rule was issued and the petition was heard on merits.
The detention order was withdrawn as the Advisory Board refused to confirm the order of deten tion.
The detenu was released on March 14, 1988.
The detenu accordingly went home.
However, when Criminal Appeal No. 316 of 1988 came up for hearing before this Court on April 7, 1988 an allegation was made that detenu had absconded.
This Court however, ordered on April 7, 1988 that the detenu should surrender within a week.
In compliance of the said order the detenu surrendered on April 13, 1988 and on May 23, 1988 the order of detention was made as stated hereinbe fore.
It has been stated in the writ petition that in the grounds of detention in support of the present order of detention dated May 23, 1988, no act on the part of the detenu is alleged between March 14, 1988 and April 13, 1988.
It has also been stated that it was the only period of less than a month during which the detenu was a free man.
After April 13, 1988 the detenu has been continuously in custody and prior to March 14, 1988 also the detenu was continuously in custody for nearly three years save for short periods during which he was released on parole by this Court.
No prejudicial act has been alleged against the detenu during the days when the detenu was out on parole.
It has been further stated that no prejudicial activity of any kind is alleged against the detenu after March 14, 1988 being the date on which the earlier order of detention stood revoked by virtue of the Advisory Board 's decision.
The action of respondents is plainly vindictive in total defiance of law and disgraceful blot on any civilised admin istration of justice.
It has also been stated that there has been no application of mind at all to the most glaring fact that the Designated Court in defiance of this Court 's order did not grant interim bail to the detenu by its order dated May 13, 1988.
There was no possibility therefore, of the detenu being released on bail.
It is impossible to justify the statement made in the grounds of detention that there are full possibilities that the detenu may be released on bail in this case.
This statement, it has been stated is recklessly false.
It has also been stated that the entire material which forms the basis of the present order of detention and the grounds of detention was available at the 889 time of the detention order of January 25, 1988.
The detaining authority, the respondent No. 1 has filed an affidavit in reply.
In para 16 of the said affidavit it has been stated that it is true that the detenu was released by the Advisory Board on April 3, 1987; but it is not true to say that two FIRs were lodged against the detenu with a view to harass him.
These two FIRs i.e.
C.R. Nos. 34 and 40 of 1987 were registered against the detenu on February 14, 1987 at P.S. Kalupur i.e. prior to the order dated April 3, 1987 passed by the State Government.
C.R. No. 34/87 was registered at P.S. Kalupur against the detenu for breach of externment order while C.R. No. 40/87 was registered against the detenu at P.S. Kalupur for an offence of provocative speech made by the detenu.
" In para 32, the respondent No. 1 merely denied the aver ments made in para 3(III) of the petition wherein it was specifically averred that there was no specific material for passing the detention order against the detenu.
In para 34, the respondent No. 1 has denied the statement that there is no application of mind to the facts of the case stated in the petition.
It has also been stated that the statement that there is no material to justify the action taken by the competent authority is not true.
It appears from the grounds of detention which was served under section 9 of the said Act that three criminal cases have been mentioned.
These are: 1.
P.S. Kalupur U/s 25(a)(c) of Arms pending in Court Case No. 372/85 Act, Sections 4, 5 of Explosive Act.
P.S. Kalupur U/s 120(b) of I.P.C. Pending for Case No. 456/87 U/s 25(1)(e)(c) of examination Arms Act and U/s (1) of the Terrorists Act, 1985 3.
P.S. Kalupur U/s 307, 120(b) of IPC Pending for Case No. 2/88 U/s 3(1) of Terrorists examination.
Act, U/s 4, 5 of Explo sives Act, U/s 25(1)(c) (1) of Arms Act and U/s 135(1) of Bombay Police Act.
900 It has also been stated therein that after careful consideration of the facts of the complaint of the aforesaid offences it is apprehended that detenu 's criminal activities will adversely affect the public order because the activi ties, the weapons kept by the detenu and his associates cannot except create terror in the State of Gujarat.
It has been further stated that: "You are arrested for committing the said offences, even though you are released on bail from the Court.
At present you are in jail in the case registered in Kalupur Police Station offence register No. 40/87 and there are full possibilities that you may be released on bail in this offence also.
" Out of these cases in respect of Case No. 2/88 which was registered on January 2, 1988 the name of the detenu is not mentioned in the F.I.R. In Case No. 372/85 also which was registered on June 26, 1985, the name of the detenu is not in the FIR.
The detenu, however, was arrested on October 17, 1987 i.e. after a lapse of more than two years and three months.
In Case No. 456/87 which was registered on October 16, 1987, the detenu was arrested on October 16, 1987.
This case related to the seizure of a revolver from the person of the detenu who kept the same without any licence in viola tion of the provisions of Arms Act.
The detaining authority while issuing the order of detention against the detenu, the brother of the petitioner who is already in custody, did not at all consider the fact that the Designated Court declined to grant bail to the detenu by its order dated May 13, 1988 in Crl.
No. 511 of 1988.
The detaining authority also was not aware that no application for bail on behalf of the detenu was filed between May 13 to May 23, 1988 i.e. the date when the detention order was made.
Had this fact been known to the detaining authority, the detaining authority could have considered whether in such circumstances he would have been subjectively satisfied on the basis of cogent materials, fresh facts and evidences that it was necessary to detain him in order to prevent him from acting in a manner prejudicial to the maintenance of public order.
In Rameshwar Shaw vs District Magistrate, Burdwan & Anr., ; the petitioner_was detained by the order of the District Magistrate under the provisions of .
The order recited that the District Magistrate was satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order.
This 901 order was served on the petitioner while he was in jail custody as.
an under trial prisoner in connection with a criminal case pending against him.
It was urged on behalf of the petitioner that the detention was not justified under the provisions of Section 3(1)(a) of the Act and as such it was invalid.
It was held that the satisfaction of the de taining authority under section 3(1)(a) is his subjective satisfaction and as such it is not justiciable.
It is not open to the detenu to ask the Court to consider the question as to whether the said satisfaction of the detaining author ity can be justified by the application of objective tests.
The reasonableness of the satisfaction of the detaining authority cannot be questioned in a court of law; the ade quacy of the material on which the said satisfaction pur ports to rest also cannot be examined by a court of law.
It has also been observed that if any of the grounds furnished to the detenu is found to be irrelevant while considering the application of clauses (i) to (iii) of Section 3(1)(a) and in that sense of the Act, the satisfaction of the de taining authority on which the order of detention is based is open to challenge and the detention order is liable to be quashed.
Similarly, if some of the grounds supplied to the detenu are so vague that they would virtually deprive the detenu of his right of making an effective representation that again may introduce a serious infirmity in the order of his detention.
It has been further observed that an an abstract proposition of law, there may not be any doubt that Section 3(1)(a) of the Act does not preclude the authority from passing an order of detention against a person whilst he is in detention in jail but in deciding the question as to whether it is necessary to detain a person, the detaining authority has to be satisfied that if the said person is not detained he may act in a prejudicial manner and this conclu sion can be reasonably reached by the authority generally in the light of the evidence about the past prejudicial activi ties of the said person.
The past conduct or antecedent history of a person can be taken into account in making a detention order, but the past conduct or antecedent history of the person, on which the authority purports to act, should ordinarily 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.
The detention of a person without a trial is a very serious encroachment on his personal freedom and so at every stage, all questions in relation to the said detention must be carefully and solemnly considered.
The detaining authority considered the antecedent history and past conduct which was not proximate in point of time to the order of detention and as such the detention order was held to be not justified and so the same was set aside.
902 In Alijan Mian vs District Magistrate, Dhanbad and Ors. etc.
, [1983] 4 SCC 301 detention orders were served on the petitioners in jail.
The detaining authority was alive to the fact that the petitioners were in jail custody on the date of the passing of the detention orders as evident from the grounds of detention.
It was stated therein that the position would have been entirely different if the petition ers were in jail and had to remain in jail for a pretty long time.
In such a situation there could be no apprehension of breach of public order from the petitioners.
But the detain ing authority was satisfied that if the petitioners were enlarged on bail, of which there was every likelihood, it was necessary to prevent them from acting in a manner preju dicial to public order.
It was held that the pendency of a criminal prosecution is no bar to an order of preventive detention, nor is an order of preventive detention a bar to prosecution.
it is for the detaining authority to have the subjective satisfac tion whether in such a case there is sufficient material to place a person under preventive detention in order to pre vent him from acting in a manner prejudicial to public order or the like in future.
In Ramesh Yadav vs District Magistrate, Etah and Ors., the order of detention under section 3(2) of was made at a time when the petitioner had already been in Mainpur jail as an under trial prisoner in connection with certain pending criminal cases.
The grounds of detention were served on the petition er along with the order of detention.
The petitioner asked for certain papers with a view to making an effective repre sentation but when the request was rejected, the petitioner made a representation.
The Board did not accept the peti tioner 's plea.
The petitioner 's detention was confirmed by the State Government.
This was challenged in the writ peti tion.
Apart from specifying five grounds in the grounds of detention, a reference was made to the fact that the detenu creates public terror on account of his criminal activities which are absolutely prejudicial to ' the maintenance of public order.
It was further mentioned in the detention order that though the petitioner was detained in district jail yet he filed an application for bail in the court of law and the same has been fixed for heating on September 17, 1984, and there is a positive apprehension that after having bail he will be out of jail and the detaining authority is convinced that after being released on bail he will indulge in activities prejudicial to the maintenance of public order.
It was observed that: 903 "On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activi ties in the area.
If the apprehension of the detaining authority was true, the bail appli cation had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised.
Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the should not ordinarily be passed.
" In Suraj Pal Sahu vs State of Maharashtra and Ors., ; Sabyasachi Mukharji, J while agreeing with the views expressed in Ramesh Yadav vs District Magistrate, Etah & Ors., (supra) observed that the principle enunciated in the said case would have to be judged and applied in the facts and circumstances of each case.
Where a person accused of certain offences whereunder he is undergoing trial or has been acquitted, the appeal is pending and in respect of which he may be granted bail may not in all circumstances entitle an authority to direct preventive detention and the principle enunciated by the aforesaid decision must apply but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State, then subject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive detention.
In Vijay Narain Singh vs State of Bihar & Ors., ; at 459 wherein an order of detention under Section 12(2) of Bihar Control of Crimes Act, 198 1 was served on the petitioner while he was in jail as an under trial pris oner in a criminal case under Section 302 I.P.C. and was allowed to be enlarged on bail by the High Court but not yet enlarged, it was held that: "It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed . the law of preventive detention should not be used merely to clip the wings of an accused who is in volved in a criminal prosecution.
" 904 In the case of Raj Kumar Singh vs State or Bihar and Ors., ; Mukharji, J. observed that while adequacy or sufficiency is no ground for a challenge, rele vancy or proximity is relevant in order to determine whether an order of detention was arrived at irrationally or unrea sonably.
It has been further observed that: "Preventive detention as reiterated is hard law and must be applied with circumspection rationally, reasonably and on relevant materi als.
Hard and ugly facts make application of harsh laws imperative.
The detenu 's rights and privileges as a free man should not be unnec essarily curbed.
" In Binod Singh vs District Magistrate, Dhanbad, Bihar and Ors., ; at 420 21 the petitioner was arrested in connection with the criminal case and he was already in custody.
The order of detention dated January 2, 1986 under Section 3(2) of was served on the petitioner in jail.
It was observed by the Court that; " . .
There must be awareness of the facts necessitating preventive custody of a person for social defence.
If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised.
A bald statement is merely an ipse dixit of the officer.
If there were cogent materials for thinking that the detenu might be released then these should have been made apparent.
Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens." In Poonam Lata vs
M.L. Wadhawan & Anr., ; the court observed that: "The fact that the detenu is already in deten tion does not take away the jurisdiction of the detaining authority in making an order of preventive detention.
What is necessary in such a case is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and 905 yet he was subjectively satisfied that his order of detention became necessary.
" In Smt.
Shashi Aggarwal vs State of U.P. and Ors.
, ; at 440 the detenu was detained by the District Judge, Meerut by an order dated August 3, 1987 made under Section 3(2) of .
The detention order was approved by the State Government on receipt of the opinion of the Advisory Board.
It was chal lenged by a writ petition before this Court.
The Court observed that: "In the instant case, there was no material made apparent on record that the detenu, if released on bail, is likely to commit activi ties prejudicial to the maintenance of public order.
The detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out.
We do not think that the order of detention could be justified on that basis.
" On a consideration of the aforesaid decisions the prin ciple that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custo dy at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessitate the making of an order of deten tion.
In this case, the detenu was in jail custody in con nection with a criminal case and the order of detention was served on him in jail.
It is also evident that the applica tion for bail filed by the detenu was rejected by the Desig nated Court on 13th May, 1988.
It is also not disputed that thereafter no application for bail was made for release of the detenu before the order of detention was served on him on 23rd May, 1988.
It appears that in the grounds of deten tion there is a statement that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also.
" This statement clearly shows that the detaining authority was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Designated Court and as such the possibility of his coming out on bail is non exist ent.
This fact of non awareness of the detaining authority, in our opinion, clearly establishes that the subjective satisfaction was not arrive&at by the detaining authority on consideration of relevant materials.
There is also nothing to show from the grounds of detention nor any fresh facts have been disclosed after the detention order dated January 25, 1988 was set aside by the Advis 906 ory Board on March 13, 1988, on the basis of which the detaining authority could come to his subjective satisfac tion that the detenu, if released on bail will indulge in acts prejudicial to the maintenance of public order and as such an order of detention is imperative.
In the grounds of detention three criminal cases have been mentioned.
Out of those three criminal cases, criminal case No. 372/85 was lodged on June 26, 1985 i.e. much before the present deten tion order and several orders of detention were made in the meantime.
This criminal case is, therefore, not proximate in time to the making of the order of detention.
So it is a stale ground.
Another criminal case No. 456/87 is dated October 16, 1987 on the basis of which the previous order of detention was made.
This case has nothing to do with the maintenance of public order as it pertains to the recovery of a revolver from the detenu on a search of the person of the detenu, without any valid licence under the Arms Act.
The third case No. 2/88 is dated January 2, 1988.
This case was in existence at the time of making of the detention order dated January 25, 1988.
Moreover, the name of the detenu is not in the F.I.R. The statements of some of the associates of the detenu have been annexed to the grounds of detention.
These statements do not disclose any activity after 14th March, 1988 or any activity of the time when the detenu was a free person.
Considering all these facts and circumstances we are constrained to hold that there has been no subjective satisfaction by the detaining authority on a consideration of the relevant materials on the basis of which the impugned order of detention has been clamped on the detenu.
It also appears that the detenu was in detention as well as in jail custody for about three years except released on parole for short; periods.
The only period during which he was a free person was from 14th March, 1988 to 13th April, 1988.
During this period no act prejudicial to the maintenance of public order has been alleged to have been committed by the detenu.
It is convenient to mention here that Section 15(2) of PASA Act says that a detention order may be revoked by State Government; but such revoca tion on expiry of detention order will not bar making of a fresh detention order provided where no fresh facts have arisen after expiry or revocation of the earlier detention order made against such person.
The maximum period of deten tion in pursuance of subsequent detention order cannot extend beyond twelve months from the date of detention of earlier order.
This Court in considering similar provision in Section 13(2) of in Kshetra Gogoi vs The State of Assam, ; at 43 held the order of detention as illegal stating that: " . .
Under Section 13(2) what is required is that fresh 907 facts should have arisen after the expiry of the previous detention.
Facts arising during the period of detention are, therefore, not relevant when applying the provisions of Section 13(2).
" It is highlighted in this connection that in the affida vit in reply filed by the respondent No. 1, the detaining authority, he merely denied the specific averments made in para 3(III) that no act prejudicial to the maintenance of law and order on the part of the detenu is alleged to have been committed by the detenu between 14th March to 13th April, 1988 etc.
without specifically denying those state ments.
In this background, a mere bald statement that the detenu who is in jail custody is likely to be released on bail and there are full possibilities that he may continue the above offensive activities without reference to any particular case or acts does not show on the face of the order of detention that there has been subjective satisfac tion by the detaining authority in making the order of detention in question.
We, therefore, quash the order of detention and direct the respondents to set the detenu at liberty forthwith.
Y.L. Petition allowed.
| IN-Abs | The Commissioner of Police, Ahmedabad, Respondent No. 1 therein passed an order of detention dated 23.5.1988 against Abdul Latif Abdul Wahab, petitioner 's brother under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 and served the same on the detenu, while he was in jail, in pursuance of an order of remand made by the Desig nated Court, Ahmedabad in CR No. 40 of 1987.
The petitioner, detenu 's brother challenged the validity of this order on the ground, amongst others, that there has been absolute non application of mind on the part of the detaining author ity in making the order of detention.
The grounds of detention furnished to the detenu, makes mention of three criminal cases viz. Case No. 372/85, Case No. 456/87 and Case No. 2/88 pending against the detenu at P.S. Kalupur, out of which case No. 372/85 is stated to be pending in Court and the other two pending for examination.
The detaining authority acting on the basis of the said complaints apprehended that detenu 's criminal activities will adversely affect the public order because the activi ties, the weapons kept by the detenu and his associates cannot except create terror in the State of Gujarat.
The detaining authority further felt that the detenu though in jail, there are full possibilities that he may be released on bail in that offence.
It may be pointed out that in case No. 2/88, the name of the detenu does not find place in the FIR.
Likewise in case No. 372/85 aforesaid, detenu 's name is not there.
891 In case No. 456/87, registered on 16.10.87 the detenu was arrested the same day.
The case related to the seizure of a revolver from the person of detenu.
The detaining authority while issuing the order of detention against the detenu, did not at all consider the fact that the Designated Court declined to grant bail to the detenu by its order dt.
May 13, 1988.
The detaining authority also was not aware that no application for bail by detenu was filed between May 13 to May 23, 1988 i.e. when the detention order was made.
The Court in order to decide the various contentions advanced by the parties felt it necessary to consider the background as well as the various detention orders passed against the detenu.
The first in the series is an order dt.
11th September, 1984 when the Respondent No. 1 issued to the detenu a notice to show cause why he should not be externed from the boundaries of Ahmedabad and the surroundings rural areas.
In 1985 the detenu was arrested u/s 307, 143, 147, 148 & 324, I.P.C. CR case No. 37/85 wherein he was granted bail by the Sessions Judge on February 14, 1985.
On 24th March 1985, Commr. of Police passed an order of detenu 's detention.
On 6th July 1985 charge sheet in CR Case No. 37 of 1985 was submitted.
On 27th September, 1985 inquiry into the externment proceedings was completed.
On Dec. 12, 1985 the detenu surrendered and was taken into custody.
On May 26, 1986, the detenu was acquitted in that case.
The detenu was released from the jail on June 23, 1986 and as soon as he came out of the jail, an order of detention under Preven tion of Anti Social Activities Act was served on the detenu there and then and he was once again taken into custody.
It may be mentioned in this connection that on Jan. 18, 1986, the order of externment of the detenu from Ahmedabad city and rural areas of Gandhi Nagar etc. was made when the detenu was in jail.
The State Govt.
on appeal by the detenu confirmed the order of externment.
However on August 7, 1986, the Govt.
revoked the order of detention, as Advisory Board could not be constituted.
On the same day the State Govt.
passed the second order of detention under PASA and the same was served on the detenu the same day.
The detenu challenged the validity of both the externment order as also the detention order in the High Court.
The High Court re jected the petition challenging the order of detention and he filed petition for special leave in this Court.
This Court released the detenu on parole on 23.1.87 as he was to participate in municipal elections which were to take place on 25th Jan. 1987.
The detenu was released on parole on 24th Jan. 1987.
He won the election from all the wards wherefrom he had contested.
This Court on February 9, 1987 quashed the detention order and 892 directed the respondents to set the detenu at liberty.
On February 14, 1987 when the detenu went to the police station with his advocate to mark his presence as required by the earlier bail order, he was again taken into custody for breach of order of externment of 18.1.1986.
He was granted bail.
On February 15, 1987 an order of detention under section 8(a) of the National Security Act was passed against the detenu.
The detenu challenged the same but in the meantime Advisory Board released him.
On October 16, 1987, the detenu was again arrested for an incident of Feb. 14, 1986.
He applied for bail before the Designated Court which was refused.
Against that order he preferred an appeal to this Court under section 16 of the Terrorists and Disruptive Activities (Prevention) Act 1985.
This Court set aside the order of the Designated Court and remitted the matter back to the said Court with a direction to decide the matter afresh and enlarge the detenu on bail pending the disposal of the application for bail.
Another order of detention was passed against the detenu on Jan. 25, 1988 which was later withdrawn as the Advisory Board declined to confirm the same.
The detenu was released on March 14, 1988.
At the hearing of the appeal by this Court on 7.4.88 an application was made that the detenu has absconded whereupon this Court ordered that the detenu should surrender within a week 's time.
He accordingly surrendered on April 13, 1988.
On May 23, 1988 the order of detention in question was made which is hereby challenged.
The contention raised on behalf of the petitioner is that in the grounds of detention furnished in support of the order of detention, no prejudicial act on the part of the detenu is alleged between March 14, 1988 and April 13, 1988 during which small period he was a free man; as he was in jail for nearly three years prior to March 14, 1988 except for short periods when he was on parole, and after April 13, 1988 again he was under custody.
It is urged that no preju dicial activity has been shown, when the detenu was on parole.
As such the action of the respondent is wholly vindictive and in total defiance of law.
According to him there has been no application of mind at all to the most glaring fact that the Designated Court in defiance of this Court 's order did not grant interim bail to the detenu by its order dt.
13.5.88.
There was no possibility therefore of the detenu being released on bail.
It was thus impossi 893 ble to prove the statement made in the grounds of detention that there were full possibilities that the detenu may be released on bail in this case.
Allowing the petition, this Court, HELD: The detention of a person without a trial is a very serious encroachment on his personal freedom and so at every stage, all questions in relation to the detention must be carefully and solemnly considered.
[901G] The past conduct or antecedent history of a person can be taken into account in making a detention order but the past conduct or antecedent history of the person, on which the authority purports to act, should ordinarily be proxi mate in point of time and would have a rational connection with the conclusion drawn by the authority that the deten tion of the person after his release is necessary.
[901F G] There must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him, and cogent rele vant materials and fresh facts have been disclosed which necessitate the making of an order of detention.
[905D E] In the instant case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail.
It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on May 13, 1988.
The statement in the grounds of detention that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also" clearly shows that the detaining authority was completely unaware of the fact that no appli cation for bail was made on behalf of the detenu for his release before the Designated Court and as such the possi bility of his coming out on bail is non existent.
This fact of non awareness of the detaining authority clearly estab lishes that the subjective satisfaction was not arrived at by the detaining authority on consideration of relevant materials.
The only period during which he was free person was from March 14, 1988 to April 13 1988.
During this period no act prejudicial to the maintenance of public order has been alleged to have been committed by the detenu.
[905E G; 906E F] A mere bald statement that the detenu is in jail custo dy is likely to be released on bail and there are full possibilities that he may continue 894 the offensive activities without reference to any particular case or acts does not show on the face of the order of detention that there has been subjective satisfaction by the detaining authority in making the order of detention in question.
[907C D] The order of detention was accordingly quashed and the detenu directed to be set at liberty forthwith.
[907D] Rameshwar Shaw Burdwan & Anr.
vs Distt.
Magistrate Burdwan & Anr., ; referred to; Alijan Mian vs Distt.
Magistrate Dhanbad & Ors.
, [1983] 4 SCC 301 referred to; Ramesh Yadav vs Distt.
Magistrate, Etah & Ors., referred to; Suraj Pal Sahu vs State of Maharashtra & Ors., ; referred to; Vijay Narain Singh vs State of Bihar & Ors., referred to; Raj Kumar Singh vs State of Bihar & Ors., ; referred to; Binod Singh vs Distt.
Magis trate Dhanbad & Ors., ; at 420 21; Poonam Lata vs
M.L. Wadhawan and Anr., ; referred to and Smt.
Shashi Aggarwal vs State of U.P. & Ors., ; at 440, referred to.
|
ivil Appeal No. 2792 of 1988 Etc.
From the Judgment and Order dated 27.7.1988 of the Bombay High Court in W.P. No. 3264 of 1988.
G. Ramaswamy, Additional Solicitor General, T.R. Andya rujuna, V.V. Vaze, V.M. Tarkude, D.N. Misra, M.D. Siodia, Pinaki Misra, P.H. Parekh, Ms. Sunita Sharma, A.M. Khanwil kar, A.S. Bhasme, Dalveer Bhandari, Vijay Thorat, Raian Karanjawala, Mrs. Manik Karanjawala, Ms. Meenakshi Arora, V.D. Khanna, Rameshwar Nath, B.R. Agarwal, P.K. Pillai, P.N. Gupta, Shri Narain, Madhuri Gokhale, Prangalia and N. Nettar for the appearing parties.
The Judgment of the Court was delivered by DUTT, J.
The principal point involved in these appeals relates to the constitutional validity of rule 4(A) of the Rules flamed by the Bombay Municipal Corporation for admis sion to post graduate degree and diploma courses in its medical colleges framed on June 18, 1988 and rule 5 framed under the Government Resolution dated June 18, 1971 for admission to the Government Medical College, both the rules providing for collegewise institutional preference for admission in the M.D. Course.
By the impugned judgment, the High Court allowed the writ petitions out of which these appeals arise, and struck down the impugned rule 4(A) in whole and rule 5 (wrongly stated as rule 6 in the High Court judgment), in so far as it applies to the Government Medical College in the city of Bombay, as discriminatory and viola tive of Article 14 of the Constitution and, accordingly, invalid.
Rule 4(A) is as follows: "4.
PREFERENCE: (A) While selecting candidates for admission to the postgraduate courses preference will be given in the following order: 922 (a) Candidates applying for admission at the parent institution.
(Note: Parent institution means the medical college at which the candidate has passed his qualifying examination).
(b) Candidates who have graduated from other Municipal Medical Colleges in Brihan Mumbai.
" Relevant portion of rule 5 framed under the Government Resolution dated June 18, 1971 reads as follows: " 5. . . . . . . . . . .
While selecting from amongst eligi ble candidates preference will be given to the students of that college i.e. who passed their final M.B.B.S. Examination from that college in Broad specialities and their ancillary discipline.
" There are four medical colleges in the city of Bombay, and affiliated to the University of Bombay.
Of these four medical colleges, three are run and conducted by the Bombay Municipal Corporation, namely, Lokmanya Tilak Memorial Medical College (LTMMC), Seth G.S. Medical College (GSMC) and Topiwalla National Medical College (TNMC).
The only college that is being run by the Maharashtra Government in the city of Bombay is Grant Medical College (GMC).
It is not necessary to state in details the facts leading to the filing of the writ petitions before the High Court out of which these appeals arise.
Suffice it to say that some candidates who were not admitted in the M.D. Course in the respective colleges from which they had passed their MBBS Examination, were not also admitted in the other medical colleges in the city of Bombay, in view of collegewise institutional preference as provided by rule 4(A) in respect of three Municipal Colleges and by rule 5 relating to GMC, the Maharashtra Government College.
The High Court, as stated already, struck down rule 4(A) and rule 5 in part and allowed the writ petitions.
Hence these appeals by special leave.
It is Urged by Mr. G. Ramaswamy, the learned Additional Solicitor General, that this Court in Dr. Pradeep Jain vs Union of India & Ors., ; has given sufficient indication of its approval 923 of collegewise institutional preference.
While the learned Additional Solicitor General frankly concedes that he is not in a position to support cent percent institutional prefer ence or reservation of seats for admission in the M.D. Course in the Municipal Colleges and the Government College in the city of Bombay, such preference or reservation in respect of certain percentage of seats is quite permissible and will not be hit by the provision of Article 14 of the Constitution.
In Pradeep Jain 's case, the question that has been considered by this Court as noted by Bhagwati, J. (as he then was) is whether, consistently with the constitutional values, admissions to a medical college or any other insti tution of higher learning situate in a State can be confined to those who have their domicile within the State or who are resident within the State for a specified number of years or can any reservation in admissions be made for them so as to give them precedence over those who do not possess domicile or residential qualification within the State, irrespective of merit.
The question that has been formulated and consid ered does not show, on the face of it, that collegewise institutional preference was also involved as a part of the question.
It has been ruled in Pradeep Jain 's case that effort must always be to select the best and most meritori ous students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country, and that it would be against na tional interest to admit in medical colleges or other insti tutions giving instruction in specialities, less meritorious students when more meritorious students are available.
So, wholesale reservation on the basis of domicile or residen tial requirement within the State or on the basis of insti tutional preference for students who have passed the quali fying examination held by the University or the State ex cluding all students not satisfying this requirement, re gardless of merit, has been condemned.
The Court took the view that reservation of seats based on residential require ment within the State or on institutional preference should, in no event, exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservation validly made, the 70 per cent reserva tions needs to be reduced if the Indian Medical Council determines a shorter outer limit.
The institutional preference that has been referred to in the observation of Bhagwati, J. does not at all relate to collegewise institutional preference, with which we are concerned.
The learned Additional Solicitor General has, however, placed strong reliance on the following observation made by Bhagwati, J. in Pradeep Jain 's case which is ex tracted below: 924 "We are therefore of the view that so far as admissions to post graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence re quirement within the State or on institutional preference.
But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed M.B.B .S. course from a medical college or university may be given preference for admission to the post graduate course in the same medical colleges or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post graduate course.
This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the M.B.B.S. course.
But, even in regard to admis sions to the post graduate course, we would direct that so far as super specialities such as neuro surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis.
" It is urged by the learned Additional Solicitor General that in Pradeep Jain 's case collegewise institutional pref erence has been recognised and upheld, as is apparent from ,the above observation, particularly from the observation "a certain percentage of seats may, in the present circum stances, be reserved on the basis of institutional prefer ence in the sense that a student who has passed MBBS Course from a medical college or University may be given preference for admission to the post graduate course in the same medi cal colleges or university, but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats avail able for admission to the post graduate course.
" It is true the expression "institutional preference" has been used in the said observation in respect of a medical college or a university, but we do not think that in making that observa tion Bhagwati, J. had in his mind 925 collegewise institutional preference.
Any observation in a judgment has to be read and understood in the context of facts of that particular case in respect of which such observation has been made.
As has been pointed out, the question that has been considered in Pradeep Jain 's case relates to reservation of seats in medical colleges on the ground of domicile or residential qualification within the State irrespective of merit.
It was not the case of anybody that reservation of seats.
should be made on the ground of collegewise institutional preference.
The institutional preference that was considered in the case was university wise institutional preference and not collegewise institu tional preference.
It is also apparent from the judgment of Amarendra Nath Sen, J., who delivered a separate but concur ring judgment, that the Court had no occasion to consider the question of collegewise institutional preference in matters of admission to M.D. Course.
In the circumstances, we are unable to accept the contention of the learned Addi tional Solicitor General that this Court in Pradeep 's Jain 's case has upheld or recognised collegewise institutional preference of seats in medical colleges for admission in M.D. Course.
The position is clarified in a subsequent decision of this Court in Nidamarti Mahesh Kumar vs State of Maharashtra and others; , which related to the constitu tional validity of regionwise reservation of seats in medi cal colleges.
It has been observed by Bhagwati, C.J. that where the region from which the students of a university are largely drawn is backward either from the point of view of opportunities for medical education or availability of competent and adequate medical services, it will be consti tutionally permissible, without violating the mandate of the equality clause to provide a high percentage of reservation or preference for students coming from that region because without reservation or preference students from such back ward region will hardly be able to compete with those from advanced regions, since they would not have adequate oppor tunity for development so as to be in a position to compete with others.
Further, it has been observed that it would not be unconstitutional for the State to provide for reservation or preference in respect of a certain percentage of seats in the medical college or colleges in each region in favour of those who have studied in schools or colleges within that region and even if the percentage stipulated by the State Government is on the higher side, it would not fall foul of the constitutional mandate of equality.
In respect of such reservation of preference the reasons that have been given are that it would cause considerable hardship and incon 926 venience if students residing in the region of a particular university are compelled to move to the region of another university for medical education which they might have to do if selection for admission to the medical colleges in the entire State were to be based on merit without any reserva tion or preference regionwise.
There may be a large number of students who, if they do not get admission in the medical college near their residence and are assigned admission in a college in another region on the basis of relative merit, may not be able to go to such other medical college on account of lack of resources and facilities and in the result, they would be effectively deprived of real opportu nity for pursuing the medical course even though on paper they would have got admission in the medical college.
Fur ther, it has been pointed out that some difficulty would arise in case of girls because if they are not able to get admission in the medical college near the place where they reside they might find it difficult to pursue medical educa tion in a medical college situated in another region where hostel facilities may not be available and even if hostel facilities are available, the parents may hesitate to send them to the hotels.
Even with regard to regionwise reservation of certain percentage of seats in medical colleges, except for the reasons mentioned above, this Court in Nidamarti 's case has turned down the contention that the provision of the im pugned rule, that is, students from a school or college situate within the jurisdiction of a particular university would not be eligible for admission to medical college or colleges situate in the jurisdiction of another university, but would be confined only to medical college or ,colleges within the jurisdiction of the same university, was intended to give protection to students in certain rural areaS, the population of which is socially, economically and education ally backward, for otherwise they would have not been able to compete with students from advanced regions and, conse quently, the classification made by the provision was con stitutionally permissible.
Thus, except in certain circum stances, even regionwise reservation of seats in medical colleges has not been approved by this Court.
In Pradeep Jain 's case, merely because the expression "institutional preference" has been used with reference to a student pass ing the MBBS Course from a medical college or a university, it does not necessarily follow that the Court had in its contemplation or was laying down collegewise institutional preference.
In support of the contention that collegewise institu tional preference or reservation of seats was in the contem plation of this Court, reliance has been placed on behalf of the appellants on an earlier 927 decision of this court in Jagdish Saran & Ors.
vs Union of India & Ors.
, ; In that case, of the three learned Judges, Krishna Iyer, J. delivered the judgment for himself and for Chinnappa Reddy, J. Pathak, J. (as he then was) agreed with the judgment of Krishna Iyer, J. that the writ petition should be dismissed, but he gave his own reasons.
The reasons of Pathak, J. are, inter alia, con tained in the following observations: "It is not beyond reason that a student who enters a medical college for his graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for his post graduate studies.
There is the strong argument of convenience, of stability and familiarity with an educational environment which in different parts of the country is subject to varying economic and psychological pressures.
But much more than convenience is involved.
There are all the advantages of a continuing frame of educational experience in the same educational institution.
It must be remembered that it is not an entirely differ ent course of studies which is contemplated; it is a specialised and deeper experience in what has gone before.
The student has become familiar with the teaching techniques and standards of scholarship, and has adjusted his responses and reactions accordingly.
The continuity of studies ensures a higher degree of competence in the assimilation of knowledge and experience.
Not infrequently some of the same staff of Professors and Readers may lecture to the post graduate classes also.
Over the under graduate years the teacher has come to understand the particular needs of the student, where he excels and where he needs an especial encouragement in the removal of deficiencies.
In my judgment, there is good reason in an educational institution extending a certain degree of preference to its graduate for admission to its post graduate classes.
The preference is based on a reasonable clas sification and bears a just relationship to the object of the education provided in the post graduate classes.
The concept of equality codified in our constitutional system is not violated.
It has been said sometimes that classification contradicts equality.
To my mind, classification is a feature of the very core of equality.
It is a vital concept in ensuring equality, for those who are similarly situated alone from a class between them selves, and the classification is not 928 vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law.
An institutional preference of the kind considered here does not offend the constitutional guarantee of equality.
" The above observations or reasons should not be read or understood dehors the facts and the questions involved for the determination of this Court.
The facts of that case will be stated presently.
The University of Delhi has many post graduate and diploma courses in the faculty of medicine providing in all 250 seats.
The three medical colleges in Delhi turn out annually 400 medical graduates who get house jobs in the local hospitals and qualify themselves for postgraduate course.
As the graduates from the Delhi Univer sity could not be accommodated fully or even in part for the post graduate course in Medicine and as these graduates were not considered for admission into other universities, Delhi University had earmarked some seats at the post graduate level in Medicine for the medical graduates of Delhi Univer sity.
By the impugened rule, 70 per cent of the seats at the post graduate level was reserved for Delhi graduates and 30 per cent of the seats was kept open to all including gradu ates of Delhi.
It was, therefore, not a case of collegewise reservation, but 70 per cent reservation of seats in the medical colleges under the Delhi University for the medical graduates of that University.
The question of collegewise institutional preference or reservation of seats did not at all arise, nor was it argued or sought to be decided in Jagdish Saran 's case.
It is true that the observation of Pathak, J., without reference to the context of the facts and the question involved in that case, may support to some extent the contention of the appellants, but the contention has to be rejected on a reference to the facts and the question involved in that case.
It is, however, submitted by the learned Additional Solicitor General that there are some special facts and circumstances which justify collegewise reservation as provided by the impugned rules 4(A) and 5.
It is stated by him that while the theoretical examinations in MBBS Course are conducted by the University, the practical examinations involving 50 per cent of the total marks are held by the individual colleges.
Counsel submits that in such circum stances the merits of the candidates passing the MBBS Exami nation from these four colleges are difficult to be compared and evaluated for the purpose of admission in the M.D. Course.
This submission has also been made by Mr. Baze, learned Counsel appearing on behalf of the University of Bombay.
929 We regret, we are unable to accept such a contention.
It is not disputed that in each college the practical examina tions are conducted by a set of four examiners consisting of one internal examiner from the same college, one external examiner from one of the other three colleges and two exter nal examiners from outside Bombay.
Thus, excepting one internal examiner, three other examiners are external exam iners and all those examiners are presumably appointed by the University.
These examiners are of high academic quali fications and we fail to understand why they would deviate from the standard prescribed by the University for the assessment and evaluation of the merits of the students in the practical examinations.
There is, therefore, no sub stance in the contention that the standard of examination and evaluation of the merits of students in such practical examinations differ from college to college.
Indeed, no material has been placed before us in support of the conten tion that different standards are adopted by the colleges in MBBS practical examinations.
Equally untenable is the con tention that because of institutional preference, the dif ferent marks given by different colleges do not affect the students, as it is the relative merit of the student in the same college which matters in the selection of post graduate students.
We do not find any justification for the apprehen sion that if the institutional preference is removed and all the candidates from the University are pooled together, a process of dilution and undesirable racing are likely to start making a mockery of the examination system and creat ing mad race of overtaking the other colleges.
This appre hension has been expressed by the Dean of Lokmanya Tilak Memorial Medical College in his.
affidavit filed before the High Court.
Another ground in justification of collegewise institu tional preference which has been relied on by the Dean in his affidavit and urged before us on behalf of the appel lants is that the facilities differ from college to college in respect of the pattern of patients coming to the hospital attached to each college.
By way of illustration, it is stated that in the hospital attached to Lokmanya Tilak Memorial Medical College there is maximum load of trauma cases (accidents and injuries), the number of such cases is much higher than that in the hospital attached to the three other colleges.
The under graduate students in Lokmanya Tilak Memorial Medical College will have a wider exposure to these cases and will be far more suitable for seat in the post graduate course in Surgery where he will have to actu ally deal with these cases than a student of any other college.
Even assuming that the facts stated above are correct, we do not think that the same constitute any ground in support of institutional preference.
It is the university which is required to maintain a standard in respect of the 930 subjects in the colleges affiliated to it.
It is not the case of the University that the standard prescribed by it is not maintained in different colleges or that any particular college is higher in standard in a particular subject than that in another college.
It may be that the number of acce dent and injury cases in the hospital attached to Lokmanya Tilak Memorial Medical College is higher than the number of such cases in the hospitals attached to other colleges, but that does not prove or lead to the conclusion that the students of other colleges will be deficient in surgery or less meritorious than the students of Lokmanya Tilak Memori al Medical College.
The contention in this regard is without substance and is rejected.
Let us now examine the question of collegewise institu tional preference from the point of view of Article 14 of the Constitution.
By the impugned rules, a classification has been sought to be made with the students of each partic ular college passing their MBBS Examination from that col lege to the exclusion of all other students obtaining their MBBS Degree from the other colleges.
In order that a classi fication is a permissible one within the meaning of Article 14 of the Constitution, two tests are to be satisfied, namely, (1) that there is an intelligible differentia which distinguishes persons grouped together from those who are left out of the group; and (2) that there is a rational nexus to the object sought to be achieved by the impugned rules.
The object sought to be achieved by the impugned rules is obviously to prefer merit for the post graduate course and to exclude less meritorious candidates.
It will be presently demonstrated that both the tests are not satis fied in the instant case.
In this connection, we give below following tabular statement showing the number of seats available in each of the said four colleges in some of the disciplines.
COLLEGE LTMMC TNMC GSMC GMS Students Intake 100 100 100 DISCIPLINE 1.
M.D. Obs. & Gyn. 2 1 5 3+ I(R) 2.
M.S. Orthopaedics 2 1 2 1 3.
M.S. General Surgery 4 2 3 3+ I(R) 4.
M.D. General Medicine 4 3 3 3+ I(R) 931 In Seth G.S. Medical College (GSMC), there are five seats in Obstetrics and Gynaecology and one seat in Topiwala Nationl Medical College (TNMC).
In view of the impugned rules providing collegewise institutional preference, five seats in Obstetrics and Gynaecology in Seth G.S. Medical College were allotted to five of its students.
Of these five students, Dr. Ganpat Sawant secured 150 marks and the four other candidates secured marks between 118 and 128 in the MBBS Examination.
The respondents Dr. Anjali Deokumar Thuk ral and Dr. Sumeet Godambe, both students of Topiwala Na tional Medical College obtained respectively 140 and 143 marks in the MBBS examination.
They, however, were not admitted in their college, for there was only one seat in Obstetrics and Gynaecology and that seat was alotted to a student of that college who secured 156 marks in the MBBS examination.
Thus, although Dr. Anjali Deokumar Thukral and Dr. Sumeet Godambe secured more marks than the students admitted in the post graduate course in Obstetrics and Gynaecolocy in the said G.S. Medical College, except the said Dr. Ganpat Sawant, they were refused admission in view of collegewise institutional preference.
Similarly, in respect of other disciplines many meritorious students could not get admission even though they secured higher marks than those admitted in the post graduate degree course by virtue of the impugned rules.
Thus, there is a patent discrimina tion inasmuch as students obtaining lesser marks have been preferred to those obtaining higher marks.
There is no intelligible differentia for the classification by way of collegewise institutional preference as provided by the impugned rules distinguishing the preferred candidates in respect of each college from those excluded from such clas sification.
By such classification or collegewise institu tional preference, merit has been sacrificed, far less it has been preferred.
When the university is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post graduate degree course of the same university, except in order of merit, will exclude merit to a great extent affecting the standard of educational insti tutions.
In such circumstances, collegewise institutional preference cannot be supported and, it has already been noticed that this Court has not approved of such preference at all.
State of Rajasthan and another vs Dr. Ashok Kumar Gupta and others; , is a case of college based institutional preference in respect of five medical colleges in Rajasthan under the same University.
The impugned Ordi nance of the University provided for addition of 5 per cent of the aggregate of marks which work out to be 932 to 137.5 marks by way of institutional preference in the sense of preference dependant on the particular medical college at which the concerned candidate has passed his final MBBS Examination.
This collegewise institutional preference has been disapproved by this Court in that case and the impugned Ordinance has been struck down.
The learned Additional Solicitor General sought to distinguish Dr. Ashok Kumar Gupta 's case from the instant case.
We do not think that the said case is distinguishable from the case with which we are concerned, inasmuch as in both the cases the question of collegewise or college based institutional preference is involved.
It is stated that mode or method adopted for giving collegewise institutional preference in Dr. Ashok Kumar Gupta 's case is different from the instant case but, in our opinion, nothing turns out of that.
So far as educational institutions are concerned, unless there are strong reasons for exclusion of meritorious candidates, any preference other than in order of merit, will not stand the test of Article 14 of the Constitution.
So, the impugned rules are discriminatory and do not satisfy the tests of reasonable classification and, as much, cannot be sustained.
It is next contended on behalf of the appellants that as the Bombay Municipal Corporation has to spend a lot of money for the running of the three colleges sponsored by it, seats for the postgraduate course should be reserved in these three colleges for the students passing the MBBS Examination from any of these colleges.
If such reservation is allowed, the students of the Maharashtra Government College, namely, the Grant Medical College, will not get any admission in any of the three Municipal Colleges, even if the students or some of them passing the MBBS Course from the Government College are more meritorious than the students for whom the seats will be kept reserved in the Municipal Colleges.
It is urged that it will not be a case of collegewise institution al preference so far as the Municipal Colleges are concerned and there should be no objection for the Bombay Municipal Corporation to give preference to the students of the Munic ipal Colleges, of course, to the exclusion of the students of the Government College.
This contention, in our opinion, is without any substance.
It may be that the Bombay Munici pal Corporation has to spend a lot of money for the colleges run by it, but that will be no ground for making a discrimi nation between the students of the Municipal Colleges and those of the Government College affiliated to the same university, for the purpose of admission in the post gradu ate degree course.
Such discrimination will not serve any object which can be justified on any rational basis.
Such reservation or preference also cannot be allowed, for if allowed, rule 5 of the Rules framed under the 933 Government Resolution dated June 18, 197 1 will survive inasmuch as the students of the Grant Medical College will only be admitted in the M.D. Course.
But, those students who could not be admitted in that College, will not be eligible for admission in the Municipal Colleges.
We are unable to permit such discrimination in the matter of admission in the M.D. Course.
Another ground on which collegewise institutional preference has been sought to be justified by the learned Additional Solicitor General is on the basis of institutional continui ty.
In support of this ground of institutional continuity, the learned Additional Solicitor General has placed much reliance on the observations of Pathak, J. in Jagdish Sa ran 's case, which has already been extracted above.
It was not a case of collegewise institutional preference or insti tutional continuity, and the said observations should not be understood in that sense, but in the sense of institutional continuity in the same university.
After giving our thoughtful consideration to the question of collegewise institutional preference, we are of the view that such preference or reservation of seats is not permissible and the High Court has rightly struck down both the impugned rule 4(A) flamed by the Bombay Municipal Corpo ration and part of rule 5 flamed under the Government Reso lution, that is to say, only in respect of its application to the Grant Medical College in the city of Bombay relating to admission to post graduate M.D. Course.
We, however, make it clear that the students who have been admitted to post graduate M.D. Course pursuant to the impugned rules, their admission shall not be interfered with or disturbed.
At this state, we may consider the submission of Mr. Lalit, learned Counsel appearing on behalf of the applicants in C.M.P. No. 20748 of 1988 praying for their impleadment as party respondents to Civil Appeal No. 2792 of 1988.
We do not think that any useful purpose will be served by implead ing them as party respondents to the appeal.
The only prayer that has been made by Mr. Lalit is that the applicants who have passed the diploma course from the Municipal Colleges should be held to be eligible for admission in the M.D. Course with credit for the diploma course in any of the Municipal Colleges.
We are told by the learned Counsel appearing for the State Government and the Bombay Municipal Corporation that if the impugned rules are struck down, they will have to frame fresh rules consistent with the judgment of this Court and, as we have directed not 934 to disturb admission of the candidates in the post graduate M.D. Course pursuant to the impugned rules, we consider the prayer made by the applicants as quite reasonable and, accordingly, direct that the applicants who have passed the diploma course in the Municipal Colleges after passing the MBBS Examination, will be eligible for admission in the post graduate M.D. Course in any one of the Municipal Col leges with credit for the diploma course.
Mr. Tarkunde, learned Counsel appearing on behalf of the respondents writ petitioners, submits that the cases of admission of some of the respondents, who have not been admitted to the postgraduate degree course in certain spe cialities of their choice in view of the impugned rules, may be considered by the State of Maharashtra and the Municipal Corporation of Greater Bombay, in case seats are available, either in the Municipal Colleges or in the Grant Medical College, which is a Government College.
In our opinion, the prayer is quite reasonable and the State of Maharashtra and the Bombay Municipal Corporation are directed to consider the question of their admission, provided seats are avail able.
The names of the said respondents and the respective disciplines of their choice are given below: 1.
Dr. Anjali Deokumar Thukral M.D. Gynaecology and Obstetrics 2.
Dr. Atul Jaywant Galtonde M.S. Orthopaedics 3.
Dr. Naresh Kanayalal Navani M.S. General Surgery 4.
Dr. Anna Koshy Joseph M.D. General Medicine 5.
Dr. Vaishali Ramnik Doshi M.D. General Medicine Before we part with these cases, we may dispose of one submission made on behalf of the appellants.
Our attention has been drawn to the fact that while striking down the impugned rule 4(A) and impugned rule 5 in part, the High Court has directed the appellants to frame rules adopting certain alternative methods for dismission in the post graduate M.D. Course for the next year, as stated in the judgment.
The said directions appear to be in the nature of suggestions by the High Court, and the appellants will be free to frame rules for admission in the post graduate M.D. Course in the said four colleges in the city of Bombay in conformity with the provision of Article 14 of the Constitution and in the light of the judgment of this Court and in 935 framing the rules, the appellants may take into considera tion the suggestions of the High Court.
In the result, Subject to the directions given above, the appeals are dismissed.
There will, however, be no order as to costs.
SPECIAL LEAVE PETITION (CML) NO.
8883 OF 1988 WRIT PETITION (CIVIL) NO.
1253 OF 1988 For the reasons aforesaid, Special Leave Petition and Writ Petition fail and are dismissed without any order as to costs.
Y.L. Ap peals dismissed.
| IN-Abs | There are four Medical Colleges in the City of Bombay, all affiliated to the University of Bombay.
Out of four, three colleges are run by the Municipal Corporation and one is run and conducted by the State of Maharashtra.
Rule 4A framed by the Municipal Corporation and Rule 5 framed by the State Govt.
vide Govt.
Resolution dated June 18, 1971 govern the admissions of students to post graduate degree and diploma course in the respective Medical Colleges.
Both the aforesaid Rules provide for collegeate institu tional preference for admission in the M.D. Course.
In other words, in each college, candidates who passed their M.B.B.S. exam from that college were to be preferred for purposes of admission to the Post Graduate M.D. degree, no matter wheth er the candidates had secured less marks than those who secured higher marks, having passed the M.B.B.S. Exam.
from other colleges.
On this basis some candidates who were not able to secure admission to the M.D. Course in the respec tive colleges from which they had passed their M.B.B.S. Examination were not also admitted in the other medical colleges in the City of Bombay, in view of college wise institutional preferences as provided by Rule 4A and Rule 5 referred to above.
Those students/candidates challenged the validity of the afore said Rule 4A and Rule 5 framed by the Municipal Corpn.
and the State Govt.
in the High Court, as being violative of article 14 of the Constitution.
The High Court allowed the Writ Petition and struck 920 down the impugned Rule 4A in whole and Rule 5 in so far as it applies to the Govt.
Medical College, as discriminatory and violative of article 14 of the Constitution and thus in valid.
Hence these appeals by Special Leave.
Dismissing the appeals with some directions, the Court, HELD: When the University is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post graduate degree course of the same University except in order of merit, will exclude merit to a great extent affecting the standard of educational institutions.
In such circumstances, college wise institutional prefer ence cannot be supported and, this Court has not approved of such preference at all.
[931F G] So far as educational institutions are concerned unless there are strong reasons for exclusion of meritorious candi dates, any preference other than in order of merit, will not stand the test of article 14 of the Constitution.
[932C D] The Rules are discriminatory and do not satisfy the test of reasonable classification and as such, cannot be sus tained.
The Court accordingly dismissed the appeals and directed that the students who have been admitted to post graduate M.D. Course pursuant to the impugned Rules, their admission shall not be interfered with or disturbed.
[933E] The High Court has directed to the appellants to frame rules adopting certain alternative methods for admission in the Post graduate M.D. Course for the next year.
The said directions appear to be in the nature of suggestions by the High Court and the appellants will be free to frame the rules for admission in the Post graduate M.D. Course in the said four colleges in the City of Bombay in conformity with the provision of article 14 of the Constitution and in the light of the Judgment of this Court and in framing the Rules, the appellants may take into consideration the sug gestions of the High Court.
[934G H; 935A] Dr Pradeep Jain vs Union of India & Ors., ; , distinguished.
Nidamarti Mahesh Kumar vs State of Maharashtra & Ors.
, ; , not applicable.
921 Jagdish Saran & Ors.
vs Union of India & Ors.
, ; , not applicable.
State of Rajasthan & Anr.
vs Dr. Ashok Kumar Gupta & Ors., ; , not applicable.
|
ivil Appeal No. 3297 of 1981.
From the Judgment and Order dated 17.8.1981 of the Orissa High Court in Misc.
Appeal No. 145 of 1981.
R.K. Mehta for the Appellant.
A.K. Sen, Arun Madan, R.K. Sahoo and J.D.B. Raju for the Respondent.
The Judgment of the Court was delivered by VERMA, J.
This appeal by special leave under Article 136 of the Constitution challenges the judgment dated 17.8.1981 of the High Court of Orissa dismissing Misc.
Appeal No. 145 of 1981 against the judgment dated February 28, 1981 passed by the Subordinate Judge, Baripada, District Mayurbhanj in Title Suit No. 106 of 1980 by which the arbitrator 's award for a sum of Rs.21,11,835.00 in favour of the plaintiff respondent, Niranjan Swain, was made a rule of the court and a decree was passed for that amount together with interest at the rate of six per cent per annum from the date of the decree.
The main ground taken in this appeal was that the arbi trator 's award was per se invalid since it gave no reasons.
Some other points were raised to which we shall advert later.
The question of invalidity of an arbitrator 's award merely on the ground that it gave no reasons was involved for decision in a large number of matters pending in this Court and in view of the importance of this common question the bunch of cases was heard and decided by the Constitution Bench in Raipur Development Authority and others vs M/s Chokhamal Contractors and others, 1.
The Constitution Bench has held that the absence of reasons in the award does not by itself result in its invalidity except where the giving of reasons by the arbitrator for the award is the requirement of the arbitration agreement or the deed of submission or an order made by the Court or statute governing the arbitration.
Accordingly, this contention raised in the present appeal 824 and all other similar matters was rejected by the Constitu tion Bench with a direction that all such cases should go back to the Division Bench for disposal in accordance with law on the remaining points surviving therein for decision.
This is how the present appeal has come before us.
The conclusion reached by the Constitution Bench in the above case and the direction given therein is as under: "Having given our careful and anxious consid eration to the contentions urged by the par ties we feel that law should be allowed to remain as it is until the competent legisla ture amends the law.
In the result we hold that an award passed under the is not liable to be remitted or set aside merely on the ground that no reasons have been given in its support except where the arbitra tion agreement or the deed of submission or an order made by the court such as the one under Section 20 or Section 21 or Section 34 of the Act or the statute governing the arbitration requires that the arbitrator or the umpire should give reasons for the award.
These cases will now go back to the Division Bench for disposal in accordance with law and the view expressed by us in this decision.
" The only points now urged by Shri G.L. Sanghi, learned counsel for the appellant, are two, namely, (1) no interest could be awarded by the arbitrator in the present case upto the date of the award but the same is obviously included in the lumpsum award of Rs.21, 11,835.00; and the invalid part of the award not being severable from the rest, the entire award must be set aside; and (2) the High Court in its cryptic order has wrongly assumed as correct the trial court 's refusal to call the arbitrator for being examined in the court.
The learned counsel contended that any one of these defects was sufficient to set aside the entire award.
In reply Shri Arun Madan, learned counsel for the re spondent, primarily contended that the arbitrator was empow ered to award interest upto the date of award.
In the alter native, learned counsel for the respondent contended that the invalid part of the award relating to grant of interest upto the date of the award was severable and, therefore, only that part should be set aside instead of setting aside the whole award.
He also contended that the High Court did not make any wrong assumption and refusal to call the arbi trator for examination 825 was justified.
It was also urged that in the present case there was nothing to indicate that calling the arbitrator for examination in the court was at all necessary.
Before proceeding to consider the surviving points now urged on behalf of the appellant we may refer briefly to the few facts which alone are relevant at this stage.
The con tract for the work "Construction of Earth Dam (balance work) of Sansiali Nai M.I. Project" in Division Mayurbhanj, Bari pada, was given by the appellant, State of Orissa, to re spondent, Niranjan Swain and the agreement between the parties contained an arbitration clause for adjudication of disputes arising out of the contract.
Consequently, the dispute relating to the remaining claim for payment made by the respondent was referred for adjudication to the arbitra tor in terms of the arbitration clause contained in the agreement.
The respondent 's claim before the arbitrator was for the amount of Rs. 19,04,689.00 as the balance amount due to him and for return of the security deposit of Rs.28,000.00 or in all the total of Rs. 19,32,689.00 as the principal amount.
The respondent also claimed interest on the sum of Rs. 19,04,689.00 at the rate of 18 per cent per annum from 15.4.1977 to 15.5.1978, namely, the date of submission of the statement of claim before the arbitrator amounting to Rs. 3,71,4 14.00 and interest on the security deposit of Rs. 28,000.00 at the same rate from 15.9.1977 to 15.5.1978 amounting to Rs.3,360.00.
The respondent further claimed interest at the rate of 18% per annum from 16.5.
1978 till payment of the amount to the respondent by the appellant.
In the statement of claim the total amount claimed was mentioned at Rs.23,07,463.00 together with interest @ 18% per annum on Rs. 19,32,689.00 from 16.5.1978 to the date of the award.
The appellant denied the respond ent 's claim including the claim for payment of interest.
The arbitrator gave the award dated 2.12.1980 as under: "AWARD After perusal of the claim statements and counter statements, the counter claim of the respondent, the rejoinder of the claimant, the documentary and oral evidence and on a careful consideration of the submissions and arguments of the parties and the IR advocate, I have come to the conclusion that the claimant is entitled to get a sum of Rs.21,11,835.00 (Rupees twenty one lakhs eleven thousand eight hundred thirty five only) in full and final satisfac 826 tion of his claims till the date of the award from the respondent.
The respondent is not entitled to get any amount towards his counter claim from the claimant.
sd/ B.S. Patnaik Arb itrator 2/1 2/1980" (emphasis supplied) It is on the basis of the contents of this award that the above contentions have to be considered and decided.
We may dispose of the second point urged by learned counsel for the appellant straightaway since it does not merit any elaborate consideration.
The argument of the learned counsel for the appellant relating to calling the arbitrator for examination as a witness in the court was based on the decision of the Orissa High Court in State of Orissa vs D.C. Routray, AIR 1983 Orissa 163.
That decision itself says that even though an arbitrator is a competent witness, the court must exercise the power of calling him as a witness cautiously and sparingly and not in a routine manner.
It is obvious that when the court is requested to call the arbitrator for examination as a witness it must be shown that there is some cogent ground for his examination within the permissible limits.
Nothing has been shown in the present case to indicate that it was at all necessary to call the arbitrator as a witness to depose on any matter which could legitimately be examined by the court in the proceedings.
This alone is sufficient to justify the view taken by the High Court.
This contention of learned counsel for the appellant is, therefore, rejected.
The only point surviving for consideration now relates to the grant of interest by the arbitrator and its effect on the validity of the award.
It is obvious from the contents of the award and the details of the respondent 's claim before the arbitrator that a lumpsum amount of Rs.21,11,835.00 awarded in the respondent 's favour by the arbitrator was in full and final satisfaction of all the respondent 's claims before the arbitrator till the date of the award.
As mentioned earlier, the respondent 's claim before the arbitrator mentioned the sum of Rs.19,04,689.00 plus the security deposit of Rs.28,000.00 or in all Rs. 19,32,689.00 only as the total principal amount of the claim and the sum claimed in excess thereof was on account of interest.
The grant of a lumpsum amount of Rs.21,11,835.00 in the award in full and final 827 satisfaction of all the claims till the date of the award must, therefore, obviously include interest also.
It is equally plain that the claim for the entire principal amount was not accepted by the arbitrator.
The effect on the ques tion of validity of the award has to be decided on this basis.
It is settled by the decision of this Court in Executive Engineer (Irrigation), Balimela and others vs Abhaduta Jena and others, 18 that in cases wherein the reference to arbitration was made prior to the commencement of the , on August 19, 1981, the arbitra tor is not empowered to grant interest for the period either before the commencement of the proceedings or during the pendency of the arbitration.
This is clear from the position summarized in Abhaduta Jena 's case (supra), as under: "In the remaining cases which arose before the commencement of the , the respondents are not entitled to claim interest either before the commencement of the proceed ings or during the pendency of the arbitra tion.
They are not entitled to claim interest for the period prior to the commencement of the arbitration proceedings for the reason that the Interest Act, 1939, does not apply to their cases and there is no agreement to pay interest or any usage or trade having the force of law or any other provision of law under which the claimants were entitled to recover interest.
They are not entitled to claim pendente lite interest as the arbitrator is not a court nor were the reference to arbitration made in suits.
" The learned counsel for the respondent placed reliance on the decision of this Court in Gujarat Water Supply and Severage Board vs Unique Erectors (Gujarat) (P) Ltd. and another; , in support of his primary conten tion that the arbitrator was empowered to grant interest upto the date of award.
We are unable to construe this judgment in the manner suggested by learned counsel for the respondent.
The decision clearly refers to Abhaduta Jena 's case (supra) and also follows it.
The primary contention of the learned counsel for the respondent that the award does not suffer from any infirmity by grant of interest therein upto the date of award is, therefore, rejected.
It cannot, therefore, be disputed that in the present case wherein the reference to arbitration was made and even the award was given prior to the commencement of the Inter est Act, 1978, on August 19, 1981, the arbitrator had no jurisdiction to grant any amount as interest 828 for any period either upto the date of submission of the claim before him or pendente lite upto the date of the award.
From the above, it follows that inclusion of the amount of interest in the lumpsum award of Rs.21,11,835.00 by the arbitrator does render that part of the award invalid.
The question now is of the consequence of this invalidi ty on the entire award.
The learned counsel for the appel lant contended that the invalid part of the award not being severable from the rest the entire award must be set aside.
On the other hand, the learned counsel for the respondent urged that there is no difficulty in separating the invalid part from the rest and this could easily be done by deduct ing from the total sum of Rs.21,11,835.00 granted in the award, the maximum interest calculated at the rate of 18% per annum which was claimed by the respondent before the arbitrator upto the date of the award (2.12.1980).
He urged that such a view cannot, in any manner, prejudice the appel lant and if at all it can work only to the detriment of the respondent who make this suggestion.
In our opinion it is possible in the present case to sever the invalid part relating to interest in order to sustain the valid part of award.
Accordingly, we requested both sides to calculate the total amount of interest and give to us the agreed figure.
The agreed figure of Rs. 12,65,87 1.97 has been given by them as the maximum amount of interest which could be included in the award of Rs.21, 11,835.00, in accordance with the respondent 's claim before the arbitrator.
It is common ground that the invalid part of the award on the basis of grant of interest by the arbi trator cannot exceed the amount of Rs. 12,65,87 1.97 out of the total Sum of Rs.21, 11,835.00.
It is also not disputed that the balance amount remaining after deduction of Rs. 12,65,871.97 cannot be tainted with any invalidity.
The learned counsel for the respondent has confined the respond ent 's claim in the alternative to upholding of the award only in respect of this balance amount and no more.
We do not see any reason why the award should not be modified and sustained to this extent only.
We are conscious of the fact that the interest amount of Rs. 12,65,871.97 so calculated for deduction from the total amount of Rs.21, 11,835.00 granted in the award is in excess of the interest calculated on the remaining balance treated as principal amount at this stage on the above suggestion.
However, in the peculiar circumstances of this case and in view of the alternative contention on 829 behalf of the respondent, we see no reason for rejecting, in the present case, this alternative contention also.
Viewed in this manner, the balance amount of the award would not be tainted with any invalidity and, therefore, it would also be just and proper to sustain the award to this extent only.
We, therefore, reject the contention of learned counsel for the appellant that the entire award should be set aside and instead accept the alternative contention of learned counsel for the respondent.
In view of the above, the agreed amount of interest upto the date of the award (2.12.1980), that is, Rs. 12,65,871.97 is deducted from the amount of Rs.21,11,835.00 leaving the balance amount of Rs.8,45,963.03 say Rs.8,45,963.00.
This amount of Rs.8,45,963.00 survives as the valid part of the award and, therefore, the decree of the courts below is modified to this extent so that the decree in favour of the respondent now remains for the sum of Rs.8,45,963.00 only together with interest thereon at the rate of 6% per annum from the date of the decree passed by the trial court until payment.
In view of the partial success of both sides, the parties shall bear their own costs throughout.
The appeal is partly allowed in this manner.
We are informed that the respondent has withdrawn a certain amount against the decree during the pendency of this appeal.
We direct that the amount due to the respondent shall be calculated on the basis of this modified decree.
In case, the amount obtained by the respondent is less than the amount to which the respondent is found entitled as a result of this modified decree, the remaining amount shall be paid to the respondent with interest @ 12% per annum from 8.12.
1981 in terms of the interim order of that date passed in this appeal; and in case, the amount obtained by the re spondent is in excess of that to which he is found entitled, the excess amount shall be refunded by the respondent to the appellant similarly with interest at the same rate of 12% per annum from 8.12.
1981 upto the date of its refund.
T.N.A. Appeal allowed partly.
| IN-Abs | The respondent was awarded a contract for construction of Earth Dam by the appellant State of Orissa.
His dispute relating to the remaining Claim for payment was referred to an arbitrator for adjudication.
Before the arbitrator the respondent claimed (i) the balance amount due to him; (ii) his security deposit with the appellant; and (iii) interest, on the balance amount due and security deposit, upto the date of award.
On 2.12.1980 the arbitrator gave a lump sum award in favour of the respondent inclusive of interest upto the date of award.
The Trial Court made the award a rule of the Court and accordingly passed a decree in favour of the respondent for the amount awarded together with interest at the rate of six per cent from the date of decree.
The appeal filed by the State was dismissed by the High Court.
In this appeal it was contended on behalf of the State that the award was invalid because; (i) the arbitrator gave no reasons; (ii) no interest could be awarded by the arbi trator upto the date of award, and the award being inclusive of interest was not severable.
it was also contended that the High Court was wrong in assuming that the Trial Court was correct in refusing to call the arbitrator for being examined.
Allowing the appeal partly, HELD: 1.
The absence of reasons in the award does not by itself result in its invalidity except where the giving of reasons by the 822 arbitrator for the award is the requirement of the arbitra tion agreement or the deed of submission or an order made by the Court or statute governing the arbitration.
[823G H] Raipur Development Authority & Ors.
vs M/s Chokhamal Contractors and Ors., [1989] 2 S.C.C. 721, applied.
Even though an arbitrator is a competent witness, the Court must exercise the power of calling him as a witness cautiously and sparingly and not in a routine manner.
When the Court is requested to call the arbitrator for examina tion as a witness it must be shown that there is some cogent ground for his examination within the permissible limits.
[826D] In the instant case, nothing has been shown to indicate that it was at all necessary to call the arbitrator as a witness to depose on any matter which could legitimately be examined by the Court in the proceedings.
The High Court was, therefore, justified in refusing to call the arbitrator for examination.
[826E] State of Orissa vs D.C. Routray, A.I.R. 1983 Orissa 163, approved.
In cases wherein the reference to arbitrator was made prior to the commencement of the , on August 19, 1981 the arbitrator is not empowered to grant interest for the period either before the commencement of the proceedings or during the pendency of the arbitration.
In the instant case, the reference to arbitrator was made and even the award was given prior to the commencement of the .
Therefore, the arbitrator had no jurisdiction to grant any amount as interest for any period either upto the date of submission of the claim before him or pendente lite upto the date of the award.
[827F G] Executive Engineer (Irrigation), Balimela & Ors.
vs Abhaduta Jena & Ors., [1988] 1 SCC 418, applied.
Gujarat Water Supply and Sewerage Board vs Unique Erec tors (Gujarat) (P) Ltd. & Anr.
, ; , held inapplicable.
In the instant case, the inclusion of the amount of interest in the lumpsam award by the arbitrator does not render the whole award 823 invalid since it is possible to sever the invalid part relating to interest.
The balance amount of award remaining after deduction of interest would not be tainted with any invalidity, and it would be just and proper to sustain the award to this extent only.
The decree is, therefore, modi fied to this extent.
[828E F; 829C]
|
iminal Appeal No. 82 of 1953.
Appeal under article 134(1)(c) of the Constitution of India from the Judgment and Order dated the 16th August, 1953, of the High Court of Judicature at Hyderabad in Criminal Appeal No. 1557/6 of 1950, arising out of the Judgment and Order dated the 16th October, 1950, of the Court of Special Judge, Warangal, in Case No. 28/2 of 1950.
A. A. Peerbhoy, J. B. Dadachanji and Rajinder Narain for the appellant.
Porus A. Mehta and P. G. Gokhale for the respondent.
590 1954.
May 6.
The Judgment of the Court was delivered by GHULAM HASAN J.
The appellant was tried and convicted by the Special Judge, Warangal, for various offences under the Hyderabad Penal Code.
These correspond to sections 302, 307, 347 and 384 of the Indian Penal Code, the sentences awarded under the first two sections respectively being death and life imprisonment, and separate sentences 'of two years ' rigorous imprisonment under the latter two.
two learned Judges of the High Court, who heard the appeal, differed, Manohar Pershad J. upholding the convictions, and the sentences and M. section Ali Khan J. acquitting the appellant.
The third learned Judge, A. Srinivasachari J., on reference which was Occasioned by the difference of opinion agreed with Manohar Pershad J. Leave to appeal to this Court was granted by the two agreeing Judges.
The occurrence which led to the prosecution of the appellant took place on September 13,1948, which was the beginning of the first day of Police action in Hyderabad.
The appellant, who was Reserve Inspector of Police stationed at Mahbubabad at the material time, according to the prosecution story, visited two villages Rajole and Korivi accompanied by a number of Razakars and the Police.
He arrested Janaki Ramiah (P.W. 5) and Nerella Ramulu (P.W. 9) at Rajole and took them to Korivi.
Outside this village in the waste land he spotted four men going to their fields and shot at them with his gun.
The deceased Mura Muthiah and Somanaboyanna Muthandu (P.W. 2) were injured in the knee, while the other two Kotta Ramiah (P.W. 3) and Kancham Latchiah (P.W. 4) were uninjured.
The latter two hid themselves behind the babul trees.
P.W. 2 also ran away and hid himself in the bajra fields a few yards away but the deceased remained where he fell.
The appellant searched for the three persons who had run away.
He caught P.W. 3 and P.W. 4 and brought them to the spot where the deceased was lying but he could not trace P.W. 2.
The appellant seeing that Mora Muthiah was not dead, shot him in the chest and killed him.
The whole party 591 consisting of P.W. 3, P.W. 4, P.W. 5 and P.W. 9 then went to Korivi village.
The appellant stayed at the house of one Maikaldari in the village and spent the night there.
Maikaldari and one Berda Agiah (P.W. 8) both asked the appellant why he had arrested P.W. 3 and P.W. 4, for they were not Congress men.
Upon this the appellant released them.
The prosecution story proceeds that the father (P.W. 1) of the deceased saw the appellant in the night of the 13th September and asked him why he had killed his son.
The appellant without saying more advised him to cremate the dead body.
P.W. I borrowed wood from the people and cremated the body.
Four months later the appellant went and ,stayed at the Government bungalow Korivi, sent for P.W. I and offered him Rs. 200/ as hush money for not disclosing the offence.
The offer was refused.
P.W. 3 and P.W. 4 who had been released told the father of P.W. 2 next morning that his son was lying injured in the bajra field.
He went and had P.W. 2 removed to the hospital where his injuries were attended to.
On the same morning the appellant, who had detained P.W. 5 and P.W. 9 in custody, asked them to pay Rs. 200/ when they would be released.
P.W. 5 went with a constable to the house of P.W. 6 and P.W. 7 and borrowed Rs. 100/ from each of them.
On this being paid he was released.
P.W. 9 was unable to pay any money and he was let off.
The defence was a denial of the offence.
The appellant denied having zone to the village in question or having committed any of the offences attributed to him.
He stated that he was posted at Mahbubabad in order to stop the subversive activities of the communists and that the witnesses being communists had falsely implicated him.
He produced witnesses in defence.
The First Information Report was lodged on April 14,1949.
This delay was due to the disturbed conditions prevailing at the time and does not affect the truth of the story.
The appellant was prosecuted and the charge sheet submitted against him on October 30, 1949.
The charge was framed by a Munsiff Magistrate who committed the appellant to the Sessions.
As already ,stated, the learned Special Judge convicted and 592 sentenced the appellant and his convictions and sentences were upheld by a majority of two Judges.
It has been argued by Mr. Peerbhoy, learned counsel on behalf of the appellant, that his client had no fair trial and has detailed a number of circumstances as supporting his contention.
We think it unnecessary to deal with each and every one of these circumstances as in our opinion they do not affect the substance of the matter and are too trifling to justify the conclusion that the appellant suffered any prejudice or that any miscarriage of justice had resulted.
We shall confine ourselves only to a few of them which need examination.
It was complained that the appellant was not furnished with copies of the statements of prosecution Witnesses recorded by the Police and this hampered the appellant in cross examining the witnesses with reference to their previous statements.
It appears that the appellant filed an application through counsel on August 28, 1950, asking for copies of such statements under section 162 of the Code of Criminal Procedure.
The corresponding section of the Hyderabad Penal Code is 166 which is not the same as section 162.
While under section 162 it is the duty of the Court to direct a copy of the statement of a witness recorded by the Police in the course of investigation to be furnished to the accused with a view to enable him to cross examine such a witness with reference to his previous statement, no such duty is imposed by section 166 and the matter is left entirely to the discretion of the Court.
This application was made for re cross examination of witnesses which obviously refers to the last stage of the prosecution evidence.
The order passed on the application as translated is unintelligible and does not convey the real intention of the Court.
The original which was shown to us, however, leaves no doubt whatever that the Court ordered that the case diaries and the statements were in Court and the appellant 's counsel could look into them with a view to help him in the re cross examination of the witnesses but if the Court later felt the necessity of furnishing copies, the matter would be considered.
No complaint was made before the Special Judge about any prejudice having been caused to the 593 appellant by this order, nor was this point taken before the High Court.
Had the appellant any legitimate ground for grievance on this score, he would no doubt have raised it before the High Court.
We think, therefore, that there is no substance in this point.
It was also contended that the prosecution should have produced the duty register of the appellant who was a Government servant in order to put the matter beyond doubt whether,the accused had left the Headquarters on the crucial date.
We do .lot think that it was any part of the duty of the prosecution to produce such evidence, particularly in view of the fact that direct evidence of the offence was produced in the case.
It appears, however, that the appellant himself summoned the Sub Inspector of Police with the attendance register for 1358 Fasli, corresponding to October, 1948.
The Deputy Superintendent of Police in his letter had stated that the entries for October were made in the register for 1357 Fasli and that register was destroyed during the Police action.
The appellant 's counsel inspected the register and on noticing that the entry for October did not find a place therein and had been made in the previous register for 1357 Fasli, which was destroyed during the Police action, he withdrew the witness.
The appellant satisfied himself from the inspection of this register that the desired entries were not to be found.
Since the register containing the material entries was destroyed, it was impossible for the prosecution to discharge the alleged burden of proving the entries in the duty register on the material date.
It was also faintly contended that there was no evidence to show that Mura Muthiah had actually died.
The father of the deceased gave evidence that the dead body of his son was cremated by him and in this he was supported by other witnesses.
There is no force in this point.
Upon the whole we are satisfied that the appellant has not been able to substantiate his contention that he did not have a fair trial.
The next contention advanced by the appellant 's learned counsel is that there was a misjoinder of 76 594 charges, that though the charges of murder and attempt to murder could be joined and tried together, the charges of extortion and wrongful confinement were distinct offences for which the appellant should have been charged and tried separately as required by the mandatory provisions of section 233 of the Code.
The first two offences took place on September 13, 1948, in the night, while the act of extortion took place next morning on the 14th and the latter charge had nothing whatever to do with the offences committed on the previous night.
Learned counsel contends that where, as here, there is disobedience to an express provision as to the mode of trial contained in section 233, the trial is wholly vitiated and the accused is not bound to show that the misjoinder has caused any prejudice to him.
The contention is based on the case of Subramania Ayyar vs King Emperor(1) showing that the misjoinder of distinct offences being prohibited by the express provision of the Code renders the trial illegal and does not amount to a mere irregularity curable by section 537.
This was a case in which the accused was charged with 41 acts extending over a period of two years which was plainly against the provisions of section 234 which permitted trial only for three offences of the same kind if committed within a period of twelve months.
The decision of Lord Halsbury, Lord Chancellor, in this case was distinguished in the case of Abdul Rahman vs The King Emperor (1) by the Privy Council.
That was a case of conviction on a charge of abetment of forgery in which the depositions of some witnesses were not read over to the witnesses but were handed over to them to read themselves.
It was held that though the course pursued was in violation of the provisions of section 360, it was a mere irregularity within section 537 and that as no failure of justice had been occasioned, the trial was not vitiated.
Both the above cases were referred to by the Privy Council in Babulal Chaukani vs King Emperor(1).
The question in that case arose as to the true effect of section 239(d), which provides that persons who are (1) 28 I.A. 257.
(2) 541.A. 96, (3) A.I.R. 1938 P.C. 130, 595 accused of different offences committed in the course of the same transaction may be charged and tried together.
The question was whether the correctness of the joinder which depends on the sameness of the transaction is to be determined by looking at the accusation or by looking at the result of the trial.
It was held that the relevant point of time is the time of accusation and not that of the eventual result.
The charges in this case were conspiracy to steal electricity and theft of electricity both under the Electricity Act and under the Penal Code.
The Privy Council referred to the fact that the parties had treated an infringement of section 239(d) as an illegality vitiating the trial under the rule stated in Subramania Ayyar vs King Emperor(1) as contrasted with the result of irregularity as held in Abdul Rahman vs The King,, Emperor (2) .
The Privy Council merely assumed it to be so without thinking it necessary to discuss the precise scope of the decision in Subramania 's case, because in their view the question did not arise.
Again in Pulukuri Kottaya and Others vs Emperor (3) the Privy Council treated a breach of the provisions of section 162 of the Code as a mere irregularity curable under section 537 and as no prejudice was caused in the particular circumstances of that case, the trial was held valid.
Reference was made to Subramania Ayyar vs King Emperor(1) as one dealing with the mode of trial in which no question of curing any irregularity arises but if there is some error or irregularity in the conduct of the trial, even though it may amount to a breach of one or more of the provisions of the Code, it was a mere irregularity and in support of this reference was made to Abdul Rahman vs The King Emperor(1).
Several decisions of the High Courts were referred to in course of the arguments with a view to showing what is the true state of the law in view of the Privy Council decisions referred to above but we do not think that that question arises in the present case.
We are of opinion that the present is not a case under section 233 of the Code and it is, therefore, unnecessary to consider whether the violation of its provisions amounts to an illegality vitiating the trial altogether (1) 28 I.A. 257.
(2) 54 I.A. 96.
(3) A.I.R. 1947 P.C. 67.
596 or it is a mere irregularity which can be condoned under section 537.
Section 233 embodies the general law as to the joinder of charges and lays down a rule that for every distinct offence there should be a separate charge and every: such charge should be tried separately.
There is no doubt that the object of section 233 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions upon this rule contained in sections 234, 235, 236 and 239.
Having regard to the facts and the circumstances of this case, we are of opinion that the present case falls under section 235.
It provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
The prosecution story as disclosed in the evidence clearly shows that the offence of extortion committed on the 14th September was one of a series of acts connected with the offence of murder and attempt to murder committed on the previous day in such a way as to form the same transaction.
The prosecution case was that when the appellant accompanied by his party came, he caught hold of two persons (P.W. 5 and P.W. 9) at Rajole and proceeded to Korivi.
He took them into custody without any rhyme or reason.
Then outside the village seeing the deceased, P.W. 2, P.W. 3 and P. W. 4 he shot at them.
The deceased fell down while the others ran away.
He pursued them and brought two of them back to the spot where the deceased was lying but was yet alive.
He shot him in the chest and killed him.
Then he proceeded to the village itself where he stayed for the night.
He released P. W. 3 and P. W. 4 on the intercession of certain persons but kept P. W. 5 and P. W. 9 in wrongful confinement and released them only next morning after extorting Rs. 200 from P. W. 5.
These incidents related in the evidence leave no manner of doubt that from the moment the appellant started from the Police Station, he committed a series of acts involving killing, injuring people, unlawfully confining others and 597 extorting money from one of them.
We are satisfied that the series of acts attributed to the appellant constitute one transaction in which the two offences which are alleged to be distinct were committed.
The case falls squarely within the purview of section 235 of the Code and we are, therefore, of opinion that such misjoinder was permitted by the exception.
No question of contravention of any express provision of the Code such as section 233 arises and in the circumstances it is not necessary for us to consider how far the violation of any express provisions of the Code relating to the mode of a trial or otherwise constitutes an illegality which vitiates the trial as distinguished.
from an irregularity which is curable under section 537.
This conclusion in our opinion disposes of the contention about misjoinder of the charges.
The fact that the offence of extortion was committed at a different place and at a different time does not any the less make the act as one committed in the course of the same transaction.
Turning to the merits of the matter, we are not satisfied that any prejudice was caused to the appellant in fact.
It is not possible to say that the Court being influenced by the evidence on the question of extortion was easily led into the error of believing the evidence on the question of murder.
The witnesses on the point of extortion are P.W. 5 and P.W. 9.
These are the two persons who were taken away from village Rajole and were wrongfully confined, P.W. 5 being released on payment of Rs. 200 and the other let off without payment.
These two witnesses are also witnesses to the fact of murder, in addition to the other three witnesses, P.W. 2, P.W. 3 and P.W. 4.
P.W. 5 was injured by the gun shot but survived.
The other two were scared on hearing the gun shot and ran away taking protection under the babul tree.
It is not possible to contend that the Sessions Judge having believed the evidence of extortion from P.W. 5 must have been persuaded into believing that the story of murder deposed to by him must be correct, for there is not only the evidence of P. W. 5, but three other inde pendent witnesses.
Lastly it was contended that the judgment of one of the agreeing Judges Manohar Pershad J. is purely 598 mechanical and does not show that he has applied his mind to the facts of the case.
No such complaint is made about the judgment of the other agreeing Judge Srinivasachari J.
It is true that the learned Judge has made copious quotations verbatim from the evidence of the witnesses and his comment upon the evidence is not as full and detailed as might be expected but this practice of writing judgments in this way seems fairly general in Hyderabad though we cannot help saying that it is not to be commended.
It is the obvious duty of the Court to give a summary of the evidence of material witnesses and to appraise the evidence with a view to arriving at the conclusion whether the testimony of the witness should be believed.
We do not think, however, that the criticism that the judgment is mechanical and does not show a proper appreciation of the evidence is well founded.
The prosecution evidence was believed by the trial Judge and the defence evidence to the effect that the deceased was killed by the Military and that the appellant was not present at the time of the occurrence was disbelieved.
This finding was accepted by both the learned agreeing Judges.
This Court cannot interfere with the finding arrived at, on an appreciation of the evidence.
We are satisfied that there is no good ground for disturbing the conviction of the appellant.
The only question which remains for consideration is whether the sentence of death is the appropriate sentence in the present case.
No doubt there are no special circumstances which justify the imposition of any other but the normal sentence for the offence of murder.
We think, however, that where the two Judges of the High Court on appeal are divided in their opinion as to the guilt of the accused and the third Judge to whom reference is made agrees with one of them who is upholding the conviction and sentence, it seems to us desirable as a matter of convention though ,not as a matter of strict law that ordinarily the extreme penalty should not be imposed.
We accordingly, while maintaining the conviction of the appellant, reduce his sentence to one of transportation for life.
In other respects the appeal stands dismissed.
All the sentences will run concurrently.
| IN-Abs | Section 233 of the Code of Criminal Procedure (Act V of 1898) embodies the general law as to the joinder of charges and lays down a rule that for every distinct offence there should.
be a 589 separate charge and every such charge should be tried separately.
No doubt the object of section 233 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions upon this rule contained in sections 234, 235, 236 and 239.
Section 235 of the Code of Criminal Procedure provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence.
The prosecution story showed that the offence of extortion committed on a particular day was one of a series of acts connected with the offence of murder and attempt to murder committed on their previous day in such a way as to form one transaction.
The incidents related in the evidence left no doubt that from the moment the accused (a Reserve Inspector of Police) started from the Police State, he committed a series of acts involving killing, injuring people, unlawfully confining others and extorting money from one of them and therefore the series of acts attributed to him constituted one transaction in the course of which two offences which were alleged to be distinct were committed.
Held, that under the circumstances the case fell within the purview of section 235 of the Code of Criminal Procedure and such joinder was permitted by the exception enacted in that section.
Where the two Judges of the High Court on appeal are divided in their opinion as to the guilt of the accused and the third Judge to whom reference is made agrees with one of them who is upholding the conviction and sentence, it is desirable as a matter of convention though not as a matter of strict law that ordinarily the extreme penalty should not be imposed.
|
Criminal Appeal No. 549 of 1987.
From the Judgment and Order dated 23.2.87 of the Bombay High Court in Crl.
W.P. No. 96 of 1986.
753 Anil B. Divan, V.P. Vashi, Ms. Naina Kapur and K.J. John for the Appellant.
H.M. Jagtiani, section Mullik, A.S. Bhasme, Ms. Kamini Jais wal and A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
What falls for consideration in this appeal by special leave is whether the High Court has erred in law in setting aside the judgments of the courts below in a matter arising under Section 630 of the Companies Act in exercise of its powers under Sec. 482, Cr.
P.C. The facts are as under: Messers Jenson and Nicholson (India) Ltd. (appellant company), had secured a flat in Bombay (No. 84, Mehr Dad, Cuffe Parade) belonging to one Mehdi Mandil, on leave and licence basis for the residential occupation of the flat by its officers/employees.
The leave and licence agreement was entered into on behalf of the company by the Ist respondent who was then the Divisional Sales Manager of the company at Bombay, the registered office of the company being at Calcutta.
It is common ground the Ist respondent acted on behalf of the company under a Power of Attorney executed in his favour by the company.
The leave and licence was for an initial period of 11 months but subject to renewal for a total period of 66 months.
The agreement provided for payment of advance compensation of Rs. 16,500 for 11 months and a monthly compensation of Rs. 1,500 and a deposit of Rs.3,50,000 free of interest to be returned at the end of the licence period.
The company paid the deposit and the advance compensation and was paying the monthly compensation of Rs. 1,500 thereafter.
On taking possession of the flat on 1.11.1980, the company allowed the 1st respondent to occupy it as an employee of the company.
More than three years later, i.e. on 23.3.1984, the Ist respondent filed a suit (Suit No. 1360/84) in the Court of Small Causes, Bombay against the company and the owner of the flat for a declaration that he is the actual licencee of the flat and for permanent injunction to restrain the de fendants from interfering with his possession of the flat.
The Ist respondent claimed to be the licencee of the flat on the basis of two letters dated 25.1.1984 and 1.2.1984 writ ten to him by a junior employee of the company, viz. one Mr. Jain who was the Officer Manager of the company at Bombay and working under the Ist respondent.
In those letters Mr. Jain has made it appear that the Ist respondent was the tenant of the flat.
Besides the reliefs of declaration and injunction, certain other reliefs such as fixation of stand ard rent etc. were also asked for in the suit against the owner of the flat.
Three days after the 754 filing of the suit i.e. on 26.3.1984, the Ist respondent tendered a letter of resignation to the company and his resignation was accepted by the Management on 27.3.84.
In accordance with his claim to be the licencee of the flat, the Ist respondent offered to reimburse the company the deposit amount of Rs.3,50,000 but the company declined the offer and asserted that it was the licencee of the flat and not the Ist respondent.
As the Ist respondent failed to vacate the flat after resigning his post, the company filed a complaint against him under Section 630 of the Companies Act in the Court of the Additional Chief Metropolitan Magistrate, Bombay.
The complaint was filed on behalf of the company by its power of attorney Mr. Atul Mathur who had been appointed as Division al Sales Manager, Bombay in place of the Ist respondent after his resignation.
The Additional Chief Metropolitan Magistrate took the complaint on file and after trial found the Ist respondent guilty under Section 630 of the Companies Act and sentenced him to pay a fine of Rs. 1,000 and also directed him to deliver possession of the flat to the compa ny on or before 15.6.87 in default to suffer S.I. for three months.
Against the said judgment, the Ist respondent pre ferred an appeal to the Sessions Court but by judgment dated 22.10.1986, the Addl.
Sessions Judge, Greater Bombay dis missed the appeal.
The Trial Magistrate as well as the Appellate Court concurrently ' held that the company was the licencee of the flat, that the Ist respondent had acted only as the power of attorney of the company in entering into the agreement, that his occupation of the fiat was only as an employee of the company and consequently the Ist respondent was in unlawful occupation of the flat after he ceased to be an employee of the company.
The Ist respondent was therefore directed to deliver possession of the flat to the company.
Despite the concurring judgments rendered against him, the Ist respondent filed a petition before the High Court under Article 227 of the Constitution but at the time of arguments, he was permitted to convert the petition into one under Section 482, Code of Criminal Procedure.
Three conten tions as under were urged before the High Court to assail the judgments of the Courts below: 1.
The complaint had been filed by a person without due authority to act on behalf of the company and this irregularity vitiated the entire proceedings, 2.
The Additional Session Judge had wrongly cast the burden of proof on the accused and he wrong approach has vitiated the judgment of the First Appellate Court.
755 3.
Since complicated questions of title were involved, the Additional Chief Metropolitan Magistrate had no jurisdiction or competence to adjudicate the matter in summary proceed ings under Section 630 of the Companies Act.
The first two contentions did not find favour with the High Court.
On the first contention, the High Court held that though the power of attorney conferred only special powers on Mr. Atul Mathur to act on behalf of the company only in civil suits, sales tax proceedings and excise mat ters.
Mr. Atul Mathur could still validly file the complaint as he was an officer of the company in the rank of Manager and could therefore validly act on behalf of the company.
The High Court further held that even if Mr. Atul Mathur did not have the requisite competence to file the complaint, the irregularity was a curable one under Section 465 of the Code of Criminal Procedure.
As regards the second contention, the High Court held that the Addl.
Sessions Judge hag nowhere cast the burden of proof on the accused in dealing with the appeal and hence the appellate judgment did not suffer from any perversity or illegality.
The High Court, however, sustained the third contention of the 1st respondent and set aside the sentence of fine and the direction to the Ist respondent to deliver possession of the flat to the company.
In giving its acceptance to the third contention, the High Court felt influenced by the two letters Exs.
3 & 4 written by Mr. Jain and felt that the letters afforded basis for the Ist respondent to bona fide dispute the company 's claim for possession of the flat.
The High Court was also of the view that since the Ist respondent had filed a suit even before the complaint was filed, the Civil Court was in seisin of the matter and therefore the Criminal Court "ought to have stayed its hand and allowed the Civil Court to adjudicate upon the issue.
" In support of its view, the High Court invoked the ratio in Damodar Das Jain vs Krishna Charan Ckakraborti, [1985] 57 Com.
Cases 115.
The aggrieved company is now before us.
Mr. Anil Divan, learned senior counsel appearing for the company argued that the High Court, after having held t. hat there were no reasons to interfere with the concurrent findings of the Courts below, ought not to have gone back on its view and rendered a finding that a bona fide dispute was involved in the proceedings and the dispute could only be adjudicated upon by a civil court and not by a criminal court in summary proceedings under Section 630 of the Companies Act.
Mr. Anil Divan referred to the acceptance of the findings of the first two Courts by the High Court in its judgment in the following terms. "I do not think that there is any scope for re appreciating 756 or re appraising the evidence.
Two Courts below have come to concurrent findings of fact, and I see no reason for interfering with the conclusions arrived at by the Courts below.
" It was therefore urged by the counsel that once the concur rent findings of the Courts below found acceptance with the High Court, there was no justification for the High Court to set aside the judgments of the two Courts.
The learned counsel further submitted that Section 630 of the Companies Act has been provided with an intent and purpose and its scope and ambit have been set out by this Court in reported decisions, but the High Court has failed to notice them and construed Section 630 in an unrealistic manner and this had led to mis carriage of justice, Mr. Divan also invited our attention to the leave and licence agreement entered into by the company with the owner of the flat as well as an affida vit and letter given by the first respondent at the time of the agreement and submitted that in the face of these clinching documents, there was absolutely no room for the first respondent to contend that he was the licencee and not the company of the fiat in question.
He also commented upon the conduct of the Ist respondent in getting two letters exhibit Nos. 3 and 4 written by a junior employee of the company without the knowledge of the Directors of the company and filing a suit on the basis of those letters and resigning his post three days later and refusing to vacate the flat.
It was finally urged by Mr. Divan that the High Court went wrong in applying the ratio in Damodar Das Jain (supra) because there was no bona fide dispute between the Ist respondent and the company regarding the flat occupied by the Ist respondent.
Mr. Jagtiani, learned counsel for the first respondent who had appeared for him before the High Court also contend on the other hand that the High Court has acted rightly in exercising its power under Section 482 Cr.
P.C. and in setting aside the judgments of the lower courts and the High Court 's judgment does not suffer from any error of law which needs correction by this Court.
The arguments of Mr. Jagtia ni may briefly be summarised as under: 1.
Proceedings under Section 630 of the Compa nies Act are in the nature of criminal pro ceedings and consequently the burden of proof is upon the complainant.
Besides, the accused is entitled to the benefit of doubt on all matters not proved beyond reasonable doubt.
Moreover any weakness in the accused 's case set up by way of defence cannot be relied upon to fill up the lacuna in the prosecution case.
757 2.
The letters Exs. 3 and 4 written by Mr. Jain on behalf of the company have not been convincingly disproved by the company and as such a bona fide doubt exists as to who is the actual licencee of the flat and the said dispute can be resolved only by a Civil Court and not by a Criminal Court.
A civil suit had already been filed by the first respondent and it was pending in the Civil Court and as such the Criminal Court should not have adjudicated upon the rights of the parties but should have directed them to seek their remedies before the Civil Court.
The explanation offered by Mr. Jain that he had written the letters under duress and coercion has been falsified by his admissions in cross examination and hence the Criminal Court should have accepted the first respond ent 's plea that a bona fide dispute existed between the parties regarding the licence rights over the flat and refrained from adju dicating upon the rights of the parties in the complaint filed under Section 630.
Damodar Das Jain 's case sets out the cor rect ratio and the High Court was fully justi fied in applying the said ratio to this case.
Before we deal with the contentions of the parties, we may refer to Section 630 of the Companies Act and the deci sions of this Court on the scope and ambit of the Section.
Section 630 reads as under: "section 630.
Penalty for wrongful withholding of Property(1) If any officer or employee of a company (a) wrongfully obtains possession of any property of a company; or (b) having any such property in his possession, wrongfully withholds it or know ingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act; he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to one thousand rupees.
(2) The Court trying the offence may also order such 758 officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully obtained or wrongful ly withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years.
" There was a divergence of opinion between the Bombay High Court and the Calcutta High Court regarding the interpreta tion of the words "any officer or employee of a company", the Bombay High Court giving a broader interpretation to the words and the Calcutta High Court giving a narrow interpre tation.
The controversy was set at rest by this Court in Baldev Krishna Sahi vs Shipping Corpn.
of India Ltd., [1987] (IV) SCC 361 by holding that the term "officer or employee" of a company applies not only to existing officers or em ployees but also to past officers or employees if such, officer or employee either (a) wrongfully obtains possession of any property, or (b) having obtained possession of such property during his employment, wrongfully withholds the same after the termination of his employment.
It was pointed out that wrongful obtainment of possession would attract Section 630(1)(a) and wrongful withholding of possession of company 's property would attract Section 630(1)(b) of the Act.
It is therefore clear that the purpose of enacting Section 630 is to provide speedy relief to a company when its property is wrongfully obtained or wrongfully withheld by an employee or ex employee.
In a later case Amritlal Chum vs Devo Prasad Dutta Roy, ; which arose directly from the decision of the Calcutta High Court in Amritlal Chum vs Devi Ranjan Jha, the view taken in Baldev Krishan Sahi (supra) was affirmed and the High Court 's judgment was reversed.
Coming now to the question whether the licence for occupation of the flat was obtained by the company or the first respondent, we may refer to three crucial documents.
The first one is the leave.and licence agreement dated 1.11.
The deed specifically states that the licencee is Messrs Jenson and Nicholson (India) Ltd. having its regis tered office at Calcutta and Executive office at Bombay and that the company shall have the flat "for the use and occu pation as residence by its bona fide employee/employees and/or his/their families" and shall not be transferred to anyone else (vide clauses 11 & 12).
The agreement was en tered into by the first respondent as the power of attorney agent of the company and he has contemporaneously executed an affidavit on 1.11.
1980 wherein he has affirmed as fol lows: 759 "I say that for the purpose of secur ing a flat on leave and licence basis for providing residence for the employees of the company, I have entered into negotiations on behalf of the company, with Shri Mehdi Mandil the owner of flat No. 84 on the 8th floor of the building known as 'Mehr Dad ' at Cuffe Parade, Bombay, to allow the company the use and occupation of the said flat under a leave and licence to be executed between the said Mehdi Mandil and the said company." (Emphasis supplied).
In para 3 of the affidavit, the first respondent has given an assurance that the flat "would be made use of for the purpose of residence only by the bona fide employees of the company and/or their/families.
" In para 4, the first re spondent has affirmed "that neither the company nor any employee of the company who may be in occupation of the flat would claim any rights/title or interests or any rights of tenancy other than the right to use and occupy the said flat purely as a licencee under and in accordance with the terms and conditions of the leave and licence agreement." On 5.11.
1980, the Ist respondent, acting for the company, has writ ten a letter to the licenser Mr. Mehdi Mandil stating inter alia as under: "The flat being given to the company, it would be occupied by only the bona fide official employee of the company." "Yours faithfully, Jenson & Nicholson (India) Ltd. Sd/ Atul Kalra Divisional Sales Manag er, Bombay.
" These documents clinch the issue and prove beyond a shadow of doubt that the flat was taken on leave and licence basis by the company only for providing accommodation to its employee or employees during their term of employment in the company.
It was purely on that basis the first respondent who was the Divisional Sales Manager was allowed to occupy the flat and he was allowed to occupy the flat till he resigned his post on 26.3.
It is pertinent to mention here that it was the company which had given the deposit of Rs.3,50,000 to the licenser and had been paying the licence fees, advance and monthly, all through.
Notwithstanding this incontrovertible position, the first respon 760 dent developed ideas to cling to his possession of the flat even after ceasing to be an employee of the company.
Conse quently, he contrived to obtain two letters dated 25.1.1984 and 1.2.
1984 from Mr. Jain who was only working as Office Manager at Bombay.
In the first letter, Mr. Jain has formal ly written to say (though he and the Ist respondent were working in the same office) that the company has received a letter from the Municipal Corporation regarding the rateable value of the flat and that the first respondent may deal with the matter.
Instead of stopping with that, Mr. Jain has gone on to say as follows: "We are forwarding the said letter to you, to deal with the same as you are the tenant of the flat and you are in possession of the same.
The flat was taken by you from the landlord, but the landlord had insisted to have the agreement in the name of the company merely.
The company will not be liable if the rateable value of the flat is increased and if there is any consequential increase in the property taxes.
All the matters will be be tween you and the landlord.
Please therefore deal with the letter as you deem fit." (Emphasis supplied).
Yours faithfully, Jenson & Nichol son (India) Ltd. Sd/ (A.S .
JAIN) Office Manager, Bombay.
On 30.1.
1984, the appellant has acknowledged the letter and agreed to deal with the corporation authorities and has in addition stated that he will also take steps for fixation of standard, rent by the Court as the landlord was charging exorbitant rent.
Digressing for a moment, it has to be noticed that the Ist respondent had come to realise the rent to be exorbitant only after 3 years and 2 months and just before he wanted to claim tenancy rights for himself.
Re verting back to the correspondence, Mr. Jain has sent a reply on 1.2.1984 to state that the company will have no objection to legal proceedings being taken for fixation of standard rent of your flat at 84, Mehr Dad, Cuffe Parade, Bombay but however he (1st respondent) alone will have to bear the expenses including the court fees and advocate 's fees and the company will not be liable to re imbuse him.
It is on the footing of these two 761 letters the first respondent sought to build up a case that he was the actual licensee of the flat and not the company.
Before considering the explanation given by Mr. Jain as to his writing the letters, it will be worthwhile to notice certain factors.
In the first place, Mr. Jain was only a junior employee of the company viz. Office Manager, Bombay and could not therefore have directed the Ist respondent to attend to the matter of furnishing information to the corpo ration authorities about the rateable value of the flat.
Secondly, Mr. Jain and the first respondent were both work ing in the same office and as such it is inconceivable that Mr. Jain would have carried on a correspondence with the 1st respondent instead of merely placing the alleged letter of the corporation before the first respondent for suitable action by him.
Thirdly, Mr. Jain joined the services of the company only in July 1983 i.e. long after the company had taken the flat on licence and as such he could not have known what were the terms of the leave and licence agreement and who was the actual licensee of the flat.
Fourthly, even if Mr. Jain had purported.
to act on behalf of the company, he would have sent copies of the letters to the Head Office at Calcutta but he had not done any such thing and on the other hand he had suppressed information from the Head Office about the correspondence.
The Ist respondent too had not brought the matter to the notice of the Head Office at Calcutta.
The Ist respondent resigned his post on 26.3.84 and in order to forestall the company from seeking his eviction, he had filed a suit on 23.3.84 to seek the reliefs of declaration and injunction.
All these factors lead to the unmistakable conclusion that the first respondent had some how prevailed upon Mr. Jain to give the letters Exs.
3 & 4 with the ulterior motive of filing a suit and then tendering his resignation.
Now coming to the explanation offered by Mr. Jain for writing the two letters, he has sworn to an affidavit that he was "pressurised and threatened" by the 1st respondent to sign the letters without knowing the implications.
He has also given evidence to the same effect in the trial of the case before the Additional Chief Metropolitan Magistrate.
Mr. Jagtiani strenuously contended that Mr. Jain 's statement that he gave the letters under coercion has been disproved by the answers elicited from Mr. Jain in his cross examina tion viz. that the 1st respondent did not actually threaten him but he construed the commanding manner in which he made the demand as containing a threat.
Mr. Jagtiani 's argument was that once Mr. Jain 's explanation for giving the letters stood falsified, then the letters must be treated as genuine documents binding on the company and affording material to the 1st 762 respondent to contend that he was the real licensee of the flat.
We are unable to find any merit in this contention.
Even assuming for arguments sake that Mr. Jain had not written the letters under threat, the Ist respondent 's case will not stand advanced in any manner.
A junior employee of the company cannot relinquish the rights of the company in favour of the 1st respondent especially when the Ist re spondent himself had categorically stated in the leave and licence agreement as well as in his affidavit and letter that the company was the licencee of the flat and the em ployees are not entitled to claim any tenancy rights for themselves.
Fully realising, the weakness in his case, the Ist respondent has made an attempt to authenticate the letters Exs. 3 and 4 by contending that Mr. Roy, Director of the Company had instructed Mr. Jain from Calcutta to write the letters and hence the letters were fully binding upon the company.
The story invented by the Ist respondent was right ly disbelieved by the Trial Court and the Appellate Court because it is inconceivable that Mr. Roy would have asked a junior officer like Mr. Jain to write the letters instead of asking some one from the Head Office itself to write the letters.
No suggestion was put to Mr. Jain in the witness box that he wrote the letters under the instructions of Mr. Roy.
There is also no mention in the letters that they were being written as per the instructions received from the Head Office.
Another strange feature is that a copy of the let ters has not been sent to the Head Office.
Such would not have been the case if the letters had really been written by Mr. Jain under directions from the Head Office.
Mr. Jagtiani sought to discredit the affidavit and the evidence of Mr. Jain on the ground that Mr. Jain had given his affidavit after consulting the company 's lawyer and secondly he had not been punished by the company for his misconduct.
The arguments of the counsel in this behalf have no merit in them because Mr. Jain was duty bound to explain to the company the circumstances in which he had arrogated powers to himself and written the letters Exs. 3 and 4 to the Ist respondent.
Naturally therefore he would have sought the guidance of the company 's counsel as to how the affida vit is to be formally worded.
As regards the company not awarding any punishment to Mr. Jain, it was open to the company to pardon him for the folly of his action when it came to know that he had been unwittingly made use of by the Ist respondent to write the letters in question.
All these factors have unfortunately escaped the notice of the 763 High Court and the omission has led the High Court to accept the first respondent 's contention that there was a bona fide dispute between him and the company as to who was the actual licencee of the flat.
We have already referred to the rele vant portions of the leave and licence agreement and the affidavit and letter of the Ist respondent wherein he has categorically accepted that the company was the licencee of the flat.
Secondly, the evidence projected by the Ist re spondent to lay claim to licence rights over the flat is his own creation without the knowledge of the company.
The two letters in question had been obtained from a junior employee who had joined the company long after the flat was taken on rent and who knew nothing of the agreement between the company and the owner of the flat.
The author of the letters has himself confessed that he had signed the letters at the behest of the Ist respondent without knowing the implica tions of his act.
Leaving aside these factors, even if we are to take that Mr. Jain had of his own accord written the letters, can it ever be said that the letters afford scope for the Ist respondent to contend that he is bona fide entitled to dispute the company 's claim to possession of the flat.
The sequence of events also go to show that the Ist respondent had formulated a plan for clinging to his posses sion of the flat even after resigning his post and in ac cordance with that plan he had obtained the letters Exs. 3 and 4 and then filed a suit in order to forestall the compa ny from proceeding against him under Section 630 of the Companies Act.
Merely because the Ist respondent had schem ingly filed a suit before tendering his resignation, it can never be said that the Civil Court was in seisin of a bona fide dispute between the paries and as such the Criminal Court should have stayed its hands when the company filed a complaint under Sec. 630.
If a view is mechanically taken that whenever a suit has been filed before a complaint is laid under Section 630, the Criminal Court should not pro ceed with the complaint, it would not only lead to miscar riage of justice but also render ineffective the salutory provisions of Section 630.
So much for the bona fides of the alleged dispute pro jected by the Ist respondent regarding the company 's claim to possession of the flat.
Coming now to the question of law, the High Court has invoked the ratio in Damodar Das Jain, (supra).
The facts therein were very different and it was with reference to those facts, the High Court held that a bona fide dispute existed between the parties therein.
This may be seen from the question posed for consideration by the High Court, viz. "whether on the facts and circum stances of the case, the Magistrate could himself, under Section 630, determine the dispute as to the title to the property." On the evidence before it, the High Court held 764 and rightly so that there was a genuine dispute between the parties and the said dispute required adjudication by a Civil Court in the suit filed by the ex employee.
While rendering its judgment, the High Court had construed Section 630 properly and observed that "the magistrate 's jurisdic tion thereunder (under Section 630) would extend only to those cases where there was no dispute, or in any event no bona fide dispute, that the property involved was the property of the company." (emphasis supplied).
Mr. Jagtiani pointed out that the decision of the High Court in Damodardas Jain (supra) was affirmed by this Court in Damodardos vs Krishna Charan Chakraborti & Anr., [1988] 4 Judgment Today page 7 14.
He fails to notice that the ac ceptance of the High Court 's view was with reference to the facts of the case.
This may be seen from the following observation in the judgment of this Court.
"The High Court felt that the disputes raised by the respOndent herein were bona fide disputes.
Before us it has not been disputed that this view of the High Court was correct as far as the ques tion whether the Company could be held to be a tenant of the flat is concerned.
" Therefore what has to be seen in a complaint under Section 630 is whether there is "no dispute or no bona fide dispute" regarding a property claimed by the company between the company and its employee or ex employee.
It is needless to say that every dispute would not become a bona fide dispute merely because the company 's claim to possession is refuted by an employee or ex employee of the company.
As to when a dispute would amount to a bona fide dispute would depend upOn the facts of each case.
In the present case the High Court has realised this position and observed that "while considering whether the plea of tenancy is a bona fide plea, it is always necessary to examine and consider the transaction on the basis of which the plea is based" (vide para 39).
While stating the position correctly, the High Court went wrong in holding that the serf serving documents produced by the 1st respondent gave a touch of bona fides to his defence.
The High Court was therefore not fight in thinking that the ratio in Damodar Das Jain (supra) was attracted to the case in as much as the defence put forward by the Ist respOndent was patently an incredible story.
Another contention of the 1st respOndent to thwart the proceedings under Section 630, which has been repelled by all the Courts including the High Court, is regarding the competence of PW 1 Mr. Atul Mathur, the present Divisional Sales Manager of the company, to 765 file the complaint on behalf of the company.
Belatedly, the Ist respondent has filed a memorandum of cross objections against the finding of the High Court on this question.
The appellant 's counsel objected to the memorandum of cross objections being entertained as it has been filed belatedly and furthermore, the appellant has not been given notice or furnished copies of the cross objections.
Leaving aside the technical pleas, we find the cross objections to be worth less even on merit.
The Ist respondent would say that the power of attorney in favour of Mr. Atul Mathur empowers him to act on behalf of the company only in civil suits, sales tax proceedings, and excise matters and does not empower him to file criminal complaints on behalf of the company.
The Ist respondent 's contentions suffer from a misconstruction of the terms of the power of attorney executed by the compa ny.
The power of attorney, read as a whole, is seen to confer general powers on Mr. Atul Mathur and not merely special powers.
It has been engrossed on stamp papers of the value of Rs.50 and it is indicative of the nature of the deed.
Though specific reference is made in the power of attorney only to the filing of suits and to matters relating to sales tax and Central Excise, there is a general clause which reads as follows: "AND THE COMPANY HEREBY agrees that all acts, deeds and things lawfully done by the Attorney shall be construed as acts, deeds and things done by it and the company undertakes to ratify & confirm all and whatsoever that its said Attorney shall do or cause to be done by virtue of Powers hereby given.
" The power of attorney has been executed just before the complaint was filed and it is stated in the complaint that Mr. Atul Mathur was filing the complaint on behalf of the company and he was duly authorise to do so.
The High Court was therefore, not right in construing the power of attorney as conferring only special powers and not general powers on Mr. Atul Mathur.
Be that as it may, the High Court has held, and very rightly, that as Mr. Atul Mathur was the Divisional Sales Manager of the company at Bombay, he was certainly competent to file the complaint on behalf of the company as per instructions given to him from the Head Officer of the Company We do not therefore find any substance in the contention of the Ist respondent that the complaint suffered from a material irregularity not curable under Section 465 Cr.
P.C. Incidentally, we may observe that in spite of con tending that the complaint suffered from an irregularity, the Ist respondent has neither pleaded nor proved that a failure of justice has been occasioned on account of the alleged irregularity.
766 Learned counsel for the Ist respondent relied upon Ballavdas Agarwala vs Shri J.C. Chakravarty, ; in support of his contention that the company 's com plaint suffered from an irregularity not curable under Section 465 Cr.
In the view we have taken of the matter viz. that Mr. Atul Mathur had the requisite authority to file the complaint on behalf of the company, the question does not survive for consideration.
The cross objections must therefore fails even if entertained.
For the aforesaid reasons, the judgment of the High Court is not sustainable.
We therefore, allow the appeal, set aside the judgment of the High Court and restore the judgments of the Additional Chief Metropolitan Magistrate and the Additional Sessions Judge.
However, the first respondent is given time till 30.9.89 to deliver possession of the flat to the company failing which the sentence of imprisonment awarded to him would be enforced.
Y.Lal Appeal allowed.
| IN-Abs | The appellant Company took a fiat No. 84, Mehr Dad, Cuffe Parade, Bombay, from its owner Mehdi Mandil on leave and licence basis for the residence of its Officers '/Employ ees '.
The first Respondent, Divisional Manager of the Compa ny at Bombay, acted as power of attorney of the Company and executed the agreement with the land lord for leave and licence initially for a period of 11 months renewable for a total period of 66 months.
The agreement also provided for an advance payment of Compensation amounting to Rs. 16,500 monthly compensation of Rs. 1500 and a deposit of Rs.3,50,000 to be returned at the end of the licence period free of interest.
The company complied with all the terms of the agreement.
On 1.11.80, the appellant Company allowed the first Respondent to occupy the flat as company 's employee.
Three years later i.e. on 23.3.84, the first Respondent filed a suit in the Court of Small Causes Bombay against the Company and the owner of the flat for a declaration that he was the actual licencee of the flat and for a permanent injunction to restrain the defendants from interfering with his posses sion of the flat.
He based his claim as a licencee on the basis of two letters dated 25.1.84 and 1.2.84 written by the Manager of the Company, one Mr. Jain.
Three days after filing the said suit, first Respondent resigned and his letter of resignation was accepted by the company on 27.3.84.
Since the first Respondent, ex employee of the company did not vacate the flat, the company filed a complaint against him under Section 630 of the Companies Act before the_ Addl.
Chief Metropolitan Magistrate, Bombay.
The Com plaint was filed by Mr. Atul Mathur, as attorney of the company, who by then had taken over the place vacated by the first respondent.
751 The trial Magistrate found the first respondent guilty under Section 630 of the Company 's Act and sentenced him to pay a fine of Rs. 1,000 and directed to deliver vacant possession of the fiat to the company.
In lieu of payment of fine aforesaid, first respondent was directed to undergo simple imprisonment for 3 months.
The first respondent preferred an appeal to the Session Court against the order of the Trial 'Magistrate.
By his order dated 22.10.86, the Addl.
Sessions Judge, Greater Bombay dismissed the appeal.
Thus both the trial court as also the first appellate Court concurrently found that the company was the real licencee.
Thereupon the first Respondent filed a Petition under Article 227 of the Constitution before the High Court, which later, he was permitted to convert as one under Sec.
482 of the code of criminal procedure.
The first Respondent con tended before the High Court: (i) That the complaint was not properly filed inasmuch as the complainant was not duly authorised by the company which irregularity vitiated the proceedings; (ii) That the Addl.
Chief Judl.
Magistrate had no jurisdiction to adjudi cate such a complicated matter in summary proceedings under Section 630 of the Companies Act, and (iii) The Addl.
Ses sions Judge had wrongly cast the burden of proof on the accused.
The High Court rejected the contentions (1) and (3) and came to the conclusion that the letters written by Mr. Jain afforded basis for the first respondent to bona fide dispute the company 's claim for possession of the flat.
The High Court also took the view that the first respondent having filed civil suit earlier in point of time, the Criminal Court ought to have stayed its hand and allowed the Civil Court to adjudicate upon the issue.
Damodar Das Jain vs Krishna Charan Chakraborti & Anr., [1985] 57 Com.
Cases.
Aggrieved by the High Court 's order allowing the first Respondent 's Writ Petition, the company has filed this appeal by special leave and the question that fails for determination by the Court is whether the High Court was right in reversing the Judgments of the Courts below in a matter arising under Section 630 of the company 's Act in exercise of its powers under section 482, Cr.
Allowing the appeal and granting time to the first Respond ent till 752 30.9.89 to vacate the flat in question, this Court, HELD: The term "Officer or Employee" m Section 630 of the Company 's Act applies not only to existing officers or employees but also to past employees or officers if such officer or employee either wrongfully obtains possession of any property or having obtained the possession during his employment withholds the same after the termination of his employment.
Baldev Krishna Sahi vs Shipping Corpn.
of India Ltd., [1987] IV SCC 361 and Amrit Lal Chum vs
Devo Prasad Dutta Roy; , [758C] Merely because the first respondent had schemingly filed a suit before tendering his resignation, it can never he said that the Civil Court was in seisin of a bona fide dispute between the parties and as such the Criminal Court should have stayed its hands when the company filed a com plaint under Section 630.
If a view is mechanically taken that whenever a suit has been flied before a complaint is laid under Section 630, the Criminal Court should not pro ceed with the complaint, it would not only lead to miscar riage of justice but also render ineffective the salutory provisions of Section 630.
[763E F] What has to he seen in a complaint under Section 630 is whether there is "no dispute or no bona fide dispute" re garding a property claimed by the company between the compa ny and its employee or ex employees.
It is needless to say that every dispute would not become a bona fide dispute merely because the company 's claim to possession is refuted by an employee or ex employee of the company.
As to when a dispute would amount to a bona fide dispute would depend upon the facts of each case.
[764E] The Court set aside the judgment of the High Court and restored those of the Additional Chief Metropolitan Magis trate and the Addl.
Sessions Judge.
[766C] Damodardas vs Krishna Charan Chakraborti & Anr., [1988] 4 Judgment Today p. 714.
and Ballavdas Agarwala vs Shri J.C. Chakravarty; , , referred to.
|
vil Appeal No. 27(NM) of 1989.
From the Judgment and Order dated 20.9.88 of the Government 817 Of India, Ministry of Industry, Department of Company Af fairs, Shastri Bhavan, New Delhi in No. 2/51/85 M II.
Anil B. Divan, Nitin Thakkar, P.H. Parekh and section Dogra for the Appellant.
Anil Dev Singh, H. Sharma, Sushma Suri, Harish Salve, Mohini Sud and Praveen Kumar for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
1.
This appeal has been preferred under section 55 of the Monopolies & Restrictive Trade Practices Act ( 'the Act ') from an order of the Central Government (C.G.) dated 20.9.88.
By the said order the C.G. granted an application made by respondent No. 1 (hereinafter referred to as 'the Modis ') under section 22 of the Act for permis sion to establish an undertaking for the manufacture of Ossein and Gelatine in the State of Rajasthan.
The petition er, which claims to be an association of Ossein and Gelatin manufacturers in India, made representations before the C.G. objecting to the grant of the application by the Modis.
These objections having been rejected and the application granted by the said order, the aggrieved petitioner has preferred this appeal.
We admit the appeal and, having heard counsel on both sides, proceed to dispose of the appeal finally.
The following contentions have been urged by Sri Divan in support of the appeal: (a) The order dated 20.9.88 is vitiated as it merely sets out the bald conclusion of the officer concerned.
It is not a reasoned or well considered order.
(b) The appellant had pointed out that the grant of permission to Modis would be against public interest.
It would completely cripple the small scale business of the members Of the appellant association which, even earlier, had been functioning far below capacity due to insufficient supply of crushed bones.
These objections had not been properly dealt with in the order.
(c) The order has been passed by one Sri Vijayaraghavan whereas a personal oral hearing in the matter had been given by Sri S.S. Khosla.
This has resulted in the violation of the fundamental rule of natural justice that "he who hears must decide".
818 (d) The hearing had taken place on 23.1.86 while the final order was passed more than two and half years later.
This, coupled with the change in personnel referred to above, has resulted in the denial of natural justice to the petitioner.
(e) Modis had stated in their application that bonemeal would be the raw material used by them but, later, they changed it into "crushed bones".
The appellant had no opportunity of meeting the new case.
(f) The representative of Modis had presented certain documents at the personal hearing but copies thereof had not been supplied to the appellant despite a grievance made by it the very next day.
The appellant 's contentions broadly fall under two heads: one, the denial of natural justice and two, the failure to pass a reasoned order.
It will be convenient to deal with the latter objection first.
We are unable to accept the appellant 's contention that the impugned order is bald, unreasoned or cryptic and vio lates the requirements for such an order enunciated in the Oramco case , where this Court reaffirmed the following observations made in the Bombay Oil case ; "We must, however, impress upon the Government that while disposing of applications under Sections 21, 22 and 23 of the , it must give good reasons in support of its order and not merely state its bald conclusion.
The faith of the people in administrative tribu nals can be sustained only if the tribunals act fairly and dispose of matters before them by well considered orders . . " The order of the Government is a detailed and elaborate one.
It sets out the contentions and deals with them seriatim.
The point made that existing units were already functioning below capacity due to insufficient supply of crushed bones and that the entry of the Modis into the arena would drive them out of business has not been overlooked.
Only, as against this the Government has considered to be more weighty the economic advantages in granting the application of the Modis arising out of the circumstances: (a) that they would be setting up the industry in a backward area; (b) that they had categorically 819 undertaken to export at least 60% of their proposed produc tion; (c) that since they would be producing their own hydrochloric acid, the availability of such acid to others will not be affected; and (d) that the short supply of the raw material (crushed bones) may not be a constraint for permitting the manufacture of value added products like Ossein and Gelatine.
The order bears testimony to the fact that the pros and cons have been fully considered and a decision taken.
It is not within the province of the Courts to appraise the evidence or review the conclusion of the Government.
The first branch of the argument of the counsel for the appellant, therefore, fails.
On the issue of natural justice, we are satisfied that no prejudice has been caused to the appellant by any of the circumstances pointed out by the appellant.
It is true that the order has been passed by an officer different from the one who heard the parties.
However, the proceedings were not in the nature of formal judicial hearings.
They were in the nature of meetings and full minutes were recorded of all the points discussed at each meeting.
It has not been brought to our notice that any salient point urged by the petitioners has been missed.
On the contrary, the order itself summa rises and deals with all the important objections of the petitioners.
This circumstance has not, therefore, caused any prejudice to the petitioners.
The delay in the passing of the order also does not, in the above circumstances, vitiate the order in the absence of any suggestion that there has been a change of circumstances in the interregnum brought to the notice of the authorities or that the author ity passing the order has forgotten to deal with any partic ular aspect by reason of such delay.
The argument that the application of the Modis had referred to bonemeal as the raw material used and this was later changed to "crushed bones" is pointless because it is not disputed that all along the petitioners were aware that the reference to bonemeal was incorrect and that the Modis were going to use crushed bones in their project.
The last contention that some documents were produced at the hearing by the Modis which the peti tioners could not deal with effectively is also without force as, admittedly, the assessee 's representatives were shown those documents but did not seek any time for consid ering them and countering their effect.
There has, there fore, been in fact, no prejudice to the petitioners.
They have had a fair hearing and the Government 's decision has been reached after considering all the pros and cons.
We are unable to find any ground to interfere therewith.
There was some discussion before us on a larger question as to whether the requirements of natural justice can be said to have been 820 complied with where the objections of parties are beard by one officer but the order is passed by another.
Sri Salve, referring to certain passages in Local Government Board vs Alridge, ; Ridge vs Baldwin, ; ; Regina vs Race Relations Board, Ex parte Selvarajan, and in de Smith 's Judicial Review of Administra tive Action, Fourth Edn.
p. 219 220 submitted that this was not necessarily so and that the contents of natural justice will vary with the nature of the enquiry, the object of the proceeding and whether the decision involved is an "institu tional" decision or one taken by an officer specially empow ered to do it.
Sri Divan, on the other hand, pointed out that the majority judgment in Gullappalli Nageswara Rao vs APSR TC, [1959] Supp. 1 SCR 3 19 has disapproved of Al ridge 's case and that natural justice demands that the hearing and order should be by the same officer.
This is a very interesting question and Alridge 's case has been dealt with by Wade (Administrative Law, 6th Edition at pp.
507 et seq.) We are of opinion that it is unnecessary to enter into a decision of this issue for the purposes of the present case.
Here the issue is one of grant of approval by the Government and not any particular officer statutorily desig nated.
It is also perfectly clear on the records that the officer who passed the order has taken full note of all the objections put forward by the petitioners.
We are fully satisfied, therefore, that the requirements of natural justice have been fulfilled in the present case.
For the reasons stated above, the appeal stands dismissed.
No costs.
G.N. Appeal dismissed.
| IN-Abs | Respondent No. 1 made an application to the Central Government for permission to establish an undertaking for the manufacture of Ossein and Gelatine in the State of Rajasthan.
The appellant Association made representations before the Central Government objecting to the grant of the said application inter alia on the ground that it would cripple the small scale business of its members, who were already functioning far below capacity on account of short supply of crushed bones.
The Central Government rejected the objections and granted the application of the Respondent, under section 22 of the , by its order dated 20.9.1988.
Aggrieved by the said order, appellant association has preferred this appeal under section 55 of the MRTP Act.
On behalf of the appellant, it was contended that the Central Government has failed to pass a reasoned order and has not followed the principles of natural justice.
Dismissing the appeal, HELD: 1.
The order of the Government is a detailed and elaborate one.
It sets out the contentions and deals with them seriatim.
The point made that existing units were already functioning below capacity due to insufficient supply of crushed bones and that the entry of the Respondent No. 1 into the arena would drive them out of business has not been overlooked.
Only, as against this, the Government has considered to be more weighty the economic advantages in granting the application of Respondent No. 1 arising out of the circumstances that they would be setting up the industry in a backward area; that they had categorically undertaken to export at least 60% of their proposed pro 816 duction; that since they would be producing their own hydro chloric acid, the availability of such acid to others will not be affected; and that the short supply of the raw mate rial (crushed bones) may not be a constraint for permitting the manufacture of value added products like Ossein and Gelatine.
The order bears testimony to the fact that the pros and cons have been fully considered and a decision taken.
It is not within the province of the Courts to ap praise the evidence or review the conclusion of the Govern ment.
[818G H; 819A B] Oramco Chemicals Pvt. Ltd. vs Gwalior Rayon Silk Manu facturing (Weaving) Company Ltd. & Anr., and Bombay Oil Industries vs Union of India, ; , referred to.
In the instant case, requirements of natural justice have been fulfilled and no prejudice has been caused to the appellant.
Of course the order has been passed by an officer different from the one who heard the parties.
However, the proceedings were not in the nature of formal judicial hear ings.
They were in the nature of meetings and full minutes were recorded of all the points discussed at each meeting.
The order itself summarises and deals with all the important objections.
The delay in the passing of the order also does not vitiate the order in the absence of any suggestion that there has been a change of circumstances in the interregnum brought to the notice of the authorities or that the author ity passing the order has forgotten to deal with any partic ular aspect by reason of such delay.
The contention that the application of Respondent No. 1 had referred to bonemeal as the raw material used and this was later changed to 'crushed bones ' is pointless because it is not disputed that all along the appellant was aware that the reference to bonemeal was incorrect and that Respondent No. 1 was going to use crushed bones in the project.
That some documents were produced at the hearing by Respondent No. 1 which the appel lant could not deal with effectively is also without force as, admittedly, the appellant 's representatives were shown those documents but they did not seek any time for consider ing them and countering their effect.
Moreover, the issue is one of grant of approval by the Government and not any particular officer statutorily designated.
It is also per fectly clear on the records that the officer who passed the order has taken full note of all the objections put forward by the petitioners.
[819C H; 820A D]
|
ivil Appeal No. 3224 of 1989.
From the Judgment and Order dated 6.9.83 of the punjab & 769 Haryana High Court in R.S.A. No. 1092 of 1975.
M.R. Sharma and M.C. Dhingra for the Appellant.
Anil Dev Singh, P.P. Singh and C.V.S. Rao for the Re spondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Special leave granted.
Appellant was recruited as an Assistant Executive Engi neer in the Military Engineering Service upon his selection by the Union Public Service Commission through the combined Central Engineering Service Examination of 1960 and he joined as an Assistant Executive Engineer on 24.4.1962.
A provisional seniority list was prepared in August, 1963 as claimed by him and the appellant represented that his previ ous service under the Central Government in consideration of which he had been given three increments at the time of joining should have been taken into account.
In January, 1967, the seniority list was published where, as the appel lant pleaded, he was shown at the 483rd position.
He repre sented against the lower placement and asked for placing him at the appropriate place.
The Departmental Promotion Commit tee did not consider him for promotion on the basis of his lower placement in the seniority list and he was not promot ed.
Appellant, therefore, filed a suit for redress of his grievance of lower placement and for consequential reliefs.
The suit was dismissed.
Appellant 's appeal before the Dis trict Judge was also dismissed and thereupon the appellant went before the High Court in second appeal but that too was dismissed.
It is against the judgment of the High Court affirming those of the Courts below that this appeal has been brought before this Court.
Before we go into the merits of the matter we must indicate that the case has not been appropriately placed in the Courts below and relevant material has not been made a part of the present record.
The claim in this litigation has to be considered in the backdrop of two earlier cases Bachan Singh vs Union of India, ; is the judgment of this Court where a dispute relating to the same Military Engineering Service involving inter alia of a claim of seniority came to be disposed of by a Constitution Bench.
It is not necessary to refer at any length to the judgment in view of the fact that the result of 770 the subsequent litigation in the case of A. Janardhana vs Union of India & Ors., ; would be sufficient for the present Notice was given in this appeal to hundreds of respond ents whom the appellant had impleaded, but no one has ap peared to contest his claim in this Court.
There has been no dispute in the Courts below and here too that the appellant has been legally recruited to the Service.
In Janardhana 's case at p. 618 of the Report this Court held: "Keeping in view the exigencies of service and the requirements of the State, temporary.
posts would be a temporary addition to the strength of the cadre, unless it is made clear to the contrary that the temporary posts are for a certain duration or the appointments to temporary posts are of an ad hoc nature till such time as recruitment according to rules is made.
In the absence of any such provision, persons holding permanent posts and temporary posts would become the members of the service provided the recruitment to the temporary posts is legal and valid.
Once the recruitment is legal and valid, there is no difference between the holders of permanent posts and temporary posts insofar as it relates to all the numbers of the service.
" In the instant case, the Union of India accepted the position that recruitment through the Union Public Service Commission had been regularly made and the post was not a temporary one but as the performance of the appellant had not been of a high order, he had been placed below treating him to be temporary a position for which there is not much of legal support.
Some controversy was raised as to whether Janardhana 's decision would operate as res judicata in view of the fact that the appellant had been impleaded in the litigation.
Janardhana 's civil appeal before this Court arose out of a writ petition in the High Court and as paragraph 36 of the judgment at p. 625 of the Report indicates: "By an order made by the High Court the names of respondents 3 to 4 18 (in which the appel lant was included) were deleted since notices could not be served on them on account of the difficulty in ascertaining their present 771 addresses on their transfers subsequent to the filing of these petitions.
" It is not the case of the respondent that the appellant had volunteered to appear in the writ petition or before this Court in the Janardhana 's dispute.
Strictly speaking, Janardhana 's decision may not have the effect of res Judicata for the present litigation, but we do not think in a dispute of the present dimension where hundreds of employees are concerned, it would be proper for the employees to litigate over the same issues from time to time.
If it would be open to members of the service from time to time to raise disputes of the same nature and intro duce uncertainty into the Service, that would affect the efficiency of the service and would be against public inter est.
That also would call into jeopardy the guarantees of public service and expose the officers into an atmosphere of insecurity.
A seniority list of a cadre should not be made the subject matter of debate too often.
We have, therefore, to consider the claim of the appellant keeping these aspects in view and referring to the conclusions reached in Janard hana 's case.
At p. 625 of the Report this Court came to the conclusion: "In our opinion, there was no justification for redrawing the seniority list affecting persons recruited or promoted prior to 1969 when the rules acquired statutory character.
Therefore, the 1974 seniority list is liable to be quashed and the two 1963 and 1967 sen iority lists must hold the field.
" The District Judge in appeal in paragraph 10 of his judgment came to find that the appellant 's placement was raised from serial 483 to 89.
The High Court in its judgment has indi cated: "Shri Sharma went up in appeal but the same was dismissed by the learned District Judge.
He affirmed the findings of the trial Judge on issues 1 and 3.
He also held that the suit of the appellant was barred by limitation.
During the pendency of appellant 's appeal before the District Judge, Bachan Singh 's case had been decided by the Supreme Court and as a conse quence thereof, his seniority was changed from St. No. 483 in 1967 seniority list to Sr. No. 89.
So he got the main relief.
His claim remained only for his reconsideration for promotion on the basis of his new ranking on the seniority list." 772 The High Court has again indicated: "Pursuant to the judgment in Bachan Singh 's case, fresh Seniority list was prepared in 1974 in which the appellant 's name figured at St. No. 89 instead of 483.
This list was challenged by A. Janardhan.
His appeal was allowed and the said list was quashed.
It was further held that 'there is nothing to suggest that 1963 and 1967 seniority lists were provi sional or were likely to be re drawn.
There fore, till the 1949 Rules acquired statutory character in 1969, the seniority lists of 1963 and 1967 in respect of Assistant Executive Engineers were quite legal and valid and were drawn upon the basis on the principle which satisfies the test Article 16 '.
So the senior ity lists of 1963 and 1967 were upheld.
The grievance of the appellant stands disposed of by this judgment to which he was a party.
" As we have already pointed out, appellant was not a party in Janardhana 's case inasmuch as no notice was taken to him and the case was disposed of without affording an opportunity to him of being heard.
The plea of limitation raised by the respondents should not have been upheld in the facts of the case.
As already indicated, the seniority list was being changed from time to time.
The appellant has represented against the 1967 senior ity list.
The dispute was already pending before this Court in Bachan Singh 's case.
In fact, without waiting for the judgment of this Court in Bachan Singh 's case, the plaintiff came to Court on 22.3.
The appellant was entitled to make a representation against the seniority list and rejec tion of the representation actually would have given him the cause of action.
In these circumstances, non suiting himon the plea of limitation would not at all be justified.
We, therefore, do not accept the conclusion of the High Court that plaintiffs action was barred by limitation.
We take it that when this Court in Janardhana 's case held on the facts placed before it that 'there was no justi fication made out for redrawing the seniority list affecting persons recruited or promoted prior to 1969 ' it meant a total topsy turvying of the list.
Individual claims, if any, could not have been barred from consideration if by the time Janardhana 's case came to be disposed of, claims were pend ing adjudication before the Court.
Appellant 's case was already before the 773 High Court by the time Janardhana 's appeal was disposed of by this Court.
The appellant was certainly entitled to be treated as a recruit of 1960 and to be placed above the recruits of 1961.
The stand taken before this Court in the counter affidavit filed by respondent No. 1 that it was open to him to appear in the competitive examination in the succeeding year, that is, in the year 1961 to better his position is no justification for depriving him of his legit imate claim to a higher placement in the seniority in the cadre.
While we affirm the view in Janardhana 's case that the seniority list should not be disturbed, the appellant 's claim has also to be accommodated.
In these circumstances, we direct that the appellant 's position shall be shown below the recruits of 1960 and above those of 1961 and he may be bracketed with one who has been assigned that position and an appropriate rectification shall be made in the seniority list of 1967 on the basis of the placement in terms of this judgment.
His entitlement to promotion on the basis of such position shall be considered by the respondents within four months hence.
The appellant shall be entitled to his costs throughout.
Hearing fee is assessed at Rs.2,000.
G.N. Appeal allowed.
| IN-Abs | Appellant joined the Military Engineering Service as Assistant Executive Engineer, upon his selection by the Union Public Service Commission through the combined Engi neering Service Examination held in 1960.
He represented that his previous service in Central Government should be considered in fixing his seniority.
in the seniority list published, the appellant 's name was shown at 483rd position.
The appellant made a representation against the lower place ment.
Departmental Promotion Committee did not consider him for promotion because of the lower placement.
Challenging the lower placement, the appellant filed a suit before the Civil Court which was dismissed.
His first appeal before the District Judge as also the second appeal before the High Court met the same fate.
This appeal, by special leave, is against the judgment of the High Court.
The respondents resisted the appeal on grounds of limitation and res judicata.
Allowing the appeal, HELD: 1.1.
There has been no dispute in the Courts below, and here too, that the appellant has been legally recruited to the service.
The Union of India accepted the position that recruitment through the Union Public Service Commission had been regularly made and the post was not a temporary one but as the performance of the appellant had not been of a high order, he had been placed below treating him to be temporary a position for which there is not much of legal support.
[770B C, E, F] 1.2.
Strictly speaking, Janardhana 's decision may not have the effect of res judicata for the present litigation, but in a dispute of the present dimension where hundreds of employees are concerned, it would not be proper for the employees to litigate over the same issue 768 from time to time.
If it would be open to members of the service from time to time to raise disputes of the same nature and introduce uncertainty into the service, that would affect the efficiency of the service and would be against public interest.
That also would call into jeopardy the guarantees of public service and expose the officers into an atmosphere of insecurity.
A seniority list of a cadre should not be made the subject matter of debate too often.
[771B D] A. Janardhana vs Union of India & Ors., ; ; affirmed.
The plea of limitation raised by the respondents should not have been upheld in the facts of the case.
The seniority list was being changed from time to time.
The appellant had represented against the 1967 seniority list.
The dispute was already pending before this Court in Bachan Singh 's case.
In fact, without waiting for the judgment of this Court in that case, the plaintiff came to Court on 22.3.1971.
The appellant was entitled to make a representa tion against the seniority list and rejection of the repre sentation actually would have given him the cause of action.
In these circumstances, non suiting him on the plea of limitation would not at all be justified.
[772E G] Bachan Singh vs Union of India, ; , referred to.
Individual claims, could not have been barred from consideration if by the time Janardhana 's case came to be disposed of, claims were pending adjudication before the Court.
Appellant 's case was already before the High Court by the time Janardhana 's appeal was disposed of by this Court.
The stand taken by Respondent No. 1 that it was open to the appellant to appear in the competitive examination in the succeeding year to better his position, is no justification for depriving him of his legitimate claim to a higher place ment in the seniority in the cadre.
Appellant 's position shall be shown below the recuirts of 1960 and above those of 1961 and he may be bracketed with one who has been assigned that position and an appropriate rectification shall be made in the seniority list of 1967 on the basis of the placement in terms of this judgment.
His entitlement to promotion on the basis of such position shall be considered by the re spondents within four months hence.
[772H; 773A D]
|
ivil Appeal No. 2183 of 1988.
From the Judgment and Order dated 25.3.1988 of the Allahabad High Court in F.A.F.O. No. 951 of 1987.
N.D.B. Raju and N. Ganapathy for the Appellants.
M.S. Ganesh and Murlidhar for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
The question raised in this appeal relates to the liability of the owner of an insured vehicle to pay compensation for the accident caused by negligence of an unlicensed driver.
The facts which are now found are these.
A constable while returning home after performing his duties was knocked down by a tractor owned by appellant No. 1 Kashiram Yadav.
Appellant No. 2 Raghuraj was then driv ing the tractor.
He had no driving licence.
The widow of the constable and her children claimed compensation from the appellants and the insurer.
The owner resisted the claim contending inter alia that he had already sold the vehicle to a third party and that vehicle was driven by the licensed driver Gaya Prasad at the time of the accident.
Both these facts were not established.
The Tribunal held that Raghuraj Singh was driving the tractor and the accident took place due to his rash and negligent driving and not due to any fault on the part of the constable.
Since Raghuraj Singh had no driving licence, the Tribunal held that the 813 owner of the vehicle alone is liable to pay the compensa tion.
Having reached that conclusion, the Tribunal deter mined the amount of compensation payable to the claimants.
A sum of Rs.96,000 was awarded with interest at the rate of 12 per cent per annum till realisation.
This award of the Tribunal has been affirmed by the High Court.
We are not concerned with the quantum of compensation determined by the Tribunal.
That question has not been agitated before us.
The only contention that was canvassed before us is as to the liability of the insurer to indemnify the owner to satisfy the judgment against him.
Section 96 of the imposes duty on the insurer to satisfy judgments against persons insured in respect of third party risks.
Sub section 2 thereof provides exception to the liability of the insurer.
Sub sec.
2(b) of sec.
96 provides that the insurer is not liable to satisfy the judgments against the persons insured if there has been a breach of a specified condition of the policy.
One of the conditions of the policy specified under clause (ii) is that the vehicle should not be driven by any person who is not duly licensed, or by any person who has been disqualified from holding or obtaining driving licence during the period of disqualification.
It is not in dispute that the certificate of insurance concerned in this case contains this condition.
If, therefore, there is a breach of this condition, the insurer will not be liable to indemnify the owner.
Counsel for the appellants however, submitted that insurer alone would be liable to pay the award amount even though the tractor was not driven by a licensed driver.
In support of the contention, he placed reliance on the deci sion of this Court in Skandia Insurance Co. Ltd. vs Kokila ben Chandravadan and Ors., [1987] 2 SCC 654.
We do not think that that decision has any relevance to the present case.
There the facts found were quite different.
The. vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence.
In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on.
The ignition key was at the ignition lock and not in the cabin of the truck.
The driver has asked the cleaner to take care of the truck.
In fact the driver had left the truck in the care of the clean er.
The cleaner meddled with the vehicle and caused the accident.
The question arose whether the insured (owner) had committed a breach of the condition incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence.
This Court expressed the view that it is 814 only when the insured himself .entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed preach of the condition of the policy.
It must be established by the Insurance Company that the breach is on the part of the insured.
Unless the insured is at fault and is guilty of a breach of the condition, the insur er cannot escape from the obligation to indemnify the in sured.
It was also observed that when the insured has done everything within his power in as much as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach.
We affirm and reiterate the statement of law laid down in the above case.
We may also state that without the knowl edge of the insured, if by driver 's acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured.
The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance.
But in the present case, the onus of the insurer has been discharged from the evidence of the insured himself.
The insured took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to a third party.
This has not been proved.
Secondly, he took a defence stating that the vehicle at the relevant time was driven by a licensed driver, Gaya Prasad, (PW 2).
This was proved to be false:There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of the fatal accident.
With these distin guishing features in the present case, we do not think that the ratio of the decision in Skandia Insurance Co. Ltd. 's case could be called to aid the appellants.
In the result, the appeal fails and is dismissed.
In the facts and circumstances of the case, we make no order as to costs.
G.N. Appeal dismissed.
| IN-Abs | A Constable while returning home after performing his duties was knocked down by a tractor owned by appellant No. 1, and driven by appellant No. 2 who had no driving licence.
As a result of the accident, the Constable died and his widow and children claimed compensation, before the Tribu nal.
Awarding a compensation of Rs.96,000 the Tribunal held that at the time of the accident the vehicle belonged to appellant No. 1 and was driven by appellant No. 2, who had no driving licence, that the accident took place due to his rash and negligent driving, and appellant No. 1 alone was liable to pay the compensation.
The appellant has come in appeal, by special leave, contending that the insurer alone would be liable to pay the compensation amount, even though the tractor was not driven by a licensed driver.
Dismissing the appeal, HELD: 1.
Section 96 of the imposes a duty on the insurer to satisfy judgments against persons insured in respect of third party risks.
Sub section 2 thereof provides exception to the liability of the insur er.
Sub sec.
2(b) of sec.
96 provides that the insurer is not liable to satisfy the judgments against the persons insured if there has been a breach of a specified condition of the policy.
One of the conditions of the policy specified under clause (ii) is that the vehicle should not be driven by any person who is not duly licensed or by any person, who has been disqualified from holding or obtaining driving licence, during the period of disqualification.
It is not in dispute that the certificate of insurance concerned in this case contains this condition.
If, therefore, there is a breach of this condition, the insurer will not be liable to indemnify the owner.
[813C E] 812 2.
In the present case, the onus of the insurer has been discharged from the evidence of the insured himself.
The insured took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to a third party.
This had not been proved.
Secondly, he took a defence stating that the vehicle at the relevant time was driven ' by a licensed driver.
This was proved to be false.
There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of the fatal accident.
[814D F] Skandia Insurance Co. Ltd. vs Kokilaben Chandravadan and Ors., [1987] 2 SCC 654, distinguished.
|
ivil Appeal No. 3050 of 1989.
From the Judgment and Order dated 21.12.87 of the Orissa Administrative Tribunal in T.A. No. 161 of 1987.
P.P. Rao and C.S.S. Rao for the Appellant.
P.N. Misra and A.K. Panda for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
Leave granted.
This appeal is directed against the judgment of the Orissa Administrative Tribunal, Bhubaneswar dated 21.12.
1987 dismissing the appellant 's suit challenging his pre mature retirement from service.
The appellant, a qualified Electrical Engineer with training in West Germany, joined service of Orissa Govern ment as an Assistant Engineer (Electrical) in 1955.
In 1961 he was promoted to the rank of Executive Engineer (Electri cal) and deputed to the Orissa State Electricity Board.
In March, 1976 he was promoted to the post of Superintending Engineer (Electrical) on the basis of merit.
In 1979 while working on the post of Superintending Engineer (Electrical) he was allowed to cross the Efficiency Bar with effect from 1.1.1979.
He also officiated on the post of Chief Engineer (Electrical) in Orissa State Electricity Board.
Since he had completed 50 years of age a Review Committee constituted by the Government of Orissa considered his service record in October, 1983 for determining his suitability for retention in service in accordance with the first proviso to Rule 71(a) of the Orissa Service Code.
On the recommendation of the 806 Review Committee the State Government by its order dated 10.11.1983 pre maturely retired the appellant from service.
He filed a civil suit before the Subordinate Judge, Bhuba neswar challenging the validity of his pre mature retirement on a number of grounds.
On the Constitution of the Orissa Administrative Tribunal the suit was transferred to the Administrative Tribunal, Bhubaneswar, under Section 29 of the Administrative Tribunals Act.
The Tribunal by its order dated 21.12.1987 dismissed the suit and upheld the validity of appellant 's pre mature retirement.
Hence this appeal.
The Tribunal held that the Review Committee on an as sessment of the overall performance of the appellant 's conduct had bona fide made recommendations to the State Government that the appellant 's retention in service was not in public interest, and in pursuance thereof the State Government retired the appellant pre maturely.
The Tribunal further held that the order of pre mature retirement does not suffer from any legal infirmity.
Learned counsel for the appellant urged that the Tribunal committed serious error in upholding the order of pre mature retirement as the recom mendation of the Review Committee was vitiated as it was rounded on irrelevant and inadmissible material.
In this connection, he urged that the Review Committee had consid ered a number of adverse remarks contained in the appel lant 's service record for the remote past years which had no relevance and it had further considered adverse entries relating to the recent years although those adverse entries had not become final as the representations against those adverse entries had not been considered of by the State Government.
He urged that while considering overall perform ance of the appellant the Review Committee was influenced by the entries of remote past, which had lost their signifi cance as inspite of those entries the appellant had been promoted to higher post on merit and he had also been per mitted to cross Efficiency Bar.
Before we consider these submissions it would be pertinent to refer of the recommen dations of the Review Committee which are as under: "From the year 1969 70 to 1982 83, Shri Bai dyanath Mohapatra has got adverse remarks for the years 1969 70, 1970 71, 1972 73, 1975 76, 1976 77, 1981 82 and 1982 83.
Although he was an intelligent officer, he did not apply his mind and did not bestow adequate zeal in his work.
He did neither assume responsibility nor did he work hard for which the Chief Engineer had to deal with his Executive Engineers and Assistant Engineers directly.
He was found to be too cursory in dealing with the problems and adept in 807 putting the responsibilities for deficiencies on others.
His performance during most of the years was found to be of average standard.
The Committee, considering his overall perform ance, was of the view that his continuance in service is not desirable in public interest and that he be retired prematurely.
This officer would have retired on superannuation on 30.9.1989." No exception can be taken to the Government 's opinion in retiring the appellant pre maturely on the basis of the aforesaid recommendation of the Review Committee as it clearly indicated that the appellant 's retention in service was not in public interest.
The purpose of the Rule confer ring power on the Government to retire Government servants pre maturely is to energise its machinery by "chopping of the dead wood" as held by this Court in Union of India vs J.N. Sinha, [1971] 1 SCR 791.
The question which falls for consideration is whether the Review Committee was justified in making its recommendations on the basis of adverse en tries awarded to the appellant in remote past especially when the appellant had been promoted to the post of Superin tending Engineer in 1976 and he had further been permitted to cross Efficiency Bar in 1979.
The adverse entries relat ing to the years 1969 70, 1970 71, 1972 73 and 1975 76, had lost all significance, because inspite of those entries the appellant was considered to be an intelligent and efficient officer and in that view he was promoted to the post of Superintending Engineer.
If those entries did not reflect deficiency in appellant 's work and conduct for the purpose of promotion, it is difficult to comprehend as to how those adverse entries could be pressed into service for retiring him pre maturely.
When a Government servant is promoted to a higher post on the basis of merit and selection, adverse entries if any contained in his service record lose their significance and those remain on record as part of past history.
It would be unjust to curtail the service career of Government servant on the basis of those entries in the absence of any significant fall in his performance after his promotion.
The adverse entries for the years 1969 70, 1970 71, 1972 73 and 1975 76 were communicated in a lot to the appel lant in 1978, although under the instructions issued by the State Government the adverse entries must be communicated by December of each year.
The purpose of communicating adverse entries to the Government servant is to inform him regarding his deficiency in work and conduct and to afford him an opportunity to make, amend, and improvement in his work ,and further if the entries are not justified the communication 808 affords him an opportunity to make representation.
If the adverse remarks awarded to a Government servant are communi cated to him after several years, the object of communicat ing entries is defeated.
It is therefore imperative that the adverse entries awarded to a Government servant must be communicated to him within a reasonable period to afford him opportunity to improve his work and conduct and also to make representation in the event of the entry being unjustired.
In the instant case, adverse entries relating to a number of years were communicated to the appellant in one 101 under a letter dated 27.2.1978 contrary to the instructions issued by the State Government as contained in Circular No. 29 dated 19.2.1953.
Belated communication of the entries re sulted into denial of reasonable opportunity to the appel lant to improve his performance.
Further since adverse remarks for several years were communicated with inordinate delay it was impossible for the appellant to make an effec tive representation against the same.
The appellant 's repre sentation against the aforesaid entries was rejected on 12.3.1981 on the ground that the representation was barred by time.
Since the communication of the adverse entries was itself highly belated the representation against those adverse remarks should have been considered on merits and the same could not be rejected on the alleged ground of delay as the Government itself was guilty of inordinate delay in communicating the adverse remarks to the appellant.
Adverse remarks relating to the years 1981 82 and 1982 83 were taken into account by the Review Committee in formu lating its opinion against the appellant 's ,retention in service.
The appellant 's representation against those en tries had not been considered, yet the Review Committee placed reliance on those entries.
In fact, the adverse remarks for the year 1981 82 were communicated to the appel lant under the letter dated 21.6.1983 which was received by him on 5.7.1983, and as regards the adverse remarks for the 'year 1982 83 these were communicated to the appellant under the letter dated 29.7.1983 which was received by him on 9.8.1983.
He made representation to the Government against the aforesaid adverse remarks on 1.11.1983 but before the representation could be considered by the Government the impugned order of pre mature retirement was made on 10.11.1983.
These facts make it amply clear that the appel lant 's representation against the aforesaid adverse remarks for the years 1981 82 and 1982 83 was pending and the same had not been considered or disposed of on the date the impugned order was issued.
It is settled view that it is not permissible to pre maturely retire a Government servant on the basis of adverse entries, representations against 809 which are not considered and disposed of.
Brij Mohan Chopra vs State of Punjab, ; When this aspect was pressed before the Tribunal, it took a peculiar view in holding that since the representation had not been made before the date on which the Review Committee had considered the appellant 's case, the Committee need not have waited for the disposal of the appellant 's representation and it was free to take into account the adverse remarks awarded to the appellant in the years 1981 82 and 1982 83.
The appellant placed reliance on the decision of this Court in Brij Mohan Chopra 's case but the Tribunal by some in volved logic avoided giving effect to the law laid down by this Court.
It is not disputed that in the State of Orissa a Government servant has right to make representation within six months from the date of communication of the adverse remarks.
The appellant had right to make representation against the adverse entries within six months period, there fore, the adverse entries awarded to him in the years 1981 82 and 1982 83 could not be taken into account either by the Review Committee or by the State Government in forming the requisite opinion as contemplated by Rule 71(1)(a) of the Orissa Service Code, before the expiry of the period of six months.
Since the period prescribed for making representa tion against the adverse remarks for the years 1981 82 and 1982 83 had not expired, the proper course for the Review Committee should have been not to consider those entries or in the alternative, the Review Committee should have waited for the decision of the Government on the appellant 's repre sentation.
The view taken by the Tribunal is not sustainable in law.
There is a disturbing feature of this case which viti ates Tribunal 's order.
Shri Gian Chand, Chairman of the Tribunal, ex Chief Secretary of the State of Orissa, was member of the Review Committee which made recommendation against the appellant for his pre mature retirement, and in pursuance thereof the State Government had issued the im pugned order.
It appears that Sh.
Gian Chand, had later been appointed as Chairman of the Administrative Tribunal.
Shri Gian Chand, participated in the proceedings of the Tribunal, and he is party to the decision of the Tribunal.
These facts show that Mr. Gian Chand, who had administratively taken a decision against the appellant, considered the matter judi cially as a Chairman of the Tribunal, thereby he acted as a Judge of his own cause.
While it is true that there is no allegation of personal bias against Sh.
Gian Chand, he may have acted bona fide, nonetheless, the principles of natural justice, fair play, and judicial discipline required that he should have abstained from hearing the appellant 's case.
While considering the appellant 's case the Tri 810 bunal exercised judicial powers and it was required to act judicially, as the jurisdiction of the Civil Court and High Court have been excluded and vested in the Administrative Tribunal.
The Members of the Tribunal must follow rules of natural justice in administering justice like Judges, they should not sit in judgment on their own decisions.
Gian Chand was disqualified to hear the appellant 's case.
The order of the Tribunal is vitiated on this ground but as the appellant had not raised any objection before the Tribunal against the participation of Sh.
Gian Chand, we do not consider it necessary to grant relief to the appellant on this ground.
For the aforesaid reasons we hold that the order of pre mature retirement is vitiated and the Tribunal committed error in upholding the same.
We accordingly allow the ap peal, set aside the order of the Tribunal dated 21.12.1987 and also the order of the State Government dated 10.11.
The appellant is entitled to reinstatement with all consequential benefits of service in addition to the costs.
R.S.S. Appeal allowed.
| IN-Abs | The appellant had joined service in the Orissa Govern ment as an Assistant Engineer in 1955, and in 1983 he was working on the post of Superintending Engineer.
Since he had completed 50 years of age, a Review Committee considered his service record for determining his suitability for retention in service in accordance with the first proviso to Rule 71(a) of the Orissa Service Code.
On the recommendation of the Review Committee the State Government by its order dated 10.11.1983 pre maturely retired the appellant from service.
The appellant filed a civil suit challenging the validity of his pre mature retirement.
The suit was transferred to the Administrative Tribunal.
The Tribunal held that the recom mendation of the Review Committee was bona fide and did not suffer from any legal infirmity.
Before this Court, it was contended that the recommenda tion of the Review Committee was vitiated as it was founded on irrelevant and inadmissible material.
It was urged that the Review Committee had considered a number of adverse remarks contained in the appellant 's service record for the remote past years, and had also considered adverse entries relating to recent years although those adverse entries had not become final.
Allowing the appeal and setting aside the order of premature retirement of the appellant, this Court, HELD: (1) The purpose of the Rule conferring power on the Government to retire Government servants prematurely is to energise 804 its machinery by 'chopping of the dead wood '.
[807C] Union of India vs J.N. Sinha, [1971] 1 SCR 791.
(2) When a Government servant is promoted to a higher post on the basis of merit and selection prior adverse entries if any contained in his service record lose their significance and those remain on record as part of past history.
It would, therefore, be unjust to curtail the service career of Government servant on the basis of those entries in the absence of any significant fail in his per formance after his promotion.
[807F] (3) If the adverse remarks awarded to a Government servant are communicated to him after several years, the object of communicating entries is defeated.
It is, there fore, imperative that the adverse entries awarded to a Government servant must he communicated to him within a reasonable period to afford him opportunity to improve his work and conduct and also to make representation in the event of the entry being unjustified.
In the instant case, belated communication of the entries resulted into denial of reasonable opportunity to the appellant to improve his performance.
[808A B] (4) The appellant 's representation against the adverse entries relating to a number of years was rejected on the ground that the representation was barred by time.
Since the communication of the adverse entries was itself highly belated, the representation against those adverse remarks should have been considered on merits and the same could not be rejected on the alleged ground of delay as the Government itself was guilty of inordinate delay in communicating the adverse remarks to the appellant.
[808D] (5) The appellant had a right to make representation against the adverse entries within six months period.
There fore, the adverse entries awarded to the appellant in the years 1981 82 and 1982 83 could not be taken into account either by the Review Committee or by the State Government in forming the requisite opinion contemplated by Rule 71(1)(a) of the Orissa Service Code, before the expiry of the period of six months.
It is settled view that it is not permissible to prematurely retire a Government servant on the basis of adverse entries, representations against which are not considered and disposed of.
[809C D, 808H 809A] Brij Mohan Chopra vs State of Punjab, ; (6) The Members of the Tribunal must follow rules of natural 805 justice in administering justice like judges.
They should not sit in judgment on their own decisions.
In the instant case Shri Gian Chand, who had administratively taken a decision as Chief Secretary against the Appellant, consid ered the matter judiciary as the Chairman of the Administra tive Tribunal, thereby he acted as a Judge of his own cause.
While it is true that there is no allegation of personal bias against Shri Gian Chand, he may have acted bona fide, nevertheless, the principles of natural justice, fair play, and judicial discipline required that he should have ab stained from hearing the appellant 's case.
[810B, 809F H]
|
: Criminal Appeal Nos. 380 of 1989 and 323 of 1988.
From the Judgment and Order dated 28.1.1988 of the Allahabad High Court in Crl.
Appln.
No. 995 of 1987.
G. Ramaswamy, Additional Solicitor General, Anil Dev Singh, Miss A. Subhashini and R.P. Kapur for the Appellants.
R.L. Kohli, Manoj Saxena and R.D. Upadhyay for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
These two appeals by special leave, one pre ferred by the State of U .P. and the other by the State Bank of India, are directed against the judgment of the Allahabad High Court whereby the High Court has quashed the criminal proceedings being Crime Case No. 40 of 1983 in the Court of Special Judge, Anti Corruption, only as against the respond ent R.K. Srivastava.
In quashing the proceedings in the exercise of its jurisdiction under section 482 Cr.
P.C., the High Court took the view that allegations made in the First Information Report 836 (FIR) did not constitute any offence.
In order to appreciate the view of the High Court, it is necessary to refer to the FIR which reads as follows: "An information has been received that Shri P.C. Saxena and Shri Ram Kumar Srivastava while posted and functioning as Accountant and Clerk cum Godown Keeper in the State Bank of India, Agriculture Development Branch, Budaun, respectively entered into a criminal conspira cy with Shri Sarwant Singh and his wife Smt.
Rajwant Kaur, Props.
of M/s. National Mill Store, Budaun, during the month of June, 1982 to cheat the State Bank of India, Budaun, and in pursuance of the said criminal conspiracy an.amount of Rs.54,600 ' was withdrawn on the basis of false credit entry made in the books of accounts of the Bank and connected credit and debit vouchers were also prepared and passed by the accused employees of the Bank and payment were made to the accused persons, namely, Shri Sarwant Singh and Smt.
Rajwant Kaur who tendered cheque No. 348459 dated 2.5.
1982 for Rs.18,600 cheque No. 348482 for Rs. 19,200, date 2.6.
1982 and cheque No. 502206 dated 2.6.82 for Rs. 16,800 = 54,600.
The above facts constitute offence punishable u/s 120 B, 420, 468,471 I.P.C. and 5(2) r/w 5(1)(d) of PC Act, 1947.
A regular case is therefore regis tered and its investigation is entrusted to Shri V.P. Arya, Inspector of this establish ment." According to the FIR, as against three cheques of the aggre gate amount of Rs.54,600, presumably of three different Banks, a credit entry was made in the accounts of M/s. National Mill Stores Co., Budaun, and M/s. New Manufacturing Co., Budaun, and their partners, Sardar Sarwant Singh and his wife Smt.
Rajwant Kaur, in the State Bank of India and the said sum of Rs.54,600 was allowed to be withdrawn by them by the respondent and the accused P.C. Saxena.
The allegations in the FIR appear to be vague and al though it is alleged that the respondent and the accused P.C. Saxena made false credit entries in the books of ac counts of the Bank and connected credit and debit vouchers were also prepared and passed by them, no 837 particulars of the same have been given.
It appears from the chargesheet that the said Shri Sarwant Singh and his wife Smt.
Rajwant Kaur and their firms, namely, M/s. National Mill Stores Co., Budaun, and M/s. New ManufaCturing Co., Budaun, have current accounts in the State Bank of India, Budaun.
After the said three cheques amounting to Rs.54,600 were tendered, the respondent and the accused P.C. Saxena sent the said cheques for clearance and allowed the said Shri Sarwant Singh and his wife Smt.
Rajwant Kaur to with draw the sum of Rs. 54,600 from their current account.
It is now a well settled principle of law that if the allegations made in the FIR are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed.
In the instant case, on the basis of the said FIR the respondent and the said P.C. Saxena and Shri Sarwant Singh were charged under sections 120 B, 420, 468 and 471 I.P.C. and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947.
According to the appellant, as no prima facie case was made out against Smt.
Rajwant Kaur, wife of Shri Sarwant Singh, she has been dropped from the array of the accused persons.
The question is whether the facts disclosed in the FIR constitute the offences with which the accused have been charged.
It is manifestly clear from the allegations in the FIR that the respondent or the other accused had no inten tion whatsoever to make any wrongful gain or to make any wrongful loss to the Bank.
They had accepted the said three cheques amounting to Rs.54,600 and sent the same for clear ance after debiting the LOC account.
The said cheques have been encashed and the money was received by the State Bank of India.
It may be that there was some delay in crediting the LOC account or that the money against the three cheques were credited in the accounts of the said Shri Sarwant Singh and his wife, but the allegations made either in the FIR or in the charge sheet do not show that the respondent and the said P.C. Saxena had acted dishonestly, that is to say, acted with a deliberate intention to cause wrongful gain or wrongful loss.
In our opinion, the High Court has rightly held that the allegations made in the FIR do not constitute any offence of cheating, nor do they constitute any offence of forgery.
It is true that it has been alleged that the said sum of Rs.54,600 was withdrawn on the basis of false credit entries made in the books of accounts of the Bank and connected credit and debit vouchers were also prepared and passed by the respondent and the other accused.
When the said sum of Rs.54,600 838 had been allowed to be withdrawn by the said Shri Sarwant Singh and his wife, necessary entries had to be made in the books of accounts, but it is not understandable how these entries can be characterised as false entries.
No document has been referred to in the FIR as the outcome of forgery.
The High Court has rightly held that as the criminal proceedings have been started against the respondent on the basis of a FIR which does not contain any definite accusa tion, it amounts to an abuse of process of the court and, as such, is liable to be quashed.
We entirely agree with the view expressed by the High Court.
The High Court has quashed the proceedings only as against the respondent No. 1, R.K. Srivastava.
In our opin ion, when the allegations in the FIR are the same against all the accused persons, the entire proceedings as against all the accused persons including the said P.C. Saxena and the said Shri Satwant Singh should be quashed.
Accordingly, while we uphold the judgment of the High Court, we quash the entire criminal proceedings being Crime Case No. 40 of 1983 also as against the accused P.C. Saxena and Shri Sarwant Singh.
The appeals are disposed of as above.
N.P.V. Appeals disposed of.
| IN-Abs | The respondents, two employees of a nationalised Bank and two account holders, were charged with offences punisha ble under Sections 120B, 420, 468, 471 I.P.C. and 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947.
The F.I.R. alleged that the two Bank employees entered into a criminal conspiracy with the two account holders to cheat the Bank and, in pursuance thereof an amount of Rs.54,600 was allowed to be withdrawn by the account hold ers, who had tendered three cheques aggregating to Rs.54,600, on the basis of the false credit entries in the books of accounts of the Bank, and connected credit and debit vouchers were also prepared.
The case against one of the account holders was later dropped.
The High Court quashed the proceedings only against Respondent No. 1 on the ground that the allegations made in the F.I.R. did not constitute any offence of cheating or forgery.
Against this decision, the State as well as the Bank filed appeals in this Court.
Quashing the proceedings against all the respondents, HELD: 1.
If the allegations made in the FIR taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed.
[837C] In the instant case, the Respondent No. 1 and the other accused had accepted the three cheques in question and sent the same for clearance after debiting the LOC account.
The cheques were encashed and the money was received by the Bank.
It may be that there was some delay in crediting the LOC account or that the money against the three 835 cheques were credited in the accounts of the account hold ers, but the allegations made either in the FIR or in the charge sheet do not show that they had acted dishonestly, or with deliberate intention to cause wrongful gain or wrongful loss to the Bank.
When the amount was allowed to be with drawn by the account holders, necessary entries had to be made in the accounts of the Bank and these entries cannot be characterised as false.
No document has been referred to in the FIR as the outcome of forgery.
[837E F, 838A] The High Court was, therefore, right in holding that the allegations made in the FIR did not constitute any offence of cheating or forgery and that as the criminal proceedings had been started on the basis of a FIR which did not contain any definite accusation and it amounted to an abuse of process of the Court, they were liable to be quashed.
[837G, 838B] Since the allegations in the FIR are the same against all the accused persons, the entire proceedings as against all the accused persons should be quashed.
Accordingly, the entire criminal proceedings are quashed.
[838C]
|
ivil Appeal No. 1086 of 1971.
From the Judgment and Order dated 28.4.71 of the Gujarat High Court in S.C.A. No. 671 of 1970.
R.F. Nariman, A.K. Verma and D.N. Misra for the Appellant.
V.J. Francis, (N.P.), Krishan Kumar, Vimal Dave & Co., M.N. Shroff, (N.P.) and Girish Chandra for the Respondent.
The Judgment of,the Court was delivered by OZA, J.
This appeal on certificate by the High Court of Gujarat is filed against the judgment of the Gujarat High Court dated 28th April, 1971 holding Standing Order No. 3 framed under Section 466(1)(A)(f) read with Section 147 of The Bombay Provincial Corporations Act, 1949 ( 'Act ' for short) as illegal and without the authority of law.
This Act applies to the city of Baroda and the present appellant the Municipal Corporation, Baroda is governed by this Act.
It is not in dispute that octroi on the import of goods is chargeable under the scheme of the Act.
Before this Standing Order which is the subject matter of challenge before the High Court and before us, was framed, a trans porter who brought the goods within the limits of the Munic ipal Corporation in view of Section 147 of this Act was to pay the octroi duty chargeable on the goods on the assump tion that the goods have been imported for sale, consumption or use in the limits of the city of Baroda.
Under the scheme as it was in force if the goods were not consumed or sold within the limits of the Municipal Corporation and are taken out on the other end, and if the octroi post authority was satisfied that the goods which had entered are being taken out then the transporter had to get the tax which he had paid at the octroi post refunded.
According to the appellant corporation this procedure took time at both the ends and for those transporters who were carrying goods which only were in transit in the city of Baroda still had to suffer the inconvenience of paying the octroi duty when they en tered the city limits and then satisfy the authorities at the post from where they went out of town and also had to pay first the tax and then claim a refund, in order to avoid inconvenience and the burden on the transporter this Stand ing Order was provided so that when a transporter enters the corporation limits with goods which are only in transit and not to be 865 unloaded for sale or consumption within the corporation limits and if the transporter so chooses on payment of supervision fees the transporter can carry the goods through the corporation limits without payment of octroi under the supervision of the staff of the corporation and for this purpose under this Standing Order fee of Rs.2 per heavy vehicle was prescribed.
It is alleged that originally the fee suggested was Rs.5 but on a representation made by the respondent association itself this was reduced to Rs.2 per vehicle.
By the impugned judgment, the High Court of Gujarat came to the conclusion that under Section 466(1)(A)(f) of the Act no doubt the Commissioner had the authority to frame stand ing orders but he can only frame standing orders in respect of goods on which octroi was payable under Section 466(1)(A)(f) and as the goods admittedly for which this fee was prescribed were goods not to be imported for sale or consumption the octroi was not payable thereon and therefore no standing orders could be framed under Section 466(1)(A)(f) and therefore standing order providing for fees as discussed above was beyond the authority of the Commis sioner under this Act.
The High Court also accepted the second contention of the respondent that although the Corporation claim to charge the fee as a fee for the convenience of the transporter but after examining the scheme, the learned Judges of the High Court came to the conclusion that there is no quid pro quo established nor it is established that the charge and the collection made on the basis of this charge had any ration ale ratio with the services rendered by the corporation.
Aggrieved by this decision of the High Court the Municipal Corporation has come up in appeal.
The main contention advanced on behalf of the appellant was that imposition of this fee by the Corporation could not be said to be an imposition as it was optional, as when a transporter brings goods and enters into the Corporation limits it was open to him either to choose to take advantage of this Standing Order by paying supervision fees and taking the goods straight under the supervision of the Corporation authorities without ' the payment of octroi duty but if a transporter chooses not to take advantage of this Standing Order it was not compulsory and it was open to the trans porter to pay the octroi in accordance with the normal rule and follow the normal procedure by satisfying the checkpost authorities on the other end and claim refund and get it after following the due procedure.
It was therefore contend ed that in fact this was an option given to the transporter so that if they so 866 choose they may follow this Standing Order and save them selves from the hardship of paying the octroi and then claiming the refund and for that purpose stopping at the entry checkpost and again at the exit checkpost and also to satisfy the checkpost authorities that the goods which had entered the corporation limits are being taken out in the same state and it also involved handling of sum by the transporter so that it may be possible for him to pay the octroi on the entry checkpost itself.
It was therefore contended firstly that it being an option given to the transporter, it could not be said to be an imposition or a tax and the question of the authority of the Commissioner does not arise.
That in view of language of Section 466(1)(A)(f) it is clearly with the authority of the Commis sioner to frame Standing Orders, and the Standing Orders had the approval of the Standing Committee and also of the State Government and therefore it could not be said that the Standing Orders are not framed in accordance with Section 466.
It was also contended that the affidavit filed in the High Court by the appellant clearly shows that how this fee is collected and spent for the purpose of giving a facility to the transporter for carrying the goods in transit under the supervision of the corporation authorities so that they have not to suffer the inconvenience and it was contended that in substance therefore the requirement of quid pro quo is satisfied and in fact the fee is charged only to facili tate the transporter in carrying the goods in transit with out payment of octroi and without undue detention in the process of payment of octroi at the entry and claiming refund at the exit.
It is alleged that a notice was issued suggesting this procedure as prescribed in Standing Orders, a representation was made by the respondent association accepting the suggestion of the Corporation but suggested that Rs.5 per vehicle suggested by the Corporation would be too much and it should be reduced to Rs.2 and it was on this representation that in fact the Corporation, the present appellant, chose to reduce the supervision charges to Rs.2 per vehicle.
It was therefore contended that now this is not open to the respondent association to say that this is not in accordance with law.
Learned counsel for the respondent stated that although a representation about the supervision fee was made by the association but it could not be said that there was any agreement entered into by the association nor it could be said that the Association could enter into such an agreement with the corporation.
It was contended that the High Court was right in reaching the conclusion that the Commissioner had no authority under Section 466, and that in fact quid pro quo is not satisfied as no service is rendered to the transporter.
Learned counsel 867 for the parties referred to the decision of this Court on the question of fee and the principle of quidpro quo.
Section 466(1)(A)(f) reads: "466(1) The Commissioner may make standing orders consistent with the provisions of this Act and the rules and by laws in respect of the following matters namely: (A) (a) xxx xxx xxx xxx xxx xxx (f) determining the supervision under which, the routes by which and the time within which goods intended for immediate exportation shall be conveyed out of the City and the fees payable by persons so conveying the goods;" This contemplates the authority with the Commissioner to make Standing orders consistent with this Act, rules or by laws in respect of the Act.
Clause (f) talks of supervision under which and the routes by which and the time when goods introduced for immediate exportation shall be conveyed out of the city and the fee is payable by the person carrying the goods.
It is therefore clear that this clause (f) con templates that Commissioner may by Standing Order prescribe the procedure for the goods which are introduced in the city limits, for immediate exportation and also the fees which could be charged.
It is therefore clear that this provision which confers the authority on the Commissioner to frame Standing Orders do not talk of goods on which octroi is payable.
But Section 466 pertains t9 collection of octroi.
Sub section (2) of this Section provides: "(2) No order made by the Commissioner under clause (A) of sub section (1) shall be valid unless it is approved by the Standing Commit tee and confirmed by the State Government, and no order made by the Commissioner under clause (B) or paragraph (e) of clause (c) of sub section (1) shall be valid unless it is ap proved by the Standing Committee.
" It is not in dispute that these .Standing
Orders have been approved by the Standing Committee and confirmed by the State Government which is clear from the Notification which reads as under: 868 BARODA MUNICIPAL CORPORATION "The Standing Orders made by the Municipal Commissioner, Baroda Municipal Corporation, Baroda under Section 466(1)(A)(f) of the Bombay Provincial Municipal Corporation Act, 1949 vide his order No. 2441 dated 16.8.69 and approved by the Standing Committee under its Resolution No. 882 dated 28th Novem ber, 1969 and confirmed by Government under their Resolution P.H.D. No. BMC 4470 160 P. Dated the I2th March, 1970.
Section 147 of this Act reads: "Until the contrary is proved any goods im ported into the City shall be presumed to have been imported for the purpose of consumption, use or sale therein unless such goods are conveyed from the place of import to the place of export, by such routes, within such time, under such supervision and on payment of such fees therefore as shall be determined by the standing orders.
" It is clear from this Section that when any goods are brought within the corporation limits a presumption arises that they have been brought in for the purposes or sale or consumption and the burden lies on the person who imports the goods to prove that they are not for sale or consumption and it is on the basis of language of Section 147 that the normal procedure before this Standing Order was introduced, was that the goods when entered into the corporation limits, have to stop at the checkpost and pay octroi duty on the goods as provided by the rules.
For getting out of the local limits, the transporter has to satisfy the checkpost author ities that the goods on which he has paid octroi and import ed are being exported out of the city and it is only after satisfying the authorities about the goods on which octroi is paid being exported that the transporter can claim refund of the octroi duty already paid.
It is therefore clear that the language of Section 147 in the scheme of the Octroi clearly indicates a presumption which is a rebuttable pre sumption.
Burden however lay on the transporter to establish that the goods are not for consumption or sale.
So far as this scheme before the introduction of disputed Standing Order is concerned, there is no controversy.
The only con troversy is the Standing Order which has been introduced.
It is also clear that so far as this Standing Order No. 3 is concerned wherein the transporter is to pay a supervision fees it is not compulsory as it is the option of the trans por 869 ter to take advantage of this Standing Order if he so chooses otherwise follow the normal procedure of payment of octroi and claiming refund as is clear from the affidavit filed before the High Court by the appellant 's officer i.e. Octroi Superintendent.
Paragraph 14 of this affidavit reads: "Thus the system of clearing the through traffic on charging normal supervision fees is really in the larger interest of the import ers.
As I have pointed out hereinabove this is not obligatory but purely voluntary and op tional.
Those who do not want to avail of this facility need not avail it and allow the other procedure already indicated hereinabove.
" It is therefore clear that there is no compulsion on the transporter to pay a supervision fee.
It is only an option so that if the transporter wishes to take advantage of this scheme and save time he can choose to follow it.
It is thus clear that so far as the authority of the Commissioner under Section 466 of the Act is concerned and the manner in which the Standing Orders are framed, it is clear that the Commissioner had the authority and the Stand ing Orders have been framed in accordance with procedure prescribed under Section 466 and therefore on that count the judgment of the High Court could not be sustained.
The High Court took the view that the State Legislature could enact Section 466 only if it can be brought within the ambit of Entry 52 of this State list as, that is the only entry which authorises the State Legislature to impose a tax on entry of goods into a local area and the learned Judges felt that as under Section 466 and under the standing order in question a supervision fee is charged on goods which are not for sale or consumption in the local limits.
This could not be justified under Entry 52.
The learned Judges there fore took the view that Standing Orders which the Commis sioner could frame under Section 466 could be in respect of goods on which octroi is payable and not pertaining to the goods on which the octroi is not payable.
It appears that while taking this view the High Court was examining this fees prescribed as a tax and it is on the basis of this that the High Court took the view that no such tax could be levied on goods on which no octroi is payable.
So far as the question as to whether this fees could be said to be a tax is concerned, there is no difficulty as even the learned counsel appearing for the appellant do not contend that it can be said to be a tax and as it is not a tax the imposi tion could not be said to be 870 bad because the State Legislature had no authority to impose it.
It was contended by the learned counsel that in view of Section 147 quoted above any import within the local limits would draw a presumption that it is for consumption or sale and therefore octroi duty on the goods becomes payable.
By this Standing Order, the Corporation has attempted to make it convenient to the transporter not to involve in the payment of octroi duty at the entry and after satisfying the authorities at the exit end claim the refund of the octroi paid, thereby the Corporation intended to help the trans porter in saving time and also in payment of the octroi at one end and later on claiming a refund.
This in fact was the service rendered by the corporation to the benefit of the transporter and this fees which was charged was just to meet the approximate expenses that the Corporation may have to incur to provide this facility as has been clearly stated by the corporation officer in his affidavit before the High Court and in fact even the corporation accepted the sugges tion of the petitioner association when the association suggested to the appellant corporation to reduce this fees from Rs.5 to Rs.2 which is clear from the letter written by the Association to the Corporation dated 31st March, 1970.
As regards this aspect of the matter, the learned Judges of the High Court came to the conclusion that there was no quid pro quo established which could justify the levy of this fees as fees for the services rendered in the interest of the transporter.
In Southern Pharmaceuticals & Chemicals Trichur & Ors. etc.
vs State of Kerala & Ors. etc.
; , this Court after considering the various decision distinguished fees from tax in these words. " 'Fees ' are the amounts paid for a privilege, and are not an obligation, but the payment is voluntary.
Fees are distinguished from taxes in that the chief purpose of a tax is to raise funds,for the support of the Government or for a public purpose, while a fee may be charged for the privilege or benefit conferred, or service rendered or to meet the expenses connected therewith.
Thus, fees are nothing out payment for some special privilege granted or service rendered.
" As regards the principle of quid pro quo rule in the same judgment it was observed: "That is because the Constitution did not contemplate it to be an essential element of a fee that it should be credited to a separate fund and not to the consolidated fund.
It is also 871 increasingly realised that the element of quid pro quo stricto senso is not always a sine qua non of a fee.
It is needless to stress that the element of quid pro quo is not necessarily absent in every tax.
" In the light of these observations if the affidavit filed on behalf of the appellant Corporation explaining the amount expected to be collected and spent in the process of super vision is examined it could not be said as was stated by the High Court that it did not satisfy the quid pro quo princi ple.
It is in this background that the question that this Standing Order does not impose a compulsory levy but it only gives an option to the transporter to take advantage of this provision makes it further clear that it is not a levy or an imposition of tax but merely a fees charged for the privi lege or services rendered to the payer.
In Sreenivasa Gener al Traders & Ors. etc.
vs State of Andhra Pradesh & Ors. etc.
; , this Court considered series of decisions on the question and observed: "There is no generic difference between a tax and a fee.
Both are compulsory exactions of money by public authorities.
Compulsion lies in the fact that payment is enforceable by law against a person inspite of his unwillingness or want of consent.
A levy in the nature of a fee does not cease to be of that character merely because there is an element of compul sion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service.
It is now increasingly realized that merely because the collections for the service rendered or grant of a privi lege or licence are taken to the consolidated fund of the State and not separately appropri ated towards the expenditure for rendering the service is not by itself decisive.
Presumably the attention of the Court in the Shirur Mutt case was not drawn to article 266 of the Consti tution.
The Constitution nowhere contemplates it to be an essential element of fee that it should be credited to a separate fund and not to the consolidated fund.
It is also increas ingly realized that the element of quid pro quo in the strict sense is not always a sine qua non for a fee.
It is needless to stress that the element of quid pro quo is not neces sarily absent in every tax: Constitutional Law of India by H.M. Seervail Vol. 2, 2nd Edn.
p. 1252, para 22.39.
" 872 It is therefore clear that in order to establish a quid pro quo concept it is not necessary to establish exactly that the amount collected is spent on the services rendered as it was further observed in this decision: "The traditional view that there must be actual quid pro quo for a fee has under gone a sea change in the subsequent decisions.
The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public in public interest.
If the element of revenue for general purpose of the State predominates, the levy becomes a tax.
In regard to fees there is, and must always be, correlation between the fee collected and the service intended to be rendered.
In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be bene fitted by it.
The power of any legislature to levy a fee is conditioned by the fact that it must be 'by and large ' a quid pro quo for the services rendered.
However, co relationship between the levy and the services rendered expected is lone of the general character and not of mathematical exactitude.
All that is necessary is that there should be a "reasona ble relationship" between the levy of the fee and the services rendered.
" It is therefore clear that so far as the charging of super vision fees is concerned it reasonably appears to be a charge for the services rendered from the affidavit filed by the Officers of the Appellant Corporation and therefore the High Court was not right in coming to the conclusion that this fees was not justified as it is not established that it reasonably satisfies that it is in consideration of the services or privilege conferred on the transporter on goods in transit.
In our opinion, therefore, the judgment of the High Court could not be sustained.
The appeal is therefore al lowed.
The judgment of the High Court is set aside and it is held that the Standing Order No. 3 passed by the appellant Municipal Corporation is valid and enforceable.
The appel lant shall also be entitled to costs of this appeal.
Costs quantified at Rs.5,000.
R.S.S. Appeal allowed.
| IN-Abs | The respondent who was carrying on the business of transporting goods challenged before the High Court the imposition of supervision fee levied under Standing Order No. 3 on the goods in transit through the limits of the Municipal Corporation of Baroda.
Before the framing of Standing Order No. 3, a transporter was required to pay octroi at the point of entry in the city and claim refund thereof at the point of exit after satisfying the authority that the goods which had entered were being taken out.
Standing Order No. 3 framed under section 466(1)(A)(f) read with section 147 of the Bombay provincial Corporations Act 1949, provided that when a transporter entered into the corporation limits with goods which were only in transit, he could on payment of supervision fee carry the goods through the corporation limits under the supervision of the staff of the Corporation without payment of octroi at the point of entry.
The High Court held Standing Order No. 3 as illegal and without the authority of law.
The High Court observed that under section 466(1)(A)(f) the Commissioner had the authori ty to frame standing orders only in respect of goods on which octroi was payable and as octroi was not payable on the goods which were in transit, no standing orders could be framed under the Section The High Court further held that quid pro quo was not satisfied as no service was rendered to the transporter.
Before this Court it was contended on behalf of the appellant that the levy of supervision fee was optional; the procedure under Standing Order No. 3 was introduced to avoid hardship to the transporter; it was open to him to follow the normal procedure of paying the octroi and claiming refund; the requirement of quid pro quo was in substance 563 satisfied, and the fee was charged only to facilitate the transporter in carrying the goods in transit.
Allowing the appeal, this Court, HELD: (1) The procedure under Standing Order No. 3 is not compulsory and it is the option of the transporter to take advantage of this Standing Order if he so chooses otherwise follow normal procedure of payment of octroi and claiming refund.
[868H 869A] (2) Clause (f) of section 466(1)(A) contemplates that the Commissioner may by standing order prescribed the proce dure for the goods which are introduced in the city limits.
for immediate exportation and also the fees which could be charged.
It is clear that this provision which confers the authority on the Commissioner to frame standing orders does not talk of goods on which octroi is payable.
The Commis sioner therefore had the authority under section 466, and the Standing Orders have been framed in accordance with the procedure prescribed under that section.
[867D E; 869D] (3) It appears that while taking the view that the levy could not be justified under Entry 52 of the State List which authorises the State Legislature to impose a tax on entry of goods into a local area, the High Court was examin ing the fees prescribed as a tax, and it was on that basis that the High Court took the view that no such tax could be levied on goods on which no octroi was payable.
But, as it is not a tax, the imposition could not be said to be bad on the ground that the State Legislature had no authority to impose it.
[869E 870A] (4) In order to establish a quid pro quo concept it is not necessary to establish exactly that the amount collected is spent on the services rendered.
[872A] Sourthen Pharmaceuticals & Chemicals Trichur & Ors. etc.
vs State of Kerala & Ors. etc.
; , and Sreeni vasa General Traders & Ors.
vs State of Andhra Pradesh & Ors.
, ; , referred to.
(5) So far as the charging of supervision fee is con cerned, it reasonably appears to be a charge for the serv ices rendered.
The High Court was, therefore, not right in coming to the conclusion that this fee was not justified because, according to the High Court, it was not established that the fee was in consideration of the services or privi lege conferred on the transporter.
[872F]
|
vil Appeal No. 13041305 of 1987.
From the Judgment and Order dated 7.1.1987 of the Cus toms Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 1120/83 C and 1806 of 1983 C. Soli J. Sorabjee, Ravinder Narain, A.N. Haksar, P.K. Ram and D.N. Misra for the Appellant.
A.K. Ganguli, P. Parmeshwaran, A. Subba Rao and Ms. Sushma Suri for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
These are appeals under section 35L of the (hereinafter referred to as 'the Act ').
The appellant, Tata Oil Mills Company Limited, is engaged in the manufacture of various varieties of soaps.
The present dispute has arisen in relation to its factory at Ghaziabad in the State of Uttar Pradesh.
The dispute pertains to the eligibility of the appellant to the concession granted by the Central Government under Rule 8(1) of the Central Excise Rules, 1944 through notifi cation No. 46 of 1972, subsequently amended by the notifica tion nos.
153 of 1973 dated 24.7.73 and 25 of 1975 dated 1.3.75.
Even though there are three notifications, the point is common and both the appeals involve the same question.
841 The question arises this way.
Ad Valorem excise duty at 20% is levied on soap which falls under item 15 of the first schedule to the Act.
Notification No. 46 of 1972 exempts "such soap as is made from indigenous rice bran oil or or from a mixture of such oil with any other oils from so much of the duty of excise leviable thereon as is equivalent to the amount of duty calculated at the rate of one rupee and fifty paise per metric tonne of such soap for each addition al percentage point increase in the use of such rice bran oil which is in excess of fifteen per cent of the total oils used in the manufacture of such soap.
" To put it in simpler words, the notification intends to grant a concession where the percentage of the rice bran oil used in the manufacture of soap exceeds fifteen per cent of the total oil consump tion in the manufacture.
The extent of exemption is graded according to the percentage of rice bran oil in excess of fifteen per cent.
For example, if the rice bran oil is twenty per cent of the total oils used in the manufacture, the duty exemption will be Rs.7.50 per metric tonne of soap manufactured.
The 1973 notification is on the same lines with the only difference that the duty exemption per metric tonne is Rs.7.50 instead of Rs. 1.50.
The notification of 1975 raised the percentage of rice bran oil referred to in the 1972 notification from fifteen per cent to twenty five per cent but reduced the duty rebate from Rs.7.50 to Rs.3.50 per metric tonne.
Another notification No. 118/75 has been referred to in the papers before us but it has no relevance to the question that falls to be decided here and is left out of account.
The difficulty in the interpretation has arisen because the process of manufacture of soap in the assessee 's factory at Ghaziabad did not involve the use of rice bran oil as such.
This factory manufactured soap from rice bran fatty acid.
The rice bran fatty acid was extracted from rice bran oil in the assessee 's factory elsewhere.
Incidentally, it may be mentioned that the other factory is also licensed under the Excise Act for the manufacture of rice bran fatty acid.
The excise authorities rejected the appellant 's plea for exemption under the first three notifications on the ground that rice bran fatty acid and rice bran oil are technically and commercially two separate commodities.
It was pointed out that the concession under the notifications is available only where soap is made from indigenous rice bran oil and other oils.
This meant that rice bran oil must form part of the process of manufacture of soap in the factory which is manufacturing the soap and claiming the exemption.
The notification will not apply merely because the soap is manufactured out of rice bran fatty acid which in turn has been obtained by hydrolysis of rice bran oil in a different factory (may be one belonging to the same asses see which is a separate 842 unit of manufacture for purpose of excise duty).
The Tribunal confirmed this view.
It considered the terms of notification No. 25/75 and held: "We observe that the concession given under notification No. 25/75 is apparently with a view to encourage the use of rice bran oil in the soap industry.
The point for consideration is whether the rice bran oil for the purpose of benefit of notification should be brought into the factory of manufacturer as such and then subjected to various pretreatments re quired for its use in the soap industry or whether the same could be treated outside the factory and the necessary fraction of the rice bran oil namely rice bran fatty acid required for the manufacture of soap alone could be brought into the factory as raw material and concession availed.
It is not denied that for the use of rice bran oil, the same has neces sarily to be pre treated first and rice bran fatty acid is required to be separated from glycerine.
The appellants in the instant case have only brought in the rice bran fatty acid which has been obtained from rice bran oil by a process of pre treatment in one of their other factories.
It is seen that the Govern ment of India have clarified vide their letter No. P/92/2/72 CH.
III dated 18.7.74 that rice bran oil as such sometimes cannot be used directly and has to be subjected to pre treat ment before use in the manufacture of soap and that the exemption will be admissible in respect of rice bran oil even after pretreat ment for use in the manufacture of soap.
Thus we find that the pre treatment of rice bran oil is required to be done as a matter of necessity for its use in the manufacture of soap.
The short point therefore is whether such treatment should be done in the factory of the manufacturer or could be arranged to be done outside.
In the scheme of Central Excise, the various concessions, levies etc., are in respect of products manufactured by a particu lar licencee in the manufacturing unit so licensed and the necessary mechanism of con trols and accountability is with reference to a particular licensee and the manufacturer.
The eligibility to or the concessional assess ment of a product manufactured by the manufac turer has to be determined with reference to the particular manufacturer subject to the fulfilment of the conditions as may be set out in the rele 843 vant concessional notification.
In the instant case, a verification will be required to be done in respect of the following: (1) The nature of the oil used whether rice bran oil or otherwise; (2) The quantum used; (3) the processes of pre treatment carried out on ,the rice bran oil and the fraction thereof used for the soap making.
Now, if the rice bran oil has been pre treated outside the appellant 's factory, it is not possible for (the) jurisdictional authority to verify the facts in regard to above." The Tribunal observed that concessional rates are allowed as incentives for use of certain raw materials and these rates are determined after taking into consideration the economics of operation involving the use of the said material in the manufacturing process in the manufacturer 's factory.
Holding that the notification did not envisage the use of rice bran fatty acid and it is the rice bran oil which is required to be used in the manufacture of soap for concessional assess ment purposes, the Tribunal dismissed the appeals of the assessee.
Hence these appeals.
We are of opinion that the view taken by the Excise Authorities as well as by the Tribunal proceeds upon too narrow an interpretation of the notification.
It is true, as Mr. Ganguli contended, that an assessee claiming relief under an exemption provision in a taxing statute has to show that he comes within the language of the exemption.
But, in trying to understand the language used by an exemption notification, one should keep in mind two important aspects: (a) the object and purpose of the exemption and (b) the nature of the actual process involved in the manufacture of the commodity in relation to which exemption is granted.
So far as (b) is concerned, it is common ground before us that rice bran oil as such is not directly used in the manufac ture of soap.
Rice bran oil contains glycerol and other impurities which have to be removed by a process of hydroly sis or hydrogenation and it is only the resultant purified rice bran oil that is actually used in the manufacture of soap.
In fact, the Tribunal has given a clear finding that a pre treatment to rice bran oil is required to be done as a matter of necessity for its use in the manufacture of soap.
844 Thus even a factory which consumes rice bran oil in the manufacture of soap in its factory first converts the oil into hydrogenated oil or fatty acid and then manufactures soap out of the latter.
So far as (a) is concerned, the object of the notification as even the Tribunal finds is to grant a concession to a manufacturer of soap who manufac tures soap from rice bran oil to a substantial extent and thus discourage the use of edible oils in the manufacture.
If these two aspects are considered together, it is clear that the emphasis in the notification is not that rice bran oil should be used as raw material in the very factory which produces the soap.
The requirement is that the soap manufac ture should, to a prescribed extent, be from rice bran oil as contrasted with other types of oil.
The contrast is not between the use of rice bran oil as opposed to rice bran fatty acid or hydrogenated rice bran oil; the contrast is between the use of rice bran oil as opposed to other oils.
That is the ordinary meaning of the words used.
These words may be construed literally but should be given their fullest amptitude and interpreted in the context of the process of soap manufacture.
There are no words in the notification to restrict it to only to cases where rice bran oil is directly used in the factory claiming exemption and to exclude cases where soap is made by using rice bran fatty acid derived from rice bran oil.
The whole purpose and object of the notification is to encourage the utilisation of rice bran oil in the process of manufacture of soap in preference to various other kinds of oil (mainly edible oils) used in such manufacture and this should not be defeated by an unduly narrow interpretation of the language of the notification even when it is clear that rice bran oil can be used for manufacture of soap only after its conversion into fatty acid or hydrogenated oil.
The position will perhaps become clearer if we consider a case where an assessee manufactures soap out of hydroge nated rice bran oil (which process of hydrogenation, again, is akin to the process of hydrolysis which yields rice bran fatty acid).
The assessee will then be clearly entitled to the exemption under the notification inasmuch as the hydrog enated rice bran oil does not cease to be rice bran oil.
See in this connection: Tungabhadra Industries Ltd. vs C.T.O., ; and Collector of Central Excise vs Jayant Oil Mills etc.
,(CA 729 of 1983 and 2479 of 1987, decided by this Court on 31.3.89).
The answer cannot be different where rice bran oil is treated to yield rice bran fatty acid before soap is manufactured even if it be assumed that, unlike hydrogenated oil the fatty acid is, commercially speaking, a different commodity.
We are, therefore, of opinion that, construing the notifications literally but reasonably in the light of the process of manufacture is explained by the Tribunal, the soap manufactured by 845 the assessee is "soap made from indigenous rice bran oil" and is entitled to the exemption under the notifications to the extent permissible thereunder.
Reference was made, in the course of the arguments before us, to a tariff advice issued as early as July, 1974 by the Ministry of Finance in relation to the notification of 1972.
It reads as under: "I am directed to invite a reference to this Ministry 's notification No. 46/72 C.E. dated the 17th March, 1972, which grants exemption from duty on soap which is produced from rice bran oil or from a mixture of rice bran oil and other oils.
It has been brought to the notice of this Ministry that the benefit of exemption is not being allowed by the Central Excise Officers where rice bran oil or oil mixture is hydrogenated or pre treated before the soap is produced.
The matter has been considered in detail with the concerned authorities and keeping in view the technical opinion tendered by them that rice bran oil as such sometimes cannot be used directly and has to be pre treated before use in the manufac ture of soap, it is hereby clarified that the exemption will be admissible when the rice bran oil is, after processing or pre treat ment, used in the manufacture of soap.
In this connection it may be stated that the exemption Notification does not preclude any processing or pre treatment including hydrogenation in the manufacture of soap if such processes are incidental and ancillary to the manufacturing operating." (Underlining ours) This circular clarifies that the exemption will be admissi ble when the rice bran oil after processing or pre treat ment that is to say, when hydrogenated rice bran oil or rice bran fatty acid is used in the manufacture of soap.
But the counsel for the Union of India would have it that the circular postulates such exemption only where the pre treatment or processing is done is the same factory.
He invites attention to the last sentence of the circular, underlined by us above.
We do not think this is the correct interpretation of the circular.
In the first place, it will be noticed that the circular does not specifically say that the pre treatment or processing should be in the same facto ry of the assessee.
Secondly, no clarification by a circular or tariff advice is at all necessary to cover cases where the conversion from rice bran oil into rice bran fatty acid is done in the same factory for, to such a case, 846 the notification will clearly apply.
If it had been the intention to pin down the concession to cases where the pre treatment or processing is part of the manufacturing process within the same factory, the last sentence would not have stated the obvious but would have read something like this: "In this connection it is emphasised that the exemption notification precludes any process ing or pre treatment, including hydrogenation in the manufacture of soap, except where such processes are incidental and ancilliary to the manufacturing operations.
" The Tribunal has pointed out that the notification refers to the percentage of rice bran oil consumption and that, unless such oil is directly used in the factory, it will not be possible to work back, from the weight of fatty acid used by the assessee, the weight of rice bran ' oil out of which such acid had been obtained.
There are two answers to this objection.
One is that, if what we have stated is the correct interpretation of the notification, the mere fact that there may be some difficulty in ascertaining the weight of oil, cannot be a justification to refuse to give effect to that interpretation.
The second is that a practi cal solution to this difficulty has in fact been evolved and that, too, in the case of the same assessee.
Our attention has been invited to a circular issued by the Assistant Collector, Ernakulam II dated 23.6.77.
This circular states that the matter had been considered pursuant to an appellate order passed in one of the cases relating to the same asses see and it had been decided to fix the formula for arriving at the correlation between rice bran oil on the one hand and hydrogenated rice bran oil or rice bran fatty acid on the other as below: (a) 100 M.T. of hydrogenated = 100 MT of rice bran oil rice bran oil (b) 100 M.T. of Fatty acid = 115 MT of raw rice bran oil The circular refers to the fact that the present assessee (in relation to its Cochin factory) had accepted the above said formula and that the formula as given above was, there fore, "finally fixed in arriving at the rice bran oil con tents of hydrogenated rice bran oil and of rice bran fatty paid for ascertaining the amount of exemption as per notifi cation nos.
45 and 46 of 1972".
It is true that this is only a local instruction issued by certain assessing authorities in Cochin.
It is being referred to only show that there is no insuperable difficulty in ascertaining the weight of rice bran oil that that has been converted into fatty acid and thus 847 entered the process of manufacture in the assessee 's factory particularly in view of the fact that even the process of conversion of rice bran oil into fatty acid or hydrogenated oil is carried but in a factory subject to excise jurisdic tion.
The appellant has drawn our attention to certain ex tracts from a letter of the Ministry of Finance dated 6.4.76.
It poses the problem thus: "A doubt has been raised whether rebate of Central Excise duty would be admissible under Notification No. 24 and 25/75 CE, dated 1 3 75 (predecessor Notification Nos. 45 and 46 of 1972) where rice bran oil and other minor oils are hydrogenated in one factory and sent to another factory for manufacture of soap.
" The answer furnished is this: "The matter has been considered in the Minis try and it is felt that the purpose of rebate scheme of rice bran oil as well as other minor oils envisaged in the Notifications Nos. 24/75 and 25/75 (including their predecessor notifi cations) is to encourage the use of inedible oils in the manufacture of soap so as to relieve the pressure on edible oils.
In Board 's letter F. No. 92/2/72 CX.
3 dated 18 7 74 and F. No. 92/6/74 CX. 3, dated 27 12 74, it was clarified that in respect of rice bran oil as well as other minor oils where such oils are subjected to various treatments, including hydrogenation, such treatment would not debar them from the rebate scheme in as much as such processing is essen tial in the process of manufacture of soap.
As the notifications in question permit the rebate subject to identification of the oil as such, had the manufacturer placed the matter before the concerned Collector pointing out his practical difficulties, the Collector would have advised for suitable documentation (if the existing documentations are not enough) for the receipt, processing, movement and accounting of the oils for the concession in question.
In the circumstances, it is felt that the benefit of rebate cannot be denied to the manufacturers for want of prescribing a satisfactory procedure, especially, when it is contended by the manufacturers that they have opted for 848 the rebate scheme, their factories are under excise control, they have sufficient documen tary evidence about the receipt, processing, movement, incorporation/use in the manufacture of soap.
If, as contended by the manufactur ers, there is sufficient record maintained by them for excise purposes and the reasonable correlation is possible about the identity and use of such oils it would not be correct to deny the concession.
In this connection, it is of relevance to mention that a problem of similar nature had arisen with reference to some other excisable product and the Law Ministry was also consulted.
An extract of their opinion is appended.
It is, therefore, requested that taking into account the local practical situations existing in his jurisdic tion, the Collector may prescribe suitable procedures for identification of such oils for a meaningful implementation of the Rebate Scheme.
A copy of the Trade Notice issued in this regard by the Collector may be sent to DICCE under intimation to this Ministry.
" Following this, trade notices were issued on 25.8.76 and 8.2.77 in certain central excise jurisdiction, the relevant portion of which reads thus: "A doubt has been raised whether the rebate on Central Excise Duty would be admissible under Notification No. 40/72 CE & 46/72 CE both dated 17.3.72 as amended, where the Rice Bran Oil and other Minor Oils are hydrogenated in one factory and sent to another factory for use in the manufacture of soap.
It has been clarified that in respect of Rice bran oil and other Minor oils where such oils are subject to various treatment, including hydrogenation, such treatment would not debar them from the rebate scheme as envisaged in the above said Notifications.
" The trade notice proceeds to set out the procedural safe guards to be followed in granting this relief which are unnecessary for our purpose.
We endorse this as embodying the correct approach to the issue in this case. "This related to a claim of exemption in respect of ferti lisers (super phosphates) manufactured from sulphuric acid in a case where sulphuric acid was converted elsewhere into phosphoric acid and then used for the manufacture of the chemicals.
849 We are, therefore, of the view that the terms of the notification do not have the effect of excluding cases where the manufacture of soap is done out of rice bran oil but the entire process is not carried out by the assessee itself.
The question which one has to ask is: does the assessee manufacture soap partly or wholly out of indigenous rice bran oil? and the answer, we think, can only be in the affirmative.
We therefore hold that that the assessee is entitled to the exemption under the notifications referred to above and that the departmental authorities and the Tribunal erred in not granting the said exemption to the assessee.
The appeals are, therefore, allowed.
However, in the circumstances of the case, we make no order as to costs.
R.N.J. Appeals allowed.
| IN-Abs | The petitioner appellant is engaged in the manufacture of various varieties of soaps.
The dispute arose as to the eligibility of the appellants to the concession under rule 8(1) of the Central Excise Rule 1944 through Notification No. 46 of 1972 subsequently amended by Notification Nos.
153 of 1973 dated 24.7.73 of 25 of 1975 dated 1.3.75.
Resolving the dispute as to the interpretation of rules whether rice bran fatty acid is different from the rice Bran Oil as held by the Tribunal the Court came to the conclusion that the view taken by the Excise authorities as well as by the Tribunal proceeded upon too narrow an interpretation of the notification and erred in not granting the exemption to the assessee.
While allowing the appeals, this Court, HELD: Rice bran oil contains glycerol and other impuri ties which have to be removed by a process of hydrolysis or hydrogenation and it is only the resultant purified rice bran oil that is actually used in the manufacture of soap.
[843G] A factory which consumes rice bran oil in the manufac ture of soap in its factory first converts the oil into hydrogenated oil or fatty acid and then manufactures soap out of the latter.
[844A] In trying to understand the language used by an exemp tion notification one should keep in mind two important aspects; (a) the object and purpose of the exemption and (b) the nature of the actual process involved in the manufacture of the commodity in relation to which exemption is granted.
[843F] Construing the notifications literally but reasonably in the light of 840 the process of manufacture as explained by the Tribunal, the soap manufactured by the assessee is "soap made from indige nous rice bran oil" and is entitled to the exemption under the notifications to the extent permissible thereunder.
[844H 845A] The terms of the notification do not have the effect of excluding cases where the manufacture of soap is done out of rice bran oil but the entire process is not carried out by the assessee itself.
[849A] Tungabhadra Industries Ltd. vs C.T.O., ; and Collector of Central Excise vs Jayant Oil Mills etc.
, CA 729 of 1983 and 2479 of 1987) decided by this Court on 31.3.89, referred to.
|
(Civil) No.219 of 1988.
WITH C.M.P. No. 8572 of 1989.
(Under Article 139(A)(1) of the Constitution).
AND TRANSFER PETITION NOS.
376 40 of 1985.
Rajinder Sachar and R. Vasudevan for the Petitioners in Transfer Case No. 219/88 and C.M.P. No. 8572 of 1989. ' M.K. Ramamurthy, D.S. Chauhan, Pinaki Misra, M.A. Krish namoorthy, H.S. Parihar, R.P. Kapoor, O.C. Mathur, Ms. Madhu Khatri, Ms. Bina Gupta, D.N. Misra and Harish N. Salve for the Respondents in Transfer Case No. 2 19/88 and C.M.P. 8572 of 1989.
G. Ramaswamy, Additional Solicitor General, Anil Dev Singh (NP), R.P. Srivastava, Ms. A. Subhashini and C.V.S. Rao for the Petitioners in Transfer Petition No. 376 40 1 of 1985.
S.R. Seita and P.K. Manohar for the Respondent in Trans fer Petition Nos. 386 and 376 of 1985.
The Judgment of the Court was delivered by THOMMEN, J.
The first petitioner is a registered Central Trade Union claiming to represent about 85 per cent of the officers working in the various nationalised banks.
Peti tioners 2 to 4 are principal office bearers of the first petitioner and are officers of different nationalised banks.
They are aggrieved by Circular dated 23.8.1982 (Annexure A) issued by the Joint Secretary to the Government of India, Ministry of Finance, Department of Economic Affairs, (Bank ing Division), New Delhi.
They contend that the circular is contrary to the mandate of the Banking Companies (Acquisi tion and Transfer of Undertakings) Act, 1970 (Act No. 5 of 1970) (hereinafter referred to as the 'Act ') and the Natio nalised Banks (Management and Miscellaneous Provisions) Scheme, 1980 (hereinafter referred to as the 'Scheme ').
They further contend that Clause 3 of the Scheme in terms of which the circular is purported to have been issued is ultra vires Section 9 of the Act unless the said clause is so read as to be in harmony with the Section, and when so read the said clause does not justify or support the impugned circu lar.
The petitioners, therefore, 854 seek a writ of mandamus to direct the Central Government to appoint a nominee of the majority association of each of the nationalised banks as a member of its Board of Directors.
The circular in question reads: "As you are aware, in terms of sub clause (c) of Clause 3 of Nationalised Banks (Management and Miscellaneous Provisions) Scheme, 1970/1980, one Director from among the employ ees of the nationalised banks who are not workmen, is to be appointed by the Central Government in consultation with the Reserve Bank of India on the Board of each of the Nationalised Banks.
Unlike in the case of workman, the Scheme does not lay down any procedure for selection of the non workman Director.
The intention clearly was that in the case of Officer Director, Government should have ample scope and freedom in select ing any officer of the Bank to be the non workman Director.
However, hitherto panel of names sent by the banks for selection of the non workman Director has been confined to office bearers of the Association of Officers.
Government has recently reviewed this matter in the light of the relevant provisions of the Scheme and come to a conclusion that there is no justification for restricting the choice to the office bearers of the Associations.
" The object of the circular is to clarify that the Cen tral Government no longer regards itself bound by its earli er practice of appointing a person from out of the panel of three names submitted by the respective Association repre senting the majority of the non workmenemployees of each nationalised bank.
The circular makes it clear that the Government wishes to appoint any officer of proven ability and character to the Board of Directors of a nationalised bank irrespective of his affiliation with any Association.
The petitioners contend that the circular is undemocratic and contrary to the letter and spirit of the Act and the Scheme insofar as it cuts at the root of the representative form of selection for appointment to the Board of Directors as contemplated by the statute.
The stand of the Central Government and other respond ents, as stated in their counter affidavits, appears to be that the object of the circular is to neutralise and dis courage trade unionism amongst the officers and to keep the directorship above union affiliation, and thus 855 encourage the growth of a "management culture".
Mr. Rajinder Sachar, supported by Mr. Ramamurthi, contends that there is no justification whatsoever to issue any such circular for the very object of the Act is to encourage democratic selec tion of the Directors who will truly represent the interests of the various categories of persons mentioned in the Act.
To discourage trade unionism is contrary to the very spirit of the statute and repugnant to constitutional principles enshrined in Article 19(1)(c) and Article 43A of the Consti tution of India.
The Additional Solicitor General, representing the Central Government and Mr. Harish N. Salve, counsel for the Reserve Bank of India, contend that the Act postulates both election and nomination of members of the Board of Directors and the choice between the two modes of appointment is left to the Central Government.
The election or nomination has to be conducted in a manner as specified in the Scheme.
The Scheme in effect postulates all appointments to be by nomi nation.
In the case of workmen employees, the Director is appointed by the Central Government from amongst the names of three employees furnished by the representative Union.
Such appointment, though made out of, and restricted to, the panel furnished by the Union, is in effect a nomination of the one preferred by the Central Government.
In the case of non workmen employees, the choice is not restricted to any panel and the only condition postulated is consultation with the Reserve Bank of India.
Unionisation, though desirable among workmen, is not a matter to be encouraged in the case of other employees for selection to the Board of Directors, for the Directors must represent the interest of the bank as a whole and not of any special class of persons.
The Addi tional Solicitor General also submits that appointment by election is not the only mode of representative appointment, but nomination is perfectly valid and more effective from the point of view of the true institutional interest, par ticularly with reference to management efficiency.
In the light of these rival contentions, we shall exam ine the relevant provisions of the Act and the Scheme.
Section 9 of the Act provides: "9.
Power of Central Government to make scheme (1) The Central Government may, after consul tation with the Reserve Bank, make a scheme for carrying out the provisions of this Act.
856 (2) In particular,and without preju dice to the generality of the foregoing power, the said scheme may provide for all or any of the following matters, namely: (a) . . . . . (b) the constitution of the Board of Direc tors, by whatever name called, of the corre sponding new bank and all such matters in connection therewith or incidental thereto as the Central Government may consider to be necessary or expedient; (c) . . . . . . (d) such incidental, consequential and supplemental matters as may be necessary to carry out the provisions of this Act.
(3) Every Board of Directors of a correspond ing new bank, constituted under any scheme made under subsection (1), shall include (a) representative of the employees, and of depositors, of such bank, and (b) such other persons as may represent the interests of each of the following categories, namely, farmers, workers and artisans, to be elected or nominated in such manner as may be specified in the scheme.
" The object of Section 9 of the Act, insofar as it is material, is to empower the Central Government to make a scheme for the constitution of the Board of Directors so as to include representatives of the employees and other speci fied categories.
"Employees" include workmen and non work men.
The categories specified, apart from the employees, are depositors, farmers, workers and artisans.
The representa tives of these classes of people are to be either elected or nominated in the manner specified by the Scheme.
The legis lature has left it to the Central Government to make a scheme providing for appointment to the Board from amongst the specified categories either by election or by nomina tion.
The discretion as to the mode of 857 appointment is, of course, left to the Central Government, but it is not an unrestrained or unrestricted discretion, but a discretion which must be reasonably exercised so as to give effect to the true intent of the legislature as to the composition of the Board of Directors.
The object of the legislature is to give the Board a truly representative character so as to reflect the genuine interests of the various persons manning or dealing with the bank as an industry and a commercial enterprise.
The object of the Act is to nationalise the banks in order to, as stated in the preamble to the Act, "control the heights of the economy and to meet progressively, and serve better, the needs of development of the economy in conformi ty with the national policy and objectives".
The very pur pose of that legislative exercise is to render the largest good to the largest number of people of this "sovereign, socialist, secular, democratic republic".
(See the preamble to the Constitution enshrining the national policy and objectives.) It is with this object in view that the Act has envisaged a truly representative Board of Directors chosen by election where election is feasible or by nomination where that mode is more appropriate.
But the legislature has left it to the Central Government to specify by a scheme the manner in which the election or nomination is to be conduct ed, bearing in mind the true character and objective of the banking industry and its distinguishing features as a highly sensitive commercial enterprise.
Neither the election nor the nomination should be conducted in a manner unmindful of the distinctiveness of the banking industry.
What is postu lated is such election or nomination as would lend to the Board of Directors its truly representative character in consonance and harmony with the extremely delicate, vital and significant role of the banking industry in the context of the national policy and objectives and economic develop ment.
The mode of election or nomination must, therefore, be such as would be ideally suitable and appropriate to the banking industry and the choice of the mode is generally a matter for decision by the Central Government.
The Central Government must in this regard act in consultation with the Reserve Bank of India, for it is the latter that has the necessary expertise and intimate knowledge in the field of banking, finance and other connected matters.
The Act, therefore, requires the Central Government to make the Scheme in consultation with the Reserve Bank of India.
Any amendment or variation of the Scheme also requires consulta tion with the Reserve Bank of India.
[See Section 9(4)].
The Additional Solicitor General is right when he submits that it 858 is generally within the discretion of the Central Government to choose the special mode of appointment.
The Government may choose election or nomination as the appropriate mode of appointment in respect of various categories.
But we do not agree with him when he submits that the Central Government has a discretion to avoid election even where election is appropriate and feasible in respect of a particular category of persons.
The very object of leaving the choice to the Central Government as to the mode, which is election or nomination, is to enable it to reasonably exercise its discretion in such a way as to give the best form of repre sentation to every category of persons mentioned in the Act.
It may be possible to appoint a representative of the depos itors by election instead of nomination.
It would be per fectly within the discretion of the Central Government to choose that mode.
On the other hand, the depositors being not an organised body of persons, although easily identifia ble, selection of their representative by nomination may be easier, more feasible and perhaps more appropriate for the purpose of appointment to the Board.
Farmers, workers other than employees, and artisans mentioned under subsection 3(b) of Section 9 are best represented by nomination, they being difficult of identification and their connection with the bank being more remote than in the case of employees or even depositors.
For these classes of people, the discretion is entirely that of the Central Government to choose the mode of representation.
In the case of employees, on the other hand, election is indeed the most logical, the most appro priate, the most democratic and certainly the most advanta geous form of representation.
They are well identified, well organised, well motivated and interested associates and participants in the banking industry.
They are as much a part of the bank as the management is.
There can be no legitimate management culture foreign to their vital inter ests.
There can be no valid management policy contrary to their genuine needs.
The Act does not contemplate a manage ment unmindful of the true and legitimate interest of the employees.
In a nationalised bank, everyone is as much an employee as he is an employer.
There is no antithesis be tween the management and the employees.
The distinction that traditionally existed prior to nationalisation is no longer applicable.
The true management culture is indeed the cul ture that represents the various interests of all persons specified under Section 9 as well as the larger and wider interests of national economy as postulated in the preamble to the Act.
We will now examine the Scheme.
Clause 3 of Chapter II of the Scheme provides: 859 "3.
Constitution of the Board.
As soon as may be after the commencement of this Scheme, the Central Government shall, by notification in the official Gazette, constitute the Board of a nationalised bank, consisting of ( a ) . . . . . . . . (b)(i) one Director, from among the employees of the nationalised bank, who are workmen, to be appointed by the Central Government from out of a panel of three such employees fur nished to it by the representative Union, within a date to be specified by the Central Government; . . . . . . . . . . ( i i ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( i i i ) . . . . . . . . (c) one Director, from among the employees of the nationalised bank, who are not workmen, to be appointed by the Central Government after consultation with the Reserve Bank; ( d ) . . . . . . . . . ( e ) . . . . . . . . . ( f ) . . . . . . . . . ( g ) . . . . . . . . . ( h ) . . . . . . . . .
The scheme making authority appears to us to have exercised the legislative power delegated to it in making the Scheme in consonance with the Act, although in a certain respect concerning the non workmen employees the intention of the delegate of the legislature could have been articu lated a little more explicitly.
We say so in 560 the light of the contemporaneous construction placed on the statute by the delegate, namely, the Central Government, as evinced by its own practice prior to the circular dated 23.8.1982.
Until the date of the circular, the consistent practice of the Central Government was to appoint a non workmen Director from out of a panel of three names fur nished to it by the majority association of non workmen employees.
The Central Government understood the Act and the Scheme to warrant such mode of appointment in the case of all employees.
In other words, the Central Government under stood sub clause (c) of Clause 3 regarding non workmen employees to warrant the same type of representation as in the case of workmen employees mentioned under sub clause (b) of Clause 3.
The field of choice was thus understood by the Government to be limited to the panel of names furnished by the representative Union of workmen or Association of non workmen as the case may be.
But, as stated earlier, sub clause (c) of Clause 3 is vaguely drafted and when read without regard to the legislative intent, as disclosed by the Act, is capable of a contrary interpretation, as is now sought to be put upon it by the Central Government, and that interpretation is, in our view, wrong, and, in any case, out of harmony with the principle enshrined in Articles 19(1)(c) and 43(A) of the Constitution The Additional Solicitor General poses the question whether the Scheme would not be even more defective if sub clause (c) were to receive the same construction as sub clause (b) so as to restrict the choice of appointment to the three persons specified on the panel furnished by the representative Association.
The Act, he says, speaks of election or nomination, and if election were to be construed to be the appropriate mode of choosing the representatives of the employees, appointment by nomination of one person out of the panel furnished by the representative Union of workmen or Association of non workmen, as the case may be, would not be a perfect representation in keeping with the principle of election.
That may or may not be so, and there is always room for improvements; but the petitioners have no complaint on that score.
If the Central Government were to provide for election in the manner chosen by it so as to appoint the true representatives of the concerned employees, Mr. Sachat submits, the petitioners would have no complaint, provided the provisions laid down in that behalf are valid and reasonable.
While, in our view, it is open to the Central Govern ment to amend the Scheme to improve on the machinery for the conduct of an appropriate election, it is incumbent upon it, until any such amend 561 ment is made, to work the present Scheme in such a way as to give the maximum scope for the concerned employees to exer cise their choice in the selection of their representatives.
That means, it would be perfectly in order for the Central Government to continue the: practice followed by it prior to the circular in question or to hold election of the repre sentatives of the concerned employees, and, if necessary, to amend the Scheme suitably for that purpose.
In the circumstances, we declare that the circular dated 23.8.1982 (Annexure A) is ultra vires the Act and the Scheme and it is, therefore, null and void and of no effect.
The Transfer Case is accordingly disposed of.
Civil Miscellane ous Petition No. 8572 of 1988 and Transfer Petitions Nos. 376 401 of 1985 are allowed.
Parties shall bear their re spective costs.
T.N.A. Petitions allowed.
| IN-Abs | The Central Govt.
in exercise of its power under Section 9 of the enacted the Nationalised Banks (Management and Miscellaneous Provisions) Scheme, 1980.
Clause 3(b) of the said scheme deals with the appointment of workmen Directors and it provides that the Central Govt.
shall constitute the Board of a Nationalised Bank consisting of one Director from among the employees of the nationalised bank, who are workmen, to be appointed from out of a panel of 3 such employees furnished to it by the Representative Union.
Clause 3(c) of the Scheme deals with appointment of non workmen Directors and it provides that the Central Government shall constitute the Board of a nationalised bank consisting of one director, from among the employees of the nationalised bank, who are not workmen, to be appointed after consultation with the Reserve Bank.
The consistent practice of the Central Govt.
was to appoint a non workman Director from out of a penal of 3 names furnished to it by the majority association of non workmen employees.
By a circular dated 23.8.82, it was clarified that as far as appointment of non workmen Director is concerned, there is no justification for restricting the choice to the office bearers of the Association.
This was to enable the Central Govt.
to appoint any officer of proven 851 ability and character to the Board of Directors of a natio nalised Bank irrespective of his affiliation with any asso ciation.
The petitioners in these petitions to this Court, chal lenged this circular as contrary to the mandate of the Act and the Scheme, and also contended that clause 3 of the Scheme was ultra vires Section 9 of the Act.
Allowing the petitions, HELD: 1.
The Circular is ultra vires the Act and the Scheme and it is, therefore, null and void and of no effect.
[861C] 2.
The object of the is to render the largest good to the largest number of people.
The object of Section 9 of the Act is to empower the Central Govt.
to make a Scheme for the constitution of the Board of Directors so as to include representatives of the employees i.e. workmen and non workmen and other specified categories viz. depositors, farmers, workers and artisans.
The representatives of these classes of people are to be either elected or nominated in the manner specified by the Scheme.
The legislature has left it to the Central Government to make a scheme providing for appointment to the Board from amongst the specified catego ries either by election or by nomination.
The discretion as to the mode of appointment is left to the Central Govern ment, but it is not an unrestrained or unrestricted discre tion, but a discretion which must be reasonably exercised so as to give effect to the true intent of the legislature i.e. to give the Board a truly representative character so as to reflect the genuine interests of the various persons manning or dealing with the bank as an industry and a commercial enterprise.
What is postulated is such election or nomina tion as would lend to the Board of Directors its truly representative character in consonance and harmony with the extremely delicate, vital and significant role of the bank ing industry in the context of the national policy and objectives and economic development.
The mode of election or nomination must, therefore, be such as would be ideally suitable and appropriate to the banking industry.
Neither the election nor the nomination should be conducted in a manner unmindful of the distinctiveness of the banking industry.
The Central Govt.
must in this regard act in consultation with the Reserve Bank of India which has the necessary expertise and intimate knowledge in the field of banking, finance and other connected matters.
[856F H; 857A B, C G] 852 2.1 But the Central Government has no discretion to avoid election even where election is appropriate and feasi ble in respect of a particular category of persons.
For the appointment of representatives of depositors, farmers, workers other than employees and Artisans, the discretion is entirely that of the Central Govt.
to choose the mode of representation.
On the other hand, in the case of employees, election is indeed the most logical, the most appropriate, the most democratic and certainly the most advantageous form of representation.
They are well identified, well organised, well motivated and interested associates and participants in the banking industry.
They are as such a part of the bank as the management is.
There can be no legitimate management culture foreign to their vital interests.
There can be no valid management policy contrary to their genuine needs.
The Act does not contemplate a management unmindful of the true and legitimate interests of the employees.
In a nationalised bank, everyone is as much an employee as he is an employer.
There is no antithesis between the management and the em ployees.
The distinction that traditionally existed prior to nationalisation is no longer applicable.
The true management culture is indeed the culture that represents the various interests of all persons specified under Section 9 as well as the larger and wider interests of national economy as postulated in the preamble to the Act.
[858B G] 3.
The Central Govt.
understood sub clause (c) of Clause 3 regarding non workmen employees to warrant the same type of representation as in the case of workmen employees men tioned under subclause (b) of Clause 3.
The field of choice was thus understood by the Government to be limited to the panel of names furnished by the representative Union of workmen or Association of non workmen as the case may be.
But sub clause (c) of Clause 3 is vaguely drafted and when read without regard to the legislative intent, as disclosed by the Act, is capable of a contrary interpretation viz. there is no justification for restricting the choice of non workmen Directors to the office bearers of the Associa tion.
That interpretation is wrong and, in any case, out of harmony with the principle enshrined in Articles 19(1)(c) and 43(A) of the Constitution.
[860B D] 4.
It is open to the Central Government to amend the Scheme to improve on the machinery for the conduct of an appropriate election, it is incumbent upon it, until any such amendment is made, to work the present Scheme in such a way as to give the maximum scope for the concerned employees to exercise their choice in the selection of their represen tatives.
[860H; 861A] 853
|
ivil Appeal No. 1361 of 1974.
From the Judgment and Order dated 21.11.1973 of the Allahabad High Court in Special Appeal No. 60 of 1972.
Anil Dev Singh, C.V.S. Rao and Tara Chand Sharma for the Appellants.
R.D. Upadhyay for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The short question for consideration before us is whether Rule 2(2) of the Liberalised Pension Rules, 1950 (hereinafter called 'Pension Rules ') which permits the Central Government to retire a Government serv ant at any time after he has completed 30 years of qualify ing service by giving him three months ' notice or pay in lieu of such notice, confers unguided powers in the Govern ment and as such is ultra vires Articles 14 and 16 of the Constitution of India.
Izhar Hussain joined the Post and Telegraph Department as a clerk on June 4, 1935.
The Director, Postal Services by an Order dated April 21, 1970, retired him from service under Rule 2(2) of the Pension Rules.
Izhar Hussain chal lenged the order of retirement by way of a writ petition before the Allahabad High Court.
The learned single Judge dismissed the writ petition holding that there was no in firmity in Rule 2(2) of the Pension Rules.
The Special Appeal filed by Izhar Hussain before the Division Bench of the High Court was accepted and rule 2(2) of the Pension Rules was declared invalid and the retirement of Izhar Hussain was set aside.
The Union of India has come up in appeal by special leave against the judgment of the Division Bench of the High Court Central Government servants superannuate at the age of 58 years.
The Government has the absolute right under Rule 56(j) of Fundamental Rules to prematurely retire a servant in 'Public Interest ' after he has attained the age of 55 years.
The Government has also the power under Rule 2(2) of Pension Rules to retire a servant at any time 799 after he has completed 30 years of qualifying service.
We may quote these Rules: "F.R. 56(j) Notwithstanding anything contained in this Rule, the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any Government servant after he has attained the age of fifty five years by giving him notice of not less than three months in writing.
Provided that nothing in this clause shall apply to a Government servant referred to in clause (e) or clause (f)." "Rule 2(2) An Officer may retire from service any time after completing 30 years ' qualifying service provided that he shall give in this behalf a notice in writing to the appropriate authority at least 3 months before the date on which he wishes to retire.
Government may also require an officer to retire, any time after he has completed 30 years qualifying service provided that the appropriate authority shall give, in this behalf a notice in writing to the officer at least three months before the date on which he is required to retire, or three months ' pay and allowances in lieu of such notice." Fundamental Rule 56(j) while granting absolute fight to the Government provides that such power can only be exer cised in 'Public Interest '.
This guide line is a sufficient safeguard against the arbitrary exercise of power by the Government.
The object of this Rule is to chop off the dead wood.
Rule 2(2) of the Pension Rules on the other hand provides no guide line and gives absolute discretion to the Government.
There is no requirement under the rule to act in 'Public Interest '.
A person who joins Government service at the age of 21 years can be retired at the age of 51/52 years as by then he must have completed 30 years of qualifying service.
Although the rules are mutually exclusive and have been made to operate in different fields but the operational effect of the two rules is that a Government servant who has attained the age of 55 years can be retired prematurely under F.R. 56(j) only on the ground of 'Public Interest ' whereas another Government servant who is only 51 and has completed 30 years of qualifying service, can be retired at any time at the discretion of the Government under Rule 2(2) of the Pension Rules.
The object of Rule 2(2) of Pension Rules may also be to weed 800 out those Government servants who have out lived their utility but there is no guide line provided in the Rule to this effect.
The Rule gives unguided discretion to the Government to retire a Government servant at any time after he has completed 30 years of qualifying service though he has a right to continue till the age of superannuation which is 58 years.
Any Government servant who has completed 30 years of qualifying service and has not attained the age of 55 years can be picked up for premature retirement under the Rule.
Since no safeguards are provided in the Rule, the discretion is absolute and is capable of being used arbi trarily and with an un even hand.
We, therefore, agree with the Division Bench of the High Court and hold that Rule 2(2) of the Pension Rules is ultra vires Articles 14 and 16 of the Constitution of India.
Mr. Anil Dev Singh, appearing for the Union of India, contended that the Government of India has issued instruc tions dated July 11, 1955 and February 8, 1956 which lay down that the retirement under Rule 2(2) of the Pension Rules should be effected when such retirement is necessary in public interest.
The instructions being supplementary to the Rule, according to him, the order of retirement has to be in 'Public Interest ' and as such there is no vice of arbitrariness in the Rule.
We do not agree with this conten tion of the learned counsel.
A statutory rule cannot be modified or amended by executive instructions.
A valid rule having some lacuna or gap can be supplemented by the execu tive instructions but a statutory rule which is constitu tionally invalid cannot be validated with the support of executive instructions.
The instructions can only supplement and not supplant the rule.
Shri Anil Dev Singh then placed reliance on Ministry of Home Affairs Memorandum dated November 30, 1962 and argued that the same, having been issued in the name of President of India, is statutory and has the effect of amending Rule 2(2) of Pension Rules.
According to him reading the two together the power under Rule 2(2) of Pension Rules can only be exercised to weed out unsuitable employees.
The relevant part of the memorandum is as under: "It has now been decided and the President is pleased to direct that the age of compulsory retirement of Central Government servants should be 58 years subject to the following exception: 6.
Notwithstanding anything contained in the foregoing 801 paragraphs, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months ' notice without assigning any reason.
This will be in addition to the provisions already contained in rule 2(2) of the Libera lised Pension Rules 1950 to retire an officer who has completed 30 years ' qualifying serv ice, and will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years.
The Government Servant also may, after attaining the age of 55 years, voluntarily retire after giving three months ' notice to the appointing author ity.
These provisions will have effect from the Ist December, 1962.
" A bare reading of the memorandum shows that there is an obvious fallacy in the argument of Mr. Singh.
The memorandum has not been issued under Article 309 of the Constitution of India and as such cannot be statutory.
The memorandum is in the nature of executive instructions issued in the name of President of India as required under Article 77(1) of the Constitution of India.
This was issued in anticipation of the Fundamental (Sixth Amendment) Rule, 1965 which inter alia incorporated Rule 56(j) into Fundamental Rules.
Even otherwise para 6 of the memorandum could not and did not add anything to Rule 2(2) of the Pension Rules.
Rule 2(2) of Pension Rules was mentioned to clarify that the power to retire under para 6 was in addition to the power already contained in the Pension Rules.
The words "weed out unsuit able employees" can only be read qua the power to retire under para 6 and not under Rule 2(2) of Pension Rules.
There is thus no force in the argument and we reject the same.
Relying on the decision of this Court in Union of India and others vs R. Narasimhan, ; Mr. Anil Der Singh contended that para 620 of the Railway Pension Manual, which is identical to Rule 2(2) of the Pension Rules, has been upheld by this Court.
In Narasimhan 's case the scope of Rule 2046 of the Indian Railway Establishment Code and para 620 of the Railway Pension Manual was consid ered by this Court.
Rule 2046 is a statutory rule and is identical to Fundamental Rule 56(j).
Para 620 is in the nature of executive instructions but is similarly worded as Rule 2(2) of Pension Rules.
A Division Bench of the Madras High Court came to the conclusion that Rule 2046 having been framed under Article 309 of the Constitution and being a compendious rule, the railway employees are only gover 802 ned by the said rule and para 620 was void and inoperative.
This Court while setting aside the judgment of the High Court held as under: "Thus the areas of operation of Para 620 of the Railway Pension Manual is different from that of clause (h) and (k) of Rule 2946 of the Rules.
Para 620 of the Railway Pension Manual should be treated as supplementary to Rule 2046 of the Rules.
The said para which has been framed by the Union Government in exer cise of its executive powers under Article 73 of the Constitution should be given due effect since there is no statutory provisions or a rule framed under the proviso to Article 309 of the Constitution which is inconsistent with it.
" Narasimhan 's case has thus no relevancy to the contro versy involved in this case.
There was no challenge to any of the rules or para 620 of the manual on the ground that it gives unguided power to the Railway authorities to pick and choose railway employees for the purpose of pre mature retirement.
Para 620 of the Manual being executive instruc tion supplementing the statutory Rule 2046 has no parity with Rule 2(2) of Pension Rule which is a statutory rule.
In any case the point before us in the present case was neither involved nor raised in Narasimhan 's case and as such Mr. Anil Dev Singh cannot derive any support from the said judgment.
There is thus no legal or equitable ground to interfer with the judgment of the Division Bench of the High Court.
The appeal is dismissed with costs which we quantify as Rs.3,000.
R.S.S. Appeal dis missed.
| IN-Abs | The respondent, and employee in the Posts and Telegraph Department, was retired from service under Rule 2(2) of the Liberalised Pension Rules, 1950 which empowered the Govern ment to retire a servant at any time after he had completed 30 years of qualifying service.
The respondent 's writ peti tion in the Allahabad High Court was dismissed by the learned Single Judge holding that there was no infirmity in the Rule.
The Division Bench, however, accepted the Special Appeal filed by the respondent and declared Rule 2(2) in valid.
Before this Court, it was contended on behalf of the appellant that the Government of India had issued instruc tions dated July 11, 1955 and February 8, 1956 which laid down that the retirement under Rule 2(2) of the Pension Rules should be effected when such retirement was necessary in public interest.
It was further contended that the Minis try of Home Affairs Memorandum dated November 30, 1962 which was issued in the name of the President of India, was statu tory and had the effect of amending Rule 2(2) of the Pension Rules, and reading the rule and the memorandum together the power under Rule 2(2) could only be exercised to weel out unsuitable employees.
Dismissing the appeal, this Court, HELD: (1) Central Government servants superannuate at the age of 58 years.
The Government has the absolute right under Rule 56(j) of 797 Fundamental Rules to prematurely retire a servant in 'Public Interest ' after he has attained the age of 55 years.
The Government has also the power under Rule 2(2) of the Libera lised Pension Rules to retire a servant at any time after he has completed 30 years of qualifying service.
[798H 799A] (2) Fundamental Rule 56(j) while granting absolute right to the Government provides that such power can only be exercised in 'Public Interest '.
This guide line is suffi cient safeguard against the arbitrary exercise of power by the Government.
The object of this Rule is to chop off dead wood.
Rule 2(2) of the Pension Rules on the other hand provides no guide line and gives absolute discretion to the Government.
There is no requirement under the rule to act in 'Public Interest '.
[799E F] (3) Although the rules are mutually exclusive and have been made to operate in different fields but the operational effect of the two rules is that a Government servant who has attained the age of 55 can be retired prematurely under F.R. 56(j) only on the ground of 'Public Interest ' whereas anoth er Government servant who is only 51 and has completed 30 years of qualifying service, can be retired at any time at the discretion of the Government under Rule 2(2) of the Pension Rules.
Any Government servant who has completed 30 years of qualifying service and has not attained the age of 55 years can be picked up for premature retirement under Rule 2(2).
Since no safe guards are provided in the Rule, the discretion is absolute and is capable of being used arbitrarily and with an un even hand.
Rule 2(2) of the Pension Rules is therefore ultra vires Articles 14 and 16 of the Constitution of India.
[799G, 800B C] (4) A statutory rule cannot be modified or amended by executive instructions.
A valid Rule having some lacuna or gap can be supplemented by the executive instructions, but a statutory rule which is constitutionally invalid cannot be validated with the support of executive instructions.
The instructions can only supplement and not supplant the rule.
[800E] (5) The Ministry of Home Affairs, Memorandum dated November 30, 1962 has not been issued under Article 309 of the Constitution of India and as such cannot be statutory.
The memorandum is in the nature of executive instructions issued in the name of the President of India as required under Article 77(1) of the Constitution of India.
[801D] 798 Union of India & Ors.
vs R. Narasimhan, A.I.R. 1988 S.C. 1733,
distinguished
|
ppeal No.
239 of 1954.
Appeal from the judgment and decree dated December 12, 1950, of the Patna High Court in Appeal from Original Decree No. 188 of 1945 arising out of the judgment and decree dated December 18, 1945, of the Court of the Additional Subordinate Judge, IV Class, Gaya, in Title Suit No. 4 of 1945.
Purshottam Tricumdas and section P. Varma, for the appellant.
S.P. Sinha and R. C. Prasad, for respondents Nos. 1 4, 8 10, 13 and 14.
May 23.
The Judgment of the Court was delivered by SUBBA RAO J.
This appeal by certificate tinder article 133 (1) (a) of the Constitution of India is directed against the judgment and decree of the High Court of Judicature at Patna setting aside those of the Subordinate Judge, Gaya, in a suit for redemption of an usufructuary mortgage.
Deokinand, the common ancestor of plaintiff respondents 1 to 4 and proforma respondents 6 to 12, executed a document dated August 20, 1923, in favour of Mahant Tokhnarain Puri of Nadra, the predecessor ininterest of defendant 1, hypothecating eight annas milkiat share in mauza Lodipur, Mahimabigha, Tauze No. 4246 for the purpose of discharging a debt of Rs. 31,701 payable by him to the Mahanth.
There are conflicting versions in regard to the nature of this transaction respondents claim it to be a usufructuary 1087 mortgage, while the appellant asserts it to be a lease.
The plaintiff respondents instituted Title Suit No. 4 of 1945 in the Court of the Additional Subordinate Judge 1V, Gaya, for redemption of the said document on the basis that it was a usufructuary mortgage, for rendition of accounts and for the recovery of surplus profits due to them.
The appellant pleaded, inter alia, that the suit for redemption was not maintainable as the document was not a mortgage but lease, that on the assumption that it was a mortgage it would only be an anomalous mortgage in respect where of there was no statutory liability to render accounts to the plaintiff, that even if it was a usufructuary mortgage, it was governed by the provisions of section 77 of the Transfer of Property Act taking the mortgage out of the purview of section 76 (d) and (g) of the said Act.
It is not necessary to particularize other defences as nothing turns upon them in the appeal.
The learned Subordinate Judge held that the document created a usufructuary mortgage and not a lease and that section 77 of the Transfer of Property Act applied to the document exonerating the appellant from any liability to render accounts.
In the result, the learned Subordinate Judge gave a conditional decree in favour of respondents I to 4 for possession on their depositing in Court a sum of Rs. 26,839 7 0 within six months from the date of the decree.
The plaintiff respondents preferred an appeal against that decree to the High Court at Patna.
The High Court agreed with the learned Subordinate Judge that the document was a sufructuary mortgage but differed from him on the question of applicability of section 77 of the Transfer of Property Act.
The High Court set aside the decree of the learned Subordinate Judge and passed instead a preliminary decree for redemption and sale on default of payment: the decree also directed the rendition of accounts between the parties in the light of the directions given in the judgment.
The second defendant against whom the decree was passed preferred the above appeal.
The point to be first decided is whether the transaction is a lease as contended by the contesting respondents.
The only guiding rule that can be extracted 1088 from the cases on the subject is that the intention of the parties must be looked into and that 'once you get a debt with security of land for its redemption, then the arrangement is a mortgage by whatever name it is called ' (See Ghosh on Mortgages, V Edn., Vol. 1, p. 102).
Let us now examine the terms of the document Exhibit A (3) to ascertain the intention of the parties.
The document was obviously not drafted by a trained mind.
It appears to be a confused product of one of those village document writers.
We shall read the document, omitting the recitals not material to the question raised: The first part of the document recited that the executant was heavily indebted to the other party under mortgage bonds and also otherwise and that common friends settled that a part of the properties mortgaged should be let out in ijara with possession at a lower rate of interest so that 'the increment of interest may be checked and the present necessities may be met ".
It was also stated in the document that in respect of the said property there was a pre existing thika (lease) dated April 21, 1922, in favour of Munshi Dodraj Lal alias Munshi Jatadhari Lal, for a period of 9 years and that under the said lease, Rs. 2,205 was taken by the executant as peshgi money without interest and the rent was fixed at a sum of Rs. 2,205.
Then the document proceeds to state thus: " In respect of Rs. 29,496 the total sum of peshgi money, he should, for the satisfaction of interest thereon, get executed a usufructuary mortgage deed bearing a lower rate of interest in respect of 8 annas share i. e., half share in mauza Lodipur Mahima Bigha, principal with dependencies, together known and unknown tola and totals . . . . . . for term of 15 years on fixing Rs. 2,205 as the annual rental and by getting mortgaged there.
under 8 annas proprietary interest, thikadari interest together with peshgi money and the right to receive thikadari rent from the said thikadars.
Accordingly, at the request and entreaty of me, the executant, the said Mahanthji took pity at my condition and agreed to my request and got ready to get usufructuary mortgage deed executed.
Therefore, 1, the executant, 1089 ". . . have voluntarily let out in ijara with possession the whole and entire 8 annas i. e., half of Mauza Lodipur Mahima Bigha. .for a peshgi money of Rs. 31,701that Rs. 29,496, the peshgi money bearing interest at 1/2 per cent.
per month and Rs. 2,205, tile peshgi money without interest, at an annual rental of Rs. 2,205 including revenue and cesses, for a term of 15 years, commencing from 1331 Fasli to 1345 Fasli . . . and have put him in possession and occupation of the ijiara property as my representative.
It is desired that the said ijaradar should enter into and remain in possession and occupation of the ijara property and so long as the thika of ' Munshi Dodraj Lal alias Jatadhari Lal . . . . . . is intact and in force, he should realize the rent from the above named thikadars and their heirs and representatives in accordance with the stipulations made in the thika patta and kabuliat as representative of me, the executant, and bring it into his possession and use, that is to say, on his own authority he should set off Rs. 1,769 12 0 on account of the interest on the peshgi money bearing interest mentioned in this deed, year after year, and pay the remaining sum of Rs. 435 4 0, the amount of rent due by the ijaradar, i.e., the reserved rent, to me, the executant, and my heirs and representatives The ijaradar should not make any default.
If he does so, he and his heirs and representatives shall be held liable to pay interest at 1/2 per cent.
per month.
" Then the document proceeds to incorporate the terms agreed upon by the parties, to take effect after the termination of the thikadari interest.
It is stated: " The ijaradar of this ijara deed or his heirs and representatives on his own authority shall be competent to bring the thika property into his sir possession as ijara property as a representative of me, the executant, in accordance with the stipulations made in the patta and kabuliats after setting off Rs. 2,205 the peshgi money due to the thikadars by me, the executant, against the annual thikadari rent.
The said ijaradar should make his own arrangement for the cultivation of the ijara property, get it cultivated 1090 by others, realise the nakdi and jinsi income of the ijara property from the tenants and appropriate the produce of both the shares thereof.
1, the executant, and my heirs and representatives neither have nor shall have any right, claim and.
demand in respect of tile produce or the income of the ijara property so long as the ijara deed is intact except getting Rs. 435 4 0, the rent after the payment and deduction of interest on the peshgi money bearing interest.
" The document then allocates the liability in respect of improvements and sums spent in regard to boundary disputes to one or other of the parties to the document and then it continues to state: " The peshgi money amounting to Rs. 31,701 with and without interest as mentioned in this ijara deed has been realized from the ijaradar in this manner that I allowed Rs. 28,246, the amount of loan principal with simple and compound interest as per account given below after remission of the interest due to the ijaradar under all the three mortgage bonds to be set off against the peshgi money by getting a note made to that effect on the back of the said mortgage bonds which I allowed to remain with the ijaradar as a proof of pavnient of the peshgi money covered by this deed The term of this ijara deed with possession shall terminate in the month of Jeth, 1345 Fasli, when 1, the executant, or my heirs and representatives shall repay Rs. 31,701 being the peshgi money with and without interest mentioned in this deed in cash and in one lump sum to the said ijaradar or his heirs and representatives, 1 shall bring the ijara property into my sir possession.
If I do not repay the peshgi money with and without interest on the expiry of the term of this ijara deed with possession, then, till the repayment of the whole and entire peshgi money with and without interest, this ijara deed with possession shall precisely with all the stipulations remain in force and intact.
1, the executant, or my heirs and representatives shall not put forward any sort of claim or demand in respect of an increase in the produce save and except the claim 1091 for getting rent as fixed and the mentioned above. . . . . . . . . in security of the payment of the peshgi money with or without interest mentioned in this ijara deed I, the executant, have mortgaged, hypothecated, encumbered and made liable the ijara property.
I do hereby make a trustworthy declaration that till the repayment of the entire peshgi money of the ijaradar I shall not in any way directly or indirectly on any allegation mortgage, hypothecate.
encumber and transfer the ijara property.
" The gist of the aforesaid transaction may be stated thus: The executant was indebted to the other party in a large amount under mortgage bonds 'and otherwise.
Through the intervention of common friends, with a view to salvage some property, the amount due from the executant to the other party was fixed in the sum of Rs. 29,496 and it was settled that half share in mauza should be given as security to the other party.
At the time of the execution of the document there was an outstanding thika document in favour of a third party, whereunder the said party advanced a sum of Rs. 2,205 to the executant and agreed to pay Rs. 2,205 as annual rent.
As the other party agreed to discharge the advance paid by the third party to the executant, the right to collect the rent from him was also agreed to be given as security to the other party.
With the result, the executant received Rs. 31,701 under the document, out of which Rs. 29,496 bore interest at i per cent.
per month and Rs. 2,205 did not carry interest, presumably because the other party did not actually pay the amount to the executant.
The document divided the transaction into two parts.
The first part dealt with the terms governing the parties during the subsistence of the thikadari interest; the second part mentioned the terms binding on the parties after the expiry of the said interest.
During the first period, the other party would receive the annual rent of Rs. 2,205 from the thikadars, set off Rs. 1,769 12 0 on account of interest on the peshgi money bearing interest and pay the 139 1092 remaining sum of Rs. 435 4 0 as reserved rent to the executant.
After the expiry of the thikadari interest in 1338 Fasli, the other party would take actual possession by setting off Rs. 2,205 the peshgi money due to the thikadars by the executant, against the annual thikadari rent.
After getting possession of the ijara property, the other party would make arrangements for its cultivation and appropriate the produce towards interest, paying the executant only a sum of Rs. 435 4 0 as rent.
The previous deeds were dis charged and endorsements to that effect made on the back of the documents.
If the debt was not discharged within 1345 Fasli, it was agreed that till the repayment of the entire peshgi money, the ijara deed with possession would precisely with all stipulations remain in force and intact.
The executant, in express terms, undertook not to put forward any sort of claim or demand in respect of the increase in the produce except and save to get rent as fixed in the document.
From the aforesaid summary of the recitals in the document, the following facts emerge: (1) The executant owed large sums of money to the other party; (2) interest at i per cent.
per month was agreed to be paid on the sum of Rs. 29,496, i.e., on the entire consideration excluding that amount which was advanced by the thikadars to the executant; (3) the manner of discharging the debt was prescribed in the document, namely, that during the subsistence of the thikadari interest, the other party would receive the rent from the thikadars and appropriate Rs. 1,769 12 0 on account of interest and pay a sum of Rs. 435 4 0 as rent to the executant and that after the expiry of the thikadari interest, the other party would take physical possession of the land and appropriate the produce towards interest and pay only a sum of Rs. 435 4 0 as rent to the executant; (4) on the expiry of 15 years period or after the extended period, the executant would pay the entire principal amount to the other party; (5) 8 annas share in the mauza was specifically given as security for the amount payable by the executant.
Under the document, there was a relationship of creditor and debtor between the 1093 parties and the property was given as security for the payment of the amount advanced with interest.
Though the document is described as a cowle, the parties, who have had earlier transactions, must be deemed to have known the nature of the transaction they were entering into.
In clear and express terms the nature of the transaction has been stated in more than one place.
The executant, requested the other party, in respect of the advance amount and interest to get executed by him a usufructuary mortgage deed bearing a lower rate of interest in respect of the 8 annas share.
After mentioning the various terms, the executant restated the intention of the parties in the following terms: "In security of the payment of the peshgi money with or without interest mentioned in this ijara deed, I, the executant, have mortgaged, hypothecated, encumbered and made liable the ijara property." Therefore, whatever ambiguity there might be in the recitals that was dispelled by the unambiguous declaration made by the parties that the property was given as security for the loan and the document was executed as a mortgage.
The gist of the document was not a letting of the premises, with a rent reserved, but a mortgage of the premises with a small portion of the income of it made payable to the plaintiff.
There is, therefore, no scope for the argument in this case that the document is a lease and not a mortgage.
We hold, agreeing with the High Court, that the document is a mortgage and not a lease.
Even so, it was contended by the learned Counsel for the appellant that the document did not create an usufructuary mortgage but only an anomalous mortgage.
This contention was raised as a foundation to the argument that if the document was an anomalous mortgage, the rights and liabilities of the parties would be governed by the terms of the contract between them and not by the provisions of section 76 of the Transfer of Property Act.
The question does not really fall to be decided in this case.
Whether the transaction is a usufructuary mortgage or an anomalous mortgage, in the circumstances of the case, there will 1094 not be any difference in the matter of rendition of accounts, for in the ultimate analysis, as we would presently show, the true construction of the relevant terms of the document would afford an answer to the question raised.
We shall, therefore, proceed to consider the question on the alternative basis.
If it was a usufructuary mortgage, it is contended by the appellant that he was not liable to render accounts to the mortgagor, as, Linder the mortgage deed, he was authorized to take the receipts in lieu of interest within the meaning of section 77 of the Transfer of Property Act.
The relevant provisions of the Transfer of Property Act are as follows: "Section 76: When during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property, (g)he must keep clear, full and accurate accounts of all sums received and spent by him as mortgagee, and, at any time during the continuance of the mortgage, give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported; (h)his receipts from the mortgaged property, or, where such property is personally occupied by him, a fair occupation rent in respect thereof, shall, after deducting the expenses properly incurred for the management of the property and the collection of rents and profits and the other expenses mentioned in clauses (c) and (d), and interest thereon, be debited against him in reduction of the amount (if any) from time to time due to him on account of interest and, so far as such receipts exceed any interest due, in reduction or discharge of the mortgage money the surplus, if any, shall be paid to the mortgagor; " Section 77: Nothing in section 76, clauses (b), (d), (g) and (h), applies to cases where there is a contract between the mortgagee and the mortgagor that the receipts from the mortgaged property shall, so long as the mortgagee is in possession of the property, be taken in lieu of interest on the principal money, or in lieu of such interest and defined portions of the principal.
" 1095 Section 76(g) of the Transfer of Property Act imposes a liability on a mortgagee to keep, full and accurate accounts supported by vouchers.
So too, he is under a statutory liability under cl. 'h ' to debit the nett receipts of the mortgaged property in deduction of the amount due to him from time to time on account of interest and where such receipts exceed any interest due, in reduction and discharge of the mortgagemoney and to pay the surplus, if any, to the mortgagor.
Therefore, every mortgagee in possession is bound to keep clear, full and accurate accounts and to render the accounts to the mortgagor in the manner prescribed in cl. 'h '.
But section 77 enacts an exception to the mortgagee 's liability under cls.
(g) and (h) of section 76.
Under that section (section 77), if there is a contract between the mortgagor and the mortgagee, whereunder it is agreed that the receipts of the mortgaged property should, so long as the mortgagee is in possession of the property, be taken in lieu of interest and a defined portion of the principal, the mortgagee is freed from the statutory liability to keep accounts or to render accounts to the mortgagor in the manner prescribed under cls.
(g) and (h) of section 76 of the Act.
This is so because, the receipts are set off against the interest, and there is nothing to account for.
Therefore, to insist upon the mortgagee to keep accounts or render accounts to the mortgagor would be an empty forma lity.
The essential condition for the application of this section is that the receipts of the property should be taken in lieu of interest or in lieu of interest and a defined portion of the principal.
The contention of the learned counsel for the respondents is that unless the contract authorizes the mortgagee to take the entire receipts in lieu of interest or in lieu of interest and defined portions of principal, this section cannot be invoked; for it is said that the principle behind the section is that one is set off against the other, with the result, there is nothing to be accounted for, whereas if only a part of the receipts is agreed to be paid towards interest or in lieu of such interest and defined portions of the" principal, there would be surplus in the hands of the mortgagee, which would have to be 1096 accounted for.
On the basis of that distinction, an argument is advanced to the effect that, as in the present case, the mortgagee had to pay a sum of ]Is.
435 4 0 to the mortgagor, he was not authorized by the mortgagor tinder the agreement to take the entire receipts in lieu of interest, etc., within the meaning of section 77 of the Transfer of Property Act.
To put it differently, the argument is that out of the receipts from the mortgaged property a portion was paid to the mortgagor and the mortgagee was authorized to take only the balance in lieu of interest and, therefore, there was no contract between the mortgagor and the mortgagee for the latter taking the entire receipts in lieu of interest.
We find it difficult to accept this argument.
Under Exhibit A(3), the mortgagee undertook an unconditional obligation to pay a sum of Rs. 435 4 0 in respect of the property mortgaged to him.
This obligation was not made to depend upon the receipts from the property in the possession of the mortgagee.
Whether there was yield from the land or not, he had to make the payment to the mortgagor.
Though he had to pay the rent as a consideration for his enjoyment of the land as a mortgagee, his liability did not depend upon the receipts from the land he had to pay, receipts or no receipts.
His liability was also not confined to the receipts, for he was under a personal obligation to pay the amount to the mortgagor.
On the other hand, the mortgagee was expressly authorized to take the entire income from the land and appropriate the same towards interest and the mortgagor agreed not to put forward any claim or demand in respect of any increase in the produce.
Shortly stated, the mortgagee was under a personal obligation to pay Rs. 435 4 0 to the mortgagor and had a right to take the entire receipts from the land in lieu of interest.
It is not a case, therefore, where receipts from the mortgaged property are divided between mortgagor and mortgagee, but one where the mortgagee pays a specified amount to the mortgagor and appropriates the entire receipts in lieu of interest.
We, therefore, hold that, under the mortgage deed, Exhibit A(3), there is a contract between the 1097 mortgagee and the mortgagor within the meaning of section 77 of the Transfer of Property Act, to the effect that the receipts from the mortgaged property should be taken in lieu of interest.
Relying upon the judgment of the High Court, a further attempt was made by the learned Counsel for the respondents to contend that the mention of a specified rate of interest in the document is indicative of the fact that under the document the mortgagee, would have to take only such part of the nett receipts sufficient to discharge the interest and credit the balance to the mortgagor.
The mere mention of a rate of interest does not necessarily lead to the conclu sion.
The rate of interest may be stipulated for estimating the amount payable towards interest so that the parties may visualize whether the nett receipts could reasonably be set off against the interest.
The rate may also be given for other reasons.
The Judicial Committee, in Pandit Bachchu Lal vs Chaudhri Syed Mohammad Mah (1), held that notwithstanding the fact that a particular rate of interest was mentioned in the mortgage deed, there was a contract within the meaning of section 77 of the Transfer of Property Act.
It was a case of a mortgage with possession and a particular rate of interest was mentioned in the mortgage deed.
There was a provision for repayment of the principal either in whole or in part before the stipulated period, but it was otherwise provided that the mortgagee should appropriate the surplus profits towards interest, he having no claim to interest and the mortgagors having no claim to the profits.
The Privy Council held, on a construction of the mortgage deed, that the said deed contained a contract within the meaning of section 77 of the .
In Exhibit A 3, though the rate of interest is stated at i per cent.
per month, it was obviously mentioned to enable the parties to approximately fix the amount to be appropriated by the mortgagee from and out of the rent received from the thikadar.
No doubt, the same rate of interest is also mentioned when the (1) 1098 parties are dealing with their rights after the expiry of the thikadari interest, but in more than one place they have stated in clear and unambiguous terms that the mortgagee could appropriate the produce towards interest and that the mortgagor would not put forward any sort of claim or demand in respect of any increase in the produce.
In view of the clearly expressed intention of the parties, we cannot hold from the mere fact that the rate of interest is mentioned that the document does not come under the purview of section 77 of the .
We hold that section 77 of the applies to the document and therefore the mortgagee is not liable to render any account to the mortgagor.
On the footing that the mortgage is an anomalous mortgage, we arrive at the same result.
The learned Counsel for the appellant contends that if the mortgage is an anomalous mortgage, the parties are only governed by the provisions of section 98 of the and not by the provisions of section 77 of the Act.
Section 98 says: " In the case of an anomalous mortgage, the rights and liabilities of the parties shall be determined by their contract as evidenced in the mortgage deed, and, so far as such contract does not extend, by local usage.
The question whether this section excludes the operation of other relevant provisions of the Act, including s.77, need not be considered in this case, for, whether s.77 applies, as the learned Counsel for the respondents contends, or the terms of the contract would govern the rights of the parties, as the learned counsel for the appellant argues, the result would be the same for the question to be decided is whether under the terms of the mortgage, the mortgagee has the right to appropriate the entire nett receipts in lieu of interest,.
We have already held that in Exhibit A(3) not only there is such a recital but there is a specific term whereunder the mortgagor expressly agreed not to claim any produce received by the mortgagee.
Whether section 77 applies or not, under the express terms of the contract, 1099 the appellant is not liable to render accounts for the excess receipts.
No other point is raised before us.
In the result, the decree of the High Court is set aside and that of the Subordinate Judge is restored.
The appellant will have his costs throughout.
Appeal allowed.
| IN-Abs | D executed a document in favour of M hypothecating an eight annas share in a village for the purpose of discharging a debt of Rs. 29,496 payable by him to Al.
In respect of this property there was a pre existing think in favour of j for a period of 9 years, under which D took Rs. 2,205 as peshgi money without interest and the annual rent was fixed at RS.
2,205.
The document provided that (i) interest at 1/2 per cent.
per month was payable on the sum Of Rs. 29,496 ; (ii) (luring the subsistence of the thika M would receive the rent from j and appropriate Rs. 1,769 12 o towards interest and pay Rs. 435 4 o as rent to D ; (iii) after the expiry of the thika M would take physical possession of the land and appropriate the produce towards interest and Pay Rs. 435 4 o as rent to D; (iv) on the expiry of the thika M would repay the peshgi amount of Rs. 2,205 to j and this sum was added to principal amount due ; (v) on the expiry of 15 years, or after the extended period, D would repay the entire principal amount; (vi) and the property was given as security for the amount payable by D.
The respondents who are successors of D instituted a suit for redemption on the basis that the transaction was a usufructuary mortgage, for rendition of accounts and for recovery of surplus profits.
The appellant, successor of M, contended that the suit for redemption was not maintainable as the transaction was not a mortgage but a lease, and that even if it was a mortgage there was no statutory liability to render accounts as the document provided that the receipts were to be taken in lieu of interest and the case was governed by section 77, Transfer of Property Act : Held, that the transaction was a mortgage and not a lease.
The guiding rule of construction is that the intention of the parties must be looked into and that once there is debt with security of land for its redemption the arrangement is a mortgage by whatever name it is called.
Held, further, that there was a contract between the mort gagor and the mortgagee within the meaning Of section 77, Transfer of Property Act to the effect that the receipts from the mortgaged property be taken in lieu of interest and consequently the mortgagee was not liable to render accounts.
The stipulation 1086 in the document for payment of Rs. 435 4 0 to the mortgagor was a personal obligation of the mortgagee and he had a right to take the entire receipts from the land in lieu of interest.
Though the rate of interest is stated as per cent.
per month it was mentioned to enable the parties to approximately fix the amount to be appropriated by the mortgagee from and out of the rent received from the thikadar.
The mere fact of the mention of the rate of interest could not make section 77 inapplicable in view of the clearly expressed intention of the parties.
Pandit Bachchu Lal vs Chaudhri Syed Mohammad Mah, (1033) , referred to.
|
Civil Appeal No. 22 15(NA) of 1988.
From the Judgment and Order dated 2.11.87 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 478 of 86 D (Order No. 877 of 1987 D.) A.K. Ganguli, T.V.S.N. Chari, P. Parmeswaran and Sushma Suri for the Appellant.
Soli J. Sorabjee, R. Narain, Kamal Mehta, P K. Ram and D.N. Misra for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal under section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act ').
The appeal is directed against the order dated 2nd November, 1987 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as 'the Tribunal ').
The respondent, viz., M/s Ambalal Sarabhai Enterprises manufacture sorbitol failing under item 68 of the erstwhile Central Excise Tar iff.
There was a visit to the factory premises of the re spondent by the Central Excise Officers on 26th February, 1985.
It was 787 allowed that it was found that the respondent manufactured and captively consumed starch hydrolysate but the respondent had failed to take out a licence with reference to the said manufacture of starch hydrolysate and had been removing the same without, according to the appellant, payment of duty and without observing the necessary central excise formali ties.
It was the view of the revenue that starch hydrolysate was glucose and, therefore, fell under Item 1 E of the Central Excise Tariff, which covered glucose in whatever form including liquid glucose.
Accordingly, a show cause notice was issued to the respondent.
A reply was filed on behalf of the respondent contending that starch hydrolysate was not "goods" since the same was not marketable and, therefore, no excise duty would be payable on the same.
In those circumstances, it was submitted that the proposed adjudication by the Collector following the aforesaid notice was without jurisdiction in view of section 11A of the Act.
It was urged that starch hydrolysate is not glucose and that even if the same was liable for duty it would not be under item E.
According to him, starch hydrolysate was an interme diate product in the manufacture of sorbitol and no duty could be demanded on the same.
There were adjudication proceedings thereafter.
In the said proceedings, affidavits were filed on behalf of the respondent, witnesses on behalf of the revenue were cross examined and the Collector also cross examined the witnesses of the respondent.
By an order dated 6th December, 1985, the Collector of Central Excise, Baroda rejected frae contention of the respondent.
It was held by him that starch hydrolysate was glucose and fell under item 1 E of the Central Excise Tariff and that the respondent had suppressed the fact of manufacture thereof for consumption in the further manufacture of sorbitol.
In the premises, he ordered the respondent to pay excise duty amounting to Rs.34,92,559.55 paise and imposed a penalty of Rs. 10 lakhs.
Aggrieved by the said order of the Collector, the respondent preferred an appeal before the Tribunal.
The Tribunal by its order dated 2nd November, 1987, being the order under appeal, held that starch hydrolysate manufac tured by the respondent is not and never was marketable commodity, and hence that would not be "goods" on which excise duty could be charged.
In the premises, the Tribunal allowed the appeal filed by the respondent and set aside the order of the Collector.
Aggrieved thereby, the appellant has come up in appeal to this Court under section 35L(b) of the Act.
On behalf of the appellant, Shri Ganguly contended that the Tribunal misdirected itself in applying the proper test for the determination of the question.
He urged that the true test to determine in a 788 matter of this nature was to consider not only whether starch hydrolysate was actually marketable but also to consider whether conceptually the said goods in question were capable of being marketable.
It was urged by Shri Ganguly that the Tribunal had misdirected itself in not appreciating this aspect of the matter and did not as such examine or view the evidence on record in the proper per spective.
He urged that in the aforesaid light and in view of the findings made by the Collector, there was no ground for the Tribunal to interfere with the order of the Collec tor.
He further submitted that in any event, if the Tribunal was not fully satisfied with the evidence on record to determine whether starch hydrolysate were goods in the sense of being marketable, then the Tribunal should have, in the facts and the circumstances of the case and in the interest of justice, remanded the matter back for appraisement and examination in the light of the true principle or the Tribu nal should have examined or called for the fresh evidence to determine this question.
The Tribunal not having done so, has failed to render justice and as such the order of the Tribunal is bad, according to Shri Ganguly.
Shri Ganguly further submitted that in starch hydrolysate the percentage of dissolved solids present is 64.
It was submitted that the criterion laid down in the IS Specification for liquid glucose or glucose syrup, the two terms are being used synonymously by the Indian Standard Institution, was not satisfied in this case.
The IS Specification defines liquid glucose or glucose syrup as "a refined and concentrated non crystalizable aqueous solution of d glucose, maltose and other polymers of d glucose, obtained by controlled hydroly sis of starch containing material".
The United States Phar meopeia XIX describes liquid hydrolysis of starch, consist ing chiefly of dextrose, dextrins, maltose and water and in these circumstances and in view of the components and the dictionary meaning as discussed by the Tribunal in its order, it is urged that it cannot be said that the said goods is the same thing as glucose or glucose syrup.
In the premises, it was contended that the Tribunal has not consid ered this aspect of the matter.
We are concerned in this appeal with starch hydrolysate and, therefore, if the process or activity of the assessee brings into existence an article different and distinct from what it was before the process and a new identifiable arti cle known in the market as such comes into being, then the use of such starch hydrolysate captively would attract duty on the part of the assessee even in captive consumption.
It is not in dispute as the Tribunal noted in the instant case that starch is hydrolysed by the respondent.
The operation of hydrolysis, it is contended, results in bringing into being starch hydrolysate which is utilised in the manufac ture of sorbitol.
The question is whether 789 starch hydrolysate is "goods".
The case of the respondent was that the starch hydrolysate being wholly unstable and quickly fragmented and losing its character in a couple of days, the same could, therefore, neither be stored nor marketed.
In the premises, it was the case of the respondent that starch hydrolysate was not marketable product and would not, therefore, be "goods" on the manufacture of which excise duty could have been demanded or would have been payable and, therefore, for non payment of duty, there has been no negligence or failure on the part of the respondent and as such section 11 A of the Act was not applicable.
In this connection, it would be instructive to refer and it would be necessary to rely on the principles laid down by this Court in South Bihar Sugar Mills Ltd., etc.
vs Union of India & Ors.
, ; There, the appellant compa nies manufactured sugar by carbonation process and paid excise duty on sugar manufactured by them under Item I of Schedule I to the Act.
According to one affidavit filed on behalf of the respondents, filed in those proceedings, these manufacturers employed a process of burning lime stone with coke in a lime kiln with a regulated amount of air whereby a mixture of gases was generated consisting of carbon dioxide, nitrogen, oxygen and a small quantity of carbon monoxide.
The gas thus produced was thereafter compressed so as to achieve pressure exceeding atmospheric pressure and then passed through a tank containing sugarcane juice so as to remove impurities from it and to refine the juice.
For that process of refining it was only the carbon dioxide in the gas which was used and the other gases, i.e., nitrogen, oxygen and carbon monoxide escaped into the atmosphere by a vent provided for the purpose.
The carbon dioxide content in this mixture of gases ranged from 27 to 36.5%.
Similarly, another company manufactured Soda ash by solvay ammonia soda process for which also carbon dioxide was required and this was produced by the petitioner therein by burning lime stone with coke in a kiln in the same manner as the appellant sugar manufacturing companies employing the carbonation process.
The respondents therein regarded all the companies as manufacturers of compressed carbon dioxide and levied excise duty on them under Item 14 H in Schedule I to the Act.
Writ petitions were filed in the High Court challenging the validity of the excise duty but the same petitions were dismissed.
It was contended, inter alia, on behalf of the appellants therein that the lime kiln was maintained to generate a mixture of gases and not carbon dioxide and at no stage in the process of generating this mixture and passing it through the sugarcane juice was carbon dioxide which formed one of the contents of the mixture either com pressed, liquidified or solidified.
The mixture of gases so generated was not carbon dioxide as known to the market nor was it accord 790 ing to the specifications laid down by the Indian Standards Institution which required the carbon dioxide content to be at least 99%.
It was, therefore, contended that the excise duty sought to be recovered on the contend of carbon dioxide in the mixture of gases could not fall under Item 14 H.
It was further contended that the duty being on goods it could be charged only on goods known as carbon dioxide in the trade and marketable as such.
As is evident from the said narration of facts the contentions urged were more or less similar to the contentions involved in the instant appeal before us.
It was held by this Court that the gas generated by the appellant companies was kiln gas and not carbon dioxide as known to the trade, i.e., to those who dealt in it or who used it.
The kiln gas in question, therefore, was neither carbon dioxide nor compressed carbon dioxide known as such to the commercial community and therefore, could not attract item 14 H in the First Schedule.
This Court reiter ated at p. 31 of the report that the Act in question charges duty on manufacture of goods.
The word "manufacture" implies a change but every change in the raw material is not manu facture.
There must be such a transformation that a new and different article must emerge having a distinct name, char acter or use.
The duty is levied on goods.
As the Act does not define goods, the legislature must be taken to have used that word in its ordinary, dictionary meaning.
The diction ary meaning of the expression is that to become goods it must be something which can ordinarily come to the market to be bought and sold and is known to the market.
It would be such an article which would attract duty under the Act.
This Court referred to the previous decision in the case of Union of India vs Delhi Cloth & General Mills Ltd., [1963] Suppl.
1 SCR 586.
Therefore, in this instant appeal, in order to determine whether starch hydrolysate was "goods" or not, it is necessary to determine whether there was any application of process to the raw materials and as a result of that application there emerged new and different article having a distinctive name, character or use and the resultant product being goods in the sense of being marketable or marketed.
In this connection, Shri Soli Sorabjee referred us to the observations of this Court in Union Carbide India Ltd. vs Union of India and Ors., There, this Court reiterated that in order to attract excise duty, the article manufactured must be capable of being sold to a consumer.
Entry 84 of List I of Schedule VII to the Consti tution specifically speaks of "duty of excise on tobacco or other goods manufactured or produced in India" and it is now well accepted that excise duty is an indirect tax, in which the burden of the imposition is passed on to the ultimate consumer.
This Court held that in that context, the expres sion "goods manufactured or produced" must refer to articles which 791 are capable of being sold to a consumer.
To become "goods", an article must be something which can ordinarily come to the market to be bought and sold.
The Court found in that case that aluminium cans prepared by the appellants therein were employed entirely by it in the manufacture of flash lights and were not sold as aluminium cans in the market.
It also appeared from the records that aluminium cans at the point of levy of excise duty existed in a crude and elemen tary form which were incapable of being employed as a compo nent in a flashlight.
These cans had sharp uneven edges and in order to use them as a component in making flashlight cans, these cans had to undergo various processes such as trimming, threading and redrawing.
After that these were reeded, beaded and anodized or painted, it was at that point only that these became distinct and complete component capable of being used as flashlight cans for housing battery cells and having a bulb fitted to the can.
This Court noted that it was difficult to believe that the elementary and unfurnished form in which these existed immediately after extrusion sufficed to attract a market.
The assertion of the appellant on affidavit that aluminium cans were unknown in that form in the market had not been proved to the contrary by any satisfactory material by the respondents therein.
This Court further found that not a single instance had been provided by the respondents domenstrating that such alumini um cans had a market.
The conduct of the appellants in the past, having regard to the circumstances of the case, would not serve as evidence of the marketability of the aluminium cans, it was in that case.
This Court noted that record disclosed that whatever aluminium cans were produced by the appellants were subsequently developed by it into a complet ed and perfected component for being employed as flashlight cans.
In those circumstances, the aluminium cans produced by the appellants were not liable to excise duty under section 3 of the Act read with Item 27 of the Central Excise Tariff.
In the case of Bhor Industries Ltd., Bombay vs Collector of Central Excise, Bombay, ; , this Court had to deal with the liability to duty on intermediate products and it was reiterated that liability to excise duty arises only when there is manufacture of goods which is marketable or capable of being marketed.
It was held that excise is a duty on goods as specified in the Schedule.
The taxable event in the case of excise duties is the manufacture of goods.
Under the Act, in order to be goods as specified in the Entry, it was essential that as a result of manufacture goods must come into existence.
For articles to be goods, these must be known in the market as such or these must be capable of being sold in the market as goods.
Actual sale 792 is not necessary.
User in the captive consumption is not determinative but the articles must be capable of being sold in the market or known in the market as goods.
It is, there fore, necessary to find out whether these are goods, that is to say, articles as known in the market as separate distinct identifiable commodities and whether the tariff duty levied would be as specified in the Schedule.
Marketability, there fore, is an essential ingredient in order to be dutiable under the Schedule to .
In that case, the Court found that crude PVC firms as produced by the appellant were not known in the market and could not be sold in the market and was not capable of being marketa ble.
The Court further reiterated that it was the duty of the revenue to adduce evidence or proof that the articles in question were goods.
The Tribunal went wrong, it was held, in not applying the test of marketability.
There being no contrary evidence found by the Tribunal in that case, it was held that in those circumstances, no excise duty should be charged.
It is in this light, therefore, that the evidence dis cussed by the Tribunal in this case, have to be viewed in order to test the validity of the order impugned.
The case of the respondent had always been that starch hydrolysate was not being marketed and is not capable of being marketed in view of its highly unstable character resulting in fer mentation even if kept for a day or two.
Shri Ganguly ap pearing for the revenue sought to urge that the Tribunal was wrong in approaching the problem in that light.
The test was not whether the starch hydrolysate was not of a highly unstable character and resulted in fermentation even in a day or two, but whether it was capable of being marketable.
He submitted that the test applied was not the true test.
He urged that even transient items of articles can be goods, provided that these were known in the market as distinct and separate articles having distinctive and separate uses, these would still become goods if these were capable of being marketed even during short period.
From a conceptual and jurisprudential point of view, Shri Ganguly is right.
But we are concerned with the question whether actual goods in question were marketed or, in other words, if not, wheth er these are marketable or not.
It is true that the goods with unstable character can be theoretically marketable if there was a market of such transient type of articles which are goods.
But one has to take a practical approach.
The assessee produced evidence in the form of affidavit.
One Shri Khandot.
who filed an affidavit in support of the case of the respondent, had stated in his affidavit that com pletely hydrolysed starch would start fermenting and decom posin and at higher concentration it would start crystaliz ing out within two or three days.
This is evidence indicat 793 ing propensity of its not being marketed.
It is good evi dence to come to this conclusion that it would be unlikely to be marketable as it was highly unstable.
There was evi dence as noted by the Tribunal that it has not been marketed by anyone.
There is also an admission of the Superintendent of the appellant that no enquiry whatsoever was conducted by the Department as to whether starch hydrolysate was ever marketed by anybody.
It was pointed out by the revenue that even according to the respondent, it stored starch hydroly sate in tanks before transporting it through pipes but according to the appellant, the storage of starch hydroly sate was only for a period of a few hours only as a step in the process of transfer thereof to sorbitol.
It, therefore, appears to us that there was substantial evidence that having regard to the nature of the goods that this was unlikely that the goods in question were marketable.
This should be judged in the background of the evidence that the goods have not been marketed in a pregmatic manner.
All this again would have to be judged in the light of the fact that revenue has not adduced any evidence whatsoever though asked to do so.
It was pointed out that if the Department was to charge duty of excise on this starch hydrolysate as one form of glucose it would be the burden on the Department to establish that starch hydrolysate was not merely marketable but was being marketed as glucose in some form.
This would be so since what is liable for duty under item E is glucose in any form and, therefore, in order to demand duty under that section, the Department must establish that the product on which duty was demanded was known in the market as glu cose in one form or the other.
There .is no such evidence as observed by the Tribunal.
The Tribunal noted and, in our opinion, rightly that revenue cannot be said to have dis charged its burden of establishing that by applying the process of hydrolysis to starch for production of starch hydrolysate the respondent manufacturers any excisable goods in the sense of being goods known in the market and being marketed or marketable.
Our attention was drawn to the affidavit of Shri P.D. Khander, Chemist, who was a Food Technologist and was holding a degree of B.Sc.
(Chemistry).
He was carrying on business of dealing in glucose.
He stated in his affidavit as follows: .
I have been the starch hydroly sate made by Sarabhai M. Chemicals.
It is completely hydrolysed starch.
It appears as aqueous syrup containing about 66 71% reduc ing sugars expressed as Dextrose.
It is nei ther glucose or dextrose in any form nor glucose in liquid state nor liquid glucose.
In order to find out the market for completely hydrolysed starch as is made in Sarabhai M. Chemicals, at 794 their instance, I had made trade inquiries.
However, there is no market for such sub stance.
Since it can act only as an intermedi ate product for the manufacture of Sorbitol.
Dextrose or Glucose and Fructose and every manufacturer of Glucose, Dextrose, Sorbitol and Fructose would have his own plant for hydrolysing starch, it is commercially not a viable proposition both the manufacturers of Glucose, Dextrose, Sorbitol or Fructose or the persons undertaking the process of hydrolysing starch either to purchase completely hydroly sed starch from the market or sell or under take process of hydrolysing starch for the purpose of sale in the market, because at lower concentration, starch which is complete ly hydrolysed would start fermenting and decomposing.
At higher concentration, it would start crystallising out within two or three days.
" This affidavit evidence remains uncontradicted Shri Ganguly, however, drew our attention to an order of the Tribunal in M/s. Anil Starch Products Ltd., Ahmedabad vs The Collector of Central Excise, Ahmedabad being Appeal No. ED(SB)(T) 1534/81 D arising out of the Revision Order No. 820/81.
He referred to the observations at page 117 of the Paper Book which dealt with the evidence of one Shri Khabho lia, where, according to Shri Ganguly, the Tribunal came to a different conclusion.
But the Tribunal in that case relied on the decision of the Allahabad High Court in the case of Union of India vs Union Carbide India Ltd., There the Allahabad High Court held that things would be nevertheless goods even these did not have a general market, where they can be easily bought and sold.
The High Court hold that the fact that products might not be known to the general public or to the traders in general would not change the position and therefore the test did not appear to be sound.
This decision of the Allahabad High Court which was relied upon by the Tribunal was set aside by this Court in Appeal in the case of Union Carbide India Ltd. vs Union of India & Ors.
(supra).
In view of the test laid down and in view of the evidence discussed, it is difficult to sustain the order of the Tribunal.
In this connection, it appears that there was no market enquiry by the Revenue.
Reference may be made to the crossexamination of Shri Shukla, Superin tendent (Central Excise) by Shri Nanawati as appears at pp.
235 237 of the present paper book.
In view of the fact that there was positive evidence that starch hydrolysate was never marketed and in view of further fact that in the light of the nature of the goods being highly unstable, it is highly improbable that the goods were capable of being marketed and there being in spite of 795 the opportunities, no evidence produced at all that the goods, in fact, were capable of being marketable, in our opinion, it must be held as did the Tribunal that the starch hydrolysate were not dutiable under the Act.
In the premises, the revenue has failed to discharge its onus to prove that starch hydrolysate was dutiable.
In the premises, the Tribunal cannot be said to have committed any error.
The appeal must, therefore, fail and is, accordingly, dismissed.
In the facts and the circumstances of the case, there will, however, be no orders as to costs.
R.S.S. Appeal dis missed.
| IN-Abs | The respondent was engaged in the manufacture of sorbi tol, which fell under items 68 of the Central Excise Tariff.
During a visit to the factory premises by the Central Excise Officers it was found that the respondent also manufactured and captively consumed starch hydrolysate which, according to the appellant, was glucose and fell under Item E of the Central Excise Tariff.
In reply to the show cause notice issued by the appellant, the respondent contended that starch hydrolysate was not 'goods ' since the same was not marketable and therefore no excise duty was payable on it; and that even if the same was liable for duty it would not be under Item 1 E.
There were adjudication proceedings thereafter, and the adjudicator held that starch hydrolysate was glucose and fell under item E, and that the respondent had suppressed the fact of manufacture thereof.
In the premises, the adjudicator ordered payment of excise duty and further imposed a penalty.
The Tribunal, however, allowed the respondent 's appeal and held that starch hydrolysate manufactured by the re spondent was not, and never was, a marketable commodity, and hence that would not be 'goods ' on which excise duty could be charged.
The Revenue appealed to this Court.
Before this Court, it was inter alia contended on behalf of the appellant: (i) that the Tribunal misdirected itself in applying the proper test for the determination of the question, and that the true test to determine in a matter of this nature was to consider not only whether starch hydrolysate was actually marketable but also to consider whether conceptually the said goods were capable of being marketed, and the Tribunal should have examined or called for fresh evidence to deter mine that question; and (ii) even transient items of arti cles could he 'goods '.
provided these were known in the market as distinct and separate articles having distinct and separate uses, and if these were capable of being marketed even during short period.
784 785 On behalf of the respondent it was contended that; (i) starch hydrolysate which was utilised in the manufacture of sorbitol, was not being marketed and was not capable of being marketed in view of its highly unstable character resulting in fragmentation even if kept for a day or two; and (ii) starch hydrolysate was not marketable product and would not therefore be "goods" on the manufacture of which excise duty could have been demanded or would have been payable and therefore for non payment of duty, there had been no negligence or failure.
Dismissing the appeal, this Court, HELD: (1) If the process or activity of the assessee brings into existence an article different and distinct from what it was before the process and a new identifiable arti cle known in the market as such comes into being, then the use of such article in the instant case starch hydrolysate would attract duty on the part of the assessee even in captive consumption.
[788G] South Bihar Sugar Mills Ltd., etc.
vs Union of India & Ors.
, ; , referred to.
(2) The word "manufacture" implies a change but every change in the raw material is not manufacture.
There must be such a transformation that a new and different article emerges having a distinct name, character or use.
[790D] Union of India vs Delhi Cloth & General Mills Ltd., [1963] Supp. 1 SCR 586.
(3) Duty is levied on goods.
As the does not define "goods", the legislature must be taken to have used that word in its ordinary, dictionary meaning.
The dictionary meaning of the expression is that to become goods it must be something which can ordinarily come to the market to be bought and sold and is known to the market.
It would be such an article which would attract 'duty ' under the Act.
[790E] Union Carbide India Ltd. vs Union of India & Ors., (4) It is true that the goods with unstable character can be theoretically marketable if there was a market of such transient type of articles which are goods.
But one has to take a practical approach.
[792G] 786 (5) It was the duty of the Revenue to adduce evidence or proof that the articles in question were goods.
If the Department was to charge duty of excise on this starch hydrolysate as one form of glucose it would be the burden on the Department to establish that starch hydrolysate was not merely marketable but was being marketed as glucose in some form.
The Revenue has not produced any evidence whatsoever though asked to do so.
Bhor Industries Ltd. Bombay vs Col lector of Central Excise, Bombay; , [793A F] (6) It appears that there was no market enquiry by the Revenue.
In view of the fact that there was positive evi dence that starch hydrolysate was never marketed and in view of further fact that in the light of the nature of the goods being highly unstable, it was highly improbable that the goods were capable of being marketed and there being in spite of the opportunities, no evidence produced at all that the goods, in fact, were capable of being marketable, it must be held, as did the Tribunal, that the starch hydroly sate were not dutiable under the .
[794G 795A]
|
ivil Appeal No. 4080 of 1988.
From the Judgment and Order dated 18.3.88 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED/SB/1201/84 C. V. Lakshmikumaran, N.M. Popli and V.J. Francis for the Appellant.
A.K. Ganguli, K. Swamy, T.V.S.N. Chari and P. Parmeswa ran for the Respondent.
The appellants at all relevant times were manufacturing agarbaties, dhoop sticks, dhoop coil, dhoop powder falling under Tariff Item No. 68 of the erstwhile Central Excise Tariff.
The relevant period involved in the present Civil Appeal is from the year 1979 to 1983 84.
The appellants claimed exemption under notification No. 55/75 dated 1st March, 1975.
By the said notification, the Central Govern ment had exempted goods of the description in the Schedule annexed to the notification and falling under Tariff Item 68 of the First Schedule to the Act from the whole of duty of excise leviable thereon.
In the serial No. 8 of the Schedule to the said notification, 'Handicrafts ' were listed.
It is, therefore, clear that 'handicrafts ' were fully exempt from payment of duty of excise, according to the appellants.
Under the notification No. 111/78 dated 9th May, 1978, the appellants were exempted from 876 licensing control.
That is the case of the appellants.
The provision requiring a manufacturer to take out a licence is controlled by Rule 174 of the Central Excise Rules, 1944.
The relevant provision of Rule 174 at the relevant time provided, inter alia, as follows: "Rule 174.
Persons requiring a licence: Every manufacturer, trader or person hereinafter mentioned, shall be required to take out a licence and shall not conduct his business in regard to such goods otherwise than by the authority, and subject to the terms and conditions of a licence granted by a duly authorised officer in the proper Form" It is the case of the appellants that by this notifica tion, all goods which were exempt from the whole of duty of excise leviable thereon unconditionally were exempted from the operation of Rule 174.
The appellants were manufacturing dhoop sticks, coil and powder which the appellants contended before the Tribunal, were handicrafts under notification No. 55/75 and as such were exempt from licensing control under notification No. 111/78.
It is, therefore, necessary at this stage, in view of the contentions raised in this appeal, to refer to the notifications.
By first notification, i.e., notification No. 55/75, in exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government had exempted goods of the description specified in the Schedule annexed thereto and falling under Item No. 68 of the First Schedule to the Act from the whole of the duty of excise leviable thereon and, as mentioned hereinbefore, Item No. 8 of the Schedule annexed to the notification included among the exempted goods 'Handi crafts '.
The second notification, i.e., notification No. 111/78 CE dated 9th May, 1978, the Central Government ex empted from the operation of rule 174 of the said Rules, inter alia, all goods that are exempt from the whole of the duty of excise leviable thereon.
unconditionally.
The effect of this notification, was that manufacture of such goods were exempt from the operation of rule 174 of the said Rules.
As a result, it was not necessary to take out a licence as enjoined by rule 174.
The appellants had indicat ed the process of manufacture of dhoop sticks, coil and powder before the Tribunal and the process was as follows: "1.
The various ingredients/raw materials like perfumes, essential oils, natural oils and other raw materials are first mixed in specif ic proportions, by manual labour.
877 2.
These raw materials along with jigget and saw dust after serving by hand are mixed in a barrel with a stirrer with hand and made into a paste.
This paste is kneaded in the kneading machine operated by power.
This paste is put by hand in the extruder.
The extruder extrudes the paste in the form of needles with the aid of power.
As the paste is extruded from the extruder it is collected on a wooden tray which is of a particular size.
As it is collected on the tray it is cut on both sides to the accurate size by hand.
The thin long incense is then transferred by hand from the individual trays of long big tray by hand.
After transferring it is properly arranged by hand in a consolidated manner on the long big tray.
Another tray which has four slits called the cutting tray is placed on top of the long tray with the incense.
After placing the cutting tray a hand roller cutter is rolled along the slits of the cutting trays to cut the incense to the re quired sizes.
The extra length or width of the incense on the tray is then removed by hand.
The cut incense is then transferred to a drying tray by hand.
The incense is dried by stocking the trays in the drying yard.
The dried incense is broken at the cut ends.
The ten incense sticks are inserted into the packet.
878 16.
The incense packets are first punched with an eyelet.
Then twelve packets are wrapped in a cellophone wrapper.
" The revenue had issued trade notices indicating that agarbaties were handicrafts and were eligible to the exemp tion contained in the notification No. 55/75 dated 1st March, 1975.
Our attention was drawn by Shri V. Lakshmi Kumaran appearing for the appellant to the trade notice issued on 10th October, 1977, which read as follows: "PUNE TRADE NOTICE NO.
258/1977, (NO. 3/T.I. 68/ 1977) DT.
18.10.77 Agarbaties are exempt under Notfn.
55/75 Attention of the trade is invited to this Collectorate Trade Notice No. 179/1975 (No. 4/T.I. 68/1975) dated 4.10.75 on the above subject.
The issue has been reconsidered and it has been advised that Agarbaties are handicrafts and would be eligible to the exemption contained in the notification No. 55/ 75 CE dated the 1st March, 1975 (as amend ed).
" He also drew our attention to the certificate furnished by the Basic Chemicals, Pharmaceuticals & Cosmetics Export Promotion Council, which stated as follows: "This is to certify that Dhoop Sticks, Incense Cubes and Cone, Coils, Joss Sticks, are agar baties in different physical forms.
The ingre dients as well as end use for Agarbaties, Dhoop Sticks, Incense cubes and Cone, coils, joss sticks are one and the same.
Government of India has therefore categorised Dhoop Sticks, Incense cubes and cone, .coils, joss sticks as agarbaties and thus eligible for the same rate of export incentives.
" It was contended before the Tribunal on behalf of the appellants that dhoop sticks had been recognised by the Indian Handicrafts Board as handicrafts and that these were nothing else but agarbaties.
879 As indicated hereinbefore, Basic Chemicals, Pharmaceuticals and Cosmetics Export Promotion Council had also indicated that dhoop sticks, incense cubes and cone, coils joss sticks are agarbaties in different physical forms and that the end use of these and the ingredients used therein were one and the same and for that reason these had been made eligi ble for the benefit of export incentives as agarbaties.
Learned counsel for the appellants submitted that in the report on the Marketing of Handicrafts under the title "Survey of Indian Handicrafts" sponsored by the All India Handicrafts Board, which was brought out by Indian Coopera tive Union, agarbaties were mentioned, which according to counsel, indicated that these were recognized as handi crafts.
A letter was placed before the Tribunal which was issued by the Deputy Director, All India Handicrafts Board functioning under the Ministry of Commerce, Department of Export Production which had certified that the agarbaties were the products of the Indian Handicrafts Board, Ministry of Commerce.
Certain notifications were also drawn attention to of the Tribunal which indicated that agarbaties were handicrafts eligible for exemption under notification No. 55/75.
It was, therefore, contended that dhoop sticks, coil and powder were agarbaties and agarbaties were accepted as handicrafts by various authorities including the Central Government and mere use of power in the manufacture of these did not bar them from being called as handicrafts.
It was further contended that in any event, there was no warrant in invoking longer time limit of five years for raising the demand and if at all demand should be raised it should be for a period of six months reckoned from the date of six months prior to the issue of the show cause notice.
In those circumstances, it was submitted that the appellants should not be made liable beyond the period of six months from the date of issue of the show cause notice.
The Tribunal, howev er, referred to the definition of the term 'handicrafts ' given in the Concise Oxford Dictionary; 7th Edition, which stated as follows: "Manual skill; manual art or trade or occupa tion; man skilled in a handicraft." Therefore, in order to be handicrafts, the Tribunal proceeded, on the basis that it should be the result of manual skill.
But the respondent before the Tribunal pleaded that the raw materials for the dhoop are kneaded with the aid of power and after kneading the same, are extruded and the manual work that was done in the process was only in feeding of the raw materials by hand and later in the cut ting of the sticks to the desired length.
The distinction between handicrafts and 880 those which are machine made, would be clear from the defi nition adopted by UNCTAD.
The same reads as follows: "Some good may.
be produced partly by machine and partly by hand: (i.e. a dress made up by hand from machine made cloth, perhaps with additional hand embroidery or other decora tions) .
. in such cases a product should be regarded as hand made or handicrafts if the essential character of the product in its finished form is derived from the 'hand made ' aspect of its production." In the Import Policy of 1984 85, handicrafts and agar baties and dhoop figured under a Heading apart from handi crafts and stated that dhoop and agarbaties had been listed under traditional item in Appendix 17 at Serial No. V under Group Heading "Toiletry and Perfumery" while the handicrafts had been given separately in that Policy and this envisaged the handicraft to be manufactured by hand.
General Note I against the entry 'Handicrafts ' in the Policy Book stated as follows: "Articles which are classifiable elsewhere in this policy will be deemed to be 'Handicrafts ' falling in this group only if such articles, besides being made by hand, have some artistic or decorative value; they may or may not possess functional utility value in addition.
Artistic or decorative value of the article exported need not necessarily come out of any art work, engraving or decoration done on the article but the very form, shape or design of the article could also be artistic and sugges tive of the fact that the article is primarily meant for decorative and not for utility purposes.
" After analysing the findings and the trade notices and relying on the decision oil this Court in M.S. Company Private Limited vs Union of India, SC, the Tribunal in the light of the definition of "handicrafts" in the Encyclopaedia Britannica, came to the conclusion that in the manufacture of a product skill of the worker and the use of hand are two pre requisites for a product to qualify as a handicraft.
In the Encyclopaedia Britannica, handicraft has been defined as follows: "Occupation of making by hand usable products graced with visual appeal.
Handicrafts encom pass activities that 881 require a broad range of skills and equipment, including needle work, lace making, weaving printed textile, decoration, basketry, pot tery, ornamental metal working, jewelling, leather working, wood working, glassblowing, and the making of stained glass.
" It was found by the Tribunal that raw materials were mixed by hand and the first essential procedure in the manufacture of dhoop etc., is kneading of the raw materials and the next essential stage is the formation of the dhoop into sticks or coils.
Both these processes were carried out by the aid of power.
Only cutting of the sticks to the desired length was stated to be by hand.
It was not the case of the appellant that the formation of the dhoop sticks or coils, etc., there had been use of the skill of the human hand to give the dhoop its essential character.
But the Tribunal found that it was difficult to accept that these were handicrafts merely because some authorities have chosen to treat agarbaties as handicrafts.
Therefore, the Tribunal agreed with the Collector that these were not handicrafts.
In that view of the matter, the Tribunal upheld the order of the Collector on this point and held that these were dutia ble.
In view of the evidence examined by the Tribunal and in the light of the well settled principle and the background of the definition of handicrafts, it appears to us that the Tribunal was right in coming to the conclusion that only a very small portion of required work was done by hand.
The main part of the manufacture of agarbaties, etc.
was done with the aid of power.
It was the machine that produced predominantly the end product.
In that view of the matter, we are of the opinion that the Tribunal was right in holding that agarbaties were not handicrafts.
In coming to the aforesaid conclusion the tribunal had considered all rele vant materials and records and applied the correct princi ples of law.
These findings of the tribunal on this aspect are unassailable.
In the premises, when the appeal was filed and came up before this Court for hearing on 2nd March, 1989, on examination of these materials, this Court was satisfied that this contention of the appellant cannot be accepted and agarbaties were not handicrafts.
It was, howev er, further held by the Tribunal that the revenue was enti tled to levy tax for a period of five years prior to the issue of show cause notice and not six months pursuant to rule 9(2) of the Central Excise Rules.
The relevant portion of rule 9(2) provides as follows: "(2) If any excisable goods are, in contraven tion of subrule (1) deposited in, or removed from, any place specified therein, the produc er or manufacturer, thereof shall pay 882 the duty leviable on such goods upon written demand made within the period specified in section 11A of the Act by the proper officer, whether such demand is delivered personally to him, or is left at his dwelling house, and shall also be liable to a penalty which may extend to two thousand rupees, and such goods shall be liable to confiscation.
" It may be mentioned that rule 9(1) of the said Rules stipulated that no excisable goods shall be removed from any place where they are produced, except in the manner provided in the rules.
Therefore, the question that arises in this appeal is whether section 11 A of the Act applies or not.
The relevant provisions of section 11 A are as follows: "11 A. Recovery of duties not levied or not paid or shortlevied or short paid or errone ously refunded.
(1) When any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short levied or short paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts; or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub section shall have effect, as if the words "Central Excise Officer" the words "Collector of Central Excise", and for the words "six months", the words "five years" were substi tuted.
Explanation.
Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be." Shri V. Lakshmi Kumaran, learned counsel for the appel lant drew our attention to the observations of this Court in Collector of 883 Central Excise, Hyderabad vs M/s Chemphar Drugs and Lini ments, Hyderabad, [1989] 2 SCC 127 where at page 131 of the report, this Court observed that in order to sustain an order of the Tribunal beyond a period of six months and up to a period of 5 years in view of the proviso to sub section (1) of section 11 A of the Act, it had to be established that the duty of excise had not been levied or paid or short levied or short paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty.
It was observed by this Court that some thing positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or delib erate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liabil ity beyond the period of six months had to be established.
Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or sup pression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case.
The Tribunal, however, had held con trary to the contention of the appellants.
The Tribunal noted that dhoop sticks are different products from agar baties even though they belonged to the same category and the Tribunal was of the view that these were to be treated differently.
Therefore, the clarification given in the context of the agarbaties could not be applicable to dhoop sticks etc., and the Tribunal came to the conclusion that inasmuch as the appellant had manufactured the goods without informing the Central Excise authorities and had been remov ing these without payment of duty, these would have to be taken to attract the mischief of the provision of rule 9(2) and the longer period of limitation was available.
But the Tribunal reduced the penalty.
Counsel for the appellants contended before us that in view of the trade notices which were referred to by the Tribunal, there is scope for believ ing that agarbaties were entitled to exemption and if that is so, then there is enough scope for believing that there was no need of taking out a licence under rule 174 of the said Rules and also that there was no need of paying duty at the time of removal of dhoop sticks, etc.
Counsel further submitted that in any event apart from the fact that no licence had been taken and for which no licence was required because the whole duty was exempt in view of notification No. 111/78, referred to hereinbefore, and in view of the fact that there was scope for believing that it was exempt under Schedule annexed to the first notification, i.e., 55/75, being handicrafts, the appellants could not be held to be guilty of the fact that excise duty had not been paid or short levied or short paid or erron 884 eously refunded because of either any fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder.
These ingredients postulate a positive act.
Failure to pay duty or take out a licence is not necessarily due to fraud or collu sion or wilful misstatement or suppression of facts or contravention of any provision of the Act.
Suppression of facts is not failure to disclose the legal consequences of a certain provision.
Shri Ganguly, appearing for the revenue, contended before us that the appellants should have taken out a licence under rule 174 of the said Rules because all the goods were not handicrafts and as such were not exempted under notification No. 55/75 and therefore, the appellants were obliged to take out a licence.
The failure to take out the licence and thereafter to take the goods out of the factory gate without payment of duty was itself sufficient, according to Shri Ganguly, to infer that the appellants came within the mischief of section 11 A of the Act.
We are unable to accept this position canvassed on behalf of the revenue.
As mentioned hereinbefore, mere failure or negli gence on the part of the producer or manufacturer either not to take out a licence in case where there was scope for doubt as to whether licence was required to be taken out or where there was scope for doubt whether goods were dutiable or not, would not attract section 11 A of the Act.
In the facts and circumstances of this case, there were materials, as indicated to suggest that there was scope for confusion and the appellants believing that the goods came within the purview of the concept of handicrafts and as such were exempt.
If there was scope for such a belief or opinion, then failure either to take out a licence or to pay duty on that belief, when there was no contrary evidence that the producer or the manufacturer knew that these were excisable or required to be licenced, would not attract the penal provisions of section 11 A of the Act.
If the facts are otherwise, then the position would be different.
It is true that the Tribunal has come to a conclusion that there was failure in terms of section 11 A of the Act.
Section 35 L of the Act, inter alia, provides that an appeal shall lie to this Court from any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment.
Therefore, in this appeal, we have to examine the correctness of the decision of the Tribunal.
For the reasons indicated above, the tribunal was in error in applying the provisions of section 11 A of the Act.
There were no materials from which it could be inferred or established that the duty of excise had not been levied or paid or short levied or short paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or 885 contravention of any of the provisions of the Act or of the rules made thereunder.
The Tribunal in the appellate order has, however, reduced the penalty to Rs.5,000 and had also upheld the order of the confiscation of the goods.
In view of the fact that the claim of the revenue is not sustainable beyond a period of six months on the ground that these dhoop sticks, etc.
were not handicrafts entitled to exemption, we set aside the order of the tribunal and remand the matter to the tribunal to modify the demand by confining it to the period of six months prior to issue of show cause notice and pass consequential orders in the appeal on the question of penalty and confiscation.
The appeal is allowed to the extent indicated above and the matter is, therefore, remand ed to the tribunal with the aforesaid directions.
This appeal is disposed of accordingly.
R.S.S. Appeal allowed.
| IN-Abs | The appellant was a manufacturer of agarbatis, dhoop sticks, dhoop coil and dhoop powder failing under Tariff Item No. 68 of the Central Excise Tariff.
It claimed exemp tion from duty of excise on the ground that these items being handicrafts were fully exempt from such payment under notification No. 55/75.
The appellant 's further case was that under Notification No. 111/78 all goods which were exempt from the whole of duty of excise leviable thereon unconditionally were exempted from the operation of Rule 174 of the Central Excise Rules, which required a manufacturer to take out a licence.
The Collector rejected the claim of the appellant and held that these items were not handicrafts.
It was contended before the Tribunal that dhoop sticks, coil and power were agarbaties and agarbaties were accepted as handicrafts by various authorities including the Central Government; mere use of power in the manufacture of these items did not bar them from being called handicrafts; and, in any event, there was no warrant in invoking longer time limit for five years for raising the demand.
The Tribunal rejected the contentions of the appellant.
It was found by the Tribunal that the main part of the manufacture of agarbaties, etc. was done with the aid of power; only a very small part of the required work was done by hand; and that it was difficult to accept that these were handicrafts merely because some authorities had chosen to treat agarbaties as handicrafts.
The Tribunal held that the Revenue was entitled to levy tax for a period of five years prior to the issue of show cause notice and not six months pursuant to rule 9(2) of the Central Excise Rules.
874 Before this court, it was contended on behalf of the appellant that in order to sustain the order of the Tribunal beyond a period of six months and upto a period of 5 years under section 11 A it had to be established that the duty of excise had not been levied or paid by reason of either fraud or collusion or wilful mis statement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment, as provided in the proviso to sub section (1) of section 11 A.
In this context, it was urged that there was scope for believing that agar baties were entitled to exemption and if that was so, then there was enough scope for believing that there was not need of taking out a licence under rule 174 of the Central Excise Rules, 1944.
On the other hand, the Revenue contended that the failure to take out the licence and thereafter to take the goods out of the factory gate without payment of duty was itself sufficient to infer that the appellant came within the mischief of section 11 A of the Act.
While partly allowing the appeal, and remanding the case to the Tribunal to modify the demand, this Court, HELD: (1) In view of the evidence examined by the Tribu nal and in the light of the well settled principle and the background of the definition of handicrafts, the Tribunal was right in holding that agarbaties were not handicrafts.
[881D E] M.S. Company Private Limited vs Union of India, SC, referred to.
(2) Failure to pay duty or take out a licence is not necessarily due to fraud or collusion or wilful mis state ment or suppression of facts or contravention of any provi sion of the Act.
Suppression of facts is not failure to disclose the legal consequences of a certain provision.
[884B] Collector of Central Excise, Hyderabad vs M/s. Chemphar Drugs and Liniments, Hyderabad, [1989] 2 SCC 127, referred to.
(3) Mere failure or negligence on the part of the pro ducer or manufacturer either not to take out a licence in case where there was scope for doubt whether goods were dutiable or not, would not attract section 11 A of the Act.
[884D] (4) In the facts and circumstances of the case, there were materials to suggest that there was scope for confusion and the 875 appellants believing that the goods came within the purview of the concept of handicrafts and as such were exempt.
If there was scope for such a belief or opinion, then failure either to take out a licence or to pay duty on that belief, when there was no contrary evidence that the producer or the manufacturer knew that these were excisable or required to be licenced, would not attract the penal provisions of section 11 A of the Act.
If the facts were otherwise, then the position would be different.
[884E F]
|
Criminal Appeal No. 524 of 1989.
From the Judgment and Order dated 25.5.1989 of the Punjab and Haryana High Court in Criminal Appeal No. 175 of 1986.
M.C. Bhandare, (N.P.) and Gopal K. Bansal for the Appellants.
Mahabir Singh for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
We grant special leave and proceed to dispose of this appeal.
On June 28, 1980 the appellants formed a partnership firm for the purpose of running a rice mill in the name and style of M/s Panna Lal Prem Nath Rice Mills at Shahput.
They have been convicted by the Presiding Officer of the Special Court, Karnal by judgment dated March 10, 1986 for contra vention of the provisions of the Haryana 888 Rice Procurement (Levy) Order, 1979, read with section 7 of the .
They were sentenced to six months ' rigorous imprisonment and a fine of Rs.2,000 each.
The High Court of Punjab and Haryana has confirmed that conviction and sentence.
They now appeal against conviction.
The facts which gave rise to the charge, in so far as material, were these: In 1984, the firm purchased 5373 quintals 69 kgs.
and 400 gms of common paddy from the mar ket.
By the rate of conversion of paddy into rice an average 3582.49 quintals of rice should have been obtained from that much of quantity of paddy.
As per levy rules the firm ought to have supplied 3224.21 quintals of rice to the Government but the firm failed to supply it.
Instead it supplied only 15 10 quintals of rice.
There was thus a short supply of 1714.17 quintals of levy rice to the Government.
On another occasion the firm purchased 2353.79 quintals of superfine paddy out of which 1566.62 quintals of rice could be ob tained.
From that, the firm gave the Government 933.89 quintals of rice as against 1174.96 quintals.
Here again there was a short supply of 241.07 quintals of superfine levy rice.
The short supply of levy rice is a contravention of the Haryana Rice Procurement (Levy) Order 1979 and punishable under section 7 of the .
All the partners of the firm were charge sheeted and put to trial for the said offence.
They were also convicted and sentenced as earlier stated.
Counsel for the appellants urged that there is no evi dence adduced by the prosecution that the appellants were in charge of the business of the firm when the offence was committed and in the absence of any such evidence the con viction could not be sustained.
Counsel rested his submis sion on the text of section 10 of the .
This section provides: "10.
Offences by companies (1) If the person contravening an order made under section 3 is a company, every person who, at the time of contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: 889 Provided that nothing contained in this sub section render any such person liable to any punishment if he proves that the con travention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
(2) Notwithstanding anything con tained .in sub section where an offence under this Act has been committed by a company and it is proved that the offence has been commit ted with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manag er, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
" Explanation For the purposes of this section, (a) "Company" means any body corporate, and includes a firm or other association of indi viduals, and (b) "director" in relation to a firm means a partner in the firm.
From explanation to section 10 it will be seen that the company includes a firm and other association of persons.
Section 10 provides that the person shall be deemed to be guilty of contravention of an order made under section 3 if he was incharge of and was responsible to the firm for the conduct of the business of the firm.
What is of importance to note is, that the person who was entrusted with the business of the firm and was responsible to the firm for the conduct of the business, could alone be prosecuted for the offence complained of.
Counsel for the State, however, relied upon the legal liability of partners and he argued that it would be for the accused partners to prove that the offence was committed without their knowledge or in spite of exercising due dili gence on their part.
He relied upon the proviso to sub section (1) of sec. 10.
It is true that under the , a 'firm ' or 'partnership ' is not a legal entity but is merely an association of persons agreed to carry on business.
It is only a collective name for individuals, carrying on business in partnership.
The essen tial characteristic of a firm is that each partner is a representative of other partners.
Each of the partners is an agent as 890 well as a principal.
He is an agent in so far as he can bind the other partners by his acts within the scope of the partnership agreement.
He is a principal to the extent that he is bound by acts of other partners.
In fact every partner is liable for an act of the firm.
Section 2(a) of the Part nership Act defines an "act of a firm" to mean any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm.
But we are concerned with a criminal liability under penal provision and not a civil liability.
The penal provi sion must be strictly construed in the first place.
Second ly, there is no vicarious liability in criminal law unless the statute takes that also within its fold.
Section 10 does not provide for such liability.
It does not make all the partners liable for the offence whether they do business or not.
It is, therefore, necessary to add an emphatic note of caution in this regard.
More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm.
There may be partners, better known as sleeping partners who are not required to take part in the business of the firm.
There may be ladies and minors who were admitted for the benefits of partner ship.
They may not know anything about the business of the firm.
It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub section (1) that the offence was committed without their knowledge.
It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition men tioned in sub section (1) is established.
The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business.
In the absence of any such proof, no part ner could be convicted.
We, therefore, reject the contention urged by counsel for the State.
We have perused the evidence of the prosecution.
Santlal Inspector, Food and Civil Supplies (PW 1) has deposed that the accused were partners of the firm.
He has stated that the statement exhibit P. 8 regarding purchase of paddy and supply of levy rice was signed by Lajpat Rai as partner on behalf of the firm.
The rest of his statement relates to the short supply of levy rice, and it does not indicate that other partners were also conducting the business during the relevant time.
The statement of PW 3 who investigated the case does not indicate anything further.
He has seized the relevant docu 891 ments like stock register and recovery memo and arrested all the four accused.
These documents do not indicate even remotely that all the partners were doing the business of the firm.
There is no other evidence on record on this aspect.
With these tit bits, it is impossible to hold that when the offence was committed all the partners were con ducting the business of the firm.
However, Lajpat Rai ac cused No. 3 cannot escape the liability.
The material on record indicates that he was conducting the business of the firm and in fact, he has signed the statement exhibit P. 8 on behalf of the firm.
His conviction cannot therefore be disturbed.
But the conviction of other partners is absolute ly uncalled for.
In the result we allow the appeal, set aside the convic tion and sentence of appellant Nos. 1, 2 and 4 and acquit them from all the charges.
The conviction and sentence of appellant No. 3, however, are maintained.
P.S.S. Appeal allowed.
| IN-Abs | The short supply of levy rice to the State Government by licensed millers is a contravention of the Haryana Rice Procurement (Levy) Order, 1979 made under section 3 of the Essen tial Commodities Act, 1955.
The said contravention is pun ishable under section 7 of the Act.
Under section 10(1) of the Act a person is deemed to be guilty of contravention of such an order, if he was in charge of and was responsible to the company for the conduct of its business.
Under the proviso thereto, a person is, however, not liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
Under explanation (a) to the section the term "company" includes a firm or other association of individuals.
The appellants, partners of a firm running a rice mill, were convicted for contravention of the provisions of the procurement order read with section 7 of the Act, and sentenced to rigorous imprisonment and fine.
The High Court confirmed the conviction and sentence.
In this appeal by special leave, it was contended for the appellants that there was no evidence adduced by the prosecution that they were in charge of the business of the firm when the offence was committed and in the absence of any such evidence the conviction could not be sustained.
Partly allowing the appeal, 887 HELD: 1.
There is no vicarious liability in criminal law unless the statute takes that also within its fold.
Section 10 of the does not provide for such liability.
It does not make all the partners liable for the offence whether they do business or not.
[890C] 2.1 The obligation for the accused to prove under the proviso to section 10(1) that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence, arises only when the prosecution establishes that the requisite condition mentioned in sub section 1 that the partner was responsible for carrying on the business and was during the relevant time in charge of the business, is satisfied.
[890E] 2.2 In the instant case PW 1 had deposed that the state ment regarding purchase of paddy and supply of levy rice was signed by appellant No. 3 as partner on behalf of the firm.
There is no other evidence on record to indicate that other partners were also conducting the business of the firm when the offence was committed.
[890G 891A] The conviction and sentence of appellant No. 3 are, therefore, maintained.
The conviction and sentence of appel lant Nos. 1, 2 and 4 are set aside.
They are acquitted from all the charges.
[891C]
|
ivil Appeal No. 3091 of 1985.
From the Judgment and Order dated 30.11.84 of the Alla habad High Court in S.A. No. 1137 of 1984.
Kapil Sibal, (N.P.), Mr. Rajiv Dhawan, R.K. Gupta, H. Sharma and Ms. Indu Sharma for the Appellant.
Satish Chandra, M.C. Goel, K.P. Singh and N.N. Sharma for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The main question before us is whether a Regional Rural Bank established by a notification under section 3 of the is "State" for the purposes of of the Constitution of India.
This appeal by special leave arises out of a suit by the respond ent No. 1, an employee of the appellant Bank, challenging the validity of a disciplinary proceeding against him and order of his dismissal from service passed therein.
The trial court decreed the suit and the decree was confirmed by the Additional District Judge in appeal and by the High Court in second appeal.
The facts briefly stated, omitting the details which are not relevant for the purpose of this judgment, are in a short compass.
The respondent No. 1 was, in 1981, served with a lengthy charge sheet containing many accusations, some of them being serious, and he was called upon to file his show cause.
A large number of documents were mentioned in the charge sheet and the respondent demanded copies thereof for the purpose of filing his reply.
According to the appellant several opportunities were given to the re spondent to inspect the documents (excepting a few in re spect of which privilege was claimed), but the respondent did not avail of them with the object of protracting and 938 frustrating the inquiry.
According to the High Court, the opportunity given by the appellant was not adequate.
Due to certain circumstances the inquiry could not make any progress for sometime.
A new inquiry officer entrusted with the proceeding took up the matter on 5.7.
1983, when the respondent No. 1 contended that he must be given an adequate opportunity of examining the relevant documents for facili tating him to file his written statement.
There is serious controversy between the parties as to the interpretation of the conduct of the delinquent servant and the approach adopted by the inquiry officer on the 5th of July and the subsequent dates, but we do not consider it necessary to deal with this aspect in detail as we agree with the view of the High Court that as the respondent was not given adequate opportunity to examine the documents, he was handicapped in filing his show cause and defending himself effectively.
The suit was filed by the respondent immediately after the order dated 5th July, 1983 was passed.
The disci plinary proceeding, however, proceeded ex parte and ulti mately the respondent was dismissed from service.
By an amendment of the plaint, the respondent was allowed to challenge the dismissal order also.
The respondent has asserted that it was the vindic tive attitude of the Bank authorities which led to the initiation of the disciplinary proceeding against him and the order of his suspension, and the inquiry have been vitiated by serious violation of principles of natural justice.
Besides denying these allegations, the appellant Bank contended that having regard to the nature of relation ship of master and servant between the parties, the decree for re instatement of the respondent was illegal and the suit as framed was not maintainable.
Even assuming that the respondent proves his case on merits, his remedy would be a suit for damages.
Alternatively, if the respondent is held to be a public servant so as to enable him to ask for re instatement in the service, the suit must be dismissed as not maintainable in view of the provisions of the U.P. Public Services (Tribunal) Act, 1976.
There has also been a stout denial of the allegations relating to violation of principles of natural justice.
Both the learned advocates representing the parties invited us to go deeply into the facts, but we have declined to do so, as all the three courts below have considered the matter in great detail and we agree with the High Court that the inquiry officer should have given adequate opportunity to the respondent to examine the relevant documents for the purpose of preparing his reply.
Not having done so, the 939 further orders in the proceeding must be held to be vitiat ed.
We, however, do not agree with the contention of Mr. Satish Chandra, the learned counsel for the respondent, that the entire proceeding from its very inception is fit to be quashed as illegal.
Now remains the issue relating to the maintainability of the suit.
So far the provisions of the U.P. Public Serv ices (Tribunal) Act, 1976 are concerned, they are wholly in applicable.
Section 6 of the Act bars the jurisdiction of the civil court to entertain a suit against the State of Uttar Pradesh and certain other authorities by a person who is or has been a "public servant" as defined in section 2(b) of the Act in the following words: "2. Definitions.
In this Act (a) . . . (b) "public servant" means every person in the service or pay of (i) the State Government; or (ii) a local authority not being a Cantonment Board; or (iii) any other corporation owned or controlled by the State Government (including any company as defined in Section 3 of the in which not less than fifty per cent of paid up share capital is held by the State Government) but does not include (1) a person in the pay or service of any other company; or (2) (a) a member of the All India Services or other Central Services;" The appellant Prathama Bank is not covered by the above definition.
It was constituted in exercise of power con ferred by section 3 of the .
It has been sponsored by the Syndicate Bank, a nationalised bank.
Although fifteen per cent of the total capital of the Bank has been contributed by the State of Uttar Pradesh, it has no controlling power, and none of the conditions mentioned in section 2(b) of the U.P. Act is satisfied.
The plaintiff respondent is, therefore, not a "public servant" within the limited meaning of the expression 940 used in the U.P. Act and the courts below are right in overruling the defence plea of the bar by the U.P. Act.
The main point pressed on behalf of the appellant is that the Bank cannot be deemed to be 'State ' for the pur poses of Part III of the Constitution, and so the decree for re instatement of the respondent is illegal.
The learned counsel cited several decisions in support of his argument, but we do not consider it necessary to refer to all of them in view of the authoritative pronouncements of this Court on this aspect.
In Ajay Hasia and others vs Khalid Mujib Shera vardi and others; , , it was held by a Consti tution Bench that the test for determining if an authority falls within the definition of State in Article 12 of the Constitution is whether it is an instrumentality or agency of the Government.
The enquiry has to be not as to how the juristic person is born but why it has been brought into existence.
It is, therefore, immaterial whether the authori ty is created by a statute or under a statute.
The Court after examining the Memorandum of Association and the Rules in that case held the Society which was registered under the Jammu & Kashmir Registration of Societies Act to be an 'authority ' within the meaning of Article 12.
It was pointed out that the composition of the Society was dominated by the representatives appointed by the Central Government and the Governments of several States with the approval of the Central Government; the cost of meeting the expenses came from the Central Government and the Government of Jammu & Kashmir; the rules to be made by the Society were required to have the prior approval of the two Governments; the accounts had to be submitted to the two Governments for their scrutiny; the Society was to comply with the direc tions of the State Government with the approval of the Central Government; and the control of the State and the Central Government was thus deep and pervasive.
Reference was also made to the provisions in regard to the appointment and removal of the members of the Society and to the consti tution and powers of the Board of Governors.
An examination of the relevant circumstances in regard to the appellant Bank in the light of this decision leads to the irresistible conclusion that it is an instrumentality of the Central Government.
As has been stated earlier, the Bank was estab lished under the provisions of the Regional Rural Banks act, 1976.
The preamble of the Act which is mentioned below clearly indicates that the Regional Rural Banks are estab lished to discharge the duties which are basically the responsibility of a welfare State. "An Act to provide for the incorporation, regulation and 941 winding up of Regional Rural Banks with a view to developing the rural economy by providing, for the purpose of development of agriculture, trade, commerce, industry and other productive activities in the rural areas, credit and other facilities, particularly to the small and marginal farmers, agricultural labourers, artisans and small enterpreneurs, and for matters connected therewith and incidental thereto.
" Section 3 says that if requested by a Sponsor Bank, the Central Government may establish a Regional Rural Bank in the manner provided therein.
The Sponsor Bank in the present case was a nationalised bank, which has been held to be under the control of the Central Government and, therefore, covered by the definition in Article 12 of the Constitution.
The share capital of a Rural Bank is to be subscribed by the Sponsor Bank which has the further duty of training the personnel of the Rural Bank and providing managerial and financial assistance during the initial stage.
The duration of such period can be extended by the Central Government.
The Central Government is also vested with power to increase or reduce the authorised capital in consultation with the Reserve Bank and the Sponsor Bank.
The burden to subscribe to the capital issued by the Rural Bank is divided amongst the Central Government, Sponsor Bank and the State Govern ment, their respective shares being fifty per cent, thirty five per cent and fifteen percent.
The general superintend ence, direction and management of the affairs of the Rural Bank vest in a Board of Directors which is constituted of two Directions to be nominated by the Central Government, one Director to be nominated by the Reserve Bank from amongst one of its Officers, one Director to be nominated by the National Bank from amongst one of its Officers, two Directors to be nominated by the Sponsor Bank from amongst its Officers and the remaining two Directors to be nominated by the State Government from its Officers.
In view of the relationship with and control of the Central Government on the Reserve Bank, National Bank and the Sponsor Bank, the Central Government gets an effective control over the Rural Bank.
The head office of the Rural Bank is to be located according to the directions of the Central Government.
The remunerations of the Officers and other employees of the Rural Bank are to be fixed by the Central Government as indicated in section 17.
Without attempting to exhaustively deal with the functions of a Rural Bank, section 18(2) mentions the following types of business within its duty: "18.(1). . (2). . 942 (a) the granting of loans and ad vances, particularly to small and marginal farmers and agricultural labourers, whether individually or in groups, and to co operative societies, including agricultural marketing societies, agricultural processing societies, co operative farming societies, primary agri cultural credit societies or farmers ' service societies, for agricultural purposes or agri cultural operations or for other purposes connected therewith; (b) the granting of loans and ad vances, particularly to artisans, small enter preneurs and persons of small means engaged in trade, commerce or industry or other produc tive activities, within the notified area in relation to the Regional Rural Bank.
" It is manifest that by establishing the Rural Banks the Central Government acts in discharge of its obligations under Articles 38 and 48 of Part IV of the Constitution through them.
To ensure that the object of establishing Rural Banks is fully achieved, sub section (2) of section 20 of the Act has brought both the houses of the Parliament also in the picture in the following words: "(2) The Central Government shall cause every auditor 's report and report on the working and activities of each Regional Rural Bank to be laid, as soon as may be after they are re ceived, before each House of Parliament." By section 24 A the Sponsor Bank is required to periodically monitor the progress of the Rural Banks and to take connect ed steps, and to cause inspection, internal audit et cetra made.
The rule making power dealt with in section 29 is vested in the Central Government and the power of the Central Govern ment to give directions is mentioned in section 24, quoted below: "24(1) A Regional Rural Bank shall, in the discharge of its functions, be guided by such directions in regard to matters of policy involving public interest as the Central Government may, after consultation with the Reserve Bank, give.
(2) If any question arises as to whether any such direction relates to a matter of policy involving public interest, the decision of the Central Government thereon shall be final.
" 943 The provisions of the Act do not leave any room for doubt that the Regional Rural Banks are under deep and pervasive control of the Central Government and have been established as its instrumentality and, are, therefore, 'State ' within Article 12 of the Constitution.
The learned counsel contended that even if the appel lant Bank is considered to be State, the courts cannot force the services of the respondent on it by passing a decree for his re instatement in service.
All that can be done is to grant a relief of way of compensation in a properly consti tuted suit.
We do not find any merit in the argument.
The learned counsel relied on the following observations in paragraph 103 of the judgment in Central Inland Water Trans port Corporation Ltd. and another vs Brojo Nath Ganguly and another reported in, [1986] 3 SCC at page 156: "The contesting respondents could, therefore, have filed a civil suit for a declaration that the termination of their service was contrary to law on the ground that the said Rule 9(i) was void.
In such a suit, however, they would have got a declaration and possibly damages for wrongful termination of service but the civil court could not have ordered reinstatement as it would have amount ed to granting specific performance of a contract of personal service.
As the Corpora tion is "the State", they, therefore, adopted the far more efficacious remedy of filing a writ petition under Article 226 of the Consti tution".
Far from helping the appellant, the observations clarify the correct position which is just contrary to the argument of the learned counsel.
In the result, the departmental proceeding against the respondent from 5.7.1983 onwards is quashed and the decree for the plaintiffs reinstatement in service with consequential benefits is confirmed.
If the Bank authorities be of the view that in spite of the delay of several years the inquiry ought to be completed, it will be open to them to proceed with it and to take further steps in the proceed ing from the stage where it stood on 5.7.
1983, but they should indicate their intention to do so to the respondent and also serve copies of the relevant document on him.
If they are of the view that any particular document is confi dential in nature and a copy thereof cannot be handed over to the respondent they may so indicate in writing to the respondent and it will be open to the inquiry officer to examine whether the denial of such a copy would amount to violation of principles of 944 natural justice.
The Bank shall also permit the respondent to join his post and receive his other benefits before he is called upon to file a show cause.
Subject to the modifica tions as indicated the decree under appeal is affirmed.
The parties are directed to bear their own costs of this Court.
| IN-Abs | The respondent who was an employee of the appellant bank was dismissed from service on the basis of disciplinary proceedings instituted against him.
He filed a suit chal lenging the validity of the disciplinary proceedings on the ground that the inquiry was vitiated by serious violation of principles of natural justice.
The trial court decreed the suit.
The decree was confirmed by the Additional District Judge in appeal, and by the High Court in second appeal.
Before this Court, the appellant contended that (i) having regard to the nature of relationship of master and servant between the parties, the decree of re instatement of the respondent was illegal, and the suit as framed was not maintainable because the respondent 's remedy was a suit for damages; (ii) alternatively, if the respondent was held to be a public servant so as to enable him to ask for re in statement in the service, the suit must be dismissed as not maintainable in view of the provisions of the U.P. Public Services (Tribunal) Act, 1976; and (iii) there was no viola tion of the principles of natural justice.
While confirming the decree with modifications, this Court, HELD: (1) The High Court was right in holding that as the respondent was not given adequate opportunity to examine the documents, he was handicapped in filing his show cause and defending himself effectively.
[938C] 936 (2) The appellant bank is not covered by the definition of 'public servant ' in section 2(b) of U.P. Public Services (Tribunal) Act, 1976.
It has been constituted in exercise of the power conferred by section 3 of the , and has been sponsored by the Syndicate Bank, a natio nalised Bank.
Although fifteen per cent of the total capital of the Bank has been contributed by the State of Uttar Pradesh, it has no controlling power, and none of the condi tions mentioned in section 2(b) of the U.P. Act is satisfied.
[939G] (3) The plaintiff respondent is not a "public servant" within the limited meaning of the expression used in the U.P. Act and the courts below are right in overruling the defence plea of the bar by the U.P. Act on the jurisdiction of the civil court to entertain the suit.
[939H 940A] The test for determining if an authority fails within the definition of State in Article 12 of the Constitution is whether it is an instrumentality or agency of the Govern ment.
The enquiry has to be not as to how the juristic person is born but why it has been brought into existence.
It is therefore, immaterial whether the authority is created by a statute or under a statute.
[940C] Ajay Hasia & Ors.
vs Khalid Mujib Sheravardi & Ors., ; , referred to.
(5) An examination of the relevant circumstances in regard to the appellant Bank leads to the irresistible conclusion that it is an instrumentality of the Central Government.
By establishing the Rural Banks the Central Government acts in discharge of its obligations under Arti cles 38 and 48 of Part IV of the Constitution through them.
[940G, 942C] (6) The provisions of the do not leave any room for doubt that the Regional Rural Banks are under deep and pervasive control of the Central Government and have been established as its instrumentality and, are, therefore, 'State ' within Article 12 of the Con stitution.
[943A] (7) There is no merit in the argument that the Courts cannot force the services of the respondent on the appellant bank by passing a decree for his re instatement in service and all that can be done is to grant a relief by way of compensation in a properly consti tuted suit.
[943B] Central Inland Water Transport Corporation Ltd. vs Brojo Nath Ganguly, , referred to. 937 (8) In the instant case, the departmental proceeding against the respondent from 5.7.1983 onwards is quashed and the decree for the plaintiff 's re instatement in service with consequential benefits is confirmed, subject to the modification that if the Bank authorities be of the view that in spite of the delay of several years the inquiry ought to be completed, it will be open to them to proceed with it and to take further steps in the proceeding from the stage where it stood on 5.7.1983, in accordance with the directions of the Court in this judgment.
[943F G]
|
Civil Appeal No. 3955 (NCE) of 1987.
From the Judgment and Order dated 16.11.1987 of the Patna High Court in Election Petition No. 4 of 1985.
924 R.K. Garg and D.K. Garg for the Appellant.
S.N. Singh, H.L. Srivastava, B.M. Sharma and T.N. Singh for the Respondent.
The Judgment of the Court was delivered by SAIKIA, J.
This election appeal under S.116A of the Representation of the People Act 1951, hereinafter referred to as 'the Act ', is from the Judgment of the Patna High Court (Ranchi Bench) in the respondent 's Election Petition No. 4 of 1985 allowing the petition and declaring the elec tion of the appellant to the Bihar Legislative Assembly from the 286 Chandan Kyari (S.C.) Constituency to be void.
Pursuant to the Notification of Election to the Bihar Legislative Assembly, the Returning Officer of the 286 Chandan Kyari (S.C.) Assembly Constituency announced the following programme: A.
Last date for filing nomination paper 6.2.1985 B. Date of the Scrutiny of the nomination paper 7.2.1985 C.
Last date of withdrawal of candidature 9.2.1985 D. Date of Poll 5.3.1985 E. Date of counting 6.3.1985 The appellant, the respondent and 17 others filed their nomination papers; and the Returning Officer accepted the nomination papers found valid at the scrutiny.
Three of them withdrew their candidature, leaving 16 contesting candidates in the field.
The Returning Officer prepared and published the following list of contesting candidates with the allot ted symbols: section No. Name Party Symbol 1.
Ayodhya Rajak Independent Boat 2.
Uma Bawri " Horse 3.
Kokil Rajwar " Cultivator cutting crops 4.
Kiriti Bhusan Das " Fish 5.
Tilakdhari Bawri " Two leaves 6.
Dulal Das Independent Spade & Stroker 925 7.
Nakul Chandra Rajak Independent Rising Sun 8.
Panchanan Rajak " Ladder 9.
Padam Lochan Rajwar B.J.P. Lotus 10.
Mahindri Rajwar Independent Bicycle 11.
Murura Dasi Jharkhand A Woman carrying a Mukti Morcha basket on her head.
Yogendra Bawri Indian Scale Congress (J) 13.
Ramdas Ram Independent Camel 14.
Lata Devi (Mali) Indian Hand National Congress(I) 15.
Shankar Bawri Independent Swastik within the circle 16.
Haru Rajwar Marxist Bow and arrow coordination The poll was held according to schedule on 5.3.1985; and, after counting, the following result was announced on 6.3.1985 by the Returning Officer: section No. Name Party Votes secured 1.
Ayodhya Rajak Independent 187 2.
Uma Bawri " 590 3.
Kokil Rajwar " 4564 4.
Kiriti Bhusan Das " 477 5.
Tilakdhari Bawri " 1458 6.
Dulal Das " 550 7.
Nakul chandra Rajak " 387 8.
Panchanan Raj ak " 434 9.
Padam Lochan Rajwar B.J.P. 8231 10.
Mahandri Rajwar Independent 2500 926 11.
Marura Dasi Jharkhand 2228 Mukti Morcha 12.
Yogendra Bawri Indian Congress (J) 1163 13.
Ramdas Ram Independent 195 14.
Lata Devi (Mali) Indian National 8659 Congress (I) 15.
Shankar Bawri Independent 486 16.
Haru Rajwar Independent 8229 The appellant Lata Devi (Mali) was declared elected.
The respondent Haru Rajwar filed an election petition in the Patna High Court (Ranchi Bench) calling in question the election of the appellant to the Bihar Legislative Assembly on the ground, inter alia, that on 14.2.1985, he received a notice of the intention of the Returning Officer to change his allotted election symbol and though, through counsel, he objected on 15.2.1985, the Returning Officer re allotted the respondent 's 'bow and arrow ' symbol to Murura Dasi and instead allotted the symbol of 'ladder ' to him.
It was urged in the petition that he contested and won the earlier elec tion from the same constituency with the same 'bow and arrow ' symbol; the sudden change of his symbol left him with less than 20 days time for campaign and it resulted in confusion amongst his supporters as a result of which his election was materially affected by the change; that the election was liable to be declared void on the ground of violation of section 30(d) of the Representation of the People Act which, according to him, prescribed atleast 20 days time for election campaign, which he did not have after change of the symbol; and that the election was void also for viola tion of Rule 10(5) of the Conduct of Election Rules, 1961 under which, according to him, the election symbol could not be changed without permission of the Election Commission.
It is the appellant 's case that she did not receive any notice of the election petition against her.
The trial proceeded ex parte.
The respondent election petitioner examined himself at the trail.
The High Court by its impugned order dated 16.11.1987 allowed the petition and declared the appellant 's election to be void holding that the result of the election in so far as it concerned the returned candidate was materially af fected by violation of Rule 10(5) of the Conduct of Election Rules, 1961.
Hence this appeal.
927 Mr. R.K. Garg, the learned counsel for the appellant submits, inter alia, what even assuming what was stated by the respondent election petitioner to be true, there was no breach of section 30(d) of the Representation of the People Act inasmuch as the minimum 20 days time was available after the date of withdrawal of nomination paper to the date of poll; that there was no violation of Rule 10(5) of the Conduct of Election Rules; and that even assuming that there was violation of this rule, the election petitioner dismally failed to prove by evidence that the result of the election was materially affected thereby, inasmuch as no sufficient evidence was adduced in proof of his claims, and he himself could not have proved his averments.
Mr. S.N. Singh, the learned counsel for the respondent, relying on AH Party Hill Leaders ' Conference, Shillong vs Captain W.A. Sangama, AIR 1977 SC 2 155, and Roop Lal Sathi vs Nachhattar Singh Gill, ; , strenuously argues that the violation of Rule 10(5) is itself sufficient to have materially affected the result of the election particularly in view of the fact that in the instant con stituency of backward voters, the symbol was very important, and change thereof had disastrous consequences to the re spondent candidate.
The material facts relevant to this appeal are not in dispute.
The list of contesting candidates with respective symbols was published on 9.2.1985; the election petitioner 's symbol 'bow and arrow ' was reallotted to candidate Murura Dasi and the symbol of ladder in place of 'bow and arrow ' was re allotted to the respondent; the poll took place on 5.3.1985; and the result was announced on 6.3.1985.
The respondent election petitioner in the High Court examined himself as P.W. 1 and deposed to the following effect: " . .
I was given the symbol of 'bow and arrow '.
I canvassed for my votes with the symbol of 'bow and arrow ' till Febru ary 15, 1985.
The Returning Officer changed my symbol and allotted to me the symbol of 'Sirhi ' (ladder).
The symbol of 'bow and arrow ' was given to Murura Dasi, the another candidate.
I was the sitting MLA and my symbol in the last election was also 'bow and arrow '.
I lost the election this time by a margin of 430 votes.
In the election held in the year 1980, I won the election by a margin of 9611 votes.
This time the main reason of my defeat in the election is the change of my symbol.
Due to change of my symbol, the voters were misled and they 928 could not be apprised of this change.
I could not canvass for my votes with the symbol of 'ladder ' in that constituency and in that area.
I was known largely and properly in the areas as the MLA with the symbol of 'bow and arrow '.
The candidate of Congress party was declared elected in this election.
The elec tion of my constituency was held in March 5, 1985.
I did not get 20 days time as provided in law after the change of my symbol.
" When recalled, he added that the symbol was a free symbol which had been allotted to him earlier i.e. the symbol of 'bow and arrow '.
"The last date of withdrawal of the nomination paper was February 9, 1985.
By the change of symbol 'bow and arrow ', I was materially affected and it affected the course of election and the voters were misled and they wrongly voted for Murura Dasi.
" Evidence of no other witness appears on record.
The question before us is, whether on the basis of the above evidence on record the High Court was justified in holding that the result of the election was materially affected and in declaring the appel lant 's election to be void on that ground.
Section 100 of the Representation of the People Act, 195 1 states the grounds for declaring an election to be void.
Sub section 1(d)(iv) says: (1) subject to the provisions of sub sectiOn (2) if the High Court is of opinion (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (iv) by any noncom pliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void: Sub section (2) is not relevant for the purpose of this case.
Was there in this case.
any violation of section 30(d)? Under section 30 of the Representation of the People Act, 1951, as soon as the notification calling upon a constituen cy to elect the member or members, is issued, the Election Commission shall, by notification in the Official Gazette appoint, amongst others, under clause (d) the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the twenti eth day after the last date for the withdrawal of candida ture.
In the instant case the last date for the withdrawal of nomination was 9.2.1985 and the date of poll was 5.3.1985.
There was, therefore, clear compliance with the requirement of S.30(d).
The respondent himself stated that on 14.12.1985 he received notice of intention of the Return ing Officer to change his election symbol and the symbol was actually changed on 15.2.1985.
We agree with the High Court that only the spirit of S.30(d) was not complied with.
In terms, this provision was 929 clearly complied with.
The submission that it was violated, has, therefore, to be rejected.
Rule 10 of the Conduct of Election Rules, 1961 deals with preparation of list of contesting candidates.
Sub rule (4) thereof requires that at an election in an assembly constituency, where a poll becomes necessary, the Returning Officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission (a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice; and (b) if more contesting candidates than one have indicated their preference for the same symbol decide by lot to which of such candidates the symbol will be allotted.
Under sub rule (5) the allotment by the Returning Officer of any symbol to a candidate shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit.
The change of symbol has not been proved to be violative of Rule 10(5).
Even assuming violation, as Mr. Garg submits, was there enough evidence to show that the result of the election, in so far as it concerned the returned candidate, was materially affected? The election petitioner before the High Court deposed that he lost the election by a margin of 430 votes.
From the result sheet it appears that the appel lant secured 8659 votes and the respondent secured 8229 votes.
The difference is, therefore, of 430 votes.
Murura Dasi despite the 'bow and arrow ' symbol secured 2228 votes.
The election petitioner has not stated and proved that more than 430 voters would have voted for him, had the symbol of 'bow and arrow ' not been changed, and that they voted for Murura Dasi only for her having the symbol of 'bow and arrow '.
How could that be proved would.
of course, depend on the facts and circumstances of the case.
The result of election, in so far as it concerns a returned candidate, may be affected in various ways by various factors stated under section 100(1)(d).
So far as the burden and measure of proof of such material effect is concerned, the law has been enunciated by several decisions of this Court.
What is required to be demonstrated by evi dence will vary according to the way in which the result of the election in so far as it concerns the returned candidate is alleged to have been materially affected.
It is to be noted that in an election petition what is called in ques tion is the election and what is claimed is that the elec tion 930 of all or any of the returned candidates is void, with or without a further declaration that the election petitioner himself or any other candidate has been duly elected.
De claring the election of the returned candidate void does not, by itself, entitle the election petitioner or any other candidate to be declared elected.
Vashit Narain Sharma vs Der Chandra and Ors., ; , was a case of improper acceptance or rejection of nomination paper and the manner of proving that the result of the election had been materially affected was slightly different from that of the instant case as that involved the question of possible distribution of wasted votes.
However, this Court has stated that the result of the election being materially affected is a matter which has to be proved and the onus of proving it lies upon the petitioner.
Their Lordships observed: "It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidates.
The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged.
Should the petitioner fail to adduce satisfactory evi dence to enable the court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.
" In Inayatullah Khan vs Diwanchand Mahajan & Ors, 19, where a nominated candidate was found to have been disqualified under section 7(d) of the Act the question arose as to what had happened to the election as a result.
It was contended that the margin of votes was small and that the result of the election must be taken to have been materially affected because Nandial, a disqualified candidate, got 8,000 odd votes, which in the event of his not contesting would have gone to Mahajan.
Evidence was led to show how the votes which went to Nandial would have been divided and both sides claimed that if Nandial had not contested the elec tion, the votes would have gone to them.
The Madhya Pradesh High Court observed that the evidence on this part of the case was exceedingly general and apart from the statement by the witnesses who came forward as to their opinion, there was 931 nothing definite about it.
All the evidence which had been brought to Court 's notice was not decisive of the matter under section 100 of the Act in view of the test laid down in Vashit Narain Sharma 's case (supra).
It can, therefore, be taken as settled that the party who wishes herein to get an election declared void has to establish by satisfactory evidence that the result of the poll had in fact been mate rially affected by the violation of Rule 10(5) of the Rules.
For doing this, it has to be demonstrated that the votes would have been diverted in such a way that the returned candidate would have been unsuccessful.
In the instant case there was no evidence to demonstrate the returned candidate having derived any benefit from the change of symbol of the election petitioner.
Murura Dasi, to whom the 'bow and arrow ' symbol was later allotted, was not the successful candidate.
The election petitioner was required to show that such number of votes had gone in favour of the successful candidate instead of in favour of the petitioner, simply because of the change of symbol as would, without that number of votes, make the successful candidates unsuccess ful.
The petitioner, besides making bare statement, had not produced any other satisfactory evidence in support of such a proposition.
In S.N. Balakrishna vs Fernandes, ; ; , which was a case under section 100(1)(d)(ii) and section 123(4) corrupt practice charged against an agent other than election agent, on the question of the result of the election, in so far it concerned the returned candidate, being materially affected, Hidayatullah, C.J. observed at para 58: "In our opinion the matter cannot be consid ered on possibility.
Vashit Narain 's case insists on proof.
If the margin of votes were small something might be made of the points mentioned by Mr. Jethmalani.
But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge.
There is no room, therefore, for a reasonable judicial guess.
The law requires proof.
How far that proof should go or what it should contain is not provided by the legislature.
In Vashit 's case; , , and in Inayatullah vs Diwanchand Mahajan, [1958] 15 Ele LR 219 at pp. 235 246 (MP) the provision was held to prescribe an impossible burden.
The law has however remained as be fore.
We arc bound by the rulings of this Court and must say that the burden has not been successfully discharged.
We cannot over look the rulings of this Court and follow the English rulings cited to us.
" 932 In Chhedi Ram vs Jhilmit Ram and Ors., which was also a case of improper acceptance of nomination paper, Chinnappa Reddy, J. observed that the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances, and reasonable probabilities of the case.
Under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
If having regard to the facts and circumstances of the case, a reasonable probability is all one way, the Court must not lay down an impossible standard of proof and hold a fact as not proved.
As was reiterated in Shiv Charan Singh vs Chandra Bhan Singh, ; , in the absence of any proof the result of an election can not be held to be materially affected; and it is not permissible in law to set aside the election of the returned candidate on mere surmises and conjectures.
A decision in election petition can be given only on positive and affirmative evidence and not on mere speculation and suspicious, however strong they are.
Indeed, in the instant case there is no such positive and affirma tive evidence.
,Mere assertions by the election petitioner were not enough.
Nothing was alleged and proved against the successful candidate.
There could be no proposition or contention that a candidate with a particular symbol would always be successful at the hustings or that a particular voter or a number of voters would always vote for a symbol irrespective of the candidate to whom it is allotted.
Mr. S.N. Singh relies on paragraph 29 of the Judgment in All Party Hill Leaders ' Conference, Shillong vs Captain W.A. Sangma, (supra) wherein Goswami, J. observed: "For the purpose of holding elections, allot ment of symbol will find a prime place in a country where illiteracy is still very high.
It has been found from experience that symbol as a device for casting votes in favour of a candidate of one 's choice has proved an inval uable aid.
Apart from this, just as people develop a sense of honour, glory and patriotic pride for a flag of one 's country, similarly great fervour and emotions are generated for a symbol representing a political party.
This is particularly so in a parliamentary democracy which is conducted on party 933 lines.
People after a time identify themselves with the symbol and the flag.
These are great unifying insignia which cannot all of a sudden be effaced.
" There is no dispute about the importance of the symbol in a backward constituency.
This will, however, not absolve the election petitioner of his burden of proving that the result of the election has been materially affected.
In Roop Lal Sathi vs Nachhattar Singh Gill, (supra) in the facts of that case, this Court observed that: "The symbols order was issued by the Election Commission under Article 324 of the Constitu tion in exercise of its undoubted powers of superintendence, direction and control of the conduct of all elections to Parliament and Legislature of every State.
It is also relata ble to Rules 5 and 10 of the Conduct of Elec tions Rules framed by the Central Government in exercise of their powers under section 169 of the Act.
Rule 4 of the Conduct of Elections Rules provides that every nomination paper presented under section 33 of the Act shall be in Forms 2 A to 2 E, as may be appropriate.
Forms 2 A and 2 B require the candidate to choose symbol.
Under Rule 5(1) the Election Commis sion by notification may specify the symbols that may be chosen by candidates at elections to Parliamentary and Assembly constituencies.
Under Rule 10(4) the Returning Officer shall consider the choice of symbols expressed by contesting candidates and "subject to any general or special direction issued by the Election Commission" allot different symbols to different candidates.
The allotment of symbols by the Returning Officer is final under sub rule (5) of Rule 10 except where it is inconsistent with any directions issued by the Election Commission in that behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit." Mr. Singh 's submission is as if the violation of sub rule (5) of Rule 10 would ipso facto make an election void.
That, however, is not the legal position as would be clear from the provision itself.
Section 100(1)(d)(iv) of the Act clearly says that subject to the provisions of sub section (2) if the High Court is of opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected (iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this 934 Act, the High Court shall declare the election of the re turned candidate to be void.
The violation of sub rule (5) of Rule loper se will not invalidate the election.
The election petitioner has also to prove that the result of the election, in so far as it concerns the returned candidate, was materially affected.
From the evidence on record considered in light of the law enunciated above, we have no doubt that the election petitioner dismally failed to discharge the burden of prov ing that the result of the election, in so far it concerned the appellant, who has been the returned candidate, was materially affected.
The High Court was in error in holding, without sufficient evidence, that it was materially affect ed.
In the result, the impugned Judgment of the High Court is set aside and this appeal is allowed with costs which we quantify at Rs.3,000 (Rupees three thousand).
Let steps be taken under Section 116C(2) of the Act.
R.S.S. Appeal allowed.
| IN-Abs | In the election to the Bihar Legislative Assembly held in 1985, the appellant was declared elected from the 286 Chandan Kyari (S.C.) Constituency.
The respondent, a sitting M.L.A., who secured 430 votes less than the appellant, filed an election petition in the Patna High Court (Ranchi Bench) calling in question the election of the appellant.
The respondent 's main grievance was that the Returning Officer re allocated his 'bow and arrow ' symbol to another candidate Murura Dasi, and instead allotted the symbol of 'ladder ' to him, and this sudden change of symbol left him with less than 20 days time for campaign which resulted in confusion amongst his supporters as a result of which his election was materially affected.
On this premise the respondent contend ed that the election was liable to be declared void on the ground of (i) violation of section 30(d) of the Representa tion of People Act, 1951, which according to him prescribed atleast 20 days time for election campaign, which he did not have after change of the symbol; and (ii) violation of Rule 10(5) of the Conduct of Election Rules, 1961 under which, according to him, the election symbol could not be changed without permission of the Election Commission.
The respond ent election petitioner examined himself.
Evidence of no other witness appears on record.
The High Court allowed the petition and declared the appellant 's election to be void holding that the result of the election in so Tar as it concerned the returned candi date was materially affected by violation of Rule 10(5) of the Conduct of Election Rules, 1961.
Before this Court, it was contended on behalf of the appel lant that 922 (i) the appellant did not receive any notice of the election petition against her and the trial had proceeded ex parte; (ii) there was no breach of section 30(d) of the Representa tion of the People Act Inasmuch as the minimum 20 days time was available after the date of withdrawal of nomination paper to the date of poll; (iii) there was no violation of Rule 10(5) of the Conduct of Election Rules; and (iv) even assuming that there was violation of this rule, the election petitioner dismally failed to prove by evidence that the result of the election was materially affected thereby, inasmuch as no sufficient evidence was adduced in proof of his claim, and he himself could not have proved his aver ments.
Allowing the appeal, this Court, HELD: (1) Under s.30 of the Representation of the People Act, 1951, as soon as the notification calling upon a con stituency to elect the member or members is issued, the Election Commission shall, by notification in the Official Gazette appoint, amongst others, under clause (d), the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the twentieth day after the last date for the withdrawal of candidature.
[928F] (2) In the instant case, the last date for the withdraw al of nomination was 9.2.1985 and the date of poll was 5.3.1985.
There was, therefore, clear compliance with the requirement of section 30(d).
The respondent himself stated that on 14.2.1985 he received notice of intention of the Return ing Officer to change his election symbol and the symbol was actually changed on 15.2.1985.
This Court agrees with the High Court that only the spirit of section 30(d) was not complied with.
In terms, this provision was clearly complied with.
[928G 929A] (3) The violation of sub rule (5) of Rule 10 per se will not invalidate the election.
The election petitioner has also to prove that the result of the election, in so far as it concerns the returned candidate, was materially affected.
[934A B] (4) The party who wishes to get an election declared void has to establish by satisfactory evidence that the result of the poll had in fact been materially affected by the violation of Rule 10(5) of the Rules.
For doing this, it has to be demonstrated that the votes would have been di verted in such a way that the returned candidate would have been unsuccessfull.
[931B] 923 Vashist Narain Sharma vs Dev Chandra & Ors., ; ; lnayatullah Khan vs Diwanchand Mahajan & Ors., ; S.N. Balakrishna vs Fernandes, ; , ; Shiv Charan Singh vs Chandra Bhan Singh, ; and Chhedi Ram vs Jhilmit Ram & Ors., , referred to.
(5) A decision in an election petition can be given only on positive and affirmative evidence and not on mere specu lation and suspicion, however, strong they are.
In the instant case, there is no such positive and affirmative evidence.
Mere assertions by the election petitioner were not enough.
[932D] (6) There could be no proposition or contention that a candidate with a particular symbol would always be success ful at the hustings or that a particular voter or a number of voters would always vote for a symbol irrespective of the candidate to whom it is allotted.
[932E] (7) There is no dispute about the importance of the symbol in a backward constituency.
This will however, not absolve the election petitioner of his burden of proving that the result of the election has been materially affect ed.
[933B] All Party Hill Leaders ' Conference, Shillong vs Captain W.A. Sangama, ; and Roop Lal Sathi vs Nach hattar Singh Gill; , , referred to.
(8) The election petitioner has not stated and proved that more than 430 voters would have voted for him, had the symbol of 'bow and arrow ' not been changed, and that they voted for Murura Dasi only for her having the symbol of 'bow and arrow '.
How could that be proved would.
of course, depends on the facts and circumstances of the case.
[929F] (9) In the instant case, the election petitioner dismal ly failed to discharge the burden of proving that the result of the election, in so far as it concerned the appellant, who has been the returned candidate, was materially affect ed.
The High Court was in error in holding, without suffi cient evidence, that it was materially affected.
[934C]
|
ivil Appeal No. 3474 of 1988.
From the Judgment and Order dated 10.5.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E/62/85 C. Harish N. Salve, Mrs. M. Sud, Ms. Aruna Jain and Praveen Kumar for the Appellant.
B. Dutta, Additional Solicitor General, T.V.S.N. Chari and P. Parmeshwaran for the Respondent. 894 The Judgment of the Court was delivered by OJHA, J.
This appeal under section 35L of the (hereinafter referred to as the Act) has been preferred against the order dated June 28, 1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi.
The appellant carries on the business of manufacture and sale of paper.
On the plea that in the manufacture of paper the appellant uses paper cores, exemp tion from payment of excise on such paper cores was claimed by it on the basis of a Notification No. 201/79 dated June 4, 1979 as amended by Notification No. 105/82 dated February 28, 1982 (hereinafter referred to as the Notification) The Assistant Collector, Central Excise rejected the claim of the appellant but its claim on appeal as regards exemption from duty on paper cores was allowed by the Appellate Col lector.
Aggrieved by that order the Collector of Central Excise, Meerut, preferred the appeal in which the order which is the subjectmatter of the present appeal, was passed.
The Notification on the basis of which exemption was claimed by the appellant inter alia provides: "the Central Government hereby exempts all excisable goods (hereinafter referred as "the said goods"), on which the duty of excise is leviable and in the manufacture of which any goods fall ing under Item No. 68 of the First Schedule to the (1 of 1944) have been used, as raw materials or component parts (hereinafter referred as "the inputs"), from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs." As is apparent even from the order of the Tribunal the details of the use of paper cores in the manufacture of paper as set out by the appellant on the basis whereof the exemption was claimed by it read as hereunder: "Paper cores: Paper cores are used in paper mill on re winding and cutting machines.
The full width of paper manufactured on paper machine is cut in different sizes of reel and sheets according to customer 's requirement.
To cut the parent roll of paper manufactured on paper machine which is wound on steel shell into small reels suitable for cutter machine, the paper is re wound on 'paper cores ' fitted on a shaft on re winding machine.
The reels thus re winded on paper cores can be easily cut into sheets on cutter machine into re quired size or sent to customers as 895 reels as such, there is no other use of paper cores except their use in re winding and cutting machine in paper mills".
On the basis of the details aforesaid the case of the appel lant was that the paper cores constituted "component parts" within the meaning of the Notification entitling it to the exemption granted by the said Notification.
The case of the respondent on the other hand was that paper cores were really used by the appellant as packing material after the paper had already been manufactured for taking it to the market and did not constitute component parts of paper.
Before dealing with respective submissions made by learned counsel for the parties it may be pointed out that it is not in dispute that the excise duty was payable at the relevant time separately both on paper and paper core under different tariff items of the First Schedule to the Act and it has also not been disputed by the respondent that if paper core fell under the term "component parts", the appellant would be entitled to the exemption as claimed by it and contem plated by the Notification.
The short question which, there fore, arises for consideration in the instant appeal is whether paper core is used in the manufacture of paper as component part.
Even though the term "component parts" has not been defined either by the Act or by the Notification the term "manufacture" has been defined in section 2(f) of the Act.
This definition inter alia contemplates that "manufacture" includes any process, incidental or ancillary to the completion of a manufactured product.
Section 3 of the Act which is the charging section contemplates levy and collection of duty of excise on all "excisable goods".
The First Schedule to the Act specifies the excisable goods under various tariff items.
In the absence of any definition of the term "component parts" it is permissible to refer to the dictionary meaning of the word "component".
According to the Webster Comprehensive Dictionary, International Edition the word "component" inter alia means a constitutent part.
The term "manufacture", as already indicated above, accord ing to its definition in the Act includes any process inci dental or ancillary to the completion of manufactured product.
In this context what has to be considered is wheth er in the manufacture of paper, paper core is used as a constituent part and is necessary to be used in "any process incidental or ancillary to the completion of a manufactured product" namely paper in the instant case.
In M/s J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs Sales Tax Officer, Kanpur and Another, [1965] 1 S.C.R. Page 900 while dealing with the expression "in the manufacture of goods" used in section 8(3)(b) of the Central Sales Tax Act, 1965 and Rule 13 framed 896 under the Act it was held that the said expression "would normally encompass the entire process carried on by the dealer of converting raw materials into finished goods.
Where any particular process is so integrally connected with the ultimate production of goods that but for that process, manufacture or processing of goods would be commercially inexpedient, goods required in that process would, in our judgment, fall Within the expression.
" It was further held: "In our judgment if a process or activity is so integrally related to the ultimate manufacture of goods so that without that process or activity manufacture may, even if theoreti cally possible, be commercially inexpedient, goods intended for use in the process or activity as specified in Rule 13 will qualify for special treatment." (Emphasis supplied) In Bhor Industries Ltd., Bombay vs Collector of Central Excise, Bombay, [1989] 1 S.C.C. Page 602 while dealing with excise duty it was held: "Therefore, the first principle that emerges is that excise was a duty on goods as speci fied in the schedule.
In order to be goods an article must be something which can ordinarily come to the market and is brought for sale and must be known to the market as such.
There fore, the marketability in the sense that the goods are known in the market or are capable of being sold and purchased in the market is essential.
" It is in this background that the use of paper core in the process of manufacture of paper has to be considered.
If it is found that the use of paper core is necessary in "any process incidental or ancillary to the completion of" paper as marketable goods and it would consequently be commercial ly inexpedient to sell paper without the use of paper core, it would certainly be a constituent part of paper and would thus fall within the purview of the term "component parts" used in the Notification.
This takes us to the process of manufacture of paper.
The process of paper manufacture is to be found at pages 230 to 235 of Part 17 of Encyclopaedia Britannica.
The process of paper manufacture by paper making machine is contained at pages 232 onwards.
After referring to the various stages of manufacture of paper it is stated: "After the drying comes the calendering and there are usually two or more sets or stacks of calendering rolls, according to the grade of surface required.
These calenders consist of vertical stacks of chilled iron rolls, generally five 897 in a stack, which revolve on one another and some of which are bored for heating by steam; pressure is applied to them at will, by ad justing levers at the top of each stack.
Finally the paper passes to cooling rolls, where the paper can be cooled by water spray if necessary and is then wound on to a reel.
" Thereafter at page 234 it is stated: "Paper, though made in the roll on the ma chine, is usually sold in the form of sheets.
A number of reels of paper, on their spindles, mounted in a stack, are fed, as a pile of webs, between two rollers: a series of revolv ing knives slits them longitudinally as they emerge from between the rollers, in effect into strips which are cut again transversely by the scissors action of a movable upper knife, working periodically against a lower fixed knife.
The cut sheets fall on 'to an endless felt for stacking.
" At the bottom of the same page it is stated: "Paper is sold in sheets of different sizes and is made up into reams containing from 480 to 5 16 sheets in Great Britain, 500 in the United States; these sizes correspond to different trade names, as foolscap, demy, royal, etc.
" It is thus apparent that paper is made (1) in the form of rolls and (2) in the form of sheets and the paper which is sold in the form of sheets is cut in desired sizes by taking recourse to the process referred to above.
Chapter XIII of the Story of Papermaking by Edwin Suter meister 1954 Edition contains the process known as calender ing and finishing.
At pages 183 and 184 it is stated: "The paper from the machine, no matter what its finish, goes next to the reels which form large rolls the full width of the machine.
The reels are so arranged that when one cylinder is full another can take its place while the paper machine is running continuously.
The full cylinder is then rewound at higher speed so that it may again be ready when needed by the paper machine.
On rewinding the paper is trimmed on the edges and if desired is slit into any number 898 of narrower rolls .
The cores on which the paper is wound will depend to some extent on what happens to the paper next.
If it is delivered to the customer in rolls as it comes from the rewinder the cores are apt to be of heavy board stock, wound and pasted on a mandrel: if the rolls of paper pass to another part of the same plant for further treatment the cores are likely to be of iron pipe, which can be used over and over.
" With regard to the use of roll paper it is stated at page 185: "Roll paper is very widely used in many lines of work.
Newspapers are printed, cut and folded direct from rolls, each of which may weigh 1400 pounds or more; much craft paper is sold to be used directly from the roll in wrapping goods, while tremendous quantities are used to feed the machines making paper bags.
Paper for the conventional coating operations is delivered to the coating plant in roll form; and considerable quantities of white paper are printed continuously from rolls.
These are only a few of the more obvi ous uses of roll paper.
All roll paper must reach the consumer in perfect condition if it is to be of the great est use.
It must be carefully wrapped and the ends of the rolls protected by stout heads to keep edges of the paper from being injured.
" As regards paper which is to be used in sheet form it is stated at pages 190 and 191: "Paper which is to be used in sheet form may be so prepared by passing directly from the reel stand of the paper machine to a cutter, layboy and sheet counter in line with the machine and attended by the paper machine crew.
This system is used for coarse papers which do not need sorting, and it is common on machines which run off pulp for chemical or papermaking use.
As a more common alternative the rolls go to independent cutters from the rewinders or the supercalenders, according to the finish the final paper is to have.
The rolls are placed on reel stands which are constructed to hold up to twelve or more.
Any one of these may be cut singly, or all may be cut together as desired.
From the reels the paper passes through a cutter 899 which has a knife on a revolving drum acting in a shearing manner against a fixed bed knife.
Each time the drum revolves the knife cuts a sheet from the web of paper being fed continuously at constant speed, and the length of the sheet cut is regulated by altering the speed at which the revolving knife tums.
Cutters are also designed to split the paper into the right width of roll, and to trim the edges, if this has not already been done at the rewinder.
The paper leaves the cutter on trav eling tapes and goes to a layboy which auto matically jogs the sheets into uniform piles.
These layboys take the place of operatives who formerly did the same work, and enable higher cutter speeds to be employed.
" In the Dictionary of Paper (Fourth Edi tion, published under the Auspices and Direc tion of the American Paper Institute, Inc.) the purpose of rewinding is stated thus at page 346: "Rewinding: The operation of winding the paper accumulated on the reel of a paper machine onto a core to a tightly wound roll suitable for shipping or for use in the finishing or converting department.
During rewinding, defective paper in the reel is usually removed and breaks in the sheet are spliced and marked.
" In Pulp & Paper Science & Technology (Vol. 2, edited by C. Earl Libby) it is stated at page 271. "The prime purpose of the paper machine re winder is to split the sheet into the required widths, to provide rolls of paper having the correct diameter, and to produce firm, tightly wound rolls of paper that can be unwound into highspeed printing presses with few tension problems.
" What becomes obvious from the processes referred to above, therefore, is that even though rewinding has to be done both for manufacturing roll paper as well as sheet paper, use of paper core in rewinding is necessary only with regard to manufacture of roll paper, inasmuch as it is the paper as rolled on paper core which is delivered to the customer in the form of rolls and unless in the process of rewinding paper core is used, paper cannot come cut of the machine in rolls so as to be sold as a marketable commodity known as roll paper.
The use of 900 paper core, however, is not 'necessary for the manufacture of paper sheets.
As stated at page 184 of the Story of Papermaking (supra), the core on which the paper is wound will depend to some extent on what happens to the paper next.
If it is delivered to the customer in rolls as it comes from the rewinder the core is apt to be of heavy board stock wound and pasted at mandrel.
If, however, the rolls of paper are not be delivered to the customer in the form of rolls as such and the rolls of paper are to pass to another part of the same plant for further treatment the core is likely to be of iron pipe which can be used over and over.
Consequently core of iron pipe is more likely to be used in the normal course for further treatment in the plant which will include the process of cutting the paper into sheets.
Inasmuch as core of iron pipe can be used over and over, it cannot be said that the use of paper core is necessary for the rewinding of paper meant to be cut into sheets.
It may be that for the sake of convenience paper core may be used by some manufacturer even for rewinding of such paper as is meant to be cut in sheets but in that case it would at best provide more convenience to such manufacturer but for that reason paper core will not become a constitutent part of paper manufactured in sheets.
In view of the foregoing discussion, we are of the opinion that use of paper core is necessary for rewinding of paper if it is delivered to the customer in rolls and would come within the purview of the expression "any process incidental or ancillary to the completion of a manufactured product" used in the definition of the term "manufacture" in section 2(f) of the Act and for the same reason paper core would also be constituent part of paper and would thus fall within the term "component parts" used in the Notification in so far as manufacture of paper in rolls is concerned.
Paper core, however, cannot be said to be used in the manu facture of paper in sheets as component part.
We are con scious that the relevant tariff item uses the word "paper" but since paper in rolls and paper in sheets are nothing but different forms of paper, both of them would be excisable goods as paper under the relevant tariff item.
In the result, this appeal succeeds and is allowed to this extent that it is held that in the manufacture of paper rolls delivered to the customers for use as roll paper, paper core is used as component part.
The orders of the authorities below are modified to this extent.
In the cir cumstances of the case, however, the parties shall bear their own costs.
R.S.S. Appeal allowed.
| IN-Abs | The appellant company carried on the business of manu facture and sale of paper.
It claimed exemption from payment of excise on paper core which, accordingly to the appellant, was used in the manufacture of paper.
The case of the appel lant was that the paper cores used in the manufacture of paper constituted "component parts" within the meaning of Notification No. 201/79 dated June 4, 1979 as amended.
The case of the respondent on the other hand was that the paper cores were really used by the appellant as packing material after the paper had already been manufactured for taking it to the market and did not constitute "component parts" of paper.
The Assistant Collector, Central Excise, rejected the claim of the appellant but its claim on appeal as regards exemption from duty on paper cores was allowed by the Appel late Collector.
The Customs, Excise and Gold (Control) Appellate Tribunal however allowed the appeal of the Reve nue.
Partly allowing the appeal, this Court, HELD: 1.
Even though the term "component parts" has not been defined either by the Act or by the Notification, the term "manufacture" has been defined in section 2(f) of the .
This definition contem plates that "manufacture" includes any process, incidental or ancillary to the completion of a manufactured product.
[895D] 2.
In the absence of any definition of the term "compo nent partS" it is permissible to refer to the dictionary meaning of the word "component".
Accordingly to the diction ary meaning, the word "component" inter alia means a con stituent part.
[895F] 3.
If the use of paper core is necessary in "any process incidental 893 or ancillary to the completion of" paper as marketable goods and it would consequently be commercially inexpedient to sell paper without the use of paper core, it would certainly be a constituent part of paper and would thus fall within the purview of the term "component parts" used in the Noti fication.
[896F] M/s J.K. Cotton Spinning & Weaving Mills vs Sales Tax Officer, Nagpur and another, [1965] 1 S.C.R. Page 900 and Bhor Industries Ltd. Bombay vs Collector of Central Excise, Bombay, ; , referred to.
Paper is made (1) in the form of rolls and (2) in the form of sheets and the paper which is sold in the form of sheets is cut in desired sizes.
Even though rewinding has to be done both for manufacturing roll paper as well as sheet paper, use of paper core in rewinding is necessary only with regard to manufacture of roll paper, inasmuch as it is the paper as rolled on paper core which is delivered to the customer in the form of rolls and unless in the process of rewinding paper core is used, paper cannot come out of the machine in rolls so as to be sold as a marketable commodity known as roll paper.
The use of paper core, however, is not necessary for the manufacture of paper sheets.
[897E, 899G 900A] 5.
Use of paper core would come within the purview of the expression "any process incidental or ancillary to the completion of manufactured products" used in the definition of the term "manufacture" in section 2(f) of the Act and for the same reason paper core would also be constituent part of paper and would thus fail within the term "component parts" used in the Notification in so far as manufacture of paper in rolls is concerned.
Paper core, however, cannot be said to be used in the manufacture of paper in sheets as compo nent parts.
[900E F]
|
Criminal Appeal No. 511 of 1989.
From the Judgment and Order dated 6.3.1989 of the Madras High Court in W.P. No. 14828 of 1988.
WITH Writ Petition (Criminal) No. 205 of 1989.
(Under Article 32 of the Constitution of India).
U.R. Lalit and V. Balachandran for the Appellant/Petitioner.
K. Rajendra Chowdhary, V. Krishnamurthy and section Thanan jayan for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
Special leave granted.
903 The appellant petitioner, Smt.
N. Meera Rani, is the wife of Nallathambi, who has been detained under the Nation al Security Act, 1980 (Act No. 65 of 1980) (hereinafter referred to as "the Act").
An order dated 7.9.1988 was made by the Collector and District Magistrate, Madurai, under section 3(2) of the Act directing that the detenu be kept in custody in the Central Prison, Madurai.
Thereafter, the State Government by its order dated 25.10.1988 made under section 12(1) of the Act has confirmed the order of deten tion agreeing with the opinion of the Advisory Board consti tuted under the Act and directed that the detenu be kept in detention for a period of 12 months from the date of his detention.
This preventive detention of the detenu was challenged in the High Court of Judicature at Madras by his wife, the appellant petitioner, under Article 226 of the Constitution praying for issuance of a writ of habeas cor pus.
The High Court by its order dated 6.3.1989 has dis missed the writ petition.
The appellant petitioner has then challenged dismissal of the writ petition by the High Court by special leave under Article 136 of the Constitution of India in this Court.
The appellant petitioner has also filed a writ petition under Article 32 of the Constitution of India for the same purpose in this Court challenging direct ly her husband 's preventive detention.
The object of filing this writ petition directly in this Court, in addition to the appeal by special leave, is to raise some additional grounds to challenge the detenu 's detention.
Both these matters have been heard together and are being disposed of by this common judgment.
We may now state the arguments advanced to challenge the detenu 's detention before mentioning the relevant facts which are material for deciding those points.
Shri U.R. Lalit, learned counsel for the appellant petitioner, has advanced three contentions.
The first contention is that certain documents which have been referred to in some grounds of detention were not supplied to the detenu with the result that the detenu was not given a proper and rea sonable opportunity for making an effective representation and, therefore, the order of detention is vitiated for this reason alone.
The second contention is that some documents in the form of newspaper reports showing that the detenu was apprehended and detained even prior to 21.8.1988 when the detenu was shown to have been arrested in connection with an offence punishable under section 397 I.P.C. were not placed before the detaining authority when it formed the opinion mentioned in the detention order which has also vitiated the detention order.
The last contention is that the fact of detenu 's arrest in connection with an offence punishable under section 397 I.P.C. and of remand to custody by the Magistrate as well as the contents of the bail application dated 904 22.8.1988 which was rejected by the Magistrate were not taken into account by the detaining authority before passing the order of detention dated 7.9.1988 which also renders the detention order invalid.
On the other hand, Shri Chaudhary, learned counsel for the respondents contended that even assuming that some documents referred in the grounds of detention were material and were not supplied to the detenu the effect is not to invalidate the detention order for that reason alone in view of section 5A of the Act which has been inserted by Act 60 of 1984 with effect from 21.6.1984 since the detention order can be sustained even on the remaining grounds.
In respect of the detenu 's custody in connection with the offence under section 397 I.P.C. and rejection of his bail application, it was urged that this fact was con sidered by the detaining authority and, therefore, it does not result in any infirmity.
Shri Lalit, on behalf of the appellant petitioner, further contended that section 5A of the Act cannot be construed in the manner suggested by the learned counsel for the respondents since the guarantee to the detenu under Article 22(5) of the Constitution results in invalidating the entire detention order as claimed by him.
The material facts mentioned in the detention order and its annexure are now stated.
A branch of the Bank of Madura is located in a rented accommodation in flat No. 634, K.K. Nagar in Madurai.
On 6.8.1988, the Bank Manager and the staff of the Bank were attending to the business of the Bank which then had 443 packets containing valuable ornaments weighing about 20,576.150 grams valued at about rupees sixty two lakhs and cash amounting to Rs.38,945.00.
These gold ornaments were pledged with the Bank as security for loans advanced by the Bank of certain borrowers.
At about 10.55 A.M. on 6.8.1988 the Bank was looted and these orna ments and cash were taken away by armed dacoits on the point of revolver after locking the Bank employees and customers in the strong room.
The dacoits escaped in an ambassador car with registration No. TDL 9683 and a motorcycle bearing registration No. TNK 6727.
The dacoits are stated to be one Karuna and some other Sri Lanka nationals who were tempo rarily living in a nearby flat which was in the possession of the detenu.
It is stated that the ambassador car used in the dacoity had been stolen on 4.8.1988 from Quilon in the State of Kerala by Karuna and his companions.
It is further stated that the dacoity was committed in order to fund the militant organisation known as Tamil Nadu Makkal Viduthalai Eyakkam with which the detenu has been associated and that the detenu along with these Sri Lanka nationals belonging to the Sri Lanka militant organisation had entered into a criminal conspiracy to commit these cognizable offences.
The object of 905 these militant organisations is to achieve a separate Tamil Ealam in Sri Lanka and to secure secession of Tamil Nadu from the Union of India by violent means.
It is further stated that the detenu received from Karuna through Ajanth and Pinto a share of the booty comprising of gold ornaments weighing about 8325.
150 grams valued at about Rs.25 lakhs and Rs. 15,000.00 in cash which was a part of the booty looted from the Bank on 6.8.1988 in addition to a box con taining one revolver, 2 pistols, 3 grenades, 6 bombs and a knife.
It is further stated that on 9.8.1988 the detenu took Karuna and Ajanth in his car bearing registration No. TNU 8500 to Madras along with Babu and Rajendran and subsequent ly on 10.8.1988 the detenu sent them to Nellore in Andhra Pradesh in his car to help them escape.
It is also stated that a note was sent by the detenu to the news media in the name of Tamil Nadu Makkal Viduthalai Eyakkam owning respon sibility for the dacoity and threatening the law enforcement agency and the Government servants with dire consequences if they attempted to apprehend them.
It is then said that on 21.8.1988 the detenu was arrested at Samayanallur while he was driving his car bearing registration No. TNU 8500 to wards Madurai when he made a voluntary confession in the presence of witnesses.
The car bearing registration No. TNU 8500 was seized at 19.15 hours on 21.8.1988 in front of Samayanallur Police Station and the detenu 's confession led to recovery of gold ornaments weighing about 7275.750 grams valued at Rs.21,85,000.00 in 172 bags and 19 empty bags with Bank tags and chits and a set of keys from the detenu 's house on 21.8.1988 at 20.15 hours.
In pursuance to detenu 's confession recovery was also made of a box containing one revolver, 2 pistols with ammunition, 3 grenades, 6 bombs and one knife from the house of Anandan, an employee of the detenu in Madurai.
Further recovery of a bag containing gold ornaments weighing about 1015.600 grams valued at Rs.3,05,000.00 was made from the shop of Vijayakumar in Madurai and Vijayakumar also made a confession pursuant to which the recovery was made of gold ornaments weighing about 25.900 grams from Gurumoorthy.
Subsequently, these ornaments were identified as those which had been looted in the above mentioned dacoity on 6.8.1988.
It is on these grounds that the impugned detention order dated 7.9.1988 was passed for the detenu 's preventive detention under the Act.
The detention order as well as its annexure containing the relevant ground of detention are quoted as under: "ANNEXURE 'A ' 906 PROCEEDINGS OF THE COLLECTOR AND DISTRICT MAGISTRATE, MADURAI.
PRESENT: THIRU M. DEVARAJ, I.A.S. N.S.A. NO.
73/88 Dated: 7.9.1988 DETENTION ORDER WHEREAS, I, M. DEVARAJ, I.A.S. Collector and District Magistrate, Madurai, am satisfied with respect to the person known as Thiru Nallathambi @ Thambi, male, aged 30 years, S/o (late) Thiru section Mathu, residing at Block No. 2, H.I.G. Colony, Anna Nagar, Madu rai Town that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make the following order.
(2) Now, therefore, in exercise of the powers conferred by sub section (2) of section 3 of the (Central Act 65 of 1980) read with orders issued by the Government in G.O. Ms. No. 1169, public (L & O F) Department, dated 3.8.1988 under sub section (3) of the said Act, I hereby direct that the said Thiru Nallathambi @ Thambi be detained and kept in custody in the Central Prison, Madurai.
Given under my hand and seal of office, this the 7th day of September, 1988.
sd/ Collector and District Magistrate, Madurai To Thiru Nallathambi @ Thambi, S/o (Late) Thiru section Mathu, Block No. 2, H.I.G. Colony, Anna Nagar, Madurai 20.
(Now in Central Prison, Madurai as remand prisoner) 907 Through.
Thiru V.S. Ganapathy, Deputy Superin tendent of Police, Tirupparankundram, Madurai City, for service under acknowledgement." "ANNEXURE 'B ' N.S.A. No. 73/88 Dated 7.9.88 Sub: (Central Act 65 of 1980) detention of Thiru Nallathambi alias Thambi, Male aged 30 years, S/o (Late) section Mathu, 2, H.I.G. Colony, Anna Nagar, Madu rai section 3(2) of the National Security Act, 1980 Grounds of detention.
A detention order under section 3(2) of the (Central Act 65 of 1980) has been made on Thiru Nallathambi alias Thambi, male, aged 30 years, s/o (Late) section Mathu, 2, H.I.G. Colony, Anna Nagar, Madurai vide order NSA No. 73/88 dated 7.9.1988.
(2) The grounds on which the said deten tion has been made are as follows: XXX XXX XXX XXX (9) In furtherance of the conspiracy Thiru Nallathambi sent a note to the news media in the name of Tamil Nadu Makkal Vidhuthalai Eyakkam owning responsibility for the dacoity and threatening the law enforcement agency and Government servants with dire consequences if they dare to apprehend them.
(10) On 21.8.88 at 1400 hours, Thiru Nallathambi, was arrested at Samayanallur while he was driving his car TNU 8500 towards Madurai.
He gave a voluntary confession which was recorded in the presence of witness (1) Kulanthani Anandan, Village Administrative Officer, Sathamgalam and (2)Pannerselvam, Village Administrative Officer, Thiruppalai.
The car TNU 8500 was seized at 1915 hours on 21.8.88 in front of Samayanallur Police Sta tion.
In pursuance of his confession gold jewels weighing about 7275.750 grams valued at Rs.21,85,000.00 in 172 908 bags and 19 empty bags with bank tags and chits and a set of key were recovered from his house on 21.8.88 at 20.15 hours.
Further in pursuance of his confession a box containing 1 revolver, 2 pistols with ammunition, 3 gre nedes, 6 bombs, 1 knife was recovered from the house of accused Thiru Anand located in 27, Lakshimipuram, 6th Street, Madurai who is also an employee under Thiru Nallathambi.
Further pursuant to his confession a bag containing gold jewels weighing about 1015.600 grams valued Rs.3,05,000.00 was recovered from the moulding workshop of accused Thiru Vijayakumar located in 10 A, Bharatiar Main Street, K. Pudur, Madurai.
Pursuant to the confession of Thiru Vijayakumar gold jewels weighing about 25.900 grams was recovered from the accused Thiru Gurumoorthy.
The above jewels recovered were identified to be stolen from the Bank of Madura on 6.8.88.
(11) The chance prints developed from the scene of occurrance in Bank of Madu ra, K.K. Nagar Branch, Madurai tallied with the fingerprints of accused Thiru Karuna.
(12) The chance prints developed from the ambassador car TDL 9683 which was abandoned at new Mahali Party Street, Madurai after the commission of armed dacoity tallied with the finger prints of accused Thiru Karuna.
(13) The chance prints developed from the ambassador car TDL 1919 and TDT 3699 which were used in earlier attempts tallied with the finger prints of accused Thiru Karu na.
XXX XXX XXX (18) I am aware that Thiru Nalla thambi is in remand and would be proceeded with under normal law.
Though the name of Thiru Nallathambi does not find a place in the F.I.R. and though he has not physically par ticipated in the commission of the armed dacoity, a reading of the records and the statement clearly disclosed the facts that Thiru Nallathambi, was an active participant in the said conspiracy to loot the K.K. Nagar branch of the Bank of Madura.
In 909 furtherance of the conspiracy Thiru Nallatham bi had made preparation for the commission of the armed dacoity as discussed in para 4 above.
Further Thiru Nallathambi had received a portion of booty of gold jewels weighing about 8325.
150 grams valued Rs.25 lakhs and cash Rs. 15,000.00 from the stolen jewels and cash robbed from the abovesaid Bank and re ceived a box containing 1 revolver, 2 pistols, 3 grenades, 6 bombs and a knife used in the commission of offence.
Subsequently, the said jewels, firearms and bombs mentioned above were recovered in pursuance of the confession of Thiru Nallathambi.
Further Thiru Nallatham bi sent a notice to the News Media in the name of "Tamil Nadu Makkal Vidhuthalai Eyakkam" owning responsibility of the armed dacoity and threatening the law enforcement agency and Government servants with dire consequences if they dare to apprehend them.
Therefore, as a detaining authority I am satisfied that there is compelling necessity warranting the deten tion of Thiru Nallathambi under the and if Thiru Nallathambi is allowed to remain at large it will not be possible to prevent him from indulging in activities prejudicial to the maintenance of public order.
(19) I am also satisfied on the materials mentioned above that if Thiru Nalla thambi is allowed to remain at large, he will indulge in further activities prejudicial to the maintenance of public order and further the recourse to normal law would not have their desired effect of effectively preventing him from indulging in activities prejudicial to the maintenance of public order and, there fore, I consider that it is necessary to detain him in custody with a view to prevent ing him from acting in any manner prejudicial to the maintenance of public order.
XXX XXX XXX XXX.
" The first argument of the learned counsel for the appel lantpetitioner is based on the above quoted grounds in para Nos. 11, 12 and 13 relating to the chance printes developed from the scene of occurrence in the Bank, the ambassador cars TDL 9683, TDL 1919 and TDT 3699 which tallied with the finger prints of Karuna, an accused in the Bank dacoity case.
It was argued that the report of the finger prints expert who gave this opinion was not supplied to the 910 detenu even though it was a material document to enable the detenu to make an effective representation in respect of these grounds of detention.
Another similar document relates to ground No. 9 which mentions a note sent by the detenu to the newspaper media in the name of Tamil Nadu Makkal Vidu thalai Eyakkam owning responsibility for the Bank dacoity and threatening the law enforcement agency and Government servants with dire consequences if they dare to apprehend them.
It was argued that the non supply of these documents on which the grounds of detention Nos. 9, 11, 12 and 13 are based has deprived the detenu of his legitimate right of effective representation against the same which is guaran teed under Article 22(5) of the Constitution of India and this defect results in invalidating the entire detention order.
The reply of learned counsel for the respondents is that section 5A of the Act is a complete answer to this argument inasmuch as this defect at best requires only the exclusion of these grounds of detention and no more.
It was urged by learned counsel for respondents that the remaining grounds of detention were sufficient to sustain the deten tion order by virtue of section 5A of the Act.
Learned counsel for the appellant petitioner also contended that such a result is not envisaged by section 5A of the Act which did not apply to such a situation and the guarantee under Article 22(5) of the Constitution rendered the defect fatal to the detention order.
Section 5A of the Act clearly provides that the deten tion order under section 3 of the Act has been made on two or more grounds, shall be deemed to have been made separate ly on each of such grounds and accordingly such order shall not be deemed to be invalid merely because one or some of the grounds is or are invalid for any reason whatsoever.
It further says that the detaining authority shall be deemed to have made a detention order after being satisfied as provid ed in section 3 with reference to the remaining grounds or ground.
In other words, a ground of detention which is rendered invalid for any reason whatsoever, shall be treated as non existent and the surviving grounds which remain after excluding the invalid grounds shall be deemed to be the foundation of the detention order.
Section 5A was inserted in the Act with effect from 21.6.1984 to overcome the effect of the decisions which had held that where one or more of the grounds of detention is found to be invalid, the entire detention order must fall since it would not be possible to hold that the detaining authority making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds.
It is, therefore, doubt ful whether the construction of Section 5A suggested by learned counsel for the appellant petitioner can be accept ed.
However, in the 911 present case, it is not necessary for us to express any concluded opinion on this point since we have reached the conclusion that the detention order must be quashed on one of the other contentions to which we shall advert later.
The second argument of learned counsel for the respond ents may also be considered before we deal with the last contention on which we propose to quash the detention order.
The second contention is that the detenu 's arrest in connec tion with the Bank dacoity case is shown on 21.8.1988 when he was actually arrested much earlier in connection with the Bank dacoity as appeared in some local newspapers but those newspaper reports are not shown to have been placed before the detaining authority.
On this basis, it was argued that the satisfaction reached by the detaining authority has been vitiated.
The question of the date on which the detenu was taken into custody in connection with the Bank dacoity is material for the last contention which we shall consider hereafter but the same has no relevance in this connection.
Contents of the newspaper reports except for the fact of earlier arrest which was known to the detaining authority were not relevant for the satisfaction needed to justify making of the detention order.
The detaining authority 's satisfaction was to be formed on the basis of material relevant to show the detenu 's activities requiring his preventive detention with a view to prevent him from acting in a manner prejudi cial to the maintenance of the public order.
The newspaper reports indicating that the detenu was already in custody could at best be relevant only to show the fact that he ' was already in detention prior to the making of the detention order.
We have already mentioned that this fact of the detenu 's custody before the making of the order of detention on 7.9.1988 was known to the detaining authority and its effect is a separate point considered later.
The other contents of the newspaper reports had no other relevance for this purpose.
This contention of learned counsel for the appellantpetitioner is, therefore, rejected.
The last contention of learned counsel is based on the fact that the detenu was already in custody in connection with the Bank dacoity when the order of detention was made on 7.9.1988.
It is also clear that on 22.8.1988 the detenu had moved a bail application which had been rejected and he had been remanded to custody.
It is significant that the detention order itself describes the detenu as a person in custody in the Central Prison at Madurai and the order was served on him through the Superintendent of the Prison.
The question now is of the effect of 912 the detenu 's earlier custody on the validity of the deten tion order.
The contents of the detention order and its accompanying annexure clearly show that the detaining authority was aware and conscious of the fact that the detenu was already in custody in connection with the Bank dacoity at the time of making the detention order.
The fact that the detenu 's application for grant of bail in the dacoity case had been rejected on 22.8.1989 and he was remanded to custody for the offence of bank dacoity punishable under section 397 I.P.C. is also evident from the record.
The detention order came to be made on 7.9.1988 on the above grounds in these circum stances.
In the detention order the detaining authority recorded its satisfaction that the detenu 's preventive detention was necessary to prevent him from indulging in activities prejudicial to maintenance of public order in which he would indulge if he was allowed to remain at large.
The above quoted paragraphs 18 and 19 of the Annexure to the detention order clearly disclose this factual position.
However, it may be pointed out that the detention order read along with its annexure nowhere indicates that the detaining authority apprehended the likelihood of the detenu being released on bail in the dacoity case and, therefore, consid ered the detention order necessary.
On the contrary, its contents, particularly those of the above quoted paragraph 18 clearly mention that the detenu had been remanded to custody for being proceeded against in due course and even though his name was not mentioned in the F.I.R. as one of the dacoits who participated in the commission of the armed Bank dacoity yet the documents clearly revealed that the detenu was an active participant in the conspiracy to loot the bank in furtherance of which the dacoity was committed; and that considerable booty of that crime including weapons, bombs and hand grenades were recovered from his possession pursuant to the detenu 's confession made after his arrest.
These averments in the detention order indicate the satis faction of the detaining authority that in its view there was ample material to prove the detenu 's active participa tion in the crime and sharing the booty for which offence he had already been taken into custody.
This view of the de taining authority negatives the impression of likelihood of detenu being released on bail.
The real question, therefore, is: whether after the above satisfaction reached by the detaining authority and when the detenu was already in custody being arrested in connection with the Bank dacoity, could there be any reason able basis for making the detention order and serving it on the detenu during his custody? We may now refer to the decisions on the basis of which this 913 point is to be decided.
The starting point is the decision of a Constitution Bench in Rameshwar Shaw vs District Magis trate, Burdwan & Anr., [964] 4 SCR 92 1.
All subsequent decisions which are cited have to be read in the light of this Constitution Bench decision since they are decisions by Benches comprised of lesser number of Judges.
It is obvious that none of these subsequent decisions could have intended taking a view contrary to that of the Constitution Bench in Rameshwar Shaw 's case (supra).
The detention order in Rameshwar Shaw 's case (supra) was made and also served on the detenu while he was in jail custody.
The detenu was then in jail where he had been kept as a result of the remand order passed by the competent court which had taken cognizance of a criminal complaint against him.
The Constitution Bench considered the effect of the detenu 's subsisting detention at the time of making of the order of preventive detention and held that the effect thereof had to be decided on the facts of the case; and that this was a material factor to be considered by the detaining authority while reaching the satisfaction that an order of preventive detention was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order after his release.
It was indicated that the detenu 's subsisting custody did not by itself invalidate the detention order but facts and circumstances justifying the order of preventive detention notwithstanding his custody were necessary to sustain such an order.
The position of law was summarised by their Lordships 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 considerations of proximity of time will not be 914 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 the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of deten tion 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 . .
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 circum stances of each case.
The question which still remains to be considered is: can a person in jail custo dy, like the petitioner, be served with an order of detention whilst he is in such custo dy? XXX XXX XXX XXX We have already seen the logical process which must be followed by the authority in taking action under section 3(1)(a).
The first stage in the process is to examine the material adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner.
If the said material appears satisfactory to the authority, then the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention.
If this question is answered against the petitioner, then the detention order can be properly made.
It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is neces sary to prevent him from acting in a prejudi cial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevita bly postulates freedom of action to the said person 915 at the relevant time.
If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner? At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudi cially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention.
The satisfaction that it is neces sary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under section 3(1)(a), and this basis is clearly absent in the case of the petitioner.
Therefore, we see no escape from the conclusion that the deten tion of the petitioner in the circumstances of this case, is not justified by section 3(1)(a) and is outside its purview." (at pages 929 931 of SCR) (emphasis supplied) On the above principle the Constitution Bench also explained the decision of the Assam High Court in Sahadat Ali vs State of Assam & Ors., A.I.R. 1953 Assam 97 in Saha dat Ali 's case (supra) the Government had decided to abandon the pending prosecution in public interest and action for detenu 's release was taken.
In anticipation of his release, the order of detention was passed and it was served after he was actually released.
In these circumstances the detention order and its service was held valid.
The test indicated by the Constitution Bench was duly satisfied.
It is this principle and the test indicated therein which has to be applied in all such cases.
Read in this manner the conclusion reached in each of the subsequent decisions satisfies this test.
In Kartic Chandra Guha vs The State of West Bengal and others, the order of preventive detention passed while the detenu was in custody was upheld since there was a likelihood of his release on bail and resuming his desperate criminal activities prejudicial to the mainte nance of public order.
The facts of that case, therefore, justified making the detention order according to the test laid down by the Constitution Bench in Rameshwar Shaw 's case (supra).
Dr. Rarnakrishna Rawat vs District Magistrate, Jabalpur and another, was a case in which the order of detention was passed while the detenu was in jail custody in a proceeding under section 151 read with section 117 Cr.
P.C. The detention order was upheld since 916 the custody was obviously of a short duration and on the basis of the antecedent activities of the detenu in the proximate past, the detaining authority could reasonably reach its subjective satisfaction that the detenu had the tendency to act in a manner prejudicial to the maintenance of public order after his release on the termination of the security proceedings under the Code.
In Vijay Kumar vs State of Jammu & Kashmir and others, the detention order was quashed because it did not give the slightest indication that the detaining authority was aware that the detenu was already in jail.
The further question of the detaining authority 's subjective satisfaction that it was necessary even then to make an order for preventing him from acting in a manner prejudicial to the security of the State did not, therefore, arise.
While dealing with this aspect the correct position was reiterated 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.
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 order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive deten tion 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 inval idation of the order." (at page 48) It is obvious that in this decision also the test indicated by the Constitution Bench in Rameshwar Shaw 's case (supra) was applied and the detention order was quashed on that basis.
In Alijan Mian and another vs District Magistrate, Dhanbad; , the detention order was upheld even though the detenu was in jail custody on the date of passing of the detention order because the detention order showed that the detaining authority was alive to the fact and yet it was satisfied that if the detenu was enlarged on bail, which was quite likely, he would create problems of public order which necessitated his preventive detention.
In Ramesh Yadav 917 vs District Magistrate, Etah and others, the detention order was passed when the detenu was in jail on the mere apprehension of likelihood of grant of bail on the basis of some stale grounds and a ground in respect of which the detenu had already been acquitted.
It is obvious that even with the likelihood of grant of bail, the grounds of detention being stale or non existent on the ground of the detenu 's acquittal, they did not satisfy the required test of the detention order being based on valid grounds showing detenu 's activities proximate in point of time to justify the detaining authority 's satisfaction as reasona ble.
It was observed in passing that if the apprehension of the detaining authority about the likelihood of grant of bail was correct then it was open to challenge the bail order in a higher forum.
This observation has accordingly to be read in the context of the facts in which it was made.
In Binod Singh vs District Magistrate, Dhanbad, Bihar and others; , the detention order was held to be invalid because the jail custody of the detenu at the time of service of the order as also the prospect of his release were not considered while making the detention order.
It was held that the detention order was invalid on the ground of non application of mind to these relevant factors even if the detention was otherwise justified.
The decision in Rameshwar Shaw 's case (supra) was relied on and it was reiterated as under: "If a man is in custody and there is no immi nent possibility of his being released, the power of preventive detention should not be exercised.
In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail.
There is no indication that this factor or the question that the said detenu might be released or.
that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order.
A bald statement is merely an ipse dixit or the officer.
If there were cogent materials for thinking that the detenu might be released then these should have been made apparent." (at pages 420 421) In Poonam Lata vs M.L. Wadhawan and another; , it was reiterated that detenu being already in jail at the time of passing detention order does not by itself vitiate the detention if the detaining authority is aware of this fact but even then it is satisfied about the necessity of preventive detention.
The Constitution Bench decision in Rameshwar Shaw 's case (supra) and the other earlier deci sions were 918 referred while reaching this conclusion.
The correct posi tion was reiterated and summarised as under: "It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining author ity in making an order of preventive deten tion.
What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary.
In the facts of the present case, there is sufficient material to show that .the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary.
" (at page 58) A recent decision on the point is Smt.
Shashi Aggarwal vs State of U.P. and others; , in which also the settled principle is reiterated and it is pointed out that the ultimate decision depends on the facts of a partic ular case, the test to be applied remaining the same, as indicated in Rameshwar Shaw 's case (supra).
It was also pointed out in this decision that the earlier decisions of the Supreme Court in Ramesh Yadav, (supra) and Binod Singh, (supra) do not run counter to the decision in Alijan Mian 's case (supra).
In each of these cases the conclusion was reached on the facts of the particular case, the test ap plied being the same.
Similarly, in this decision it was once again pointed out that the detenu being already in jail, the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detenu would indulge in activities prejudicial to the maintenance of public order in case of his release on bail.
The detention order in that case had been made merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out.
It was, therefore, held that the mere possibility of his release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of preventive detention in the absence of any material on the record to show that if released on bail he was likely to commit activ ities prejudicial to the maintenance of public order.
The detention order in that case was quashed on the ground that the requisite material to entertain such an apprehension reasonably was not present.
The conclusion reached therein, on the facts and circumstances of the case, is as under: 919 "In the instant case, there was no material made apparent on record that the detenu, if released on bail, is likely to commit activi ties prejudicial to the maintenance of public order.
The detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of being bailed out.
We do not think that the order of detention could be justified only on that basis." (at page 440) A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw 's case (supra).
The conclusion about validity of the detention order in each case was reached on the facts of the particular case and the observations made in each of them have to be read in the context in which they were made.
None of the observations made in any subsequent case can be construed at variance with the principle indicated in Ra meshwar Shaw 's case (supra) for the obvious reason that all subsequent decisions were by benches comprised on lesser number of Judges.
We have dealt with this matter at some length because an attempt has been made for some time to construe some of the recent decisions as modifying the principle enunciated by the Constitution Bench in Rameshwar Shaw 's case (supra).
We may summarise and reiterate the settled principle.
Subsisting custody of the detenu by itself does not invali date an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc.
ordinarily it is not, needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his an tecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release.
This appears to us, to be the correct legal position.
Applying the above settled principle to the facts of the present case we have no doubt that the detention order, in the present case, must be quashed for this reason alone.
The detention order read with 920 its annexure indicates the detaining authority 's awareness of the fact of detenu 's jail custody at the time of the making of the detention order.
However, there is no indica tion therein that the detaining authority considered it likely that the detenu could be released on bail.
In fact, the contents of the order, particularly, the above quoted para 18 show the satisfaction of the detaining authority that there was ample material to prove the detenu 's complic ity in the Bank dacoity including sharing of the booty inspite of absence of his name in the F.I.R. as one of the dacoits.
On these facts, the order of detention passed in the present case on 7.9.1988 and its confirmation by the State Government on 25.10.1988 is clearly invalid since the same was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release.
It does not satisfy the test indicated by the Constitution Bench in Rameshwar Shaw 's case (supra).
We hold the detention order to be invalid for this reason alone and express no opinion on merits about the grounds of detention.
Consequently, the aforesaid order of detention dated 7.9.1988 passed by the Collector and District Magistrate, Madurai, and the order of confirmation dated 25.10.1988 by the Government of Tamil Nadu are quashed.
The appeal and the writ petition are allowed.
This, however, will not affect the detenu 's custody in connection with the criminal case under section 397 I.P.C.
We may also clarify that in case the detenu is released in the aforesaid criminal case, the question of his preventive detention under the Act on the above material may be reconsidered by the appropriate au thority in accordance with law and this judgment shall not be construed as an impediment for that purpose.
No costs.
R.N.J. Appeal and Petition allowed.
| IN-Abs | By an order dated 7.9.88 the Collector & District Magis trate Madurai under section 3(2) of the made an order for keeping in custody Nallathambi, the husband of the appellant/ petitioner.
The State Govt.
on 25.10.88 by its order under section 12(1) of the Act confirmed the order of detention agreeing with the opinion of the Advisory Board and ordered the detention of the detenue for 12 months from the date of his detention.
The wife of the detenue challenged this preventive detention by filing a writ of Habeas Corpus in the High Court of Madras.
The High Court by its order dated 6.3.89 dismissed the writ petition.
The appellant petitioner challenged the dismissal of the writ by the High Court by way of special leave and also by filing a writ petition under Article 32 of the Constitution of India.
This Court while quashing the detention order, HELD: Subsisting custody of the detenue by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenue from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc.
ordinarily it is not needed when the detenue is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenue and take that factor into account while making the order; but, even so, if the detain ing authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release.
[919E G] In the instant case, the the detention order read with its annexure indicates the detaining authority 's awareness of the fact of detenue 's 902 jail custody at the time of the making of the detention order.
However there is no indication therein that the dete nue could be released on bail.
On the contrary the detention order shows satisfaction of the detaining authority that there was ample material to support the criminal charge against the detenue.
The order of detention passed on 7.9.1988 and its confirmation by the State Government on 25.10.1988 is therefore clearly invalid since the same was made when the detenue was already in jail custody for the offence of bank dacoity with no prospect of his release.
[919H 920C] Rameshwar Shaw vs District Magistrate, Burdwan & Anr.
, ; upon.
Kartic Chandra Guha vs The State of West Bengal & Ors., ; Dr. Ramakrishna Rawat vs District Magis trate, Jabalpur & Anr., ; Vijay Kumar vs State of Jammu & Kashmir & Ors.
, ; ; Alijan Mian & Anr.
vs District Magistrate, Dhanbad, ; ; Ramesh Yadav vs District Magistrate, Etah & Ors., ; Binod Singh vs District Magistrate, Dhan bad, Bihar & Ors., ; ; Poonam Lata vs M.L. Wadhawan & Anr., ; and Smt.
Shashi Aggarwal vs State of U. P. & Ors., ;
|
ivil Appeal No. 1589 of 1988 etc.
From the Order dated 6.1.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 2085 of 1985A in Order No. 5 of 1988 A. K. Parasaran, Attorney General, A.K. Ganguli, K. Swamy, P. Parmeswaran and Sushma Suri for the Appellant.
R.N. Bajoria, S.K. Bagaria, Padam Khaita, Vivek Gambhir, Praveen Kumar, S.K. Bagga and R.K. Mehta for the Respond ents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These appeals are at the in stance of the revenue under section 35 L of the Central Excises & Salt Act, 1944 (hereinafter referred as to 'the Act ').
Civil Appeal No. 1589 appeal arises out of Order No. 5 of 1988 A passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as 'the Tribunal ').
The. respondent used to manufacture different varieties of printing paper including wrapping paper falling under Item No. 17(1) of the erstwhile Central Excise Tariff in their factory at Bansberia, District Hubli.
It is the appel lant 's case that the respondent had violated the 1020 provisions of Rule 9(1), Rule 173 F and Rule 173 G of the Central Excise Rules, 1944 inasmuch as they had removed 4,000 kgs.
of wrapping paper under Gate Pass No. A 460 dated 9th February, 1984 and 485 dated 17th February, 1984 valued at Rs. 13,200 without payment of central excise duty.
Show cause notice was issued to the respondent as to why appro priate duty of excise amounting to Rs.3,600 (basic), Rs. 180 (special) and Rs. 16.50 (cess) totalling Rs.3,796.50 should not be recovered from them on the said quantity at the rate of Rs.900 per M.T. and special duty at the rate of 5% of basic duty and cess 1/8% on value.
Notice to show cause as to why penalty should not be imposed was also issued.
Cause was shown by the respondent.
It was the contention of the respondent that there was no infringement of the impugned provision and no duty was required to be paid on the excisa ble goods if it was captively consumed or utilised in the same factory as component part of the finished goods falling under the same tariff item and specified in Rule 56(a) of the Central Excise Rules, 1944.
It was further stated that in the instant case, wrapped paper manufactured was captive ly consumed and utilised as component part of other varie ties of paper.
Wrapping, it was contended, of finished product by wrapping paper is a process incidental and ancil lary to the completion of manufactured product under section 2(f) of the Act and wrapping is used as a component part of finished excisable goods attracting the benefit of the notification No. 18A 83 CE dated 9th July, 1983.
The Super intendent (Technical) of Central Excise held otherwise.
The respondent preferred an appeal before the Collector (Ap peals), Calcutta.
The respondent contended before the Col lector that they were entitled to the benefit of notifica tion and it is well settled law in view of several judgments of High Court and orders of the Tribunal that wrapping of paper was a process incidental or ancillary to the comple tion of manufacture of paper, as the printing and writing paper could not be sold in the market without being packed and wrapped by wrapping paper.
The Collector (Appeals), however, rejected the claim to exemption in respect of such wrapping paper in terms of the proviso to Rule 9(1).
There was an appeal to the Tribunal.
The Tribunal referred to its own decision in the case of Collector of Central Excise, Bhubneshwar vs Orient Paper Mills, Brajraj Nagar, 135, which is the subject matter of the other appeal involved herein, and set aside the order of Collector.
Similar is the case in Civil Appeal Nos.
3760 62 of 1988.
In that case, M/s. Orient Paper Mills, Brajraj Nagar, respondents, were manufacturers of various types of paper and paper board.
They were also the manufacturers of wrap ping paper for packing or wrapping of 1021 other varieties of paper.
Under the relevant notification, the Central Government had exempted duty in respect of goods if these were consumed or utilised in a place where such goods were produced or manufactured under relevant rule either as raw materials or component parts for the manufac ture.
Therefore, in order to get the benefit of non levy of excise duty on wrapping paper, it had to be established in both these appeals that the wrapping papers were consumed or utilised by the respondent assessees as component parts or raw materials for the finished products.
The Collector (Appeals) in his order observed that when wrapping paper was used for making paper reams/reals, it lost its original identity as wrapping paper and became a part and parcel of the paper ream/real and as such available for the benefit of amended Rules.
Revenue disputed this finding.
It was contended that the wrapping paper was not utilised or consumed in the manufacture of other paper.
On behalf of the revenue, it was contended before us in these appeals that in order to be non dutiable, the wrapping paper must be either component part or raw material and must be consumed or utilised in the manufacture of the finished products.
Wrapping paper cannot, it was contended, be deemed to be component part because it did not become an integral part of the packed paper.
In this connection, on behalf of the revenue, learned Attorney General drew our attention to the fact that reliance had been placed on the decision of the Kerala High Court in Paul Lazar vs State of Kerala, [1977] 40 STC 437.
On behalf of the respondent, however, Shri Bajoria placed reliance on section 2(f) of the Act which includes any process incidental or ancillary to the completion of a manufactured product.
Therefore, it was urged that all processes leading upto the stage of goods, when the goods become completed for marketing would be within the process of marketing.
In that view of the situa tion, it was urged that wrapping paper was raw material or component part of the wrapped paper.
It was further urged that revenue had itself considered the stage of wrapped or packed paper as the R.G.I. stage, i.e., the stage at which goods should be entered in the statutory production regis ter. 'Manufacture ' in the sense it is used in the excise law, was not complete until and unless wrapping was done.
It is law now that excise is a duty on manufacture.
Manufacture is the process or activity which brings into existence new, identifiable and distinct goods.
Goods have been understood to be articles known as identifiable articles known in the market as goods and marketed or marketable in the market as such.
See in this connection the observations of this Court in Bhor Industries Ltd., Bombay vs Collector of Central Excise Bombay, 602; South Bihar Sugar Mills Ltd., etc.
vs Union of India & Ors.
, ; ; Union of India vs Delhi Cloth & General Mills Ltd., [1963] Supp. 1 SCR 586 and Union Carbide India Ltd. vs Union of India and Ors., See also the decision of this Court in Civil Appeal No. 2215(NA) of 1988 Collector of Central Excise, Baroda vs M/s Ambalal Sarabhai Enterprises, judgment delivered on 10th August, 1989.
The finished goods were cut to size and packed paper which, according to the Indian Standard and trade practice, consisted of the wrapping paper and the wrapped paper.
In South Bihar Sugar Mills Ltd. 's, case (supra), it was held by this Court that the duty is levied on goods.
As the Act does not define goods, the legislature must be taken to have used that word in its ordinary, dictionary meaning.
The dictionary meaning of the expression is that to become 'goods ' it must be something which can ordinarily come to the market to be bought and sold and is known to the market as such.
The Tribunal found, and there was material for the Tribunal to do so, that the market in which articles in question were sold were paper packed and wrapped in paper.
Therefore, anything that enters into and forms part of that process must be deemed to be raw material or component part of the end product and must be deemed to have been used in completion or manufacture of the end product.
This Court in the case of Empire Industries Ltd. & Ors.
vs Union of India & Ors.
, ; has explained the concept of 'process ' in Excise Law.
In view of the principle laid down therein and other relevant decisions, processes incidental or ancillary to wrapping are to be included in the process of manufacture, manufacture in the sense of bringing the goods into existence as these are known in the market is not complete until these are wrapped in wrapping paper.
In J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs Sales Tax Officer, [1965] 16 STC 563 (SC), this Court while construing the expression 'in the manufacture or processing of goods for sale ' in the context of Sales Tax Law, though the concept is different under the Excise Law, has held that manufacture of goods should normally encompass the entire process carried on by the dealer of converting raw materials into finished goods.
Where any particular process, this Court further emphasised, is so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be commercially inexpedient, articles required in that process, would fall within the expression 'in the manufacture of goods '.
The Tribunal on the appraisement of all the relevant facts in the light of the principles indicated before, upheld its own decision in the case of Orient Paper Mills.
and in both the appeals accepted 1023 the manufacturer 's contentions and dismissed the appeal.
The revenue contends that the Tribunal has erred.
Shri Bajoria for the respondent, drew our attention to the decision of this Court in Collector of Central Excise vs Jay Engineering Works Ltd., There the respondent was the manufacturer of electric fans, and brought into its factory nameplates under Tariff Item 68 of the erstwhile Central Excise Tariff.
The nameplates were affixed to the fans before marketing them.
The respondent claimed the benefit of proforma credit in terms of notifica tion No. 201/79 dated 4th June, 1979, which was for the purpose of relief on the duty of excise paid on goods fall ing under Tariff Item 68, when these goods were used in the manufacture of other excisable goods.
The said notification stated that in supersession of the Notification No. 178/77 of the Central Excise dated 18th June, 1977, all excisable goods on which duty of excise was leviable and in the manu facture of which any goods falling under Item No. 68 have been used, were exempt from so much of the duty of excise leviable thereon as was equivalent to the duty of excise already paid on the inputs.
In that case, the question before the Tribunal was whether the nameplates could be considered as component part of the electric fan, so as to be eligible for proforma credit under the exemption notifi cation.
It was found by the Tribunal that no electric fan could be removed from the factory for being marketed without the nameplate.
The Tribunal also noted in that case that even though it could be said that electric fans could func tion without the nameplates, for actual marketing of the fans, the affixation of the nameplate was considered an essential requirement.
To be able to be marketed or to be marketable, it ap pears to us, in the light of facts in the appeals, that it was an essential requirement to be goods, to be wrapped in paper.
Anything required to make the goods marketable, must form part of the manufacture and any raw material or any materials used for the same would be component part for the end product.
In our opinion, the Tribunal was right in the view it took.
There is no ground to interfere in these appeals.
Before we conclude, we must further observe that Shri Bajoria drew our attention to the judgment and order of the Tribunal in Appeal No. ED(SB)A. No. 2734 83C (Collector of Central Excise vs Orient Paper Mills), where the appeal has been preferred and in the ' petition in appeal to this court by the revenue under section 35L(b) of the Act, where the question involved was whether the proforma credit under rule 56A of the Central Excise Rules, 1944 in respect of said 1024 packing and wrapping paper used for packing admissible or not is punishable or not, the revenue has pleaded that the unit of paper for sale was 'ream ' duly packed in wrapping paper and the real is cured and such real is also wrapped in the wrapping paper.
Therefore, from that statement, it further appears that such ream or real are wholesale pack ages and are stored in packed condition.
If that is the stand of the then it cannot be contended that wrapping paper is not integral part of the manufacture.
If that is so, any material utilised must be component part of the raw material used or consumed in the finished products.
Apart from that, under rule 56A of the Rules, the assessee would be entitled to the benefit of deduction of the duty to be charged on all wrapping papers, if any.
Nothing contrary to the aforesaid was indicated to us by the revenue though asked to do so.
In the aforesaid view of the matter, this question involved in these appeals is really of academic interest.
These appeals, however, have no merit for the reasons indicated above and are accordingly dismissed without any order as to costs.
G.N. Appeals dismissed.
| IN-Abs | The respondent, in the first of these appeals, was manufacturing different varieties of printing paper includ ing wrapping paper failing under Item No. 17 of the erst while Central Excise Tariff.
The appellant issued a show cause notice to the Respondent for the alleged violation of Rules 9(1), 173 F and 173 G of the Central Excise Rules, 1944 in respect of wrapping paper removed outside the Facto ry without payment of Central Excise duty, and for imposi tion of penalty.
Showing cause, the Respondent contended that the wrapping paper was captively consumed and utilised as component :art of other varieties of paper and as such no duty was payable.
Reliance was placed on section 2(f) of the and Notification No. 18A/83 CE dated 9th July, 1983.
The Superintendent (Techni cal) having held otherwise, the respondent preferred an appeal to the Collector (Appeals).
The Collector rejected the claim.
On appeal, the Customs, Excise and Gold (Control) Appellate Tribunal referred to its own decision, which is the subject matter of the other appeals herein and set aside the order of the Collector.
The facts leading to the other appeals are similar, and the issue involved is the same.
The Revenue has filed the appeals under section 35 L of the Central Excises & Salt Act.
On behalf of the Revenue, it was contended that wrapping paper cannot be deemed to be component part because it did not become an integral part of the packed paper.
The assessee, however contended that wrapping paper was raw material or component part of the wrapped paper, and relied on section 2(f) of the Act which includes any process incidental or ancillary to the 1018 completion of a manufactured product.
It was also urged that Revenue had itself considered the stage of wrapped or packed paper as the stage at which goods should be entered in the statutory production register.
Dismissing the appeals, HELD: 1. 'Manufacture ' in the sense it is used in the excise law, was not complete until and unless wrapping was done.
It is the law now that excise is a duty on manufac ture.
Manufacture is the process or activity which brings into existence new, identifiable and distinct goods.
Goods have been understood to be articles known as identifiable articles known in the market as goods and marketed or mar ketable in the market as such.
The finished goods were cut to size and packed paper which, according to the Indian standard and trade practice, consisted of the wrapping paper and the wrapped paper.
Duty is levied on goods.
As the Act does not define goods, the legislature must be taken to have used that word in its ordinary, dictionary meaning.
The dictionary meaning of the expression is that to become 'goods ' it must be something which can ordinarily come to the market to be bought and sold and is known to the market as such.
The Tribunal found, and there was material for the Tribunal to do so, that the market in which articles in question were sold were paper packed and wrapped in paper.
Therefore, anything that enters into and forms part of that process must be deemed to be raw material or component part of the end product and must be deemed to have been used in completion or manufacture of the end product.
[1021G H; 1022A D] Bhor Industries Ltd., Bombay vs Collector of Central Excise, Bombay, ; ; South Bihar Sugar Mills Ltd., etc.
vs Union of India & Ors.
, ; ; Union of India vs Delhi Cloth & General Mills Ltd., [1963] Suppl.
I SCR 586; Union Carbide India Ltd. vs Union of India and Ors.
, ; Collector of Central Excise, Baroda vs M/s Ambalal Sarabhai Enterprises, ; relied on.
Processes incidental or ancillary to wrapping are to be included in the process of manufacture, manufacture in the sense of bringing the goods into existence as these are known in the market, is not complete until these are wrapped in wrapping paper.
Manufacture of goods should normally encompass the entire process carried on by the dealer of converting raw materials into finished goods.
Where any particular process, is so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of 1019 goods would be commercially inexpedient, article required in that process, would fail within the expression 'in the manufacture of goods '.
[1022E G] Empire Industries Ltd. & Ors.
vs Union of India & Ors.
, ; ; J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs Sales Tax Officer, [1965] 16 STC 563 (SC); relied on.
[1023F] 3.
To be able to be marketed or to be marketable, in the light of facts in the appeals, it was an essential require ment to be goods, to be wrapped in paper.
Anything required to make the goods marketable, must form part of the manufac ture and any raw material or any material used for the same would be component part for the end product.
Collector of Central Excise vs Jay Engineering Works Ltd., ; referred to.
|
tion Nos.
1128 and 1204 of 1988, 1012 (Under Article 32 of the Constitution of India).
Mrs. section Ramachandran for the Petitioners.
V.C. Mahajan, Ms. A. Subhashini and Ms. Kusum Chaudhary for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Each of these two writ petitions under Article 32 of the Constitution is by the widow of the respective pensioners.
Since family pension under the Rules has not been given to them, they have asked for a mandamus to the respondent Union of India to grant such pension in terms of the pension scheme applicable to the category to which the husbands of the respective petitioners belonged.
Petitioner Smt.
Bhagwanti is the widow of an ex Subedar of the Indian Army.
Her husband after serving for 18 years retired on 3.8.1947 and was given pension.
In 1955, his wife died and in 1965 he was married to the petitioner.
The Subedar died in September, 1985 in an accident.
Petitioner who has two minor children applied for family pension and the same has not been granted.
The petitioner in the connected writ petition is the wife of a retired Railway employee.
Her husband took volun tary retirement at the age of 44 in November, 1979.
Peti tioner got married to her husband in 1981 and has a daughter born in 1984 out of the said wedlock.
Petitioner 's husband died in 1986.
The petitioner applied for family pension but by a letter dated 3rd of August, 1988, her application was rejected by saying: 'It has not been found possible to include wife of a Government servant who had married after retirement in the definition of 'family ' for grant of family pension '.
Counter affidavits have been filed in both the writ petitions.
In the first case, in the return made by Captain N.K. Vishwakarma from the Office of Records AMC, Lucknow in paragraph A, it has been stated that pension has been re fused as petitioner 's marriage was after retirement of the Subedar.
In the connected matter, the Senior Personnel Manager of the South Central Railway has placed reliance on the definition of 'family ' occurring in Rule 54(14)(b) of the Central Civil Services (Pension) Rules, 1972.
As far as relevant, the definition reads thus: 1013 "(b). 'Family ' in relation to a Government servant means (i) wife in the case of a male Gov ernment servant, Or husband in the case of a female Government servant, provided the mar riage took place before retirement of the Government servant. . . . . . . . . . (ii) son who has not attained the age of twenty one years and unmarried daughter who has not attained the age of thirty years, including such son and daughter adopted legal ly before retirement but shall not include son or daughter born after retirement.
" The common stand of the Union of India in the two cases, therefore, is that family pension would not be admissible to spouses who get married after the retirement of the Govern ment servant, nor to children born after such retirement.
The only question for consideration in these two writ petitions therefore, has two facets: (i) whether the spouse man or woman, as the case may be married after the retirement of the concerned Government servant can be kept out of the definition so as to deprive him from the benefit of the family pension, and (ii) whether off springs born after retirement are entitled to benefits of such pension.
In D.S. Nakara & Ors.
vs Union of India, ; , a Constitution Bench of this Court at p. 185 of the Reports observed: " . . pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings.
One such saving in kind is when you gave your best in the hey day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured.
The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from 1014 service Thus the pension payable to be a Government employee is earned by rendering long and efficient service and, therefore, can be said to be a deferred portion of the com pensation or for service rendered.
In one sentence one can say that the most practical raison detre for pension,, is the inability to provide for oneself due to old age .
In Deoki Nandan Prasad vs State of Bihar & Ors., , it was held by this Court: "The payment of pension does not depend upon the discretion of the Government but is gov erned by the relevant rules and anyone enti tled to the pension under the rules can claim it as a matter of right." In Smt.
Poonamal vs Union of India & Ors., ; , it was pointed out: "Where the Government servant rendered serv ice, to compensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family pension as a matter of right.
In fact we look upon pension not merely as a statutory right but as the fulfilment of a constitutional promise in as much as it partakes the charac ter of public assistance in cases of unemploy ment, old age, disablement or similar other cases of undeserved want.
Relevant rules merely make effective the constitutional mandate.
That is how pension has been looked upon in D.S. Nakara 's judgment." Admittedly, the definition of 'family ' as it stands after amendment excludes that scope of the Government serv ant who has got married to such Government servant after his/her retirement and the children born after retirement also stand excluded.
Petitioners have challenged the stand of the Union of India and the definition in the Pension Rules as arbitrary and discriminatory It has been contended that if family pension is payable to the widow or the hus band as the case may be, of the Government servant, the category which the definition keeps out, namely, those who have married after retirement and offsprings of regular marriage born after retirement, is discriminatory.
Pension is payable, as pointed out in several judgments of this 1015 Court, on the consideration of past service rendered by the Government servant.
Payability of the family pension is basically on the self same consideration.
Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinc tion between marriage during service and marriage after retirement appears to be indeed arbitrary.
There are in stances where a Government servant contracts his first marriage after retirement.
In these two cases before us, retirement had been at an early age.
In the Subedar 's case, he had retired after putting in 18 years of service and the Railway employee had retired prematurely at the age of 44.
Premature or early retirement has indeed no relevance for deciding the point at issue.
It is not the case of the Union of India and, perhaps there would have been no force in such contention if raised, that family pension is admissible on account of the fact that the spouse contributed to the efficiency of the Government servant during his service career.
In most cases, marriage after retirement is done to provide protection, secure companionship and to secure support in old age.
The consideration upon which pension proper is admissible or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of 'family ' by keeping the postretiral spouse out of it.
Government Servants Conduct Rules prohibit marriage during the life time of a spouse.
Section 494 of the Indian Penal Code makes second marriage void and makes it a crimi nal offence.
Thereafter, both before retirement and even after retirement there is no scope for a person to have a second wife or a husband.
as the case may be, during the life time of an existing spouse.
Reliance has been placed on the recommendations of the Third Pay Commission on the basis of which the amendment in the Pension Rules is said to have been made.
Apart from referring to the recommendations, no attempt has been made at the hearing by counsel for the Union of India to derive support from the recommendations.
We really see no justifi cation as to why post retirement marriages should have been kept out of the purview of the definition.
In clause (ii) of the definition son or daughter born after retirement even out of wedlock prior to retirement have been excluded from the definition.
No plausible expla nation has been placed for our consideration for this exclu sion.
The purpose for which family pension is provided, as indicated in Smt.
Poonamal 's case, is frustrated if children born after retirement are excluded from the benefit of the 1016 family pension.
Prospect of children being born at such advanced age (keeping the age of normal superannuation in view) is minimal but for the few that may be born after the retirement, family pension would be most necessary as in the absence thereof,.
in the event of death of the Government servant such minor children would go without support.
The social purpose which was noticed in some pension cases by this Court would not justify the stand taken by the Union of India in the counter affidavit.
It is not the case of the Union Government that as a matter of public policy to con tain the growth of population, the definition has been so modified.
Even if such a contention had been advanced it would not have stood logical scrutiny on account of the position that the Government servant may not have any child prior to retirement and in view of the accepted public policy that a couple could have children upto two, the only child born after superannuation should not be denied family pension.
Considered from any angle, we are of the view that the two limitations incorporated in the definition of 'family ' suffer from the vice of arbitrariness and discrimination and cannot be supported by nexus or reasonable classification.
The Words 'provided the marriage took place before retire ment of the Government servant ' in clause (i) and 'but shall not include son or daughter born after retirement ' in clause (ii) are thus ultra vires Article 14 of the Constitution and cannot be sustained.
The writ petitions are allowed.
The respondent Union of India shall have a direction to extend to each of the peti tioners in the two writ petitions family pension as admissi ble under the respective schemes from the date the husband of each of petitioners died.
Since these writ petitions were instituted on the basis of letters received by the Court and treated as public interest litigation and were supported by the Supreme Court Legal Aid Committee through their counsel, there shall be no order as to costs.
Y. Lal Petitions allowed.
| IN-Abs | These two Writ Petitions have been filed by the widows of the pensioners viz. Smt.
Bhagwati and Smt.
Sharda Swamy, as they have been refused family pension after the demise of their husbands.
Bhagwanti is the widow of an Ex Subedar of the Indian Army who retired after serving for 18 years on 3.8.1947.
He was given pension.
In 1955 his wife died and in 1965 he married the petitioner.
The Subedar died in Septem ber 1985 in an accident.
The Petitioner Smt.
Bhagwanti who has two minor children applied for family pension but the same was not granted to her.
The other Petitioner Smt.
Sharda Swamy is the wife of the retired railway employee.
Her husband took voluntary retirement at the age of 44 years in November 1979.
The Petitioner married her deceased husband in 1981 and has a daughter born to her in 1984.
Petitioner 's husband died in 1986.
The petitioner applied for a family pension but by a letter dated 3.8.1988, she was informed that her application has been rejected.
It was stated therein that it has not been found possible to include wife of a Government Servant who had married after retirement in the definition of ' ' family" for grant of family pension.
In the counter affidavits filed on behalf of the Union, the stand taken in the first case is that the pension has been refused as the marriage was after retirement and in the other case the Union relied on the definition of "family" occurring in Rule 54(14)(b) of the Central Civil Services (Pension) Rules 1972, which speaks of marriage before re tirement.
1011 The common stand taken thus by the Union is that family pension would not be admissible to spouses who get married after the retirement of the Government servant nor to chil dren born after retirement.
Allowing the Writ Petitions this Court HELD: Pension is payable, as pointed out in several Judgments of this Court, on the consideration of past serv ice rendered by the Government servant.
Payability of the family pension is basically on the self same consideration.
Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinction between marriage during service and mar riage after retirement appears to be indeed arbitrary.
[101411 1015B] Admittedly, the definition of "family" as it stands after amendment excludes the spouse of the Government serv ant who has got married to such Government servant after his/her retirement and the children born after retirement also stand excluded.
[1014F] In most cases, marriage after retirement is done to provide protection, secure companionship and to secure support in old age.
[1015C] The consideration upon which pension proper is admissi ble or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of "family" by keeping the postretiral spouse out of it.
[1015D] The two limitations incorporated in the definition of "family" suffer from the vice of arbitrariness and discrimi nation and cannot be supported by nexus or reasonable clas sification.
[1016D] The words "provided the marriage took place before retirement of the Government servant" in clause (i) and "but shall not include son or daughter born after retirement" in clause (ii) are thus ultra vires Article 14 of the Constitu tion and cannot be sustained.
[1016E] D.S. Nakara & Ors.
vs Union of India, ; ; Deoki Nanaan Prasad vs State of Bihar & Ors., [1971] Suppl.
SCR 634; Smt.
Poonamal vs Union of India & Ors., ; ; referred to.
|
Criminal Appeals Nos. 120 & 121 of 1955.
497 Appeals from the judgment and order dated December 16, 1954, of the Mysore High Court at Bangalore in Criminal Appeals Nos. 49 and 50 of 1953 arising out of the judgment and order dated May 19, 1953, of the Court of the Third Additional Sessions Judge at Bangalore in Bangalore Sessions Case No. 7 of 1953.
V. Krishnamurthy and R. Gopalakrishnan, for the appellants.
G. Channappa, Assistant Advocate General for the State of Mysore and T. M. Sen, for the respondent.
April 14.
The Judgment of the Court AA as delivered by KAPUR J.
These two appeals under article 134(1)(c) of the Constitution arise out of the judgment and order of the High Court of Mysore at Bangalore confirming the convictions and sentences passed upon the appellants who were accused Nos. 2, 3 and 4 respectively by the Third Additional District Judge, Bangalore.
Accused Nos. 1, 5 and 6 who have been acquitted and the appellants were charged as follows: "I. . . hereby charge you A 1 Sanjeeva Rao, A 2 Srikantiah, A 3 Sidda, A 4 Kidaripathi, A 5 Hanumantha and A 6 Pujari Anantha as follows: 1.That you on or about the 25th day of August 1952 at Mayasandra in Magadi Taluk were members of an unlawful assembly the common object of which was to murder deceased Anne Gowda and thereby committed an offence punishable under section 143 of the Indian Penal Code and within the cognizance of the Court of Sessions.
2.That you A 2 Srikantiah.
, A 3 Sidda, A 4 Kadaripathi, A 5 Hanumantha and A 6 Pujari Anantha, on or about the 25tb.
day of August 1952 at Mayasandra in Magadi Taluk did commit murder by intentionally causing the death of Anne Gowda and thereby committed an offence punishable under section 302 of the Indian Penal Code, and within the cognizance of the Court of Sessions.
And that you A 1 Sanjeeva Rao on or about 498 the 25th day of August 1952 at Mayasandra in Magadi Taluk abetted the commission of the offence of murder by A 2 to A 6 which was committed in consequence of your abetment and thereby committed an offence punishable under sections 109 and 302 of the Indian Penal Code, and within the cognizance of the Court of Sessions.
" Thus all of them were charged with being members of an unlawful assembly, the common object of which was to murder the deceased, Anne Gowda.
The appellants along with Hanumantha accused No. 5 and Pujari accused No. 6 were further charged with committing murder of Anne Gowda by intentionally causing his death.
No doubt the charge does not contain the words " in furtherance of the common inten tion of all " but short of that the charge is as near them as it could be.
Accused No. I Sanjeeva Rao was further charged with abetting the offence of murder.
The trial Court acquitted all the accused of the charge under section 143 Indian Penal Code and accused Nos. 5 & 6 of the charge under section 302 but he convicted accused No. 1 under section 302/109 and the appellants under section 302 and sentenced them all to transportation for life.
They took an appeal to the High Court and the State appealed against the order of acquittal of accused Nos.
5 & 6 and the order of acquittal under section 143.
The High Court acquitted accused No. I Sanjeeva Rao of abetment of murder after the matter was referred to a third judge under section 429 of the Criminal Procedure Code as there was a difference of opinion between the two judges of the Division Bench hearing the appeal and thus the case of abetment set up by the prosecution failed.
It upheld the acquittal of accused Nos.
5 and 6.
The charge of unlawful assembly of which the common object was the murder of Anne Gowda the deceased also failed because of the acquittal of Sanjeeva Rao accused No. 1 Hanumantha accused No. 5 and Pujari accused No. 6 thus leaving only the appellants.
Their conviction for an offence under section 302, Indian Penal Code and the sentence of transportation was upheld.
The trial Court 's finding against them was as follows; 499 " So far as A 2 Srikantiah, A 3 Sidda and A 4 Kadaripathi alias Kunta are concerned, there is ample evidence to show that they alone inflicted injuries on the deceased Anne Gowda and caused his death.
Thus a prima facie case has been made out against them for the murder of Anne Gowda ".
The High Court in appeal said: "The evidence on the whole is consistent and in fact it is so consistent that it was being urged on behalf of the accused that each witness was repeating what the other says.
Some of the important witnesses have been mentioned in the First Information Report and the inquest itself was over within 24 hours after the incident.
Taking the consistent evidence of the witnesses and the probabilities of the case it has to be stated that the evidence of the prosecution witnesses as regards the incident has to be believed We have not had the advantage of a critical and analytical examination of the evidence of the prosecution witnesses by either of the courts below nor has the evidence against each of the appellants been collated and therefore it was necessary for its to examine the evidence in some detail.
The evidence of the witnesses for the prosecution shows that the deceased Anne Gowda and the party of Sanjeeva Rao accused No. I had considerable amount of enmity between each other.
On the date of the occurrence, i. e., August 25, 1952, the deceased had gone to Ramanagram where in a Magistrate 's Court a case had been brought against him by accused No. 1.
After the case was over the deceased and P. W. 18 Gangabyriah who was a co accused in the case and Putta P. W. 20 who was a witness traveled by the bus which reached a place called Kudur at about 7 p.m. From Kudur the deceased accompanied by his two companions and also P.W. 17 Thimmappa and P.W. 19 Puttarangiah and P.W. 21 Basavalingappa who had gone for shopping to the shop of P. W. II Subba Rao, started for their village Yollapore.
When they reached the bund of the tank of Mayasandra, accused Nos.
I and 5 and the appellants came from the opposite side.
Accused No.
I flashed his torch on to the 500 deceased and his companions.
Thereupon appellant No. 1 who is the brother of Sanjeeva Rao accused No. 1 gave a blow with his chopper which cut into two the torch which at the time :was in the hand of P.W. 18 Gangabyriah and on the instigation of accused No. 1 to kill the deceased the appellants started their attack on him.
Appellant No. 3 Sidda gave a blow from behind on the right side of the neck of the deceased with his chopper and accused No. 4 Kadaripathi aimed a, blow on his head but to ward off the blow the deceased raised his hand and the blow fell on his hand.
The deceased then ran towards the tank chased by the accused Nos. 1 and 5 and the appellants.
He fell into a shallow water pit.
Accused Nos. 5 and 6 who were empty handed are stated to have caught hold of him and the appellants gave five or six blows to the deceased with choppers.
Accused Nos. 5 and 6 then released him but the appellants continued the assault with their choppers and caused 24 incised injuries.
This story is supported by P.W. 17 Thimmappa, P.W. 18 Gangabyriah, P.W. 19 Puttarangiah and P.W. 20 Putta and lastly P .
W. 21 Basavalingappa.
The First Information Report which was lodged at about 1 a.m., on August 26, was made by P.W. 17 Thimmappa and ' the whole incident is there set out along with the names of the accused as well as the witnesses.
When the house of Appellant No. 3 Sidda was searched a bloodstained chopper M. O. 11 was produced by him before the Panchayatdars.
Similarly the house of accused No. 4 Kadaripathi was also searched and that appellant also produced a chopper there.
As the prosecution has not proved that any of these choppers was stained with human blood it cannot get much assistance from this recovery.
The medical witness P.W. 2 , found as many as 24 injuries.
Of these injury No. 5 was described as follows: "A transverse incised wound in front of the neck 5" long 2 1/2" deep, cutting the skin, muscles, arteries, veins above the thyroid cartilage, pharynx and muscles in front of the vertebral column.
On the right side the wound starts 2" below.
the lobule of the right 501 ear, runs to the left and ends 2" below and 1" behind the lobule of the left ear".
All the other injuries were incised varying in degree of seriousness.
The medical witness 's opinion was that injury No. 5 is a fatal injury sufficient to cause death All the other injuries taken as whole may be fatal "The prosecution has not proved as to who caused injury No. 5 nor has it specified the injuries caused by individual appellants.
The question then arises; what is the offence which the appellants are guilty of, if any.
Courts below have accepted the testimony of the witnesses which establishes that there was enmity between the parties and that on the date of the occurrence the deceased had gone to the Magi strate 's Court at Ramanagram for the case which had been brought at the instance of accused No. 1.
The evidence also shows that on that date appellants 3 and 4 were seen together at Kudur in front of the shop of P.W. 10 at about 6 p.m.
When accused No. 3 was asked by Siddappa P.W. 10 as to what had 'brought him there, his reply was that he was waiting for somebody who was coming by Renuka Bus Service ".
The testimony of P.W. 11 on this point is that he saw accused Nos. 3 and 4 and another man about 5 30 p.m. or 6 p.m. in front of his shop.
He asked them why they had come.
They replied that "they had come to see some persons coining by Renuka Bus" and there is evidence to show that the deceased and his two companions had come from Ramanagram by this Bus Service at about 7 p.m.
The evidence of prosecution witnesses Nos.
17 to 21 also establishes that when the deceased and his party arrived near the bund of the tank the party of the accused came towards them.
One of the accused Sanjeeva Rao (accused No. 1) flashed a torch and the others started attacking the deceased with choppers at the instigation of that accused.
Injuries were caused on the head, the neck and the shoulders or on the right and left forearms which must have been caused when the deceased tried to, save himself by raising his arm to protect his head.
The common intention of the 6 502 appellants is clear from the fact that not only were they armed with deadly weapons which they used to cause injuries to the deceased at the place where they first met him and his companions but they also chased him when he tried to run away to save himself and all of them continued assaulting him with these deadly weapons till he was dead.
The evidence further shows that all of them took part in the assault.
There were 24 injuries on the person of the deceased and of them twenty one were incised.
They are either on his head or the neck or the shoulders and on the forearms.
All these except perhaps the last are vital parts of the body and anybody who causes injuries with weapons of the kind that the appellants used must be fixed with the intention of causing such bodily injury or injuries as would fall within section 300 of the Indian Penal Code.
The question has then been raised that there was no charge under section 34 and therefore the accused cannot be convicted of liability as sharers in an offence by the 'application of section 34, i. e., in prosecution of the common intention of all.
Now intention is a question ,of fact which is to be gathered from the acts of the parties and whoever caused injury No. 5 or the persons who caused the other injuries on the vital parts of the body could have had no other intention but of causing the death considering the nature and number of inju ries and the weapons used.
The omission to mention section 34 of the Indian Penal Code in the charge cannot affect the case unless prejudice is shown to have resulted in consequence thereof.
The charge was that the appellants and others were members of an unlawful assembly, the common object of which was to murder the deceased.
Although there is a difference in common object and common intention, they both deal " with combination of persons who become punishable as sharers in an offence ", and a charge under section 149, Indian Penal Code is no impedi ment to a conviction by the application of section 34 if the evidence discloses the commission of the offence in furtherance of the common intention of all.
In the second charge it was clearly stated that the appellants and accused Nos.
5 & 6 committed the 503 murder by.
intentionally causing the death of the deceased.
No doubt it would have been better if in the charge section 34 had been specified.
But the mere omission to specify it cannot in the circumstances of this case have any effect as no prejudice has been alleged or shown.
As a matter of fact this question was never agitated in either of the Courts below.
This Court in Willie (William) Slaney vs The State of Madhya Pradesh (1) has laid down the law in regard to the effect of a defect in a charge.
In that case the charge was under section 302, read with section 34 and the conviction was under section 302, Indian Penal Code.
It was there pointed out that procedural laws are designed to subserve the ends of justice and not to frustrate them and if the trial is conducted substantially in the manner prescribed by the Code but some irregularity occurs in the course of such conduct the irregularity is curable under section 537, Criminal Procedure Code.
See: Pulukuri Kotayya vs King Emperor (2).
As was pointed by Viscount Sumner in Atta Mohammad vs King Emperor (3): " In the complete absence of any substantial injustice, in the complete absence of anything that outrages what is due to natural justice in criminal cases, their Lordships find it impossible to advise His Majesty to interfere.
The object of a charge is to warn the accused person of the case he is to answer.
It cannot be treated as if it was a part of a ceremonial.
Bose J. observed in William Slaney 's case, (1) with reference to sections 232 (1) and 535 of the Criminal Procedure Code where the words used are " by the absence of a charge " in section 232(1) and no charge was framed " in section 535: " We see no reason for straining at the meaning of these plain and emphatic provisions unless ritual and form are to be regarded as of the essence in criminal trials.
We are unable to find any magic or charm in the ritual of a charge.
It is the substance of these provisions that count and not their outward form.
To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent." (1) ; , 1165.
(2) (1946) L.R. 74 I.A. 65, 75.
(3) (1929) L.R. 57 I.A. 71, 76.
504 The imperfection in the charge is curable provided no prejudice has been shown to have resulted because of it.
The appellants had notice that they were being tried as " sharers in the offence " ' and their liability was collective and vicarious and not individual.
No doubt they, were charged, under section 149 of the Indian Penal Code with being members of an unlawful assembly the common object of which was murder of the deceased but they were also charged that they with accused Nos.
5 & 6 had committed murder by intentionally causing the death of the deceased.
The prosecution led evidence to show that at least two of the appellants were waiting for the arrival of the evening Bus by which the deceased and his companions were traveling and that the appellants and others met them at the bund and there was a concerted attack by them followed by a chase and assault with choppers by all the appellants resulting in death because of 24 injuries of a serious nature given by the appellants collectively.
Of these injury No. 5 individually and others cumulatively were sufficient in the ordinary course of nature to cause death.
Section 34 is only a rule of evidence and does not create a substantive offence.
It means, that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done individually.
As the Privy Council have pointed out in Barendra Kumar Ghosh vs King Emperor (1) " Sect.
34 deals with the doing of separate acts, similiar or diverse, by several persons, if all are done in further ance of a ' common intention, each person is liable for the result of them all, as if he had done them himself.
The appellants ' defence was a total denial of taking part in the offence.
When examined under section 342 of the Criminal Procedure Code they stated that the prosecution case was false.
They did not state anything indicative of prejudice having resulted as a consequence of a defect in the charge.
To every question put to them, their reply was that the prosecution evidence was false.
One such question and the answer to it was: Q. " The witnesses have deposed that at about (1) (1924) L.R., 52 I. A.40, 51.
505 8 30 on the night of 25th August, 1952, you along with the accused persons 1, 3, 4 and 5 came upon the tank bund holding a matchu in the hand in order to hit Anne Gowda.
What do you say regarding this matter ? A.This is absolutely false.
" In answer to another question as to whether he had assaulted the deceased with a chopper, appellant No. 1 stated that he never saw the deceased on that date and the evidence was false and the other two appellants just stated that the evidence for the prosecution was false.
The form of the questions indicates notice to the appellants that the, prosecution was relying on collective responsibility and their having acted with a common intention.
They did not plead prejudice due to the want of section 34 in the charge itself.
The judgment of the High Court does not indicate that any such objection was taken before it.
The grounds of appeal taken in the High Court are not before us, but their application under article 134 (1)(c) made to the High Court shows that objection was taken as to the failure to specify section 34 in the following words: " There is no charge framed in the case against accused 2, 3 and 4, 5 and 6 for ail offence under Section 302 read with Section 34 of the Indian Penal Code.
It was, therefore, not a case in which accused 2, 3, 4 alone could be convicted of the charge under Section 302 by resorting to the rule of common intention under Section 34 of the Indian Penal Code for two reasons, viz., (a) There is no charge under Section 34 of the Indian Penal Code; (b) If it is implied ', Accused 5 and 6 are out of the grove and there is no evidence of any prior conspiracy conducive to that requisite inference.
Further it will be seen from the evidence of the eye witnesses it is not possible to predicate which blow caused by which instrument, by which accused resulted in death.
Therefore it is a case which accused 2, 3 and 4 are charged on individual responsibility alone for having caused murder punishable under Section 302, Indian 506 Penal Code individually.
Neither the trial Court nor it is submitted the High Court has considered this aspect of the matter and has considered the individual responsibility of accused 2, 3 and 4 for their individual acts" and in their grounds of appeal filed in this Court the language is the same.
Nowhere has it been alleged that as a result of omission to specify section 34 in the charge there was any prejudice and nothing is disclosed whether by the trend of cross examination or by anything on the record to show that the appellants were misled by this omission in the charge.
No case of prejudice has been alleged or established and there are no facts on the consideration of which the conclusion could be reached that the conviction under section 302 is vitiated as a result of prejudice.
This Court in Rawalpenta Venkulu vs The State of Hyderabad (1), held that the omission to add section 34 of the Indian Penal Code in a charge had only an academic significance where the accused had notice as to what they were being charged with.
That was a case where in pursuance of a conspiracy to commit murder the accused after locking the room in which the deceased was sleeping set fire to it and thus caused his death.
The charge against the accused persons was only under section 302 without section 34.
On the evidence the intention to kill was held proved as each one of the appellants had actively contributed to setting fire to the room by putting lighted matches to it while the deceased had been trapped in it and " each one of them therefore severally and in pursuance of the common intention brought about the same result by his own act.
" In the trial Court the Sessions Judge had explained the charge as follows: " You are charged of the offence that you with the assistance of the other present accused with common intention. . . . . . " From this the Court came to the conclusion that the accused had clear notice that they were being charged with the offence of committing murder in pursuance of their common intention and, therefore, the omission (1) A.I.R. 1956 S.C. 171, 507 of section 34 in the charge had only academic significance and had in no way misled the accused.
Thus the accent was on whether the accused were misled or not or any prejudice resulted from the omission in the charge and on the facts and circumstances of that case this Court was of the opinion that they were not and there was no prejudice.
Chikkarange Gowda vs State of Mysore (1), was relied upon by the appellants ' counsel.
In that case the accused persons were charged as follows: " That you on or about the 18th day of April, 1951, at Talkad were member of an unlawful assembly and in prosecution of the common object or intention or such as you know to be likely to be committed in prosecution of that object or intention, namely, in killing Putte Gowda, caused the death of Putte Gowda and Nanje Gowda, and you are thereby under section 149 read with section 34 Penal Code, guilty of causing the said murders, an offence punishable under section 302, Penal Code and within the cognizance of the Court of Sessions.
" The Sessions Judge found that the common object of the unlawful assembly or the intention of the accused was not merely to assault Putte Gowda but also to kill him.
The High Court on appeal held that there was no evidence to prove or establish any plan for concerted action or any common object to kill that individual.
But it was of the opinion that the people of the locality were annoyed with Putte Gowda and the common object of the assembly as a whole was to give severe and open chastisement only.
The person who was stated to, have given the fatal injury to Putte Gowda was acquitted by the High Court on the ground of insufficiency of evidence and the other two accused were held guilty for severely assaulting the deceased and guilty of murder.
In this Court it was contended that on the findings given by the High Court in regard to the common object of the unlawful assembly, the conviction under section 302/34 or section 149 was unsustainable and that the manner in which the charges under section 149 and 34 were mixed up it could not be said that the (1) A.I.R. 1956 S.C. 731, 508 accused had a reasonable opportunity of meeting the charges against them.
This Court observed that " on the finding of the High Court none of the members of the unlawful assembly had the intention of killing Putte Gowda.
" It also held that the way in which the charge was framed gave the accused no effective notice of the case they had to meet.
In these circumstances the case of separate common intention of three persons was distinct from the common object of the other members of the unlawful assembly and, therefore, the question was not whether the specific charge under section 34 was or was not necessary but whether a reasonable opportunity of meeting the case of some of the accused having a separate common intention different from that of others of the unlawful assembly, was given and as the finding was that it had not been given the conviction of the two accused for offence under section 302/34 was unsustainable.
That case has not laid down a rule different from Willie (William) Slaney 's case (1).
It merely emphasises that in the case of imperfection of a charge if prejudice is shown a conviction of an accused would be insupportable.
In the present case the common intention of the appellants is indicated by their conduct, the ferocity of the attack, the weapon used, the situs of the injuries and their nature and there was preconcert as shown by the evidence of P. Ws. 10 and 11.
They have therefore been rightly convicted of murder as sharers ill the offence We would, therefore, dismiss these appeals.
Appeals dismissed.
(1) ; 140, 1 1165.
| IN-Abs | Six persons were charged under section I43 Indian Penal Code for being members of an unlawful assembly the common object of which was to murder one Anne Gowda.
Five of them were further charged under section 302 Indian Penal Code for committing murder by intentionally causing the death of Anne Gowda, and the sixth was charged under section 302/109 Indian Penal Code for abetment of murder.
The trial Court acquitted all the six accused under section 143, acquitted two of them but convicted the three appellants under section 302, and convicted the sixth accused under section 302/109.
On appeal the High Court maintained the conviction of the appellants under section 302 but acquitted the sixth accused under section 302/109.
It was contended by the appellant that as the prosecution had not established which of the appellants had given the fatal blow none of them could be convicted under section 302 simpliciter and that as no charge had been framed under section 34 they could not be convicted under section 302/34 Indian Penal Code : Held, that the omission to mention section 34 Indian Penal Code in the charge could not affect the case unless prejudice was shown to have resulted in consequence thereof.
The charge was that the appellants and two others committed the murder by intentionally causing the death of the deceased.
The appellants had notice that they were being tried as " sharers in the offence " and that their liability was collective and vicarious and not individual.
The appellants had neither alleged nor shown that the omission to specify section 34 in the charge had caused them any prejudice.
Common intention is a question of fact and is to be gathered from the acts of the parties.
The evidence showed that there was preconcert, that the appellants attacked the deceased with choppers injuring him on the head, the neck, the shoulders and the forearms and that the appellants not only caused injuries to the deceased at the place where they met him but they also chased him when he tried to run away to save himself and continued to assault him with the deadly weapons till he was dead.
The conduct of the appellants, the ferocity of the attack, the weapons used, the situs of the injuries and their nature together with the fact that there was preconcert established that the common intention of the appellants was to murder the deceased.
|
Civil Appeal (Election) No.4030 of 1987.
From the Judgment and Order dated 13.11.87 of the Kerala High Court in Election Petition No. 2 of 1987.
P.S. Poti and T.T. Kunhikannan for the Appellant.
961 Dr. Y.S. Chitale, A.S. Nambiar, Dileep Pillai, M.A. Firoz and Aseem Mahrotra for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
This appeal under section 116 A of the Repre sentation of the People Act, 1951 (hereinafter referred to as 'the Act ') is directed against the judgment of the Kerala High Court dismissing the election petition of the appel lant.
The appellant is a voter in the Mala constituency of the Kerala Legislative Assembly.
The election of the members of the Assembly was held on March 23, 1987 and the first re spondent, who was then the sitting Chief Minister of the State of Kerala, was declared elected from Mala constituen cy.
The appellant challenged the election of the first respondent to the Kerala Legislative Assembly on the ground of various corrupt practices alleged to have been committed by the first respondent.
In paragraphs 5(i) and 5(ii) of the election petition, the corrupt practice that was alleged by the appellant was to the effect that the second respondent, who was a candidate for the election, published a notice wherein it was declared that the second respondent was withdrawing from the contest and stated, inter alia, that it was to highlight the grievances of his community, namely, the Kudumbi Samudayam which is a backward community, that he had decided to contest the election, and that one of the demands of the community was that it should be included in the list of Scheduled Castes.
Further, the second respondent stated in the notice that the Kerala Government under the leadership of the first respondent had decided to give favourable consideration in regard to his community 's demand for inclusion in the list of Scheduled Castes.
Accordingly, the second respondent declared in the notice that for ob taining their rights, it had become necessary that the first respondent should win in the election and for that purpose he was withdrawing his candidature offering full support to the first respondent.
It was alleged that the second re spondent published the notice at the instigation and with the assistance and initiative and at the cost of the first respondent and his supporters.
Such acts constituted corrupt practice within the meaning of section 123 of the Act.
In paragraph 5(xvi), it is alleged that the first re spondent also committed corrupt practice in the course of his election work by asking Government servants including Shri P.M. Shabul Hameed, Teacher, 962 Government Upper Primary School, Kaduppassery, to lead processions in support of his candidature in the constituen cy.
It was submitted by the appellant that he was prepared to prove the allegation by examining the said persons.
A photograph of a procession was filed.
In paragraph 5(xi) of the election petition, the appel lant inter alia stated as follows: "5(xi) . . . . . . .
Besides at the instigation of the first re spondent a video cassette called "Malayude Purogathi" has been used in the constituency.
The persons who speak are one Shri Jose P. George, Government Pleader, Kerala High Court, 2.
Shri Thomas Thottappally, Veterinary Doc tor, Veterinary Polyclinic, Valiyaparambu.
This is also a corrupt practice.
The video cassette is produced herewith in a sealed cover.
" The first respondent opposed the election petition by filing a written statement denying the allegations of cor rupt practices.
It was submitted by him that as the copies of the said notice, photograph and video cassette were not supplied to the first respondent along with the copy of the election petition, the election petition was liable to be dismissed in limine under section 86(1) for non compliance with section 81(3) of the Act.
The High Court came to the findings that the allegations in the election petition would really show that the said documents formed integral part of the election petition and, therefore, it was really necessary to serve copies of the same on the first respondent and overruled the contention of the appellant that as he had filed the documents and pro duced the video cassette in Court, the first respondent could very well take copies of the same and defend his case.
The High Court took the view that non furnishing to the first respondent copies of the documents along with a copy of the election petition was non compliance with section 81(3) and, as such, the election petition was liable to be dismissed under section 86(1) of the Act.
In that view of the matter, the High Court dismissed the election petition.
Hence this appeal.
Section 81 of the Act provides as follows: "81.
Presentation of petitions.
(1) An elec tion petition calling in question any election may be presented on one or more of the grounds specified in sub section (1) of section 963 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.
(2) [Omitted by Act 47 of 1966.] (3) Every election petition shall be accompa nied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the peti tioner under his own signature to be a true copy of the petition.
" We are concerned with section 81(3) which enjoins that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the peti tioner under his own signature to be a true copy of the petition.
Section 81(3), however, does not provide for giving of copies of the documents either referred to in the election petition or filed in the proceedings.
We may now refer to section 86(1) of the Act which reads as follows: "86(1).
The High Court shall dismiss an elec tion petition which does not comply with the provisions of section 81 or section 82 or section 117." Section 86(1), therefore, is a mandate on the court to dismiss an election petition if there be a non compliance with the provision of section 81(3).
In other words, both section 81(3) and section 86(1) are mandatory in nature and if there be any non compliance with the mandatory provision of section 81(3), the court will be bound to dismiss the election petition.
Before considering whether a copy of the document re ferred to in the election petition or filed in the proceed ings should be furnished to the elected candidate, whose election is under challenge, along with a copy of the elec tion petition, we may refer to section 83 of the Act provid ing as to the contents of an election petition.
Section 83 provides as follows: 964 "83.
Contents of petition. (1) An election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allega tion of such corrupt practice and the particu lars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
" It is apparent from clauses (a) and (b) of section 83 that an election petition shall contain a concise statement of the material facts and also set forth full particulars of any corrupt practice.
These two requirements are also manda tory in nature.
So, whenever there is an allegation of corrupt practice, the election petition shall contain a concise statement as to the material fact on which the petitioner relies and also must set forth full particulars of the corrupt practice alleged by the petitioner.
As has been held in Satya Narain vs Dhuja Ram, ; , the right to challenge an election is not a common law right, but a special right as conferred by the Act.
The provision for setting aside the election on the grounds mentioned in section 100 of the Act including the ground of corrupt practice has been made for the purpose of maintain ing purity of elections.
An election is the democratic method for selecting the representatives of the people in Parliament or in the Legislative Assembly.
When a candidate gets himself elected by adopting or committing any corrupt practice, his election must be set aside on proof of such corrupt practice.
At the same time, the proce 965 dure prescribed by the Act for challenging an election must be strictly followed.
So, if there be any deviation from or non compliance with the provision of section 81(3), the court will have no other alternative than to dismiss the election petition.
It has been already noticed that the High Court dis missed the election petition as the appellant has not fur nished to the first respondent copies of the notice, photo graph and the video cassette referred to above along with a copy of the election petition.
So far as the copies of the notice and the photograph are concerned, we do not think that the High Court was justified in holding that these should have also been furnished to the first respondent along with the copy of the election petition.
Dr. Chitale, learned Counsel appearing on behalf of the first respondent, also has not urged that the copies of these two documents should have been served upon the first respondent.
What has, however, been vehemently urged on behalf of the first re spondent is that he should, have been served along with the election a copy of the video cassette.
This contention will be considered presently.
We have already referred to section 83 relating to the contents of an election petition.
The election petition shall contain a concise statement of material facts and also set forth full particulars of any corrupt practice.
The material facts or particulars relating to any corrupt prac tice may be contained in a document and the election peti tioner, without pleading the material facts or particulars of corrupt practice, may refer to the document.
When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference.
In other words, it forms an integral part of the election petition.
Section 81(3) pro vides for giving a true copy of the election petition.
When a document forms an integral part of the election petition and a copy of such document is not furnished to the respond ent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of section 81(3) and, as such, the court has to dismiss the election petition under section 86(1) for non compliance with section 81(3).
On the other hand, if the contents of the document in question are pleaded in the election petition, the document does not form an integral part of the election petition.
In such a case, a copy of the document need not be served on the respondent and that will not be non compliance with the provision of section 81(3).
The document 966 may be relied upon as an evidence in the proceedings.
In other words, when the document does not form an integral part of the election petition, but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition.
There may be another situation when a copy of the docu ment need not be served on the respondent along with the election petition.
When a document has been filed in the proceedings, but is not referred to in the petition either directly or indirectly, a copy of such document need not be served on the respondent.
What section 81(3) enjoins is that a true copy of the election petition has to be served on the respondents including the elected candidate.
When a document forms an integral part of an election petition containing material facts or particulars of corrupt practice, then a copy of the election petition without such a document is not complete and cannot be said to be a true copy of the elec tion petition.
Copy of such document must be served on the respondents.
Keeping in view the above principles, let us consider whether the video cassette, as mentioned in paragraph 5(xi) in the election petition, forms an integral part of the election petition.
It is not disputed that a copy of the video cassette was not served on the first respondent along with the copy of the election petition.
Indeed, the same was submitted by the appellant in a sealed cover with an appli cation praying for keeping the video cassettee in the sealed cover till the stage of examination of witnesses.
It is, therefore, apparent that not only the copy of the video cassette was not served on the first respondent, but also the appellant had no intention of serving a copy of the same on the first respondent.
It is urged by Mr. Poti, learned Counsel appearing on behalf of the appellant, that the video cassette is only an evidence of the fact stated in paragraph 5(xi) of the elec tion petition, relevant portion of which has been extracted above.
It has been alleged in paragraph 5(xi) that at the instigation of the first respondent, a video cassette called "Malayude Purogathi" has been used in the constituency.
The expression "Malayude Purogathi" means progress of Mala, which is the constituency in question.
Further, it has been alleged that the persons whose speeches have been recorded in the video cassette regarding progress of Mala are two Government officers named in paragraph 5(xi), and that the cassette has been used in the constituency at the 967 instigation of the first respondent.
This has been averred as a corrupt practice.
It is also mentioned in the same paragraph that the video cassette is produced with the election petition in a sealed cover.
It is not disputed that by corrupt practice as referred to in paragraph 5(xi) of the election petition, the appellant is referring to the corrupt practice within the meaning of section 123(7) of the Act.
Section 123 enumerates the different corrupt practices for the purposes of the Act.
One of the corrupt practices, as contained in section 123(7), is the obtaining or procuring or abetting or attempting to obtain or procure by a candi date or his agent, or by any other person, with the consent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidate 's election, from any person in the service of the Government and belonging to any of the classes as mentioned in clauses (a) to (g) of the section.
The signifi cant ingredient of corrupt practice, as mentioned in section 123(7), is that the assistance which is obtained or procured from a Government servant of the classes mentioned in clauses (a) to (g) must be for the furtherance of the pros pect of the election of the candidate who or on whose behalf such assistance has been obtained or procured.
It is not disputed that the two Government servants mentioned in paragraph 5(xi) of the election petition whose speeches have been recorded in the video cassette, are Government servants within the meaning of section 123(7).
The speeches of the two Government servants relating to "Malayude Purogathi", that is, the progress of Mala, sim pliciter will not constitute a corrupt practice within the meaning of section 123(7).
In order to be a corrupt practice within the meaning of section 123(7), the speeches of the said Government servants as recorded in the video cassette and alleged to have been used in the constituency at the instigation of the first respondent, must be with a view to obtaining or procuring or abetting or attempting to obtain or procure the assistance for the furtherance of the pros pects of the first respondent 's election.
It is urged by the learned Counsel for the appellant that as no such allegation has been made in paragraph 5(xi), the allegations in that paragraph do not constitute a corrupt practice within the meaning of section 123(7) and, accordingly, the video cas sette does not form an integral part of that paragraph.
We are unable to accept the contention.
It is true that there is no allegation in paragraph 5(xi) that the video cassette was used by the first respondent for the purpose of any assistance for the furtherance of the prospects of his election.
But, in our opinion, it is apparent that 968 such an allegation is implied in the paragraph.
After alleg ing that the video cassette was used in the constituency at the instigation of the first respondent, it is alleged that the same constituted a corrupt practice which points to the only fact that the video cassette containing the speeches of the Government servants was used for the purpose of some assistance for the furtherance of the prospects of the election of the first respondent.
It is implied that the video cassette is referred to in paragraph 5(xi) in regard to the alleged assistance for the furtherance of the pros pects of the election of the first respondent and, accord ingly, the contents of the cassette are incorporated in that paragraph by reference.
In other words, the cassette forms an integral part of paragraph 5(xi).
In this connection, we may refer to Item No. 1 of the List of Documents which reads as follows: "1.
Video Cassette by Kala Audio & Video, Kallettumkara, Tricur District titled "Mala yude Purogathi" prepared at the instance of the first respondent for election propaganda, as stated in paragraph 5(xi) of the election petition.
" It is clear from Item No. 1 of the List of Documents that it is the specific case of the appellant that the video cassette was prepared at the instance of the first respond ent for election propaganda, as stated in paragraph 5(xi) of the election petition.
Whether it was so stated in Item No. 1 of the List of Documents or not it is, as stated already, apparent on the face of the allegation in paragraph 5(xi) that it was used by the first respondent by way of assist ance in furtherance of the prospects of his election and so the video cassette formed an integral part of paragraph 5(xi).
Unless a copy of the video cassette was given to the first respondent, he would not know how the speeches of the said Government servants could assist the furtherance of the prospects of his election and would not be in a position to deal with the allegations made in paragraph 5(xi).
The copy of the election petition which was served on the first respondent without a copy of the video cassette was not, therefore, a true copy of the election petition within the meaning of section 81(3) of the Act.
Much reliance has been placed on behalf of the appellant on a decision of this Court in Sahodrabai Rai vs Ram Singh Aharwar, ; In that case, the appellant filed an election petition challenging the election of the first respondent on four grounds, one of which was corrupt prac tice inasmuch as the first respondent had appealed to reli gion through a pamphlet marked Annexure A.
In the 969 body of the election petition a translation in English of the Hindi pamphlet was incorporated.
The original pamphlet was attached to the election petition and was marked Annex ure A.
The election petitioner, thereafter, stated in the petition that the pamphlet formed part of the petition.
The first respondent raised an objection that a copy of the pamphlet had not been annexed to the copy of the election petition served on him and, therefore, the 'election peti tion was liable to be dismissed under section 86 of the Act.
The High Court accepted the objection and dismissed 'the election petition.
On an appeal to this Court by the appel lant, this Court set aside the judgment of the High Court holding that the pamphlet must be treated as a document and not as a part of the election petition in so far as the averments were concerned.
The decision in Sahodrabai 's case does not, in our opinion, lend any assistance to the contention of the appel lant that the video cassette is only evidence and does not form part of the election petition.
In that case, the elec tion petition reproduced the whole of the pamphlet and, accordingly, it was held that it was only an evidence and not a part of the election petition.
What has been stressed in that case is that each and every document does not form part of the election petition.
Moreover, the Court was considering the scope of section 83(2) of the Act before it was amended.
We are unable to accept the contention made on behalf of the appellant that a document, in no circum stances, can form an integral part of the election petition.
As has been noticed already, the phamplet in that case was fully reproduced in the election petition and, therefore, it was merely an evidence and did not form a part of the elec tion petition.
In Thakur Virendra Singh vs Vimal Kumar, ; the question was whether a leaflet, a copy of which was Annexure A to the election petition and referred to in paragraph 13 thereof, constituted a part of the election petition and, accordingly should have been served on the elected candidate.
This Court overruled the contention of the elected candidate that the petition was liable to be dismissed as the copy of the petition meant to be served on the appellant was not accompanied by a copy of Annexure A on the ground that the allegation of corrupt practice and particulars thereof, as given in paragraph 13 of the elec tion petition, were sufficiently clear and precise.
This decision is, therefore, of no help to the contention of the appellant that the video cassette is not a part of the election petition.
The most important case for our purpose is the decision of this 970 Court in M. Karunanidhi vs H.V. Hande, In that case, in paragraph 18(b) of the election petition it was alleged as follows: "18(b).
The first Respondent erected fancy banners throughout the constituency and the number of such banners is about 50.
A photo graph of one such banner is filed herewith.
The cost of each such banner will be not less than Rs. 1,000.
The expenditure involved in erecting these fifty banners is about Rs.50,000.
It is submitted that the first Respondent has incurred the above said expend iture which added to the amount disclosed in the Return of Election Expenses exceeds the amount fixed under Section 77(3) of the Act thus amounting to a corrupt practice under Section 123(6) of the Act.
" Admittedly, a copy of the photograph as referred to in paragraph 18(b) was not furnished to the appellant along with a copy of the election petition.
This Court took the view that the averment contained in paragraph 18(b) would be incomplete without a copy of the photograph being supplied with a copy of the election petition.
The reason being that it was not possible to conceive of the dimension of the large fancy banner unless one had a look at the photograph.
1n that view of the matter, it was held by this Court that the photograph formed an integral part of the petition and a copy of it should have been served along with the election petition.
Accordingly, this Court reversed the judgment of the High Court in so far as it held that the photograph of the fancy banner adverted to in paragraph 18(b) could not be treated to be an integral part of the election petition, but was merely a piece of evidence ' as to the nature and type of fancy banner erected by the appellant and, therefore, fail ure to supply a copy of the photograph to the appellant did not amount to a violation of the provision of sub section (3) of section 81 of the Act.
The decision in Karunanidhi 's case fully supports the view which we take, namely, the video cassette formed an integral part of the election petition because without a copy of the video cassette the first respondent was not in a position to know whether ' the video cassette recording the speeches of the two Government servants could be said to have been used by the first respondent for the purpose of any assistance in furtherance of the prospects of his elec tion.
Karunanidhi 's case was referred to and approved in a subsequent decision of this Court in Mithilesh Kumar Pandey vs Baidyanath Yadav, [1984] 2 SCR 278.
971 Mr. Poti has, however, urged that if the averments in paragraph 5(xi) of the election petition are full and com plete or, in other words, if they do not give particulars of the corrupt practice, in that case the said averments may be struck out under the provisions of Order VI Rule 16 of the Code of Civil Procedure, but the entire election petition cannot be dismissed.
It has already been noticed that under clauses (a) and (b) of section 83(1) of the Act, an election petition shall contain a concise statement of the material facts and shall set forth full particulars of any corrupt practice.
The material facts and the full particulars of corrupt practice will constitute cause of action for the election petition.
If the material facts are not supplied or full particulars of corrupt practice are not given in the election petition, as a consequence of which the election petition does not disclose any cause of action, it is liable to be dismissed under the provision of Order VII, Rule 11(a) of the Code of Civil Procedure.
See Azhar Hussain vs Rajiv Gandhi, ; Apart from the striking out the whole of the election petition when it does not disclose a cause of action, the court can strike out any statement which is irrelevant, scandalous or has nothing to do with the cause of action under the provision of Order VI, Rule 16 of the Code of Civil Procedure.
It is submitted by Mr. Poti that if the averments in paragraph 5(xi) of the election petition are irrelevant or do not disclose any cause of action, at the most the said paragraph can be struck out by the court under the provision of Order VI, Rule 16 of the Code of Civil Procedure.
We are afraid, we are unable to accept the con tention.
We are not concerned with whether paragraph 5(xi) can be struck out by the court under the provision of Order VI, Rule 16 of the Code of Civil Procedure as not disclosing any cause of action, but really we are concerned with the question as to whether the copy of the election petition which has been served on the first respondent without a copy of the video cassette is a true copy of the election peti tion or not within the meaning of section 81(3) of the Act.
We have come to the conclusion that the appellant has not served on the first respondent a true copy of the election petition inasmuch as, admittedly, a copy of the video cas sette which forms an integral part of the election petition, was not served along with the election petition.
There is, therefore, no substance in the contention which is rejected.
Mr. Poti has drawn our attention to the observations made by this Court in Shri Udhav Singh vs Madhay Rao Scin dia, [1977] 1 SCC 511 which reads as follows: 972 "Like the Code of Civil Procedure, this sec tion also envisages a distinction between "material facts" and "material particulars".
Clause (a) of sub section (1) corresponds to Order 6, Rule 2, while clause (b) is analogous to Order 6, Rules 4 and 6 of the Code.
The distinction between "material facts" and "material particulars" is important because different consequences may flow from a defi ciency of such facts or particulars in the pleading.
Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off .under
Order 6, Rule 16, Code of Civil Procedure.
If the petition is based solely on those allega tions which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action, In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.
" On the basis of the above observations, it is submitted that if paragraph 5(xi) of the election petition suffers from a deficiency of material particulars, the court .has a discretion to allow the appellant to supply the required particulars even after the expiry of limitation.
The above observations have been made in a different context and are quite inapplicable to the facts and circumstances of the instant case which, as noticed already, relate to the ques tion as to whether the video cassette is an integral part .of the election petition and whether non furnishing of a copy of the video cassette to the first respondent along with a copy of election petition is non compliance with the mandatory provision of section 81(3) and, as such, liable to be dismissed under section 86(1) of the Act.
The question of exercise of discretion by the court in permitting the appel lant to supply the particulars does not arise at all.
Lastly, the decision of this Court in A. Madan Mohan vs Kalavakunta Chandrasekhara, has been relied upon by the learned Counsel for the appellant.
We fail to understand how this case is of any assistance to the appel lant, for in this case also this Court once more approved of the decision in Karunanidhi 's case.
No other point has been urged by either party in this appeal.
In view of the discussion made above, we affirm the judgment of the High Court dismissing the election petition of the appellant on the 973 ground that as the copy of the video cassette was not served on the first respondent along with a copy of the election petition, it was noncompliance with the provision of section 81(3) of the Act.
The appeal is, accordingly, dismissed.
There will, however, be no order as to costs.
Y. Lal Appeal dismissed.
| IN-Abs | The appellant was a voter in the Mala constituency of the Kerala Legislative Assembly, election whereof was held on March 23, 1987 and the first respondent, sitting Chief Minister of the State was declared elected from the said constituency.
The appellant challenged the validity of 1st Respond ent 's election on the ground of various corrupt practices committed by him.
It was alleged in the Election Petition that at the instigation of the first respondent, Respondent No. 2 published a notice wherein it was stated that he was withdrawing his candidature.
It was further stated in the notice that his purpose of contesting was to highlight the grievances of the Kudumbi Samudayam community with a view to get that community the status of Scheduled Caste and since the Kerala Government under the leadership of the first respondent (returned candidate) had decided to give a fa vourable consideration in regard to the community 's den.and for inclusion in the list of Scheduled Castes, it had become necessary for the first respondent to win the election.
He thereby offered his support to Respondent No. 1.
According to the appellant this act constituted a corrupt practice within the meaning of Section 123 of the Representation of the People Act, 1951.
It was further alleged by the Election Petitioner that Respondent No. 1, committed corrupt practice by asking Government servants to lead processions in support of his candidature.
A photograph of a procession was filed.
Election Petitioner further alleged that at the instiga tion of the first respondent a video cassette called "Mala yude Purogathi" had been used in the constituency wherein persons like Shri Jose P. George, Government Pleader, Kerala High Court, Shri Tomas Thottappally, 959 Veterinary Doctor spoke in support of the first respondent which is a corrupt practice.
The video cassette was filed in a sealed cover.
The first respondent contested the Election Petition and pleaded that since the copies of the photograph, notice and the video cassette have not been furnished to him alongwith the Election Petition, the same was liable to be dismissed in limine under section 86(1) for noncompliance with the provisions of section 83(1).
The High Court rejected the contention of the appellant that Respondent No. I could obtain copies of the documents from the High Court; and defend his case, and took the view that non furnishing to the respondent copies of the docu ments alongwith a copy of the Election Petition was non compliance with section 81(3) and as such, the election petition was liable to be dismissed, which the High Court did.
Hence this appeal.
Almost identical arguments were advanced before this Court.
Counsel for the appellant strenuously contended that the video cassette etc.
do not from an integral part of the petition, on the other hand, they had been filed in the proceedings as evidence of facts and copies of such docu ments need not be served on the respondent alongwith a copy of the Election Petition.
On behalf of the first respondent it was mainly argued that failure to supply the documents violates the provisions of section 81(3) as in the absence of those the Election Petition served cannot be said to be true copy of the election petition as contemplated by sec tion 81(3) of the Act.
Dismissing the appeal, this Court, HELD: An election is the democratic method for selecting the representatives of the people in Parliament or in the Legislative Assembly.
When a candidate gets himself elected by adopting or committing any corrupt practice, his election must be set aside on proof of such corrupt practice.
At the same time, the procedure prescribed by the Act for challeng ing an election must be strictly followed.
[964H 965A] Satya Narain vs Dhuja Ram, ; Whenever there is an allegation of corrupt practice, the election petition shall contain a concise statement as to the material fact on which the petitioner relies and also must set forth full particulars of the corrupt practice alleged by the petitioner.
[964F] 960 When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent alongwith a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of section 81(3) and, as such, the Court has to dismiss the election petition under section 86(1) for non compliance with section 81(3).
[965F G] Section 81(3) which enjoins that every election peti tion shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
Section 81(3) however, does not provide for giving of copies of the docu ments either referred to in the election petition or filed in the proceedings.
[963D] Section 86(1) is a mandate on the Court to dismiss an election petition if there be a non compliance with the provisions of section 81(3).
I963F] The appellant in the instant case, has not served on the first respondent a true copy of the election petition inasmuch as admittedly, a copy of the video cassette which forms an integral part of the election petition, was not served alongwith the election petition.
It was noncompliance with the provisions of section 81(3) of the Act.
(M. Karuna nidhi vs H.V. Hande, [972H 973A] The question of exercise of jurisdiction by the Court in permitting the appellant to supply the particulars does not arise at all.
[972F] Sahodrabai Rai vs Ram Singh Aharwar, ; ; Thakur Virendra Singh vs Vimal Kumar, ; ; Mithilesh Kumar Pandey vs Baidyanath Yadav, [1984] 2 SCR 278; Azhar Hussain vs Rajiv Gandhi, ; ; Shri Udhav Singh vs Madhav Rao Scindia, [1977] 1 SCC 511 and A. Madan Mohan vs Kalavakunta Chandrasekhara,
|
Criminal Appeal No. 533 of 1989.
From the Judgment and Order dated 31.8.88 of the Bombay High Court in Criminal Appeal No. 24 of 1988.
Govind Mukhoty and V.B. Joshi for the Appellant.
Anil Dev Singh, C.K. Sucharita and Ms. A. Subhashini for the Respondent.
The following order of the Court was delivered Special leave granted.
The appellant who is a French national has preferred this appeal 1029 under Article 136 of the Constitution of India canvassing the correctness of his conviction under Sections 21, 20(b)(ii) and 18 of the (for brevity hereinafter referred to as the 'Act ') and the sentence of 10 years rigorous imprison ment in addition to pay a fine of Rs. 1,00,000 in default to undergo rigorous imprisonment for one year inflicted by the Court of Sessions Judge, South Goa, Margao and confirmed by the High Court of Bombay, Panaji Bench (Goa) with a modifi cation of the default sentence from one year to six months on the indictment that the appellant on 7.12.87 at about 0.40 hours at Colva was found in possession of prohibited drugs/namely 51 gms.
of brown sugar, 45 gins.
of ganja oil and 55 gms.
of opium all worth approximately Rs. 13,465 without valid documents.
Adumberated in brief, the relevant facts of the prosecu tion case giving rise to this appeal are as follows.
On 6th December, 1987 at about 11.00 p.m. the Assistant Sub Inspector of Police, Shri Laxman Mahalsekar (PW 7) while along with his police party was on his patrol duty at the 3rd ward of Colva, saw the appellant speeding up his motor cycle, bearing Registration No. GDK 851 ignoring his signal to stop.
The appellant in such attempt, presumably to escape from being nabbed by the police lost control over the vehi cle and fell down.
No sooner he stood up and removed a paper wrapping from his pant pocket and threw it away.
PW 7 on entertaining suspicion over the conduct of the appellant verified that wrapping to contain small quantity of brown sugar and then he took the appellant along with his motor cycle to the nearby Police Out Post.
A handbag, bluish in colour with red strips had been attached to the motorcycle.
When the said bag was opened with a key handed over by the appellant and examined in the presence of two pancha wit nesses, namely Francis Xavier D 'Silva (PW 1) and one Connie D 'Silva (not examined), it was found to contain some person al belongings such as wearing apparels, a pair of shoes and a canvas bag.
Inside the bag, there was one shaving cream tube, one camera, a torch and four plastic rolls.
There was also one plastic bag containing contraceptives.
The torch was found to contain two bundles of plastic material each one containing a small piece of blackish substance.
Inside the cream tube, four bandies wrapped in a plastic material were found.
Each of the bundle contained small pieces of blackish substance.
There was also one more bundle of plas tic material concealed in the shoes which when opened was found to contain small piece of blackish substance similar to the one found in the torch as well in the shaving cream tube.
The 1030 camera was found in a box in which there were five packets of plastic material with some powder of yellowish colour i.e. brown sugar.
According to PW 7, there were 50 gms.
of brown sugar hidden in the camera case, 45 gms.
of Ganja oil in the steel container and 55 gms.
of opium in the shaving cream tube, torch light and shoes.
All the materials were weighed and seized under a panchnama (exhibit P. 1) attested by PW 1 and Connie D 'Silva.
The appellant was arrested and kept under medical treatment and observation.
Samples of these articles were sent to Chemical Analyst (PW 6) who has de posed that she received three envelopes Ex.1 to 3.
According to her, the envelope marked Ex.1 contained 1.57 gms.
of substance which on analysis was found to contain 16.8% w/w of Morphine (which is an alkaloid extracted from opium i.e. conversion of opium).
The quantity of the substance namely a dark brown soft mass having characteristic colour of opium found in the envelope exhibit 2, weighing 2.45 gms.
was not sufficient to carry out further analysis.
The substance in envelope exhibit 3 weighing 2.97 gms.
on analysis was found to contain a dark brown sticky substance having odour similar to that of extract of cannabis.
PW 6 gave her report (exhibit
P 3) dated 8.2.88.
PW 7, after receiving exhibit P 3 and complet ing the investigation charge sheeted the accused under the provisions of the Act on the ground that the appellant was in possession of prohibited drugs without a valid licence or permit or authorisation in violation of Section 8 punishable under the penal provisions of the Act.
The defence of the appellant is one of total denial.
As pointed out in the earlier part of this judgment both the Trial Court and the Appellate Court have concurrently found the accused guilty.
Mr. Govind Mukhoty, learned senior advocate appearing on behalf of the appellant directed a manifold scathing attack on the prosecution case raising the following conten tions: 1.
The absence of any visible injury on the person of the appellant while apprehended belies the prosecution version that the appel lant had fallen down from the vehicle on accelerating the speed; 2.
The fact that the Investigating Offi cer did not deliberately join with him respec tive inhabitants of the locality i.e. within the vicinity of the Police Out Post to witness the seizure but had taken pain to secure PW 1 and Connie D 'Silva who were residing far away from the place of seizure and who seem to 1031 have been readily willing and obliging to be pancha witnesses devalues the evidence regard ing the seizure of the contrabands and more so it is in violation of the salutary provisions of law prescribing the procedure to be fol lowed before making the search and seizure; 3.
PW 7 sent only three samples from the alleged seized substances that too in small quantity instead of sending sufficient repre sentative quantity from each of the packets seized for assay.
Therefore, in the absence of scientific test of all the substances found in each of the packets, no safe conclusion can be arrived that the entire substances seized under various packets were all prohibited drugs; 4.
The admission of PW 6 in her evidence that she does not know the difference between the narcotic drugs and psychotropic substances militates against the evidentiary value of her opinion under Exh.
P 3. 5.
The non inclusion of PW 5, the owner of the motor cycle as an accused and the non examination of Cavin at whose instance PW 5 lent the vehicle are fatal to the prosecution case; 6.
Even assuming but not conceding that the prosecution version is acceptable in the absence of any evidence that the appellant was carrying on with the nefarious trade of pro hibited drugs either as a 'peddler ' or 'push er ', the appellant would be liable to be punished within the mischief of Section 27(a) of the Act, since the attending circumstances present in this case indicate that the appel lant was in possession of the drugs in small quantity only for his personal consumption.
We shall now examine the contentions seriatim with reference to the evidence available on record.
There is no denying the fact that the appellant had been taken into police custody on the early hours of 7.12.87 by PW 7 along with the motor cycle involved in this case.
The submission of Mr. Mukhoty is that in the absence of any injury on the person of the appellant, the case of the prosecution that the appellant fell down from his vehicle is hardly acceptable.
No doubt if a person is thrown off or falls down from a speeding vehicle he may sustain injuries either serious or simple or escape sometimes unhurt but it depends on the speed of the 1032 vehicle, the manner of fall, the nature of the soil and the surface of the earth etc.
In the present case, evidence of PWs 4 and 7 is that the appellant on seeing the police party accelerated the speed ignoring the signal given by PW 7 to stop and it was only during the course of this attempt, the appellant fell down from the motor cycle at a place where the street lights i.e. the fluorescent tube lights and bulbs were on and thereafter immediately stood up.
The evidence on these two witnesses and the other connected facts lead to the inference that the appellant had fallen down immediately after he attempted to speed up the vehicle and was caught hold of by the police.
It is not the case of the prosecution that the appellant sped away to some distance and then had fallen down from the speeding vehicle.
PW 3, the Medical Officer attached to Hospicio Hospital speaks to the fact that when she examined the appellant on 8.12.87 at about 8.00 p.m., the appellant complained of bodyache, nosia etc.
but PW 3 does not whisper of having seen any visible injury on the person of the appellant.
After carefully scanning the evidence of PWs 4 and 7 coupled with the recovery of the articles Nos 1 to 14, we unhesitatingly hold that the appel lant was caught by the police under the circumstances as put forth by the prosecution and the appellant however escaped unhurt.
Hence in the light of the above evidence, we are constrained to hold that this submission made by the learned defence counsel does not merit consideration.
After the appellant was secured by the police, PW 7 directed PW 4 to bring two pancha witnesses.
Accordingly, PW 4 brought two witnesses from a place which is according to PW 7 is within a distance of 1 KM and according to PW 5 at five minutes walking distance.
Much argument was advanced by the learned defence counsel that these two witnesses were not the respectable inhabitants of that locality; that they were readily willing and obliging witnesses to the police and that there is deliberate violation of the statutory safeguard.
This argument cannot be endured for more than one reason to be presently stated.
The appellant was secured in the midnight near the police out post.
It clearly transpires from the records that these two witnesses are not outsiders but residents of the same area, namely Colva.
Except making some bare suggestions that both the witnesses were regular and professional witnesses, nothing tangible has been brought out in the cross examination to discredit the testi mony of PW 1.
This Court, while considering a similar con tention in Sunder Singh vs State of U.P., [1956] Crl.
Law Journal 801 and Tej Bahadur vs State of U.P., has observed that if pancha witnesses are not respect ables of the same locality but from another locality, it may amount only to an 1033 irregularity, not affecting the legality of the proceedings and that it is a matter for Courts of fact to consider and the Supreme Court would not ordinarily go behind the finding of facts concurrently arrived at by the Courts below.
See also State of Punjab vs Wasson Singh and Five Oth ers; , When such is the view, expressed by this Court on a number of occasions, we are unable to appreciate the submis sion of the learned counsel that the prosecution case is in violent disregard of the procedure relating to search and seizure.
The question that PW 1 and other pancha witnesses are not the inhabitants of the locality does not arise in the present case because it is indisputably shown that they are the residents of the same Colva area where the Police Out Post is situated.
The fact that these two witnesses are not residing in the vicinity of the seizure, in our view, does not disturb the acceptance of the evidence of PW 1 relating to the seizure of the contrabands and other arti cles.
With regard to the drawing up of the panchnama, the defence has come forward with two diametrically contradicto ry suggestions in that, the suggestion made to PW 1 is that he only subscribed his signatures on some papers whilst a new story, suggested to PW 7 is that the panchanama was fabricated around the 5th of January 1988 in order to save one Ramesh, brother of PW 5 from being prosecuted in connec tion with this seizure.
To establish the seizure of all the articles including the contrabands, the prosecution rests its case not only on the testimony of PW 1 but also on the evidence of PWs 5 and 7 whose evidence is amply corroborated by the towering circumstances attending the case.
From the records, it is found that PW 7 divided the contrabands into three categories and sent the samples from each of the categories for analysis.
No doubt, it would have been appreciable, had PW 7 sent sufficient representative quantity from each of the packets but however this omission in the present case does not affect the intrinsic veracity of the prosecution case.
PW 6 has fairly stated that she was able to thoroughly assay only the substances found in two envelopes marked as exhibit P 1 and P 3 and the substances in envelop exhibit P 2 was not sufficient to carry out further analysis though it was a dark brown soft mass having charac teristic of odour of opium.
The testimony of PW 6 and her opinion recorded in the unimpeachable document (exhibit P 3) lend assurance to the case of the prosecution that the contrabands seized from the possession of the appellant were prohibited drugs and substances.
1034 The criticism levelled by the learned defence counsel is that the evidence of PW 6 is not worthy of acceptance since she has admitted that she does not know the difference between the narcotic drugs and psychotropic substances.
This attack, in our view, does not assume any significance be cause as rightly pointed out by Mr. Anil Dev Singh, the learned senior advocate for the respondent, the Medical Officer is not expected to know the differences in the legal parlance as defined in Section 2(xiv) and (xxii) and speci fied under Schedules 1 to III in accordance with the con cerned Narcotic Drugs and Psychotropic Substances Rules, 1985 made under the Act and so this ground by itself, in our view, is no ground for ruling out the evidence of PW 6.
Yet another attack by the defence that the omission on the part of the prosecution to include PW 5 as an accused and to examine Cavin as a witness has to be mentioned simply to be rejected as devoid of any merit, as there is absolute ly no material to hold that PW 5 was in any way connected with the seizure of the contrabands or he has committed any indictable offence though the vehicle belonged to him.
The non examination of Cavin at whose instance PW 5 lent his motorcycle to the appellant does not in any way affect the prosecution case.
For the discussions made above, we see no force in the contentions 1 to 5.
Lastly, we have to consider the legal submission made by Mr. Mukhoty that the appellant was in possession of these drugs or substances in a small quantity for his personal consumption and as such he would be punishable only under Section 27(a) of the Act providing imprisonment for a term which may extend to one year or with fine or with both.
He further pleaded that the appellant is neither an 'uncrowned king of the mafia world ' nor a 'peddler ' nor a 'pusher '; that he being a foreigner by prolonged and continuous use of drugs has become a drug dependent and that he had all symp toms of an addict and exhibited sufferance of withdrawal symptoms on discontinuing the drug which, it seems, he was taking on his own as borne out from the testimony of the Medical Officers (PWs 2 and 3) under whose observation the appellant has been kept for some days.
Incidentally, he has added that though ignorance of law is not an excuse and it cannot be permitted to be pleaded, yet this Court may take note of the fact that the appellant who is a foreigner should have been lacking awareness of the stringent provi sions of the Act.
Firstly, let us examine whether the offence would fail within the 1035 mischief of Section 27(a) of the Act.
This section provides punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance.
The expression 'small ' quantity occuring in that section is explained under Explanation I annexed to that Section which reads thus: "For the purposes of this section 'small quantity ' means such quantity as may be speci fied by the Central Government by notification in the Official Gazette.
" In compliance with this explanation, the Ministry of Finance (Department of Revenue) has issued notification No. S.O. 827(E) dated November 14, 1985 published in the Gazette of India, Extra., Part II Section 3(ii) dated 14th November 1985 which notification reads thus: "In exercise of the powers conferred by Expla nation (1) of Section 27 of the (61 of 1985) and in partial modification of the notification of the Government of India in the Ministry of Finance, Department of Revenue No.S.O. 825(E), dated the 14th November 1985 the Central Government hereby specifies the quantity mentioned in Column 3 of the Table below, in relation to the narcotic drug men tioned in the corresponding entry in column (2) of the said Table, as 'small quantity ' for the purposes of that section.
TABLE Serial No. Name of the Narcotic Drug Quantity 1 2 3 1.
Heroin or drug commonly 250 milligrams known as Brown Sugar or smack 1036 2.
Hashish or Charas 5 grams 3.
Opium 5 grams 4.
Cocaine 125 milligrams 5.
Ganja 500 grams Coming to the case on hand, the appellant was found to be in possession of the narcotic drugs or substances far in excess of the quantity mentioned in column 3 of the table under the notification.
According to the prosecution, he was in possession of 51 grams of brown sugar, 45 grams of Ganja oil and 55 grams of opium.
In view of the above position, it cannot be contended that the prohibited drugs and substances seized from the appellant 's possession were in small quantity so as to bring him only within the mischief of Section 27(a) of the Act.
It may not be out of place to mention that even if a person is shown to have been in possession of a small quan tity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, lies on such person as per Explanation 2 of Section 27 of the Act.
Thirdly, the very fact that the appellant had kept these drugs and substances in many ingeniously devised places of concealment in the camera, shaving tube, torch and shoes would indicate that the appellant was having Fuji knowledge that the drugs he carried were prohibited drugs and that he was having them in violation of law.
We, for the above reasons, see no merit in this contention also.
The Trial Court while inflicting the punishment has expressed its view about the drug menace spreading in Gao as follows: "The spreading of the drugs in Gao is becoming day by day a terrible menace which is com pletely destroying the very fiber of our society being also instrumental in subverting the tender soul of our young generation which is being badly contaminated by such danger in a very alarming 1037 provisions calling for severe punishment in case of illegal possession and transportation of drugs meant for personal consumption and eventual trade.
" With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and pyschotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming pro portions in the recent years.
Therefore, in order to effec tively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
As we have now rejected the plea of the defence hold ing that the penal provisions of Section 27(a) has no role to play as the prohibited drugs and substances possessed by the appellant were far in excess of the quantity mentioned in Column 3 of the table under the notification, the sen tence of 10 years rigorous imprisonment and the fine of Rs. 1,00,000 with the default clause as modified by the High Court does not call for interference.
In the result, the appeal is dismissed.
T.N.A. Appeal dismissed.
| IN-Abs | The appellant is a foreign national.
At Colva, on seeing a police party on patrol he accelerated the speed of his motor cycle ignoring the signal given by Assistant Sub Inspector of Police (P.W. 7) and in that process lost con trol over the vehicle and fell down.
Thereafter he immedi ately stood up and removed a paper wrapping from his pant pocket and threw it away which on verification was found to contain a small quantity of brown sugar.
The appellant was taken to the nearby police post along with the motor cycle.
A hand bag attached to the motor cycle was opened and exam ined in the presence of two pancha witnesses and it was found that there was brown sugar hidden in the Camera case, Ganja oil in the steel container, and opium in the shaving cream tube, torch light and shoe.
All the substances were weighed and seized under a panchnama and sample of these contrabands divided into three categories were sent to Chemical Analyst (PW. 6) who found that one sample contained 16.8% w/w of Morphine (an alkaloid extracted from opium), and the other sample contained a dark brown 1026 sticky substance having odour similar to that of extract of cannabis.
The quantity of the substance namely a dark brown soft mass having characteristic colour of opium found in the third sample was not sufficient to carry out further analy sis.
The appellant was consequently prosecuted for possession of prohibited drugs under the Narcotic Drugs and Psychotrop ic Substances Act, 1985.
The Sessions Judge convicted him under Sections 21, 20(b)(ii) and 18 of the Act and imposed a sentence of 10 years rigorous imprisonment and a fine of Rs. 1,00,000 and in default to undergo rigorous imprisonment for one year.
The High Court dismissed the appeal of the appel lant and confirmed the sentence passed by the Trial Court but modified the default sentence from one year to six months.
In this appeal challenging the correctness of the con viction it was contended on behalf of the appellant that: (i) in the absence of any injury on the person of the appel lant, the case of the prosecution that the appellant fell down from his vehicle is hardly acceptable (ii) the pancha witnesses were not the respectable inhabitants of the local ity therefore the seizure of the contrabands was in viola tion of the provisions relating to search and seizure; (iii) the omission to send sufficient representative quantity of the contrabands for analysis affected the veracity of the prosecution case; (iv) the omission to include the owner of the motor cycle (PW 5) as an accused and the non examination of the person at whose instance the vehicle was lent to the appellant affected the prosecution case; and (v) since the appellant was in possession of these drugs or substances in a small quantity for his personal consumption he was liable to be punished only under section 27(a) of the Act.
Dismissing the appeal, HELD: 1.
If a person is thrown off or fails from a speeding vehicle he may sustain injuries either serious or simple or escape sometimes unhurt but it depends on the speed of the vehicle, the manner of fall, the nature of the soft and the surface of the earth etc.
In the instant case, the evidence and other connected facts lead to the inference that the appellant had fallen down immediately after he attempted to speed up the vehicle and was caught hold of by the police.
Therefore it is right that the appellant was caught by the police under the circumstances as put forth by the prosecution and the appellant however escaped unhurt.
[1031H; 1032A D] 2.
If pancha witnesses are not respectables of the same locality 1027 but from another locality, it may amount only to an irregu larity, not affecting the legality of the proceedings and that it is a matter for Courts of fact to consider and the Supreme Court would not ordinarily go behind the finding of facts concurrently arrived at by the Courts below.
[1032G H; 1033A B] Sunder Singh vs State of U.P., ; Tej Bahadur vs State of U.P., and State of Punjab vs Wasson Singh and Ors.
, ; ; ap plied.
2.1 In the instant case, the appellant was secured in the midnight near the Police Out Post.
It is indisputably shown that the pancha witnesses are not outsiders but are residents of the same area where the Police Out Post is situated.
The fact that these two witnesses are not residing in the vicinity of the seizure, does not disturb the accept ance of the evidence relating to the seizure of the contra bands and other articles.
Except making some bare sugges tions that both the witnesses were regular and professional witnesses, nothing tangible has been brought out in the cross examination to discredit the testimony.
[1033C E] 3.
In the instant case, the omission to send sufficient quantity of samples of contrabands for analysis does not affect the intrinsic veracity of the prosecution case.
The testimony of the Chemical Analyst and her opinion recorded in the unimpeachable document lend assurance to the case of the prosecution that the contrabands seized from the posses sion of the appellant were prohibited drugs and substances.
[1033F H] 4.
The Medical Officer is not expected to know the differences in the legal parlance as defined in section 2(xiv) and (xxii) and specified under Schedules I to III of the Narcotic Drugs and Psychotropic Substances Rules 1985 made under the Act.
Therefore, the admission of the Chemical Analyst that she does not know the difference between the narcotic drugs and psychotropic substances by itself is no ground for ruling out her evidence.
[1034A B] 5.
There is absolutely no material to hold that the owner of the motor cycle was in any way connected with the seizure of the contrabands or he has committed any indict able offence though the vehicle belonged to him.
The non examination of the person at whose instance the owner lent his motor cycle to the appellant does not in any way affect the prosecution case.
[1034C D] 1028 6.
Section 27(a) of the Act provides punishment for illegal possession in small quantity for personal consump tion of any narcotic drug or psychotropic substance.
The expression 'small quantity ' occuring in that section is explained under Explanation I there of as such quantity as may be specified by the Central Government by Notification in the Official Gazette.
[1035A B] In the instant case, the penal provisions of section 27(a) has no role to play as the prohibited drugs and sub stances possessed by the appellant were far in excess of the quantity mentioned in Column 3 of the table under the rele vant Notification.
[1036D] Even if a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic sub stance, the burden of proving that it was intended for the personal consumption of such person, and not for sale or distribution, lies on such person as per Explanation 2 of Section 27 of the Act.
[1036E] The very fact that the appellant in the instant case had kept these drugs and substances in many ingeniously devised places of concealment in the camera, shaving tube, torch and shoes would indicate that the appellant was having full knowledge that the drugs he carried were prohibited drugs and that he was having them in violation of law.
Therefore, the sentence of 10 years rigorous imprisonment and the fine of Rs.1,O0,000 with the default clause as modified by the High Court does not call for interference.
[1036F; 1037D]
|
tion (Criminal) No. 270 of 1988.
(Under Article 32 of the Constitution of India).
Parmanand Katara in person.
A.D. Singh, U.R. Lalit (N.P.).
R.B. Misra.
Ms. A. Subha shini, B.R. Agarwala, Ms. Sushma Manchanda, Ms. Suman Rasto gi and Ms. 1000 Indu Malhotra (N.P.) for the Respondents.
The following Judgments of the Court were delivered RANGANATH MISRA, J.
The petitioner who claims himself to be a 'small human right activist and fighting for the good causes for the general public interest ' filed this applica tion under Article 32 of the Constitution asking for a direction to the Union of India that every injured citizen brought for treatment should instantaneously be given medi cal aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death and in the event of breach of such direc tion, apart from any action that may be taken tot negli gence, appropriate compensation should be admissible.
He appended to the writ petition a report entitled 'Law helps the injured to die ' published in the Hindustan Times.
In the said publication it was alleged that a scooterist was knocked down by a speeding car.
Seeing the profusely bleed ing scooterist, a person who was on the road picked up the injured and took him to the nearest hospital.
The doctors refused to attend on the injured and told the man that he should take the patient to a named different hospital locat ed some 20 kilometers away authorised to handle medico legal cases.
The samaritan carried the victim, lost no time to approach the other hospital but before he could reach, the victim succumbed to his injuries.
The Secretary, Ministry of Health & Family Welfare of the Union of India, the Medical Council of India and the Indian Medical Association were later impleaded as respond ents and return to the rule has been made by each of them.
On behalf of the Union of India, the Under Secretary in the Ministry of Health & Family Welfare filed an affidavit appending the proceedings of the meeting held on 29.5.
1986 in which the Director General of Health Services acted as Chairman.
Along with the affidavit, decisions of papers relating to the steps taken from time to time in matters relating to matters relevant to the application but confined to the Union Territory of Delhi were filed.
A report in May, 1983, submitted by the Sub Committee set up by the Home Department of the Delhi Administration on Medico Legal Centers and Medico Legal Services has also been produced.
The Secretary of the Medical Council of India in his affida vit referred to clauses 10 and 13 of the Code of Medical Ethics drawn up with the approval of the Central Government under section 33 of the Act by the Council, wherein it had been said: "10 .
Obligations to the sick: 1001 Though a physician is not bound to treat each and every one asking his services except in emergencies for the sake of humanity and the noble traditions of the profession, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he incurs in the discharge of his ministrations, he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention.
A physician should endea vour to add to the comfort of the sick by making his visits at the hour indicated to the patients.
The patient must not be neglected: A physician is fee to choose whom he will serve.
He should, however, respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service.
Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving notice to the patient, his relatives or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant.
No provi sionally or fully registered medical practi tioner shall wilfully commit an act of negli gence that may deprive his patient or patients from necessary medical care.
" The affidavit has further stated: "The Medical Council of India therefore ex pects that all medical practitioners must attend to sick and injured immediately and it is the duty of the medical practitioners to make immediate and timely medical care avail able to every injured person whether he is injured in accident or otherwise.
It is also submitted that the formalities under the Criminal Procedure Code or any other local laws should not stand in the way of the medi cal practitioners attending an injured person.
It should be the duty of a doctor in each and every casualty department of the hospital to attend such person first and thereafter take care of the formalities under the Criminal Procedure Code.
The life of a person is far more important than the legal formalities.
In view of this, the deponent feels that it is in 1002 the interest of general human life and welfare that the Government should immediately make such provisions in law and amendments in the existing laws, if required, so that immediate medical relief and care to injured persons and/or serious patients are available without any delay and without waiting for legal for malities to be completed in the presence of the police officers.
The doctor attending such patients should be indemnified under law from any action by the Government/police authori ties/any person for not waiting for legal formalities before giving relief as a doctor would be doing his professional duty; for which he has taken oath as medical practition er.
It is further submitted that it is for the Government of India to take necessary and immediate steps to amend various provi sions of law which come in the way of Govern ment Doctors as well as other doctors in private hospitals or public hospitals to attend the injured/serious persons immediately without waiting for the police report or completion of police formalities.
They should be free from fear that they would be unneces sarily harassed or prosecuted for doing his duty without first complying with the police formalities . .
It is further submit ted that a doctor should not feel himself handicapped in extending immediate help in such cases fearing that he would be harassed by the Police or dragged to Court in such a case.
It is submitted that Evidence Act should also be so amended as to provide that the Doctor 's diary maintained in regular course by him in respect of the accident cases would be accepted by the courts in evidence without insisting the doctors being present to prove the same or subject himself to cross examina tion/harassment for long period of time.
" The Indian Medical Association which is a society registered under Act 21 of 1860 through its Secretary has stated in the affidavit that the number of deaths occurring on account of road accidents is on the increase due to lack of timely medical attention.
In the affidavit it has further stated: "The second reason is on account of the pre vailing police rules and Criminal Procedure Code, which necessitate the fulfilment of several legal formalities before a victim can be rendered medical aid.
The rationale behind this com 1003 plicated procedure is to keep all evidence intact.
However, time given to the fulfilment of these legal technicalities sometimes takes away the life of a person seriously injured.
Members of public escorting the injured to the nearest hospital are reluctant to disclose their name or identity as he is detained for eliciting information and may be required to be called for evidence to Courts in future.
Similarly, the private practicing doctors are harassed by the police and are, therefore, reluctant to accept the roadside casualty.
It is submitted that human life is more valuable and must be preserved at all costs and that every member of the medical profession, may, every human being, is under an obligation to provide such aid to another as may be necessary to help him survive from near fatal accidents.
" The Committee under the Chairmanship of the Director General of Health Services re ferred to above had taken the following deci sions: "1.
Whenever any medico legal case attends the hospital, the medical officer on duty should inform the Duty Constable, name, age, sex of the patient and place and time of occurrence of the incident, and should start the required treatment of the patient.
It will be the duty of the Constable on duty to inform the con cerned Police Station or higher police func tionaries for further action.
Full medical report should be pre pared and given to the Police, as soon as examination and treatment of the patient is over.
The treatment of the patient would not wait .for the arrival of the Police or com pleting the legal formalities. 2, Zonalisation as has been worked out for the hospitals to deal with medico legal cases will only apply to those cases brought by the Police.
The medico legal cases coming to hospital of their own (even if the incident has occurred in the zone of other hospital) will not be denied the treatment by the hospital where the case reports, nor the case will be referred to other hospital be cause the incident has occurred in the area which belongs to the zone of any other hospi tal.
The same police formalities as given in para 1 above will be followed in these cases.
1004 All Government Hospitals, Medical Institutes should be asked to provide the immediate medical aid to all the cases irre spective of the fact whether they are medico legal cases or otherwise.
The practice of certain Government institutions to refuse even the primary medical aid to the patient and referring them to other hospitals simply because they are medico legal cases is not desirable.
However, after providing the pri mary medical aid to the patient, patient can be referred to the hospital if the expertise facilities required for the treatment are not available in that Institution." (underlining are ours) To the said affidavit of the Union of India also, the minutes of the 10th Meeting of the Standing Committee on Forensic Medicine (a Committee set up by the Ministry of Home Affairs of the Government of India) held on 27.4.1985 have been appended.
These minutes show that the Committee was a high powered one consisting of the Director General, the Joint Secretary of the Ministry of Health of the Govern ment of India, a Professor from the All Indian Institute of Medical Sciences, the Professor of Forensic Medicine from Maulana Azad Medical College, New Delhi, the Director & Professor of Forensic Medicine, Bhopal, the Deputy Director, Central Forensic Science Laboratory, Calcutta and certain officers of the Ministry.
The proceedings indicate that the Director Generals of Police, Tamil Nadu and Uttar Pradesh were also members of the Committee.
From the proceedings it appears that the question of providing medico legal facili ties, at the upgraded primary health centers throughout the country was under consideration but the Committee was of the opinion that time was not ripe to think of providing such facilities at the upgraded primary health centers.
One of the documents which forms part of the Union of India 's affidavit is the copy of a letter dated 9th of May, 1978 which indicates that a report on some aspects of Medico Legal Practice in India had been prepared and a copy of such report was furnished to the Health Secretaries of all the States and Union Territories more than eleven years back.
From these documents appended to the affidavit of the Union of India, it is clear that the matter has been engag ing the attention of the Central Government as also of the Governments of the States and the Union Territories for over a decade.
No improvement of the situation,, however, is perceptible and the problem which led to the filing of this petition seems to exist in hospitals and private nursing homes and clinics throughout the country.
1005 In course of the hearing, we directed the petitioner to place on record for the consideration of the Court and the respondents a draft guideline which could be prescribed to ease the situation keeping the professional ethics in view.
When the same was filed, copies thereof were circulated to the respondents and all parties have been heard on the basis of the guidelines submitted on behalf of the petitioner.
The Medical Council of India has placed on record a copy of the Code of Medical Ethics and counsel has made a statement that there is no prohibition in law justifying the attitude of the doctors as complained.
On the other hand, he stated that it is a part of the professional ethics to start treating the patient as soon as he is brought before the doctor for medical attention inasmuch as it is the paramount obligation of the doctor to save human life and bring the patient out of the risk zone at the earliest with a view to preserving life.
In the affidavit filed on behalf of the Union of India on 3rd August, 1989, it has been said: "There are no provisions in the Indian Penal Code, Criminal Procedure Code, Motor Vehicles Act etc.
which prevent Doctors from promptly attending seriously injured persons and acci dent case before the arrival of Police and their taking into cognisance of such cases, preparation of F.I.R. and other formalities by the Police.
However, the deponent most humbly submits that the respondent shall always abide by the directions and guidelines given by the Hon 'ble Court in the present case.
" There can be no second opinion that preservation of human life is of paramount importance.
That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man.
The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the inno cent may be protected and the guilty may be punished.
Social laws do not contemplate death by negligence to tantamount to legal punishment.
Article 21 of the Constitution casts the obligation on the State to preserve life.
The provision as explained by this Court in scores of decisions has emphasised and reiter ated with gradually increasing emphasis that position.
A doctor at the Government hospital positioned to meet this State obligation is, therefore, duty bound to 1006 extend medical assistance for preserving life.
Every doctor whether at a Government hospital or otherwise has the pro fessional obligation to extend his services with due exper tise for protecting life.
No law or State action can inter vene to avoid/delay the discharge of the paramount obliga tion cast upon members of the medical profession.
The obli gation being total, absolute and paramount, laws of proce dure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.
On this basis, we have not issued notices to the States and Union Territories for affording them an opportunity of being heard before we accepted the statement made in the affidavit of the Union of India that there is no impediment in the law.
The matter is extremely urgent and in our view, brooks no delay to remind every doctor of his total obligation and assure him of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others.
We must make it clear that zonal regulations and classifica tions cannot also operate as fetters in the process of discharge of the obligation and irrespective of the fact whether under instructions or rules, the victim has to be sent elsewhere or how the police shall be contacted, the guideline indicated in the 1985 decision of the Committee, as extracted above, is to become operative.
We order accord ingly.
We are of the view that every doctor wherever he be within the territory of India should forthwith be aware of this position and, therefore, we direct that this decision of ours shall be published in all journals reporting deci sions of this Court and adequate publicity highlighting these aspects should be given by the national media as also through the Doordarshan and the All India Radio.
The Regis try shall forward adequate number of copies of this judgment to every High Court so that without delay the respective High Courts can forward them to every Sessions Judge within their respective jurisdictions and the Sessions Judges in their turn shall give due publicity to the same within their jurisdictions.
The Medical Council of India shall forward copies of this judgment to every medical college affiliated to it.
Copies of the judgment shall be forwarded to every State Government with a direction that wide publicity should be given about the relevant aspects so that every practicing doctor would soon become aware of the position.
In case the State Governments and the Union Territories which have not been heard file any representation against the direction, they shall have liberty to appear before this Court and ask for appropriate 1007 direction within three months from now.
Applications filed after that date shall not be entertained by the Registry of this Court.
Until altered, this judgment shall be followed.
Before we part with the case, we place on record our appreciation of the services rendered by the petitioner by inviting the attention of the Court to the problem raised in this case.
We must also place on record our appreciation of the cooperation and understanding exhibited by the Union of India in the relevant Ministry, the Medical Council of India and the Indian Medical Association.
No order for costs.
OZA, J. I entirely agree with what has been observed by my learned brother and also agree with the directions indi cated in the Order made by Hon 'ble Shri Justice R.N. Misra but I would like to add: As has been quoted by my learned brother, a high power committee by the Government of India was appointed at a high level and this was long before and the proceedings of 29th May, 1986 have been filed and have also been quoted.
The Medical Council of India alongwith their affidavit have filed Code of Medical Ethics which everyone in the medical profession is expected to follow but still the news item which is the starting point of this petition is of 1988.
The Code of Medical Ethics flamed by the Medical Council was approved on 23rd October, 1970.
This only reveals an unfor tunate state of affairs where the decisions are taken at the higher level good intentioned and for public good but unfor tunately do not reach the common man and it only remains a text good to read and attractive to quote.
It could not be forgotten that seeing an injured man in a miserable condition the human instinct of every citizen moves him to rush for help and do all that can be done to save the life.
It could not be disputed that inspite of development economical, political and cultural still citi zens are human beings and all the more when a man in such a miserable state hanging between life and death reaches the medical practitioner either in a hospital (run or managed by the State) public authority or a private person or a medical professional doing only private practice he is always called upon to rush to help such an injured person and to do all that is within his power to save life.
So far as this duty of a medical professional is concerned its duty coupled with human instinct, it needs no decision nor any code of ethics nor any rule or law.
Still in the Code of Medical Ethics framed by the Medical Council of India Item 13 specifically provides for it.
Item 13 reads as under: 1008 "13.
The patient must not be neglected.
A physician is free to choose whom he will serve.
He should, however, respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service.
Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving notice to the patient, his relatives or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant.
No provi sionally or fully registered medical practi tioner shall wilfully commit an act of negli gence that may deprive his patient or patients from necessary medical care.
" Medical profession is a very respectable profession.
Doctor is looked upon by common man as the only hope when a person is hanging between life and death but they avoid their duty to help a person when he is facing death when they know that it is a medico legal case.
To know the re sponse of the medical profession the Medical Council of India and also the All India Medical Association were no ticed and were requested to put up their cases.
Some apprehensions were expressed because of some misun derstanding about the law of procedure and the police regu lations and the priorities in such situations.
On the basis of the affidavit filed by the Union of India and considering the matter it is clear that there is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assist ance immediately.
There is also no doubt that the effort to save the person should be the top priority not only of the medical professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation.
But on behalf of the medical profession there is one more apprehen sion which sometimes prevents a medical professional in spite of his desire to help the person, as he apprehends that he will be witness and may have to face the police interrogation which sometimes may need going to the police station repeatedly and waiting and also to be a witness in a court of law where also he apprehends that he may have to go on number of days and may have to wait for a long time and may have to face sometimes long unnecessary cross examina tion which sometimes may even be humiliating for a man in the medical profession and in our opinion it is this appre hension which prevents a medi 1009 cal professional who is not entrusted with the duty of handling medico legal cases to do the needful, he always tries to avoid and even if approached directs the person concerned to go to a State hospital and particularly to the person who is in charge of the medico legal cases.
We there fore have no hesitation in assuring the persons in the medical profession that these apprehensions, even if have some foundation, should not prevent them from discharging their duty as a medical professional to save a human life and to do all that is necessary but at the same time.
We hope and trust that with this expectation from the members of the medical profession, the policy, the members of the legal profession, our law courts and everyone concerned will also keep in mind that a man in the medical profession should not be unnecessarily harassed for purposes of inter rogation or for any other formality and should not be dragged during investigations at the police station and it should be avoided as far as possible.
We also hope and trust that our law courts will not summon a medical professional to give evidence unless the evidence is necessary and even if he is summoned, attempt should be made to see that the men in this profession are not made to wait and waste time unnecessarily and it is known that our law courts always have respect for the men in the medical profession and they are called to give evidence when necessary and attempts are made so that they may not have to wait for long.
We have no hesitation in saying that it is expected of the members of the legal profession which is the other honourable profes sion to honour the persons in the medical profession and see that they are not called to give evidence so long as it is not necessary.
It is also expected that where the facts are so clear it is expected that necessary harassment of the members of the medical profession either by way of requests for adjournments or by cross examination should be avoided so that the apprehension that the men in the medical profes sion have which prevents them from discharging their duty to a suffering person who needs their assistance utmost, is removed and a citizen needing the assistance of a man in the medical profession receives it.
We would also like to mention that whenever on such occasions a man of the medical profession is approached and if he finds that whatever assistance he could give is not sufficient really to save the life of the person but some better assistance is necessary it is also the duty of the man in the medical profession so approached to render all the help which he could and also see that the person reaches the proper expert as early as possible.
R.S.S. Petition disposed of.
| IN-Abs | The petitioner, who claims himself to be a human right activist, filed this writ petition in public interest on the basis of a newspaper report concerning the death of a scoot erist who was knocked down by a speeding car.
The report further states that the injured person was taken to the nearest hospital but the doctors there refused to attend on him; that they told that he be taken to another hospital, located some 20 kilometers away, which was authorised to handle medico legal cases; and that the victim succumbed to his injuries before he could be taken to the other hospital.
The petitioner has prayed the directions be issued to the Union of India that every injured citizen brought for treat ment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death, and in the event of breach of such direction, apart from any action that may be taken for negligence, appropriate compensation should be admissible.
The Secretary, Ministry of Health & Family Welfare of the Union of India, the Medical Council of India, and the Indian Medical Association were later impleaded as respond ents.
Documents relating to the steps taken from time to time in this 998 regard were produced.
by the respondents.
Reference was made to the Code of Medical Ethics drawn up by the Medical Coun cil of India, wherein the need to attend to the injured/serious persons immediately without waiting for the police report or completion of police formalities was recog nised and the Government of India was requested to take necessary and immediate steps to amend various provisions of law which come in the way of government doctors as well as other doctors in private hospitals or public hospitals in this regard.
The proceedings of the meeting held on 29.5.1986 in which the Director General of Health Services acted as Chairman were also referred to.
This Committee had formulated some guidelines.
On behalf of the Union of India it was stated that there was no provision in the Indian Penal Code, Criminal Procedure Code, or the Motor Vehicles Act, etc.
which prevented doctors from promptly attending seriously injured persons and accident cases before the arrival of police.
Disposing of the Writ Petition, this Court, HELD: (1) Article 21 of the Constitution casts the obligation on the State to preserve life.
[1005G] (2) There can be no second opinion that preservation of human life is of paramount importance.
That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man.
[1005F] (3) The patient whether he be an innocent person or a criminal liable to punishment under the laws of the society, it is the obligation of those who are incharge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished.
Social laws do not contemplate death by negligence to tantamount to legal punishment.
[1005F] (4) Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life.
[1006A] (5) No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession.
The obligation being total, absolute and paramount, laws of procedure whether in statute or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.
[1006B] 999 (6) The Court gave directions for giving adequate pub licity to the decision in this case by the national media, the Doordarshan and the all India Radio, as well as through the High Courts and the Sessions Judges.
[1006E F] Per G.L. Oza, J. (concurring) (1) The Code of Medical Ethics framed by the Medical Council was approved on 23rd October, 1970.
This only re veals an unfortunate state of affairs where the decisions are taken at the highest level good intentioned and for public good but unfortunately do not reach the common man and it only remains a text good to read and attractive to quote.
[1007D E] (2) It is clear that there is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assistance immediately.
There is also no doubt that the effort to save the person should be the top priority not only of the medi cal professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation.
[1008F] (3) The members of the legal profession, our law courts and everyone concerned will also keep in mind that a man in the medical profession should not be unnecessarily harassed for purposes of interrogation or for any other formality and should not be dragged during investigations at the police station and it should be avoided as far as possible.
[1009C] (4) Law courts will not summon a medical professional to give evidence unless the evidence is necessary and even if he is summoned, attempt should be made to see that the men in this profession are not made to wait and waste time unnecessarily.
[1009D]
|
No. 17238 of 1988.
IN Writ Petition Nos.
630 632 of 1984.
(Under Article 32 of the Constitution of India).
Shanti Bhushan and P.D. Sharma for the Petitioner.
G.L. Sanghi, Mahabir Singh, Rana Ranjit Singh, Srinivas Choudhary, S.K. Mehta and G.K. Bansal for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
This Civil Miscellaneous Petition has been filed with a prayer for appropriate directions being issued to the State of Haryana as under: (a) Issue appropriate directions to the respondents No. 1 and 2 1082 to implement the judgment and order dated 17.12.86 and carry out the directions issued by way of writ of mandamus as prayed to this Hon 'ble Court in its full spirit giving effect to the promotion orders dated 30.12.87, from back dates (deemed dates) or the dates when their juniors were promoted.
(b) Further issue suitable directions to the Respond ents No. 1 and 2 to allow other consequential benefits viz. fixation of pay from deemed dates, payment of arrears, pension and gratuity benefits to all officers figuring in list dated 27.10.85 irrespective of their retirement prior to the order of promotions dated 30.12.87 pronouncement.
(c) Give effective relief to the petitioner Shri Mohinder Singh Kundu in full, irrespective of his retire ment.
(d) Any other suitable orders or directions as this Hon 'ble Court may deem fit and proper in the facts and circumstances set out in the present petition.
To understand the grievance of the petitioners, it is necessary to set out the back ground material and the pro nouncements made in T.R. Kapoor vs State of Haryana, ; and Ashok Gulati vs B.S. Jain, ; in favour of the petitioners.
The petitioners who are Diploma holders initially joined the Class III Engineering Service of the Punjab State in the early fifties and were promoted to Class II service as officiating S.D.Os in the middle sixties and in the case of some of them the said temporary promotion was even earli er.
By a Notification dated 27.10.1985 the petitioners and other similarly situated persons were regularly constituted as Class II service officers with effect from 25.12.1970.
Further avenues of promotion to them were barred because the State Government construed the Service Rules to mean that without a degree in Engineering, a Class II officer cannot be promoted to Class I service.
The said interpretation of the Service Rules was disapproved by this Court in A.S. Parmar vs State of Haryana, [1984] 2 SCR 476.
By reason of that judgment, it followed that a degree in Engineering was not an essential pre requisite for a member of Class II service being promoted to the Class I service.
1083 After the judgment in A.S. Parmar 's case (supra) was rendered, the petitioners filed Writ Petitions under Article 32 of the Constitution seeking writs of mandamus to the State Government to consider the case of the petitioners and the like of them for promotion to the posts of Executive Engineers in Class I service.
On 24.2.1984 an undertaking was given to the Court that the State would consider the claims of all the eligible persons including the petitioners for regular appointment to Class I service and that the exercise would be completed within four months time.
Howev er, two days before the expiry of the said period of four months, the State Government brought an amendment to the Rules with retrospective effect from 10.7.64 so as to make a degree in Engineering an indispensable qualification for an officer in Class II service being promoted to Class I serv ice.
Dismayed by the action of the State Government, the petitioners amended their writ petitions suitably and chal lenged the validity of the amendment to the Rules.
After considering the matter in detail, this Court delivered judgment on 17.12.1986 striking down the impugned amendment to the rules as ultra vires the State Government and in a connected appeal C.A. No. 149 of 1981 Ashok Gulati (supra) this Court directed the State Government to consider the cases of all eligible members of Class II service for promo tion to the post of Executive Engineer in Class I service in accordance with law and to complete the process of .appoint ment within six months ' time.
As the State Government failed to give effect to the said directions within the allotted time of six months, the petitioners filed a contempt petition C.M.P. No. 15430 of 1988 against the State.
In reply to the contempt petition, the State Government stated that the delay in the implemen tation of the Court 's order was due to the stupendous nature of the work involved in the fixation of seniority of more than four hundred officers, their promotions, reversion, claims, and counter claims and their deemed promotions etc.
After taking note of the said explanation, this Court di rected the State to expedite the matter and to complete the process of promotion of Class II officers to class I service within a period of two 'months and ordered the contempt petitions to be listed in the first week of January 1988.
When the contempt petition came up before Court on 4.1.1988, it was represented on behalf of the State Government that the Court 's directions have been complied with and orders of promotion have been issued to the petitioners on 30.12.87 itself.
Acting on 1084 the said representation, this Court passed the following order and discharged the notice in the contempt petition: "in view of this Court 's order dated 17th December, 1986 and the order dated 12th Octo ber, 1987, the officers concerned have been promoted by an order dated 30th December, 1987 and we presume that they will now be posted in consequence of that promotion.
We hope and trust that the State of Haryana will pass posting orders expeditiously.
The Civil Mis cellaneous Petition is disposed of according ly".
It is thereafter the petitioners have come forward with this application for directions.
The contention of the petitioners is that since their placement in Class II serv ice had been made effective with effect from 25.12.1970, though the order therefore was issued on 27.10.1985, they were entitled to be considered for promotion to Class I service as and when they attained eligibility after 25.12.1970 especially in view of the judgment in A.S. Par mar 's case (supra) which held that a degree in Engineering was not an essential pre requisite for members of Class II service being promoted to posts in Class I service.
It is, therefore, stated by the petitioners that in all fairness they must be placed in their rightful position by being given promotion "from back dates or deemed dates or, in any case, the dates when persons junior to them were promoted." According to the petitioners their juniors were given promo tions in the years 1963, 1969, 1970, 1971, 1973, 1976 and 1978.
The petitioners blame the State Government for their non promotion because of the delay in preparing the seniori ty list of Class II officers till 1985 and for closing the doors of promotion to them by wrong interpretation of the Rules and thereafter by making a wrongful amendment to the rules till judgments were rendered in T.R. Kapoor 's case (supra) and Ashok Gulati 's case (supra) on 17.12.1986.
The petitioners would therefore contend that the promotions given to them belatedly on 30.12.1987 do not render full justice to them and the said order is also not fully in compliance with the directions given by this Court in the judgments rendered in the two cases on 17.12.86.
Yet another grievance put forth is that the Government has not given relief to those Class II officers who have retired from service prior to 30.12.1987.
The petitioners therefore seek further directions being issued to the State Government to give them and other similarly placed officers besides those who have already retired from service the benefit of promo tion with effect from back dates or deemed dates as per theft entitlement or atleast from the dates when persons junior to 1085 them were promoted together with all the consequential benefits arising therefrom.
In reply to the petition for directions, three counter affidavits have been filed on behalf of the State of Har yana, one by Shri H.D. Bansal, Financial Commissioner and Secretary to Government, Irrigation & Power Department and the second by Shri H.K. Khosla, Engineer in Chief, Irriga tion Department.
In both the counter affidavits it has been stated that the State has fully complied with, the direc tions of the Court by giving promotion to all the petition ers by order dated 30.12.87 and that the Court, in approval of the action of the Government as proper compliance to the directions given on 17.12.1986, dropped further proceedings in the contempt petition and as such there is no basis for the petitioners to seek further directions from the Court.
The third counter affidavit dated 14.10.88 has been filed by Shri Raj Rup Fuliya, Deputy Secretary to Government of Haryana, Irrigation and Power Department.
Therein the stand taken is that since the petitioners had acquiesced in the interpretation of the Service Rules by the Government till they filed the writ petitions, the petitioners are not entitled to claim promotional benefits with reference to their service in Class II posts from 1970.
It is further stated that in the judgments rendered in T.R. Kapoor vs State of Haryana, (supra) and Ashok Gulati vs B.S. Jain, (supra), this Court had not directed that promotions should be given to the petitioners from back dates or deemed dates or from the dates their juniors were promoted to Class I Service.
Likewise, it is stated that the Court had not directed the State to give the benefit of promotion to per sons who have already retired from service.
The petitioners have controverted the averments in the counter affidavits by means of a rejoinder and have reiter ated their claim for promotion from anterior dates.
In turn Shri Raj Rup Fuliya, Deputy Secretary to the Government has filed a supplemental counter 'affidavit to the rejoinder filed by the petitioners.
In the light of the conflicting stands taken by the parties, it falls for consideration whether the petitioners are entitled to the benefit of promotion from anterior dates i.e. from deemed dates of promotion or from the dates their juniors were promoted as claimed by them or whether the promotions given to them on 30.12.87 by the Government amounts to grant of full relief to the petitioners as per this Court 's judgments dated 17.12.86.
1086 Taking up for consideration the contention of the peti tioners that by reason of their being constituted Class II Officers with effect from 25.12.70, they were entitled to promotion as and when they attained seniority, but the State Government had unjustly deprived them the benefit of promo tion due to wrong interpretation of the Rules, we are unable to accept the plea for more than one reason.
In the first place, the petitioners had acquiesced in the interpretation of the Rules by the State Government all along and it was only after the decision in A.S. Parmar 's case, they chose to move this Court under article 32 of the Constitution to seek promotional benefits.
Having remained complacent for a long number of years, the petitioners cannot now turn round and say that notwithstanding their inaction, they should be granted promotion from deemed dates on the basis of seniori ty.
Secondly, in the long interval of time that had elapsed before the petitioners chose to file the writ petitions, several o*her Class II Officers holding engineering degrees have been promoted to Class I Service.
The benefits which had accrued to those persons by reason of their promotions cannot now be disturbed or interfered with by giving the petitioners promotions from deemed dates of eligibility for promotion.
In other words, a settled state of affairs among the Class I Promotees cannot be unsettled now.
As already stated, during the pendency of the writ petitions, the State Government gave an undertaking on 24.2.1984 that they would consider the claims of the peti tioners for promotion to Class I service and pass orders in four months ' time.
Subsequently, the State Government went back on its representation and brought about an amendment with retrospective effect to the Rules so as to make a degree in engineering an essential qualification for promo tion to Class I service.
This amendment was struck down by this Court in T.R. Kapoor 's case and it was observed as follows: "Presumably, the State Government adopted this unfortunate course of action taking cue of the observations made by this Court in the con cluding part of the judgment in A.S. Parmar 's case saying that if the Government wish to appoint only persons having a degree in Engi neering to Class I service, it was free to do so by promulgating appropriate rules and that the power to frame such a rule was beyond question.
But the Court never laid down that such a rule may be framed under article 309 of the Constitution with retrospective effect so as to render ineligible Class II officers like the petitioners who were Diploma holders 1087 for further promotion as Executive Engineers in Class I service.
In view of the clear formulation of law interpreting r. 6(b) of the Class I Rules holding that a degree in Engi neering was not an essential qualification for promotion of Class II Officers to the cadre of Executive Engineers in Class I service, there was no occasion for the State Government to issue the impugned notification unless it was with the object of nullifying the decision of this Court in A.S. Parmar 's case".
After thus disapproving the Government 's action, this Court gave directions to the State Government in the connected appeal Ashok Gulati vs B.S. Jain, (supra) to consider the claims of all the eligible Class II officers for promotion to Class I service without reference to their possessing a degree in Engineering.
It is bearing in mind these factors the question whether the promotions granted to the petition ers with effect from 30.12.1987 amounts to sufficient com pliance of the directions of the Court dated 17.12.1986 has got to be examined.
Inasmuch as the petitioners had not asked for mandamus being issued for promotion them to Class I posts from ante rior dates on deemed basis or with reference to the promo tions given to junior persons, and since even if such a prayer had been made, the relief would not have been given for the reasons set out above, this Court appropriately called upon the Government to consider the case of all eligible members of Class II service for promotion to the post of Executive Engineer in Class I service in accordance with law and to complete the process of appointment within six months time.
The direction therefore enjoined the Gov ernment to give promotion to all Class II officers who were eligible for promotion to Class I service after Rule was issued in the writ petitions.
Even before the direction was issued, the Government had conceded the position and that was why the Government had asked for four months time through its counsel to consider the case of all eligible Class II officers and give them promotion.
The combined effect of the striking down of the amend ment to the Rules by the Government and the direction issued to the Government in Ashok Gulati 's case (supra) to consider for promotion the names of all the eligible Class II offi cers would entitle the petitioners to seek the benefit of promotion from 24.6.1984 when the time limit of four months sought for by the State Government to make the promotions came to expire.
But for the unsustainable amendment made to 1088 the Rules, the Government could not have postponed the promotion of the petitioners and other Class II officers similar to them beyond the time limit of four months which expired 24.6.1984.
It would therefore follow that the order of promotion made by the State Government on 30.12.
1987 will not amount to due compliance of the Court 's directions dated 17.12.1986.
The Government cannot take advantage of its own error in making an illegal amendment to the Rules with retrospective effect and postpone the benefit of promo tion to Class II officers.
The Government cannot also take umbrage for its action in giving promotion to the petitioners and other eligible Class II officers with effect from 30.12.1987 either because the directions given on 17.12.1986 did not set out the date from when promotions should be given or because the Court passed orders on 4.1.1989 dropping further proceedings in the contempt petition.
As regards the directions issued on 17.12.1986 to the State Government to give promotions to the Class II officers in accordance with law, they must be construed with reference to the observations made in T.R. Kapoor 's case (supra) that the amendment to the Rule with retrospective effect by the Government "was with the object of nullifying the decision of this Court in A.S. Parmar 's case".
Viewed thus, the Government 's action in giving promo tions to the petitioners and others belatedly on 30.12.1987 cannot be construed as due compliance of the Court 's direc tions.
Once that conclusion is reached the question would then be as to from which date the Government should have given promotions to the petitioners and others in accordance with the directions of the Court.
The latest point of time in which the Government could not and should have given promotions would be the date on which the four months ' time prayed for by the Government on 24.2.1984 to give promotions to the eligible Class II officers came to an end.
The said period on 24.6.1984 and the Government cannot escape its obligation to give promotions to the officers in question with effect from that date.
In so far as the order passed in the contempt applica tion on 4.1.
1988 is concerned, it is needless to say that this Court did not go into the question on that day as to whether the order of promotion passed on 30.12.1987 was in full compliance or only in partial compliance of the Court 's order dated 17.12.1986.
In fact it is the grievance of the petitioners that the State Government did not communicate to them the orders passed on 30.12.1987 and therefore they had no opportunity to state before Court on 4.1.1988 that the Government had acted mala fide in granting them promotion only with effect from 30.12.1987 and that the said order had been passed only to escape 1089 the consequences of the contempt petition and not for ful filling the directions given by the Court on 17.12.1986 to promote all eligible persons in accordance with law.
We, therefore, direct the State Government to give promotion to all eligible Class II officers with effect from 24.6.1984 and to give them all the consequential benefits arising therefrom.
The benefits of promotion and consequen tial benefits should also be given to all those officers who were eligible for promotion on 24.6.1984 but who have re tired since then.
The Government shall complete the exercise in two months ' time from today.
To this extent the petition for directions will stand or dered.
No costs.
| IN-Abs | This is an application filed by the Petitioners seeking directions of the Court for implementation of this Court 's order dated 17.12.86 in its true spirit, in particular, praying that the promotion orders dated 30.12.87 be given effect from the back dates (deemed dates) or the dates when their juniors were promoted.
The circumstances that led to the filing of this application may be stated thus.
The Petitioners were members of the regularly constitut ed class II Engg.
service of the State with effect from 25.12.1970 and were working as Sub Divisional Officers.
Further avenues of promotion to them were barred because the State Government construed the service Rules to mean that without a degree in Engineering, a class II officer could not be promoted to class I service.
The said interpretation of the State Government was disapproved by this Court in the case of A.S. Parmar vs State of Haryana, [1984] 2 SCR 476 as a consequence whereof a degree in Engineering did not remain an essential pre requisite for a member of Class II service for being promoted to Class I service.
After the Judgment in Parmar 's case, the Petitioners filed a Writ Petition in this Court seeking a direction to the State Government to consid er the case of the Petitioners and others similarly situated for promotion to the post of Executive Engineers in Class I service.
On 24.2.84 an undertaking was given to the Court by the State, that the State would consider the claims of all the eligible persons including the petitioners for regular appointment to Class I service within four months.
Instead of granting promotions, the State.
Government amended the Rules with retrospective effect from 10.7.64 so as to make a degree in Engineering as an indispensable qualification for an officer in Class II service for being promoted as Class I officer.
The Petitioners thereupon amended their Writ Peti tion and challenged the validity of 1080 the amendment and the Court by its Judgment dated 17.12.86 struck down the amendment to the Rules as ultra vires the State Government.
In another case involving the same point viz., Ashok Gulati vs B.S. Jain, this Court directed the State Government to consider the cases of all eligible members of Class II service for promotion as Executive Engineers, within six months time.
The State having failed to comply with the Court 's order aforesaid, a contempt petition was flied, which was disposed of by the Court 's order dated 30.12.87 by which time the State had reported to the COurt that the promotions to all concerned eligible officers had since been granted.
The Petitioners have now filed this application contend ing that since their placement In Class II service had been made effective with effect from 25.12.70 though the order therefore was issued on 27.10.85, they Were entitled to be considered for promotion to Class I service as and when they attained eligibility after 25.12.70 especially in view of the Court 's Judgment in Parmar 's case whereby the degree in Engineering was no longer a necessary qualification.
The Petitioners therefore urge that they be placed in their rightful position by giving promotion from back dates or deemed dates, or, in any case, the date when persons junior to them were given promotions.
According to them promotions granted to them belatedly on 30.12.87 did not render true justice to them and that the said order did not fully comply with the Court 's order.
Further a grievance is also made that no benefit has been given to those officers who retired from service during this period.
On the other hand the State contended that it has duly complied with the Court 's order by giving promotions w.e.f. 30.12.87.
The State supported its contention by saying that in approval of its action the Court on 17.12.86 dropped further proceedings in contempt petition which meant that there has been due compliance with the Court 's order.
Disposing of the application with directions this Court, HELD: The combined effect of the striking down of the amendment to the Rules by the Government and the direction issued to the Government in Ashok Gulati 's case to consider for promotion the names of all the eligible Class II offi cers would entitle the petitioners to seek the benefit of promotion from 24.6.84 When the time limit of four months sought for by the State Government to make the promotions came to expire.
But for the unsustainable amendment made to the Rules, the Government could not have postponed the promotions of the 1081 Petitioners and other Class II officers similar to them beyond the time limit of four months which expired on 24.6.84.
It would therefore follow that the order of promo tion made by the State Government on 30.12.87 will not amount to due compliance of the Court 's directions dated 17.12.86.
The Government cannot take advantage of its own error in making an illegal amendment to the Rules with retrospective effect and postpone the benefit of promotion to Class II officers.
[1087G 1088B] The Government cannot also take umbrage for its action in giving promotion to the petitioners and other eligible Class II officers with effect from 30.12.87 either because the directions given on 17.12.86 did not set out the date from when promotions should be given or because the Court passed orders on 4.1.1989, dropping further proceedings in the contempt petition.
[1088C] The State Government was directed to give promotions to all eligible Class II officers with effect from 24.6.84 and to give them all the consequential benefits arising there from.
The court further directed that the benefit of promo tion and consequential benefits should also be given to all those officers who were eligible for promotion on 24.6.84 but who have retired since then.
[1089B]
|
IGINAL JURISDICTION: Special Leave Petition (C) No. 15257 of 1987.
From the Judgment and Order dated 23.4.1987 of the Delhi High Court in CMP No. 268 of 1987.
V.M. Tarkunde, D.D. Thakur, Govinda Mukhoty, A.P. Singh, K.N. Rai, section Balakrishnan, R.N. Keswani, R.F. Nariman, P.H. Parekh, D.Y. Chanderchud, J.P. Pathak, Shishir Sharma, Ms. Gitanjali, Mrs. Biraj Tiwari, Ms. Sunita Sharma, N.K. Sahoo, Arun Jaitley, Ms. Bina Gupta, Ms. Madhu Khatri, L.K. Gupta, R.C. Kaushik, Rajiv Sharma, B.S. Bali, M.C. Dhingra, A.S. Bawa, V.K. Verma, Kirpal Singh, A.S. Pundir, section Srinivasan, Mrs. Sushadra, B.B. 1043 Tawakley, S.K. Mehta, Dhruv Mehta, Atul Nanda, Ms. Mridula Ray, R.M. Tewari, Ms. Rani Jethmalani, Ajit Singh Bawa and Vijay Verma for the Petitioners.
G. Ramaswamy, Additional Solicitor General, R.B. Datar, O.P. Sharma, Dr. L.M. Singhvi, A.K. Sen, Ranjit Kumar, R.C. Gubrele, R.K. Maheshwari, Mensoor Ali, A.M. Singhvi, D. Bhandari, N. Waziri, Mrs. Madhu Bhandari, K.B. Rohtagi, S.K. Dhingra, Baldev Atreya, S.B. Saharya, V.B. Saharya, K.R. Gupta, R.K. Sharrna, Vimal Sharda, Vivek Sharda, Mrs. Nanita Shanaa, Aruneshwar Gupta, Inderbir Singh Alag and Sushil Kumar for the Respondents.
Mrs. Sushma Suri, B.B. Sawhney, P.K. Manohar, Mrs. Indra Sawhney, Mrs. Abha Jain, P.K. Jain, S.S. Hussain, Amlan Ghosh, Jitendra Sharma, R.D. Upadhyay, Y.K. Jain, D.D. Shanaa, Rajesh, Naresh Kabkshi, Mrs. Urmila Kapur, M.M. Kashyap, Anis Ahmad Khan, Manjeet Chawla, S.N. Bhatt, N. Ganpathy, P. Parmeshwaran, A.S. Pundir, Pandey Associate, Arun K. Sinha, M.B. Lal, A.K. Sanghi and S.M. Ashri for the appearing parties.
The following Judgments of the Court were delivered: SHARMA, J.
The petitioners in all these cases claim the right to engage in trading business on the pavements of roads of the city of Delhi.
They have asserted that they have been pursuing their trade with the permission of the municipal authorities for some time, but recently there has been illegal interference by them.
Some of the petitioners have moved this Court under Article 32 of the Constitution and others impugn adverse judgments of the Delhi High Court dismissing their claim.
As the petitioners have challenged the correctness of the decision of a Division Bench of this Court in Pyarelal vs N.D.M.C and another, (1967) 3 SCR page 747, these cases were placed for hearing before a larger Bench.
The petitioners, in their applications before this Court, have alleged that they were allowed by the respond ents to transact their business by occupying a particular area on the pavements, on payment of certain charges de scribed as Tehbazari.
It is contended that the municipal authorities by their refusal to permit the petitioners to continue with their trade are violating their fundamental right guaranteed under Article 19(1)(g) and 21 of the Con stitution.
They have also 1044 complained of mala fides, arbitrariness and discriminatory conduct attracting Article 14 of the Constitution.
The respondents, besides denying the facts alleged by the petitioners, contended that nobody has got a legal right to occupy exclusively a particular area on the road pave ments for pursuing a trading business, and nobody can claim any fundamental right in this regard whatsoever.
It has been strenuously urged that the roads are meant for the use of general public for passing and re passing and they are not laid to facilitate the carrying on of private business.
The main argument on behalf of the petitioners was addressed by Mr. Tarkunde, who appeared for petitioner Sodan Singh in S.L.P. No. 15257 of 1987.
Several learned advocates representing the other petitioners, besides adopting the main argument, made brief supplementary submissions.
The place where petitioner Sodan Singh claims to have the right to squat for soiling ready made garments is within New Delhi.
Several other petitioners have similar claims against the New Delhi Municipal Committee.
The remaining petitioners allege that they have been pursuing their squatting business within Delhi, as defined in the Delhi Municipal Corporation Act, which is administered by the respondent Municipal Corporation of Delhi.
Separate arguments have been made on behalf of the New Delhi Municipal Committee and the Munici pal Corporation of Delhi.
Mr. Tarkunde urged that petitioner Sodan Singh is a poor hawker making his both ends meet by selling ready made garments on an area of 8 ' x 24 ' near Electric Pole No. 12, Janpath Lane, New Delhi as illustrated in the attached map Annexure 'A ' to the petition.
Earlier he was permitted to hawk from time to time by the respondent under licences as per Annexure 'A 2 ', but now the privilege is being denied to him and his goods were removed forcibly from the pavement and were later released only on payment of cost of removal charges.
In the counter affidavit of the respondent the allegations have been denied and it has been pointed out that the photo copy of the licence Annexure 'A 2 ' itself shows that the petitioner was permitted to sell 'Channa ' and 'Moongphali ' on a 'Vehngi ' on and around Bus stop No. 430 on Pt.
Pant Marg; and he was at no point of time allowed to occupy a fixed place for carrying on business in ready made garments.
We do not propose to go into the facts of this or the other petitions and would leave the individual cases to be dealt with by the Division Bench in the light of the general principle which will be discussed in this judgment.
1045 7.
The Municipal Corporation of Delhi was established by a notification issued under section 3 of the Delhi Municipal Corporation Act, 1957, and the provisions of that Act are relevant for the majority of the present cases.
The other cases relate to the other areas forming part of the Union Territory of Delhi governed by the provisions of the Punjab Municipal Act, 1911.
However, the main submissions in all these cases made on behalf of both sides have been with respect to the general principles applicable in India about the right to carry on business by squatting on pavements of public streets.
Mr. Tarkunde contended that the petitioners are poor people and depend on their business for their livelihood.
If they are not allowed to occupy some specific place for conducting their business, they may starve.
This will lead to violation of their fundamental right under Article 21 of the Constitution.
Reliance was placed on the decision in Olga Tellis and others vs Bombay Municipal Corporation and others; , The learned counsel further said that the two respondents have been in the past allowing squatter traders on the pavements on payment of Tehbazari charges.
He drew our attention to the counter affidavit of the respondent in S.L.P. Nos.
4519 23 of 1986 at page 146 where a resolution by the New Delhi Municipal Committee has been mentioned in paragraph III.
In the case of Delhi Munic ipal Corporation also several documents have been relied upon for showing that specific areas have been allowed to be occupied for the purpose of trading business from time to time.
The learned counsel argued that since the two munici palities have been settling specific areas for the purpose of squatting, it is not open to them to deny squatting rights to the petitioners and other persons situated in similar circumstances.
In Pyare Lal etc.
vs N.D.M.C.; , the New Delhi Municipal Committee banned the sale of cooked edibles on public streets, and prevented the petitioners, licensed vendors of potato chops and other edibles, from continuing with their business.
After unsuccessfully moving the Punjab High Court, they came to this Court.
The appeals were dismissed holding that persons in India cannot claim a lawful right to pursue street trading, and the N.D.M.C. was perfectly authorised to take steps under section 173 of the Punjab Municipal Act for stopping the business.
It was also observed that the N.D.M.C. was not empowered under the Act to allow trade on public streets on a permanent basis and that permission for sale of goods could be granted only on special occasions on temporary basis as in the case of festivals etc.
Reliance had been placed on behalf of the 1046 petitioners on certain passages from Halsbury 's Laws of England, which the Court distinguished on the ground that street trading was regulated by certain statutes in England, and there were no such provisions applicable in the cases before this Court.
The right to pursue street trading in India was thus negatived.
Mr. Tarkunde contended that it is not correct to deny the members of the public their right to engage in business on the public streets in the country.
He said that this is one of the fundamental rights guaranteed both, under Article 19(1)(g) and Article 21.
According to the learned counsel, the practice of the street trading is well established for a considerable time in all the civi lised countries of the world including India, England and United States of America.
Refuting the suggestion made on behalf of the respondents that it was only a hawker who sells his goods while moving from door to door and place to place who is allowed on the public streets, Mr. Tarkunde referred to Halsbury 's Laws of England, Vol. 40, paragraphs 431 to 446 under the heading 'Street Trading in Greater London '.
It was suggested that the right of the members of the public in this regard was rounded on the common law right.
The learned counsel further relied on the third paragraph of section 253 of the Chapter 'Highways, Streets, and Bridges ' of 39 American Jurisprudence (2nd Edition) which reads as follows: "A municipality 's power to regulate the use of streets for private gain is to be liberally construed.
The purpose of such regulations is to promote public safety, and not to regulate and control indirectly the user 's business as such.
There is no authority in a municipality to prohibit the use of the street by any citizen or corporation in the carrying on of a legitimate business, harmless in itself and useful to the community, which is independent of the police power under which reasonable regulations in the promotion of the public order, safety, health, and welfare are proper.
In his reply Mr. Singhvi, the learned counsel for N.D.M.C. pointed out that the first two paragraphs of the aforementioned section 253 which are quoted ' below negative the right asserted on behalf of the petitioners and paragraph 3 mentioned above has to be read in that light.
"section 253.
Business purposes: Individuals do not have the inherent right to conduct their private business in the streets, nor can they acquire a 1047 vested right to use the streets for carrying on a commercial business.
However, individuals do have the right to use the streets to some extent for the purpose of bartering or trading with each other, or for prosecuting a busi ness, trade, or calling, although they cannot legally carry on any part of their business in the public streets to the annoyance of the public, or supply the deficiencies in their own premises by monopolizing the street or walk.
The use of public streets as a place for the prosecution of a private business for gain is generally recognised as a special or extraordinary use which the controlling public authority may prohibit or regulate as it deems proper.
When a municipality does permit pri vate individuals to have exclusive possession of the street surface for a private business use, such permit is so unusual, and beyond the ordinary authority and power of a municipali ty, that it may not issue such a permit in the absence of special enabling state legislation.
Assuming that such power exists, the granting of permission to a private person to so use the streets is totally within the discretion of the municipality.
" The learned counsel contended that the grant of exclusive right to occupy any part of the road amounts to the negation of the Common Law theory of dedication of a road for public use.
Reference was also made on behalf of the petitioners to the judgment in M.A. Pal Mohd. vs R.K. Sadarangani, A.I.R. 1985 Madras 23, wherein it was observed that hawker trade so long as it is properly regulated by public authori ties could never be a public nuisance; rather it serves the convenience of the public.
and is found not only in India but also in other countries.
The question of applicability of the English and American laws on the present aspect was considered by a Division Bench of the Madras High Court in C.S.S. Motor Service vs Madras State, A.I.R. 1953 Madras 279 and the decision was later approved by this Court in Saghir Ahmad vs The State of U.P. and others; , After a thorough consideration of the relevant materials Venkatarama Aiyar, J. who delivered the judgment pointed out some of the basic differences in the law of this country on the present subject from the American and English laws, which render the American decisions inapplicable on certain aspects.
The right to carry on business, 1048 although recognised as one of the liberties protected by the American Constitution, did not acquire the full status of the freedoms expressly mentioned in the Constitution, such as, the freedom of speech, of person, and of religion; and was viewed somewhat in the light of an interloper or parvenu among them.
The freedoms expressly mentioned in the American Constitution occupy an exalted position which was denied to the unexpressed freedoms including the right to carry on business.
Under the Indian Constitution this right is one of the freedoms expressly protected under Article 19(1)(g) and is placed on the same footing as freedom of speech, etc.
Further only some trades could be carried on by the American citizens as a matter of right and the others including the transport business on public roads only if the State permit ted.
The learned Judge observed that this is called a 'fra nchise ' or a 'privilege ' and has an English origin.
That is not the case in this country, inasmuch as Article 19(1)(g) does not make any distinction from trade to trade.
So far England is concerned, the rights of citizens to public pathways originated in feudal times when the lands were owned by individuals.
The public highways generally pass through these lands and since the citizens were using these roads the law inferred a dedication of the pathways by the owners for user by the public, but the extent of this user was limited to the passing and re passing on the road.
The position in India has always remained somewhat different and has been summarized in paragraph 24 of the judgment of Venkatarama Aiyar J., in the following terms, which has been quoted with approval by this Court in Saghir Ahmad 's case.
"The true position then is that all public streets and roads vest in the State but that the State holds them as trustee on behalf of the public.
The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways.
The State as trustees on behalf of the public is entitled to impose all such limitations on the charac ter and extent of the user as may be requisite for protecting the rights of the public gener ally.
Thus the nature of the road may be such that it may not be suitable for heavy traffic and it will be within the competence of the legislature to limit the use of the streets to vehicles which do not exceed specified size or weight.
Such regulations have been held to be valid as within the police power of the State in America.
Vide 'Morris vs Budy ', , Sproles vs Bindford ', ; , and South Carolina State vs Barnwell 1049 Bros. '[1938] ; For the same reason the State might even prohibit the running of transport buses and lorries on particular streets or roads if such running would interfere with the rights of pedestrians to pass and re pass as it might if the street is narrow or conjested but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways.
Mr. Singhvi is correct in pointing out that the passages of the American and English laws, as relied upon on behalf of the petitioners, do not establish their right to carry on trading business on public streets, but for that reason their claim cannot be rejected either.
The question requires to be examined further.
The observations in the judgment of Venkatarama Aiyer, J. quoted above prima facie support the petitioners.
They received express approval of this Court in Saghir Ahmad 's case, but there is an important distinction between those cases and the present matter which cannot be ignored.
In both the above cases the petitioners were claiming the right to ply transport vehicles for hire on public streets; in other words, they wanted to use the roads for transport, for which the roads were primarily laid out and while so doing attempted to earn money.
In the present cases before us the petitioners are desirous of conducting their trade business by sale of goods on the roads from stationary points; they do not want to make use of the roads for movement of persons or goods.
The question is whether this makes a material difference.
The primary object of building roads is undoubtedly to facilitate people to travel from one point to another.
Quoting several authorities Byron K. Elliott and William F. Elliott in their treatise on the Law of Roads and Streets have defined a street as a road or public way in a city, town or village.
A way over land set apart for public travel in a town or city is a street, no matter by what name it may be called.
If a way is free to all people it is a highway.
P. Duraiswami Aiyangar in his book dealing with the Law of Municipal Corporation in British India (1914 Edn.) has observed that the primary and paramount use of the street is public travel for man, beast and carriage for goods.
On behalf of the respondents reliance has been placed on the oft repeated adage that public have a right of passing and repassing through a street but have no right "to be on it", which Sri Aiyangar also has mentioned at page 542 of his book.
Halsbury, relied upon by both sides, has stated (Vol.
21 paragraph 107) that the right of 1050 the public is a right to pass alone a highway for the pur pose of legitimate travel, not to be on it, except so far as the public 's presence is attributable to a reasonable and proper user of the highway as such.
These statements cer tainly do not mean that a traveler has to be in perpetual motion when he is in a public street.
It may be essential for him to stop sometime for various reasons he may have to alight from a vehicle or pick up a friend, collect certain articles or unload goods or has to take some rest after a long and strenuous journey, What is, required of him is that he should not create an unreasonable obstruction which may inconvenience other persons having similar right to pass; he should not make excessive use of the road to the prejudice of the others.
Liberty of an individual comes to an end where the liberty of another commences.
Subject to this, a member of the public is entitled to legitimate user of the road other than actually passing or re passing through it.
It has been sometimes argued that since a person is entitled to the user of every part of a public street, he cannot be deprived of the use of any portion thereof by putting up of any obstruction.
This proposition in its extreme form cannot be accepted without subjecting it to several restrictions.
A similar argument was pressed before the Madras High Court in the case of M.A. Pal Mohd. vs R.K. Sadarangani, (supra) based on the provisions of the Madras City Municipal Corporation Act, 1919, and was rightly re pelled by pointing out that since the pavement is also included within the expression 'street ', a member of the public relying upon the aforesaid proposition can insist on his right to walk over a flower bed or structure erected by the public authorities for regulating traffic which will be wholly unpractical.
The authorities are duty bound to locate post boxes, fire hydrants with water tanks, milk booths, bus or jutka stands, rubbish bine etc., in appropriate places in a public street and it would be preposterous to hold that this cannot be done as somebody may insist on keeping every inch of the street available for actual passage.
Winfield and Jolowicz in their book on Tort (12th Edn.) have said that nuisance may be defined, with reference to highways, as any wrongful act or omission upon or near a highway, whereby the public are prevented from freely, safely, and conven iently passing along the highway and that the law requires of users of the highway a certain amount of "give and take".
The case of Harper vs G.N. Maden and Sons, Limited, illustrates this point.
The defendants there who had their house abutting the road decided to add another floor to their existing premises.
Before starting construction they erected "scaffolding" resting On the footpath, and put up a wooden hoarding 1051 next door to the plaintiff 's shop for the purpose of enclos ing a space to be used, during the alterations to their building, for depositing bricks and other materials.
In an action by the plaintiff, for injunction and damages, the trial Judge held that although the scaffolding and hoarding were reasonably necessary for the construction and they did not cause any greater obstruction or remain for any longer period than was reasonably necessary, the obstruction was illegal and that the plaintiff was entitled to damages.
On appeal the judgment Was reversed holding that the obstruc tion to the highway and to the enjoyment by the plaintiff of his adjoining premises being of temporary character and being reasonable in quantum and in duration did not give rise to a legal remedy.
It was very well said that: "The law relating to the user of highways is in truth the law of give and take.
Those who use them must in doing so have reasonable regard to the convenience and comfort of others, and must not themselves expect a degree of convenience and comfort only obtain able by disregarding that of other people.
They must expect to be obstructed occasional ly.
It is the price they pay for the privilege of obstructing others." As to what will constitute public nuisance and what can be included in the legitimate user can be ascertained only by taking into account all the relevant circumstances in cluding the size of the road, the amount of traffic and the nature of the additional use one wants to make of the public streets.
This has to be judged objectively and here comes the role of public authorities.
So far as right of a hawker to transact business while going from place to place is concerned, it has been admittedly recognised for a long period.
Of course, that also is subject to proper regulation in the interest of general convenience of the public including health and security considerations.
What about the right to squat on the road side for engaging in trading business? As was stated by this Court in Bombay Hawkers Union and others vs Bombay Municipal Corporation and others, , the public streets by their nomenclature and definition are meant for the use of the general public: they are not laid to facilitate the carrying on of private business.
If hawk ers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the busy thoroughfares, thereby paralysing all civic life.
This is one side of the picture.
On the other hand, if properly regulated according to the exigency of the circumstances, the small 1052 traders on the said walks can considerably add to the com fort and convenience of general public, by making available ordinary articles of every day use for a comparatively lesser price.
An ordinary person, not very affluent, while hurrying towards his home after day 's work can pick up these articles without going out of his way to find a regular market.
If the circumstances are appropriate and a small trader can do some business for personal gain on the pave ment to the advantage of the general public and without any discomfort or annoyance to the others, we do not see any objection to his carrying on the business.
Appreciating this analogy the municipalities of different cities and towns in the country have been allowing such traders.
The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or re passing and for no other use.
Proper regulation is, however, a necessary condition as otherwise the very object of laying out roads to facilitate traffic may be defeated.
Allowing the right to trade with out appropriate control is likely to lead to unhealthy competition and quarrel between traders and travelling public and sometimes amongst the traders themselves result ing in chaos.
The right is subject to reasonable restric tions under clause (6) of Article 19.
If the matter is examined in this light it will appear that the principle stated in Saghir Ahmad 's case in connection with transport business applies to the hawkers ' case also.
The proposition that all public streets and roads in India vest in the State but that the State holds them as trustee on behalf of the public, and the members of the public are entitled as bene ficiaries to use them as a matter of right, and that this right is limited only by the similar fights possessed by every other citizen to use the pathways, and further that the State as trustee is entitled to impose all necessary limitations on the character and extent of the user, should be treated as of universal application.
The provisions of the Municipal Acts should be construed in the light of the above proposition.
In case of ambiguity, they should receive a beneficial interpretation, which may enable the municipalities to liberally exercise their authority both, in granting permission to individuals for making other uses of the pavements, and, for removal of any encroachment which may, in their opinion, be constitut ing undesirable obstruction to the travelling public.
The provisions of the Delhi Municipal Corporation Act, 1957, are clear and nobody disputes before us that the Municipal Corporation of Delhi has full authority to permit hawkers and squatters on the side walks where they consider it practical and convenient.
In so far the Punjab Municipal Act 1911 1053 applying to the New Delhi area is concerned, the Bench constituted by three learned Judges observed in Pyare Lal 's case ; that the provisions did not authorise the municipality to permit stalls to be set up in the streets except temporarily on special occasions, like festi vals, etc.
and that the permission to the petitioner in that case had been wrongly granted initially.
We do not agree with these observations, although it appears that in the light of the other circumstances, indicated in the judgment, the decision was a correct one.
The provisions of both sections 173 and 188 should receive liberal construction, so that the New Delhi Municipal Committee may be in a position to exer cise full authority.
Indeed some of the documents on the records before us indicate that the Committee had been in the past actually permitting hawkers and squatters on pave ments in certain areas.
The controversy in the present cases, however, cannot be settled by what has been said earlier.
The claim of the petitioners before us is much higher.
They assert the right to occupy specific places on road pavements alleging that they have been so doing in the past.
As has been stated earlier, the facts have been disputed and individual cases will be considered separately in the light of the present judgment.
The argument, however, which has been pressed on behalf of the petitioners is that they have their fundamen tal rights guaranteed by Articles 19 and 21 of the Constitu tion to occupy specific places demarcated on the pavements on a permanent basis for running their business.
We do not think there is any question of application of Article 21 and we will be briefly indicating our reasons therefore later.
But can there be at all a fundamental right of a citizen to occupy a particular place on the pavement where he can squat and engage in trading business? We have no hesitation in answering the issue against the petitioners.
The petitioners do have the fundamental right to carry on a trade or busi ness of their choice, but not to do so on a particular place.
The position can be appreciated better in the light of two decisions of this Court in Fertilizer Corporation Kamgar Union vs Union of India, ; , and K. Rajendran vs State of Tamil Nadu, ; 19.
In the Fertilizer Corporation case the workmen of the respondent Corporation challenged the legality of the sale of certain plants and equipments of the Sindri Ferti lizer Factory inter alia on the ground that a large number of workers would be retrenched as a result of the sale.
They argued that the sale would deprive them of their fundamental right under Article 19(1)(g) to carry on their occupation as industrial workers.
A Bench of five Judges of this Court rejected the 1054 plea holding that Article 19(1)(g) confers a broad and general right which is available to all persons to do work of a particular kind and of their choice, but it does not confer the right to hold a particular job or to occupy a particular post of one 's choice.
The right to pursue a calling or to carry on an occupation is not the same thing as the right to work in a particular post.
If the workers were retrenched consequent upon and on account of the sale it would be open to them to pursue their rights and remedies under the labour laws.
But the closure of an establishment in which a workman for the time being was employed did not by itself infringe his fundamental right to carry on an occupation which is guaranteed by Article 19(1)(g).
"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 worker" This decision was followed in K. Rajendran vs State of Tamil Nadu, which arose out of a policy decision taken by the State of Tamil Nadu to abolish all the posts of part time Village Officers.
An Ordinance was promulgated for this purpose and was later replaced by an Act.
Rejecting the appeal of the appellants this Court held that the impugned Act did not violate Arti cle 19(1)(g) as it did not affect the right of the incum bents of posts to carry on any occupation of their choice, even though they may not be able to stick on to the post which they were holding.
The ratio of these decisions apply with full force to the cases where the right to pursue a trade or business is involved.
If the opposite view is taken and the plea of the petitioners is allowed a chaotic situa tion may follow.
They may be entitled to insist that they would carry on their business anywhere they like, either on the roads or in the government schools or hospitals or other public buildings.
They may like to enter the class rooms or the patient wards or any public office to advance their prospects.
As was observed in the Bombay Hawkers case ; , they can hold the society to ransom by squatting on the busy thoroughfare, thereby paralysing all civic life.
We do not find any merit in the argument rounded on Article 21 of the Constitution.
In our opinion Article 21 is not attracted in a case of trade or business either big or small.
The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to be connected together.
The case of Olga Tellis and others vs Bombay Municipal Corporation and others; , , heavily relied upon on behalf of the petitioners, is clearly distinguishable.
The petitioners in that case were very poor persons who had made pavements their homes existing in the midst of filth and squalor, which had to be seen to be believed.
Rabid dogs in search of 1055 stinking meat and cats in search of hungry rats kept them company.
They cooked and slept where they cased, for no conveniences were available to them.
Their daughters, coming of age, bathed under the nosy gaze of passers by, unmindful of the feminine sense of bashfulness.
They had to stay on the pavements, so that they could get odd jobs in the city.
It was not a case .of a business of selling articles after investing some capital, howsoever meagre.
It is significant to note that the judgment in Bombay Hawkers Union and others vs Bombay Municipal Corporation and Others, , and that in Olga Telils were delivered within a week, both by Y.V. Chandrachud, C.J. and some of the counsel appearing m two cases were common, and that while dealing with the rights of the squatting hawkers in the former case the learned Chief Justice confined the consideration of the right under Article 19(1)(g) of the Constitution.
Besides, the Court in the Olga Tellis affirmed the validity of section 314 of the Bombay Municipal Corporation Act on the ground that "Removal of encroachments on the footpaths or pavements over which the public has the right of passage or access, cannot be regarded as unreasonable, unfair or unjust.
" In this connection the Court further proceeded to say, "Footpaths or pavements are public properties which are intended to serve the convenience of the general public.
They are not laid for private use and indeed, their use for a pri vate purpose frustrates the very object for which they are carved out from portions of public streets.
The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security.
That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements.
There is no substance in the argu ment advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing repassing, are competing claims and that the former should be preferred to the latter.
No one has the right to make use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have the 1056 right to encroach upon pavements by construct ing dwellings thereon.
Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrians have but the limited right of using pavements for the purpose of passing and repassing.
So long as a person does not trans gress the limited purpose for which the pave ments are made, his use thereof is legitimate and lawful.
But, if a person puts any public property to a use for which it is not intended and is not authorised to use it, he becomes a trespasser.
The common example which is cited in some of the English cases (see, for exam ple, Hicknan vs Maisey, ) is that if a person, while using a highway for passage, sits down for a time to rest himself by the side of the road, he does not commit a trespass.
But, if a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his user of the pavement would become unauthorised.
" It is also worth noting that assurances had been given on behalf of the State Government in its pleading before this Court which was repeatedly mentioned in the judgment.
On behalf of some of the petitioners it was contend ed that in view of the inclusion of the word "socialist" in the Preamble of the Constitution by the 42nd Amendment greater concern must be shown to improve the condition of the poor population in the country, and every effort should be made to allow them as much benefit as may be possible.
There cannot be any quarrel with this proposition, but that by itself cannot remedy all the problems arising from pover ty.
Even the Constitution as it stood originally was commit ted to economic justice and welfare of the needy.
But for that reason either then or now the other provisions of the Constitution and the laws cannot be ignored.
It is, there fore, not possible to interpret the decision in Olga Tellis in the manner to interpret the decision in Olga Tellis in the manner suggested on behalf of the petitioners to bolster their case with the aid of Article 21.
During his argument Mr. Tarkunde fairly stated that the Municipal Committee may be entitled to regulate the squatting business of the petitioners, but they must make detailed schemes in this regard.
A serious concern was shown in the argument of the other learned advocates also alleging that corruption at large scale was 1057 rampant and huge amounts of money were being realised ille gally by some of the servants of the Municipalities from the poor hawkers.
No rules have been framed with respect to the choice of the persons, the area to be allowed to them or the rate of Tehbazari charges.
The permission to squat was being granted on daily basis or for very short periods to the great inconvenience to the hawkers and no machinery was available to hear their grievances.
A draft scheme has been prepared and filed on behalf of the petitioners with a suggestion that the respondents may be directed to adopt it.
On behalf of the respondents it was said that statutory provisions are already there in this regard, but they had to concede that they are too sketchy and incapable of meeting the need.
We are, in the circumstances, of the view that detailed necessary provisions, dealing with all relevant aspects, and capable of solving the problems arising in the situation in a fair and equitable manner, should be made; and, the respondents should proceed as soon as may be possi ble.
They will be well advised to consider the suggestions of the petitioners while finalising the schemes.
Due regard to the requirements of the relevant laws, e.g., and the Delhi Control of Vehicular and other Traffic on Roads and Streets Regulation, 1980 will have to be given.
We would, however, make 'it clear that the demand of the petitioners that the hawkers must be permitted on every road in the city cannot be allowed.
If a road is not wide enough to conveniently manage the traffic on it, no hawking may be permitted at all, or may be sanctioned only once a week, say on Sundays when the rush considerably thins out.
Hawking may also be justifiably prohibited near hospitals or where necessity of security measures so demands.
There may still be other circumstances justifying refusal to permit any kind of business on a particular road.
The demand on behalf of the petitioners that permission to squat on a particular place must be on a permanent basis also has to be rejected as circumstances are likely to change from time to time.
But this does not mean that the licence has to be granted on the daily basis; that arrangement cannot be convenient to anybody, except in special circumstances.
The authorities, while adopting a scheme, should also consider the question as to which portions of the pavements should be left free for pedestrians and the number of the squatters to be allowed on a particular road.
There should be rational basis for the choice of the licensees.
A policy decision should be taken in regard to the articles which should be permitted to be sold on the pavements.
It is common knowledge (as was taken note of in Bombay Hawkers case) that some 1058 of the hawkers in big cities are selling very costly luxury articles including sophisticated electronic goods, sometimes imported or smuggled.
The authorities will be fully justi fied to deny to such hawkers any facility.
They may frame rules in such a manner that it may benefit only the poor hawkers incapable of investing a substantial amount for starting the business.
Attempt should be made to make the scheme comprehensive, dealing with every relevant aspect, for example, the charges to be levied, the procedure for grant and revocation of the licences, et cetera.
We as a Court in a welfare State do realise the hardship to which many of the petitioners may be exposed if they are prevented from carrying on the business.
The only solution for this is the adoption of the policy of full employment, which even according to leading economists like Keynes will alleviate the problems of the unemployed to some extent.
But as students of economics we also realise that every human activity has the 'optimum point ' beyond which it becomes wholly unproductive.
It is for the Government to take reasonable steps to prevent movement of people from rural areas to urban areas.
That can be done by the develop ment of urban centers in rural areas removed from each other at least by one hundred miles.
This is more a matter of executive policy than for judicial fiat.
We hope and trust that in administering the laws in force the authorities will keep in view humane considerations.
With these observations we dispose of these petitions and remit them to the appro priate Division Bench for final disposal in accordance with this judgment.
KULDIP SINGH, J.
I have read the erudite judgment of L.M. Sharma, J, wherein it has been held that street trad ing, whether as an itinerant vendor/hawker or from a sta tionary position/receptacle/ kiosk/foot path, is a fundamen tal right guaranteed under Article 19(1)(g) of the Constitu tion of India.
The said right is obviously subject to rea sonable restrictions imposed by the State under Article 19(6) of the Constitution.
It has further been held that there is no fundamental right of a citizen to occupy a particular place in any street for the purpose of engaging himself in 'street trading. ' I respectfully agree with these findings arrived at by Sharma, J. I may, however, add few words to support these findings.
The guarantee under Article 19(1)(g) extends to practice any profession, or to carry on any occupation, trade or business. 'Profession ' means an occupation carried on by a person by virtue of his personal and specialised qualifica tions, training or skill.
The word 1059 'ocCupation ' has a wide meaning such as any regular work, profession, job, principal activity, employment, business or a calling in which an individual is engaged. 'Trade ' in its wider sense includes any bargain or sale, any occupation or business carried on for subsistence or profit, it is an act of buying and selling of goods and services.
It may inclUde any business carried on with a view to profit whether manual or mercantile. 'Business ' is a very wide term and would include anything which occupies the time, attention and labour of a man for the purpose of profit.
It may include in its form trade, profession, industrial and commercial opera tions, purchase and sale of goods, and would include any thing which is an occupation as distinguished from pleasure.
The object of using four analogous and overlapping words in Article 19(l)(g) is to make the guaranteed right as compre hensive as possible to include all the avenues and modes through which a man may earn his livelihood.
In a nut shell the guarantee takes into fold any activity carried on by a citizen of India to earn his living.
The activity must of course be legitimate and not anti social like gambling, trafficking in women and the like.
Street trading is an age old vocation adopted by human beings to earn living.
In the olden days the venue of trad ing and business has always been the public streets but, in the course of time fairs, markets, bazars and more recently big shopping complexes and fashionable plazas have come up.
In spite of this evolution in business and trade patterns the 'street trading ' is accepted as one of the legitimate modes of earning livelihood even in the most affluent coun tries of the world.
In England 'street trading ' has been regulated by various Acts of Parliament.
Paras 425 to 448 of Halsbury 's Laws of England, Fourth edition, Volume 40 deal with this subject.
Paras 427 to 430 pertain to 'street trading ' in districts as regulated by the provisions of Local Government (Miscellaneous Provisions) Act, 1982.
Paras 427 and 428 are reproduced as under: "427 Adoption of street trading code and designation of streets.
A district council may resolve that the street trading code is to apply to its district as from a specified day.
Where it has done so, it may by resolution designate any street in its dis trict as a 'prohibited street ' in which street trading is prohibited, a 'licence street ' in which steet trading is prohibited without a licence granted by the district council, or a 'consent street ' in which street trading is prohibited without its consent." 1060 "428.
Street trading licences.
Application for the grant or renewal of a street trading licence under the street trading code may be made by any person aged seventeen or over in writing to the district council.
The council is under a duty to grant the application unless it considers that it ought to be refused on one or more of the following grounds: (1) that there is not enough space for the applicant to trade without causing undue interference or inconvenience to street users; (2) that there are already enough traders trading in the street from shops or otherwise in the particular goods; (3) that the applicant desires to trade on fewer than the minimum number of days resolved on by the council; (4) that by reason of some conviction or otherwise he is unsuitable; (5) that he has been licensed by the council but has per sistently refused or neglected to pay its fees or charges; (6) that he has been granted a street trading consent by the council but has refused or neglected to pay its fees; (7) that he has without reasonable excuse failed to avail himself to a reasonable extent of a previous licence.
The licence specifies the street in which, days on which and times between which, and describes the articles in which, the licence holder is permitted to trade, and may contain such subsidiary terms as the council thinks reasona ble.
Unless previously revoked or surrendered, it remains valid for twelve months or such period as is specified in it, although if the council resolves that the street be designated a prohibited street the licence ceases to be valid when the resolution takes affect.
The council may at any time revoke a licence on grounds similar to heads (1), (4), (5) and (7) above, and the licence holder may at any time surrender his licence to the council.
On receiving an application for the grant or renewal of a 1061 licence, the council must within a reasonable time either grant the licence as applied for, or serve on the applicant a notice specifying, with its grounds, its proposal to refuse the application, to grant a licence on different principal terms, to grant a licence limited to a particular place in a street, to vary the principal terms or to revoke a licence, and stating that within seven days of receiving the notice the applicant may by written notice require the council to give him the opportuni ty of making representations.
In this case the council may not determine the matter until either the applicant has made representations, or the time for doing so has elapsed, or the applicant has failed to make the representa tions which he required the council to allow him to make.
A person aggrieved by certain refus als or decisions of a council may appeal to a magistrates ' court, and appeal from the magis trates ' decision lies to the Crown Court.
The council must give effect to the court 's deci sion.
If a licence holder applies for the renewal of a licence before it expires, the old licence remains valid until a new licence is granted or during the time for appealing or whilst an appeal is pending, and where a council decides to vary the principal terms of a licence or to revoke it, the variation or revocation does not take effect during the time for appealing or whilst an appeal is pending.
A licence holder may employ assist ance without any further licence being re quired.
" Paras 431 to 448 relate to 'street trading ' in Greater London and in the city of London.
London Country Council (General Powers) Act, 1947 and City of London (Various Powers) Act, 1965 provide for designation of streets by the London Borough Council in respect of which applications for grant of 'street trading ' licences are entertained.
There are provisions for the registration of street traders.
The procedure, for grant of Annual licences and the grounds on which such licences may be refused, has been laid down.
There is a complete code, in the shape of various statutes, which regulates the business of 'street trading ' in England.
Trading in the streets of London from a stationary position is a common sight.
Even in the famous Oxford street which is always over crowded, there are kiosks, receptacles and 1062 stalls at every street junction from where fruits, confec tionary, soft drinks, souvenirs, newspapers and various other articles are sold. 'Street trading ' is thus one of the traditionally recognised business or trade in England.
This is so in spite of the fact that there is a complete social security in that country and as such no compulsion on the citizens to be driven to street trading out of poverty or unemployment.
On the other hand abysmal poverty in India warrants outright rejection of the argument that nobody has a right to engage himself in 'street trading '.
"Justice, social, economic and political" and "citizens, men and women equally, have the right to an adequate means to livelihood" which the Constitution of India promises is still a distinct dream.
This Court, in various judgments, has reminded the Government of its constitutional obligations to ameliorate the lot of the poor in India.
Nothing much has been achieved.
An alarming percentage of population in India is still living below poverty line.
There are millions of registered unemployed.
The Government, in spite of constitu tional mandate is unable to provide them with employment.
But when, by gathering meagre resources, they try to employ themselves as hawkers or street traders, they cannot be stopped on the pretext that they have no right, rather the Government should render all help to rehabilitate them.
Mr. Tarkunde contended that street trading, being a common law right, has to be treated as a fundamental right under Article 19(l)(g) of the Constitution of India.
It is not necessary to examine the matter from this aspect.
Once street trading is accepted as legitimate trade, business or occupation it automatically comes within the protection guaranteed under Article 19(1)(g) of the Constitution of India.
There is no dispute that public streets are primarily to be used by the public generally as pathways for passing and repassing but there are other ancillary purposes for which the public streets can be used as of right.
In Manzur Hasan vs Muhammed Zaman, 52 I.A. 61 the Privy Council held as under: "In India, there is a right to conduct a religious processionwith 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.
A civil suit for a declaration lies against those who interfere with a religious procession or its appropriate observance.
" In Saghir Ahmed vs The State of U. P. and others, [1955] 1 S.C.R. 1063 707, this Court held that a business of transporting passen gers with the aid of vehicles was a trade or business and as such was guaranteed under Article 19(1)(g) of the Constitu tion of India.
In Himat Lal K. Shah vs Commissioner of Police, Ahmedabad and another; , , this Court held that right to hold a public meeting on a public street is a fundamental right under Article 19(1)(a) and (b) of the Constitution of India and the same cannot be arbi trarily denied.
There is thus no justification to deny the citizens of their right to earn livelihood by using the public streets for the purpose of trade and business.
In India there are large number of people who are en gaged in the business of 'street trading '.
There is hardly a household where hawkers do not reach.
The house wives wait for a vegetable vendor or a fruit seller who conveniently delivers the daily needs at the door step.
The petitioners before us are street traders of Delhi and New Delhi areas.
Some of them have licences/Tehbazari from Municipal Corpora tion of Delhi/New Delhi Municipal Committee but most of them are squatters.
There is practically no law regulating street trading in Delhi/New Delhi.
The skeletal provisions in the Delhi Municipal Corporation Act, 1957 and the Punjab Munici pal Act, 1911 can hardly provide any regulatory measures to the enormous and complicated problem of street trading in these areas.
In Bombay Hawkers ' Union and others vs Bombay Municipal Corporation and others, this Court suggested that schemes be framed to regulate the hawking business by creating hawking and non hawking zones.
Again in Municipal Corporation of Delhi vs Gumam Kaur, ; this Court observed as under: " .
We feel that the Municipal Corpora tion authorities in consultation with the Delhi Development Authority should endeavour to find a solution on the lines as suggested in Bombay Hawkers ' Union i.e. by creating Hawking and Non Hawking Zones and shifting the pavement squatters to Areas other than Non Hawking Zones.
The authorities in devising a scheme must endeavour to achieve a twin object viz., to preserve and maintain the beauty and the grandeur of this great historic city of Delhi from an aesthetic point of view, by reducing congestion on the public streets and removing all encroachments which cause ob structions to the free flow of traffic, and rehabilitate those unfortunate persons who by force or circumstances, 1064 are made to ply their trade or business on pavements or public streets.
" Street Trading being a fundamental right has to be made available to the citizens subject to Article 19(6) of the Constitution.
It is within the domain of the State to make any law imposing reasonable restrictions in the interest of general public.
This can be done by an enactment on the same lines as in England or by any other law permissible under Article 19(6) of the Constitution.
In spite of repeated suggestions by this Court nothing has been done in this respect.
Since a citizen has no right to choose a particular place in any street for trading, it is for the State to designate the streets and earmark the places from where street trading can be done.
In action on the part of the State would result in negating the fundamental right of the citizens.
It is expected that the State will do the needful in this respect within a reasonable time failing which it would be left to the courts to protect the rights of the citizens.
R.S.S. Petitions dis posed of.
| IN-Abs | The petitioners in these special leave petitions and writ petitions claim the right to engage in trading business on the pavements of roads of the city of Delhi.
The special leave petitions are against the judgments of the Delhi High Court dismissing their claim.
It is contended on behalf of the petitioners that (i) they were allowed by the respondents to transact their business by occupying a particular area on the pavements on payment of certain charges described as Tehbazari and the refusal by the municipal authorities to permit them to continue with their trade is violative of their fundamental right guaranteed under Article 19(1)(g) of the Constitution; and (ii) the petitioners are poor people and depend on their business for their livelihood and if they are not allowed to occupy some specific places demarcated on the pavements on a permanent basis for conducting their business they may starve which will lead to violation of their fundamental right under Article 21 of the Constitution.
The respondents, on the other hand, contend that nobody has got a legal right to occupy exclusively a particular area on the road pavement for pursuing a trading business and nobody can claim any fundamental right in this regard whatsoever.
1039 Disposing of the petitions and remitting the cases to the appropriate Division Bench for final disposal in accord ance with this judgment, this Court, HELD: E.S. Venkataramiah, C J, section Natarajan, L.M. Sharma and N.D. Ojha ,JJ.] Per L.M. Sharma, J. (1) A member of the public is entitled to legitimate user of the road other than actually passing or re passing through it, provided that he does not create an unreasonable obstruction which may inconvenience other persons having similar right to pass and does not make excessive use of the road to the prejudice of the others.
Liberty of an individu al comes to an end where the liberty of another commences.
[1050C, A B] (2) What will constitute public nuisance and what can be included in the legitimate user can be ascertained only by taking into account all the relevant circumstances including the size of the road, the amount of traffic and the nature of the additional use one wants to make of the public streets.
This has to be judged objectively and here comes the role of public authorities.
[1051E] (3) The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated, cannot be denied on the ground that the streets are meant exclusively for passing or re passing and for no other use.
Proper regulation is, however, a necessary condition as otherwise the very object of laying out roads to facilitate traffic may be defeated.
Allowing the right to trade without appropriate control is likely to lead to unhealthy competition and quarrel between traders and traveling public and sometimes amongst the traders themselves resulting in chaos.
The right is subject to reasonable restrictions under clause (6) of Article 19.
[1052C D] (4) The proposition that all public streets and roads in India vest in the State but that the State holds them as trustee on behalf of the public and the members of the public are entitled as beneficiaries to use them as a matter of right, and that this right is limited only by the similar rights possessed by every other citizens to use the pathways and further that the State as trustee is entitled to impose all necessary limitations on the character and extent of the user, should be treated as of universal application.
The provisions of the Municipal Acts should be 1040 construed in the light of the above proposition and they should receive a beneficent interpretation.
[1052E G] M.A. Pal Mohd. vs R.K. Sadarangani, A.I.R. (1985) Mad 23; C.S.S. Motor Service vs Madras State, A.I.R. 1953 Mad. 279; Saghir Ahmad vs The State of U.P. & Ors., ; ; liarper vs G.N. Haden & Sons Ltd., ; Bombay Hawkers Union & Ors.
vs Bombay Municipal Corporation (5) The petitioners do have the fundamental right to carry on a trade or business of their choice, but not to do so on a particular place, as circumstances are likely to change from time to time.
But that does not mean that the licence has to be granted on a daily basis; that arrangement cannot be convenient to anybody, except in special circum stances.
[1053F, 1057F] Fertilizer Corporation Kamgar Union vs Union of India, ; ; K. Rajendran vs State of Tamil Nadu, ; , referred to.
(6) Article 21 is not attracted in the case of trade or business either big or small.
The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to be connected together.
[1054G] Olga Tellis & Ors.v.
Bombay Municipal Corporation & Ors., ; , distinguished.
(7) The provisions of the Delhi Municipal Corporation Act, 1957, are clear and the Municipal Corporation of Delhi has full authority to permit hawkers and squatters on the side walks where they consider it practical and convenient.
[1052G H] (8) The provisions of the Punjab Municipal Act, 1911, as applicable to New Delhi area, should receive a liberal construction so that the New Delhi Municipal Committee may be in a position to exercise full authority to permit hawk ers and squatters on pavements in certain areas.
[1053A C] Pyarelal vs N.D.M.C., ; overruled.
(9) A scheme should be drawn up as soon as possible contain ing 1041 detailed necessary provisions dealing with all relevant aspects, and capable of solving the problems arising in the situation in a fair and equitable manner.
[1057B C] (10) The demand of the petitioners that hawkers must be permitted on every road in the city cannot be allowed.
If a road is not wide enough to conveniently manage the traffic on it, no hawking may be permitted at all, or may be sanc tioned only once a week, say on Sundays when the rush con siderably thins out.
Hawking may also be justifiably prohib ited near hospitals or where necessity of security measures so demands.
There may still be other circumstances justify ing refusal to permit any kind of business on a particular road.
[1057E] (11) Some of the hawkers in big cities are selling very costly luxury articles including sophisticated electronic goods, sometimes imported or smuggled.
The authorities will be fully justified to deny to such hawkers any facility.
They may frame rules in such manner that it may benefit only the poor hawkers incapable of investing a substantial amount for starting the business.
Attempt should be made to make the scheme comprehensive, dealing with every relevant as pect, for example, the charges to be levied, the procedure for grant and revocation of the licences, etc.
[1057H 1058B] Per Kuldip Singh, J. (1) The guarantee under Article 19(1)(g) extends to practice any profession, or to carry on any occupation, trade or business.
The object of using four analogous and overlapping words in Article 19(1)(g) is to make the guaran teed right as comprehensive as possible to include all the avenues and modes through which a man may earn his liveli hood.
In a nut shell the guarantee takes into its fold any activity carried on by a citizen of India to earn his liv ing.
The activity must of course be legitimate and no anti social like gambling, trafficking in women and the like.
[1058H 1059C] (2) Once street trading is accepted as legitimate trade, business or occupation it automatically comes within the protection guaranteed under Article 19(1)(g) of the Consti tution of India.
[1062E] (3) Street trading is an age old vocation adopted by human beings to earn living.
It is one of the traditionally recognised business or trade in England.
This is so in spite of the fact that there is a complete social security in that country and as such no compulsion on the citizens to be 1042 driven to street trading out of poverty or unemployment.
On the other hand, abysmal poverty in India warrants outright rejection of the argument that nobody has a right to engage himself in 'street trading '.
[1059D,1062A B] (4) There is no justification to deny the citizens of their right to earn livelihood by using the public streets for the purpose of trade and business.
[1063B] Saghir Ahmad vs The State of U.P. & Ors., ; ; Manjur Hasan vs Mohammed Zaman, 52 I.A. 61; Himat Lal K. Shah vs Commissioner of Police Ahmedabad & Anr.
, ; , referred to.
(5) Street trading being a fundamental right has to be made available to the citizens subject to Article 19(6) of the constitution.
It is within the domain of the State to make any law imposing reasonable restrictions in the inter est of general public.
This can be done by an enactment on the same lines as in England or by any other law permissible under Article 19(6) of the Constitution.
[1064B] Bombay Hawkers Union & Ors.
vs Bombay Municipal Corpora tion & Ors., ; Municipal Corporation of Delhi vs Gurnam Kaur, ; , referred to.
(6) The skeletal provisions in the Delhi Municipal Corporation Act, 1957 and the Punjab Municipal Act, 1911 can hardly provide any regulatory measures to the enormous and complicated problems of street trading in these areas.
|
ivil Appeal No. 1045 of 1972.
From the Judgment and Order dated 7.2.1972 of the Madras High Court in Appeal No. 549 of 1963.
K. Ramkumar for the Appellants.
K. Raj Choudhary, B.R. Agarwal and Ms. Sushma Manchanda for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by Special Leave against a judgment of a Division Bench of the Madras High Court deliv ered on February 7, 1972.
Respondents Nos.
1 to 5 along with one other person filed a representative suit on behalf of themselves and other members of the Thousand Yadhava Community residing in Ramayanachavadi Street and the other adjoining lanes in North Masi Street, Madurai Town and adjoining villages against original appellant No. 1 herein, for an order 3 directing him to render true and proper accounts of the management of the properties of the Thousand Yadhava Commu nity including the Sri Ramasami Sri Navaneetha Krishnasami Devasthanam Temples and their properties and to pay to the plaintiffs the amount ascertained as payable on such rendi tion of accounts with interest and other reliefs.
Original appellant No. 1 herein was the trustee of the said temples.
He died during the pendency of the appeal before us and his two sons have been joined as appellants Nos. 1(i) to 1(ii) in this appeal.
We propose to refer to the parties by their descriptions in the suit for the sake of convenience.
Very briefly stated, according to the plaintiffs, the said temples were private religious trusts and the defendant had committed several acts of mismanagement in respect of the properties of the said trusts.
The defendant denied these allegations.
He, inter alia, contended that the suit as framed was not maintainable in law, in view of the provi sions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as "the said Act.").
The Trial Court dismissed the suit on the ground that it was barred by the provisions of the said Act.
The Trial Court held that the said temples were not private temples belonging to the aforesaid community, namely, Thou sand Yadhava Community.
The Trial Court took the view that the Thousand Yadhava Community must be regarded as a section of the Hindu Community and in that case both the temples would be covered by the provisions of section 6(20) of the said Act.
Sub section (20) of section 6 defines the meaning of the word 'temple ' for the purpose of the said Act and, very briefly stated, lays down that it is a place used as a place of public religious worship and dedicated to or for the benefit of the Hindu Community or any section thereof, as a place of public religious worship.
The Trial Court took the view that, although this question could be decided primarily only by the Endowment Board and Civil Court has no jurisdiction to go into it, it could go into that question incidentally as was done by the Trial Court.
As a conse quence of this conclusion, the Trial Court held that the suit was barred by the provisions of the said Act and was not maintainable at law.
The plaintiffs preferred an appeal against this decision to the Madras High Court.
A Division Bench of the Madras High Court after examining the provi sions of the said Act held that the Trial Court was not right in dismissing the suit in toto even with regard to the relief of accounting.
The High Court held that defendant No. 1 (original appellant before us) admitted that he was elect ed in 1949 as the trustee of the said temples at a meeting of the members of the community.
The 4 said Act does not contain any provision for rendition of accounts.
A party seeking relief of accounting cannot ap proach the Deputy Commissioner or any other authority under the said Act and hence, the Civil Court is not barred either expressly or by necessary implication from entertaining a suit in so far as it was for the relief of accounting.
Following upon this reasoning, the court allowed the appeal and passed a preliminary decree against defendant No. 1 for rendition of accounts while dismissing the suit in all other respects.
The High Court did not decide as to whether the said temples were private temples or could be regarded as public religious endowments falling within the definition of the term 'temple ' as defined in sub section (20) of section 6 of the said Act.
Defendant No. 1 along with some others filed a petition for Special Leave before this Court and by an order dated April 24, 1972.
Special Leave was granted by this Court but was confined to the question whether it was within the power of the Civil Court to direct accounts to be taken without deciding the question whether the temple is a public temple or a private temple.
At the hearing of the appeal before us, Mr. Ram Kumar, learned Counsel for the appellants conceded that if the said temples were private temples as contended by the plaintiffs in the said suit, the defendant as the trustee was liable to render accounts of his management of the said trust to them as beneficiaries.
It was, however, submitted by him that in case the said temples were not private temples but were temples as defined in sub section (20) of section 6 of the said Act to which we have already referred earlier, the suit for rendition of accounts was not maintainable in view of the provisions of the said Act and hence, it was not open to the High Court to have passed a decree for rendition of accounts without deciding whether the said temples were public temples or private temples.
He drew our attention to sub section (20) of section 6 of the said Act which defines the term 'temple ' for the purpose of the said Act.
We have already referred to that definition of the said term 'tem ple ' earlier.
Suffice it to state here that under that definition only public temples of the nature stated earlier could be regarded as temples.
Sub section (17) of section 6 defines the term 'religious endowment ' or 'endowment ' and it is sufficient for the purpose of this appeal to note that it means property belonging to or given or endowed for the support of maths or temples for the purposes set out there in.
Section 108 of the said Act runs as follows.
5 "108.
Bar of suits in respect of administra tion or management of religious institutions etc.
No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be insti tuted in any.
Court of law, except under, and in confirmity with, the provisions of this Act.
" Section 63 of the said Act deals with the power of the Deputy Commissioner to hold inquiries into and decide the disputes and matters set out therein.
It inter alia confers on him the power to hold inquiries in connection with the property and funds of the temples within the meaning of the said Act.
Against the order of the Deputy Commissioner, an appeal is provided under section 69 to the Commissioner and section 70 lays down that a person aggrieved by an order passed by the Commissioner under the provisions set out in clauses (i) and (ii) of sub section (1) thereof can file a suit in a Civil Court.
Sub section (2) of section 70 pro vides that an appeal shall lie to the High Court against the decree of the Civil Court under sub section (1) of section 70.
Chapter VIII of the said Act deals with the topic of Budgets, Accounts and Audit.
Section 87 of the said Act provides that the trustee of every religious institution shall keep regular accounts of all receipts and disburse ments and provides that these accounts have to be audited by the auditors appointed in a prescribed manner.
After the audit is completed, the auditor is required under section 88 to send a report to the Commissioner or the Deputy Commis sioner or the Assistant Commissioner as provided therein.
Section 90 deals with the rectification of defects disclosed in the audit and order of surcharge against trustee etc.
It is.interesting to note that sub section (6) of section 90 provides that an order of surcharge under this section against a trustee shall not bar a suit for accounts against him except in respect of the matters finally dealt with by such order.
In the appeal before us a perusal of the plaint shows that the suit was filed not on behalf of any particular beneficiary or group of beneficiaries but by a certain persons claiming to belong to the beneficiary community, namely, the Thousand Yadhava Community, and the suit was a representative suit instituted on behalf of themselves and other members of the community.
There is no doubt that in respect of a public trust, beneficiaries as a class can file a suit against the trustee for rendition of accounts, sub ject to the bar imposed by.
6 section 92 of the Code of Civil Procedure, 1908.
It was with a view to prevent ' reckless and harassing suits being brought against the trustees of public trusts that section 92 was enacted requiring that two or more persons having interest in the suit could institute such a suit only with the consent in writing of the Advocate General.
However, we find that in view of the provisions of section 5 of the said Act, sections 92 and 93 of tile Code of Civil Procedure have ceased to apply to the Hindu Religious and Charitable Endow ments in the concerned State.
Hence the ' bar, if any, to .the institution of a suit like this has to be found only in the provisions of the Act.
We have already set out earli er the provisions of section 108 of the said Act which is analogous to section 93 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as "the said Act of 1951") which was repealed by the said Act.
Many of the powers of the Deputy Commissioner under the said Act to which we have already referred earlier are similar to the powers conferred by section 57 of the said Act of 1951.
Sections 63 and 64 of the said Act which deal with the powers of the Deputy Commissioner are in pari materia with the provisions of sections 57 and 58 of the said Act of 1951.
Section 90(6) of the said Act provides that an order of surcharge under this section made against the trustee shall not bar a suit for accounts against him and we find a similar provision in sub section (7) of section 74 of the said Act of 1951.
The schemes of the two Acts are largely similar.
In Sri Vedagiri Laxmi Narasimha Swami Temple vs Induru Pattabhirami Reddy; , a question arose before this Court as to whether a suit by the present trus tee against the previous trustee of a temple was barred by reason of the provisions of the said Act of 1951.
It was argued in that case that the Act in question provides a complete machinery for deciding disputes in regard to ac counts and, therefore, no suit for accounting against an ex trustee can be filed at all in a Civil Court.
After analysing the scheme of the said Act of 1951, and the provi sions of the relevant sections of that Act, which we have referred to earlier that argument was rejected by a Division Bench of this Court.
It was pointed out by Subba Rao, C.J., who delivered the judgment of this Court that the scope of the auditor 's investigation is limited.
It is only an effec tive substitute for the trustee himself furnishing an audit ed account.
It was held that Chapter VII of the said Act of 1951 only provides for a strict supervision of the financial side of the administration.
Chapter VII does not provide for determining a dispute in respect of rendition of account and does not bar a suit for that relief.
Section 74(7) of the said Act of 1951 was not a bar to the maintainability of such a suit.
The same reasoning applies to the case before us.
In our opinion, Chapter VIII of the said Act has no bearing on the ques 7 tion of the liability of a trustee to render accounts to the beneficiaries as a group or class and it does not provide for determining or deciding a dispute in respect of such rendition of accounts and hence, section 108 of the said Act does not bar a suit like the one filed by respondent No. 1 before us.
We are of the view that the High Court did not commit any error in passing a decree for rendition of ac counts without deciding the question whether a temple was a public or private trust.
In the result, the appeal fails and is dismissed with costs fixed at Rs.2,000 to be divided between the respond ents equally.
Y. Lal Appeal dis missed.
| IN-Abs | This is defendant 's appeal by Special Leave.
Respondents 1 to 5 alongwith one other person filed a representative suit on behalf of themselves and other members of Thousand Yadhava Community against the appellant No. 1 Defendant for an order directing him to render true accounts of the management of the properties of the Thou sand Yadhava Community including the Sri Ramasami Sri Navneetha Krishnasami Devasthanam Temples and their proper ties and pay to them the amount ascertained as payable on such rendition of accounts.
The appellant was the Trustee of the said temples.
The case of the plaintiffs respondents was that the said temples were private religious trusts and the appellant as trustee had committed several acts of misman agement in respect of the properties.
The appellant defendant denied those allegations and contended that the suit as framed was not maintainable in view of the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
The Trial Court dismissed the suit.
It held that the said temples were not private temples belonging to the said community, and that both the temples were covered by the provisions of section 6(20) of the Act, and as such the suit was barred by the provisions of the Act and thus not main tainable.
The plaintiffs preferred appeal to the High Court against the order of the Trial Court.
The High Court allowed the plaintiffs appeal and passed a preliminary decree against the appellant No. 1 defendant for rendition of accounts while dismissing the suit in other respects.
The High Court took the view that a party seeking relief of accounting cannot approach the Deputy Commissioner or any other authority under the Act and hence the Civil Court was not barred either expressly or by necessary implication from entertaining the suit so far 2 as it was for accounting.
However the High Court did not decide the question as to whether the Temples were private temples or could be regarded as public religious endowments.
Defendant No. 1 filed the appeal, by special leave.
Dismissing the appeal, this Court, HELD: There is no doubt that in respect of a public trust, beneficiaries as a class can file a suit against the Trustee for rendition of accounts subject to the bar imposed by Section 92 of the Code of Civil Procedure 1908.
[5H; 6A] Chapter VIII of the Act has no bearing on the question of the liability of a trustee to render accounts to the beneficiaries as a group or class and it does not provide for determining or deciding a dispute in respect of such rendition of accounts and hence, Section 108 of the said Act does not bar a suit like the one filed by Respondent No. 1.
[6H; 7A B] Sri Vedagiri Laxmi Narasimha Swami Temple vs Induru Pattabhirami Reddy, ; , referred to.
|
: Criminal Appeal No. 3 18 of 1989.
From the Judgment and Order dated 15.6.88 of the Kerala High Court in Original Petition No. 3299 of 1988.
R. Sasiprabhu and P.K. Manohar for the Appellant.
B. Dutta, Additional Solicitor General, P. Parmeshwaran, Pramod Swarup and T.T. Kunhikannan for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This appeal under Article 136 of the Constitution of India is preferred by the appellant, Abdul Rahman questioning the validity and correctness of the order of detention passed by the first Respondent on 7.10.1987, in exercise of the powers conferred by section 3(1)(iii) and 3(1)(iv) of the Conservation of Foreign Ex change and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) (hereinafter referred to as the 'Act ') whereby detaining the appellant 's brother Sri T.A. Sirajudeen @ Siraj (the detenu herein) with a view to pre venting the detenu from engaging in transporting or conceal ing or keeping smuggled gold or dealing in smuggled gold otherwise than by engaging in transporting or concealing or keeping smuggled gold.
Though the impugned order was passed on 7.10.1987, the detenu 949 was arrested on 18.1.1988 and detained in the Central pris on, Trivandrum from 19.1.1988 onwards.
The detenu was fur nished with copies of the grounds of detention and other connected material documents on 21.1.1988.
The detenu made a representation to the third Respondent praying for revoca tion of the detention order on 25.1.1988 which was rejected on 11.4.1988.
Meanwhile on 11.2.1988 a declaration by the third Respondent under Section 9(1) of the Act was made, whereby the detenu was ordered to be detained for a contin ued detention for a further period of 6 months over one year.
The first Respondent made a reference under section 8 of the Act on 5.5. 1988 to the Advisory Board which has reported that there is in its opinion sufficient cause for the detention of the detenu.
The material facts which neces sitated the passing of the detention order can be briefly stated thus: On 30.11.1986, Superintendent of Central Excise, Manjeri Range and party searched the permanent residence of the detenu in his presence which did not result in the seizure of any contraband goods or the recovery of any incriminating documents.
But on questioning by the officer, the detenu confessed that he had buried eleven gold biscuits in the backyard of his house.
He dug up the spot and produced the relavent gold biscuits which were kept concealed under the ground.
Each of the gold biscuits was found wrapped in black carbon paper bearing foreign markings and weighing 10 tolas each with the purity of 24 carats.
The total weight of the eleven gold biscuits was 1282.600 gms.
, the market value of which as on that date was Rs.3,14,237.
The contraband goods were seized under a Mahazar.
On 30.11.1986 a statement was recorded from the detenu by the Superintendent of the Cen tral Excise under section 108 of the Customs Act in which the detenu had given a detailed note of his involvement in the smuggling activities.
On 9.12.1986 also the Superintend ent of Central Excise searched the residence of the detenu in the reasonable belief that there was concealment of more smuggled gold in the said house.
During this search, the detenu pointed out to the Superintendent one packet which had been placed in the thatched roofing of his house.
The Superintendent took out the packet and it was found contain ing four gold ingots bearing foreign markings weighing 466.400 gms.
with 24 carat purity, all to the value of Rs. 1,14,268.
The detaining authority taking into consideration of the seizure effected on two occasions and the statement of the detenu admitting his involvement in the prejudicial activities mentioned in the grounds of detention reached its subjective satisfaction of the necessity of passing the impugned order and passed the same on 7.10.1987.
The appel lant filed a Writ Petition under Article 950 226 of the Constitution of India for quashing the impugned order of detention, but was not successful.
Hence this appeal.
Of the several grounds urged in the Special Leave Peti tion, the learned counsel appearing on behalf of the appel lant stressed only the following two contentions seeking to set aside the order of detention.
(1) As there is no proximity in time to provide a rational nexus between the alleged prejudicial activity, that is the seizure of the gold biscuits on 30.11.1986 and the pass ing of the impugned order of detention after 11 months i.e. on 7.10.1987 and as there is no reasonable and satisfactory explanation given by the first Respondent for this undue and unreasonable delay, the order is liable to be quashed on the ground that the credible chain between the grounds of the alleged criminal activities and the purpose of detention is snapped.
Further the unreasonable and unex plained delay between the date of the order of detention on 7.10.87 and the date of arrest of the detenu after a lapse of 3 months on 18.1.1988 throws considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to an infer ence that there was no real and genuine sub jective satisfaction as regards the necessity to detain the detenu with a view to preventing him from acting in prejudicial manner.
(2) The representation submitted by the detenu to the third Respondent on 25.1.1988 challenging the impugned order clamped upon him had been disposed of by a delay of 72 days i.e. on 11.4.1988 and this long and avoid able delay vitiates the order of detention as being violative of Article 22(5) of the Con stitution of India.
We shall now deal with the first contention which is referred under ground Nos.
II & III of the Grounds in the Special Leave Petition which read thus: "For that the High Court ought to have seen that the petitioner was detained on the basis of a alleged solitary incident occurred on 30.11.1986 and the detention order was passed after lapse of 11 months, i.e. on 7.10.1987, and the petitioner was arrested and detained on 19.1.1988." "For that the High Court ought to have seen that there was 951 no proximity between the alleged incident and subsequent detention.
The time factor has not been considered by the detaining authority and he has mechanically passed the detention order without paying any attention to the loose grounds and quick sands in the reports of the sponsoring officer.
" The above two contentions are sought to be answered by the first Respondent in his counter stating that the inves tigating officer had to question a number of persons and to conduct extensive search of various premises in different places in connection with the information gathered during interrogation and the Superintendent issued summons to the brothers of the detenu, namely, Haneefa and Abdul Rahman for appearance on 10.3.87 and 3.3.87 respectively, but Abdul Rahman was absconding and that on 10.2.87, the statement of C.K. Madhavan referred to in the statement of the detenu was recorded and that on 18.5.1987 show cause notices were issued to persons connected with this case and immediately after completion of the investigation the Customs authori ties sponsored the proposal for detention of the detenu by their letter dated 26.8.1987 and that the proposal was screened by the Screening Committee on 11.9.1987 and there after the detention order was passed on 7.10.1987.
Coming to the delay in securing the detenu by arrest the explanation is given as follows: "The detention order was forwarded to the Malappuram Superintendent of Police for its execution by letter dated 9.10.
The Police executed the order on 18.1.
From the above facts it is clear that there is no delay in passing or executing the order of detention as alleged in the petition for Special Leave to Appeal.
" There is no denying the fact that the impugned order has been passed after lapse of 11 months from the date of sei zure of the eleven gold biscuits from the back courtyard of the house of the detenu.
As repeatedly pointed out by this court that there is no hard and fast rule that merely be cause there is a time lag between the offending acts and the date of order of detention, the causal link must be taken to be snapped and the satisfaction reached by the detaining authority should be regarded as unreal, but it all depends upon the facts and circumstances of each case and the nature of the explanation offered by the detaining authority for the delay that had occurred in passing the 952 order.
There is a catena of decisions on this point, but we feel that it is not necessary to recapitulate all those decisions except a salient few.
This court in Golam Hussain alias Garna vs Commnr.
of Police of Calcutta & Ors.
, ; wherein there was a time lag of 6 months between the incident and the date of order of detention while an swering a similar contention, laid down the ratio of proxim ity as follows: "No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil.
To rule other wise is to sanction a simulacrum of a statuto ry requirement.
But no mechanical test by counting the months of the interval is sound.
It all depends on the nature of the acts relied on, grave and determined or less seri ous and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation.
We have to inves tigate whether the causal connection has been broken in the circumstances of each case.
Gora vs State of West Bengal, ; has held thus: There is, therefore, no hard and fast rule that merely because there is a time lag of about six months between the 'offending acts ' and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal.
Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case.
The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the 'offending acts ' and the order of deten tion.
It is a subsidiary test evolved by the court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drawn it.
The prejudicial act of the detenu may in a given case be of such a character as to sug gest that it is a part of an organised opera tion of a complex of agencies collaborating 953 to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future.
" In Hemlata Kantilal Shah vs State of Maharashtra ; , this Court held: "Delay ipso facto in passing an order of detention is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable.
What is required by law is that the delay must be satisfactori ly examined by the detaining authority.
" See also SK Serajul vs State of West Bengal, ; Rekhaben Virendra Karadia vs State of Gujarat & Ors., ; ; Harnek Singh vs State of Punjab, ; Shiv Ratan Makin vs Union of India and Others, ; Smt.
K. Aruna Kumari vs Government of Andhra Pradesh and Ors., ; and Rajendra Kumar Natvarlal Shah vs State of Gujarat and Others, ; In a recent decision in Yogendra Murari vs State of U.P. and Others ; , this Court has reiterated the earlier view consistently taken by this Court observing: ". . it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay . .
It is necessary to con sider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or not." The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proxi mate to the time when the order is made or the live link between the prejudicial activities and the purpose of deten tion is snapped depends on the facts and circumstances of each case.
No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive 954 guidelines can be laid down in that behalf.
It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention.
However, when there is undue and long delay between the prejudicial activities and the pass ing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.
Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legiti mate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detain ing the detenu with a view to preventing him from acting in a prejudicial manner.
In the light of the above proposition of law, we shall now examine the first contention which has been raised for the first time before this Court.
From the reading of the counter affidavit filed on behalf of the first Respondent, it is seen that the detaining authority has attempted to explain the laxity that has occasioned in passing the im pugned order, but miserably failed in explaining the delay of three months in securing the arrest of the detenu from the date of the passing of the order, and keeps stunned silence on that score.
The learned counsel appearing for the first respondent when queried by this Court whether he could give any reason for this undue delay in arresting the detenu on 18.1.1988 in pursuance of the impugned order of detention made on 7.10.1987, he has frankly admitted that he could not do so rightly so in our view in the absence of any expla nation in the counter affidavit.
The Superintendent of Police, Malapurram to whom the detention order was forwarded for execution has not filed any supporting affidavit ex plaining the delay in securing the arrest of the detenu.
Under these circumstances, we hold that leaving apart the question of delay in passing the order of detention from the date of the seizure of the gold, the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months from the date of the passing of the detention order and this non explanation in our view throws a considerable doubt on the genuineness of the subjective satisfaction of the de taining authority 955 vitiating the validity of the order of detention.
The next contention stressed by the learned counsel for the appellant is with regard to the delay of 72 days in the disposal of the representation made by the appellant to the third respondent on 25.1.
This contention is raised in ground Nos.
VIII and IX of the Grounds in the Special Leave Petition.
This is resisted by the third respondent in para graph 8 of his counter stating that a representation dated 2.2.1988 was received in the COFEPOSA Section of Ministry of Finance on 16.2.1988 with a letter dated 5.2.1988 from the Government of Kerala; that as certain information was not available with the Central Government, the Collector of Customs, was asked to get a copy of the representation from the State Government and to send his comments; that Collec tor of Customs, informed the Central Government by a telex message dated 1.3.1988 which was received in the COFEPOSA Section on 8.3.1988 informing that the representation was not available with the Home Department; that thereafter a copy of the representation was forwarded to the Collector of Customs by post on 8.3.1988; that the comments of the Col lector were received back on 28.3.1988; that then the repre sentation along with the comments were placed before the Joint Secretary, COFEPOSA Section on 30.3.88, who forwarded the same to the Minister of State for Revenue on the same day and on 4.4.88 the Minister of State forwarded his com ments to the Finance Minister who considered and rejected the representation on 8.4.88.
According to the third Re spondent, the representation was considered expeditiously and as such there is no violation of Article 22(5) of the Constitution of India.
The learned counsel for the appellant has explained that the representation was submitted originally on 25.1.1988, but was got back and resubmitted on 2.2.1988.
According to him, it is surprising that the said representation was received by the third respondent only on 16.2.1988 after a considerable delay of two weeks and thenceforth there was a considerable delay from 16.2.88 to 28.3.88 in receiving the comments of the Collector of Customs, and again there was a delay of 7 days in forwarding the representation to the Minister of State for Revenue with the comments of the Joint Secretary, COFEPOSA Section.
The long interval in receipt of the representation and the comments of the Collector of Customs, Cochin indicate the casual and indifferent attitude displayed by the authorities concerned dealing with the representation.
In our opinion, the manner in which the representation has been 956 dealt with reveals a sorry state of affair in the matter of consideration of the representation made by the detenu.
Further we fail to understand why such a long delay from 16.2.88 to 28.3.88 had occasioned in getting the comments from the Collector of Customs.
The only futile explanation now offered by the third respondent is that this delay had occasioned because the Collector of Customs was not able to get a copy of the representation from the Home Department, Kerala and thereafter the Collector got a copy of the repre sentation on being forwarded by the third respondent on 8.3. 1988.
Even then there is a delay of 20 days in getting the comments of the Collector and that delay is not at all explained.
This Court in Rama Dhondu Borade vs Shri V.K. Saraf Commissioner of Police & Ors., [1989] I Scale Vol.
4 22 after referring to various decisions, has observed thus: "The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India.
Corre spondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation with reasona ble dispatch and to dispose the same as expe ditiously as possible.
This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the con tinued detention constitutionally impermissi ble and illegal, since such a breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution." " . .
What is reasonable dispatch de pends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard.
However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.
" Bearing in mind the above principle when we approach the facts of the present case, we are of the firm view that the representation of 957 the detenu has not been given prompt and expeditious consid eration, and was allowed to lie without being properly attended to.
The explanation now offered by the third re spondent that the delay has occurred in seeking the comments of the Collector of Customs etc.
is not a convincing and acceptable explanation.
In our view the delay in 72 days in the absence of satisfactory explanation is too long a period for ignoring the indolence on the part of the concerned authority.
Hence we hold that the unexplained delay in disposal of the representation of the detenu is violative of Article 22(5) of the Constitution of India, rendering the order of detention invalid.
For all the above mentioned reasons, we allow this criminal appeal by setting aside the judgment of the High Court, quash the impugned order of detention and direct the detenu to set at liberty forthwith.
Y. Lal Appeal allowed.
| IN-Abs | This appeal has been filed by the brother of the detenu T.A. Sirajudeen who was detained pursuant to an order of detention passed by the first respondent under Section 3(1)(iii) and 3(1)(iv) of the Conservation of Foreign Ex change and Smuggling Activities Act, 1974 with a view to preventing the said detenu to take part in the smuggling activities of Gold.
The circumstances under which the deten tion order in question was passed may now be stated.
On 30.11.1986, Superintendent of Central Excise, Manjeri Range searched the residential premises of the detenu but did not discover any contraband goods.
However on question ing the detenu confessed that he had burried eleven gold biscuits in the back yard, which were recovered after dig ging the ground and the statement of the detenu was recorded under Section 108 of the Customs Act, that very day.
On 9.12.1986 again the Authorities concerned searched the residence of the detenu in the belief that there was concealment of more gold.
During the search the detenu pointed out to the Superintendent one packet which had been placed in the thatched roofing of the house.
The detaining authority taking into consideration the fact of seizure effected on two occasions and the statement of the detenu admitting his involvement in the prejudicial activities mentioned in the grounds of detention reached subjective satisfaction and passed the impugned order of detention on 7.10.87.
The detenu was arrested on 18.1.1988 and detained in Central Prison, Trivandrum from 19.1.1988 onwards Grounds of detention and other relevant material were furnished to the detenu on 21.1.1988.
The detenu made representation for revocation of the detention order on 25.1.1988 which was rejected 946 on 11.4.1988.
The first respondent made a reference under Section 8 of the Act on 5.5.88 to the Advisory Board which reported that in its opinion sufficient cause existed for the detention of the detenu.
The appellant challenged the detention of his brother in the High Court by means of Writ Petition but, having failed, he filed this appeal by special leave.
The appellant primarily urged two contentions before this Court.
It was urged that there was no proximity in time to provide a rational nexus between the alleged prejudicial activity and the passing of the impugned order of detention after 11 months i.e. on 7.10.87 and as there was no reasona ble and satisfactory explanation for the said long delay, the detention order is liable to be quashed on the ground that the credible chain between the grounds of the alleged criminal activities and the purpose of detention stood snapped.
The delay throws doubt on the genuineness of the subjective satisfaction arrived at by the detaining authori ty.
Secondly it was contended that the representation sub mitted by the detenu on 25.1.88 challenging the impugned order clamped on him had been disposed of by a delay of 72 days i.e. on 11.4.88 and this long and avoidable delay vitiates the detention order being violative of article 22(5) of the Constitution.
The first respondent in the counter affidavit explained the delay and attributed the same to the extensive search of various premises in different places and examination of persons apart from departmental delays.
It is only after completing the necessary investigation customs authorities sponsored the case for detention of the detenu.
Allowing the appeal, this Court, HELD: There is no denying the fact that the impugned order has been passed after lapse of 11 months from the date of seizure of the eleven gold biscuits from the back court yard of the house of the detenu.
The test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of deten tion.
However, when there is undue and long delay between the prejudicial activity and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactionly examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned and further the court has to investi gate whether the causal connection has been broken in the circumstances of each case.
No hard and fast rule 947 can precisely be formulated and guidelines can be laid down in that behalf.
[951G 952A] When there is unsatisfactory and unexplained delay between the date of the order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority.
[954C] See Gora vs State of West Bengal, ; ; Hemlata Kantilal Shah vs State of Maharashtra, ; ; Golam Hussain @ Gamal vs Commr. of Police of Calcutta & Ors., ; ; sk Serajul vs State of West Bengal, ; Rekhaben Virendra Karadia vs State of Gujarat & Ors., ; ; Harnek Singh vs State of Punjab, ; ; Shiv Ratan Makin vs Union of India and Others, ; Smt.
K. Aruna Kumari vs Gov ernment of Andhra Pradesh & Ors., ; and Rajendra Kumar Natvarlal Shah vs State of Gujarat & Ors., ; The Court in the instant case, noticed from the Counter affidavit filed on behalf of the first Respondent, that the detaining authority has attempted to explain the laxity that has occasioned in passing the impugned order but miserably failed in explaining the delay of three months in securing the arrest of the detenu from the date of passing of the order and keeps stunned silence on that score.
Counsel when queried by the Court whether he could give any reason for this undue delay in arresting the detenu on 18.1.1988 in pursuance of the impugned order made on 7.10.1987, frankly admitted that he could not do so.
Under the circumstances, the Court held that leaving apart the question of delay in passing the order of detention, the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months of the passing of the detention order and this non explanation throws a considerable doubt on the genuineness of the sub jective satisfaction of the detaining authority vitiating the validity of the order of detention.
[954E 955A] The long interval in receipt of the representation and the comments of the Collector of Customs, Cochin, indicate the casual and indifferent attitude, displayed by the au thorities concerned dealing with the representation.
The manner in which the representation has been dealt with reveals a sorry state of affairs in the consideration of the representation made by the detenu.
[955G 956A] 948 The Court took firm view that the representation of the detenu has not been given prompt and expeditious considera tion and was allowed to lie without being properly attended to.
The delay of 72 days in the absence of satisfactory explanation is too long a period for ignoring the indolence on the part of the concerned authority.
The unexplained delay in disposal of the representation of the detenu is violative of Article 22(5) of the Constitution of India rendering the order of detention invalid.
[956H 957B] The Court set aside the judgment of the High Court, quashed the order of detention and directed that the detenu be set at liberty forthwith.
[957C] Rama Dhondu Borade vs Shri V.K. Saraf, Commissioner of Police & Ors.
|
vil Appeal No. '1376 of 1977.
From the Judgment and Order dated 26.5.77 of the Punjab and Haryana High Court in Civil Revision No. 125/77.
Ashok Sen, S.C. Manchanda, Mrs. Urmila Kapoor, Ms. section Janani and Ms. Meenakshi for the Appellant.
E.C. Aggarwala, Miss Purnima Bhatt, V.K. Pandita, A.V. Paila, and Atul Sharma for the Respondents.
The Judgment of the Court was delivered by SAIKIA, J.
This appeal by special leave is from the Judgment of the High Court of Punjab and Haryana allowing the revision petition, setting aside the order of the Senior Subordinate Judge and dismissing the application of the decree holder praying for permission to deposit the balance amount of the pre emption decree.
On 21.9.1975 the Court of the Senior Subordinate Judge decreed a claim to pre emption in favour of the appellant and against the respondents subject to the deposit of the purchase money being Rs.41,082 less the amount of 'Zare Panjum ' on or before 31.12.1975 failing which his suit would stand dismissed.
The appellant by application dated 22.11.1975, annexing a treasury challan, obtained permission to deposit 4/5th of the purchase money amounting to Rs.33582 and the amount was deposited on 28.11.1975, although the last date for depositing the amount was 31.12.1975.
On 4.12.1975 he filed an execution petition for being delivered possession of the land and the possession was actually delivered on 29.1.1976.
21 It appears, on 21.1.1976 the office reported that the amount deposited fell short of the decretal amount by Rs. 100.
Thereupon two separate applications were filed by the respondents judgment debtors and the appellants decree holder.
The former in their application prayed that the latter having not complied with the condition of the decree, he having deposited Rs. 100 less, the decree was a nullity and the suit stood dismissed, and hence, the land be re stored to them.
The appellant decree holder in his applica tion prayed for condonation of the delay and for permission to deposit the balance of Rs. 100 stating that there was an inadvertent arithmetical mistake on his part as also on the part of the Court officials.
The learned Senior Subordinate Judge applying the maxim "Actus curiae neminem gravabit and relying on Jang Singh vs Brijlal & Ors., ; and holding that the mistake of the decree holder was shared by the Court, condoned the delay and allowed 10 days ' time to deposit the balance of Rs. 100, failing which the suit should stand dismissed.
The respond ents having moved in revision therefrom under section 115 CPC, the High Court by the impugned Judgment, holding that the decree holder himself filed the application annexing the challan mentioning the amount and as such there was no mistake on the part of any Court officials, and applying Labh Singh vs Hardayal & Anr., [1977] 79 Punjab Law Reporter 417, allowed the revision petition, set aside the order of the Senior Subordinate Judge and dismissed the appellant decree holder 's application for condonation and permission to deposit the balance of Rs. 100.
Hence this appeal.
Mr. A.K. Sen, the learned counsel for the appellant submits that the Senior Subordinate Judge having exercised power within his jurisdiction under section 148 CPC in extending the time to deposit the deficit amount of Rs. 100, the revisional court mis directed itself in holding that the court officials were not at fault in not pointing out the shortfall while permitting the deposit of the decretal amount; and it erred in setting aside the order extending time.
Counsel further submits that the decree holder having already obtained the warrant of possession and thereby taken actual delivery of possession, the decree was already exe cuted and the same having not been questioned, the revision petition was liable to be dismissed as infructuous.
Mr. E.C. Aggarwala, the learned counsel for the respond ent while not disputing that if power under section 148 CPC was exercised by the Senior Subordinate Judge in extending the time the order could not have been interfered with in revi sion, submits that the challan having been prepared by the decree holder himself, there was no mis 22 take on the part of any court officials in accepting short deposit, and the High Court rightly held that the appel lant 's suit stood dismissed because of non deposit of the decretal amount within time; and therefore there was no question of extension of any time for depositing the same.
The precise question to be decided in this appeal, therefore, is whether on the facts and in the circumstances of the case of preemption decree, the amount deposited within time by the decree holder having fallen short of the decretal amount by Rs. 100 owing to inadvertent arithmetical mistake, the court could extend the time to deposit that deficit amount exercising powers under section 148 CPC in view of the provision in Order XX Rule 14(1) CPC; and if so, whether the High Court erred in interfering with that order in revision under section 115 CPC.
Order XX Rule 14(1) provides: "Where the Court decrees a claim to pre emp tion in respect of a particular sale 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 (b) 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." In the instant case pre emption decree specified 31.12.1975 'as the day on or before which the purchase money was to be paid into Court.
But the exact amount to be paid was not specified; it only said Rs.41,082 "less the amount of Zare Panjum" which the parties admit to be 1/5th.
Thus only 4/5 of the amount was to be paid.
However, parties do not dispute that the amount deposited fell short of the decretal amount by Rs. 100.
From the above provision there is no doubt that where the entire purchase money payable has not been paid and there is no order from any court to justify or excuse non payment, the suit shall be dismissed 23 with costs.
This shall be done by virtue of the above provi sion.
But when the decree holder deposits into court what he believes to be the entire purchase money but due to inad vertent mistake what is deposited falls short of the decre tal amount by a small fraction thereof and the party within such time after the mistake is pointed out or realised, as would not prove wilful default or negligence on his part, pays the deficit amount into the court with its permission, should the same result follow? This Court in Naguba Appa vs Namdev, AIR 1964 SC 50, has held that mere filing of an appeal does not suspend the pre emption decree of the trial Judge and unless that decree is altered in any manner by the Court of appeal, the pre emptor is bound to comply with its directions, and has upheld the finding that the pre emption suit stood dismissed by the reason of his default in not depositing the pre emption price within the time fixed in the trial court 's decree and that the dismissal of the suit is as a result of the mandatory provisions of Order 20 Rule 14 and not by reason of any decision of the Court.
There the pre emption money was not deposited within the fixed time.
The pre emptor thereafter made an application to the Court for depositing the amount without disclosing that the time fixed had expired.
The application was allowed; but the defendant applied to the Court for disposal of the suit pointing out that the time fixed for deposit had expired.
The trial Judge held that the pre emption money not having been paid within the time fixed in the decree the suit stood dismissed.
This decision was held to be correct.
It was a case of nondeposit of the whole of the purchase money and not of any fraction thereof.
In Jang Singh vs Briflal and Ors.
, (supra) the pre emption decree on compromise was passed in favour of Jang Singh and he was directed to deposit Rs.5951 less Rs. 1000 already deposited by him, by May 1, 1958, and failing to do so punctually his suit would stand dismissed with costs.
On January 6, 1958 Jang Singh made an application to the trial court for making the deposit of the balance of the amount of the decree.
The clerk of the Court, which was also the executing Court, prepared a challan in duplicate and handed it over with the application to Jang Singh so that the amount might be deposited in the Bank.
In the challan (and in the order passed on the application, so it was alleged) Rs.4950 were mentioned instead of Rs.4951 and it was depos ited.
In May, 1958, he applied for and received an order for possession of the land and the Naib Nazir reported that the entire amount was deposited in Court.
Bohla Singh (the vendee) then 24 applied on May 25, 1958, to the Court for payment to him of the amount lying m deposit and it was reported by the Naid Nazir on that application that Jang Singh had not deposited the correct amount and the deposit was short by one rupee.
Bhola Singh applied to the Court for dismissal of Jang Singh 's suit and for recall of all the orders made in Jang Singh 's favour.
The trial court allowed that application and also ordered reversal of its earlier orders and directed that the possession of the land be restored to him.
On appeal, the District Judge, holding that Jang Singh having approached the Court with an application intending to make the deposit the Court and its clerk made a mistake by order ing him to make the deposit of an amount which was less by one rupee.
Jang Singh was excused inasmuch as the responsi bility was shared by the Court and it accordingly held that the deposit made was a sufficient compliance with the terms of the decree and accordingly allowed the appeal setting aside the trial court 's order dismissing the suit.
On appeal by Bhola Singh the High Court took the view that the decree was not complied with and that under the law the time fixed in the decree for payment of the decretal amount in pre emption case could not be extended by the Court and that the finding that the short deposit was due to the act of the Court was not supported by evidence and accordingly allowed the appeal, set aside the decision of the District Judge and restored that of the trial court.
On appeal by Jang Singh this Court found that the application whereupon the Court directed the deposit of Rs.4950 remained untraced.
However, it was quite clear that the challan was prepared under the Court 's direction and the duplicate challan prepared by the Court as well as the one presented to the Bank had been produced in the case and they showed the lesser amount.
That challan was admittedly prepared by the Execution Clerk and it was also an admitted fact that Jang Singh was an illiter ate person.
The amount was deposited promptly relying upon the Court 's Officers.
The Execution Clerk had deposed to the procedure which was usually followed and he had pointed out that first there was a report by the Ahmed about the amount in deposit and then an order was made by the Court on the application before the challan was prepared.
It was, there fore, quite clear that if there was an error the Court and its officers largely contributed to it.
This Court, ob served: "It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is fur nished.
25 If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court.
If the liti gant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused.
There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake.
This is aptly summed up in the maxim: "Actus curiae neminem gravabit." In the facts of that case it was held that an error was committed by the Court which the Court must undo and which could not be undone by shifting the blame on Jang Singh, who was expected to rely upon the Court and its officers and to act in accordance with their directions.
It was also ob served that he deposited the amount promptly and a wrong belief was induced in his mind by the action of the Court that all he had to pay was stated in the challan.
The appeal was accordingly allowed, the High Court 's order was set aside and the appellant was ordered to deposit Re.1 within one month from the date of receipt of the record in the trial court.
It should be noted that in the facts and cir cumstances of a case of non deposit of a fraction of the purchase money extension of time to deposit the balance was granted by this Court.
It cannot therefore be said that on failure to deposit a minute fraction of the amount by the fixed date owing to wrong belief induced by Court officials the suit must be taken to have stood dismissed.
No doubt this was so because of the maxim actus curiae neminem gra vabit but there is no reason why the same result should not follow on similar justifiable grounds.
While mere filing of an appeal does not suspend a pre emption decree, a stay order passed by an appellate court may suspend it in the manner ordered therein.
In Dattaraya vs Shaikh Mahboob Shaikh Ali, ; , the pre emption decree in favour of the appellant was passed with the direction to pay the consideration of Rs.5,000 within 6 months from the date of the decree and in case of default the suit was to be deemed to have been dismissed.
The decree was confirmed in respondent 's appeal to the District Court on January 28, 1955.
The amount was deposited within the time fixed, but was subsequently withdrawn by him under orders of the Court.
While dismissing the appeal, the Dis trict Court directed the appellant to re deposit the 26 sum of Rs.5,000 on or before April 30, 1955 and directed the respondent on such deposit to deliver the possession of the properties and on failure to deposit the suit should stand dismissed with costs.
During the pendency of the respond ent 's Second Appeal in the High Court the respondent prayed for stay of execution of the decree.
On March 23, 1955 the High Court passed a stay order which was received by the trial court on April 19, 1955.
The appellant deposited the purchase price on May 2, 1955, that is, 3 days after the date fixed, filing an application stating that he could not deposit this within time as he fell ill.
The respondent 's Second Appeal was dismissed on October 6, 1960 and the pre emption decree in favour of the appellant was confirmed, and he obtained an order of possession.
The respondent having applied to the Executing Court for restitution of the properties on the ground that the appellant had defaulted in depositing the purchase money by the date fixed by the lower appellate court 's decree, i.e. April 30, 1955, the appellant contended that he would get by necessary implication a fresh starting point for depositing the purchase money from the date of the High Court 's decree.
The Executing Court reject ed the claim of the respondent for restitution and this decision was affirmed by the District Court.
But the High Court in appeal took the view that there was default on the part of the appellant in depositing the amount and, there fore, the appellant 's suit stood dismissed automatically.
While allowing the appeal therefrom this Court held: "The decree framed under 0.20, r. 14 Civil Procedure Code requires reciprocal rights and obligations between the parties.
The Rule says that on payment into Court of the purchase money the defendant shall deliver possession of the property to the plaintiff.
The decree holder therefore deposits the purchase money with the expectation that in return the pos session of the property would be delivered to him.
It is therefore clear that a decree in terms of 0.20, r. 14; Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other.
To put it differently, the obligations are recip rocal and are inter linked, so that they cannot be separated.
If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliv er possession of the properties the plaintiff decree holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues.
We are accordingly of the opinion that the order of stay dated March 23, 27 1955 must be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price.
The effect of the stay order therefore in the present case is to enlarge the time for pay ment till the decision of the appeal.
" This Court was further of the opinion that the effect of the High Court 's order dated October 6, 1960 dismissing the second appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Court 's decree.
The decree of the High Court was dated October 6, 1960 and the appellant could have deposited the amount immediately after this date.
But the appellant had deposited the amount on May 2, 1955, long before the date of High Court 's decree and there was no default on the part of the appellant in fulfilling the terms of the High Court 's decree.
It was accordingly held that a decree of the High Court in second appeal should be construed in that case as affording by implication a fresh starting point to the plaintiff for making payment into the Court.
In Sulleh Singh vs Sohan Lal; , , reiterating what was held in Naguba Appa vs Narndev, (supra) and Dattaraya vs Shaikh Mahboob Shaikh Ali, (supra).
The trial court directed re spondents Sohan Lal and Nathi to deposit Rs.6,300 and Rs.5,670 respectively on or before 1st April, 1969 less 1/5th of the pre emption amount already deposited by them.
Sohan Lal 's decree was for possession by pre emption in respect of Killa Nos.
14/1, 17 and 18/1 of Rectangle 37.
The plaintiffs aggrieved by that order filed an appeal contend ing that the decree should have been passed for the whole of the land because the respondent Sohan Lal was also a tenant of Killa No. 24 of Rectangle 37 under them.
On 29th July, 1969, the Additional District Judge passed a decree for possession by pre emption in favour of respondent ' Sohan Lal in respect of Killa No. 24 of Rectangle 37 also on payment of Rs.9,100 and he was also directed to deposit this amount on or before 20th August, 1969.
The decree in favour of Nathi was maintained without change.
The appellants filed an appeal to the High Court contending that respondents did not deposit the decretal amount by 1st April, 1969 as directed by the trial court and, therefore, the suit was liable to be dismissed under Order 20 Rule 14 of the CPC and the High Court allowed the appeal against Nathi and dismissed the appeal against Sohan Lal holding that since the lower appel late Court granted Sohan Lal decree for one more Killa and directed that the amount would be Rs.9,100 to be deposited on or before 20th August, 1969, the respondent was to comply with the appellate decree and not the decree of the trial court.
This Court upheld the appellant 's contention that the lower 28 appellate court was wrong in extending the time for payment because the failure of the plaintiffs respondents to deposit the amount in terms of the trial court 's decree would result in pre emptors ' suit standing dismissed by reason of default in not depositing pre emption price.
It was only if the plaintiffs respondents had paid the decretal amount within the time granted by the trial court or if the plaintiffs respondents had obtained another order from the lower appel late Court granting any order of stay that the lower appel late court might have considered the passing of appropriate order in favour of pre emptors.
A Full Bench of the Punjab and Haryana High Court in Labh Singh & Anr.
vs Hardayal and Anr., (supra) held on the facts of that case as no prayer was made by the appellant to the Court for verification of the pre emption amount and the amount which was to be deposited, was mentioned in the application along with the challan in duplicate and the amount so mentioned was ordered to be deposited, it was not the responsibility of the Court to verify from the record and to direct the pre emptor to deposit the amount as men tioned in the decree.
It was a different matter if a liti gant sought the assistance of the Court and while giving such assistance, because of the mistake of the Court, less amount was deposited.
The Court observed that a litigant may not be allowed to suffer for the mistake of the Court but it could not be held that it was the duty of the Court in every case to verify the actual amount mentioned in every decree to be deposited.
In that case appellant Labh Singh obtained pre emption decree on May 27, 1971 and a direction to pay Rs.28,881.50 less 1/5th pre emption amount already deposited by 10th July, 1971 and the appellant deposited Rs.23,48 1.50 on 7th July, 1971.
Obviously there was short payment of Rs.200.
The vendees filed an appeal against the decree on 7th June, 1971 and prayed for stay of dispossession during the pendency of the appeal, which was allowed on 8th June, 1971 by the first appellate Court but that appeal was dis missed on 18th August, 1972 whereafter the appellant filed application for execution of the pre emption decree and was put in possession of the land on 2nd December, 1971 and when the vendees were to withdraw the amount they found the shortage of Rs.200 and applied for restitution of possession of the land which was allowed by the Executing Court on 15th June, 1974 and the same order was affirmed by the first appellate Court on 10th January, 1975.
The appeal therefrom having been referred to full Bench which held as above.
The Full Bench distinguished Dattaraya decision observing that in a given case if the Appellate Court while deciding the appeal extends the time for depositing the pre emption money no exception could be taken if the amount was 29 thus deposited by the time extended but no such order admit tedly was passed in that case nor the amount had been depos ited till the date of the judgment.
It also distinguished the decision in Jang Singh vs Brijlal & Ors., (supra), on the facts that the clerk of the Court made a mistake in making a report and consequently the pre emption amount deposited by the plaintiff was less by rupee one.
Jogdhayan vs Babu Ram & Ors.
, ; , also is a case of failure to deposit a fraction of the decretal amount.
The appellant obtained a pre emption decree and deposited a sum of Rs. 15,500 at the purchase price and Rs. 100 as the registration charges and other expenses of the deed.
The respondents ' appeal therefrom was dismissed by the Additional District Judge 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 would stand dismissed.
On 14.4.1967 the appellant deposited Rs. 1836 only 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 aver ring that the omission to deposit 25 paise was due to bona fide mistake.
The vendee 's appeal was dismissed by the High Court with a direction to the appellant to deposit within 3 months time a further sum of Rs.500 for the improvements made to the land and the appellant deposited that sum within time.
Before the Executing Court the respondentvendee filed the application under Order 20 Rule 14(1)(b) contending that the 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 having overruled the objections, the Judgment debtor 's appeal therefrom was accepted by the Additional District Judge holding that Order 20 Rule 14(1)(b) CPC was mandatory and the short deposit was not due to bona fide mistake and hence the default could not be condoned.
The appellant 's second execution appeal before the High Court was dismissed on the ground of limitation.
On appeal by special leave, this Court held that the admitted position was 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 of 25 paise was due to the bona fide mistake while the executing appellate Court held that it was not due to any bona fide mistake, but it was a de fault 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 execut ing appellate Court that the non deposit could not be due to any bona fide mistake, was absolutely 30 untenable for the reason that while the appellant had depos ited in total Rs. 17,936.00 from time to time as directed by the Courts, there was absolutely no reason as to why they 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 dis cretionary powers under Section 148 CPC and accepted the delayed deposit of 25 paise, as was done by the original Executing Court.
The appeal was accordingly allowed, the Orders of the High Court as well as the first execution appellate Court were set aside and the Order of the original executing Court was restored.
In Jogdhayan vs Babu Ram & Ors., (supra) this Court considered the provision of section 148 CPC qua 0.20 r. 14 CPC and held that the appellate Court could have exercised the power as was done by the lower Court.
section 148 deals with enlargement of time and 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.
" This section empowers the Court to extend the time fixed by it even after the expiry of the period originally fixed.
It by implication allows the Court to enlarge the time before the time originally fixed.
The use of the word 'may ' shows that the power is discretionary, and the Court is, therefore, entitled to take into account the conduct of the party praying for such extension.
From the above decisions one could distinguish the cases of non deposit of the whole of the purchase money within the fixed time where there was no stay order granted by the appellate Court from the cases of non deposit of the decre tal amount consequent upon a stay order granted by the appellate Court.
In the first category of above cases the provisions of 0.20 r. 14(1) would be strictly applicable the provision being mandatory as was held in Naguba 's case (supra).
In the second category of above cases, it would be necessary to examine the nature and effect of the stay order on the deemed disposal of the suit and also to see whether a fresh period is fixed thereby as were the cases in Duttaraya (supra) and Jogdhayan (supra).
31 In the third category of eases, namely, non deposit of only a relatively small fraction of the purchase money due to inadvertent mistake whether or not caused by any action of the Court, the Court has the discretion under Section 148 CPC to extend the time even though the time fixed has al ready expired provided it is satisfied that the mistake is bona fide and was not indicative of negligence or inaction as was the case in Jogdhayan, (supra).
The Court will extend the time when it finds that the mistake was the result of, or induced by, an action of the Court applying the maxim 'actus curiae neminem gravabit an act of the Court shall prejudice no man, as was the case in Jang Singh (supra).
While it would be necessary to consider the facts of the case to determine whether the inadvertent mistake was due to any action of the Court it would be appropriate to find that the ultimate permission to deposit the challaned amount is that of the Court.
Proceeding as above, in the instant case we find that the decree did not quantify the purchase money having only said "Rs.41,082 less the amount of 'Zare Panjum".
Of course, 'certum est quod certum reddi potest ' that is certain which can be rendered certain.
The amount of 'Zare Panjum ' was not specified.
Parties do not controvert that it was 1/5th.
But the amount was not calculated by the Court itself.
Inadvert ent error crept in arithmetical calculation.
The deficit of Rs. 100 was a very small fraction of the total payable amount of Rs.33,682 which was paid very much within the fixed time, and there was no reason, except for the mistake, as to why he would not have paid this Rs. 100 also within time.
The appellants ' application with the challan annexed was allowed by Court officials without pointing out the mistake.
The amount was deposited and even possession of the property was delivered to the appellant.
The Senior Subordi nate Judge allowed the application made by the appellant in exercise of the discretion vested in him apparently on the view that sufficient cause had been made out for non deposit of Rs. 100.
This order, however, as seen above, was set aside by the High Court in a civil revision under section 115 C.P.C.
The question which comes in the forefront is whether any case was made out for interference by the High Court in its revisional jurisdiction under section 115 CPC with the order of the Senior Subordinate Judge.
The scope of section 115 CPC has been the subjectmatter of a catena of decisions of this Court and the law by now is so well settled that we do not find it necessary to make any detailed reference of those cases.
We find it sufficient to refer to the leading case on the point in Keshardeo Chamria vs Radha Kissen Chamria and 32 Others, [1953] SCR page 136 where it was held that Section 115 CPC applies to matters of jurisdiction alone, the irreg ular exercise or nonexercise of it or the illegal assumption of it, and if a subordinate court had jurisidiction to make the order it has made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, the High Court has no power to interfere, however profoundly it may differ from the conclusions of that court on questions of fact or law.
Consequently, the High Court had jurisdiction to inter fere with the order of the Senior Subordinate Judge only (i) if the said Judge had no jurisdiction to make the order it has made, and (ii) had acted in breach of any provision of law or committed any error of procedure which was material and may have affected the ultimate decision.
If neither of these conditions was met the High Court had no power to interfere, however profoundly it may have differed from the conclusion of the Senior Subordinate Judge on questions of fact or law.
Coming to the question as to whether the Senior Subordinate Judge had jurisdiction to make the order made by him it may be pointed out that section 148 CPC, as seen above,conferred ample jurisdiction on him in this regard.
Apart from the cases cited above in support of the proposi tion we may refer to a Full Bench decision of the Allahabad High Court succinctly laying down the law on the point in Gobardhan Singh vs Barsati, [1972] A.L.J. page 169.
Relying on a decision of this Court in Mahanth Ram Das vs Ganga Das, [1961] 3 SCR page 763 it was held: "Even in cases where an order is made by the Court for doing a thing within a particular time and the order further provides that the application, suit or appeal shall stand dis missed if the thing is not done within the time fixed, the Court has jurisdiction, if sufficient cause is made out, to extend the time even when the application for extension of time is made after the expiry of the time fixed.
It is not the application for grant of further time, whether made before or after the expiry of the time granted, which confers jurisdiction on the Court.
The Court possesses the jurisdiction under Sec.
148 CPC to enlarge the time and the application merely invokes that jurisdiction.
" In Ganesh Prasad Sah Kesari and Another vs Lakshmi Narayan Gupta, [1985] 3 SCC page 53 it was held: 33 " . . where the court fixes a time to do a thing, the court always retains the power to extend the time for doing so.
Section 148 of the Code of Civil Procedure provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the 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 princi ple of this section must govern in not whit tling down the discretion conferred on the court.
" In this view of the matter there seems to be no manner of doubt that the Senior Subordinate Judge had jurisdiction to extend the time under section 148 CPC on sufficient cause being made out.
The first condition precedent to enable the High Court to exercise its revisional jurisdiction under section 115 CPC was, therefore, lacking.
Likewise, nothing has been brought to our notice on the basis of which it could be said that the discretion exercised by the Senior Subordinate Judge was in breach of any provision of law or that he committed any error of procedure which was material and may have affected the ultimate decision.
That being so, the High Court had no power to interfere with the order of the Senior Subordinate Judge, however, profoundly it may have differed from the conclusions of that Judge on ques tions of fact or law.
On the facts and circumstances of the case we feel justified in allowing this appeal, setting aside the im pugned judgment of the High Court, and in restoring that of the Senior Subordinate Judge allowing 10 days time to depos it the balance of Rs. 100 exercising power under section 148 CPC on facts of the case.
If the amount has not already been deposited, it shall be deposited within 30 days from today and the respondents shall withdraw the same according to law.
The appeal is accordingly allowed, but under the facts and circumstances of the case, without any order as to costs.
R.S.S. Appeal allowed.
| IN-Abs | The appellant 's claim to pre emption was decreed by the Senior Subordinate Judge in his favour.
The pre emption decree specified 31.12.1975 as the day on or before which the purchase money was to be paid into Court.
But the exact amount to be paid was not specified; it only said Rs.41,082 "less the amount of Zare Panjum" which the parties admit to be 1/5th.
Thus only 4/5th of the amount was to be paid.
Subsequently it was reported by the office that the amount deposited fell short of the decretal amount by Rs. 100.
Thereupon, the appellant decree holder filed an application praying for condonation of delay and for permission to deposit the balance of Rs. 100 stating that there was an inadvertent arithmatical mistake on his part, as also on the part of the Court officials.
The Senior Subordinate Judge applying the maxim "Actus curiae neminem gravabit" condoned the delay holding that the mistake of the decree holder was shared by the Court.
The High Court, however, allowed the respondent 's review petition filed under section 115 CPC., and held that the decree holder himself filed the applica tion annexing the challan mentioning the amount and as such there was no mistake on the part of any Court officials.
Before this Court it was inter alia contended on behalf of the appellant that the Senior Subordinate Judge having exercised power within his jurisdiction under section 148 CPC in extending the time to deposit the deficit amount of Rs. 100, the revisional court mis directed itself in holding that the court officials were not at fault in not pointing out the shortfall while permitting the deposit of the decretal amount.
On behalf of the respondents it was contended that the challan having been prepared by the decree holder himself, there was no mistake on the part of any Court official in accepting short deposit, and the 18 High Court rightly held that the appellant 's suit stood dismissed because of non deposit of the decretal amount within time, and thereafter there was no question of exten sion of any time for depositing the same.
Allowing the appeal, this Court, HELD: (1) There is no doubt that where the Court decrees a claim to pre emption and the entire purchase money payable has not been paid and there is no order from any court to justify or excuse non payment, the suit shall be dismissed under order XX Rule 14(1) CPC.
[22H] (2) While mere filing of an appeal does not suspend a pre emption decree of the trial Judge a stay order passed by the appellate court may suspend it in the manner ordered therein.
[28B] Naguba Appa vs Namdev, AIR (1954) SC 50 and Dattaray vs Shaikh Mahboob Shaikh Ali; , , referred to.
(3) One could distinguish the cases of non deposit of the whole of the purchase money within the fixed time where there was no stay order granted by the appellate Court from the cases of non deposit of the decretal amount consequent upon a stay order granted by the appellate Court.
[30G] (4) In the first category of above cases the provisions of 0.20 r.14(1) would be strictly applicable, the provision being mandatory.
[30G] Naguba Appa vs Namdev, AIR (1954) SC 50, referred to.
(5) In the second category of above cases, it would be necessary to examine the nature and effect of the stay order on the deemed disposal of the suit and also to see whether a fresh period is fixed thereby.
[30H] Dattaraya vs Shaikh Mahboob Shaikh Ali, ; and Sulleh Singh vs Sohan Lal, ; , referred to.
(6) In the third category of cases, namely, non deposit of only a relatively small fraction of the purchase money due to inadvertent mistake whether or not caused by any action of the Court, the Court has 19 the discretion under section 148 CPC to extend the time even though the time fixed has already expired provided it is satisfied that the mistake is bona fide and was not indica tive of negligence or inaction.
[31A B] Jogdhayan vs Babu Ram & Ors.
, ; , referred to.
(7) The Court will extend the time when it finds that the mistake was the result of, or induced by, an action of the court applying the maxim 'actus curiae nominem gravab it ' an act of the court shall prejudice no man.
While it would be necessary to consider the facts of the case to determine whether the inadvertent mistake was due to any action ' of the Court, it would be appropriate to find that the ultimate permission to deposit the channeled amount is that of the court.
[31B C] Jang Singh vs Brijlal & Ors., ; and Labh Singh vs Hardayal, [1977] 79 Punjab Law Reporter 4 17, referred to.
(8) In the instant case, inadvertent error crept in arithmetical calculation.
The deficit of Rs. I00 was a very small.
fraction of the total payable amount which was paid very much within the fixed time, and there was no reason, except for the mistake, as to why he would not have paid this Rs. 100 also within time.
The appellants ' application with the challan annexed was allowed by Court officials without pointing out the mistake.
The amount was deposited and even possession of the property was delivered to the appellant.
[31D E] (9) There seems to be no manner of doubt that the Senior Subordinate Judge had jurisdiction to extend the time under section 148 CPC on sufficient cause being made out.
[32D] Gobardhan Singh vs Barsati, ; Mahanth Ram Das vs Ganga Das, ; and Ganesh Prasad Sah Kesari vs Lakshmi Narayan Gupta, ; , referred to.
(10) Section 115 CPC applies to matter of jurisdiction alone, the irregular exercise or non exercise of it or the illegal assumption of it.
The High Court had therefore jurisdiction to interfere with the order of the Senior Subordinate Judge only (i) if the said Judge had no juris diction to make the order it has made, and (ii) had acted in breach of any provision of law or committed any error of procedure which was material and may have affected the ultimate decision.
The first condition precedent to enable the High Court to exercise its revisional jurisdiction under section 115 CPC was lacking.
Likewise, nothing has been 20 brought out on the basis of which it could be said that the discretion exercised by the Senior Subordinate Judge was in breach of any provision of law or that he committed any error of procedure which was material and may have effected the ultimate decision.
That being so, the High Court had no power to interfere with the order of the Senior Subordinate Judge, however profoundly it may have differed from the conclusion of that Judge on questions of fact or law.
[32A; C; 33D E] Keshardeo Chamria vs Radha Kissen Chamria & Ors., ; , referred to.
|
Appeal No. 43 of 1982.
From the Judgment and Order dated 7.12.1979 of the Delhi High Court in Writ Petition No. 1754 of 1979.
AND Writ Petition (Civil) No. 265 of 1980.
(Under Article 32 of the Constitution).
P.K. Pillai for the Appellant.
R.K. Maheswari for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The petitioner claims exemption under section 115(4)(a) of the Delhi Municipal Corporation Act, 1957 from the liability of paying general tax leviable under the said section.
The case of the petitioner is that it is a non profit making registered society and its object is to organize and run schools in Delhi and elsewhere with a view to promote education and welfare.
Accordingly it is running a school with the name of General Raj 's School in Delhi in a building constructed for that purpose.
A demand was made by the appropriate authority of the Municipal Corporation for payment of general tax under the Act and the exemption claimed by the petitioner was rejected.
In this situation the petitioner moved the Delhi High Court under Article 226 of the Constitution for appropriate relief.
The writ peti tion was dismissed in limine by the following order: "The only question that arises for consideration is whether the School run by the Society falls within the ambit of clause (4) of Section 115 of the Delhi Municipal Corpora tion Act.
Reading this section it is obvious that exemption for levy for general tax could be granted if the Society which is running the school was a Society for charitable purposes.
Charitable purpose is defined in the explana tion to clause (4) of Section 115.
No doubt the School is impart 68 ing education but in order to qualify for exemption, it had to give education and medi cal relief.
Admittedly fees are charged from students.
Mere imparting of education cannot be called giving relief.
We, therefore, find nothing wrong with the stand taken by the Municipal Corporation of Delhi.
Dismissed.
" The present Civil Appeal by special leave is directed against this judgment.
The learned counsel for the petitioner has contended that in view of the language of section 115(4)(a), quoted below, it is not correct to suggest that to qualify for exemption from the tax liability it is necessary for a society to offer medical relief: "(a) lands and buildings or por tions of lands and buildings exclusively occupied and used for public worship or by a society or body for a charitable purpose: Provided that such society or body is supported wholly or in part by voluntary contributions, applies its profits, if any, or other income in promoting its objects and does not pay any dividend or bonus to its members.
Explanation "Charitable purpose" includes relief of the poor, education and medical relief but does not include a purpose which relates exclusively to religious teach ing;" The argument is well founded.
The test of 'charitable pur pose ' is satisfied by the proof of any of the three condi tions, namely, relief of the poor, education, or medical relief.
The fact that some fee is charged from the students is also not decisive inasmuch as the proviso indicates that the expenditure incurred in running the society may be supported either wholly or in part by voluntary contribu tions.
Besides, the explanation is in terms inclusive and not exhaustive.
The impugned judgment must, therefore, be held to be erroneous.
Mr. B. Sen, the learned counsel representing the respondent Municipal Corporation, contended that although he is not in a position to support the reasoning given by the High Court, the petitioner is for other reasons not entitled to the exemption claimed and the High Court 's judgment is, therefore, correct.
He urged that in view of the 69 relevant facts and circumstances in the case, as is evident by the assessment order, the claim of the petitioner that its purpose is charitable cannot be accepted.
Since, the High Court has not adverted to the facts of the case relied upon by the learned counsel for the parties and has not expressed its opinion on the other aspects of the case, we are of the view that the case should go back on remand to it for fresh decision.
During the pendency of the case in this Court the parties have filed further affidavits.
It will be open to them to file additional affidavits and other materi als in support of their respective cases.
This, however, they should do within one month from today, so that the case which is an old one may be disposed of expeditiously.
Civil Misc.
Petition No. 11315 of 1989 has not been pressed and is, therefore, dismissed; and the Writ Petition No. 265 of 1980 is permitted to be withdrawn as prayed for on behalf of the petitioner.
Civil Appeal No. 43 of 1982 is allowed and the case is remitted to the High Court for fresh decision in the light of the observations made above.
There will be no order as to costs of this Court.
In view of the urgent nature of the case, the High Court is requested to dispose of the writ petition as expeditiously as may be possible.
S.S. Appeal al lowed.
| IN-Abs | The appellant, a non profit making registered society, is running a school in Delhi.
The Municipal Corporation raised a demand of general tax on the school building.
The appellant claimed exemption from the tax on the ground that the society was running the school for a charitable purpose and therefore fell within the ambit of clause (4) of section 115 of the Delhi Municipal Corporation Act, 1957.
The claim was rejected by the Corporation.
The appellant 's writ petition under Article 226 of the Constitution was dismissed by the High Court.
The High Court held that mere imparting of education could not be called giving relief and to qualify for exemption the Society had to give education and medical relief; and that fees were charged from students.
Before this Court it was contended by the appellant that in view of the language of section 115(4)(a) it was not correct to suggest that to qualify for exemption from the tax li ability it was necessary for the society to offer medical relief.
The respondent on the other hand contended that although it was not in a position to support the reasoning given by the High Court, the appellant was for other reasons not entitled to the exemption 'claimed and the High Court 's judgment was, therefore, correct.
Allowing the appeal and remitting the case to the High Court for fresh decision on the facts relied upon by the parties, this Court, HELD: (1) A "charitable purpose" as defined in the Act, includes relief of the poor, education and medical relief.
The test of 'charitable purpose ' is satisfied by the proof of any of the three conditions, 67 namely, relief of the poor, education, or medical relief.
[68E F] (2) The fact that some fee is charged from the students is also not decisive inasmuch as the proviso to section 115(4)(a) indicates that the expenditure incurred in running the society may be supported wholly or in part by voluntary contributions.
|
(Crl.) No. 145 1 of 1985.
(Under Article 32 of the Constitution of India).
R.K. Jain and R.K. Bhatt for the Petitioner.
35 Kapil Sibal, Anil D. Singh, V.C. Mahajan, A.S. Nambiar, Salman Khurshid, Gopal Singh, Ms. K. Jaiswal, Ms. section Janani, Ms. A. Subhashini, Mrs. Indira Sawhney, Mrs. Urmila.
Kapoor, A.S. Bhasme, A.M. Khanwilkar, K.R. Nambiar, J.R. Das, D.K. Sinha, D. Bhandari, Y.P. Rao, S.K. Agnihotri, P.K. Manohar, M. Veerappa, R.K. Mehta, K.R.R. Nambiar, B.D. Sharma, K. Vasdev, D.N. Mukharjee, M.P. Jha, T.V.S.N. Chari, Mahabir Singh, M.N. Shroff, A. Subba Rao, R.S. Sodhi, K. Ramkumar, S.K. Bhattacharya, L.R. Singh, A.K. Sanghi, C.V.S. Rao, R. Venkataramani, Probir Choudhary, T.V.S. Krishna murthy, section Vasudevan, D.R.K. Reddy, K.J. Rao and U.N. Singh for the Respondents.
The following Order of the Court was delivered: ORDER It is stated by counsel appearing for the States includ ing that of Nagaland that affidavits as directed have been filed.
Mr. Jain appearing in support of the writ petition has asked for a direction to the State to set up Advisory Boards both at the State and the District levels, as contem plated in the scheme so that implementation of the various provisions of the Act can be facilitated.
We are of the view that for the present the Board in terms of the provision of the scheme should be set up at the State level and steps at the District level may be deferred for the present.
Each of the States including the State of Jammu & Kash mir to which the scheme would apply though not under the Act in view of its consent, is directed to set up its Advisory Board in terms of the scheme.
Implementation of the Act would be convenient if in the Board to be set up the Minis ters of Law and Social or Children 's Welfare, as the case may be, the Secretary to Government in the relevant Depart ment, the Head of the Police Establishment (Director General or the Inspector General, as the case may be), the Head of the Health Directorate, two members of the Bar with appro priate aptitude, an acknowledge lady social worker, a Member of Parliament and a Member of the State Legislature, one or two social workers of .acknowledged repute preferably con nected with children 's rehabilitation activity are included.
It would be open to the State Government to make small variations depending upon the requirements of any particular State.
The total number of the Advisory Boards should not be below 15 and not above 20.
The State Government should indicate 36 as to who would be the Chairman and Secretary respectively of the Board.
Such Committee should be set up within six weeks from today and report of compliance shah be filed with the Registry of this Court within eight weeks.
The first meeting of the Board should be within four weeks of its constitution and every such Board is directed to send its first proceeding to the Registry.
| IN-Abs | In a public interest application filed under Article 32 of the Constitution for enforcement of fundamental rights under Articles 14 and 21 of the Constitution being denied to the hundreds of juvenile delinquents, all over the country, the Supreme Court had issued directions from time to time.
Issuing further directions in the matter, this Court, HELD: For the present the Advisory Board in terms of the provision of the scheme for facilitating the monitoring of the implementation of the Act should be set up at the State level and steps at the District level may be deferred.
[35E] Each of the States, including the State of Jammu & Kashmir to which the scheme would apply, by its consent, is directed to set up its Advisory Board in terms of the scheme.
The total number of the Advisory Boards should not be below 15 and not above 20.
The State Government should indicate as to who would be the Chairman and Secretary respectively of the Board.
Such Committee should be set up within six weeks and report of compliance filed with the Registry of this Court within eight weeks.
The first meeting of the Board should be within four weeks of its constitution and every such Board should send its first proceeding to the Registry, [35F, H, 36A B]
|
iminal Appeal No. 69 of 1956.
Appeal by special leave from the judgment and order dated November 18, 1955, of the Orissa Hioh Court at Cuttack, in Criminal Revision No. 20 of 1955 arising out of the Judgment and order dated December 23, 1954, of the Court of the Sessions Judge at Sambalpur in Criminal Appeal No. 111(S) of 1954.
Tara Chand Mathur and K. L. Arora, for the appellant.
N.S. Bindra and R. H. Dhebar for the respondent.
August 19.
The Judgment of the Court was delivered by IMAM J.
This appeal by special leave is limited to the question ' whether transport includes possession, and so the double punishment for possession and transport is not warranted by law 's stated in ground (xi) of the petition for special leave.
On the facts found there can be no question that the appellant went in a rickshaw from the Sambalpur Road Railway Station to the State Transport Bus Stand with a trunk and a bedding in order to proceed to a place called Bargarh.
He bought a ticket for Bargarh and took his seat in the bus after loading his trunk and bedding on top of it.
On information received by the Officer in charge of Sadar Police Station of Sambalpur, the bus was detained near the 148 1164 police station, while on its way, and all the trunks and beddings on it were unloaded, and the passengers of the bus were asked to take their respective trunks and beddings.
The passengers took their trunks and beddings.
One trunk and a bedding, however, remained on the ground.
The appellant claimed the bedding to be his own, but denied the trunk to be his property.
The bedding and the trunk were brought to the thana and the trunk was opened.
The trunk contained opium weighing six seers and six and half chhataks.
On the facts found, the trunk was identified as that of the appellant, and there can be no question that he was in possession of the opium.
The only question for consideration, having regard to the limited ground upon which special leave was granted, is whether the appellant could also be punished for being in possession of opium, as it is suggested that transport ' includes I possession '.
The appellant was sentenced under section 9 (a) for possession ' of opium and under section 9(b) for 'transport ' of opium, and sentenced to undergo rigorous imprisonment for three months tinder each count, the sentences to run consecutively.
Section 4 of the Opium Act, 1878 (Act 1 of 1878) reads as follows: "Except as permitted by this Act, or by any other enactment relating to opium for the time being in force, or by rules framed under this Act or under any such enactment, no one shall (a) possess opium; (b) transport opium; . . . . . . . . .
It is clear from the provisions of section 4 that no one shall possess opium or transport opium, except under the circumstances mentioned in the section.
Section 9 provides that: " Any person who, in contravention of this Act, or of rules made and notified under section 5 or section 8 (a) possesses opium, or (b) transports opium . . . . . . . . . . 1165 shall, on conviction before a Magistrate, be punished for each such offence with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
" This was the provision in section 9 before its amendment by Act 111 of 1957 which provided that on conviction before a Magistrate, a person convicted of any of the offences mentioned in section 9 shall be punishable for each such offence with imprisonment which may extend to three years, with or without fine.
We are, however, not concerned in this particular case with the punishment provided by the amendment, as the offence was committed previous to it.
The provisions of the Opium Act make it clear that possession of opium and transport of opium contrary to the provisions of the Act or any other enactment relating to opitum or to rules framed under the Act, are two separate offences.
Mere possession of opium may not, on the proved facts of a particular case, involve any question of transporting it.
Transport of opium may, in certain circumstances, include the element of possession, while in other cases, it may not.
A person may transport opium through various agencies and yet not be in possession of it at the time it was trans ported.
On the other hand, a person may transport opium and yet be in possession of it.
In the latter case, such a person would be guilty both of transporting opium and being in possession of it.
Under the Act, 'transport ' means to remove from one place to another within the, same State '.
A person may remove opium and be in possession of it while removing it, and he can also remove, it from one place to another within the same State in circumstances when while removing it he is not in possession of the opium.
The intention of the Legislature appears to have been that neither possession of doium nor transporting of opium was permissible, if such possession or transporting was in contravention of the provisions of the Opium Act or any other enactment relating to opium, or rules framed under the Opium Act.
It seems therefore that where a person transports opium and is in possession of it at the time he was transporting it, he has committed 1166 two offences, viz., (1) of transporting opium; and (2) of possessing opium.
He can therefore be convicted for both the offences.
As to the sentence which can be imposed, reference to section 35 of the Code of Criminal Procedure and section 71 of the Indian Penal Code is necessary.
Section 35 of the Code of Criminal Procedure provides that where a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code, sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict ; such punishments, when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishment shall run concurrently.
Section 35 therefore permits the passing of separate sentences for different offences and for them to run consecutively unless the Court directs that they shall run concurrently.
This, however, is subject to the provisions of section 71 of the Indian Penal Code.
Section 71 of the Indian Penal Code provides: " Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.
" It is clear from these provisions that where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the offender shall not be punished with a more severe punishment than the 1167 Court which tries him could award for any one of such offences.
The maximum sentence which could have been imposed upon the appellant for any one of the offences of which he had been convicted was one year 's imprisonment.
In other words, even if separate sentences were passed under section 9, sub sections (a) and (b), the sum total of these sentences should not exceed one year 's imprisonment.
In the present case, the sentence imposed upon the appellant has been in all 6 months, 3 months ' imprisonment under each count.
It would appear, therefore, that the sentence passed upon the appellant did not contravene the provisions of section 71 of the Indian Penal Code.
In our opinion, the appellant , %,as rightly convicted under section 9 (a) and (b) of the Opium Act, and there has been no illegality in the sentence imposed upon him.
It was strongly urged on behalf of the appellant that there might be a reduction in the sentence.
Instead of a sentence of imprisonment being imposed, the appellant may be sentenced to a substantial fine.
In our opinion, offences against the Opium Act are serious ones, and we cannot accede to the request made.
A sentence of 6 months ' imprisonment cannot be considered as unduly severe.
The appeal is accordingly dismissed.
| IN-Abs | The appellant was caught while he was himself transporting opium.
He was convicted under section 9(a) of the Opium Act for posession " of opium and under section 9(b) of the Act for " transport of opium and was sentenced to undergo rigorous imprisonment for three months under each count, the sentences to run consecutively.
The appellant contended that " transport " included " possession " and so the double punishment for possession and transport was not warranted by law : Held, that possession of opium and transport of opium are two separate offences and the appellant could be convicted for 1163 both the offences.
Transport of opium may, in certain cases, include the element of possession, and in other cases, it may not.
A person transporting opium through other agencies may not be in possession of it at the time it was transported.
But a person transporting opium himself would be in possession of it and would be guilty of both offences.
The sentence passed upon the appellant did not contravene the provisions of section 71 of the Indian Penal Code.
Section 71 provides that where anything is an offence falling within two or more separate definitions of the law, the offender shall not be punished with a more severe punishment than that provided for any one of such offences.
Though separate sentences were passed against the appellant unders .9(a)and(b),the sum total of these sentences did not exceed one year 's imprisonment the maximum provided for any of these offences.
|
ivil Appeal Nos.
3694 3695 of 1989.
From the Judgment and Order dated 22.9.
1987 of the Kerala High Court in O.P. Nos.
4932 of 1983 and 1091 of 1982.
T.S. Krishnamurthy Iyer and E.M.S. Anam for the Appel ants.
P.S. Poti and P.K. Pillai for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Special leave granted.
We have heard learned counsel for the parties.
In disposing of the appeal against a decision of the Forest Tribunal under the provisions of the Kerala Private Forests (Vesting & 39 Assignment) Act, 1971, a Division Bench of the Kerala High Court in MFA No. 401/78 disposed of on 14th of July, 1980, directed: "It follows that out of 102 acres 25 acres over which teak was planted in 1967 and euca lyptus was planted in 1955 will be private forest coming within the Private Forests (Vesting & Assignment) Act.
But since this area is under the personal cultivation of the respondent she will be entitled to 15 acres under Section 3(2) of the Act.
The rest 10 acres will vest with the Government.
In the result the appeal is partly allowed and the order of the lower court is modified as follows: It is declared that 75 acres over which the respondent had planted teak wood, orange and soft wood prior to 14th December, 1949, is held to be not a private forest under the Madras Preservation of Private Forests Act, 1949 and Kerala Private Forests (Vesting & Assignment) Act, 26 of 197 1.
But of the rest 2 acres over which the respondent had planted cashew is declared to be not a private forest under Section 2(f)(1)(i)(A) and (C) of the Act.
Another 15 acres under the personal cultivation of the respondent is also held not to vest under the above Act under Section 3(2) of the Act.
The Custodian shall demarcate this 15 acres in such a manner that it will be convenient for the enjoyment of the respond ent.
The balance 10 acres will vest.
with the Government.
With the demarcation and identifi cation of that 10 acres the case is sent back to the Forest Tribunal.
If the Custodian has taken possession of the area declared not to vest, he will surrender the same to the re spondent forthwith . ." In terms of this judgment 92 acres (being the total of 75 acres + 15 acres + 2 acres) were to be given back to the appellants.
In the process of implementation of this direc tion certain lands were returned to the appellants by the Forest officials.
These lands constituted thick forests and had valuable trees thereon.
This fact was realised by the higher officers of the Department and timber transit permits were not issued to the appellants when applied for.
There upon the appellants filed a writ petition before the High Court for a direction to the State Government and its offi cers to issue the requisite transit permits to enable the appellants to transport the rosewood trees and other 40 timber.
The claim contested.
The High Court came to the conclusion: "It is made clear that the petitioners are not entitled to any relief with regard to rosewood and other trees cut from the lands which do not form part of the lands ordered to be restored to the petitioner in O .P.
No. 4832 of 1983 and are vested in the Government.
With respect to the trees cut from the properties ordered to be restored to the petitioner, respondents 1 to 3 are directed to consider the applications filed by the petitioner for issue of transit permits and pass appropriate orders according to law.
Before determining this question also the respondents may give an opportunity to both the petitioners to put forward their contentions and a final decision may be taken after considering their objec tions.
" This order of the High Court is the subject matter of the present appeal.
In an affidavit filed in this appeal by the conservator and Custodian of Vested Forests it has been accepted that in terms of the judgment of the High Court in MFA No. 40 1/78, 92 acres were found not to vest in the State under the Act.
In the judgment the survey numbers with the respective extents had been furnished.
It is stated that 12 acres had not been taken possession of and, therefore, surrender had to be made of 80 acres only.
A further affidavit has been filed by the said Custodian where it has been said: "Hence only 80 acres are to be restored and out of this 56.31 acres have admittedly been restored already.
For the remaining 23.69 acres, Government are pleased to restore the same as follows vide G.O. Rt.
No. 1345/82/AD dated 24.5.82, in lieu of the land wrongly handed over to the petitioner.
Survey No. Area to be restored.
1518 10.19 acres 1580 6.03 acres 1580 7.47 acres" It has been further stated therein that in case any part of such land is not available, the Government are prepared to pay reasonable compensation for such shortfall as if the same had been acquired by the State for a public purpose.
41 We are of the view that the High Court was right in refusing to act upon the footing that pursuant to the direc tion by the High Court about 36 acres of land containing forest growth had been surrendered to the appellants and, therefore, they were entitled to appropriate the trees.
In fact within the ambit of the writ petition as filed before the High Court, the only question that fell for considera tion was whether timber transit permits should or should not be issued to the appellants to enable them to transport the felled timber from the area which should not have been delivered to the appellants.
Since we do not intend to differ from the High Court on that issue this appeal de serves to be dismissed but with a view to doing complete justice to the parties and give a final verdict in the matter we had enquired from Mr. Poti appearing for the respondent State on 27.3.1989 as to how Government proposed to comply with the binding direction of the High Court given in the first appeal.
The affidavit of 24th of June, 1989 by the Custodian of Vested Forests is in answer to that query.
We would like to reiterate that the appellants are entitled to return of 92 acres of land and not 80 acres.
This is on the ground that the direction of the High Court in the first appeal became final and in terms of such direc tion 92 acres were to go back to the appellants.
Government had no authority to alter the decision by an .administrative order as has been done on 22.5.1982.
There is no dispute that 56.31 acres have been restored to the appellants.
By the affidavit of 24th of June, 1989, 23.69 acres have been offered to be restored from three survey numbers indicated therein.
With the restoration of 23.69 acres the appellants would have got back 80 acres of land.
There would still be 12 acres to be returned to the appellants.
The respondents shall have a direction to trace these 12 acres in the local ity and make over vacant possession to the appellants there of within four months hence.
In case 23.69 acres or any part thereof as indicated in the affidavit cannot be delivered possession and the balance 12 acres are not identified and possession thereof cannot be delivered, the appellants shall be entitled to compensation in respect of the shortfall out of 35.69 acres in all which remain to be delivered and compensation for such shortfall shall be determined as if it were acquisition under the provisions of the Land Acquisi tion Act, the date of the preliminary notification being deemed to be the date of judgment in MFA 401/78.
The direc tions indicated above shall be worked out by the respondents within a total period of six months from today.
The High Court called upon the respondents to consider the appellants ' plea for timber transit permits in respect of trees cut from 42 certain other lands.
There is no material on record as to whether that has been complied with.
In case the respondents have not done the same yet they are directed to comply with the order of the High Court within three months from today.
The appeal is allowed in part.
Parties are directed to bear their respective costs.
Appeal allowed partly.
| IN-Abs | The High Court, in an appeal against a decision of the Forest Tribunal, under the provisions of the Kerala Forests (Vesting & Assignment) Act, 1971, held that 92 acres of forest land were to be given back to the appellants.
Accord ingly, the Forest Department returned certain lands.
Later on they realised that the lands constituted thick forests and had valuable trees thereon and refused the timber trans it permits applied for by the appellants.
Aggrieved against the decision, the appellants ap proached the High Court by way of a Writ Petition.
The High Court held that the appellants were not entitled to any relief with regard to rosewood and other trees cut from the lands that did not form part of the land ordered to be restored to them.
The High Court directed the Forest Depart ment to consider the application of the appellants and pass appropriate orders after giving an opportunity to the appel lants to put forward their contentions.
This appeal, by special leave, is against the said order of the High Court.
Allowing the appeal in part, HELD: 1.1 The appellants are entitled to return of 92 acres of land and not 80 acres.
This is on the ground that the direction of the High Court in the first appeal became final and in terms of such direction 92 acres were to go back to the appellants.
Government had no authority to alter the decision by an administrative order as has been done in this case.
[41D] 1.2 There is no dispute that 56.31 acres have been restored to the appellants.
By the affidavit of 24th June, 1989, 23.69 acres have been 38 offered to be restored from three survey numbers indicated therein.
With the restoration of 23.69 acres the appellants would have got back 80 acres of land.
There would still be 12 acres to be returned to the appellants.
The respondents shall have a direction to trace these 12 acres in the local ity and make over vacant possession to the appellants there of within four months.
[41E] 1.3 In case 23.69 acres or any part thereof as indicated in the affidavit Cannot be delivered possession and the balance 12 acres are not identified and possession thereof cannot be delivered, the appellants shall be entitled to compensation in respect of the shortfall out of 35.69 acres in all which remain to be delivered and compensation for such shortfall shall be determined as if it were acquisition under the provisions of the Land Acquisition Act, the date of the preliminary notification being deemed to be the date of judgment of the Division Bench in MFA 401/78.
The direc tions indicated above shall be worked out by the respondents within a total period of six months.
[41F G] 2.
The High Court called upon the respondents to consid er the appellants ' plea for timber transit permits in re spect of trees cut from certain other lands.
There is no material on record as to whether that has been complied with.
In case the respondents have not done the same yet, they are directed to comply with the order of the High Court within three months.
[41H; 42A]
|
ivil Appeal No. 408 of 1980.
From the Judgment and Order dated 21.12.79 of the Alla habad High Court in Second Appeal No. 1235 of 1974.
Mrs. section Swaran Mahajan and Arun Madan for the Appellants.
S.K. Mehta for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is a tenants ' appeal by special leave from the judgment and order of the High Court of Allahabad.
The question involved in this appeal.
as is usual, in all these cases, is what is just in the circum stances and events that have happened.
The premises in question is in the village and P.O. Dhampur in the District of Bijnor in the State of Uttar Pradesh.
The suit was filed in 1967.
The suit for the evic tion of the appellants was filed on the ground that tenants had made material alteration in the property and as such became liable for ejectment in view of section 3(1)(c) of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as 'the Act of 1947 ').
The said section 3 in the said provision enjoins that no suit without the permission of the District Magistrate shall be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the grounds enumerated therein and clause (c) of sub section (1) of section 3 was as follows: 11 "that the tenant has, without the permission in writing of the landlord, made or permitted to be made any such construction as, in the opinion of the court, has materially altered the accommodation or is likely substantially to diminish its value;" It appears that the constructions on the basis of which eviction of the tenants was claimed were not in dispute and were not disputed at any stage.
These were (i) that the tenants have placed a khaprail in place of khasposh; (ii) Kuchha kothas had been converted into pucca ones which were six in number; (iii).
an open place had been enclosed and included in the accommodation in question.
The action was contested.
It was asserted by the tenants that these con structions had been made in order to save the buildings from rain water and fire and that these constructions were not such as would make the tenants liable for ejectment within the meaning of section 3 of the Act of 1947.
It was further contended that these constructions had been made with the knowledge and consent of the landlord.
The learned trial Judge, which in this case was the court of learned Munsif at Nagina, by its order dated 17th December, 1968 and the first Appellate Court, which is the Civil Judge, by its order dated 16th February, 1984 have found that the constructions had been made by the tenants without the consent and knowl edge of the landlord and that the constructions in question amounted to "material alterations".
On these grounds, the landlord 's suit was decreed and the appeal by the tenants was dismissed.
The tenants went in second appeal before the High Court.
The High Court found that these alterations had been made, namely, the conversion of six kuchha kothas into pucca one and this was done after demolition of the old constructions.
After the old construction had ceased to exist, entirely new constructions had come up in their place.
This, according to the High Court, came within the meaning of structural alterations in the building.
The High Court further found that the accommodation had been increased by enclosing the nearby open space and that again must have been done by raising walls either connecting the various kothas or in some other way.
In either case, the High Court found, the shape and the extent and preparation of the accommodation had been increased and was thereafter differ ent than what it was before.
In those circumstances, the High Court came to the conclusion that the alterations admittedly made by the tenants were "material alterations" and as such came within the mischief of section 3(1)(c) of the Act of 1947.
In the aforesaid view of the matter, the High Court dismissed the second appeal and granted two months ' time 12 to the tenants to vacate.
The judgment and the order of the High Court was passed on 21st December, 1979.
Leave was granted by this Court under Article 136 of the Constitution on 18th February, 1990.
Since then, this appeal is before this Court.
As mentioned hereinbefore, the action was instituted under the aforesaid Act of 1947, which was the temporary Act.
We have set out the relevant provisions of the Act.
It is apparent from the said provisions that the ground for eviction could be either such construction which materially altered the accommodation or in the alternative is likely to substantially diminish its value.
These are the disjunctive requirements.
This Court had occasion to construe section 3(1)(c) of the Act of 1947 in Babu Manmohan Das Shah & Ors.
vs Bishun Das; , and was confronted with the question whether the landlord was entitled to evict the tenant if the alterations were material alterations only or whether proof was also necessary of the diminished value of the property as a result of such alteration.
This Court had also occasion to consider what amounted to 'material altera tions ' under the said Act.
This Court noted that the lan guage of the clause (c) of section 3(1) of the Act of 1947 made it clear that the legislature wanted to lay down two alter natives which would furnish ground to the landlord to sue without the District Magistrate 's permission, that is, where the tenant has made such construction which would materially alter the accommodation or which would be likely to substan tially diminish its value.
Therefore, these are disjunctive or alterative requirements.
This Court further held that although no general definition can be given of what "materi al alterations" mean, as such a question would depend on the facts and circumstances of each case, the alterations in that case amounted to "material alterations" as the con struction carried out by the tenant had the effect of alter ing the form and structure of the accommodation.
In the facts and circumstances of the instant appeal before us, all the courts have accordingly found that construction carried out by the tenants have the effect of altering the form and structure of the accommodation.
In view of the contentions urged by Mrs. Swaran Mahajan, it has to be borne in mind that the trial court passed its order on 17th December, 1968 well before the time when the Act of 1972 being the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (13 of 1972) (herein after referred to as 'the Act of 1972 ') came into force.
The said Act came into force on 20th September, 1972.
The rights of the parties have crystallised after the institution of the suit which was during the continuance of Act of 1947, and before the Act 13 of 1972.
The appellants in this appeal could not dispute that there were material alterations.
It could not also be disputed before us by Mrs. Mahajan counsel on behalf of the tenants that under the law as it stood and the law as ex plained in Babu Manmohan Das Shah 's case (supra), it was not necessary at that time to further prove that the alteration has or is likely to diminish the value of the property.
But what Mrs. Mahajan has sought to canvass before us is that under section 20(2)(c) of the Act of 1972, the ground is that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or struc tural alteration in the building as is likely to diminish its value or utility or to disfigure it.
Mrs. Mahajan there fore contends that now to make the tenants liable to be evicted it is necessary to allege and prove not only that construction has resulted in material alteration in the building but also that such construction is likely to dimin ish either the value or the utility of the building or disfigure it.
In this case, according to counsel for the appellants, that being in the possession, the eviction cannot any longer be sustained.
She drew our attention to section 20(2)(c) of the Act of 1972.
She relied on the observations of this Court in Qudrat Ullah vs Municipal Board, Barejify, ; In that case, this Court had to deal with the Act of 1947 as well as Act of 1972.
Krishna Iyer, J. speaking for this Court observed that the general principle regarding the consequence of repeal of a statute is that the enactment which is repealed is to be treated, except as to transactions past and closed, as if it had never existed.
The operation of this principle is subject to any savings which may be made expressly or by implication by the repeal ing enactment.
If the repealing enactment makes a special provision regarding pending or past transactions it is this provision that will determine.
Whether the liability arising under the repealed enactment survives or is extinguished.
Section 6 of the Uttar Pradesh General Clauses Act, 1904 applies generally, in the absence of a special saving provi sion in the repealing statute.
It was further observed that where a repeal is followed by a fresh legislation on the subject, the Court has to look to the provisions of the new Act to see whether they indicate a different intention.
Krishna Iyer, J. further observed in that case that Sec. 43(2)(h) of the Act of 1972 makes it clear that even if the power for recovery of possession be one under the earlier Rent Control Law, the later Act will apply and necessary amendments in the pleadings can be made.
This indicates that it is the later Act which must govern pending proceedings for recovery of possession or recovery or fixation of rent.
In that case, the suit was not even one under the Act but proceeded on the footing that the contractor was only a licencee and so none of the savings clauses in section 43(2) applied.
The provision relating to effect of 14 repeal under U.P. General Clauses Act was set out at p. 539 of the report.
section 43(2) of the Act of 1972 is, therefore, relevant.
Sub section (1) of section 43 of the Act of 1972 lays down that Act of 1947 is hereby repealed.
Sub section (2) makes provision for pending proceedings in different clauses.
Clause (h) of Sub section (2) provides as follows: "any court or authority before which any suit or other proceeding relating to the recovery or determination or fixation of rent of, or eviction from, any building is pending immedi ately before the commencement of this Act may, on an application being made to it within sixty days from such commencement, grant leave to any party to amend its pleading in conse quence of the provisions of this Act;" This clause was the subject matter of construction in the decision of this Court in Qudrat Ullah 's, case (supra).
Referring to the said clause, Mr. Justice Krishna Iyer observed at p. 540 of the report that it is clear that even if the statute for recovery of possession be one under the earlier Rent Control Law, the later Act will apply and necessary amendments in the pleadings can be made.
This definitely indicates, according to that decision, that it is the later Act that must govern pending proceedings for recovery of possession or recovery or fixation of rent.
But these observations made therein would not help Mrs. Mahajan, as contended by Mr. Mehta that the rights of the parties have crystallised before the coming into operation of the 1972 Act, and vested rights of the landlord had not been divested by clause (h) of section 43(2) of the Act of 1972.
On the other hand, section 43(2)(s) saves the right that have ac crued in favour of the landlord.
The said clause (s) reads as follows: "any suit for the eviction of a tenant insti tuted on any ground mentioned in sub section (1) of section 3 of the old Act, or any proceeding out of such suit (including any proceeding for the execution of a decree passed on the basis of any agreement, compromise or satisfaction), pending immediately before the commencement of this Act, may be continued and concluded in accordance with the old Act which shall, for that purpose, be deemed to continue to be in force;" Therefore, the suit which was filed on the ground that there was material alterations simplicitor under section 3(1)(c) of the Act of 1947 would continue to be valid after the coming into operation of Act of 15 1972 in view of clause (s) of sub section (2) of section 43 thereof.
That is the consequence of the language used.
The observations of this Court in Qudrat Ullah 's, case (supra) do not in any way suggest to the contrary.
Mrs. Mahajan tried to urged that the Act of 1947 was a temporary Act.
Therefore, it could not create any right in favour of the landlord after the expiry of the time.
This argument is under a misconception.
Neither the Act of 1947 nor the Act of 1972 gives any right to the landlord.
The landlord 's right to evict tenant is guided by the Transfer of Property Act.
The Act of 1947 gives protection to the tenants under certain conditions and at the time when the suit was filed, the rights of the parties had been crystallised.
On the facts as alleged and proved and found by the Court, the tenants were liable to be evicted.
The question of temporary rights in favour of the landlord does not arise.
Mrs. Maha jan further submitted that the new provisions of the Act should enlighten us to determine what is just in this case.
She submitted that it will be unjust in the facts and the circumstances of the case to permit eviction of the tenants on the ground of constructions which do not in any way alter or diminish the value of the premises in question.
She, on the other hand pleaded that the constructions made have improved the building.
Therefore, instead of being liable to be evicted, the tenants should be protected.
These are, of course, submissions not sustainable in law.
The rights of the parties must be determined in accordance with the provi sions of law.
What justice of the case entails, and what is just, due and the law says, is to be given to each one whether being a landlord or a tenant.
"The Judge is not to innovate at pleasure.
He is not a knigh errant roaming at will in pursuit of his own ideal of beauty or of goodness.
" Cardozo (The Nature of the Judicial Process, page 141).
If that is the position on the date when the rights crystallised and in view of sub section (s) of sec tion 43(2) of the Act of 1972, those rights will continue as if they were under the old Act.
The fight had accrued to the landlord to get the eviction even if the alteration had not in any way affected or diminished the value of the premises.
That right cannot be deprived.
But justice also consists in balancing the rights of the parties.
The tenants in this case, it.is said, are poor.
There was nothing to dispute this submission.
It is further said that these have been there for a long time.
In the aforesaid view of the matter, we dismiss the appeal but we direct that the tenants will not be evicted until 30th September, 1990 provided the tenants give the usual undertaking containing the usual terms and stating, inter alia, that they are in possession, within four weeks of this date.
The undertaking must be given by each of the 16 appellants.
In default of filing undertaking, the decree will be executable forthwith.
We must further observe that in view of the condition of the tenants if an application is made for allotment of any other area by these parties to the appropriate authority, and if the appellants are not in possession or occupation of other property, such authority should consider the feasibil ity of giving them fresh allotment of some other property.
The appeal is, therefore, dismissed.
In the facts and the circumstances of the case, the parties will bear and pay their own costs.
Y. Lal Appeal dis missed.
| IN-Abs | The appellants are the tenants of premises situated in the District of Bijnor.
The suit for their eviction was filed in 1967 on the ground that they (tenants) had made material alteration in the property and as such were liable for ejectment under section 3(1)(c) of the U.P. (Temporary) Control of Rent 'and Eviction Act 1947.
The appellants did not dispute the constructions in the demised premises, but asserted that the constructions in question had been made with a view to save the building from rain water and fire and the constructions were not such which would render them liable for eviction as contemplated under section 3 of the Act of 1947.
The appellants also pleaded that the construc tions were effected with the permission of the landlord.
The learned Munsif, who tried the suit held that the construc tions had been made by the tenants appellants without the consent/knowledge of the landlord and that the constructions amounted to "material alterations".
He accordingly decreed the landlord 's suit.
The First Appellate Court, which is the Civil Judge affirmed the decree of eviction by his order dated 16th Feb. 1984.
Thereupon the appellants went in second appeal before the High Court.
The High Court too dismissed the appeal.
It found that the constructions have been made by demolishing the old structures, by conversion of six Kuchha Kothas into pucca ones and an entirely new constructions had come up in their place.
It further found that the accommodation had been increased by enclosing the open space which must have been possible only by raising walls etc.
In any case, ac cording to the finding of the High Court, the property looked different from what originally it was.
Thus the alterations made by the appellants were material alterations and as such came within the mischief of section 3(1)(c) of the Act 1947.
9 Hence this appeal by the appellants tenants.
Dismissing the appeal, this Court, HELD: Under Section 3(1)(c) of the Act it is apparent that the grounds for eviction could be either such construc tion which materially altered the accommodation or alterna tively is likely to substantially diminish its value.
These are the disjunctive requirements.
In the facts and circum stances of the instant appeal, all the Courts have found that constructions carried out by the tenants have the effect of altering the form and structure of the accommoda tion.
[12B C; F] The suit which was filed on the ground that there were material alterations simpliciter under section 3(1)(c) of the Act of 1947 would continue to be valid after the coming into operation of Act of 1972 in view of clause (s) of Sub section (2) of section 43 thereof.
This is the consequence of the language used.
Neither the Act of 1947, nor the Act of 1972 gives any right to the landlord.
The landlord 's right to evict tenant is guided by the Transfer of Property Act.
The Act of 1947 gives protection to the tenants under certain conditions and at the time when the suit was filed, the rights of the parties had been crystallised.
On the facts as alleged and proved and found by the Court, the tenants were liable to be evicted.
The question of temporary rights in favour of the landlord does not arise.
[14H; 15A C] The rights of the parties must be determined in accord ance with the provisions of law.
What justice of the case entails and what is just, due and the law says, is to be given to each one whether being a landlord or a tenant.
"The Judge is not to innovate at pleasure.
He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness" (Cardozo The Nature of the Judicial process page 141).
If that is the position on the date when the rights crystallised and in view of clause (s) of section 43 (2) of the Act of 1972, those rights will continue as if they were under the old Act.
The right had accrued to the landlord to get the eviction even if the alteration had not in any way affected or diminished the value of the premises.
That right cannot be deprived.
[15D F] Considering the fact that the tenants are poor and in possession since long, the Court directed that the tenants will not be evicted until 30th September 1990 provided the tenants give 'the usual undertaking containing the usual terms stating, inter alia, that they are in possession, within four week of this date.
The undertaking must be given by 10 each of the appellants.
default of filing of undertak ing, the decree will be executable forthwith.
[15H; 16A] The Court further observed that in view of the condition of the tenants, if an application is made for allotment of any other area by these parties to the appropriate authori ty, and if the appellants are not in possession or occupa tion of other property, such authority should consider the feasibility to give them fresh allotment of some other property.
[16B] Babu Manmohan Das Shah & Ors.
vs Bishun Das, ; and Qudrat Ullah vs Municipal Board, Bareilly, ; , referred to.
|
l Appeal Nos.
2436 37 of 1987 etc.
From the Judgment and Order dated 2.4.1983 of the Cus toms, Excise and Gold Control Appellate Tribunal, New Delhi in Appeal No. ED (T)/SB/64/76 D and ED(SB)(T) A. No. 61/76 D in Order Nos.
D 169 and 170 of 1983.
V.C. Mahajan, A. Subba Rao and C.V. Subba Rao for the Appellant.
Soli J. Sorabjee, P.H. Parekh, M.K. Pandit and J.P. Pathak for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
These are three appeals by the Collector of Central Excise.
Two of them relate to Ahmedabad and one to Bombay.
The Ahmedabad appeals are in the case of M/s Ashoka Mills Ltd. and the Bombay appeal is in the case of M/s Mafatlal Fine Spinning and Manufacturing Co. Ltd. These appeals raise a very interesting question.
88 The assessee respondents are companies manufacturing yarn and cotton fabrics, the manufacture of yarn being a step in the process of.
the manufacture of cotton fabrics.
Cotton fabrics (which expression included all fabrics con taining more than 40% by weight of cotton) were subject to excise duty on an ad valorem basis under item 19 of the tariff in the First Schedule to the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act ').
"Yarn, all sorts, not elsewhere specified . . "became liable to duty under item 18E of the First Schedule under the Finance Act, 1972 w.e.f. 17.3.72.
The consequence was that, from 17.3.72, the yarn which was being produced by the appellants became liable to duty under item 18E while the fabric manu factured by them was dutiable under item 19.
The Central Government decided to give two categories of assessees the benefit of the provisions of Rules 96 V & W of the Central Excise Rules: (i) assessees manufacturing woollen yarn; and (ii) assessees manufacturing cotton yarn or yarn falling under item 18E and using the same wholly or partly, in the manufacture of fabrics in their own factory.
These rules appeared in Chapter V of the Rules as Section E. VI, headed "Cotton yarn, woollen yarn, yarn falling under tariff item 18E Special Procedure".
This Section in the rules was inserted by notification No. 110/61 dated 20.4.61 and omitted by notification No. 146/77 dated 18.6.77.
They read thus: "96 V Application to avail of special proce dure , (1) Where a manufacturer who manufactures cotton yarn, yarn falling under item 18E of the First Schedule to the Central Excises & Salt Act, 1944 (1 of 1944) or woollen yarn and in the case of cotton yarn of yarn falling under item 18E of the First Schedule to the Central Excises & Salt Act, 1944 (1 to 1944) uses the whole or part of the yarn manufac tured by him in the manufacture of cotton fabrics in his own factory, makes in the proper form an application to the Collector in this behalf the special provisions contained in this section shall, on such application being granted by the Collector, apply to such manufacturer in substitution of the provisions contained elsewhere than in this section for the period in respect of which the application has been so granted.
(2) Such application shall be made so as to cover a period of not less than six consecutive calendar months, but may 89 be granted for a shorter period in the discre tion of the Collector.
(3) If at any time during such period, the manufacturer does not want to avail himself of the special provisions contained in this section, he shall give a notice in writing to the proper officer of his intention at least one week in advance; and if he fails to give such notice he shall be precluded from avail ing himself of such provisions for a period of 6 months from the date of such failure.
96 W. Discharge of liability for duty on payment of certain Sum, (1) Having regard to the average production of cotton fabrics from one kilogram of cotton yarn or yarn falling under item 18E of the First Schedule to the Central Excises & Salt Act, 1944 (1. to 1944) or the average prevail ing prices of woollen yarn the Central Govern ment may, by notification in the Official Gazette, fix from time to time a rate per square metre of the cotton fabrics produced or per kilogram of the woollen yarn produced, as the case may be, subject to such conditions and limitations as it may think fit to impose, and if a manufacturer whose application has been granted under rule 96V pays a sum calcu lated according to such rate, in the manner hereinafter laid down, such payment shall be a full discharge of his liability for the duty leviable on the quantity of cotton yarn of yarn falling under item 18E of the First Schedule to the Central Excises & Salt Act, 1944 (1 of 1944) manufactured by him and used in the manufacture of fabrics in his factory or the quantity of woollen yarn produced by him: 1.
Provided that if there is an alteration in the rates of duty and/or in the limit of exemption, the sum payable shall be recalcu lated on the basis of the revised rates and/or exemption limit from the date of alteration and liability for duty leviable on the quanti ty of cotton yarn or yarn falling under item 18E of the First Schedule to the Central Excises & Salt Act, 1944 (1 to 1944) used in the manufacture of cotton fabrics or woollen yarn produced shall not be discharged unless differential duty is paid.
90 (a) in the case of such cotton yarn, or yarn falling under item 18E of the First Schedule to the Central Excises & Salt Act, 1944 (1 of 1944) as on the date of clearance of the aforesaid cotton fabrics, and (b) in the case of woollen yarn, as on the date of clearance of such woollen yarn from the factory of the manufacturer; should, however, the amount of duty so recalculated be less than the sum paid, the balance shall be refunded to the manufacturer.
(2) The rate specified under sub rule (1) shall be separately and distinctly notified, and shall be separately and distinctly ap plied, in respect of (i) cotton yarn and (ii) woollen yarn.
(3) The sum payable under sub rule (1) in respect of cotton yarn shall be paid by the manufacturer along with the duty on fabrics in the manner prescribed in rule 52.
Provided that where cotton fabrics are allowed to be removed in bond under rule 96 D from one factory to another (hereinafter referred to as the processing factory) for processing and the cotton fabrics also processed are cleared from the processing factory, the duty payable under sub rule (1) shall be paid by the licencee of the processing factory.
A notification as envisaged by Rule 96V was issued, being notification No. 62/72, on 17.3.72.
It reads as follows: "In pursuance of rule 96 W of the Central Excise Rules, 1944, the Central Government hereby directs that the rate of duty in re spect of yarn containing partly more than 40 per cent by weight of cotton and partly any other fibre or fibres, the wool or silk con tent being less than 40% by weight of such yarn (where such yarn contains wool or silk) and falling under Item No. 18E of the First Schedule to the and of the description specified in column (2) of the Table hereto annexed, shall be the rate specified in the corresponding entry in column (3) of the said Table.
91 THE TABLE section No. Description of yarn Rate (1) (2) (3) Paise per square metre of the fabric made.
Yarn used in making super 20.00 fine fabrics.
Yarn used in making fine fabrics.
12.00 3.
Yarn used in making medium 6.00 fabrics.
Yarn used in making 4.40 medium fabrics.
Yarn used in making coarse fabrics.
2.20 6.
Yarn used in the manufacture 4.40 of cotton fabrics generally described as Malimo type fabrics or fabrics in which warp and weft yarns are connected and fastened together by chain stiches baned against each other.
Yarn used in making embriodery The duty for the in the place in steps or in time being leviable motifs.
on yarn contained in the base fabrics if not already paid.
Yarn used in making fabrics do impregnated or coated with preparation of cellulose derivations or of other artificial plastic materials.
Provided that if the manufacturer elects to avail himself of the special provisions con tained in rule 96 W aforesaid, the procedure set out in that rule in this behalf shall uniformly apply to all the yarn of the de scription specified in the above table and used by him in the production of cotton fab rics in his factory.
92 Explanation: For the purpose of this notification (i) "base fabrics" shall have the same meaning as assigned to it in tariff item No. 19 of the first schedule to the Central Excises & Salt Act, 1944 (1 to 1944) (ii) the average count of yarn in a fabric shall be deemed to be the count of all yarn contained in such fabric.
" Rules 96 V & W, it will be noticed, deal with two items: cotton yarn or yarn falling under item 18E of the First Schedule and woollen yarn.
Normally, under the Schedule to the Act, woollen yarn was being charged to excise duty on an ad valorem basis while cotton and other yarn was being assessed on weight basis.
The rules cited above and the notification referred to, however, provided an alternative, on the application of the assessee.
On a notification being issued and the assessee 's option being exercised, duty on woollen yarn became payable on the basis of weight at the rates prevalent at the time of clearance of the yarn from the factory.
If the rates had gone up in the meantime, the assessee had to pay the differential duty and if the rates had gone down, the assessee would be entitled to a refund.
Thus the assessee was given the option of paying the duty on the woollen yarn on weight basis at the rates prevalent on the date of their clearance.
We are not concerned with this here.
So far as cotton and other yarn is concerned, the duty, in cases governed by a notification and application under this Section, would be levied not on the weight of the yarn manufactured but on the extent of fabric manufactured from such yarn.
Naturally, this duty could be calculated only after the fabric had been manufactured, on the basis of the area of cloth or fabric manufactured.
This would create a doubt whether the duty on yarn under the scheme is payable on the production of yarn or on the date of clearance of the fabrics.
Sub section (3) of section 96 W clears this doubt.
It provides that the duty would be paid along with the duty payable on the fabrics under rule 52.
This clearly shows that it is not the incidence of liability that is shifted but only the collection of the duty.
The purpose of the rules and notifications may be briefly set out thus.
As already mentioned both yarn and fabrics are individual items exigible to duty.
Two levies on the yarn as well as on the cotton fabrics, on different bases, may not only impose an undue burden on 93 the manufacturer but may also unnecessarily complicate the process of collection of duty at two stages.
The Act, there fore, envisages what has been described as a scheme of "compounded levy".
Under this scheme, the excise duty on the yarn is collected only as and when the manufactured goods, namely, cotton fabrics are cleared from the factory and no duty is collected at the stage of the production or manufac ture of yarn.
The duty paid as per this notification is treated as a full discharge of the assessee 's liability for the duty leviable on the yarn used by the assessee for manufacture of fabrics in its factory.
To sum up briefly, rules 96 V and 96 W, together with the notification issued thereunder are concerned only with the issue of the excise duty leviable in respect of yarn and what they seek to achieve are: (a) the alteration of the basis of duty from a rate calculated on the weight of yarn produced to a calculation on the basis of the area of fabric manufactured therefrom; (b) the postponement of the collection of the duty till the point of clearance of the fabrics; and (c) the levy of the duty at rates prevalent not on the date of production of the yarn but on the date of clearance of the fabric.
If the notification of 17.3.1972 had continued in force, there would have been no difficulty in its application.
However, on 24.7.1972, the Government issued Notification No. 169 of 1972, the result of which was that the special procedure referred to above was made inapplicable to the type of yarn manufactured, used for weaving and cleared by the appellants.
The short question in these appeals is as to the effect of this omission in respect of yarn produced after 17.3.72 and cleared for captive consumption before 24.7.72 but lying in various departments at various stages of manufacture or in the form of cotton fabrics not yet cleared as on 24.7.72.
The Department has taken the view that in respect of the yarn manufactured between 17.3.72 and 23.7.72 the assessee is liable to pay the normal duty pay able on yarn under Item 18E so long as the fabrics manufac tured out of such yarn remained uncleared from the factory as on 24.7.72.
On the other hand, the assessee 's contention is that excise duty on yarn is attracted as soon as it is produced and cleared for captive consumption though kept in abeyance and collected, so long as the notification was in force, till the corresponding fabrics were cleared.
The assessee is not liable to pay any higher duty in respect thereof unless one could bring it within the terms of the proviso to the notification.
The short contention is that 94 the proviso applies only in a case where the notification under section 96 W continues to be in force and there is a change in rates under the scheme of compounded levy intro duced by the notification but not where the difference in rates is one between those prevailing on the date of produc tion of yarn under the scheme and the date of clearance of the goods after the abandonment of the scheme.
The Customs, Excise & Gold Control Appellate Tribunal (CEGAT) accepted the contention of the assessee following its earlier decision dated 2.4.1983 in M/s Raipur Manufac turing Co. vs Collector of Central Excise, Ahmedabad, It held that the yarn cleared for captive consumption during the period from 17.3.
1972 to 23.7.
1972 in terms of the special procedure was entitled to the bene fit of the rates fixed under Notification No. 62/72 CE dated 17.3.1972 and that no further duty was payable on that quantity of the yarn.
A consequential refund to the appel lants was directed.
We notice that this order of the Tribu nal was followed by another Bench of the Tribunal in its order dated 20.7.1983 and this decision had been reported much earlier as Crown Spinning & Manufacturing Co. Ltd. vs Collector, The Collector, Central Excise has preferred these appeals.
We have come to the conclusion that the view taken by the Tribunal has to be upheld. 'Yarn ' is an excisable com modity and it is common ground before us that, normally and but for the special procedure and notification, duty thereon is leviable at the point of production and clearance for captive consumption.
On that view, the duty attaches itself at the point of production and clearance of the yarn.
The notification does not alter this position.
it does not shift the incidence of duty from yarn to the woven fabric.
It still talks only of the liability of the yarn to duty and proceeds to provide only for its postponed collection.
If we are right on this, the duty on such yarn produced between 17.3.72 and 24.7.72 has to be determined in accordance with the rates specified in the notification, though such rates may have to be calculated in terms of the area of the fabric cleared on or after 24.7.1972.
The duty cannot be determined at the rates specified for yarn under item 18E as applicable on the dates of clearance of the fabric manufactured by using the yarn.
To hold otherwise would really mean holding that the incidence of duty on the yarn under the notifica tion arises only on the date of clearance of the manufac tured fabric.
This, in our view, is not the effect of the notification.
The proviso to Rule 96 W does not help the revenue.
It only 95 contemplates cases where there is a change in the rates prescribed under the notification between the date of pro duction of the yarn and the date of clearance of the fabric.
In such a case, an assessee may well contend, but for the proviso, that the duty having attached itself on the date of production of the yarn, it has to be calculated only at the rates then prevalent and should not be recalculated at the rates prevalent on the dates of clearance of the fabrics.
The proviso precludes such an argument.
It would be entirely superfluous and redundant if, as contended for by the reve nue, the liability to pay duty on the yarn itself arises only on the date of clearance of the fabrics.
It is intended to provide specifically that it is the intention of the Government that in such a case, the rates prevalent on the date of clearance of the fabric should govern.
The word 'recalculated ' used in the proviso also supports such a conclusion.
This word would be inappropriate if the notifi cation envisaged the levy of duty at the point of clearance of the fabrics, as contended for by the Revenue, for in that event, there would be only one calculation as at that point of time and no question of recalculation would arise.
In other words, the notification grants a concession but only subject to change in these concessional rates that may occur until the fabrics made out of the yarn are cleared.
We do not think that the words of the proviso can be extended to cover a case where the notification itself has ceased to apply by the date of clearance of the fabric.
To apply the proviso to such a case would result in its ap plicability to a totally different situation.
It would involve a comparison of unlikes.
It would mean the substitu tion of one set of rates prescribed in connection with a special procedure on the basis of the area of cloth by another set of rates applicable to yarn in the normal course which is to be worked out on the basis of weight.
This involves a mix up of two totally different schemes of levy of duty on yarn.
We do not think it is correct to place this construction on these provisions.
In our opinion, the normal rates de hors the notification will apply only in respect of yarn produced on or after 24.7.72 and not to yarn produced between 17.3.72 and 23.7.72.
The assessees having paid at the normal rates in respect of the latter period were right ly held entitled to seek a refund.
We may also point out that the best that can be said for the department is that the system of compounded levy ceased only on 24.7.1972.
This means that the normal rules will become applicable.
But the normal duty on yarn, effective from 24.7.72, cannot be retrospectively applied to the yarn which had been authorisedly removed from the spindles for captive consumption prior to that date.
The fact that 96 the clearance of the fabrics made of such yarn was, after.
24.7.72 would be irrelevant in computing such normal duty for, yam.
There is no principle or statutory language that compels an assessee to be deprived of the concessional rate that has been made available to it, under a special proce dure, in respect of the yam produced by it and utilised for captive consumption.
For these reasons, we agree with the view taken by the Tribunal and dismiss these appeals.
We, however, make no order as to costs.
| IN-Abs | The department took the view that in respect of the yarn manufactured between 17.3.72 and 23.7.72 the assessee is liable to pay the normal duty payable on yarn under Item 18E so long as the fabric manufactured out of such yarn remained uncleared from the factory as on 24.7.1972.
On the other hand the assessee 's contention was that excise duty on yarn is attracted as soon as it is produced and cleared for captive consumption.
The Customs, Excise & Gold Control Appellate Tribunal (CEGAT) accepted the contention of the assessee and held that the yarn cleared for captive consumption during the period from 17.3.72 to 23.7.72 in terms of the special procedure was entitled to the benefit of the rate fixed under Notification No. 62/72 CE dated 17.3.72 and that no further duty was payable on that quantity of the yarn and a consequential refund to the appellants was directed.
Ag grieved by the order of the Tribunal the department pre ferred these appeals to this Court.
While dismissing the appeals and upholding the view taken by the Tribunal, this Court, HELD: Rules 96 V & W of the Central Excise Rules, deal with two items: cotton yarn or yarn falling under item 18E of the First Schedule and woollen yarn.
Normally, under the schedule to the Act, woollen yarn was being charged to excise duty on an ad valorem basis while cotton and other yarn was being assessed on weight basis.
[92C] Yarn is an excisable commodity and but for the special procedure 87 and notification, duty thereon is leviable at the point of production and clearance for captive consumption.
The duty attached itself at the point of production and clearance of the yarn.
The notification does not alter this position.
It does not shift the incidence of duty from yarn to the woven fabric.
[94E F] The proviso to Rule 96 W does not help the Revenue.
It only contemplates cases where there is a change in the rates prescribed under the notification between the date of pro duction of the yarn and the date of clearance of the fabric.
[94H; 95A] The words of the proviso can be extended to cover a case where the notification itself has ceased to apply by the date of clearance of the fabric.
To apply the proviso to such a case would result in its applicability to a totally different situation.
It would involve a comparison of un likes.
[95E] Crown Spinning & Manufacturing Co. Ltd. vs Collector, , referred to.
|
ivil Appeal No. 207 of 1984.
From the Judgment and Order dated 12.3.
1982 of the Madhya Pradesh High Court in Misc Civil Case No. 539 of 1981.
Ranjit Kumar and Subhash Sharma for the Appellant.
Prithvi Raj and S.K. Agnihotri for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal is by special leave and is directed against the judgment of the High Court of Madhya Pradesh by which the High Court has in second appeal upheld the dismissal of the plaintiff 's suit on the plea of limita tion.
The plaintiff, a Government servant of Madhya Pradesh, was dismissed from service by the Collector on 13th of January, 1966.
He preferred an appeal to the Divisional Commissioner and that appeal was dismissed on 31.8.1966.
The order of dismissal of the appeal was communicated to the plaintiff on 19.9.1960.
The plaintiff gave notice under s.80 of the Code of Civil Procedure on 17.6.1969 and filed his suit on 30th of September, 1969, asking for a declaration that the order of dismissal was inoperative and he continued to be in service.
This 46 suit has been dismissed in the Courts below on acceptance of the defence plea that it had not been filed within three years from the date when the cause of action first arose, as required under Article 58 of the First Schedule of the .
When this appeal came up for hearing before a Division Bench, reliance was placed on the decision of this Court in Sita Ram Goel vs The Municipal Board, Kanpur & Ors., ; in support of the contention that the suit was barred by limitation.
The Division Bench extracted a passage from Goel 's judgment where it said: 'The result is no doubt unfortunate for the appellant, because the trial court found in his favour in regard to his plea of wrongful dismissal.
If he had only brought the suit within the period prescribed by section 326 of the Act, he might possibly have got some relief from the Court.
He, however, chose to wait till the decision of the State Govern ment on his appeal and overstepped the limit of time to his own detriment.
We are unable to come to any other conclusion than the one reached above and the appeal must, therefore, stand dismissed; but in the peculiar circum stances of the case we make no order as to costs ', and observed: "Such unfortunate results should be avoided, if it is possible to do so.
We are of the view that the decision in Sita Ram Goel 's case which has been decided by a Bench of five Judges requires to be reconsidered . . " (See That is how this appeal has come before the Seven Judge Bench.
The plaintiff 's suit was one to obtain a declaration that the order of dismissal was bad and he continued to be in service.
To such a suit the Courts below have rightly applied Article 58 of the First Schedule of the .
That Article runs thus: "58.
To obtain any Three When the right to other declaration.
years sue first accrues.
" Appellant 's counsel placed before us the residuary Article 113 and has referred to a few decisions of some High Courts where in a 47 situation as here reliance was placed on that Article.
It is unnecessary to refer to those decisions as on the authority of the judgment of this Court in the case of Pierce Leslie & Co. Ltd. vs Violet Ouchterlony Wapshare & Ors.
vice versa; , , it must be held that Article 113 of the Act of 1963, corresponding to Article 120 of the old Act, is a general one and would apply to suits to which no other Article in the schedule applies.
The fate of this appeal, therefore, rests upon the finding as to when the right to sue first accrued.
All the three Courts have accepted the position that on 1.3.1966 when the order of dismissal was made by the Collector, the right to sue first accrued.
Admittedly, the suit was not filed within a period of three years from that date.
The appeal was dismissed on 31.8.1966.
The sixty days ' time spent for complying with the requirement of notice under section 80 of the Code of Civil Procedure was available to the plaintiff in addition to the period of three years.
If the date, therefore, counts, from the date of the appellate order, the suit would be within time.
In Goel 's case the question of merger of the order of the lower authority in the order of the higher authority was considered.
Adverting to this aspect, Bhagwati, J. who spoke for the Court, said: "The initial difficulty in the way of the appellant, however, is that departmen tal enquiries even though They culminate in decisions on appeals or revision cannot be equated with proceedings before the regular courts of law." Reliance was placed on the observations of this Court in State Uttar Pradesh vs Mohammad Nooh, ; , where it has been said: . an order of dismissal passed on a departmental enquiry by an officer in the department and an order passed by another officer next higher in rank dismissing an appeal therefrom and an order rejecting an application for revision by the head of the department can hardly be equated with any propriety with decrees made in a civil suit under the Code of Civil Procedure by the Court of first instance and the decree dismissing the appeal therefrom by an appeal court and the order dismissing the revision petition by a yet higher court, . . because the de partmental 48 tribunals of the first instance or on appeal or revision are not regular courts manned by persons trained in law although they may have the trapping of the courts of law , ' and the Court proceeded to say: "The analogy of the decisions of the courts of law would, therefore, be hardly available to the appellant." Alternately, the Court also examined the question as to whether when the appeal of the appellate court affirming the decree of the trial court was made, the original decree had ceased to be operative.
Bhagwati, J. quoted with approval another part of the judgment in Moharnmad Nooh 's case, where it was said: "In the next place, while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain pur poses, namely, for the purposes of computing the period of limitation for execution of the decree as in Batuk Nath vs Munni Dei, 41 Indian Appeals 104, or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain vs Gendan Singh, 53 Indian Appeals 197.
But as pointed out by Sir Lawrence Jen kins in delivering the judgment of the Privy Council in Juscurn Soid vs Pirthichand Lal, 40 indian Appeals 52, whatever be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal.
There is nothing in the Indian law to warrant the suggestion that the decree or order of the court or tribunal of the first instance be comes final only on the termination of all .proceedings by way of appeal or revision.
The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. ' Bhagwati, J. then said: "The original decree being thus operative what we are really concerned with is the commence ment of the period of limitation as prescribed in the relevant statute and if the 49 statute prescribes that it commences from the date of the accrual of the cause of action there is no getting behind these words in spite of the apparent inequity of applying the same." In Mohammad Nooh 's case the question for consideration was whether the impugned order in the proceedings under Article 226 of the Constitution before the High Court was an order prior to the Constitution and, therefore, the High Court could not exercise its jurisdiction or was it one pending at the commencement of the Constitution and the revisional order being after the Constitution came into force, the writ petition would be maintainable.
The majori ty, as also Bose, J. who otherwise differed, agreed that jurisdiction under Article 226 of the Constitution was not retrospective.
The majority opinion, however, was that it would not be correct to say that the order of dismissal made on April 20, 1948, merged in the appellate order dated May 7, 1949, and both the orders in due course merged in the revisional order of April 22, 1950.
The original of dismiss al was operative on its own strength.
Bose, J. however, observed: "I see no reason why any narrow or ultra technical restrictions should be placed on them.
Justice should, in my opinion, be administered in our Courts in a common sense liberal way and be broad based on human values rather than on narrow and restricted consider ations hedged round with hairsplitting techni calities . .
The final order was passed after the Constitution on April 22, 1950.
It is true that if it had been passed before the Constitution came into force on January 26, 1950, the petitioner would have had no remedy in the Courts.
But the Constitution breathed fresh life into this land and conferred pre cious rights and privileges that were not there before.
Why should they be viewed nar rowly? Why should not that which would have been regarded as still pending for present purposes, if all had been done after the Constitution, be construed in any different way when the final act, which is the decisive one for these purposes, was done after it?" The problem in Mohammad Nooh 's case, therefore, was differ ent from what was for consideration in Goel 's case.
In Madan Gopal Rungta vs Secretary to the Government of Orissa, [1962] Suppl.
3 SCR 906, a Constitution bench of this Court was 50 examining the correctness of the finding of the High Court that it had no jurisdiction to entertain a petition under Article 226 of the Constitution as the revisional order was that of Government of India located outside its territorial jurisdiction.
Rungta 's case took into consideration the judgment in Mohammad Nooh 's case and stated: "We are of opinion that the principle of Mohammad Nooh 's case cannot apply in the circumstances of the present case.
The ques tion there was whether the High Court could issue a writ under article 226 in respect of a dismissal which was effective from 1948, simply because the revision against the order of dismissal was dismissed by the State Gov ernment in April, 1950 after the Constitution came into force.
It was in these circumstances that this Court held that the dismissal having taken place in 1948 could not be the subject matter of an application under article 226 of the Constitution for that would be giving retro spective effect to that Article.
The argument that the order of dismissal merged in the order passed in appeal therefrom and in the final order of revision was repelled by this Court on two grounds.
It was held, firstly, that the principle of merger applicable to decrees of courts would not apply to orders of departmental tribunals, and, secondly, that the original order of dismissal would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision, and therefore, the order of dismissal having been passed before the Constitution would not be open to attack under article 226 of the Constitu tion.
We are of opinion that the facts in Mohd. Nooh 's case were of a special kind and the reasoning in that case would not apply to the facts of the present case.
" The view expressed by Wanchoo, J. in Rungta 's case meets with our approval.
In Rungta 's case this Court ultimately held that the order of the State Government had merged into the order of the Central Government and the High Court was, therefore, right in its view that it had no jurisdiction.
The next Constitution Bench decision of this Court is that of Collector of Customs, Calcutta vs East India Commer cial Co. Ltd., where this Court observed: "The question, therefore, turns on whether the order of 51 the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority.
It is obvious that when an appeal is made, the appellate authori ty can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification.
It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority.
The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority.
It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it.
In all these three cases after the appellate authori ty has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it.
In law, the appellate order of confirmation is quite as efficacious as an operative order as an appel late order of reversal or modification.
" A 3 Judge Bench decision in the case of Somnath Sahu vs The State of Orissa & Ors., is an authority in support of the position as accepted by the two Constitu tion Bench judgments referred to above.
There, it was held in the case of a service dispute that the original order merged in the appellate order of the State Government and it is the appellate decision which subsisted and became opera tive in law and was capable of enforcement.
That judgment relied upon another decision of this Court in support of its view being C.I.T .v.
Amrit Lal Bhagilal & Co., [1959] SCR 713.
The distinction adopted in Mohammad Nooh 's case between a court and a tribunal being the appellate or the revisional authority is one without any legal justification.
Powers of adjudication ordinarily vested in courts are being exercised under the law by tribunals and other constituted authori ties.
In fact, in respect of many disputes the 52 jurisdiction of the court is now barred and there is a vesting of jurisdiction in tribunals and authorities.
That being the position, we see no justification for the distinc tion between courts and tribunals in regard to the principle of merger.
On the authority of the precedents indicated, it must be held that the order of dismissal made by the Collec tor did merge into the order of the Divisional Commissioner when the appellant 's appeal was dismissed on 31.8.
In several States the Conduct Rules for Government servants require the administrative remedies to be exhausted before the disciplinary orders can be challenged in court.
Section 20(1) of the provides: "20(1).
A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
" The Rules relating to disciplinary proceedings do pro vide for an appeal against the orders of punishment imposed on public servants.
Some Rules provide even a second appeal or a revision.
The purport of section 20 of the is to give effect to the Disciplinary Rules and the exhaustion of the remedies available thereunder is a condition precedent to maintaining of claims under the .
Administrative Tribunals have been set up for Government servants of the Centre and sever al States have already set up such Tribunals under the Act for the employees of the respective States.
The law is soon going to get crystallised on the line laid down under section 20 of the .
In this background if the original order of punishment is taken as the date when cause of action first accrues for purposes of Article 58 of the , great hardship is bound to result.
On one side, the claim would not be maintainable if laid before exhaustion of the remedies; on the other, if the departmental remedy though availed is not finalised within the period of limitation, the cause of action would no more be justiciable having become barred by limitation.
Redressal of grievances in the hands of the departmental authorities take an unduly long time.
That is so on account of the fact that no attention is ordinarily bestowed over these matters and they are not considered to be governmental business of substance.
This approach has to be deprecated and authorities on whom power is vested to dispose of appeals and revisions under the Service Rules must dispose of such matters as 53 expeditiously as possible.
Ordinarily, a period of three to six months should be the outer limit.
That would discipline the system and keep the public servant away from a protract ed period of litigation.
We are satisfied that to meet the situation as has arisen here, it would be appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant service Rules as to re dressal are disposed of.
The question for consideration is whether it should be disposal of one appeal or 'the entire hierarchy of reliefs as may have been provided.
Statutory guidance is available from the provisions of sub sections
(2) and (3) of section 20 of the .
There, it has been laid down: "20(2).
For the purposes of sub section (1), a person shall be deemed to have availed of all the remedies available to him under the rele vant service rules as to redressal of griev ances, (a) if a final order has been made by the Government or other authority or offi cer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievances; or (b) where no final order has been made by tee Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub sections (1) and (2), any remedy available to an appli cant by way of submission of a memorial to the President or the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial.
" We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided 54 entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months ' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen.
We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law.
Repeated unsuccessful representations not provided by law are not governed by this principle.
It is appropriate to notice the provision regarding limitation under section 21 of the .
Sub section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub section (3).
The Civil Court 's jurisdiction has been taken away by the Act and, therefore, as far as Government serv ants are concerned, Article ' 58 may not be invocable in view of the special limitation.
Yet, suits outside the purview of the shall continue to be gov erned by Article 58.
It is proper that the position in such cases should be uniform.
Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue.
Submission of just a memorial or representation to the Head of the establishment shall not be taken into considera tion in the matter of fixing limitation.
In view of what we have said above, Goel 's case must be taken to have not been correctly decided.
Reliance was placed by appellant 's learned counsel on a recent decision of a Two Judge Bench in the case of Raghubir Jha vs State of Bihar & Ors., The conclusion reached is in accord with what we have held but the legal position was not at all referred to or examined.
It is unnecessary to make any further reference to that judgment.
Now coming to the facts of the present appeal.
Since the claim has been dismissed on the plea of limitation and our conclusion is that the suit was within time, the judg ments of the trial Court, the First 55 Appellate Court and the High Court are set aside and the matter is remitted to the trial Court for disposal in ac cordance with law.
Too long a period has now intervened between the dismissal of the suit and our order of remand.
We, therefore, direct the learned trial Judge to take all effective steps open to him in law to ensure that the suit is disposed of finally before the 15th of December, 1989.
Costs shall abide the event.
Y.Lal.
Appeal allowed.
| IN-Abs | The plaintiff appellant was dismissed from service by the Collector on 13.1.1966.
His departmental appeal was dismissed by the Divisional Commissioner on 31.8.1966.
Thereupon the appellant instituted a suit on 30.1.1969 asking for a declaration that the order of dismissal was inoperative and that he continued to be in service.
The suit was dismissed by the trial court and that order was upheld by the appellate courts.
In dismissing the suit the courts below accepted the defence plea that it had been filed beyond the period of limitation prescribed therefore under Article 58 of the first Schedule of the Limitation Act.
Hence this appeal.
This appeal initially came up for hearing before a Division Bench of this Court.
At the hearing reli ance was placed before a decision of this Court in Sita Ram Goel vs The Municipal Board, Kanpur & Ors., ; in support of the contention that the suit was barred by limitation.
The Division Bench took the view that the deci sion of this Court rendered by five Judge Bench in Sita Ram Goel 's aforesaid required reconsideration.
This is how the appeal has come up before a Seven Judge Bench.
The question that fell for determination by the Court was 'When was the right to sue first accrued ' to the appellant i.e. whether from the date when the original adverse order of dismissal was passed against him or when the departmental/statutory appeal was finally disposed of.
The appellant 's contention is that the original order having merged in the final order whereby his departmental appeal was disposed of, the right to sue accrued from that date and on this reckoning, the suit filed by him was within time.
44 Allowing the appeal and remanding the matter to trial Court, this Court, HELD: Powers of adjudication ordinarily vested in courts are being exercised under the law by tribunals and other constituted authorities.
[51H] In respect of many disputes the jurisdiction of the court is now barred and there is a vesting of jurisdiction in tribunals and authorities.
That being the position, there is no justification for the distinction between courts and tribunals in regard to the principle of merger.
[51H; 52A] It must be held in the instant case, that the order of dismissal made by the Collector did merge into the order of the Divisional Commissioner when the appellant 's appeal was dismissed on 31.8.1966.
[52B] The cause of action first arises when the remedies available to the public servant under the relevant service Rules as to redressal are disposed of.
[53B] The cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made.
Where no such order is made, though the remedy has been availed of, a six months ' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen.
[53H; 54A] In every such case until the appeal or representation provided by a law is disposed of, accrual of the cause of action shall first arise only when the higher authority makes its order on appeal or representation and where such order is not made on the expiry of six months from the date when the appeal was filed or representation was made.
[54D] Redressal of grievances in the hands of the departmental authorities taken an unduly long time.
That is so on account of the fact that no attention is ordinarily bestowed over these matters and they are not considered to be governmental business of substance.
This approach has to be deprecated and authorities on whom power is vested to dispose of ap peals and revisions under the service Rules must dispose of such matters as expeditiously as possible.
[52G H] 45 Ordinarily, a period of three to six months should be the outer limit.
That would discipline the system and keep the public servant away from a protracted period of litiga tion.
[53A] Sita Ram Goel vs The Municipal Board, Kanpur & Ors., ; , overruled.
Madan Gopal Rungta vs Secretary to the Government of Orissa, [1962] Supp.
3 SCR 906, followed.
Pierce Leslie Co. Ltd. vs Violet Ouchterlony Wapshare & Ors., and vice verse; , ; State of Uttar Pradesh vs Muhammad Nooh, ; ; Collector of Customs, Calcutta vs East India Commercial Co. Ltd., ; Somnath Sahu vs State of Orissa & Ors., ; C.I.T.v.
Amrit Lal Bhagilal & Co., [1959] SCR 713 and Raghuvir Jha vs State of Bihar & Ors., , referred to.
|
Writ Petition (Crimi nal) No. 200 of 1989.
(Under Article 32 of the Constitution) C.P. Mittal for the Petitioner.
Anil Dev Singh, Yogeshwar Prasad, Ms. Kitty Kumar Manga lam, Ms. A Subhashini, Anil Malik and D. Bhandari for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This petition under Article 32 of the Constitution challenges the detention of the peti tioner a ,detenu, under section 3(2) of the (hereinafter called 'the Act ').
The petitioner is a bachelor.
He does not own any property.
The order for detention under section 3(2) of the Act was passed on April 15, 1988 by the District Magistrate, Meerut.
In the grounds of detention it is stated that on the night of 2/3rd April, 1988 which was an occasion of "Shabberat" festival, a muslim festival, the religious celebration was going on at Gudfi Chaupala.
At about 11 p.m. in the night on that day, a cow belonging to the muslims of Ismail Nagar came from Sabun Garan towards Chaupal Gudri and was going towards Ismail Nagar and, according to the order of detention, 'some unde sirable elements ' 59 present there did not allow the cow to go on the right way and .she again came towards Chaupala Gudri, and was made to run avoiding the crowd towards Nakaar Chian but near the shop of Haj Dhola, 'some undesirable elements ' stopped the cow and poked a wood piece on her back.
Due to this the cow started pumping and himping and ran inside the celebration.
It is stated that at this the petitioner came to the stage, got excited and spread the rumor that "the police had not made any arrangements".
It was stated that the cow belonged to the Hindus and had been deliberately sent inside the festival and "other provoking" things.
Due to the aforesaid, the people started running and communal feelings got around.
It is stated in the order of detention that in this way the petitioner had committed an act which was prejudicial to the maintenance of public order.
Again on 9th April, 1988 at about 9 p.m. near Transformer at Gudri Chaupala P.S. Kotwa li, the petitioner is alleged to have "provoked some per sons" of the muslim community by saying that "the adminis tration even now has not allowed to get a loud speaker fixed here and all of you are silent, get a loud speaker on the Mosque and we will see.
I am with you.
" It is also stated that the petitioner had also said that on the occasion of Shabberat these Hindus had deliberately "sent their cow on the road" for their festive celebrations and the "people are silent".
He had also said about teaching "them" a lesson.
It was stated that due to the "aforesaid bad act", communal feelings got aroused in the Meerut City and fear and terror got spread, and in this way the petitioner had done an act which was "prejudicial to maintenance of public law and order".
In the aforesaid, it was stated that for the reasons mentioned hereinbefore, there was possibility of the petitioner doing such an act, and therefore in order to restrain the petitioner from doing so, it is necessary to detain him.
Accordingly, the order was passed with conse quential directions and information.
As mentioned hereinbefore, the alleged incidents were on 2/3/4th April, 1988 as well as 9th April, 1988.
The order of detention (hereinafter referred to 'the order ') was made on 15th April, 1988.
The petitioner was arrested pursuant to the said order on 2nd October, 1988.
There was representa tion but the same was rejected and the order of detention was confirmed.
In this petition various grounds have been taken before this Court challenging the order under Article 32 of the Constitution.
Mr. C.P. Mittal, learned counsel for the petitioner, however, urged 60 before us three grounds upon which he contended that the said order be quashed or set aside.
It was submitted by Mr. Mittal that there was inordinate delay in arresting the petitioner pursuant to the order, which indicated that the order was not based on a bona fide and genuine belief that the action or conduct of the petitioner were such that the same were prejudicial to the maintenance of public order and that preventive detention of the petitioner was necessary for preventing him from such conduct.
He .further submitted that delay in the circumstances of this case in arresting the petitioner and or in acting pursuant to the order indi cated that the "so called grounds" were merely make belief and not genuine grounds upon which the satisfaction of the authority concerned was based.
In answer to this contention, on behalf of the Distt.
Magistrate, Meerut, by an affidavit affirmed on 28th August, 1989 and filed in these proceedings, stated that raids on the petitioner 's premises for the service of the order dated 15.4.1988 were conducted.
It was further stated that the respondent authorities had made all efforts to serve the order on the petitioner and for this purpose the house of the petitioner was raided on several occasions and a refer ence was made to the general diary report, details whereof were extracted in the affidavit.
The details indicate that in respect of the order dated 15.4.1988 the first raid was made in the house of the petitioner on 12th May, 1988, followed by eight other attempts up to the end of May, 1988 to arrest the petitioner but he was not available.
There was, however, no attempt in the months of June, July, Au gust ' 88 but on 23, 25 & 29th September, 1988 three attempts were made and as such, it was stated on behalf of the re spondents, the order could not be served before 2nd October, 1988.
According to the District Magistrate, the respondent authorities did not leave any stone unturned to arrest the petitioner.
It was, however, stated that from May, 1988 to September, 1988 the entire police force of Meerut City was extremely busy in maintaining law and order, but the peti tioner was all along absconding in order to avoid the serv ice of the order.
The District Magistrate has further stated that during the period from May to September, 1988 great communal tension was prevailing in the Meerut City and a large number of people were arrested on account thereof.
The question that requires consideration is, whether there was in ordinary delay.
The detention under the Act is for the purpose of preventing persons from acting in any manner prejudicial to the maintenance of public order.
Subsection (2) of section 3 of the Act authorises the Central Govt.
or the State Govt.
, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of 61 the State, it is found necessary then the person can be detained.
Hence, there must be conduct relevant to the formation of the satisfaction having reasonable nexus with the action of the petitioner which are prejudicial to the maintenance of public order.
Existence of materials relevant to the formation of the satisfaction and having rational nexus to the formation of the satisfaction that because of certain conduct "it is necessary" to make an order "detain ing" such person, are subject to judicial review.
Counsel for the petitioner contends that in the aforesaid facts and the circumstances if the conduct of the petitioner was such that it required preventive detention, not any punitive action, for the purpose of "preventing" the person concerned from doing things or indulging in activities which will jeopardise, hamper or affect maintenance of public order then there must be action in pursuance of the order of detention with promptitude.
Delay, unexplained and not justified, by the circumstances and the exigencies of the situation, is indicative of the fact that the authorities concerned were not or could not have been satisfied that "preventive custody" of the person concerned was necessary to prevent him from acting in any manner prejudicial to the maintenance of public order.
Whether there has been unrea sonable delay, depends upon the facts and the circumstances of a particular situation.
Preventive detention is a serious inroad into the freedom of individuals.
Reasons, purposes and the manner of such detention must, therefore, be subject to closest scrutiny and examination by the courts.
In the interest of public order, for the greater good of the commu nity, it becomes imperative for the society to detain a person in order to prevent him and not merely to punish him from the threatened or contemplated or anticipated course of action.
Satisfaction of the authorities based on conduct must precede action for prevention.
Satisfaction entails belief.
Satisfaction and belief are subjective.
Actions based on subjective satisfaction are objective indication of the existence of the subjective satisfaction.
Action based on satisfaction should be with speed commensurate with the situation.
Counsel for the petitioner submitted that in this case there was no material adduced on behalf of the Govt.
indicating that the petitioner was "absconding".
It was urged that there are no material at all to indicate that the petitioner was evading arrest or was absconding.
It was submitted that section 7 of the Act gave power to the authorities to take action in case the persons were absconding and in case the order of detention cannot be executed.
It is stated that in this case no warrant under section 7 of the Act has been issued in respect of his property or person.
Hence, it was contended that the respondent was not justified in raising the plea that the petitioner was absconding.
We are, howev er unable to accept this contention.
If in a situation the 62 person concerned is not available or cannot be served then the mere fact that the action under section 7 of the Act has not been taken, would not be a ground to say that the detention order was bad.
Failure to take action, even if there was no scope for action under section 7 of the Act, would not be deci sive or determinative of the question whether there was undue delay in serving the order of detention.
Furthermore, in the facts of this case, as has been contended by the Government, the petitioner has no property, no property could be attached and as the Govt. 's case is that he was not available for arrest, no order under section 7 could have been possibly made.
This, however, does not salvage the situation.
The fact is that from 15th April, 1988 to 12th May, 1988 no attempt had been made to contact or arrest the petitioner.
No explanation has been given for this.
There is also no explanation why from 29th September, 1988 to 2nd October, 1988 no attempt had been made.
It is, however, stated that from May to September, 1988 the 'entire police force ' was extremely busy in controlling the situation.
Hence, if the law and order was threatened and prejudiced, it was not the conduct of the petitioner but because of 'the inadequacy ' or 'inability of the police force of Meerut City to control the situation.
Therefore, the fact is that there was delay.
The further fact is that the delay is unexplained or not warranted by the facts situation.
To shift the blame for public order situation and raise the bogey of the conduct of the petitioner would not be proof of genuine or real belief about the conduct of the petitioner but only raising a red herring.
This question was examined by this Court in Nizamuddin vs The State of West Bengal, ; The question involved therein was under section 3(2) of the Internal Security Act, 1971.
There was delay of about two and a half months in detaining the peti tioner pursuant to the order of detention and the Court considered that unless the delay was satisfactorily ex plained, it would throw considerable doubt on the genuine ness of the subjective satisfaction of the Distt.
Magistrate recited in the order of detention.
Mr. Justice Bhagwati, as the learned Chief Justice then was, speaking for the Court observed at page 595 of the report that it will be reasona ble to assume that if the Distt.
Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promp titude in securing the arrest of the petitioner immediately after invoking of the order of detention, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities.
It is, however, not the law that whenever there is some delay 63 in arresting the subjective satisfaction of the detaining authority must be held to be not genuine or colourable.
Each case must depend on its own peculiar facts and circum stances.
In this case, from the facts and the circumstances set out hereinbefore we find no reasonable or acceptable explanation for the delay.
In a situation of communal ten sion prompt action is imperative.
It is, therefore, not possible for this Court to be satisfied that the District Magistrate had applied his mind and arrived at "real" and "genuine" subjective satisfaction that it was necessary to detain the petitioner to "prevent" him from wrong doing.
The condition precedent, therefore, was not present.
But as Justice Chinnappa Reddy explained in Bhawarlal Ganeshmalji vs State of Tamil Nadu & Anr., [1979] 2 SCR 633 at page 638 that there must be 'live and proximate link ' between the grounds of detention alleged by the detaining authority and the avowed purpose of detention, and in appropriate cases it is possible to assume that the link is 'snapped ' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu.
Mr Yogeshwar Prasad, learned counsel for the State of U.P. drew our attention to the decision of this Court in Indradeo Mahato vs State of West Bengal, [1973] 4 SCC 4.
That was also a case of arrest under the .
It was urged in that case that there was no real or genuine apprehension that the petitioner there was likely to act in a manner prejudicial to the maintenance of public order.
This Court in the facts of that case, was unable to accept the said contention.
The Court held that mere failure to take recourse to sections 87 & 88 of the Criminal Procedure Code would be a warrant to believe that the delay was unrea sonable.
Whether the delay was unreasonable depends on the facts and the circumstances of each case.
We are satisfied, in view of the facts and circumstances of the case mentioned before, that by the conduct of the respondent authorities, there was undue delay, delay not commensurate with the facts situation in this case.
the conduct as aforesaid betrayed that there was no real and genuine apprehension that the petitioner was likely to act in any manner prejudicial to public order.
The order, therefore, is bad and must go.
The next ground urged in support of this application was that the grounds mentioned were not germane to maintenance of 'public order '.
It was submitted that the petitioner has only alleged inefficiency or incompetency of the police either in providing a loud speaker or in ensuring that the cows do not enter into or within the arena of muslim festi vals.
It was submitted that the criticism of the administra tion is not endangering public order.
Mr. Mittal submitted that it was not a question of law and order but public order that is important in 64 this case.
What the petitioner has alleged to have done may have some relevancy to the purpose of securing law and order but there cannot be any rational nexus with the satisfaction regarding the maintenancy of public order.
By the conduct alleged or the saying attributed as mentioned above, public order was not prejudiced.
Criticism of Police does not prejudice public order, it is said.
The Court has to ensure that the order of detention is based on materials before it.
If it is found that the order passed by the detaining au thority was on materials on record, the Court can examine the record only for the purpose of seeing whether the order of detention was based on no material or whether the materi als have rational nexus with satisfaction that public order was prejudiced.
Beyond this, the Court is not concerned.
See the observations of The State of Gujarat vs Adam Kasam Bhaya, ; The difference between public order and law and order is a matter of degree.
If the morale of the police force or of the people is shaken by making them lose their faith in the law enforcing machinery of the State then prejudice is occasioned to maintenance of public order.
Such attempts or actions which undermine the public faith in the police administration at a time when tensions are high, affects maintenance of public order and as such conduct is prejudicial.
See in this connection Indradeo Mahato 's case (supra), Subhash Bhandari vs Distt.
Magistrate, Lucknow & Ors., ; and Kanu Biswas vs State of West Bengal, ; Therefore, we are unable to accept the contention that the grounds were not relevant for the order of detention under the Act.
This contention of Mr. Mittal must, therefore, fail.
The last contention was that the grounds mentioned were vague and unintelligible.
It was not stated, it was urged, that as to what the petitioner said, to whom the rumour was spread as mentioned in ground No. 1 and what "other provok ing things" the petitioner is alleged to have said as al leged in the grounds mentioned before.
It was urged, it is further not clear as to whom the petitioner wanted to teach a lesson.
It has to be borne in mind that if more than one grounds are stated in the grounds then the fact that one of the grounds is bad, would not alter order of detention after the amendment of the Act in 1984 provided the other grounds were valid.
But quite apart from the same, it appears to us that none of the grounds were vague.
The grounds must be understood in the light of the background and the context of the facts.
It was quite clear what the detaining authorities were trying to convey was that the petitioner stated things of the nature and it was to teach Hindus a lesson.
Hence, it was meant to create communal tension.
We find no irrelevancy or vagueness in the 65 grounds.
On this ground the challenge cannot be sustained.
However, in the view taken by us on the first ground the order of detention must be quashed and set aside.
We order accordingly.
Let the petitioner be set at liberty forthwith unless he is required for any other offence under any other Act.
The application is disposed of accordingly.
Y. Lal Petition allowed.
| IN-Abs | In pursuance of an order of detention dated 15.4.1988, passed by the District Magistrate, Meerut, the Petitioner, a bachelor and having no property, was arrested on 2nd October 1988 and detained under Section 3(2) of the National Securi ty Act.
The petitioner was supplied with the grounds of detention enumerating therein the ' acts committed by him on 2nd, 3rd and 4th April 1988 and on 9.4.88 and the provoca tive speeches made by him on the occasion of Shabberat a Muslim festival to the effect that Hindus had deliberately "sent their cow on the road" and the "people are silent" and about teaching "them" a lesson and administration 's failure to fix a long speaker in the mosque These acts and the speeches made by the petitioner.
were, in the opinion of the detaining authority, prejudicial to the maintenance of public order.
The representation made by the petitioner against the order of detention was rejected and the order of his detention was confirmed.
Thereupon, the petitioner has filed this Writ Petition under Article 32 of the Constitution challenging his deten tion.
The contentions of the petitioner are that (i) that there was inordinate delay in arresting the petitioner which indicated that the order of detention was not based on a bona fide and genuine belief that the action and conduct of the petitioner were such that the same were prejudicial to the maintenance of Public Order and the so called "grounds" were merely make belief and not genuine grounds; (ii) that the grounds were not germane to the maintenance of "public order" and (iii) that the grounds were vague and unintelli gible.
Allowing the Writ Petition, this Court, HELD: Sub section (2) of section 3 of the Act autho rises the Central Government or the State Government, if satisfied with respect to any person that with a view to preventing him from acting in any 57 manner prejudicial to the security of the state, it is found necessary, then the person can be detained.
Hence there must be conduct relevant to the formation of the satisfaction having reasonable nexus with the actions of the petitioner which are prejudicial to the maintenance of public order.
Existence of material relevant to the formation of satisfac tion and having rational nexus to the formation of the. satisfaction that because of certain conduct "it is neces sary" to make an order "detaining" such person, are subject to judicial review.
[60H; 61A B] Delay, unexplained and not justified, by the circum stances and the exigencies of the situation, is indicative of the fact that the authorities concerned were not and could not have been satisfied that "preventive custody" of the concerned person was necessary to prevent him from acting in any manner prejudicial to the maintenance of public order.
Whether there has been unreasonable delay, depends upon the facts and circumstances of a particular situation.
[61C D] Satisfaction of the authorities based on conduct must precede action for prevention.
Satisfaction entails belief.
Satisfaction and belief are subjective.
Actions based on subjective satisfaction are objective indication of the existence of the subjective satisfaction.
Action based on satisfaction should be with speed commensurate with the situation.
[61E F] If in a situation the person concerned is not available or cannot be served then the mere fact that the action under section 7 of the Act has not been taken, would not be a ground to say that the detention order was bad.
Failure to take action, even if there was no scope for action under section 7 of the Act would not be decisive or determinative of the question whether there was undue delay in serving the Order of detention.
[62A B] The Petitioner has no property, so no property could be attached and as the Government 's case is that he was not available for arrest, no order under sec.
7 could have been possibly made.
This, however, does not salvage the situa tion.
The fact is that from 15th April 1988 to 12th May 1988, no attempt had been made to contact the Petitioner.
No explanation has been given for this.
There is also no explanation why from 29th September 1988 to 2nd October 1988, no attempt had been made.
It is however stated that from May to September 1988 the "entire police force" was extremely busy in controlling the situation.
Hence, if the law and order was threatened and prejudiced, it was not the conduct of the petitioner but because of "the inadequacy" or "inability" of the police force of Meerut City to control 58 the situation.
Therefore the fact is that there was delay.
The further fact is that the delay is unexplained.or not warranted by the facts/ situation.
To shift the blame for public order situation and raise the bogey of the conduct of the petitioner would not be proof of genuine or real belief about the conduct of the petitioner but only raising a red herring.
[62B E] The Court quashed the order of detention and directed the petitioner to be set at liberty forthwith.
[65B] Nizamuddin vs The State of West Bengal, ; ; Bhawarlal Ganeshmalji vs State of Tamil Nadu & Ant., ; at p. 638; Indradeo Mahato vs State of West Bengal, ; State of Gujarat vs Adam Kasam Bhaya, ; ; Subhash Bhandari vs Distt.
Magis trate, Lucknow & Ors., ; and Kanu Biswas vs State of West Bengal; , , referred to.
|
ecial Leave Petition (C) No. 5628 of 1988.
From the Judgment and Order dated 4.1.1988 of the Punjab and Haryana High Court in Regular Second Appeal No. 9 18 of 1987.
P.P. Rao and Shakeel Ahmed for the Petitioner.
S.C. Maheshwari, P.K. Chakravarti, Ms. Sandhya Goswami and V.K. Bhardwaj for the Respondent.
The following Order of the Court was delivered We have heard this case arising out of Haryana Urban (Control of Rent and Eviction) Act 1973.
We feel that this case is fully covered by the decision of Hon 'ble Mr. Justice Sabyasachi Mukharji & Hon 'ble Mr. Justice Ranganathan in Atma Ram Mittal vs Ishwar Singh Punia, 122 ; We respectfully agree with the princi ple enunciated in that decision.
The special leave petition is dismissed.
Learned counsel for the respondent Mr. S.C. Maheshwari states that the decree will not be executed till 30th April, 1990 subject to an undertaking on usual terms being filed in this Court within four weeks from today.
If the undertaking is not filed, the decree shall become executable forthwith.
G.N. Petition dis missed.
| IN-Abs | Applying the principle enunciated in Atma Ram Mittal vs Ishwar Singh Punia; , , this Court dismissed the special leave petition, and, HELD: 1.1 The exemption would apply for a period of ten years and will continue to be available until suit is dis posed of or adjudicated.
[121H] 1.2 If the petitioner fails to file an undertaking on usual terms, the decree shall become executable forthwith.
[122B]
|
ivil Appeal No. 3838 of 1989.
From the Judgment and Order dated 12.10.
1987 of the Bombay High Court in Appeal No. 244 of 1983.
C.S. Vaidyanathan, S.R. Bhat and K.V. Mohan for the Appellant.
M.S. Ganesh for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
This is an appeal from the judgment and order dated October 12, 1987 of the Division Bench of the High Court of Bombay.
The appellant had chartered their vessel 'KRISTEL ' to the respondent for carrying oil from Arabian Gulf to India under a charter party, dated 30th November, 1979.
Clause 40(a) of the charter party provided that the charter shall be construed and the relations between the parties shall be determined in accordance with the English Law.
Clause 40(b) of the charter party provided that any dispute arising under the charter party shall be decided by the English Courts but that either party may elect, in writing, to have the dispute referred to the arbitration of a single arbitrator in London in accordance with the (English) Arbi tration Act, 1950.
, Disputes and differences arose between the parties, and they appointed one Mr. Robert William Reed of the Baltic Exchange and of 28, Reddons Road, Beckenham, Kent BR 3 ILZ to be the sole arbitrator.
The parties appeared before the arbitrator represented by their respective Solicitors and counsel.
The arbitrator made his award on 28th July, 1982 which contained, inter alia, as follows: "I AWARD AND ADJUDGE that the Charterers do 73 forthwith pay the Owners the sum of U.S. $ 291,822.00 (United States Dollars two hundred and ninetyone thousand eight hundred and twenty two only) together with interest at the rate of 15 per cent per annum as from 20th June, 1980, to the date of this my Final Award in full and final settlement of the matters at issue in the Reference.
I FURTHER AWARD AND ADJUDGE that the Charter ers do bear and pay their own and the Owners ' costs of the Reference (the latter to be taxed in the event of disagreement) and that the Charterers do bear and pay the cost of this my Final Award which I hereby tax and settle at E4,684 including my disbursements.
Provided always that if in the first instance the Owners shall have paid the said cost of this my Award, then they shall be entitled to an immediate refund from the Charterers of the sum so paid." As mentioned hereinbefore, the arbitrator awarded the cost of reference to be taxed in the event of disagreement.
The respondent paid only the principal sum and failed and neglected to pay any interest on it and the appellant 's cost of reference to arbitration and the cost of the award.
Pursuant to section 20 of the English Arbitration Act, 1950 a sum directed to be paid by the award shall carry interest as from the date of the award at the same rate as the judg ment date.
It appears that from 8th June, 1982 the interest rate on judgment debt in England was 14% per annum.
The award is enforceable under the Foreign Awards (Recognition & Enforcement) Act, 1961 (hereinafter called 'the Act ').
The appellant filed an application under the Act in the High Court of Bombay, inter alia, contending for the judgment be pronounced and a decree to be passed according to the award in favour of the appellant.
The learned Single Judge of the High Court by his judgment and order dated 21st February, 1983 decreed in favour of the appellant and di rected the respondent to pay interest and costs of the award so awarded by the arbitrator and also cost of the petition.
The learned Judge, however, rejected the appellant 's prayer for the cost of reference to arbitration, and also rejected the applicant 's prayer that in the alternative liberty should be reserved in respect of the said prayer.
The said prayer was made orally but was refused by the learned Single Judge because as he observed that he saw no reason to re serve such liberty, as the appellant had not taken any steps.
74 Aggrieved by the said judgment and order dated 21st February, 1983 the appellant preferred an appeal before the Division Bench of the High Court.
During the pendency of the said appeal in the High Court the appellant 's costs of reference to arbitration as awarded by the arbitrator were taxed because of the failure of the parties to agree and the taxed amount was Pound 10,901.45 by the Taxing Master of the Supreme Court of Judicature, England.
A taxation certificate dated 19th December, 1984 was issued and the same was pro duced at the time of hearing of the appeal before the Divi sion Bench.
Before the Division Bench, cross objections had been filed on behalf of the respondent.
By judgment dated 12th October, 1987, the Division Bench of the High Court dismissed the respondent 's cross objections, and held that the only point related to the refusal of the learned Single Judge to grant liberty to the appellant to file a separate petition upon the costs of the reference to arbitration being quantified.
The Division Bench held that at the time when the petition was filed, there had been no agreement upon or reference for taxing of such costs, and as such it appears that the application to have the costs taxed was made only after the appeal was filed.
No order could be made directing the respondent to make payment to the appellant of the costs so taxed.
The Division Bench held that if the appellant was entitled to file a fresh petition for such costs, it might adopt such proceedings.
Aggrieved thereby, the appellant has come up before this Court.
We are unable to uphold the views of the Division Bench of the Bombay High Court that no order could have been made by the Division Bench directing the respondent to make payment to the appellant 's costs so taxed.
Foreign awards, as it manifests, are executable in this country under the provisions of the Act.
The Act in question was passed to give effect to the convention on the recognition and en forcement of foreign arbitrator 's award.
Section 6 of the Act is as follows: "Enforcement of Foreign Award: (1) Where the Court is satisfied that the Foreign award is enforceable under this Act, the court shall order the award to be filed and shall proceed to pronounce judgment according to the award.
(2) Upon the judgment so pronounced, a decree shall follow and no appeal shall lie from such decree except in so far as the decree is in excess of or not in accordance with the award." Thus foreign award is enforceable in India.
In such a case the 75 Court is obliged to direct that the award be filed and proceed to pronounce judgment according to the award.
And upon the judgment so pronounced a decree shall follow.
This Court had occasion to examine the purpose and terms of the Act in Renusagar Power Co. Ltd. vs General Electric Co. & Anr., ; This Court held referring to the objects that the Act seeks to achieve speedy settlement of disputes arising from international trade through arbitra tion.
The Act was enacted to give effect to the Newyork International Convention on the Recognition and Enforcement of Foreign Awards to which India was a party.
This Court noted that it is obvious that since the Act was calculated and designed to subserve the cause of facilitating interna tional trade and promotion thereof by providing for speedy settlement of disputes arising in such trade through arbi tration, any expression or phrase occurring therein should receive, consistent with its literal and grammatical sense, a liberal construction.
The judgment has been pronounced in terms of the afore said and a decree has followed.
The award enjoins, inter alia, "that the Chatterers do pay and bear their own costs and the owner 's costs of reference (the latter to be taxed in the event of disagreement).
The judgment and decree which was pronounced in terms of the award did not direct any cost taxed or quantified of the reference to be paid.
Indubita bly, the costs of reference have been awarded.
The award, read properly, means, so far as costs of the reference are concerned, that it was an award upon certain conditions, i.e., the award stipulated that the costs of reference will be paid.
The costs of such reference were, however, directed to be determined either by agreement between the parties and in case there was no agreement or disagreement, to be taxed.
The parties have not been able to agree.
It appears from the averments made in the pleadings before the High Court, there was no agreement as to the costs, and the steps were taken after the appeal was filed before the Division Bench to have the costs taxed.
But there is no evidence of any delay or laches on the part of the appellant, as such, which would disentitle the appellant to such costs.
In that view of the matter this award can legitimately be considered as an award directing payment of costs upon the condition that these will be taxed on the failure of agreement or disagreement between the parties.
The parties have failed to agree.
The costs have been taxed and certified.
There is no dispute as to the costs taxed or certified.
We are of the opinion that law, justice and equity in the facts and the circumstances of this case, enjoin that the appellant should have such costs.
The appellant has taken all possible steps that could be 76 taken in the situation contemplated by the award.
The appel lant has written for agreement about the costs of reference.
The respondent did not agree.
The appellant took steps to have the costs taxed in London, and the costs have been taxed.
On behalf of the respondent, several contentions were urged mainly on the ground that there is no scope for addi tion to the award and the award had to be executed as it was and the costs of reference had not been awarded.
We are in agreement with Mr. Ganesh that the award must be executed as it is and there is no scope for any addition to any award in executing a foreign award but the award to be executed must be properly construed and given effect to.
If the award is ambiguous, the court has jurisdiction to determine what it means.
In this case, the award is not ambiguous.
It is clear that the costs of reference should be paid by the respond ent, and that such costs should be paid as are determined by agreement between the parties and in case of failure of the agreement by the taxation, such costs have been taxed and were placed before the Division Bench before it pronounced its judgment.
Our attention was drawn to the decision in Re Becker Shillan & Co. and Barry Bros., , where it was held that where an umpire in making his award dealt with the costs of the award including the expenses of the hire of the room for the arbitration and shorthand notes, but made no order as to the general costs of the parties to the reference, the court would not presume that he has exercised his discretion to make no order as to costs or that he has left them to be borne by the parties who incurred them, but will conclude that the question of costs has not been dealt with at all and, therefore, should remit the award to him for reconsideration.
In our opinion, the said decision has no application to the facts of this case.
The instant appeal before us is not a case where the award has not dealt with the costs of reference, rather it has specifically dealt with the same.
It has categorically provided that cost of reference is to be paid by the respondent.
The award has stated that such cost should be agreed between the parties and in case there was no agreement, cost should be taxed.
The award is clear and unambiguous and does not leave this question undecided.
In the circumstances, there is no scope of remission of this award or not enforcing what the arbitrator has awarded.
Under the Act, if an application is filed for decree in terms of the award, the court in upholding the award ought to grant a decree in terms of the award and not substract any portion thereof.
Since the award directed costs of appellant 's reference to be paid as is mutually agreed upon or as taxed, the Division Bench ought to have 77 passed an order for costs as taxed.
We, therefore, direct that the award to be enforced and the costs as mentioned hereinbefore should also be payable by the respondent.
The judgment and order of the High Court are modified to that extent.
In the facts and the circum stances of the case, we do not make any order as to costs of this appeal.
R.S.S. Appeal allowed.
| IN-Abs | The appellant company had chartered their vessel to the respondent for carrying oil from Arabian Gulf to India under a charter party.
Disputes and differences arose between the parties and the matter was referred to a single arbitrator in London, as stipulated in the charter party.
The arbitra tor awarded a certain sum to be paid by the respondent to the appellant, with interest.
The arbitrator further awarded to the appellant the costs of the reference, which were to be taxed in the event of disagreement.
The respondent paid only the principal sum and failed and neglected to pay interest, the appellant 's cost of reference to arbitration, and the cost of the award.
The appellant filed an applica tion under the Foreign Awards (Recognition & Enforcement) Act, 1961 in the High Court of Bombay.
The learned Single Judge of the High Court directed the respondent to pay interest and costs of the award so awarded by the arbitrator and also cost of the petition.
The learned Judge however rejected the appellant 's prayer for the cost of reference to arbitration, and also rejected the applicant 's prayer that in the alternative liberty should be reserved in re spect of the said prayer.
The appellant preferred an appeal before the Division Bench.
During the pendency of this appeal the appellant 's costs of reference to arbitration as awarded by the arbitrator were taxed and a taxation certifi cate was produced at the time of hearing of the appeal.
The Division Bench held that at the time when the petition was filed, there had been no agreement upon or reference for taxing.
of such costs, it appeared that the application to have the costs taxed was made only after the appeal was filed; and as such no order could be made directing the respondent to make payment to the appellant of the costs so taxed.
Before this Court it was urged on behalf of the respond ent that there was no scope for addition to the award, and the award had to be executed as it was, and the costs of reference had not been awarded.
71 Allowing the appeal, this Court, HELD: (1) Foreign awards, as it manifests, are executa ble in this country under the provisions of the Foreign Awards (Recognition & Enforcement) Act, 1961.
The Act was passed to give effect to the convention on the recognition and enforcement of foreign arbitrator 's award.
[74F] (2) It is obvious that since the Act was calculated and designed to subserve the cause of facilitating international trade and promotion thereof by providing for speedy settle ment of disputes arising in such trade through arbitration, any expression or phrase occurring therein should receive, consistent with its literal and grammatical sense, a liberal construction.
[75B] Renusagar Power Co. Ltd. vs General Electric Co. & Anr., ; , referred to.
(3) The Court agrees that the award must be executed as it is and there is no scope for any addition to any award.
But the award to be executed must be properly construed and given effect to.
If the award is ambiguous, the court has jurisdiction to determine what it means.
[75C] (4) In the instant case, the award is not ambiguous.
The award, read properly, means, so far as costs of the refer ence are concerned, that it was an award upon certain condi tions, i.e. the award stipulated that the costs of reference will be paid.
The costs of such reference were, however, directed to be determined either by agreement between the parties and in case there was no agreement or disagreement, to be taxed.
[75E] (5) Law, justice and equity in the facts and the circum stances of this case, enjoin that the appellant should have such costs.
The appellant has taken all possible steps that could be taken in the situation contemplated by the award.
The appellant has written for agreement about the costs of reference.
The respondent did not agree.
The appellant took steps to have the costs taxed in London, and the costs have been taxed.
[75H; 76A] (6) There is no evidence of the delay or laches on the part of the appellant, as such, which would disentitle the appellant to such costs.
[75F] 72 (7) Under the Act, if an application is filed for decree in terms of the award.
the court in upholding the award ought to grant a decree in terms of the award and not sub stract any portion thereof.
Since the award directed costs of appellant 's reference to be paid as is mutually agreed upon or as taxed, the Division Bench ought to have passed an order for costs as taxed.
[76H; 77A]
|
ivil Appeal No. 1979 of 1981.
From the Judgment and Order dated 7.1.81 of the Bombay High Court in Civil Writ Petition No. 1248 of 1977.
P.P. Rao, Kailash Vasdev and section Murlidhar for the Appel lants.
A.K. Sanghi for the Respondent.
The Judgment of the Court was delivered by VERMA, J.
This appeal by special leave is against the judgment dated January 7, 1981 in Writ Petition No. 1248 of 1977 of the Nagput Bench of the Bombay High Court.
The special leave has been confined only to the question of liability of the appellant, Life Insurance Corporation, to pay interest for the period after date of maturity of insur ance policy, in case of delay in payment.
Accordingly, this is the only question arising for decision in this appeal.
The writ petition in the High Court was filed by Smt.
Kamalabai G. Ranade, the wife of Gangadhar Vishwanath Ranade of Nagput.
The said G.V. Ranade took four policies on his own life from the Life Insurance Corporation of India (hereinafter referred to as "the LIC") during the period 1958 to 1960.
These policies were paid up and the particu lars thereof including their paid up value payable on the date of maturity are as under: Policy Sum Paid up Date of Number Assured Value Maturity.
19620636 10,000.00 3415.70 14.9.72 13932229 3,500.00 1118.65 28.12.73 13969 144 5,000.00 892.20 9.11.75 13972300 2,000.00 557.70 21.12.75 In April 1969 G.V. Ranade assigned absolutely all these four 101 insurance policies in favour of his wife Smt.
Kamalabai G. Ranade and the assignment so madewas duly registered by the LIC as under: "In registering this Assignment the Corpora tion makes no admission as to its validity.
Nagpur sd/ Dt.
8.4.69 P. Divisional Manag er" It appears that there were some income tax dues against the said G.V. Ranade for recovery of which Income tax Offi cer had commenced recovery proceedings.
Prior to the date of maturity of these policies the Income tax Officer on 27.1.1971 issued a notice under section 226(3) of the Income Tax Act, 1961 to the Manager of the LIC at Nagpur directing the LIC to pay to the ITO forthwith any amount due from the LIC to or, held by the LIC for or on account of the said G.V. Ranadeto meet the amount due from G.V. Ranade as ar rears of income tax.
This notice further mentioned the consequences envisaged by section 226(3) of the Income Tax Act, 1961.
The Divisional Manager of the LIC at Nagput intimated the fact of receipt of the notice under section 226(3) of the Income Tax Act, 1961 to the assignee of these policies, Smt.
Kamalabai G. Ranade, suggesting that she take steps to get the notice vacated in order to safeguard her interest in the policies.
The further correspondence in this behalf between Income tax Officer, the LIC and the assignee shows that the Income tax Officer required the LIC to depos it the amount of Rs.3415.70 payable against the first policy which was to mature on 14.9.72 and the LIC kept the assignee informed of this demand by the ITO adding in its letter dated 27.7.1972 to the assignee that the moneys due under the policies will be paid to her "only after your getting the notice served on us by the ITO vacated".
This was reit erated by the LIC in its letter dated 11.8.72 to the assign ee.
The assignee sent a notice dated 21.8.72 to the LIC reiterating that the policies had been absolutely assigned to her as admitted by the LIC as a result of which the amount payable against the same had to be paid only to her since the amount was not held by the LIC for or on account of G.V. Ranade.
The LIC was also required by this notice to take the necessary steps for revocation of the ITO 's notice and to make the payment due in respect of all these policies to the assignee.
The assignee sent a similar notice to the ITO asserting her claim as the assignee to get the moneys payable under the policies.
The ITO in a letter dated 28.7.72 addressed to the LIC had added that the alleged 102 transfer of policies by G.V. Ranade to his wife are void with an intention to defraud the revenue and the case falls within the mischief of section 281 of the Income Tax Act, 1961; and the LIC was requested to withhold any payment to Smt.
Kamalabai G. Ranade till further communication from the ITO.
On 5.9.1972 Smt.
Kamalubai G. Ranade filed a writ peti tion, (S.C.A. No. 861 of 1972), in the High Court of Bombay impleading the LIC and the ITO as respondents therein claim ing several reliefs which are mentioned at pages 33 to 35 of the paper book.
The reliefs included a direction to the LIC for payment of Rs.3415.70 due on 14.9.72 on maturity of the first policy to Smt.
Kamalabai G. Ranade and also to make a statement on oath as contemplated by section 226(3) of the Income Tax Act, 1961 that no part of the said amount is due to G.V. Ranade nor does the LIC hold any part of the sum for or on account of G.V. Ranade.
This writ petition was dis missed in limine by the High Court on 14.9.72.
The amount of Rs.3415.70 payable against the first policy which matured on 14.9.72 was paid by the LIC to the ITO.
Kamalabai G. Ranade filed an appeal (C.A. No. 373.of 1973) by special leave in this Court against dismissal of her writ petition by the Bombay High Court.
That appeal was disposed of by this Court on October 6, 1975 as under: "On behalf of the Life Insurance Corporation of India Mr. Rathi stated that he would file the necessary statement on oath in accordance with sub cl.
(vi) of CI.
(3) of section 226 of the Income Tax Act, 1961 and file it in Court within two months from today stating that no sum of money is due to the Assessee, insured person, before the Incometax Officer.
It will thereafter be open to the Income tax Officer to take such other proceedings as he might consider necessary in order to realise the amounts due from the assessee.
It is, however, stated that in respect of one policy, the Life Insurance Corporation has already paid the money to the Income tax Officer.
In respect of it no statement need be made and consequently no order can be made under section 226(3)(vi).
The appeal is disposed of accord ingly.
There will be no order as to costs".
In pursuance of the above order of this Court, the LIC filed on December 5, 1975 the requisite statement on oath under section 226(3)(vi) of the Income Tax Act, L961 in respect of the remaining three policies.
103 It appears that the ITO did not revoke the order of attachment in spite of the LIC making the requisite state ment on oath under section 226(3)(vi) of Income Tax Act, 1961 on 5.12.75.
This led to another writ petition (S.C.A. 302 of 1977) filed in the Bombay High Court by Smt.
Kamala bai G. Ranade praying for a direction to the ITO to revoke all notices issued under section 226(3) to the LIC and to the LIC to pay to her the amount due against the policies which had matured.
On 4.4.71 counsel for the ITO produced before the High Court a copy of the order dated 1.4.77 passed by the Income tax Officer withdrawing the notice under section 226(3) of the Income Tax Act, 196 1 and the writ petition was dismissed as withdrawn.
Kamalabai G. Ranade then promptly sent a notice to the LIC demanding payment of the total amount due against these four policies together with interest @ 15% since the delay in payment had been occasioned by the default of the LIC.
Admittedly the LIC had made the payment of these amounts to Smt.
Kamalabai G. Ranade in these circumstances.
The L.I.C. has not disputed at any stage its liability to pay to Smt.
Kamalabai G. Ranade the amounts due under these policies.
However, it has disputed its liability to pay interest thereon for any period after the date of maturity on the ground that the delay was Occasioned by the I.T.O. 's notice under section 226(3).
On the other hand, Smt.
Kamala bai G. Ranade claimed that the L.I.C. nad wrongfully refused to make the statement as contemplated under section 226(3)(vi) of the Income Tax Act, 1961 resulting in delay in payment of the moneys after maturity of the policies.
This dispute regarding the L.I.C. 's liability to pay interest led to the filing of the Writ Petition No. 1248 of 1977 decided on January 7, 1981 which gives rise to this appeal.
The impugned judgment of the Bombay High Court in Writ Petition No. 1248 of 1977 holds that the last two policies having matured on 9.11.
1975 and 21.12.1975, i.e., a few days before or after 5.12.75 when the statement on oath under section 226(3) of the Income Tax Act, 1961 was made by the L.I.C. did not qualify for award of such interest which was payable in respect of the first two which had matured much earlier on 14.9.72 and 28.12.73.
For the period com mencing from the date of maturity of the policy ending with performance of the L.I.C. 's obligation to make the statement under section 226(3)(vi) of the Income Tax Act, 1961 on 5.12.75 the L.I.C. has been held liable to pay interest on the basis of its failure to perform 104 its statutory obligation.
This view of the High Court on which the award of interest is based, is assailed on behalf of the appellant.
The surviving dispute in this appeal is now only .about the L.I.C. 's liability for payment of interest on the prin cipal amount from the date of maturity of the first two policies to 31.12.75, and the rate of 15 % per annum which is alleged to be excessive.
Broadly stated, the contention of the appellant is that the appellant was not liable to pay any interest for the period during which it was restrained from making the pay ment on account of the I.T.O. 's notice under section 226(3) of the Income tax Act, 1961 and the I.T.O. also adding that the matter fell within the ambit of section 281 of the Act.
On this basis it was urged on behalf of the appellant that the award of interest on the first two policies from the date of their maturity till 31.12.1975 (statement on oath by the L.I.C. being made only.
on 5.12.1975) is contrary to law.
To support the main contention of the appellant, that it is not liable for payment of any interest for any period after maturity of the policies, Shri P.P. Rao, learned counsel for the appellant advanced several arguments.
His first argument is that the Income tax Officer was a neces sary party in the writ petition giving rise to this appeal and in his absence no effective adjudication of this dispute can be made.
The second argument is that the High Court has misconstrued section 226(3) of the Income Tax Act, 1961 and thereby wrongly fastened the liability for payment of inter est upto 31.12.75 on the appellant.
The third argument is that the principle of res judicata or atleast constructive res judicata, as a result of the earlier writ petitions, bars the claim for payment of interest in this writ peti tion.
The fourth argument is that the writ petition (S.C.A. No. 302 of 1977) being withdrawn unconditionally without liberty to file a fresh petition, this writ petition (W.P. No. 1248 of 1977) is not maintainable.
The fifth argument is that the rate of 15% p.a. at which interest has been awarded is excessive.
The sixth and the last argument is that the appellant has been required to make double payment of Rs.3415.70 due against the policy which matured on 14.9.1972 inasmuch as the L.I.C. had already deposited that amount earlier in September 1972 with the I.T.O. in pursuance to the I.T.O. 's demand.
In reply, Shri A.K. Sanghi, learned counsel for the respondent contended that the liability for payment of interest has been correctly fastened on the appellant be cause of its failure to discharge the statu 105 tory obligation of making the requisite statement on oath under section 226(3)(vi) of the Income Tax Act, 1961 till 5.12.1975.
He argued that the L.I.C. having accepted and registered the absolute assignment made by the insured G.V. Ranade in favour of his wife Smt.
Kamalabai G. Ranade, it was the duty of the L.I.C. to promptly make the requisite statement on oath under section 226(3)(vi) of the Income Tax Act, 1961 which it made much later on 5.12.75 in pursuance to the Court 's order to enable the I.T.O. to revoke the notice issued by him under section 226(3) of the Income Tax Act, 1961.
Shri Sanghi stated that even though the special leave granted by this Court is confined only to the question of interest and therefore, does not extend to the question of alleged double payment of Rs.3415.70 by the L.I.C. yet the respondent concedes that the amount of Rs.3415.70 depos ited by the L.I.C. with the I.T.O. may be refunded by the I.T.O. to the L.I.C. together with interest, if any, payable on refund of that amount; and that the respondent does not lay any claim to that amount from the I.T.O. having obtained that amount from the L.I.C.
We shall first dispose of the last point relating to double payment by the L.I.C. of the amount of Rs.3415.70 in view of the express concession made by Shri Sanghi, learned counsel for the respondent that the respondent does not lay any claim to it and that the L.I.C. may obtain its refund from the I.T.O.
In view of this statement of learned counsel for the respondent, Shri Sanghi, it is sufficient to observe that it would be open to the L.I.C. to obtain refund of the amount of Rs.3415.70 deposited by it with the I.T.O. togeth er with interest, if any, payable on the refund by the Income Tax Department, since it has been conceded that the respondent does not claim that amount from the I.T.O. We shall now deal with the remaining arguments of Shri Rao, learned counsel for the appellant.
The first argument of the learned counsel for the appel lant is that the I.T.O. was a necessary party in the writ petition giving rise to this appeal.
We are unable to accept this contention.
The only claim made in Writ Petition No. 1248 of 1977 decided on 7.1.1981 giving rise to this appeal is for payment of interest by the appellant, and no relief has been sought against the I.T.O. This being so, for effective adjudication of the L.I.C. 's liability towards the respondent, the presence of the I.T.O. is not necessary.
The respondent 's claim is only against the L.I.C. without any claim being made in the alternative or otherwise against the I.T.O.
The respondent 's claim has, therefore, to succeed or fail only on the basis of the L.I.C. 's liability vis a vis the respondent without involving the I.T.O. or anyone else in that process.
Merely 106 because the defence of the L.I.C. was based on an act of the I.T.O., it was not incumbent for the respondent to implead the I.T.O. in this proceeding when neither any relief was claimed against the I.T.O. nor was any suggestion of I.T.O. 's liability for payment of interest made in the writ peti tion.
This argument is, therefore, rejected.
The second argument relating to construction of section 226(3) of the Income Tax Act, 1961 is in fact the main argument of Shri Rao and, therefore, we shall consider the same after disposing of the remaining arguments which are shorter points.
The third argument is based on the principle of res judicata and constructive res judicata on the basis of two earlier writ petitions filed by Smt.
Kamalabai G. Ranade.
The first writ petition was S.C.A. No. 861 of 1972 filed in the Bombay High Court on 5.9.72 prior to the date of maturi ty of the first policy claim against,which was required to be paid by the L.I.C. to the assignee, Smt.
Kamalaba G Ranade.
This was after issuance of the notice under section 226(3) of the Income Tax Act, 1961 by the I.T.O. to the L.I.C. One of the reliefs claimed therein was a direction to the L.I.C. to make a statement on oath as required by sec tion 226(3)(vi) of the Income Tax Act, 1961 that no part of the amount due against the policy maturing on 14.9.72 was due to the insured G.V. Ranade nor did the L.I.C. hold any part of that sum for or on account of the alleged defaulter.
No doubt some other reliefs including revocation of the notice under section 226(3) of the Income Tax Act, 1961 were.
also claimed including payment 01 ' the amount together with the accretions thereto.
This writ petition being dis missed, Smt.
Kamalabai G. Ranade came to this Court by special leave and Civil Appeal No. 373 of 1973 was disposed of by this Court 's order dated 6.10.1975 requiting the L.I.C. to make the necessary statement on oath in accordance with section 226(3)(vi) of the Income Tax Act, 1961 within two months.
It is obvious that with this direction requiring the L.I.C. to make the requisite statement on oath under section 226(3)(vi) of the Income Tax Act, 1961, no further question survived in that writ petition and the consequent civil appeal in this Court since the further questions including payment of interest on the principal amount were to arise only at a subsequent stage.
Asking for any other relief was obviously premature at that stage.
It is appar ently for this reason that this Court did not at that stage go into the other questions relating to the further reliefs specified in that writ petition.
That decision cannot, therefore, preclude agitation of the question of interest subsequently.
107 The next writ petition filed by Smt.
Kamalabai G. Ranade was S.C.A. No. 302 of 1977 in the Bombay High Court.
The prayer made therein was for a direction to the L.I.C. to pay the principal amount together with interest thereon.
In this writ petition also the I.T.O. was impleaded as a party.
This writ petition had to be filed because in spite of the L.I.C. having made the requisite statement under section 226(3)(vi) of the Income Tax Act, 1961 on 5.12.75, the Income tax Officer had not withdrawn the notice under section 226(3) of the Income Tax Act, 1961 issued to the L.I.C. and, there fore, the L.I.C. was not making the payment to the respond ent.
On 4.4.77 that writ petition was dismissed as withdrawn as a result of the I.T.O . 's counsel filing a copy of the order dated 1.4.1977 withdrawing the I.T.O. 's notice under section 226(3) of the Income Tax Act, 1961 enabling the L.I.C. to make the payment due against the policies to the respondent.
The operation of the notice under section 226(3) of the income Tax Act, 1961 by the I.T.O. being the only reason given by the L.I.C. to support its action of non payment to the respondent, it was unnecessary to persue that writ petition when the I.T.O. had made the order withdrawing the notice under section 226(3) of the Act.
Admittedly, it was in consequence of the withdrawal of the I.T.O. 's notice by order dated 1.4.77 that payment was actually made by the L.I.C. to the respondent.
It is, therefore, difficult to appreciate how the withdrawal of that writ petition can, in any manner, preclude the respondent from raising the ques tion of the L.I.C. 's liability to pay interest when the principal amount alone was paid later.
The L.I.C. having refused to pay the interest on the principal amount in spite of the inordinate delay in pay ment, the Writ Petition No. 1248 of 1977 had to be filed giving rise to this appeal raising only the question of L.I.C. 's liability to pay interest on the principal amount due against the policies.
The same is therefore, clearly maintainable and the earlier writ petitions cannot, in any manner, bar the adjudication of this point her, 'in for the reasons already given.
This contention of learned counsel for the appellant is also, therefore, rejected.
The fourth contention based on withdrawal of writ peti tion (S.C.A. No. 302 of 1977) being covered by the discus sion relating to the third contention, the same is rejected.
The fifth argument relates to the rate of interest.
Shri Rao contended that the award of interest @15% p.a. is exces sive even if the L.I.C. is held liable for payment of inter est.
Reference was made by 108 Shri Rao to Section 244 of the Income Tax Act, 1961 provid ing for payment of interest on refund which prescribed the rate of 12% p.a. from 1.7.1972 to 1.10.1984, the increase to 15% p.a. being made therein only from 1.10.84 by amendment of that section.
It was urged that the period in question in the present case being prior to 1.10.84 the rate of 15% p.a. in excess of the statutory provision of 12% p.a. in Section 244 of the Income Tax Act, 1961 is unjustified.
Admittedly, the award of interest, in the present case, for payment by the L.I.C. is not governed by Section 244 of the Income Tax Act, 1961.
Apparently, for this reason, learned counsel for the appellant relied on Section 244 of the Income Tax Act, 1961 as of persuasive value.
We are not impressed by this argument.
The High Court has relied on the fact that inter est @ 15% p.a. is reasonable, in the present case, particu larly in view of the fact that the L.I.C. itself charges interest at that rate.
It is sufficient for us to state that there is no material produced, in the present case, to suggest that award of interest @ 15% p.a. is excessive to permit interference with the rate in this appeal particular ly when the High Court has come to the conclusion that this is the reasonable rate.
This argument also is, therefore, rejected.
The only point remaining for consideration now is the construction of Section 226(3) of the Income Tax Act, 1961 the relevant portion of which, reads as under: "Other modes of recovery: 226.(1) Notwith standing the issue of a certificate to the Tax Recovery Officer under section 222, the In come tax Officer may recover the tax by any one or more of the modes provided in this section.
. . (3)(i) The Income tax Officer may, at any time or from time to time, by notice in writing require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee, to pay to the Income tax Officer either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the assessee in respect of arrears or the whole of the money when it is equal to or less than that amount.
109 (ii) A notice under this sub section may be issued to any person who holds or may subsequently hold any money for or on account of the assessee jointly with any other person and for the purposes of this sub section, the shares of the joint holders in such account shall be presumed, until the contrary is proved to be equal.
(iii) A copy of the notice shall be forwarded to the assessee at his last address known to the Income tax Officer, and in the case of a joint account to all the joint holders at their last addresses known to the Income tax Officer.
(iv) Save as otherwise provided in this sub section, every person to whom a notice is issued under this subsection.
shall be bound to comply with such notice, and, in particular, where any such notice is issued to a post office, banking company or an insurer, it shall not be necessary for any pass book, deposit receipt, policy or any other document to be produced for the purpose of any entry, endorsement or the like being made before payment is made, notwithstanding any rule, practice or requirement to the contrary.
(v) Any claim respecting any proper ty in relation to which a notice under this sub section has been issued arising after the date of the notice shall be void as against any demand contained in the notice.
(vi) Where a person to whom a notice under this subsection is sent objects to it by a statement on oath that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee, then, nothing contained in this sub section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, but if it is discovered that such statement was false in any material particular, such person shall be personally liable to the Income tax Officer to the extent of his own liability to the assessee on the date of the notice, or to the extent of the assessee 's liability for any sum due under this Act, whichever is less.
(vii) The Income tax Officer may, at any time or 110 from time to time, amend or revoke any notice issued under this sub section or extend the time for making any payment in pursuance of such notice.
(viii) The Income tax Officer shall grant a receipt for any amount paid in compli ance with a notice issued under this sub section, and the person so paying shall be fully discharged from his liability to the assessee to the extent of the amount so paid.
(ix) Any person discharging any liability to the assessee after receipt of a notice under this sub section shall be person ally liable to the Income tax Officer to the extent of his own liability to the assessee so discharged or to the extent of the assessee 's liability for any sum due under this Act, whichever is less.
(x) If the person to whom a notice under this subsection is sent fails to make payment in pursuance thereof to the Income tax Officer, he shall be deemed to be an assessee in default in respect of the amount specified in the notice and further proceedings may be taken against him for the realisation of the amount as if it were an arrear of tax due from him, in the manner provided in sections 222 to 225 and the notice shall have the same effect as an attachment of a debt by the Tax Recovery Officer in exercise of his powers under sec tion 222." . . ." The argument of the learned counsel for the appellant is that on receipt of the I.T.O. 's notice under section 226(3) of the Income Tax Act, 1961, the L.I.C. was not left with the option to make the payment to assignee of the policies since the L.I.C. or its officer making the state ment on oath under section 226(3)(vi) would thereby have been exposed to personal liability as the defaulter of the income tax dues.
It was argued that in these circumstances the L.I.C. could make the payment only aftter revocation of the notice by the I.T.O. 's Order dated 1.4.77 and, there fore, the L.I.C. cannot be held liable for payment of inter est for any period prior to revocation of the notice.
The period for which the L.I.C. has been held liable to pay interest being prior to revocation of the notice by the I.T.O., it was urged that the same was unjustified.
111 Having given our anxious consideration to the argument we cannot persuade ourselves to accept the same.
On a close scrutiny of the provision we find that the benefit claimed by the L.I.C. is not available to it, in the facts of the present case.
Admittedly assignment of the policies was made by the insured G.V. Ranade and the same was duly accepted and registered by the L.I.C. in April 1969.
It is, therefore, obvious that the L.I.C. was bound to act on that assignment in favour of Smt.
Kamalabai G. Ranade unless the assignment was held to be invalid by a competent authority in a proper proceeding taken for this purpose.
It is significant that the L.I.C. never disputed the validity of the assignment and was throughout prepared to act on it.
It is undisputed that the assignment was not declared invalid by any competent authority.
Mere issuance of notice under section 226(3) of the Income Tax Act, 1961 did not have the effect of invali dating the assignment nor did the casual mention of Section 281 of the Income Tax Act, 1961 by the I.T.O. in his letter dated 28.8.72 result in this consequence.
Any further step towards formation of the final opinion by the I.T.O. could be taken only after the L.I.C. had made the requisite state ment on oath under section 226(3)(vi) of the Income Tax Act, 1961 on the basis of the registered assignment of policies.
This act was performed by the L.I.C. only on 5.12.75 which led to revocation of the notice under section 226(3) of the Act, by the I.T.O.
The question is of the liability of the L.I.C. in these circumstances.
Section 226 consists of several Sub sections of which sub sections (1) and (3) alone are relevant for our purpose.
Sub section (1) enables the I.T.O. to recover the tax by anyone or more of the further modes provided in this sec tion.
Sub section (3) deals with one such mode where the defaulter 's money is held by another person.
Clause (i) of sub section (3) enables the I.T.O. by notice in writing to require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay the Income tax Officer that money or so much of it as is suffi cient t6 pay the dues of the assessee in respect of the arrears of tax.
It is in exercise of this power that the I.T.O. had issued the notice to the L.I.C. in the present case.
Obviously, the I.T.O. had assumed that the money payable on maturity of these policies belonged to the in sured/assessee/defaulter G.V. Ranade overlooking the duly registered assignment made much earlier in favour of the assessee 's wife in April 1969.
The further clauses (ii) to (v) of sub section (3) deal with ancillary matters and also provide that any 112 claim in respect of property covered by the notice shall be void after the date of the notice as against the demand contained in the notice.
Clause (vi) is relevant for the present purpose and speaks of the obligation of a person to whom such a notice has been sent.
Clause (vi) relieves the person receiving such a notice from the liability to pay any sum to the I.T.O. in obedience to the notice if he "objects to it by a statement on oath that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee".
This clause fur ther provides that "if it is discovered that such statement was false in any material particular" such person shall be personally liable to the I.T.O. to the extent of the asses see 's liability on the date of notice.
Clause (vii) then provides, inter alia, for amendment or revocation of the notice issued under this sub section by the I.T.O.
This stage of amendment or revocation of the notice under clause (vii) is reached only after the stage provided in clause (vi), in a case where the notice objects that he does not hold the money for or on behalf of the defaulter of tax dues.
It is, therefore, obvious that the question of revoca tion of the notice under clause (vii) of sub section (3) of section 226 of the Income Tax Act, 1961 arose in the present case only after the L.I.C. made the requisite statement on oath under section 226(3)(vi) of the Act in view of its consistent stand throughout that the moneys due under the policies were held by it for and on behalf of the assignee and not the defaulter.
Mere information of the assignment to the I.T.O. and keeping the assignee informed of the I.T.O. 's action did not amount to discharge of the statutory obliga tion under section 226(3)(vi) of the Act, by the L.I.C.
The statute having expressly provided the mode of raising such an objection in the form of a statement on oath specified in clause (vi), performance of that obligation by the notice had to be made only in that manner.
This statutory obliga tion was performed by the L.I.C. only on 5.12.1975 as stated earlier.
The personal liability arising after making the requisite statement on oath as envisaged by clause (vi) is only "if it is discovered that such statement was false in any material particular and not otherwise.
Learned counsel for the appellant argued that the requisite statement under section 226(3)(vi) of the Income Tax Act, 1961 could not be made by the L.I.C. since it involved the risk of exposing the L.I.C. or its officer making the statement on oath to personal liability for the income tax dues of the assessee/defaulter G.V. Ranade.
In the first place, such a statement was in fact made without hesitation by the 113 L.I.C. on 5.12.75 after the assignee was compelled to obtain such a direction in a writ petition filed by her.
That apart the risk visualised on behalf of the L.I.C., in ultimate analysis, is entirely imaginary and not real.
The risk of personal liability envisaged in clause (vi) arises only "if it is discovered that such statement was false in any mate rial particular".
Thus, there is no risk of personal liabil ity of the person making the statement on oath unless any material particular mentioned in the statement is false.
The statement on oath required to be made by clause (vi) is only "that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on ac count of the assessee".
The L.I.C. itself has taken the stand throughout that the sum demanded by the notice issued under section 226(3) of the Income Tax Act, 1961 by the I.T.O. did not belong to the assessee inasmuch as it was payable only to the assignee, Smt.
Kamalabai G. Ranade by virtue of the assignment made, accepted and registered in April 1969 much earlier to the date of the notice.
This being so the making of this statement on oath of the L.I.C. 's own stand which in fact was so made on 5.12.75 did not involve even remotely the possibility of any risk of personal liability.
On the contrary, real risk of the L.I.C. being treated deemed defaulter assessee under clause (x) of sub section (3) of section 226 of the Act lay in its failure to pay to the I.T.O. after receipt of notice under section 226(3), the amounts of the matured policies within the time given by the I.T.O. or a reasonable time, without objecting to the demand by denying its liability to the assessee in the manner prescribed in clause (vi) thereof, instead of in doing so.
Prudence also required the L.I.C. in its own interest, to object to the demand according to clause (vi) instead of refusing or delaying the objection.
The argument that such a statement was not made since it involved the likelihood of exposing the L.I.C. or any of its officers to personal liability has, therefore, no merit.
This being the only reason given by the L.I.C. to justify the inordinate delay in making the requisite statement under section 226(3)(vi) of the Income Tax Act, 1961, it is obvious that this defence is untenable.
Sub section (3) of section 226 of the Income Tax Act, 1961 clearly shows that on a notice thereunder being issued by the I.T.O. to the L.I.C., in the present case, it was incumbent on the L.I.C. to make the requisite statement on oath under clause (vi) thereof raising an objection on the basis of the registered assignment.
It was then for the I.T.O. to proceed further and form his final opinion and revoke the notice under clause (vii).
It was not possible for the assignee of the 114 policies to obtain revocation of the notice by the I.T.O. without the requisite statement on oath being made by the L.I.C. as envisaged in clause (vi) of sub section (3) of section 226 of the Income Tax Act.
It is obvious that the inordinate delay in making the statement on oath by the L.I.C. under section 226(3)(vi) of the Income Tax Act, 1961 was the result of misconstruction of the provision and misappreciation of its liability thereunder.
Obviously the assignee of the policies who had become entitled to receive the amounts due thereunder on the dates of their maturity must be compensated by the L.I.C. for its failure to perform its statutory obligation under section 226(3)(vi) of the Income Tax Act, 1961 within a reasonable time.
We have no doubt that this is the proper construction of section 226(3) of the Income Tax Act, 1961 and the conse quential liability resulting from the failure of the notice to raise the objection in the prescribed manner under clause (vi) thereof within a reasonable time.
Performance of this statutory obligation by the L.I.C., in the present case, being after inordinate delay, award of interest to the assignee of the policies to whom the payment thereunder had to be made even according to the stand of the L.1.C. is, therefore, clearly justified.
This contention which is really the main contention urged on behalf of the appellant, therefore, fails and is rejected.
Consequently, the appeal is dismissed with costs.
The costs are quantified at Rs.2,000.
R.N.J. Appeal dis missed.
| IN-Abs | One Sh.
G.V. Ranade took four policies on his own life from the LIC during the period.
1958 to 1960.
In April 1969 G.V. Ranade assigned absolutely all these four policies in favour of his wife Smt.
Kamalabai G. Ranade and the assign ment was duly registered by the LIC.
These policies were paid up and the date of maturity of these were 14.9.72, 28.12.73, 9.11.75 and 21.12.75.
There were some income tax dues against the said G.V. Ranade for recovery of which income tax officer 'commenced recovery proceedings.
The Income Tax Officer on 27.1.71 issued a notice under Section 226(3) of the Income Tax Act, 1961 to the Manager of the LIC at Nagpur directing the LIC to pay to I.T.O. forthwith any amount due from the LIC to or, held by the LIC for or on account of the said Ranade to meet the amount due from Ranade as arrears of income tax.
The Divisional Manager of the LIC at Nagpur intimated this fact of receipt of the notice under section 226(3) of the Income Tax Act 1961 to the assignee of these policies Smt.
Kamalabai G. Ranade, suggesting that she take steps to get the notice vacated in order to safeguard her interest in the policies.
By further correspondence the ITO required the LIC to deposit the amount of Rs.3415.70 payable against the first policy which was to mature on 14.9.72 and the LIC informed the assignee that the moneys due under the policies will be paid to her only after her getting the notice served on LIC by the ITO vacated.
On 5.9.72 Smt.
kamalabai G. Ranade flied a Writ Petition in the High Court of Bombay impleading LIC and the ITO claiming several reliefs including a direction to the LIC for payment of Rs.3415.70 and also to make a statement that no part of the said amount is due to G.V. 98 Ranade nor does the LIC hold any part of the sum for or on account of Ranade.
This Writ Petition was dismissed in limine.
Kamalabai G. Ranade filed an appeal by special leave in this court and this court disposed of the appeal on the counsel for the LIC stating that he would file the necessary statement on oath in accordance with section 226(3)(vi) of the Income Tax Act, 1961 stating that no sum of money is due to the Assessee, insured person, before the ITO except one policy in respect of which the LIC having already paid the money to ITO no statement need be made and consequently no order can be made u/s 226(3)(vi) and the appeal was disposed of accordingly.
It appears that the ITO did not revoke the order of attachment inspite of the LIC making the requisite statement on oath under section 226(3)(vi) of the Income Tax Act on 5.12.75.
This led to the filing of another Writ Petition in the Bombay High Court by Smt.
Kamalabai praying for a direc tion to the ITO to revoke all notices issued under section 226(3) to the LIC and to the LIC to pay her the amount due against the policies which had matured.
On 4.4.1977 counsel for the ITO produced before the High Court a copy of the order dated 1.4.77 passed by the ITO withdrawing the notice u/s 226(3) of the Income Tax Act and the Writ Petition was dismissed as withdrawn.
Kamalabai then sent notice to the LIC demanding payment of the total amount due against the four policies together with interest @ 15% since the delay in payment had been occasioned by the default of the LIC.
LIC made the payment of these amounts to her but disputed its liability to pay interest thereon for the period subsequent to the date of maturity on the ground that the delay was occasioned by the ITOs notice u/s 226(3).
This dispute regarding the LIC 's liability to pay interest led to the filing of Writ Petition No. 1248 of 1977 decided on January 7, 1981 which gives rise to this appeal.
The impugned judgment holds that the last two policies having matured on 9.11.75 and 21.12.75 a few days before or after 5.12.75 when the statement on oath u/s 226(3) of the Income Tax Act was made by the LIC did not qualify for award of such interest which was payable in respect of the first two which had matured earlier on 14.9.72 and 28.12.73.
This view of the High Court on which the award of interest is based is assailed on behalf of the appellant.
The dispute in this appeal is only about the LIC 's liability for payment of interest on the principal amount from the date of maturity of the first two policies to 31.12.75 and the rate of 15% p.a. which is alleged to be excessive.
99 Dismissing the appeal with costs this Court, HELD: In the instant case, admittedly assignment of the policies was made by the insured G.V. Ranade and the same was duly accepted and registered by the LIC in April 1969.
It is, therefore, obvious that the LIC was bound to act on that assignment in favour of Smt.
Kamalabai G. Ranade unless the assignment was held to be invalid by a competent author ity on a proper proceeding taken for this purpose [111B] Mere issuance of notice under section 226(3) of the Income Tax Act, 1961 did not have the effect of invalidating the assignment nor did the casual mention of section 281 of the Income Tax Act, 1961 by the ITO in his letter dated 28.8.72 result in this consequence.
Any further step towards formation of the final opinion by the ITO could be taken only after the LIC had made the requisite statement on oath under section 226(3)(vi) of the Income Tax Act, 1961 on the basis of the registered assignment of policies.
[111C D] The question of revocation of the notice under clause (vii) of subsection (3) of Section 226 of the Income Tax Act, 1961 arose in the present case only after the LIC made the requisite statement on oath under section 226(3)(vi) of the Act in view of its consistent stand throughout that the moneys due under the policies were held by it for and on behalf of the assignee and not the defaulter.
Mere informa tion of the assignment to the ITO and keeping the assignee informed of the ITO 's action did not amount to discharge of the statutory obligation under section 226(3)(vi) of the Act by the LIC.
Sub section (3) of Section 226 of the Income Tax Act, 1961 clearly shows that on a notice thereunder being issued by the ITO to the LIC in the present case, it was incumbent on the LIC to make the requisite statement on oath under clause (vi) thereof raising an objection on the basis of the registered assignment.
It was then for the ITO to proceed further and form his final opinion and revoke the notice under clause (vii).
[112D E; 113G H] The inordinate delay in making the statement on oath by the LIC under section 226(3)(vi) of the Income Tax Act, 1961 was the result of misconstruction of the provisions and misappreciation of its liability thereunder.
[114B] Obviously the assignee of the policies who had become entitled to receive the amount due thereunder on the dates of their maturity must be compensated by the LIC for its failure to perform its statutory 100 obligation under section 226(3)(vi) of the Income Tax Act, 1961 within a reasonable time.
Performance of this statutory obligation by the LIC in the present case being after inor dinate delay award of interest to the assignee of the poli cies to whom the payment thereunder had to be made even according to the stand of the LIC is, therefore, clearly justified.
[114C D]
|
ivil Appeal No. 3812 of 1989.
From the Judgment and Order dated .1.2.89 of the Andhra Pradesh High Court in Revision Petition No. 302 of 1989.
K.N. Bhatt, M.J. Paul and Kailash Vasdev for the Appellant.
A. Subba Rao for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted.
This tenant 's appeal raises the question whether a tenant who omits to pay or tender the rent in respect of the demised premises under the belief that he had a right to purchase the property under a prior agreement to sell and was, therefore, not obliged to pay the rent can be said to be a wilful defaulter within the meaning of the proviso to sub section (2) of Section 10 of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (hereinafter called 'the Act ').
Section 10(1) lays down that a tenant shall not be evicted except in accordance with the provisions of this section or sections 12 and 13 of the Act.
Clause (i) of sub section (2) of that section next provides that a land lord who seeks to evict his tenant may apply to the Control ler for a direction in that behalf and the Controller on being satisfied that the tenant has not tendered the rent due by him within fifteen days after the expiry of the time fixed in the agreement of tenancy or in the absence of any such agreement by the last day of the month next following that for which the rent is due, shall make an order direct ing the tenant to put the landlord in possession.
This is, however, subject to the proviso which reads under: "Provided that in any case falling under clause (i), if the Controller is satisfied that the tenant 's default to pay or tender rent was not wilful, he may notwithstanding anything in section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord upto the date of such payment or tender and 118 on such payment or tender, the application shall be rejected.
" The proviso, therefore, makes it clear that if the Control ler is satisfied that the tenant 's default is not wilful he may give the tenant an opportunity to pay or tender the rent due by him to the landlord and on such payment or tender being made within the time allowed, the landlord 's applica tion for eviction shall be rejected.
The benefit of this proviso is available to only those tenant who are not guilty of wilful default.
In the present case, the courts below have come to the conclusion that the tenant 's default was wilful and hence the benefit of the proviso was not avail able to him.
The question then is whether this conclusion reached by the courts below can be sustained on he facts found proved.
The facts lie in a narrow compass.
The respondents purchased the demised premises by a registered sale deed dated 7th December, 1977 for Rs.70,000.
The appellant was in actual possession of a part of the premises as a tenant of the vendors at the date of purchase.
After the purchase of the property the respondents served the appellant with a notice dated 13th December, 1977 calling upon him to pay the rent due and deliver vacant possession of the demised prem ises.
The appellant replied to the notice on 29th December, 1977 alleging that the vendors had orally agreed on 14th October, 1977 to sell the property to him for Rs.70,000 and had received Rs.5,000 as earnest.
The appellant, therefore, contended that he was under no obligation to pay the rent and vacate the premises since he was ready and willing to purchase the property.
The respondents sent a reply denying the existence of any such oral agreement and filed a suit for eviction.
It may here be mentioned that on the date of the purchase of the property the rent was paid to the ven dors up to the end of November 1977.
The respondents, there fore, claimed the rent from December 1977 to May 1978 from the appellant.
Since the appellant failed to pay the rent for the said period the courts below came to the conclusion that he was a wilful defaulter and passed a decree in eject ment against him.
The tenant has, therefore, come in appeal to this Court.
The short question then is whether it can be said that the tenant 's default to pay or tender rent from December 1977 to May 1978 was not wilful to avail of the benefit of the proviso extracted above.
It may be noticed that in cases where the tenant has defaulted to pay or tender the rent he is entitled to an opportunity to pay or tender the same if his default is not wilful.
The proviso is couched in nega tive form to reduce 119 the rigour of the substantive provision in Section 10(2) of the Act.
An Act is said to be wilful if it is intentional, conscious and deliberate.
The expressions 'wilful ' and 'wilful default ' came up for consideration before this Court in section Sundaram Pillai etc.
V.R. Pattabiraman etc., [1985] 2 SCR 643.
After extracting the meaning of these expressions from different dictionaries (See: pp. 659 & 660) this Court concluded at p. 661 as under. "Thus a consensus of the meaning of the words 'wilful default ' appears to indicate that default in order to be wilful must be inten tional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom".
Since the proviso with which we are concerned is couched in negative form the tenant can prevent the decree by satisfy ing the Controller that his omission to pay or tender the rent was not wilful.
If the Controller is so satisfied he must give an opportunity to the tenant to make good the arrears within a reasonable time and if the tenant does so within the time prescribed, he must reject the landlords application for eviction.
In the present case, it is not in dispute that the tenant did not pay the rent from December 1977 to May 1978 before the institution of the suit.
Under the eviction notice served on him in December 1977 he was called upon to pay the rent from December, 1977 only.
The appellant tenant did not pay or tender the rent from Decem ber 1977 to May 1978 not because he had no desire to pay the rent to the respondents but because the bona fide believed that he was entitled to purchase the property under the oral agreement of 14th October, 1977.
He had also paid Rs.5,000 by way of earnest under the said oral agreement.
True it is, his suit for specific performance of the said oral agreement has since been dismissed but he has filed an appeal which is pending.
He, therefore, bona fide believed that he was entitled to purchase the property under the said oral agree ment and since he had already paid Rs.5,000 by way of ear nest thereunder he was under no obligation to pay the rent to the respondents.
In order to secure eviction for non payment of rent, it must be shown that the default was intentional, deliberate, calculated and conscious with full knowledge of its consequences.
Here is a tenant who felt that even though he had invested Rs.5,000 as earnest the vendor has sold the property to the respondents in total disregard of his right to purchase the same.
This is not a case of a tenant who has failed to pay the rent without any rhyme or reason.
He was not averse to paying the rent but he genuinely believed that he was under no obligation to do so as he had a prior 120 right to purchase the property.
We are, therefore, of the opinion that this is a case in which the Controller should have invoked the proviso and called upon the appellant to pay the arrears from December 1977 to May 1978 within a certain time.
Failure to do so has resulted in miscarriage of justice.
We are, therefore, of the opinion that the ejectment decree cannot be allowed to stand.
In the result we allow this appeal and set aside the eviction decree.
The matter will go back to the Controller with a direction that he will give the benefit of the provi so extracted above to the appellant in accordance with law.
Parties will bear their own costs.
N.V.K. Appeal allowed.
| IN-Abs | The respondents purchased the demised premises by a registered sale deed dated 7th December, 1977 for Rs.70,000.
The appellant was in actual possession of a part of the premises as a tenant of the vendors at the date of purchase.
After the purchase the respondents served the appellant with a notice dated 13th December, 1977 calling upon him to pay the rent due, and deliver vacant possession of the demised premises.
The appellant replied to the notice on 29th Decem ber, 1977 alleging that the vendors had orally agreed on 14th October, 1977 to sell him the property for Rs.70,000, and had received Rs.5,000 as earnest money, and that he was under no obligation to pay the rent and vacate the premises, since he was ready and willing to purchase the property.
The respondents sent a reply denying the existence of any such oral agreement.
A suit for eviction, was thereafter filed by the re spondents claiming rent from December 1977 to May 1978 from the appellant, and since the same was not paid, the appel lant it was contended had rendered himself liable to evic tion on the ground of wilful default.
The courts below held that the appellant failed to pay the rent, and concluded that he was a wilful defaulter and passed a decree for ejectment against him.
In the appeal to this Court, on the question: whether it can be said 116 that the tenant 's default to pay or tender rent from Decem ber 1977 to May 1978 was not wilful to avail of the benefit of the proviso to clause (i) of the sub section (2) of Section 10 of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960.
The Court, allowing the appeal.
HELD: 1.
An act is said to be wilful if it is intention al, conscious and deliberate.
[119A] section Sundaram Pillai etc.
vs V.R. Pattabiraman etc.
, [1985] 2 SCR 643, refered to. 2.
In order to secure eviction for non payment of rent, it must be shown that the default was intentional deliber ate, calculated and conscious with full knowledge of its consequences.
[119G] 3.
In cases where the tenant has defaulted to pay or tender the rent, he is entitled to an opportunity to pay or tender the same if his default is not wilful.
The proviso to sub section (2) of Section 10 is couched in negative form to reduce the rigour of the substantive provision in Section 10(2) of the Act.
[118H; 119A] 4.
The appellant tenant in the instant case, did not pay or tender the rent from December 1977 to May 1978, not because he had no desire to pay the rent to the respondents but because he bona fide believed that he was entitled to purchase the property under the oral agreement of October 14, 1977.
He had also paid Rs.5,000 by way of earnest under the said oral agreement.
He, therefore, bona fide believed that he was entitled to purchase the property under the said oral agreement and since he had already paid Rs.5,000 by way of earnest thereunder he genuinely believed he was under no obligation to pay the rent to the respondents.
[119E F] 5.
This is not a case of a tenant who has failed to pay the rent without any rhyme or reason.
He was not averse to paying the rent but he genuinely believed that he was under no obligation to do so as he had a prior right to purchase the property.
[119H; 120A] 6.
This is a case where the Controller should have invoked the proviso to sub section (2) of Section 10 of the Act and called upon the appellant to pay the arrears from December 1977 to May 1978 within a certain time.
Failure to do so has resulted in miscarriage of justice.
The 117 ejectment decree cannot therefore, be allowed to stand and is accordingly set aside.
The.matter will go back to the Controller who will give the benefit of the aforesaid provi so to the appellant.
[120A B]
|
ivil Appeal No. 3097 of 1989.
From the Judgment and Order dated 15.3.1989 of the Central Excise and Gold (Control) Appellate Tribunal, New Delhi in Order No. 100/89 C in Appeal No. E/55/87 C. K. Swami and P. Parmeswaran for the Appellant.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal under section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act ') against the order dated 15th March, 1989 of the Customs, Excise & Gold (Control) Appel late Tribunal, New Delhi (hereinafter referred to as 'the Tribunal ').
The question for consideration in this appeal is, wheth er the bulb sleeves and tube light sleeves manufactured by the respondent for the purpose of packing the electric bulbs and electric tube lights are 'printed boxes and cartons ' and are subject to excise duty or whether the respondent is entitled to exemption under notification No. 66/82 dated 28th February, 1982, as amended by notification No. 15 1/83 dated 13th May, 1983.
The said amended notification reads as follows: "GSR No.
In exercise of the powers conferred by subrule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts articles of paper or paper board falling under sub item (3) of Item No. 17 of the First Schedule to the (1 of 1944), from the whole of the duty of excise leviable thereon: 125 Provided that no such exemption shall apply to printed boxes and printed cartons (including flattened or folded printed boxes and flattened or folded printed cartons) whether in assembled or unassembled condition.
" The respondent was manufacturing printed bulb carton and printed tube carton falling under erstwhile Tariff Item No. 17(3) of the Central Excise Tariff.
The revenue, it is alleged, ascertained that the sleeve rolls had a width of 17.5 cms.
consisting of corrugated kraft paper on one side and plain paper on the other side having printed thereon the name monograms and so on pertaining to the lamps from the corrugated paper manufacturers.
The rolls are mounted on a packing machine and are cut to adequate length to circum scribe the lamps and the joint is automatically covered by gum tapes.
The sleeves are conveyed automatically to a conveyer on which the lamps are inserted manually.
Further the ends of the above sleeve are folded to prevent lamps from falling out.
The entire machine is operated by means of electric motor.
It is stated that it was further ascertained that for the florescent tubes the sleeves already cut to the proper length are supplied to the factory by outside manu facturers.
The tube lamp is manually put in and the sleeve edges folded over manually and gum tape is also applied manually.
The tube lamp is inserted in the tube and then put in the outside card box packing.
It is the case of the revenue that the respondent manufactured printed cartons for bulbs by way of printing on papers (printed and writing) and pasting the printed paper on the corrugated board and thus converting the said corrugated board to printing cartons.
According to the revenue, this process of manufacture ren ders the carton having printing and paper pasting on the surface to make these manufacture in terms of section 2(f) of the Act and classifiable under Tariff Item 17(3) as aforesaid.
According to the revenue, the exemption contained in the notification No. 66/82 was not applicable as the notification exempted articles of paper and paper board falling under Tariff Item No. 17(3) except printing boxes and cartons from the duty.
According to the revenue, the respondent manufactured and cleared bulb cartons (printed) and tube cartons during the period June, 1985 to 30th April, 1986 of the value of Rs.10,24,461.25 involving central excise duty to the tune of Rs.1,59,817.67 without applying for and obtaining a central excise licence for erstwhile Tariff Item No. 17 and without maintaining any statutory record thus wilfully suppressing and mis stating the facts with the intention to evade central excise duty and thereby contravening provisions of the Act and the rules.
126 A Show Cause notice was issued followed by a corrigendum and demand was made of Rs. 1,59,817.57 under rule 9(2) of the Central Excise Rules, 1944 (hereinafter referred to as 'the said rules ') as to why penalty should not be imposed on them under rule 173Q of the said rules for the various alleged contraventions under the provisions of the Act and the rules.
Written submissions were made.
By an Order dated 24th November, 1986, Additional Collector of Central Ex cise, Chandigarh held that cartons bulb and light were manufactured by the respondents and were classifiable under item 17(3) of the erstwhile Central Excise Tariff Act and thus chargeable to excise duty.
But the duty was liable to be reduced in view of the exemption notification No. 217/86 dated 2nd April, 1986 for the period 2.4.86 to 30.4.86.
The Additional Collector therefore passed an order dated 24th November, 1986 for demand of duty of Rs. 1,44,158.12 from the respondent under rule '9(2) of the said rules and im posed a penalty of Rs.25,000 under rule 173Q.
There was an appeal to the Tribunal.
The Tribunal referred to Tariff Item 17 pertaining to paper and paperboard.
Sub item (4) of the said item reads as follows: "4.
Boxes, cartons, bags and other packing containers (including flattened or folded boxes) and flattened or folded cartons, wheth er or not printed and whether in assembled or unassembled condition.
" Tariff Item 17(4) makes a distinction between boxes, cartons, bags and other packing container.
There can be no doubt, according to the Tribunal, that boxes, cartons and bags would also be packing containers.
Out of the various types of packing containers of paper and paper board, ac cording to the Tribunal, only printed boxes and printed cartons are dutiable if we read notification 66/82 as al ready set out hereinbefore.
The Tribunal was of the view that the boxes and cartons have a definite understanding.
Reference was made to Shorter Oxford English Dictionary Vol.
I where 'box ' has been defined as "a case of a receptacle usually having a lid".
In that view of the matter, according to the Tribunal, the product drums or sleeves manufactured by the respondent could not be called 'box ' or 'carton '.
Therefore, the Tribunal held that these will be exempt from excise duty under the aforesaid notification even assuming that the product is a container.
In that view of the matter, the Tribunal did not go into the question of limitation which had been raised before it.
The Tribunal, however, mentioned in the order that before the adjudicating authori ty, no mention had been made by the respondent regarding the fact that they were undertaking manufacture of drums and sleeves out of paper and 127 paper board sheets purchased by them from the market inas much as,they had not filed any classification list to that effect which they were under an obligation to do under the law.
It was contended on behalf of the respondent that the manufacturing of the drums and sleeves was undertaken in manufacturing bale and, therefore, the revenue knew its manufacturing.
But this factor, the Tribunal held, is of no consequence because in the system of Self Removal Procedure, the respondent is not absolved of the responsibility of bringing the product manufactured by them to the notice of the authorities even if they are using that product for their captive consumption.
The respondent had their respon sibility.
In the light of the Tribunal 's findings on the question of classification, the appeal of the respondent was allowed with consequential relief.
Revenue challenges the same in this appeal.
We have perused the order of the Tribunal.
It is evident that one of the meanings, according to the Shorter Oxford English Dictionary, Vol.
I, which the Tribunal had referred, is that box is 'a case of a receptacle usually having a lid ' and in view of the purpose for which this is used in the transaction, the Tribunal found that drums or sleeves manu factured by the respondent could not be called a 'box ' or a 'carton ' because the box must have a lid.
The Tribunal noted that sleeves by themselves could not contain anything be cause these are open ended from both sides.
In order to consider the question whether the exemption notification was applicable or not in view of the terms of the notification, it is necessary to find out whether these sleeves bulbs or sleeves or tube light sleeves manufactured for the purpose of packing the electric bulbs and tubes are printed box and cartons.
In our opinion, the Tribunal ap proached the question from the literal meaning as well as the functional use of the expressions employed.
As these sleeves and tube sleeves manufactured by the respondent had no independent market as such, and as these were utilised for captive consumption for the end product manufactured by the respondent, in our opinion, in the absence of any posi tive and reliable evidence that there was either a market for these goods manufactured by the respondent and in that market these bulb sleeves and tube.sleeves are known and marketable as corrugated boxes and cartons, a fact of which in the record, there is no positive evidence either way, in our opinion, the Tribunal proceeded on a correct basis.
We have considered the submissions advanced on behalf of the revenue.
But we have not been able to persuade ourselves to accept the contention that Tribunal committed any error either on the principle of law to be applicable or the appreci 128 ation of the facts in this case.
In the aforesaid view of the matter, the conclusion reached by the Tribunal cannot be assailed in this appeal.
The appeal, therefore, fails and is, accordingly, dismissed.
There will, however, be no order as to costs.
T.N.A. Appeal dis missed.
| IN-Abs | The respondent was manufacturing printed bulb cartons and printed tube cartons for the purpose of packing electric bulbs and electric tube light.
The Additional Collector of Central Excise held that the cartons manufactured by the respondent were classifiable under item No. 17 of the Cen tral Excise Tariff Act and thus chargeable to excise duty.
Accordingly an order was passed for demand of excise duty.
The respondent filed an appeal before the Customs, Excise & Gold (Control) Appellate Tribunal.
The Tribunal allowed the appeal by holding that (i) The product drums or sleeves manufactured by the respondent could not be called 'box ' or 'carton '; (ii) They were exempted from excise duty under the relevant notification.
Hence this appeal by the Revenue.
Dismissing the appeal, this Court, HELD: 1. To consider the question whether the exemption notification was applicable or not in view of its terms, it is necessary to find out whether these sleeves bulbs or sleeves or tube light sleeves manufactured for the purpose of packing the electric bulbs and tubes are printed box and cartons.
[127E] 2.
The Tribunal approached the question from the literal meaning as well as the functional use of the expressions employed.
As these 124 sleeves and tube sleeves manufactured by the respondent had no independent market as such, and as these were utilised for captive consumption for the end product manufactured by the respondent, in the absence of any positive and reliable evidence that there was either a market for these goods manufactured by the respondent, and in that market these bulb sleeves and tube sleeves are known and marketable as corrugated boxes and cartons, a fact of which in the record, there is no positive evidence either way, the Tribunal proceeded on a correct basis.
Therefore, the conclusion reached by the Tribunal cannot be assailed in this appeal.
[127F H; 128B]
|
Appeal No. 149 of 1958.
1149 Appeal by special leave from the judgment and order dated September 2, 1957, of the Allahabad High Court in First Appeal No. 474 of 1956, arising out of the judgment and order dated July 30, 1956, of the First Additional Civil Judge, Kanpur, in Civil Suit No. 257 of 1953.
Appellant in person.
C. B. Gupta, 0.
C. Mathur and C. P. Lal, for respondent No.1.
G. C. Mathur and C. P. Lal, for respondent No. 4. 1958.
August 19.
The Judgment of the Court was delivered by BHAGWATI J.
This appeal with special leave under article 136 of the Constitution raises an interesting question of limitation.
The appellant was appointed an Overseer by the Municipal Board, Kanpur, on March 5, 1937, with the approval of the Superintending Engineer, Public Health Department, Lucknow.
He was confirmed by the Board 's special resolution dated July 2, 1938, and continued in employ up to March 19, 1951, when a copy of the resolution No. 1723 passed by the Board on March 5, 1951, purporting to dismiss him from employ was handed over to him.
Against the said resolution dated March 5, 1951, the appellant filed an appeal to the Uttar Pradesh Government on April 7, 1951, but was informed by a G. 0.
dated April 7, 1952, that his appeal had been rejected.
This information was received by him on April 8, 1952.
Thereafter on December 8,1952, the appellant filed the suit out of which the present appeal arises, being Suit No. 257 of 1953 in the Court of the Additional Civil Judge, Kanpur, impleading the Municipal Board, Kanpur, Shri section B. Gupta, Municipal Engineer, Shri Brahmanand Misra, the then Chairman of the Municipal Board and the Government of Uttar Pradesh as defendants and challenged the legality of the dismissal order passed against him on the ground that the previous approval of the Superintending Engineer, Public Health Department was not taken as required by the rules, that the 1150 appellant was denied an opportunity of being heard in person by the Board, that no show cause notice for the proposed punishment of dismissal was issued to him by the Board nor were the charges framed by it, that the dismissal order did not specify the charges, that some of the grounds on which he was dismissed did not form the subject matter of the charges at all, that in any case, the charges framed were false and malicious.
The appellant prayed for a declaration that the order of his dismissal was ultra vires, illegal and void and claimed a total amount of Rs. 10,951 in respect of damages, allowances for doing officiating work, bonus, arrears of salary and provident fund.
The suit was contested mainly by the Board and its defence was to the effect that the order of dismissal was not vitiated on the grounds of illegality or irregularity and in any case the suit was barred by limitation.
The trial court found: (a)that the appellant 's substantive appointment was that of an Overseer and not that of a Drainage Overseer as claimed and the approval of the Superintending Engineer, Public Health Department, Lucknow, for his dismissal was not necessary; (b)that the order of dismissal of the appellant was ultra vires on the ground that he was not given an opportunity of being personally heard by the Board; (c) that no notice to show cause against the proposed punishment was issued by the Board; (d)that the order of dismissal was based on certain grounds which were not the suubject matter of the charge and that the Chairman of the Board was not competent to try the appellant; but (e)that the suit of the appellant was barred by limitation.
The trial court accordingly dismissed the suit with costs.
The appellant carried an appeal.
being First Appeal .No.
474 of 1956 before the High Court of Judicature at Allahabad and contended that the suit filed by him against the Board was within limitation.
The appellant relied upon the provisions of section 326 of the U. P. Municipalities Act (U. P. 11 of 1916) (hereinafter 1151 referred to as "the Act") and contended that the period of six months contemplated by sub section
(3) of section 326 plus the period of two months required for giving notice for filing the suit against the Board under sub section
(1) of section 326, that is, 8 months should be computed from April 8, 1952, on which date the order of the dismissal of his appeal by the U. P. Government was communicated to him and not from March 5, 1951, when the order of his dismissal by the Board was passed or March 19,1951, when that order of dismissal was communicated to him by the Board.
The High Court was of opinion that the Resolution dated March 5, 1951, passed by the Board took effect immediately as it was an order which was complete and effective by itself and its operation was not postponed for any further period nor was its effect suspended until the State Government had passed orders in appeal.
It accordingly came to the conclusion that the appellant 's suit was barred by limitation under section 326 of the Act.
In view of the said finding the High Court did not go into any other questions at issue between the parties but dismissed the appeal with costs.
An application filed by the appellant for a certificate for leave to appeal to this Court proved infructuous, with the result that the appellant applied for and obtained from this Court special leave to appeal against this judgment of the High Court.
The only question that arises for our determination in this appeal is whether the appellant 's suit was barred by limitation, because if that is determined against the appellant it will be conclusive of this appeal.
Section 326 of the Act runs as under: " 326(1) No suit shall be instituted against a Board, or against a member, officer or servant of a board in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of the two months next after notice in writing has been, in the case of a Board, left at its office, and in the case of a member, officer or servant, delivered to him or left at his office or place of abode, 1152 explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been so delivered or left.
(3) No action such as is described in sub section (1) shall, unless it is an action for the recovery of immoveable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action.
Prima facie the period of six months provided in section 326(3) above would commence to run after the accrual of the cause of action and the cause of action on which the appellant came before the Court was his wrongful dismissal from employ by the Board.
Even the extension of this period by two months, the requisite period of the notice under section 326(1) would not save the appellant from the bar of limitation because be instituted his suit more than eight months after the Resolution dated March 5, 1951, dismissing him from employ was communicated to him.
The appellant, therefore, particularly relied upon the provisions of section 58(1) and (2) of the Act and urged that the cause of action accrued to him on April 8, 1952, when the order of dismissal of his appeal by the U. P. Government was communicated to him and the suit which he had filed on December 8, 1952, was therefore within time.
Section 69 of the Act which applied to the appellant read as under: " A board may, by special resolution, punish or dismiss any officer appointed under section 68 subject to the conditions prescribed in section 58 in respect of the punishment or dismissal of an Executive Officer," and Section 58(1) and (2) provide: " section 58(1): A board may punish, dismiss or remove its Executive Officer by a special resolution supported by not less than 2/3rd members constituting the board, subject to his right of appeal to the State Government 1153 within 30 days of the communication to him of the, order of punishment or dismissal.
(2):The State Government may suspend the Executive Officer pending the decision of ail appeal under sub section (1) and may allow, disallow or vary the order of the Board.
" It was argued by the appellant on the strength of these provisions that the special resolution passed by the Board was subject to his right of appeal to the State Government within 30 days of the communication thereof to him and in the event of his filing an appeal against the same within the period specified, the resolution was kept in abeyance and did not come into operation until the decision of the appeal by tile State Government.
If that was so, lie contended, his wrongful dismissal by the Board became operative as from the date when the decision of the State Government was communicated to him and that was the date on which the cause of action in regard to his wrongful dismissal accrued to him, with the result that the suit filed by him within 8 months of such communication (including the period of 2 months ' notice) was well within time.
He also supported this position by relying upon the provisions of section 58(2) which empowered the State Government to suspend an employee pending the decision of the appeal, contending that such power vested in the State Government posited that the order of dismissal every though validly passed in accordance with the conditions specified in section 58(1) was not to become effective until such decision was reached, because only in such event the State Government would be in a position to pass an order of suspension pending the decision of the appeal.
If the order of dismissal passed by the Board was to come into effect immediately on such special resolution being passed, there would be no meaning in the State Government being empowered to suspend the officer who had been already dismissed and the provision in that behalf would then be nugatory.
It was, therefore, argued that such power vested in the State Government necessarily involved the consequence that the order of dismissal could not be operative by its 1154 own force but would continue in abeyance until the decision of the appeal, once an appeal was filed by the employee against the order within the period specified.
On a plain reading of the provisions of section 58(1) and (2), we are of opinion that this contention of the appellant is not tenable.
One condition of the validity of the order of dismissal made by the Board is that the special resolution in that behalf should be supported by not less than 2/3rd members constituting the Board.
Once that condition is fulfilled.
there is nothing more to be done by the Board and the only right which then accrues to the officer thus dealt with by the Board is to appeal to the State Government within 30 days of the communication of that order to him.
He may choose to exercise this right of appeal or without adopting that procedure he may straightaway challenge the validity of the resolution on any of the grounds available to him in law, e.g., the non observance of the principles of natural justice and the like.
There is nothing in the provisions of section 58(1) to prevent him from doing so and if without exercising this right of appeal which is given to him by the statute he filed a suit in the Civil Court to establish the ultra vires or the illegal character of such resolution it could not be urged that such a suit was premature, he not having exhausted the remedies given to him under the statute.
The principle that the superior courts may not in their discretion issue the prerogative writs unless the applicant has exhausted all his remedies under the special Act does not apply to a suit.
There is nothing in section 58(1) which expressly or impliedly bars his right of suit.
The provisions contained in section 58(2) above would also not help him for the simple reason that the power which is vested in the State Government of suspending an employee pending the decision of the appeal can hardly be said to be a condition of the order of the Board.
In any event, that power is given to the State Government for giving relief to the employee who has thus appealed, against the rigour of the order of dismissal passed by the Board against him.
The employee may have been dismissed by the 1155 Board, in which case on looking at the prima facie aspect of the matter the State Government may as well come to the conclusion that the operation of the order of dismissal may be stayed and he be suspended instead, thus entitling him to subsistence allowance during the pendency of the appeal.
If the appeal is eventually dismissed the order of dismmissal by the Board will stand; if the appeal is allowed he will be entitled to continue in the employ and enjoy all the benefits and privileges of such employment, but lie would not have to starve during the period that the appeal was pending before the State Government.
The provisions of section 58(2) have to be read along with those of section 58(1) and it cannot be urged that the power of suspension vested in the State Government is to be exercised in any other case except that of dismissal or removal of the employee by the Board.
In the case of any other punishment an order of suspension passed by the State Government pending the decision of the appeal would only mean that during the pendency of the appeal the State Government is empowered to visit on him a higher punishment than what has been meted out to him already by the Board.
Such an absurd position could never have been thought of by the legislature and the only way in which section 58(1) can be read consistently with section 58(2) is to construe this power of suspension vested in the State Government to apply only to those cases where a higher punishment than suspension has been meted out by Board to the employee.
Section 58(2) merely prescribes the powers which the State Government may exercise in the matter of the appeal which has been filed by the employee against the order of the Board.
The mere filing of an appeal has not the effect of holding the order of the Board in abeyance or postponing the effect thereof until the decision of the appeal.
Such a construction would on the other hand involve that even though a special resolution was passed by the Board dismissing or removing the employee he would continue to function as such and draw his salary pending the decision of his appeal, once he filed an appeal to the, State Government as prescribed.
We do not see any words in 147 1156 section 58(1) and (2 which would suspend the operation of the order passed by the Board or render it ineffective by reason of the filing or the pendency of the appeal.
As a matter of fact the legislature in section 61(3) of the very same Act while dealing with the right of appeal from the order , of the executive officer has expressly provided for such a contingency and enacted that when an appeal was filed within the specified period the order would remain suspended until the appeal was decided.
A comparison of the provisions of section 58(1) and section 61(3) of the Act is thus sufficient) to show that no such consequence was intended by the legislature when it enacted section 58(1) of the Act.
A similar provision enacted in the proviso to section 71 of the U. P. District Boards Act (U. P. X of 1922) may also be referred to in this context.
While dealing with the powers of dismissal or punishment of a Secretary or Superintendent of education by the Board the legislature enacted a proviso thereto that the Secretary or the Superintendent of education of a Board, as the case may be, shall have a right of appeal to the State Government against such resolution within one month from the date of the communication of the resolution to him, and that the resolution shall not take effect until the period of one month has expired or until the State Government has passed orders on any appeal preferred by him.
The absence of any such provision in section 58 of the Act also goes to show that no such consequence was intended by the legislature.
The enactment of section 58(1) in the manner in which it has been done giving to the employee only a right of appeal to the State Government within 30 days of the communication to him of the order of the Board without anything more is enough to show that neither was the suspension of the order nor the postponement of the effect thereof as a result of the filing of an appeal ever in the contemplation of the legislature.
It may be noted in passing that the appellant relied upon a decision of the Allahabad High Court in Dist.
Board, Shahjahanpur vs Kailashi Nath (1), which turned on the construction of section 71 of the U.P. District (1) A I.R. 1948 All.
1157 Boards Act set out above in support of his contention.
The provisions of that section, however, are quite distinct from those of section 58(1) of the Act before us and this case was rightly distinguished by the High Court in the judgment appealed against inasmuch as by the express terms of section 71 under consideration there, the dismissal was not to take effect until the period of one month had expired or until the State Government had passed orders on any appeal preferred by the employee.
It is, therefore, clear that even though the order passed by the Board was subject to the right of appeal given to the employee in the manner aforesaid, the operation of the order was not suspended nor was its effect in any manner postponed till a later date by the mere filing of the appeal and it became effective from the date when it was communicated to the employee.
The cause of action, if any, accrued to the employee on the date of such comunication and the period of limitation commenced to run from that date.
If this is the true position on a plain construction of the provisions of section 58(1) and (2) of the Act what is the other principle which the appellant can call to his aid in order to support his contention ? He tried to equate the special resolution passed by the Board with a decree passed by a trial court and the decision of the appeal by the State Government with a decree passed by an appellate court and urged that in the same manner as a decree of the trial court became merged in the decree passed by the appellate court and no decree of the trial court thereafter survived, the decision of the appeal by the State Government replaced the special resolution passed by the Board and such decision if adverse to him gave him a cause of action and the period of limitation commenced to run against him only from the date of such decree.
The argument was that even though the cause of action in respect of such wrongful dismissal arose on the date when the order of the Board was communicated to him, once an appeal was filed by him against that order within the period prescribed that cause of action was suspended and became merged in the cause of action which 1158 would accrue to him on the decision of his appeal by the State Government.
The special resolution of the Board would then merge into the decision of the State Government on appeal and the only thing which then survived would be the decision of the State Government on which either there would be a resuscitation or revival of the cause of action which had accrued to him on the communication of the order of the Board or the accrual of a fresh cause of action which could be ventilated by him within the period of limitation commencing therefrom.
The initial difficulty in the way of the appellant, however, is that departmental enquiries even though they culminate in decisions on appeals or revision cannot be equated with proceedings before the regular courts of law.
As was observed by this Court in State of Uttar Pradesh vs Mohammad Nooh (1): ". . an order of dismissal passed on a departmental enquiry by an officer in the department and an order passed by another officer next higher in rank dismissing an appeal therefrom and an order rejecting an application for revision by the head of the department ( an hardly be equated with any propriety with decrees made in a civil suit under the Code of Civil Procedure by the court of first instance and the decree dismissing the appeal therefrom by an appeal court and the order dismissing the revision petition by a yet higher court. . . because the departmental tribunals of the first instance or on appeal or revision are not regular courts manned by persons trained in law although they may have the trappings of the courts of law.
The analogy of the decisions of the courts of law would therefore be hardly available to the appellant.
Our attention was drawn in this connection to cases arising tinder section 144 of the Code of Civil Procedure which have held that the period of limitation is to be calculated from the date of the original decree which gave rise to the right of restitution and not from the date of the decision of the last appeal which was filed (1) ; 1159 against it.
Reliance was placed on the following observations of B. K. Mukherjea J. (as he then was) in Bhabarajan Das vs Nibaran Chandra (1): " The question therefore that really falls for determination is as to whether the time for such an application ought to be calculated from the date of the decision of the last appeal, or from the decree which for the first time gave the appellant a right to apply for restitution.
It is conceded by the learned Advocate for the appellant that lie had undoubtedly the right to pray for restitution at the time when the judgment was passed by the Munsif.
His contention is that it was not necessary for him to apply at the first opportunity as there was an appeal taken against that decision of the trial judge and lie could wait till the judgment of the Appellate Court was pronounced.
After the Appellate Court had passed its decision the decree of the trial court would no longer be in existence and lie would be entitled to base his rights to get restitution on the Appellate Court 's decree.
I find myself unable to accept this contention as tenable.
If the right to apply for restitution was available to the appellant as soon as the first court passed its judgment, time would certainly begin to run from that date under article 181 and the mere fact that the judgment was challenged by way of an appeal which might eventually set it aside, does not, in lily opinion, operate to suspend the running of time.
Nor would the appellate Courts decree into which the decree of the trial Court would undoubtedly merge give the party a fresh starting point for limitation.
The analogy.
of the decree of the trial court merging into a decree of the appeal court clearly does not apply to these cases.
The observations of Rankin C.T. in Hari Mohan vs Parameshwar Shau (1) are also in point.
the learned Chief Justice at " But the application to be made under section 144 is an application which must be made to the Court of the first instance whether the decree varied or reversed was passed by that Court or a higher Court.
(1) A.I.R. 1939 Cal.
349, 35. (2) Cal.
61 78.
1160 That Court has to determine whether the applicant is entitled to any and what benefits, by way of restitution or otherwise, by reason of the decree of the appellate court varying or reversing a previous decree.
We have to determine this case under article 181, of the Limitation Act, which directs us, in general language, to find out the date on which the applicant 's right accrued.
In the ordinary and natural meaning of the words, their right accrued immediately the District Judge reversed the decision of the trial court, and reduced the amount of the plaintiff 's claim.
Unless, therefore, we are required by reason of the nature of the matter to ignore the effect of that decision, because it was confirmed on appeal, it seems to me to be wrong to do so.
To refuse so to do does not involve the proposition that two decrees for the same thing may be executed simultaneously.
Nor does it involve, so far as I can see, the affirmance of any other proposition that can be regarded as inconvenient or absurd.
Further, when even if the analogy applies, where the decree of the appeal court only affirms the decree of the trial court, this Court has held in the State Of U. P. vs Mohd. Noolt (1), that the original decree of the trial court remains operative.
This Court has said at p. 611 : " In the next place, while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of Limitation for execution of the decree as in Batuk, Nath vs Munni Dei (2), or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain vs Gendait Singh (3).
But as pointed by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid vs Pirthichand Lal (4), whatever be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended (1) ; (2) 41 I.A. 104.
(3) 53 1. A. 197.
(4) 46 I.A. 52.
1161 by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal.
There is nothing in the Indian law to warrant the suggestion that the decree or order of the court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision.
The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective.
" The original decree being thus operative what we are really concerned with is the commencement of the period of limitation as prescribed in the relevant statuite and if the statute prescribes that it commences from the (late of the accrual of the cause of action there is no getting behind these words in spite of the apparent iniquity of applying the same.
As was pointed out by Seshagiri Ayyar J. in Mathu Korakkai Chetty vs Madar Ammal (1): " Therefore in my opinion, the true rule deducible from these various decisions of the Judicial Committee is this: that subject to the exemptions, exclusion, mode of computationalid.
the excusing of delay, etc., which are provided in the Limitation Act, the language of the third column of the first schedule should be ,go interpreted as to carry out the true intention of the legislature that is to say, by dating the cause of action from a date when the remedy is available to the party.
" The cause of action in the present case accrued to the appellant the moment the resolution of the Board was communicated to him and that was the date of the commencement of the limitation.
The remedy, if any, by way of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under section 326 of the Act.
The result is no doubt unfortunate for the appellant, because the trial court found in his favour in regard to his plea of wrongful dismissal.
If he had only brought the suit within the period prescribed by section 326 of the (I) Mad. 185, 213.
1162 Act, he might possibly have got some relief from the Court.
He however chose to wait till the decision of the State Government on his appeal and overstepped the limit of time to his own detriment.
We are unable to come to any other conclusion than the one reached above and the appeal must, therefore, stand dismissed; but in the peculiar circumstances of the case, we make no order " to costs.
The appellant was given leave to proceed as a pauper and he prosecuted this appeal in form a pauperis .
section lie has failed in the appeal and we do order that he shall pay the court fee which would have been paid by him if he had not been permitted to appeal as a pauper.
The Registrar shall send to the AttorneyGeneral for India a memorandum of the court fees payable by him as required by Or.
XIV, r. 12, of the Supreme Court Rules.
Appeal dismissed.
| IN-Abs | The appellant was appointed as overseer by the Municipal Board, Kanpur, on March 5, 1937, and continued in its service up to March 19, 1951, when a copy of the resolution passed by the Board on March 5, 1951, purporting to dismiss him from service was handed over to him.
On April 7, 1951, he filed an appeal to the Government against the order of dismissal from service, but he was informed on April 8, 1952, that his appeal was rejected.
Thereafter on December 8, 1952, the appellant instituted a suit challenging the legality of the order of dismissal on various grounds, and the question arose whether the suit was within time.
Sub section (I) Of section 326 of the U. P. Municipalities Act, 1916, provided that no suit shall be instituted against a Municipal Board " until the expiration of the two months next after notice in writing has been left at the office of the Board. explicitly stating the cause of action " ; and sub section
(3) stated that " no action such as is described in sub section
(1) shall. be commenced otherwise than within six months next after the accrual of the cause of action ".
The appellant contended that the cause of action accrued to him on April 8, 1952, when the order of dismissal of his appeal to the Government was communicated to him and the suit, filed within eight months of that date, was within time, and relied on the provisions of section 58 (1) and (2), read with section 69, of the Act, which gave an officer dismissed by the Board a right of appeal to the Government within 30 days of the communication to him of the order dismissal : Held, that though the order passed by the Board on March 5, 1951, was subject to a right of appeal to the Government, the operation of the order was not suspended by the mere filing of the appeal, and the order became effective from March 19, 1951, when it was communicated to the appellant.
The cause of action, therefore, accrued to him on that date, and the suit filed by him on December 8, 1952, was barred by limitation under section 326 of the U. P. Municipalities Act, 1916.
|
ivil Appeal No. 1582 of 1973.
From the Judgment and Order dated 27.3.72 of the Bombay High Court in Appeal No. 983 of 1966.
S.B. Bhasme and V.N. Ganpule for the Appellants.
Mrs. C.K. Sucharita for the Respondents.
The Judgment of the Court was delivered by SAIKIA, J.
This plaintiffs ' appeal by special leave is from the Judgment of the High Court of Bombay in Second Appeal No. 983 of 1966 setting aside the Judgment of the courts below and remanding the case to the trial court for hearing with a direction to refer the issue regarding tenan cy to the tenancy authorities.
The appellants are the owners of land bearing R.S. No. 1442 and 1445, situate at Kasba Karvir, within the municipal limits of Kolhapur.
The said land was leased out to the father of respondent Nos. 1 and 2 and the husband of re spondent Nos. 3 and 4 on October 12, 1950 for a period of ten years.
The appellants had filed Revision Civil Suit No. 298 of 1964 against the respondents for possession thereof, mesne profits and for damages.
It was averred in the plaint that the appellants had earlier initiated proceedings under the Bombay Tenancy and Agricultural Lands Act, 1948, herein after referred to as 'the Act ', and in the said proceedings it was held that the provisions of the Act were not applica ble to the land inasmuch as only grass grew thereon natural ly.
It was further averred that on expiry of the period of lease the 5 appellants terminated the tenancy under the provisions of the Land Revenue Code and filed the aforementioned suit.
The respondent Nos. 1 & 2 contested the suit contending, inter alia, that the civil court had no jurisdiction inasmuch as the Act was applicable to the land; and that they having not been in wrongful possession thereof, the notice of termina tion was invalid.
The learned trial court tried the issues regarding the applicability of the Act, jurisdiction of the civil court, and estoppel, out of the issues framed, as preliminary issues and by order dated March 16, 1965 fixed the date for hearing of the other issues and on that date the respondent Nos. 1 & 2 being absent, after recording the appellants evidence, by Judgment dated July 17, 1965 decreed the suit in favour of the appellants.
The respondents ' appeal therefrom having been dismissed by the District Judge, they took Second Appeal No. 983 of 1966 to the High Court of Bombay, and the learned Single Judge has set aside the Judgment of the trial court as affirmed by the lower appellate court, and remanded the case back to the trial court with a direction that it should raise the necessary issues on the pleadings of the parties and should make a reference to the competent authority under section 85A of the Act with respect to those issues which are required to be decid ed by the competent authority under the Act and on receipt of the findings, dispose of the suit according to law.
The appellants ' application for leave to appeal under the Let ters Patent having been rejected by the High Court, they have obtained special leave to appeal.
Mr. S.B. Bhasme, the learned counsel for the appellants submits, inter alia, that the appellants ' application under section 29(2) read with section 25(2) of the Act, being case No./84 of 1962 63 having been dismissed by the tenancy authorities on the ground that only natural grass grew thereon and there fore the authority had no jurisdiction to deliver possession thereof under section 29(2) of the Act, that finding should act as res judicata, wherefore, remitting of the case by the High Court to the trial court for hearing and deciding after making a reference to the competent authority, under section 85A of the Act with respect to those issues which are required to be decided by the competent authority under the Act, would be barred; and that in the facts and circumstances of the case the civil court itself has jurisdiction to decide the issues which have been directed to be referred to the civil court.
Mrs. C.K. Sucharita, the learned counsel for the re spondents submits that under section 85A in a civil suit involv ing any issues which are required to be decided or dealt with by any authority competent to settle or decide such issues under the Act, the civil court is to settle the 6 issues and refer those to such competent authority for determination; that the High Court 's direction in the im pugned Judgment is consistent with this provision; and that the appellant 's earlier proceedings under the Act before the tenancy authority having been dismissed ex parte, it could not operate as res judicata.
The question to be decided, therefore, is whether the High Court was correct in directing the trial court to refer the issues relating to tenancy to the competent authority under the Act.
To decide it, we may conveniently refer to the relevant provisions of the Act.
The Act has amended the law which governs the relations of landlords and tenants of agricultural lands.
As defined in section 2(8) of the Act, "land" means (a) land which is used for agricultural purposes or which is so used but is left fallow, and includes the sites of farm buildings appurtenant to such land.
This definition is as amended by Bom.
15 of 1957.
The amendment is not material for the purpose of our case.
As defined in section 2(1), "Agriculture" includes horticulture, the raising of crops, grass or garden produce, the use by an agriculturist of the land held by him or a part thereof for the grazing of his cattle, the use of any land, whether or not an appanage to rice or paddy land, for the purpose of rab manure but does not include allied pursuits, or the cutting of wood only.
This definition is after amendments by Bom. 13 and 15 of 1956 and 1957, respectively.
As defined in section 2(2), "Agri culturist" means a person who cultivates land personally.
As defined in section 2(5), "to cultivate" with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultur al produce, whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operations thereon; and the expression "un cultivated" shall be con strued correspondingly.
The explanation thereunder says: A person who takes up a contract to cut grass, or to gather the fruits or other produce of trees on any land, shall not on that account only be deemed to cultivate such land.
This definition is as substituted by Bom.
13 of 1956.
As defined in section 2(17), "Tenancy" means the relationship of landlord and tenant; and as defined in section 2(18), "tenant" means a person who holds land on lease and includes (a) a person who is deemed to be a tenant under section 4; (b) a person who is a protected tenant; and (c) a person who is a permanent ten ant; and the word "landlord" shall be construed accordingly.
This definition is as substituted by Bom.
13 of 1956.
The High Court has found that the appellants had leased out the land on October 12, 1950 for a period of 10 years under a Kabulayat at 7 an annual rental of Rs. 1000 and that period expired on October 11, 1960.
The appellants submitted an application under section 29(2) of the Act, being case No. 2068 of 1957 but that application was dismissed.
Thereafter, they moved another application under section 88C of the Act being case No. 285 of 1961 and that application was also dismissed on the ground that the lands were governed by section 43C of the Act, but the Act did not apply as the lands were within the limits of the municipal borough.
Thereafter, they started the third proceeding being application under section 29(2) read with section 25(2) of the Act being case No. 184 of 1962 63.
That application also came to be dismissed by the tenancy author ities on the ground that the lands in dispute were lands growing natural grass and, therefore, the authority under the Act had no jurisdiction to deliver possession under section 29(2) of the Act.
The High Court noticed that the applica tion was decided ex parte but the Court did not know under what circumstances, the competent authority proceeded ex parte.
The effect of that decision was that the application filed by the appellants as landlords for possession of the lands treating the opponents thereof as tenants was dis missed.
It was only thereafter that the appellants served the respondents with a notice terminating the tenancy and demanding possession, and the defendants having not complied with the notice, the appellants filled the instant suit, Considered in the light of the above definitions and the provisions of section 85A of the Act there arises no doubt that some of the issues involved in the suit may be such as have necessarily to be decided by the competent authority under the Act and to that extent the jurisdiction of the civil court to decide those issues may be excluded.
In Shivappa Satawappa Ashtekar vs Gajanan Chintaman Desh Pande, [1953] 55 Bombay Law Reporter Bombay 107, in the landlord 's suit for possession of lands filed in civil court, the defendants having contended that the lands were agricultural lands and that the defendants were pro tected tenants, interpreting the then section 85(1) it was held: "Ex facie, by the operation of section 70 and section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948, the jurisdiction of the civil court to decide whether the defendants were tenants or protected tenants must be regarded as excluded and the Mamlatdar alone must be regarded as competent to decide that question.
That is the view which has been taken by a division bench of this Court in Dhondi Tukaram vs Dadoo Piraji, 8 Section 70(b) of the Act then provided: "For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar: (a) . . . (b) to decide whether a person is a tenant or a protected tenant." Section 85(1) provided: "No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be set tled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Bombay Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.
" This Court in Bhimaji Shanker Kulkarni vs Dundappa Vithappa Udapudi and Anr., ; , considering the decision in Dhondi Tukaram 's case (supra) which held that the Mamlatdar had exclusive jurisdiction to decide those issues though they arose for decision in a suit properly cognisable by a civil court, observed: "The result was somewhat startling, for nor mally the Civil Court has jurisdiction to try all the issues arising in a suit properly cognisable by it.
But having regard to the fact that the Bombay Legislature approved of Dhondi Tukaram 's case and gave effect to it by introducing section 85A, we must hold that the decision correctly interpreted the law as it stood before the enactment of section 85A.
It follows that independently of section 85A and under the law as it stood before section 85A came into force, the courts below were bound to refer to the Mamlatdar the decision of the issue wheth er the defendant is a tenant.
" Section 70 of the Act now provides: "For the purposes of this Act the following shall be the duties and functions to be per formed by the Mamlatdar: (a) to decide whether a person is an agricul turist; 9 (b) to decide whether a person is, or was at any time in the past, a tenant or a protected tenant or a permanent tenant; XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX (n) to take measures for putting the tenant or landlord or the agricultural labour er or artisan or person carrying on as allied pursuit into the possession of the land or dwelling house under this Act; (o) to decide such other matters as may be referred to him by or under this Act." The words "person is, or was at any time in the past, a tenant", and the words "or a permanent tenant" were substi tuted for the words "person is a tenant" by Mah. 49 of 1969.
Section 85 and section 85A as inserted by Bombay Act 13 of 1956 provide: 85.
(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court.
Explanation For the purposes of this section a Civil Court shall include a Mamlatdar 's Court constituted under the Mamlatdar 's Courts Act, 1906." "85A. (1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt 10 with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the "competent authority") the Civil Court shall stay the suit and refer such issues to such competent authority for determination.
(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applica ble thereto.
Explanation For the purpose of this section a Civil Court shall include a Mamlatdar 's Court constituted under the Mamlatdar 's Courts Act, 1906.
" This section was inserted by Bombay Act 13 of 1956.
Before the amendment of section 70(b) by Maharashtra Act 49 of 1969, when the question as to whether a party was in the past tenant or not for the purpose of acquiring some other right, that is, not as main issue but as a subsidiary issue, Civil Court 's jurisdiction to decide such subsidiary issue could not be said to be barred.
Section 70(b) of the Act imposed a duty on the Mamlatdar to decide "whether a person is a tenant" and not "whether a person was or was not a tenant in the past".
In Mussamiya Imam Haider Bax Razvi vs Rabari Govindhai Ratnabhai & Ors., ; , the appellant filed a suit on July 11, 1958 for recovery of possession of the suit lands and mesne profits averring that the lease was fraudulently obtained by the respondents.
The respondents contended that they became statutory owners section 32 or section 88 of the Act and the Civil Court had no jurisdic tion to decide the suit.
The trial court decreed the suit and on appeal the High Court held that fraud was not proved; the respondents failed to prove that they were statutory owners before the date of the suit; that the Civil Court had jurisdiction to decide whether defendants were tenants on the relevant dates namely, July 28, 1956 or May 11, 1958; and that the Civil Court had no jurisdiction to decide whether the defendants were tenants on date of the suit and that question was to be referred to the Mamlatdar.
This Court on consideration of the provisions of section 70 and section 85A with other relevant provisions held at page 797: "We are accordingly of the opinion that section 85 read with 11 section 70 of the Act does not bar the jurisdiction of the Civil Court to examine and decide the question whether the defendants had acquired the title of statutory owners to the disputed lands under the new Act.
In this context, it is necessary to bear in mind the important principle of construction which is that if a statute purports to exclude the ordinary jurisdiction of a Civil Court it must do so either by express terms or by the use of such terms as would necessarily lead to the infer ence of such exclusion.
As the Judicial Com mittee observed in Secretary of State vs Mask & Co., 671.A. 222,236. '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. ' In our opinion, there is nothing in the lan guage or context of section 70 or section 85 of the Act to suggest that the jurisdiction of the Civil Court is expressly or by necessary implication barred with regard to the question whether the defendants had become statutory owners of the land and to decide in that connection whether the defendants had been in the past tenants in relation to the land on particular past dates.
We are also of the opinion that the jurisdic tion of the Civil Court is not barred in considering the question whether the provi sions of the Act are applicable or not ap plicable to the disputed land during a partic ular period.
" It may be noted that after the amendment of section 70(b) of the Act by inserting the words "or was at any time in the past, a tenant", the position has changed.
The Civil Court has now no jurisdiction to decide an issue arising inciden tally in a civil suit which is to be specifically decided by a competent authority under the Act.
Civil Court in such a case shall refer the issue to that authority and dispose of the suit in accordance with the decision of the authority.
In G.S. Shinde vs R.B. Joshi, ; , the appel lant filed the suit for specific performance of a contract for sale of land dated December 15, 1965 coupled with a supplementary agreement dated April 26, 1966 for sale of agricultural land.
The suit was resisted by the defendant, contending, inter alia, that the provisions of the Act were applicable to the land and the appellant not being an agri culturist, section 63 of the Act was a bar to his purchase of the land, and the agreement being contrary to law could not be specifically enforced.
The plaintiff (appellant) sought 12 to repel that contention by producing a certificate, Ext.
78, issued by the Mamlatdar certifying that the plaintiff was an agricultural labourer and the bar of section 63 was not operative.
If that Ext.
78 was not taken note of, the issue would arise whether the plaintiff was an agriculturist and in view of the provisions section 70(a) read with section 85 and section 85A of the Act, the issue would have to be referred to the Mamlatdar for decision as the civil court would have no jurisdiction to decide the issue.
The trial court and the High Court held that Ext.
78 had no evidentiary value and the issue whether the plaintiff was an agriculturist being an incidental issue, main issue being that of specific performance, Civil Court had jurisdiction.
Allowing the appeal therefrom and remanding the suit to the trial court this Court speaking through Desai, 3.
held at para 10: "Now, if Section 85 bars the jurisdiction of the Civil Court to decide or deal with an issue arising under the Tenancy Act and if Section 85A imposes an obligation on the Civil Court to refer such issue to the competent authority under the Tenancy Act, it would be no answer to the provisions to say that the issue is an incidental issue in a properly constituted civil suit before a Civil Court having jurisdiction to entertain the same.
In fact Section 85A comprehends civil suits which Civil Courts are competent to decide but takes note of the situation where upon a contest an issue may arise therein which would be re quired to be settled, decided or dealt with by the competent authority under the Tenancy Act, and, therefore, it is made obligatory for the Civil Court not only not to arrogate jurisdic tion to itself to decide the same treating it as a subsidiary or incidental issue, but to refer the same to the competent authority under the Tenancy Act.
This is an inescapable legal position that emerges from a combined reading of Sections 85 and 85A . . . .
In a civil suit nomenclature of the issue as principal or subsidiary or substantial or incidental issue is hardly helpful because each issue, if it arises, has to be determined to mould the final relief.
Further, Sections 85 and 85A oust jurisdiction of Civil Court not in re spect of civil suit but in respect of ques tions and issues arising therein and Section 85A mandates the reference of such issues as are within the competence of the competent authority.
If there is an issue which had to be settled, decide or dealt with by competent authority under the Tenancy Act, the jurisdic tion of the Civil Court, 13 notwithstanding the fact that it arises in an incidental manner in a civil suit, will be barred and it will have to be referred to the competent authority under the Tenancy Act.
By such camouflage of treating issues arising in a suit as substantial or incidental or princi pal or subsidiary, Civil Court cannot arrogate to itself jurisdiction which is statutorily ousted.
This unassailable legal position emerges from the relevant provisions of the Tenancy Act." After considering the precedents in Trimbak Sopana Girme vs Gangaram Mhatarba Yadav, 1953 Bom. 241; Dhondi Tukaram Mali, (supra); Bhimaji Shanker Kulkarni, (supra); Ishwerlal Thakorelal Almaula vs Motibhai Nagjibhai, [1966] 1 SCR 367=AIR 1966 SC 459; Pandurang Hari Jadhav vs Shankar Maruti Todkar, ; Kalicharan Bhajan lal Bhayya vs Rai Mahalaxmi, ; Neminath Appayya Hanammannaver vs Jambu Rao Satappa Kocheri, AIR ; Jarnbu Rao Satappa Kocheri vs Neminath Appayya Hanamrnannaver, ; 1968 SC 1358; Mussamiya Imam, (supra) and Noor Mohd; Khan Ghouse Khan Soudagar vs Fakirappa Bharmappa Machenahalli. ; 3 SCR 789, their Lordships observed at para 19: "Thus, both on principle and on authority there is no escape from the conclusion that where in a suit properly constituted and cognizable by the Civil Court upon a contest an issue arises which is required to be set tled, decided or dealt with by a competent authority under the Tenancy Act, the jurisdic tion of the Civil Court to settle, decide or deal with the same is not only ousted but the Civil Court is under a statutory obligation to refer the issue to the competent authority under the Tenancy Act to decide the same and upon the reference being answered back, to dispose of the suit in accordance with the decision of the competent authority under the Tenancy Act.
" In the instant case, applying the settled law as enunciated above, and in view of the certainty of the questions in volved, we are of the view that the High Court has rightly sent back the suit to the trial court with the direction to refer issues, if raised any, to be determined exclusively by the competent authority, to that authority.
We now deal with the submission of Mr. Bhasme that the order 14 of the tenancy authority in case No. 184 of 1962 63 dismiss ing his application under section 29(2) read with section 25(2) of the Act holding that it had no jurisdiction to deliver posses sion of the land on the ground that the natural grass grew thereon, should act as res judicata, wherefore, referring of issues to the Mamlatdar in the suit remitted by the High Court would be barred.
Counsel submits that the Mamlatdar in deciding the aforesaid application acted under the Mamlat dar 's Courts Act, 1906 (Bom.
Act No. II of 1906) and would be a Court competent to determine the issue as to whether the act was applicable to the appellants ' land under the lease, and it already decided that the Act was not applica ble as on that land only natural grass grew, which meant that it was not 'land ' and the defendants were not 'tenants ' as defined in the Act.
Section 11 of the C.P.C. which deals with res judicata provides: "No Court shall try any suit or issue in which the matter.
directly and substantially in issue has been directly and substantially in issue in a former suit between the same par ties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subse quent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." (Explanations I to VIII are not so relevant for the purpose of this case) In Duchess of Kingston 's case Sir William de Grey said: "From the variety of cases relative to judg ments being given in evidence in civil suits, these two deductions seem to follow as gener ally true: first that judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence conclusive between the same parties, upon the same matter, directly in question in another Court; secondly that the judgment of a Court of exclusive jurisdiction, directly on the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court, for a different purpose.
But neither the judgment of a Court, of concurrent or exclusive juris diction is evidence of any matter which came collaterally in question, though within their jurisdiction nor of any matter incidentally 15 cognizable, nor of any matter to be inferred by argument from the judgment.
" Section 11 bars the trial of a suit or issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit.
This Section applies in terms to cases where the matter in issue in a subsequent 'suit ' was an issue in a "former suit".
A 'suit ' is a proceeding which is commenced by a plaint.
As provided in Section 26 of the C.P.C. every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
In the instant case admittedly the appel lants submitted an application to the Mamlatdar under section 29(2) read with section 25(2) of the Act.
Sub section (2) of section 29 provides: "Save as otherwise provided in sub section (3A), no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar.
For obtaining such order he shall make an applica tion in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be, is deemed to have accrued to him." This sub section is as amended by Mah. 39 of 1964.
It does not speak of a plaint, a suit or a decree.
The appellants did not call its application a plaint or the case a suit.
If a matter directly and substantially in issue in a former suit has been adjudicated upon by a Court of exclu sive jurisdiction, the adjudication will bar the trial of the same matter in a subsequent suit.
In the instant case the Mamlatdar having decided the appellants ' application for possession, the appellants themselves went to the Civil Court and filed the suit.
It does not now lie in their mouth to say that the decision of the Mamlatdar would act as res judicata for the trial court.
We have seen that now the Mamlatdar 's Court is a Civil Court for the purpose of section 85A of the Act.
It is true that section 11 is now made applicable by the Explanations and interpretation to certain proceedings giving more extensive meaning to the word 'suit '.
In its comprehensive sense the word 'suit ' is understood to apply to any proceeding in a court of justice by which an individ ual pursues that remedy which the law affords.
The modes of proceedings may be various but that if a right is litigated between 16 parties in a court of justice the proceeding by which the decision of the Court is sought may be a suit.
But if the proceeding is of a summary nature not failing within the definition of a suit, it may not be so treated for the purpose of section 11.
In the absence of the details of the proceeding concerned in the instant case, it has not been possible for us to hold that it was of the nature of a suit and not a summary proceeding.
Besides, assuming the Mamlat dar in deciding the application in 1962 63 to have been a court of exclusive jurisdiction for the purpose of section 11 C.P.C., its decision rejecting the application would not be an evidence on the question of tenancy merely because it could be inferred from that decision.
Admittedly the appellants ' application was decided ex parte.
It is true that ex parte decrees operate to render the matter decided res judicata, and the defendants ' failure to appear will not deprive the plaintiff of the benefit of his decree.
But in the case of a suit in which a decree is passed ex parte, the only matter that can be 'directly and substantially in issue ' is the matter in respect of which relief has been claimed by the plaintiff in the plaint.
A matter in respect of which no relief is claimed cannot be 'directly and substantially in issue ' in a suit in which a decree is passed ex parte though the Court may have gone out of its way and declare the plaintiff to be entitled to relief in respect of such matter.
In the instant case apply ing the above principle the order having been passed ex parte, assuming the doctrine of res judicata applied, it could be only to the extent of the appellants having been not entitled to possession at the relevant time; and it could not be extended logically to the issue whether the defendants were tenants under the Act.
The expression 'heard and finally decided ' in section 11 means a matter on which the court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter.
It is essential that it should have been heard and finally decided.
What operates as res judicata is the ratio of what is fundamental to the decision but it cannot be ramified or expanded by logical extension.
In Vithal Yaswant vs Shikandar Khan Mutumukhtan, ; , it has been held by this Court that when a court bases its decision on more than one point, each of which would by itself be sufficient for the ultimate deci sion, the decision on each one of those points would be res judicata.
In the instant case what were the points specifi cally urged and decided are not clear.
In Pandurang Mahadeo Kavade & Ors.
vs Annaji Balwant Bokil & Ors., it was held that in order to operate as res judicata it must be established that the previous 17 decision was given by a court which had jurisdiction to try the present suit, and there would be no res judicata if the previous decision was by a court having no jurisdiction.
Of course that was a case of pecuniary jurisdiction, but there is no reason why the same principle should not apply in other cases of courts without jurisdiction.
The law is well settled that a court which had no jurisdiction to try a cause cannot by its own erroneous decision confer on itself competence to decide it and its decision on the question of jurisdiction cannot operate as res judicata.
Conversely the decision relating to jurisdiction cannot be said to consti tute the bar of res judicata where by an erroneous interpre tation of a statute it holds that it has no jurisdiction.
It is stated that there was no appeal filed by the defendants from the order of the Mamlatdar.
That is not material.
In Ramchandra Rao vs Ramchandra Rao, [1922] 49 I.A. 129, the Privy Council decided that where the suit as to the title for compensation had been referred to the Court, a decree thereon was not appealed from, the question of title would be res judicata in a suit between the parties to the dis pute.
In Bhagwan Dayal vs Mst.
Reoti Devi, ; , a dispute arose as to proprietary title.
A suit was filed in a Revenue Court under the U.P. Tenancy Act.
The Revenue Court framed an issue thereon and referred it to the Civil Court as required by the Act.
The Civil Court held that the re spondent had a half share in the villages and on the basis of this finding the Revenue Court decreed his suit.
Thereaf ter, the appellant filed a suit in Civil Court for a decla ration that he was the absolute owner of all the property in the suit.
The defendants contended that the suit was barred by res judicata.
This Court held that a subsequent suit was not barred by res judicata by the Judgment of the Revenue Court, as it was not within the exclusive jurisdiction of the Revenue Court and suit was maintainable in the Civil Court.
The Judgment of the Revenue Court on the issue of proprietary title could not operate as res judicata as a Revenue Court was not competent to try the subsequent suit.
In the instant case, the Mamlatdar declined to exercise jurisdiction holding that the Act did not apply.
If an issue is referred to it by the trial court under the Act, the question of jurisdiction would not arise and there could be no question of res judicata as to jurisdiction of the Mam latdar on reference.
Bearing in mind the above provisions and the principles of law, we are of the view that there could arise no ques tion of res judicata in the instant case.
Section 11 would not be a bar to the trial court in 18 referring issues which are to be exclusively determined by a competent authority under the Act, to that authority.
Nor should arise any such question of res judicata in the compe tent authority deciding those issues when referred to by the trial court.
In the result, we find no merit in this appeal which is accordingly dismissed, but without any order as to costs.
Y. Lal Appeal dismissed.
| IN-Abs | The appellants landlords leased out their land, situate at Kolhapur, to respondents Nos. 1 and 2 and the husband of respondents Nos. 3 and 4 on 12.10.1950 for a period of ten years.
After the expiry of the lease period, they initiated proceedings under the Bombay Tenancy and Agricultural Lands Act, 1948, for obtaining possession of the lands but the application was dismissed ex parte, as it was held that the provisions of the Act were not applicable to the land inas much as only grass grew thereon naturally.
Thereupon the appellants terminated the tenancy under the provisions of the Land Revenue Code and filed a Civil Suit against the respondents for possession mesne profits and for damages.
Respondents 1 and 2 contested the suit contending inter alia that the civil court had no jurisdiction to try the suit inasmuch as the Act was applicable to the land and that they having been in rightful possession, the notice of termina tion of tenancy was invalid.
The trial court tried the issues amongst others relating to the applicability of the Act, jurisdiction of the civil court and estoppel and after going through the evidence led by the parties, decreed the suit.
The respondents appeal against the said decree having failed before the first appellate court, they preferred Second Appeal to the High Court of Bombay.
The High Court set aside the judgment and order of the trial court as affirmed by the first appellate court and remanded the case back to the trial court with a direction that it should raise the necessary issues on the pleadings of the parties and should make a reference to the competent authority under Section 85A of the Act in regard to the issues which are required 2 to be determined by the competent authority under the Act and on receipt of findings, dispose of the suit according to law.
Being dissatisfied with the said order, the appellants moved application for leave to appeal under the Letters Patent but the same having been dismissed they have filed this appeal after obtaining special leave.
The appellants ' principal contention, amongst others, before this court is that the appellants ' application under Section 29(2) read with section 25(2) of the Act having been dismissed on the ground that the Act was not applicable and thus the authority had no jurisdiction to deliver possession is a finding which would operate as res judicata; hence the High Court 's direction making a reference to the competent authority under section 85A of the Act, now would be barred.
According to them the civil court itself has jurisdiction to decide the issues.
Respondents ' contention is that the direction of the High Court is consistent with the provi sions of the Act and that the earlier proceedings under the Act initiated by the appellants having been determined ex parte, it could not operate as res judicata.
Dismissing the appeal, this Court, HELD: After the amendment of section 70(b) of the Act by insert ing words 'or was at any time in the past, a tenant ' the position has changed.
The Civil Court has now no jurisdic tion to decide an issue arising incidentally in a civil suit which is to be specifically decided by a competent authority under the Act.
Civil Court in such a case shall refer the issue to that authority and dispose of the suit in accord ance with the decision of the authority.
[11F] (See G.S. Shinde vs R.B. Joshi, ; ;) The High Court in the instant case has rightly sent back the suit to the trial court with the direction to refer issues, if raised to be determined exclusively by the compe tent authority, to that authority.
[13G] If a matter directly and substantially in issue in a former suit has been adjudicated upon by a court of exclu sive jurisdiction, the adjudication will bar the trial of the same matter in a subsequent suit.
[15E] In the instant case, the Mamlatdar having decided the appellants ' application for possession, the appellants themselves went to the Civil Court and filed the suit.
It does not now lie in their mouth to say that 3 the decision of the Mamlatdar would act as res judicata for the trial court.[15F] The Mamlatdar 's Court is a civil court for the purpose of Section 85A of the Act.
[15F] In its comprehensive sense the word 'suit is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords.
The modes of proceedings may be various but if a right is liti gated between parties in a court of justice the proceeding by which the decision of the court is sought may be a suit.
But if the proceeding is of a summary nature not falling within the definition of a suit it may not be so treated for the purpose of Sec. 11.
[15H; 16A] Besides, assuming the Mamlatdar in deciding the applica tion in 1962 63 to have been a court of exclusive jurisdic tion for the purpose of section 11 C.P.C., its decision rejecting the application would not be an evidence on the question of tenancy merely because it could be inferred from that deci sion.
[16B] The expression 'heard and finally decided ', in section 11 means a matter on which the court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter.
It is essential that it should have been heard and finally decided.
What operates as res judicata is the ratio of what is fundamental to the decision but it cannot be ramified or expanded by logical extension.
[16F G] (See Vithal Yaswant vs Shikander Khan Mutumukhtan, ; The law is well settled that a court which had no juris diction to try a cause cannot by its own erroneous decision confer on itself competence to decide it and its decision on the question of jurisdiction cannot operate as res judicata.
Conversely the decision relating to jurisdiction cannot be said to constitute the bar of res judicata where by an erroneous interpretation of a statute it holds that it has no jurisdiction.
[17B] (See Pandurang Mahadeo Kavade & Ors.
vs Annaji Balwant Bokil & Ors., ;) Shivappa Satawappa Ashtekar vs Gajanan Chintaman Desh Pande, [1953] 55 Bom.
Law Reporter.
843; Dhondi Tukaram vs Dadoo Piraji, ; Bhimaji Shanker Kulkarni vs Dundappa Vithappa Udapudi and Anr., ; ; Mussamiya 4 Imam Haidar Bax Razvi vs Rabari Govindhai Ratnabhai & Ors., ; ; Trimbak Sopana Girme vs Gangararn Mhatarba Yadav, ; Ishverlal Thakorelal Almaula vs Motibhai Nagjibhai, [1966] 1 SCR 367; Pandurang Hari Jadhav vs Shankar Maruti Todkar, ; Kalicharan Bhajanlal Bhayya vs Rai Mahalaxmi, ; Neminath Appayya Hanammannaver vs Jambu Rao Satappa Kocheri, AIR 1966 Mys.
154; Jambu Rao Satappa Kocheri vs Neminath Appayya Hanammannaver, ; ; Noor Mohd. Khan Ghouse Khan Soudagar vs Fakirappa Bharmappa Machenahalli, ; ; Ramchandra Rao vs Ramchandra Rao, [1922] 49 I.A. 129 and Bhagwan Dayal vs Mst.
Reoti Devi, ; , referred to.
|
ivil Appeal No. 3982 of 1989.
From the Judgment and Order dated 20.4.1988 of the Bihar High Court in C.W.J.C. No. 1749 of 1988.
B.R.L. Iyengar, Govind Mukhoty, K.K. Gupta and Hari Narain Ojha for the Appellant.
Anil Dev Singh, A.K. Sen, D. Goburdhan, T.C. Sharma, Mrs. Sushma Suri and D .P.
Mukherjee for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
Special leave granted.
203 This appeal has been preferred against the judgment dated 20th April 1988 of the Patna High Court dismissing a writ petition filed by the appellant challenging a seniority list.
Necessary facts in brief are these: The appellant and respondents 7 to 13 are Assistant Conservators of Forest in Bihar Forest Service.
Their serv ice conditions are governed by the Bihar Forest Service Rules, 1953 (hereinafter referred to as the Rules) made by the Government of Bihar in exercise of the powers conferred on it by the proviso to Article 309 of the Constitution of India.
According to Rule 2(vii) of the Rules "the service" means the Bihar Forest Service.
Rule 3 provides that the appointments of the service shall ordinarily be made by (a) direct recruitment in accordance with the Rules in Part II of these Rules by competitive examination to be held by the Commission; and (b) by promotion in accordance with the Rules contained in Part V of selected rangers specified therein.
The appellant and respondents 7 to 12 were selected rangers and were appointed as Assistant Conservator of Forest by promotion under Rule 3(b).
As is apparent from the counter affidavit on behalf of respondents 8 to 10, respond ent No. 11 was promoted as Assistant Conservator of Forest on 21st December 1976, respondent Nos. 7, 8, 9 & 12 on 29th November 1977 and respondent No. 10 on 15th December 1978.
In so far as the appellant is concerned, even though, he was appointed subsequently, his appointment was made effective retrospective from 29th November 1977.
Respondent No. 13, on the other hand, as is apparent from the seniority list which was challenged by the appellant, was appointed under Rule 3(a) of the Rule by direct recruitment on 3rd May 1978.
The counter affidavit further indicates that respondent No. 13 was confirmed as Assistant Conservator of Forest on 30th June 1983.
Respondents 7 to 11 were confirmed on 30th August 1983 and respondent No. 12 was confirmed on 5th August 1983 whereas the appellant was confirmed on 31st December 1986.
In the said counter affidavit, the dates of appointment as rangers of respondents 11, 7, 8, 9, 10, 12 and the appellant respectively are stated as 3rd April 1958, 4th April 1958, 5th April 1958, 9th April 1958, 7th April 1959, 1st April 1966 and 2nd April 1967.
Even though a rejoinder has been filed by the appellant, the correctness of the aforesaid facts has not been denied therein nor has it been urged by the learned counsel for the appellant before us that these facts are inaccurate.
It is on the basis of these facts, therefore, that the respective submissions made by learned counsel for the parties have to be considered.
204 It has been urged by learned counsel for the appellant mainly relying on a memorandum to the Cabinet dated 24th November 1977 which contains a note that if the appellant was found fit for promotion by the selection committee, his place will be above 10 general category rank officers men tioned therein, that in the seniority list the name of the appellant should have been placed above those officers.
According to the learned counsel for the appellant the memorandum was approved by the Cabinet on the same date and yet in the impugned seniority list the aforesaid direction was not carried out.
For the respondents, it was urged that the Cabinet had not approved the memorandum in its entirety.
In our opinion, however, it is not necessary to go into this controversy.
It was on the above premise that the writ petition challenging the seniority list was filed by the appellant in the High Court and according to his learned counsel, the High Court committed an error in dismissing the same.
Having heard learned counsel for the parties, we find it difficult to agree with the submission made by the learned counsel for the appellant.
As seen above, the serv ice conditions of Assistant Conservators of Forest who are members of the Bihar Forest Service, are governed by the Rules.
Rule 35 which specifically deals with the matter of seniority reads as hereunder: "35.
Seniority of officers appointed to the Service shall be determined with reference to the date of their substantive appointment to the Service.
Provided that (i) in the case of members of the Service appointed by direct recruitment at the same time, their seniority inter se shall be in the order of merit in which their names are placed in the list of successful candidates at the Final Examination of the Indian Forest Col lege, Dehra Dun; (ii) in case where appointments are made to the Service both by direct recruitment and promotion of selected Rangers at the same time, the promoted members of the service shall be senior to the members directly re cruited; and (iii) the seniority inter se of Rangers on substantive appointment to the Service by promotion at the same time 205 shall be their seniority inter se held as Rangers." In the instant case we are not concerned with Clause (i) of the proviso.
Even Clause (ii) is not attracted inasmuch as respondent No. 13 even though was appointed by direct recruitment, was not appointed "at the same time" as the appellant and respondents 7 to 12, as already indicated above.
That is clause (iii) of the proviso, therefore, which is relevant for the determination of the seniority inter se of the appellant and respondents 7 to 12.
On a plain reading of this Clause it is apparent that on substantive appoint ment of rangers to the service by promotion, their seniority inter se in the service is to be governed by "their seniori ty" inter se held as rangers".
As seen above, the appellant as well as respondents 7 to 12 have already been confirmed as Assistant Conservator of Forest and meet the requirement of "substantive appointment to the service by promotion".
In order to determine their inter se seniority as Assistant Conservator of Forest, therefore, their seniority inter se held as rangers shall be the determining factor.
The respec tive dates of appointment as rangers of the appellant and respondents 7 to 12 have already been given above.
Its perusal indicates that respondents 7 to 12 had been appoint ed as rangers much before 2nd April 1967 which was the date on which the appellant was appointed as a ranger.
The dates of appointment and confirmation of respondent No. 13 who is a direct recruit, have been noted earlier.
In this view of the matter the claim of seniority as made by the appellant has no substance.
It is settled law that the provisions of statutory rules cannot be modified or altered by executive instructions and it is only in the absence of statutory rules that executive instructions have relevance.
As such even if for the sake of argument it may be accepted that on account of the memoran dum to the Cabinet or any other executive instruction the appellant was to be given seniority as claimed by him, it could not be done as in case of a conflict the statutory provisions contained in this behalf in proviso (iii) of Rule 35 of the Rules shah prevail.
In the result this appeal fails and is dismissed but in the circumstances of the case there shall be no order as to costs.
Appeal dismissed.
| IN-Abs | The appellant and respondents 7 to 13 are Assistant Conservators of Forest and are governed by the Bihar Forest Service Rules, 1953.
As per Rule 3 thereof appointment to the said post is made either by direct recruitment or by promotion of selected Rangers.
The appellant and respondents 7 to 12 were promoters and respondent 13 was a direct recruit.
Though the appellant was promoted subsequent to the promotion of respondents 7 to 12, his appointment was made retrospective.
The appellant was the last to be confirmed as Assistant Conservator of Forest.
As a Ranger also the appellant was appointed much later to respondents 7 to 12.
On the basis of confirmation seniority has been determined.
The appellant challenged the seniority of respondents 7 to 13 over him, by way of a Writ Petition in the High Court.
He relied on a memorandum to the Cabinet which contained a note that if the appellant was found fit for promotion his place would be above 10 general category officers and since the memorandum was approved by the Cabi net his name in the seniority list should have been placed above those officers.
The respondents resisted the claim stating that the Cabinet had not approved the memorandum in its entirety.
The High Court dismissed the Writ Petition and this appeal, by special leave, is against the said judgment.
The contentions raised before the High Court were reiterated in this appeal, this appeal.
Dismissing the appeal, 202 HELD: 1.1.
Rule 35 of the Bihar Forest Service Rules, 1953 specifically deals with seniority.
In the instant case, Clause (i) of the proviso is not attracted.
Even Clause (ii) is not attracted inasmuch as respondent No. 13 even though was appointed by direct recruitment, was not appointed "at the same time" as the appellant and respondents7 to 12.
It is Clause (iii) which is relevant for the determination of the seniority inter se of the appellant and respondents 7 to 12.
On a plain reading of this Clause it is apparent that on substantive appointment of Rangers to the service by promo tion, their seniority inter se in the service is to be governed by "their seniority inter se held as Rangers".
The appellant as well as respondents 7 to 12 have already been confirmed as Assistant Conservator of Forest and meet the requirement of "substantive appointment to the service by promotion".
In order to determine their inter se seniority as Assistant Conservator of Forest, therefore, their senior ity inter se as Rangers shall be the determining factor.
Respondents 7 to 12 had been appointed as Rangers much before the date on which the appellant was appointed as a Ranger.
Hence the claim of seniority as made by the appel lant has no substance.
[204D; 205B E] 1.2.
It is settled law that the provisions of statutory rules cannot be modified or altered by executive instruc tions, and it is only in the absence of statutory rules that executive instructions have relevance.
As such even if for the sake of argument it may be accepted that on account of the memorandum to the Cabinet or any other executive in struction the appellant was to be given seniority as claimed by him, it could not be done, as in case of a conflict, the statutory provisions contained in proviso (iii) of Rule 35 of the Rules shall prevail.
[205E F]
|
N: Writ Petition (Crl.)No. 54 of 1989.
(Under Article 32 of the Constitution of India).
T.U. Mehta and S.C. Patel for the Petitioner.
S.K. Dholakia, M.N. Shroof and Ms. Hemantika Wahi for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The Commissioner of Police, Ahmedabad by his order dated 26.12.1988, directed the deten tion of the petitioner under section 3(2) of the Gujarat Prevention of AntiSocial Activities Act, 1985 (hereinafter referred to as 'the Act ').
The petitioner was taken into custody under the order on that very day.
The material portion of the order of detention stated: "WHEREAS, I.S.N. Sinha, Commissioner of Police, Ahmedabad City, am empowered in this behalf by the Government of Gujarat by its order, Home Department No. G.G./155/SB IV/PASA/1085/1191 dated 28.5.1985 under sub section (2) of section 3 of the Gujarat Pre vention of Anti Social Activities Act, 1985.
AND WHEREAS, I am satisfied with respect to person known as Shri Ahmed hussain @ Kalio Shaikhhussain Shaikh resident of Dariyapur, Bukhari Mohallo, Ahmedabad City, that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad City, it is necessary to make an order directing that the said Shri Ahmedhussain @ Shaikhhus sain Shaikh be detained.
NOW, THEREAFTER, in exercise of the powers conferred by sub section (1) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985, I, S.N. 180 Sinha, Commissioner of Police, Ahmedabad City hereby direct that the said Shri Ahmedhussain @ Kalio Shaikhhussain Shaikh be detained.
" The grounds communicated to the petitioner under section 9(1) of the Act alleged that the petitioner was conducting anti social activities of illegally storing indigenous and foreign liquor in his possession and was selling it by himself and through his men in the area of Dariyapur and three prosecutions had been launched against him under the Bombay Prohibition Act of 1949.
From the particulars it appeared that one case was pending in court while the other two were under investigation.
The detaining authority there after stated: "Thus on careful study of the above said complaints and entire papers with the propos al, it is found that you are a prohibition 'bootlegger ' and are conducting anti social activities of selling indigenous and foreign liquor illegally.
You and your companions beat the innocent citizens of the above stated area in public and create an atmosphere of fear and terror for continuing your criminal anti social activities.
Moreover, you and your companions are creating atmosphere of fear by beating the innocent citizens, threaten them to kill while passing through that area by showing dangerous weapons suspecting them to be the informants of the police.
The customers of your adda in drunken condition play mis chief, and beat the persons in open; people residing there have fear and terror is spread in the said area.
Moreover, you beat those who oppose your bringing the quantity of wine and you threaten to kill and you create an atmos phere of fear and terror.
Because of such activities, the citizens residing in the above stated area have fear of damage to their property and the safety for themselves.
Thus you become an obstructionist in the mainte nance of public order.
The citizens residing or doing their trade in the said area have stated the facts corroborating your above stated criminal anti social activities as a result of which you become obstructionist in the maintenance of public order.
Such incidents have been stated in detail.
The copies of the statements thereof are given to you herewith".
Reference was made to a previous order of detention of July 12, 1987, 181 which was set aside by the High Court on 3.12.1987 and to the fact that notwithstanding the previous detention, the petitioner continued to carry on his criminal and anti social activities affecting maintenance of public order.
In the grounds it was further stated: "I had also considered to prevent your anti social activities of selling wine by taking action u/s 93 of the Prohibition Act.
But according to the provision of section 93, only surety for good conduct can be taken.
I am fully satisfied that even if you give the surety for good conduct, you will not obey the same.
Looking to your activities uptil now, I feel that you will not obey the same.
So I do not think it possible to prevent your such anti social activities immediately by taking action against you under section 93 of the Prohibition Act.
I had considered to take action against you u/s 57(c) of the Bombay Police Act for your externment.
But under the provision of section 57(c), three convictions within a period of three years under the Prohibition Act are necessary.
In your case, of the cases which are registered against you under the Prohibition Act, one is pending in the Court and two cases are pending for police investi gation.
In your case there is no such convic tion; so it is not possible under the law to take action against you u/s 57(c) for extern ment.
I had also considered to take pro ceeding against you u/s 56B of the Bombay Police Act for externment: but if the proceed ings u/s 56B of the Bombay Police Act are taken against you, first of all show cause notice is required to be given to you u/s 59(1) of the Bombay Police Act.
Then such order can be passed only after giving you full opportunity to defend by examining your de fence witnesses.
Even if such order is passed against you, you can go in appeal against the externment u/s 60 of the said Act and the possibility of granting stay to you cannot be avoided.
So a long time is taken in the pro ceedings of externment u/s 56B and during this period you may continue your anti social activities and there are all chances that you become obstructionist in the maintenance of public order; so it is not possible to prevent your anti social activities immedia 182 tely by taking action u/s 56B and I do not think proper to take action against you u/s 56B.
You and your companions of Dariyapur Kalupur are keeping dangerous weapons and making conspiracy to beat the innocent persons and because of your activi ties an atmosphere of fear and terror is spread in the said area and people have fear of safety for themselves and damage to their property.
Because of your such activities you have become obstructionist to the maintenance of public order and because of your such activities the atmosphere of public order has been disturbed.
Thus considering all the above facts, I am fully satisfied that you are a prohibition boot legger and you are conducting anti social activities of selling indigenous and foreign liquor and you are creating an atmosphere of fear and terror by beating innocent persons in public and threaten them to kill by keeping dangerous weapons in the above stated area and you are conducting activity of selling the wine in person or through your persons.
Action under the ordi nary law has been taken for preventing your such activities.
At present you are in jail under the Prohibition Act . .
There is every possibility that you will be bailed out by giving surety by the Court because this offence is bailable.
It is quite possible that you may continue your criminal anti social activities after release on bail from court . .
As it has become necessary to prevent your anti social activities to prevent the same as there is no other alternative and as the last alternate I pass the order to take you in detention under the said Act.
" A list of documents relied upon by the detaining author ity was appended to the grounds and the said list is Annex ure D to the petition.
The detaining authority has filed his affidavit in support of the order of detention.
In paragraph 7 of such affidavit the deponent has stated: "With reference to paragraph 7 of the peti tion, I submit that the averments made therein are absolutely wrong in view of the fact that the petitioner has not 'been wrongly involved by me under the P.A.S.A. Act.
It is only on 183 perusal of the relevant record which has been supplied to the petitioner and after consider ing the prognosis about the futuristic activi ties of the petitioner, I was subjectively satisfied that it is necessary to detain the petitioner preventively under the provisions of the P.A.S.A. Act with a view to preventing him from indulging in like activities and, therefore, the impugned order was passed by me".
In paragraph 8(c)of the counter affidavit the detaining authority has further stated: "I further submit that so far as the petition er 's detention in the year 1987 is concerned, it is true that the Hon 'ble Gujarat High Court had directed the authorities to release the petitioner and the said fact has already been clearly mentioned in the grounds of detention.
I further submit that since the Hon 'ble Guja rat High Court had passed the order, the order being judicial one, I have nothing to comment on it.
However, I submit that there is no nexus between the order of the Hon 'ble High Court in that petition and the facts of the present case and, therefore, the judicial pronouncement by the Hon 'ble Gujarat High Court has no application whatsoever to the facts of the present case.
Since the present order is passed on totally fresh grounds which are sufficient enough to give subjective satisfaction to me for the purpose of passing the order of detention . .
I further submit that the fact that the petitioner was earlier detained and the fact that the order of detention was quashed by the Hon 'ble Guja rat High Court was considered by me and that has also been mentioned in the grounds of detention . . " The Bombay Prohibition Act of 1949 is in force in the State of Gujarat and prohibition is in force in this State.
We have extracted a substantial portion of the grounds of detention communicated to the petitioner to show how helpless the authorities feel in the matter of enforcing prohibition within the State.
Obviously neither the Prohibi tion Act nor the other statutes referred to by the detaining authority could be called in aid to meet the requirements of the situation.
On his own showing, afraid of the petitioner being released on bail and resorting to anti social activi ties, and with a view to ensuring his detention in jail the impugned order has been made.
184 The satisfaction of the detaining authority is not open to judicial review but as has been pointed out by several Constitution Bench decisions of this Court a citizen is entitled to protection within the meaning of Article 22(5) of the Constitution of the procedural guarantees envisaged by law.
The Court frowns upon any deviation or infraction of the procedural requirements.
That in fact is the only guar antee to the citizen against the State 's action of preven tive detention.
The fact that the detenu was in jail at the time the order of detention was made and the possibility of his release from jail being made a ground of detention was not approved of by this Court in Rarnesh Yadav vs District Magistrate, Etah & Ors., and Binod Singh vs District Magistrate, Dhanbad, Bihar & Ors., ; In Smt.
Shashi Aggarwal vs State of U.P. & Ors., A.I.R. , this Court pointed out: "Every citizen in this country has the right to have recourse to law.
He has the right to move the court for bail when he is arrested under the ordinary law of the land.
If the State thinks that he does not deserve bail the State could oppose the grant of bail.
He cannot, however, be interdicted from moving the court for bail by clamping an order of detention.
The possibility of the court grant ing bail may not be sufficient.
Nor a bald statement that the person would repeat his criminal activities would be enough.
There must also be credible information or cogent reasons apparent on the record that the dete nu, if enlarged on bail, would act prejudi cially to the interest of public order.
" We may now refer to two decisions of this Court under the present Act.
In the case of Abdul Razak Abdul.
Wahib Sheikh vs Shri S.N. Sinha, 'Commissioner of Police, Ahmeda bad & Anr., J.T. it has been held that the detaining authority must disclose in a case where the detenu is already in jail that there is cogent and relevant materi al constituting fresh facts to necessitate making of an order of detention.
In that case, as here, the detenu was in jail in connection with a criminal case and the order of detention was served on him in jail.
The detenu 's mere complicity in earlier incidents was not considered adequate and the detention under the Act was set aside.
In the case of Ramesh vs State of Gujarat & Ors., J.T. , an order of detention under the Act was under challenge.
The Court found that referring to incident which constituted the subject matter of an earlier 185 order of detention vitiated the impugned order.
Apart from these, in the instant case, the material disclosed is quite vague with reference to the persons affected or victimised as also the time and place of such victimisation.
This Court has on several occasions indicated that there is a wide gap between law and order and public order.
The criminal offence may relate to the filed of law and order but such an offence would not necessarily give rise to a situation Of public order.
Depending upon peculiar situations an act which may otherwise have been overlooked as innocuous might constitute a problem of public order.
Selling of liquor by the petitioner would certainly amount to an offence under the Prohibition Act but without some thing more would not give rise to problem of public order.
Similarly commission of any other criminal offence even assault or threat of assaUlt would not bring the matter within the ambit of public order.
Disclosure of adequate facts to enable a full and ade quate representation to the Preventive Detention Board is one of the positive guarantees within the scope of Article 22(5) of the Constitution.
In A.K. Roy 's case, a Constitution Bench of this Court indicated that full est disclosure of material should be made to enable the representation to be effective.
In the present case the grounds which we have extracted show that the allegations are more or less vague and have the effect of making it difficult for the petitioner to make an adequate representa tion.
Four witnesses had deposed against the petitioner.
Their statements were supplied to the petitioner without disclos ing their names.
It is the stand of the respondent that if the names were disclosed the witnesses were likely to be bodily injured or even eliminated.
There may be certain situations where the disclosure has to be with held but in view of the infirmities already indicated it is not neces sary for us to examine whether in the facts of the present case such withholding would not by itself vitiate the order of detention.
We are satisfied that the impugned order cannot be sustained.
Accordingly, we quash the order and direct that the petitioner be set at liberty forthwith.
It is perhaps necessary to indicate that the provisions of the Prohibition Act of 1949 or the Bombay Police Act should be suitably amended to meet the requirements of society.
Even if the provisions under those Acts are made stringent the person proceeded against has 186 the benefit of a trial or a regular hearing and pursuing an appeal against adverse orders, but in a case of preventive detention trial is avoided and liberty of a citizen is taken away without providing a right to defend himself.
The grounds provided by the detaining authority have clearly exhibited a sense of helplessness to meet the requirement of the situation; that, however, is a matter for the Legisla ture and the Administration to consider but the Court has to zealously guard enchroachments on the liberty of the citi zen.
R.S.S. Petition allowed.
| IN-Abs | The petitioner was directed to be detained under section 3(2) of the Gujarat Prevention of Anti social Activities Act, 1985.
In the grounds of detention it was alleged that the petitioner was conducting anti social activities of illegally storing indigenous and foreign liquor in his possession and selling it by himself and through his men and that he and his men beat innocent citizens thereby creating an atmosphere of fear and terror and he had thus become obstructionist in the maintenance of public order.
Reference was made to a previous order of detention which had been set aside by the High Court, and to the fact that notwithstand ing the previous detention, the petitioner continued to carry on his criminal and anti social activities affecting maintenance of public order.
It was further stated in the grounds that the detaining authority had considered taking action against the petitioner section 93 of the Prohibition Act for good conduct, and under sections 56B and 57(c) of the Bombay Police Act for his externment, but all these steps were either found not feasible or adequate.
It was then stated that there was a possibility of the petitioner, who was in jail, being released on bail and continuing his criminal activities, and to prevent the same there was no other alternative except to pass the order of detention.
Allowing the writ petition and quashing the order of detention this Court, HELD: (1) The satisfaction of the detaining authority is not open to judicial review but a citizen is entitled to protection within the meaning of Article 22(5) of the Con stitution of the procedural guarantees envisaged by law, and the Court frowns upon any deviation or infraction of the procedural requirements.
[184A B] (2) The fact that the detenu was in jail at the time the order of 178 detention was made and the possibility of his release from jail being made a ground of detention is not approved of by this Court.
[184C] Ramesh Yadav vs District Magistrate, Etah, ; Binod Singh vs District Magistrate, Dhanbad, Bihar & Ors., ; and Smt.
Shashi Aggarwal vs State of U.P., ; , referred to.
(3) The detaining authority must disclose in a case where the detenu is already in jail that there is cogent and relevant material constituting fresh facts to necessitate making of an order of detention.
[184F] Abdul Razak Abdul Wahib Sheikh vs Shri S.N. Sinha, Commissioner of Police, Ahmedabad & Anr.,, J.T. and Ramesh vs State of Gujarat, J.T. , referred to.
(4) There is a wide gap between law and order and public order.
The criminal offence may relate to the field of law and order but such an offence would not necessarily give rise to a situation of public order.
Depending upon peculiar situations, an act which may otherwise have been overlooked as innocuous might constitute a problem of public order.
Selling of liquor by the petitioner would certainly amount to an offence under the Prohibition Act but without some thing more would not give rise to a problem of public order.
Similarly commission of any other criminal offence even assault or threat Of assault would not bring the matter within the ambit of public order.
[185B C] (5) Disclosure of adequate facts to enable a full and adequate representation to the Preventive Detention Board is one of the positive guarantees within the scope of Article 22(5) of the Constitution.
In the present case the grounds of detention show that the allegations are more or less vague and have the effect of making it difficult for the petitioner to make an adequate representation.
[185D E] A.K. Roy 's case, , referred to.
(6) The grounds of detention show how helpless the authorities feel in the matter of enforcing prohibition within the State.
[186B] (7) It is perhaps necessary to indicate that the provi sions of the Prohibition Act of 1949 or the Bombay Police Act should be suitably amended to meet the requirements of society.
Even if the provisions under those Acts are made stringent the person proceeded against has the benefit of a trial or a regular hearing and pursuing an appeal 179 against adverse orders, but in a case of preventive deten tion trial is avoided and liberty is taken away without providing a right to defend himself.
[185H; 186A]
|
ivil Appeal Nos.
3986 3987 of 1989.
From the Judgment and Order dated 23.3.1989 and 6.4.1989 of the Calcutta High Court in Appeal No. 69 1 of 1988 and Admiralty Suit No. 6 of 1985 respectively.
Dr. Shanker Ghosh, C.R. Addy, A.K. Sil, G. Joshi and Mrs. Urmila Narang for the Appellants.
M.K. Ramamurthi, H.L. Tiku and Ashok Grover for tne Respondents.
190 The Judgment of the Court was delivered by VERMA, J.
Is omission of the witness ' signature on his deposition recorded on commission, as required by Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, ap plicable to the Original Side, a defect fatal to the recep tion of the deposition in evidence even when the correctness and authenticity of the deposition is undisputed? Subject to the preliminary objection raised by Shri M.K. Ramamurthi, learned counsel for the respondents, this is the main point for decision on merits to be answered with reference to Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, applicable to the Original Side.
The Calcutta High Court has held this defect to be fatal and accordingly excluded the entire oral evidence of the defendants recorded on commis sion resulting in the suit being decreed in plaintiffs ' favour on the unrebutted testimony of the plaintiffs.
Cor rectness of this view is assailed before us.
A foreign vessel M.V. "Vali Pero" sailing under the Greek flag arrived at the port of Calcutta on April 20, 1985; 10 nOn Greek seamen on board that ship filed a suit on August 2, 1985 in the admiralty jurisdiction of the Calcutta High Court for recovery of approximately Rs. 15.40 lacs claimed as their dues from the owners of the vessel; deposi tions of the defendants ' witnesses were recorded on commis sion and submitted to the learned single Judge trying the suit who closed the case on 24.12.1987 for pronouncing judgment on 12.1.1988; before delivery of judgment on 10.8.1988 objection was raised on behalf of the plaintiffs to reception in evidence of the depositions of the defend ants ' witnesses examined on commission on the ground of absence of witness ' signature on the deposition; the objec tion was upheld by the learned single Judge as also by a Division Bench in a Letters Patent Appeal; and the suit has been decreed on 6.4.1989 on the unrebutted evidence of plaintiffs.
In the meantime, one of the plaintiffs is stated to have died while another is alleged to be critically ill; and on the 'other hand, the vessel continues to be detained at the Calcutta Port even after the owners have furnished the security demanded from them by interim orders in the suit.
Even at the risk of this description being labelled as oversimplification, this is the scenario of the forensic battle in which the point raised has to be decided.
We may add that this is not the first journey to this Court of this litigation by special leave during the trial of the suit.
191 Both the Special Leave Petitions are by the defendants, owners of the vessel.
One Special Leave Petition is against the judgment dated 23.3.1989 of the Division Bench of the High Court affirming the order dated 10.8.1988 of the learned single Judge excluding the defendants ' oral evidence recorded on commission for the above defect.
The other Special Leave Petition is directed against the judgment and decree dated 6.4.1989 of the learned single Judge decreeing the plaintiffs ' suit after exclusion of defendants ' entire oral evidence.
Petitioners urged that filing of an appeal under the Letters Patent against the judgment and decree in the suit was futile in view of the earlier Division Bench judgment dated 23.3. 1989 on the main point in controversy even in respect of the final decision.
The preliminary objection of Shri Ramamurthi is that the first Special Leave Petition, apart from arising out of an interlocutory order which does not justify its entertain ment, is also now infructuous after decision of the suit itself in which that interlocutory order was made.
The other Special Leave Petition should not be entertained, according to Shri Ramamurthi, because it circumvents the statutory internal appeal under the Letters Patent to the Division Bench of the High Court.
Shri Ramamurthi contended that this Court should not, therefore, entertain either of these petitions for grant of special leave under Article 136 of the Constitution, even though the powers are fairly wide on account of which he does not contend that they are not maintainable.
We shall first dispose of the preliminary objection of Shri Ramamurthi.
He has very fairly stated that he does not challenge the maintainability of these petitions but only assails their entertainability under Article 136.
In our considered opinion pragmatism and assurance of shortening this unduly protracted litigation are by themselves suffi cient and eloquent reasons to grant leave in these matters and to decide the above question on merits forthwith instead of deferring that decision to a later date.
Technically, Shri Ramamurthi is right that ordinarily special leave need not be granted where remedy of a statutory appeal being available has not been exhausted.
However, m the particular facts of this case when the decision in Letters Patent Appeal appears to be a forgone conclusion, the appropriate course which commends to us is to grant leave and decide the matter straightaway instead of deferring that decision to a later stage after exhaustion of the futile remedy of Letters Patent Appeal in the High Court.
We may at this stage also mention the argument based on res 192 judicata addressed to us.
The point raised is: whether the decision by a Division Bench of the High Court affirming the learned single Judge 's order excluding the depositions from evidence will bar a fresh adjudication of that point in the Letters Patent Appeal filed against the final decision in the suit? In our opinion, this academic exercise iS unneces sary in the present case since it cannot be doubted that irrespective of the question of res judicata, earlier deci sion on the same point by a Division Bench of the High Court will atleast be a binding precedent when the matter is reagitated before the Division Bench hearing the appeal against the final decision in the suit.
In such a situation directing the resort to the remedy of an appeal under the Letters Patent against the final decision in the suit will needlessly delay decision of the point by this Court.
We are, therefore, of the opinion that, in the present case, it is neither necessary to decide the question of res judicata argued before us nor would it be appropriate to refuse leave and direct the petitioner to first exhaust the remedy of an appeal under the Letters Patent in the High Court.
We, accordingly, proceed to decide the point involved on merits.
Leave granted.
Having heard learned counsel for the parties, we have formed the opinion that the High Court was in error in excluding from evidence the depositions of the appellants ' witnesses recorded on commission and in proceeding to decide the suit on that basis.
The matter will, therefore, have to go back to the High Court for a fresh decision of the suit treating these depositions as evidence in the suit.
In view of this conclusion reached by us, we shall mention only the facts necessary for deciding the main controversy at this stage relating to the construction of Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, applicable to the Original Side.
In the above Admiralty Suit No. 6 of 1985, the appel lants (defendants in the suit) filed an application on February 6, 1987 for examining their two witnesses, Mr. A. Kappos and Mr. Parakis, on commission at the Greek Embassy in New Delhi.
The respondents ' (plaintiffs in the suit) evidence was concluded on February 23, 1987.
On February 25, 1987, the learned single Judge trying the suit directed issue of a commission for examination of the appellants ' two witnesses on commission at the Greek Embassy at New Delhi and Mr. B.C. Kundu, Advocate of the Alipore Bar was appoint ed the Commissioner for this purpose.
The Commissioner commenced recording the depositions of these witnesses at New Delhi on May 1, 1987 and concluded it 193 on May 4, 1987.
The deposition of each witness was signed by the Commissioner after being read over to the witness who admitted it to be correct.
However, the signature of the witness was not taken on the deposition.
The Commissioner settled the minutes in a meeting with counsel for parties in which the depositions recorded on commission were admitted to be correct and counsel for the parties signed the minutes in token of their acceptance.
The minutes are as under: "A meeting was held this afternoon dated 15th May, 1987 at 4.15 P.M. at lB, Old Post Office St., Calcutta I to furnish the report of the Commission.
Members present: Mr. Taimur Hossain Advocate on behalf of the plaintiffs Mr. A.K. Auddy Advocate (Sandersons & Morgans) on behalf of the defendant Mr. B.C. Kundu A list of Exhibits as also copies of deposi tions recorded at Greek Embassy, New Delhi were given to the parties.
No amendment or correction was suggested in the deposition by either of the parties.
The Report of the Commissioner would be submitted on Monday, the 15th May, 1987.
Illegible Commissioner Appointed by the Hon 'ble High Court vide order dated 25.2.87 sd/ Md. Taimur Hossain Advocate for the plaintiffs 194 sd/ A.K. Auddy Advocate 15.5.87 Received a copy Sig.
Illegible Recd.
a copy of the minutes.
sd/ A.K. Auddy.
" The Commissioner then submitted his report along with the depositions recorded by him in a sealed cover to the Registrar (Original Side) of the High Court.
The parties also filed written submissions in the court treating these depositions as evidence in the suit and on December, 1987 the learned trial Judge recorded the proceedings as under: "The Court: Deposition including the documents taken on commission are formally tendered in Court by the learned Advocate appearing for the defendant (in a sealed cover).
Both the parties have submitted their written argument in Court earlier.
Let this suit appear in the List on 12.1.1988 at 3 P.M. marked "For Judg ment".
" It is clear that till closing of the suit for judgment, no objection was raised on behalf of the respondents to inclusion of the depositions of appellants ' witnesses exam ined on commission in evidence of the suit.
Somehow the judgment was not delivered on 12.1.1988 and even thereafter for quite some time and the learned single Judge then made an order releasing the suit.
This led to a special leave petition in this Court by the respondents and an order was made by this Court requesting the learned single Judge trying the suit to dispose of the suit on merits instead of releasing it.
It was then on 10.8.1988 that respondents ' (plaintiffs in the suit) counsel raised the objection to inclusion of the depositions of appellants ' witnesses examined on commis sion in evidence of the suit on the ground that the deposi tions were not signed by the witnesses as required by Rule 4 ibid.
That objection was upheld by the learned single Judge as well as a Division Bench of the High Court in L.P.A. against that order.
The High Court has held this defect to be fatal on its view that even the requirement of witness ' signature in Rule 4 ibid is mandatory.
S.L.P. No. 4074 of 1989 is against this order.
On this view, the learned single Judge has proceeded to decree the suit on the basis of respondents ' unrebutted evidence and S.L.P. No. 93 18 of 1989 195 is against the judgment and decree in the suit.
The controversy on merits depends ultimately on the correct construction of Rule 4 of Chapter XXII of the Cal cutta High Court Rules, 1914 applicable to the Original Side with reads as under: "4.
Deposition to be read over, signed etc.
After the deposition of any witness shall have been taken down, and before it is signed by him, it shall be distinctly read over, and, where necessary, translated to the witness in order that mistakes or omissions may be recti fied.
The deposition shall be signed by the witness and left with the Commissioner who shall subscribe his name and date of the examination." Dr. Shanker Ghosh, learned counsel for the appellants contended that the omission of witness ' signature on the deposition recorded by the Commissioner does not invalidate the deposition atleast in a case like the present where the correctness and authenticity of the deposition is undisput ed.
He argued that in this sense requirement of the witness ' signature on the deposition is not a mandatory requirement, the absence of which may invalidate the deposition.
He also contended that the defect, if any, was curable by obtaining the witness ' signature even now for which the appellants are prepared.
He added that in order to put the matter further beyond controversy, the affidavits of the witnesses examined on commission were filed in the High Court during pendency of the appeal before the Division Bench admitting correct ness of their depositions.
He also placed strong reliance on admission of the respondents ' counsel to the correctness of the depositions, in the minutes recorded by the Commissioner on 15.5.1987 as well as the omission to raise any such objection till 10.8.1988 much after the suit was closed for judgment on 24.12.1987.
He finally urged that the mistake, if any, was of the Commissioner in not taking the signatures of the witnesses and no party should be prejudiced by an act or omission of the Commissioner who was an officer of the Court.
In reply, Shri M.K. Ramamurthi, relied on the reasons given in the Division Bench 's judgment dated March 23, 1989 for construing this requirement in Rule 4 ibid as mandatory and on that basis excluding from evidence in the suit of these depositions.
He also contended that copies of affida vits of the witnesses filed in the High Court were not supplied to the respondents.
He added that the argument of curing the defect by obtaining signatures of the witnesses on the depositions was not advanced in the High Court due to which it 196 should not be permitted now.
Shri Ramamurthi also made the grievance that belated pleas of the appellants have caused needless harassment to the respondents.
Since we have come to the conclusion that these appeals should be allowed on the construction of Rule 4 ibid, we need not decide the other points urged.
It is needless to burden our decision with the several well known authorities cited at the Bar indicating the test to be applied to decide whether a provision is mandatory or directory.
The real difficulty arises only in the applica tion of the well settled principles.
The essential require ment of Rule 4 is that the deposition of a witness examined on commission shall be taken down in writing read over, and, where necessary, translated to the witness in order that mistakes or omissions, if any, may be rectified or supplied.
The mandate in Rule 4 to this extent must be complied strictly in order to ensure a correct record of the deposi tion.
The further requirement of signature of Commissioner with the date of examination and deposition being left with the Commissioner to enable its production in court is to ensure its authenticity.
The only remaining requirement in Rule 4 of the witness ' signature on the deposition has relevance to the admission of the witness of its correct ness.
The signature of the witness is not a part of the deposition and apart from acknowledging the correctness of his deposition on the deposition itself, it is not essential for any other purpose in this context.
It is well known that under the Code of Civil Procedure a deposition recorded in a Court, except that under Order 18, Rule 16 C.P.C., does not require the witness ' signature on the deposition.
It appears that witness ' signature on the deposition recorded on com mission is only required for court 's assurance since the witness is not examined in court.
Accordingly, it cannot be said reasonably that the omission of witness ' signature on the deposition renders the deposition incomplete.
If this be the true import of the witness ' signature on the deposition recorded on commission, the deposition cannot be treated as incomplete, much less, invalid merely due to omission of witness ' signature when correctness or authenticity of the deposition is undisputed.
It appears to us that while the essential requirements of Rule 4 indicated above are no doubt mandatory requiring strict compliance, the requirement of witness ' signature therein is directory of which substantial compliance is sufficient.
There is substantial compliance of this directo ry requirement where the correctness and authenticity of the deposition is undisputed.
Compliance can be had of this requirement even by subsequent admission of correctness of the deposition by 197 the witness, in case of dispute.
This construction of Rule 4 made by us also promotes the object of its enactment instead of negativing it.
Rules of procedure are not by themselves an end but the means to achieve the ends of justice.
Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice.
Construction of a rule of procedure which promotes justice and prevents its miscar riage by enabling the court to do justice in myriad situa tions, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice.
The reason is obvious.
Procedure is meant to subserve and not rule the cause of justice.
Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case.
In our view, this appears to be the pragmatic approach which needs to be adopted while construing a purely procedural provision.
Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system.
In this case, none disputes the correctness and authen ticity of the depositions recorded on commission but there is omission of witness ' signature thereon.
The question is: does reception of these depositions in evidence violate rule 3 ibid in a manner which is impermissible or this omission can be overlooked as insignificant since correctness and authenticity of the depositions is undisputed? We have no doubt that cause of justice would be served instead of being thwarted and the avowed object of Rule 4 ibid achieved by treating it to be an insignificant omission in the present case.
The consequence of failure to comply with any require ment of Rule 4 ibid is not provided by the statute itself.
Accordingly, the consequence has to be determined with reference to the nature of the provision, the purpose of its enactment and the effect of the noncompliance.
Rule 4 uses the word 'shall ' even while requiring the signature of the witness as it uses the word 'shall ' in respect of the other requirements of the Rule.
Ordinarily, the word 'shall ' used at several places in Rule 4 must be given the same meaning at all places.
However, it is also settled that this is not an invariable rule and even though the word 'shall ' is ordinarily mandatory but in the context or if the intention is otherwise it may be construed to be merely directory.
198 In short, the construction ultimately depends on the provi sion itself keeping in view the intendment of the enactment and the context in which the word 'shall ' has been used.
It would suffice to refer only to the decision in Ganesh Prasad Sah Desari & Anr.
vs Lakshmi Narayan Gupta, ; The word 'shall ' was used therein in connection with the Court 's power to strike off the defence against ejectment in a suit for eviction of tenant in case of de fault in payment of rent.
This Court construed the word 'shall ' in that context as directory and not mandatory since such a construction would advance the purpose of enactment and prevent miscarriage of justice.
In taking this view, this Court was impressed by the fact that the default at tracting the drastic consequence of striking out defence may be only formal or technical and unless the provision was treated as directory, it would render the court powerless even where striking out the defence may result in miscar riage of justice.
We may refer to a passage from Crawford on 'Statutory Construction ' which was quoted with approval in Govindlal Chagganlal Patel vs The Agricultural Produce Market Committee, Godhra and Others, ; and relied on in this decision.
The quotation is as under: "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed.
The meaning and intention of the legislature must govern and these are to be ascertained, not only from the phraseology of the provision, but also while considering its nature, its design and the consequences which would follow from construing it the one way or the other.
" It cannot, therefore be doubted that the word 'shall ' used in the expression 'deposition shall be signed by wit ness ' in Rule 4 ibid has to be given the meaning keeping in view the intention of the legislature, the purpose of the enactment and the consequence which would follow from con struing it as mandatory or directory.
If the word 'shall ' used in this expression is construed as mandatory, non compliance of which nullifies the deposi tion, drastic consequence of miscarriage of justice would ensue even where omission of the witness ' signature is by inadvertence and correctness of the deposition as well as its authenticity is undisputed.
On the other hand, if the word 'shall ' used in this expression is treated as directo ry, the court will have power to prevent miscarriage of justice where the omission 199 does not cause any prejudice and the defect is only techni cal.
The object of the provision being merely to obtain acceptance of the witness to the correctness of the deposi tion, that object would be advanced by taking this view and thereby empowering the court to avoid the drastic conse quence of nullifying the deposition where the correctness and authenticity is undisputed.
In a case where the correct ness has been disputed, it would be permissible for the court to examine the effect of omission of the witness ' signature and to reject the deposition only if it does not accept the correctness and authenticity thereof on the available material.
We do not find any cogent reason to take the view that the word 'shall ' occurring in the expression 'deposition shall be signed by the witness ' in Rule 4 ibid is mandatory which requires strict compliance and mere omission of which renders the deposition invalid and incapable of being read as evidence.
Various facets discussed above lead unerringly to this conclusion.
In view of the above discussion, we are of the opinion that the requirement of witness ' signature on the deposition in Rule 4 ibid is directory even though the requirement of the deposition being recorded, read over to him and correct ed wherever necessary is mandatory.
Mere omission of the witness ' signature on the deposition does not render the deposition invalid when the correctness and authenticity thereof is undisputed.
In the present case, correctness and authenticity of the deposition of the appellants ' witnesses being undisputed and the technical objection of omission of the witness ' signature on the deposition being raised as an after thought much after the learned single Judge had closed the suit for delivery of judgment, the objection is untena ble.
With respect, the High Court was in error in upholding this objection and excluding the deposition of the appel lants ' witnesses examined on commission from the evidence in the suit.
The result of exclusion of the appellants ' oral evidence on this untenable technical ground is that the suit has been decreed treating respondents ' evidence to be unre butted.
Exclusion of appellants ' entire oral evidence has undoubtedly resulted in miscarriage of justice.
The judgment and decree passed by the learned single Judge is vitiated for this reason alone.
We end on a melancholy note for the past with hope for a better future.
At a time when the minds of all of us are rightly exercised by the proverbial laws delays and innova tions are being made and suggested to prevent the apprehend ed collapse of the existing system, the 200 course of this litigation leaves us sad.
No degree of thought can help unless translated into action.
A more pragmatic appreciation and interpretation of the rules of procedure with due despatch would certainly have considera bly shortened the litigation so far.
With both sides appear ing equally keen for a quick resolution of the dispute and this being obviously welcome to the Court we see no reason why the ultimate decision of the suit cannot now be reached early.
We leave the matter with the fervent hope that the dispute will now be resolved expeditiously without any avoidable delay.
We contribute the first step in that direc tion by hastening to pronounce our judgment on conclusion of the elaborate arguments on September 8, 1989, illuminating the penumbral zone.
Consequently, these appeals are allowed.
The order dated 10.8.1988 passed by the learned single Judge, the judgment dated 23.3.1989 passed by the Division Bench of the High Court affirming that order; and the judgment and decree dated 6.4.1989 passed by the learned single Judge are all set aside.
The suit shah be decided afresh by the learned single Judge treating the depositions of appellants ' wit nesses recorded on commission as evidence in the suit, after hearing the arguments of parties on merits.
The respondents alone cannot be blamed for this situation and, therefore, we direct the parties to bear their own costs.
R.S.S. Appeals al lowed.
| IN-Abs | When the foreign vessel M.V. "Vali Pero" arrived at the port of Calcutta, 10 non Greek seamen on board that ship filed a suit in the admiralty jurisdiction of the Calcutta High Court for recovery of their dues.
During the trial, depositions of the defendants ' witnesses were recorded on commission.
Objection was raised on behalf of the plaintiffs to reception in evidence of these depositions on the ground of absence of witness ' signature of the deposition as re quired in Rule 4 of chapter XXII of the Calcutta High Court Rules, 1914, applicable to the Original Side.
The objection was upheld by the learned Single Judge as also by the Divi sion Bench.
The learned Single Judge then decreed the suit on the unrebutted evidence of the plaintiffs.
One Special Leave Petition has been filed against the judgment of Division Bench affirming the order of the learned Single Judge ex cluding the defendants ' evidence.
The other Special Leave Petition has been filed against the judgment of the learned Single Judge decreeing the plaintiff 's suit after excluding the defendants ' entire oral evidence.
On behalf of the ' appellants it was contended that omission of witness ' signature on the deposition recorded by the Commissioner did not invalidate the deposition atleast in a case like the present where the correctness and authen ticity of the deposition was undisputed; that in this sense the requirement of the witness ' signature on the deposition was not a mandatory requirement; that the defect was curable by obtaining the witness ' signature even now; that the respondents ' counsel had admitted the correctness of the depositions; and that the respondents had omitted to raise any objection will after the suit was closed for judgment.
In reply, the respondent relied on the reasons 188 given in the Division Bench 's judgment construing the re quirement in Rule 4 as mandatory.
It was also urged that the argument of curing the defect by obtaining signatures even now was not advanced in the High Court and should not be permitted at this stage.
Allowing the appeals and remanding the suit to the learned Single Judge to be decided afresh, this Court, HELD: (1) The requirement of witness ' signature on the deposition in Rule 4 is directory even though the require ment of the deposition being recorded, read over to him and corrected wherever necessary is mandatory.
Mere omission of the witness ' signature on the deposition does not render the deposition invalid when the correctness and authenticity thereof is undisputed.
[196F] (2) The essential requirement of Rule 4 is that the deposition of a witness examined on commission shall be taken down in writing, read over, and where necessary, translated to the witness in order that mistakes or omis sions, if any, may be rectified or supplied.
The mandate in Rule 4 to this extent must be complied strictly in order to ensure a correct record of the deposition.
[196B C] (3) The signature of the witness is not a part of the deposition and apart from acknowledging the correctness of his deposition on the deposition itself, it is not essential for any other purpose in this context.
[196D] (4) While the essential requirements of Rule 4 are no doubt mandatory requiring strict compliance, the requirement of witness ' signature therein is directory of which substan tial compliance is sufficient.
[196G] (5) There is substantial compliance of this directory requirement where the correctness and authenticity of the deposition is undisputed.
Compliance can be had of this requirement even by subsequent admission of correctness of the deposition by the witness, in case of dispute.
[196H; 197A] (6) Under the Code of Civil Procedure a deposition recorded in a Court, except that under Order 18, Rule 16 C.P.C., does not require the witness ' signature on the deposition.
The requirement of signature is not court 's assurance since the witness is not examined in court.
Ac cordingly, it cannot be said reasonably that the omission of witness ' 189 signature on the deposition renders the deposition incom plete.
[196E] (7) Rules of procedure are not by themselves an end but the means to achieve the ends of justice.
Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice.
[197B] (8) Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the court to do justice in myriad situations, all of which cannot be envisaged, acting within .the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice.
Where the outcome and fair ness of the procedure adopted is not 'doubted and the essen tials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case.
[197B C] (9) Ordinarily, the word 'shall ' used at several places in Rule 4 must be given the same meaning at all places.
However, it is also settled that this is not an invariable rule and even though the word 'shall ' is ordinarily mandato ry but in the context or if the intention is otherwise it may be construed to be merely directory.
In short, the construction ultimately depends on the provision itself keeping in view the intendment of the enactment and the context in which the word 'shall ' has been used.
[197H; 198A] Ganesh Prasad Sah Desari & Anr.
vs Lakshmi Narayan Gupta, ; ; Govindlal Chagganlal Patel vs The Agricultural Produce Market Committee, Godhra & Ors., ; , referred to.
|
vil Appeal Nos. 8 to 10 of 1972.
From the Judgment and Order dated 15.1.1970 of the Gujarat High Court in Special Civil Application Nos. 305,368, 526, 384 and 495 of 1962.
80 T.U. Mehta, U.A. Rana and K.L. Hathi for the Appellants.
G.A. Shah and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
These are appeals by special leave against the judgment of a learned Single Judge of the Gujarat High Court in Special Civil Applications Nos. 305,368 and 526 of 1972.
The controversy raised in the appeal is very limited and hence, the relevant facts can be very briefly stated.
The appellants before us are the tenants of certain intermediary landlords known as Girasdars.
Respondents Nos. 1 to 3 are statutory authorities, namely, the Mahalkari, Kutiana, Deputy Collector of Porbandar Division and the Gujarat Revenue Tribunal respectively.
They have no interest in the result of these appeals but they are represented by counsel before us.
Respondents Nos. 4 5 are the legal heirs of certain Girasdars from whom some of the appellants held lands on lease.
One Respondent No. 9 is a Girasdar who is represented by the Assistant Custodian of Evacuee property and the rest of the respondents are the remaining Girasdars from whom the appellants held lands on leases.
Before going into the facts or the arguments advanced, we propose to take note of the relevant provisions of the Saurashtra Land Reforms Act, 1951 (hereinafter referred to as "the said Act").
The said Act was enacted with the object of improvement of the land revenue administration and for ultimately putting an end to the Girasdari system and to regulate the relations between the Girasdars and their tenants.
We may mention that, very briefly stated, the Girasdars were in the nature of intermediary landlords like the Zamindars.
Unlike most of the land reforms acts, the object of which was to take away completely the right of the Zamindars or intermediary landlords, the said Act provided for the abolition of the Girasdars system and at the same time sought to achieve equitable distribution of land for personal cultivation between the Girasdars and their ten ants.
Sub section (12) of section 2 of the said Act runs as follows: " 'economic holding ' in relation to any region speci 81 fied in Column I of the First Schedule, means a holding of land of an area shown in the corresponding entry in Column 2 thereof.
" Column 2 specifies the area of land comprised in econom ic holdings for the various districts to which the said Act was applicable.
Sub section (14) of section 2 lays down that "Gharkhed" means any land reserved by or allotted to a Girasdar before the 20th May, 1950 for being cultivated personally and which is in his personal cultivation.
Sub section (15) of section 2 contains the definition of the term "Girasdar" and provides that the said expression in cludes within its ambit a talukar, bnagdar, bhayat, cadet or mulgirasia and includes any person declared by the Govern ment by a notification to be a Girasdar for the purposes of the said Act.
Under sub section (18) of section 2 the term "land" basically means agricultural land.
Section 4 of the said Act provides that all land of whatever description held by a Girasdar is and shall continue to be liable to payment of land revenue to the State of Gujarat.
Section 5 provides for classification of Girasdars.
It is sufficient to note that under sub section (1) of that section a Girasdar shall be deemed to belong to A class if the total area of agricul tural land comprised in his estate exceeds eight hundred acres, to B Class if the total area of agricultural land comprised in his estate exceeds one hundred and twenty acres but does not exceed eight hundred acres and to C Class if the total area of agricultural land comprised in his estate does not exceed one hundred and twenty acres.
Section 21 deals with the question of allotment of land to Girasdars of Classes A and B.
For our purposes it is sufficient to note that a Girasdar of Class A is entitled to three economic holdings and a Girasdar of Class B is entitled to two eco nomic holdings.
Section 22 inter alia deals with the princi ples and method of allotment of land to Girasdars of A and B Classes.
The relevant part of the said section for the purposes of the appeal runs as follows: "In making an allotment of land to any Giras dars of A Class or B Class the Mamlatdar shall have due regard to the following provisions, namely: (a) firstly, such of the bid land or cultiva ble waste of the estate as the Girasdar wishes to utilise for personal cultivation shall be allotted to him; (b) secondly, if the land allotted under clause (a) is not sufficient, such agricultur al land as is held by a 82 tenant in excess of one economic holding shall be available for allotment.
" The relevant portion of section 23 which deals with the topic of Girasdars to whom the land may be allotted runs as follows: "23.
Under the provisions of this Chapter, land shall be allotted (a) in the case of an undivided family of Girasdar only to the head of the family on behalf of the family; or (b) in case of a family divided in interest only, to all the members of the family jointly as to a single unit; or (c) in the case of a Girasdar whose land was separate from that of the other members of his family by metes and bounds before the 1st February, 1951, to such Girasdar.
" Section 24 provides that agricultural land will be allotted to C Class Girasdars for being cultivated personal ly to the extent of one half of the total area of the land held by each of his tenants provided that the total area of the holding of a C Class Girasdar made up of Gharkhed in his estate and any bid land or cultivable waste land and other land of a kind set out in the proviso to sub section (1) of the said section does not exceed one economic holding in the case of one in whose estate agricultural land does not exceed eighty acres and one and half economic holdings in the case of one in whose estate agricultural land exceeds eighty acres but does not exceed one hundred and twenty acres.
Chapter IV of the said Act which includes sections 22 to 24 referred to earlier provides that if the land in the Girasdar or for personal cultivation of the Girasdar is less than the land he is entitled to as per the economic units allottable to him, his tenants who hold excess land, that is, in excess of an economic holding, are liable to surren der the same or a part of the same to enable the Girasdar to make up the deficit in the land which he is entitled to hold.
A reading of the relevant portion of Schedule I of the said Act (under section 22) makes it clear that an A Class Girasdar in the district with which we are concerned was entitled to hold 40 acres of land.
We may also at this stage take note of some of the rules framed under the said 83 Act and known as "The Saurashtra Land Reforms Rules, 1951" (hereinafter referred to as "the said Rules").
Rule 50 of the said Rules provides that in making allotment of land to any Girasdar of A Class or B Class, the Mamlatdar shall have due regard to the provisions contained in section 22 and for allotment of land to a Girasdar of C Class to the provisions contained in section 24.
The said rule also provides that in cases arising under section 22(b) and (e) and proviso to subsection (1) of section 24, the land will be taken from tenants proportionately to the excess or the holdings as the case may be.
There is, however, a proviso to Rule 50 which states that where the proportionate excess or holding to be given by a tenant as above works hardship in any individual case, the Mamlatdar may decide the proportion of land to be given by each of the tenants in a manner just and equitable.
It was pointed out by Mr. Mehta, learned counsel for the appellants that in the form I filled in by the Girasdars as required under the said Act, the cultivable land in the estate was shown as 1353.34 acres.
The family of the Giras dars was treated as an A Class Girasdar.
The Mahalkari Kutiana by his decision dated June 25, 1959 held that the entire area comprising cultivable land formed part of the joint and undivided estate of all the Girasdars and on that footing he allotted to them three economic units amounting to 60 acres.
The Girasdars preferred an appeal against the said decision and in that appeal, the Deputy Collector, Porbandar, respondent No. 2, modified the allotment made under the order of Mahalkari.
He held that some of these Girasdars had separate or swang lands and were entitled to separate allotments from swang lands out of their swang estate.
There was a revision application preferred to the Gujarat Revenue Tribunal from the decision of the Deputy Collector.
The Tribunal agreed in principle with the Deputy Collector that the Girasdars were entitled to separate allotments both from the estate held jointly by them and also to separate allotments from the estates separately held by them.
In substance, it held by the Tribunal that the Girasdars were entitled to three economic units out of the aforesaid cultivable land jointly held by them and some of them were entitled to separate allotments out of the lands separately held by them but included in the aforesaid area of 1353.34 acres.
This decision was assailed by way of a Special Civil Application before the Gujarat High Court.
In all, five petitions were filed by tenants challenging the decision of the Gujarat Revenue Tribunal.
The learned Single Judge who disposed of the said petitions held that in re spect of the joint or 'Majmu ' estate of the concerned Giras dars, they were liable to be treated as one unit and enti tled to allotment as an A Class Girasdar and were thus entitled jointly to 84 three economic holdings which came to 60 acres.
However, as found by the Tribunal, one Girasdar, Ali Khokhar, had handed over possession of 15 acres of land of the joint estate and hence, on the footing of the joint holding the Girasdars were entitled to the balance area of 45 acres.
Apart from this, the learned Judge upheld the decision of the Tribunal that some of the Girasdars were entitled to separate allot ment as C Class Girasdars in respect of their respective separate holdings.
The learned Judge clearly proceeded on the footing that out of the said total holding of 1353.34 acres was partly joint and the remaining part comprised separate holdings of some of the Girasdars.
The appellants are represented by senior counsel before us and so also the respondent nos.
1 to 3 who are formal respondents.
However, the rest of the respondents, who would be really affected by the result of the appeal are not appearing although served.
Mr. Mehta learned counsel for the appellants fairly conceded that he can find no fault with the judgment of the learned Single Judge in so far as he took the view that the Girasdars were entitled to separate allotments, one allotment in respect of the land held by them jointly and the separate allotments in respect of the land held by them separately if the estate held by them was partly joint and partly separate.
He, however, strongly contended that the learned Single Judge had wrongly assumed that a part of the said estate was joint and the remaining part was separate.
According to him, the entire estate was joint and the Girasdars were entitled only to an allotment of 60 acres in all as an A Class Girasdar.
In our view, this argument cannot be entertained at this stage at all.
The finding of the Mahalkari that the estate was entirely joint was set aside by the Deputy Collector.
The decision of the Deputy Collector, that some of the Girasdars were entitled to separate allotments in addition to the joint allotment as aforestated, was appealed against before the Tribunal.
The Tribunal also proceeded on the same footing as the Deputy Collector and there is no challenge in the said special civil applications to the effect that the Tribunal had gone wrong in treating the estate as partly joint and partly separate.
In view of this, Mr. Mehta cannot now be allowed to raise a contention that the entire estate was joint.
The next submission urged by him was that, although some of the tenants of the Girasdars were in the village Mal, none of them has been asked to make any contribution to make up the land liable to be allotted to the Girasdars.
As pointed out by learned Single Judge that the contention was not urged before the Revenue Tribunal at all and hence, it was not open to the appellants to raise this contention before the High Court nor is it open to them to raise it before us.
It is significant that none of the 85 tenants of the said Girasdars in Mal village has joined as a respondent to the present appeal and it appears that this argument is nothing more than an after thought.
The last submission of Mr. Mehta is that, as it was found that certain lands were liable to be allotted to the Giras dars to make up the land allottable to them for personal cultivation, the said land should have been made up by call ing upon or directing all the tenants who had excess land, that is, in excess of the economic holding, to surrender a proportionate part of the excess land.
To appreciate this contention,one must notice that Mr. Mehta represents the larger tenants who have been asked to surrender a portion of their land whereas the tenants whose holdings were only marginally in excess of the economic holding have been spared.
It was urged by Mr. Mehta that this is against the provisions of Rule 50 of the said Rules which we have al ready set out earlier and which provides for taking lands from tenants proportionately to the excess of land, that is, land in excess of the economic holding which they were enti tled to hold.
He, however, forgets that there is a proviso to this Rule which we have referred to earlier which pro vides that where taking of such proportionate excess land would lead to hardship, in that case, the Mamlatdar can decide the proportion of land to be given by each of the tenants.
As pointed out by the learned Single Judge of the Revenue Tribunal in deciding as to the excess land to be handed over by the tenants has proceeded on a just and equi table basis that it should touch only such tenants whose land substantially exceeds the economic holding and smaller tenants should not be asked to surrender any part of their holdings.
Judicial notice can be taken that much lesser hardship would be caused to a tenant whose land holding was substantially in excess of the economic holding if a part of that land were taken for allotment to the Girasdar than in the case of a tenant whose excess holding was only marginal.
In view of this, we find that no fault can be found with the decision of the Tribunal or the High Court.
In the result, the appeals fail and are dismissed with no order as to costs.
Y. Lal Appeals dis missed.
| IN-Abs | The appeallants are the tenants of certain intermediary landlords known as Girasdars.
Respondents Nos. 4 5 are the legal heirs of certain Girasdars from whom some of the appellants held lands on lease.
Respondent No. 9 is a Giras dar who is represented by the Assistant Custodian Evacuee Property.
The other respondents, being statutory authorities are formal parties.
The dispute between the parties relate to the mode of allotment to the Girasdars which has arisen in the following circumstances.
After the coming into force of the Saurashtra Land Reforms Act 1951, the respondents Girasdars, as required by the Act filled in Form I showing therein the cultivable land in the estate as 1353.34 acres.
The family of the Girasdars was treated as an 'A ' class Girasdar.
The Mahalkari Kutiana by his decision dated June 25, 1959 held that the entire area comprising cultivable land formed part of the joint and undivided estate of all the Girasdars and on that basis he allotted to them three eco nomic units of land amounting to 60 acres.
The Girasdars preferred an appeal against the said decision and in that appeal, the Deputy Collector, Porbander, Respondent No. 2, modified the allotment made by Mahalkari.
He took the view that some of these Girasdars had separate or swang lands and thus entitled to separate allotments from swang lands, out of their swang estate.
A revision application was preferred before the Gujarat Revenue Tribunal against the decision of the Deputy Collec tor.
The Tribunal agreed in principle with the Deputy Col lector that the Girasdars were entitled to separate allot ment both from the estate held jointly by them and also to separate allotments from the Estates separately by them.
The Tribunal accordingly held that the Girasdars were entitled to three 79 economic units out of the aforesaid cultivable lands jointly held by them and some of them were entitled to separate allotments out of the lands separately held by them but included in the aforesaid area of 1353.34 acres.
The tenants thereupon challenged the decision of the Tribunal before the High Court by means of a writ petition.
The High Court held that in respect of the joint or "Majmu" estate of the concerned Girasdars, they were liable to be treated as one unit and entitled to allotment as an 'A ' class Girasdars and were thus entitled jointly to three economic holdings which came to 60 acres.
The High Court affirmed the decision of the Tribunal in the case of Ali Khokhar, Girasdars who had handed over 15 acres of land of the joint estate and directed that on the basis of joint holding, the Girasdars were entitled to the balance area of 45 acres.
It also upheld the decision of the Tribunal that some of the Girasdars were entitled to separate allotments as 'C ' class Girasdars with respect to their separate hold ings.
Thus the High Court treated the total holding of 1353.34 acres as partly joint and the remaining part com prised separate holdings of some of the Girasdars.
The appellants tenants have appealed to this Court after obtaining special leave.
Dismissing the appeal, this Court, HELD: Judicial notice can be taken that much lesser hardship would be caused to a tenant whose land holding was substantially in excess of the economic holding if a part of that land were taken for allotment to the Girasdars than to a tenant whose excess holding was only marginal if a part of his land is taken for such allotment.
[85F] The Revenue Tribunal in deciding as to whose excess land should be handed over by the tenants has proceeded on a just and equitable basis that it should touch only such tenants whose land substantially exceeds the economic holding, and smaller tenants should not be asked to surrender any part of their holdings.
|
ON: Civil Appeal No. 2732 of 1980.
From the Judgment and Order dated 25.8.1980 of the Andhra Pradesh High Court in C.R.P. No. 7974 of 1979.
155 A.V. Rangam for the Appellant.
C. Setharamaiah, P.K. Rao, V.A. Babu and K.R. Nagaraja for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by Special Leave against the judgment of a learned Single Judge of the Andhra Pradesh High Court in Civil ' Revision Petition No. 7974 of 1979.
The appellant before us is the tenant and the original respond ent is the landlord who is dead and is represented by his legal representatives.
The premises in question are in Eluru Town in Andhra Pradesh.
The appellant is carrying on business in the name and style of Sri Panduranga Engineering Company.
According to the original respondent (who will hereinafter be referred to as "the respondent") he was the owner of the building in which the said premises situated and hence, the owner of the said premises.
The respondent filed an eviction petition against the appellant on the ground of bona fide requirement as he wanted to set up his eldest son in business by start ing a photo studio in the said premises.
The appellant disputed the correctness of the said claim.
The appellant in his counter to the eviction petition, inter alia, alleged that the said property in which the said premises were situated was the absolute endowed property of punyamurthula vari Choultry of which the original respondent was the de facto trustee and that the original respondent had no per sonal or proprietary interest in the said property.
He asserted that the said property belonged to the said Choul try and that the original respondent had no manner of right to evict the appellant on the ground of personal use and occupation.
The appellant asserted that the said premises were not the individual property of the original respondent but trust property.
The respondent filed a rejoinder denying that the said premises were the endowed property or that the said property was a part of punyamurthulavari Choultry.
He asserted that he was the absolute owner of the said property which was purchased by his father under a registered sale deed dated 29th June, 1908.
The respondent submitted that the appellant had denied his title and, as the said denial was not bona fide, the appellant was liable to be evicted also on the ground of denial of title of the landlord.
The Rent Controller passed a decree for eviction on the ground that the bona fide requirement of the landlord respondent was made out and also on the ground that the appellant tenant had denied the title of respondent landlord which 156 denial was not bona fide.
The appellant preferred an appeal against the said decision to the Appellate Authority.
The Appellate Authority, however, dismissed the appeal upholding both the grounds of eviction found by the Rent Controller.
Against this decision, the appellant preferred a revision petition to the High Court.
The High Court in its impugned judgment upheld the order of eviction only on the ground of denial of title which was not a bona fide denial.
It is this decision of the High Court which is challenged before us.
The finding that the denial of title was not bona fide, is essentially a finding of fact and, fairly enough, no dispute has been raised by learned counsel for the appellant in respect of that finding.
It is, however, submitted by him that in order to constitute a ground for eviction the denial of title .must be anterior to the filing of the eviction petition and a denial of title in the course of eviction petition would not constitute a ground for eviction.
He drew our attention to the provisions of section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as "the A.P. Rent Act").
The A.P. Rent Act was enacted with a view to consolidate the law relating to regulation of leasing of buildings, control of rent thereof and prevention of unreasonable eviction of tenants in the State of Andhra Pradesh.
Section 10 of the A.P. Rent Act deals with eviction of tenants.
Sub section (1) of that section prohibits eviction of tenants except in accordance with the provisions of that section or sections 12 and 13 of that Act.
The relevant part of sub section (2) of section 10 of the A.P. Rent Act runs as follows: "(2) A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied; (i) x x x x (ii) x x x x (iii) x x x x (iv) x x x x (v) x x x x (vi) that the tenant has denied the title of the land lord or claimed a right of permanent tenancy and that such denial or claim was not bona fide, the Controller shall make an order directing the tenant to put the landlord in possession of the building and 157 if the controller is not so satisfied he shall make an order rejecting the application.
" It was urged by learned counsel for the appellant that the ground for eviction must come into existence before the application to the Rent Controller for eviction is made and hence, a denial of title which can be relied upon by the landlord respondent for eviction must be.
anterior to the eviction petition.
In support of his contention, Mr. Rangam, learned coun sel for the appellant placed reliance on the decision of a Bench of this Court in Kundan Mal vs Gurudutta, Judgments Today In that case it has been observed that in providing disclaimer as a ground for eviction of a tenant in clause (f) of section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 the Legis lature decided to give effect to the provisions of clause (g) of section 111 of the Transfer of Property Act.
The principle of forfeiture on disclaimer is rounded on the rule that a man cannot approbate and reprobate at the same time.
Since the consequence of applying the rule is very serious, it must be held that the denial of title to has to be clear and in unequivocal terms.
In our view, this decision is hardly of any assistance to learned counsel.
The principle laid down in that case is that, in order to constitute a ground for eviction, the denial of title has to be clear and in unequivocal terms.
In the present case, the facts found show that the denial of title of the respondent by the appellant was in dear and unequivocal terms.
Although it is observed in the said judgment that in providing this ground for eviction, the Legislature of the State of Rajasthan decided to give effect to the provisions of clause (g) of section 111 of the Transfer of Property Act, the judgment nowhere lays down that the denial of title must be anterior to the eviction petition nor does it say that the provisions relating to eviction of tenants under the Transfer of Property Act are applicable to the eviction of tenants under the Rajasthan Rent Act.
In this connection we may point out that it is well settled that the Court hearing a suit or appeal can take into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately.
Moreover, it is signifi cant that in the present case, the denial of the landlord 's title was not the only ground pleaded in support of the claim for eviction but it was also contended by the respond ent that the appellant was liable to be evicted as the respondent wanted the said premises for his personal bona fide use and occupation.
158 It was argued by learned counsel for the appellant that even accepting that there was a denial of title by the appellant and the result would be only that the respondent landlord became entitled to forfeit the lease and in order to be a ground for eviction in a suit that forfeiture would have to precede the suit or petition for eviction.
It was submitted by him that it was not open to a landlord to take advantage of a denial of title by the tenant in the very proceedings for eviction in the course of which the denial was made.
The denial must be anterior to the eviction pro ceedings.
In support of this argument learned counsel placed reliance on the decision in Maharaja of Jeypore vs Rukmani Pattamahdevi, 46 I.A. 109; AIR 1919 P.C. 1.
In our view, this argument also does not stand scrutiny.
In V. Dhanapal Chettiar vs Yesodai Arnrnal, ; a Constitution Bench of this Court comprising seven learned Judges held that in the matter of determination of tenancy the State Rent Acts do not permit a landlord to snap his relationship with the tenant merely by serving on him a notice to quit as is the position under the Transfer of Property Act.
The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant section of the Rent Acts.
Even after the termination of the contractual tenancy the landlord under the definitions of landlord and tenant contained in the Rent Acts, remains a landlord and a tenant remains a tenant because of the express provision made in the enactments that a tenant means 'a person contin uing in possession after the termination of the tenancy in his favour '.
Yet another important feature of the Rent Acts is that either by way of a non obstante clause or by neces sary implication these enactments have done away with the law contained in section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee.
The difference between the position obtaining under the Transfer of Property Act and the Rent Acts in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises determi nation of the lease is necessary because during the continu ance of the lease the landlord cannot recover possession of the premises while under the Rent Acts the landlord becomes entitled to recover possession only on the fulfilment of the conditions laid down in the relevant sections.
He cannot recover possession merely by determining the tenancy.
Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy.
In the case before us, we find that the denial of landlord 's title by the tenant has been expressly made a ground for eviction under section 10(2)(vi) of the A.P. Rent Act which we have already set out earlier.
In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent 159 Act is knocked out.
In our opinion, the argument of learned counsel for the appellant must, therefore, be rejected.
We find, on the other hand, that a number of High Courts have taken the view that even a denial of the landlord 's title by a tenant in a written statement in an eviction petition under the Rent Act concerned furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial has been filed (See: Sada Ram and Others vs Gajjan Shiama, AIR 1970 Punjab & Haryana 511; Shiv Parshad vs Smt.
Shila Rani, AIR 1974 H.P. 22 and Machavaram Venkata Narayana Rao vs Sarvepalli Nara yana Rao Sarada and another, As ob served by the Punjab and Haryana High Court to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for eject ment of the tenant on the ground of forfeiture entailed by the tenant 's denial of his character as a tenant in the written statement.
It was submitted by learned counsel for the appellant that, in any event, the respondent failed to apply for amendment of his plaint and incorporate the ground of denial of title therein as he was bound to do so in order to get relief on that ground which had arisen after the eviction petition was filed.
We agree that normally this would have been so but, in the present case, we find that the Trial Court, namely, the Rent Controller, framed an issue as to whether the tenant 's denial of the landlord 's title to the schedule property including the said premises was bona fide.
The parties went to trial on this clear issue and the appel lant had full knowledge of the ground alleged against him.
It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide.
If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground.
Having failed to raise that contention at that stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition.
No other argument have been advanced before us.
In the result, the appeal fails and is dismissal with costs.
S.K.A. Appeal dis missed.
| IN-Abs | The appellant tenant was in occupation of the premises and carrying on business.
The original respondent who was the owner of the said premises filed an eviction petition against the appellant on the ground of bona fide requirement as he wanted to set up his eldest son in business by start ing a photo studio in the said premises.
The appellant disputed the correctness of the claim and alleged that the property in which the said premises were situated was the absolute endowed property of which the original respondent was the de facto trustee and as such he had no personal or proprietary interest in the said property to evict the appellant on the ground of personal use and occupation.
The respondent asserted that he was the absolute owner of the said premises.
The Rent Controller passed a decree for eviction on the ground that the bona fide requirement of the respondent landlord was made out and also on the ground that the appellant had denied the title of the respondent which denial was not bona fide.
The appellant filed an appeal before the Appellate Authority which was dismissed upholding the order of eviction passed by the Rent Controller.
The appellant preferred a revision petition to the High Court and a Single Judge of the High Court also upheld the order of eviction.
The appellant came in an appeal to this Court by special leave.
It was contended for the appellant that in order to constitute a ground for eviction the denial of title must be anterior to the filing of the eviction petition and a denial of title in the course of eviction petition would not con stitute a ground for eviction.
The contention on behalf of the respondent was that the denial of the landlord 's title was not the only ground pleaded for eviction but it was also contended that the appellant was liable to be evicted as the respondent wanted the said premises for his personal bona fide use and occupation.
Dismissing the appeal by special leave, this Court, 154 HELD: The A.P. Rent Act was enacted with a view to consolidate the law relating to regulation of leasing of buildings, control of rent thereof and prevention of unrea sonable eviction of tenants in the State of Andhra Pradesh.
Section 10 of the A.P. Rent Act deals with eviction of tenants.
Sub Section (1) of that section prohibits eviction of tenants except in accordance with the provisions of that section or sections 12 and 13 of that Act.
[156D E] It is well settled that the Court hearing a suit or appeal can take into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately.
[157F] Kundan Mal vs Gurudutta, Judgments today (1989) 1 S.C. 147, not applicable.
The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant sec tion of the Rent Acts.
Even after the termination of the contractual tenancy the landlord under the definitions of the terms landlord and tenant contained in the Rent Acts, remains a landlord and the tenant remains a tenant, because of the express provision made in the enactments that a tenant means or includes 'a person continuing in possession after the termination of the tenancy in his favour '.
Yet another important feature of the Rent Acts is that either by way of a non obstante clause or by necessary implication these enactments have done away with the law contained in section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee.
[158D E] Maharaja of Jaypore vs Rukmani Pattamahdevi, 46 I.A. 109; A.I.R. [1919] P.C. 1 and V. Dhanapal Chattiar vs Yeso dai Ammal; , , referred to.
Sada Ram and Others vs Gajjan Shiama, A.I.R. 1970 Punjab H.P. 22 and Machavaram Venkate Narayana Rao vs Sarvepalli Narayane Rao Sarada and another, , relied upon.
|
ivil Appeal No. 4003 of 1989.
From the Judgment and Order dated 17.12.
1986 of the Bombay High Court in Civil Revision A. No. 270 of 1983.
R.S. Hegde and N. Ganpathy for the Appellant.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Leave granted.
Heard learned counsel for the appellant.
None appears for the respondents.
The appellant as plaintiff instituted suit No. 32 of 1964 in the Court of Civil Judge (Senior Division), Auranga bad for declaration of title, possession and mesne profits of the suit property.
The respondents 1 and 2 as defendants 1 and 2 resisted the suit mainly on the ground that they were inducted as tenants by Sirajuddin who allegedly ac quired title to the suit property by a deed of gift executed by Hasmuddin in favour of his wife Waliunnissa from whom it was inherited by Sirajuddin.
The trial court decreed the suit holding that Sirajuddin had no right or title and the defendants were trespassers.
In the appeal therefrom by the defendants 1 and 2 before a Division Bench of the Bombay High court the same plea of tenancy was raised and rejected; and it was held that the gift of the suit property by Has muddin in favour of Waliunnissa was not proved.
Their appli cation for leave to appeal therefrom to the Supreme Court was also rejected.
The decree holder moved the execution petition being Special Darkhast No. 20 of 1967 for delivery of possession.
The respondent Nos. 1 & 2 (who were judgment debtor Nos. 1 & 2) objected to the execution on the ground that they were tenants and could not, therefore, be dispossessed in execu tion of the decree of the Civil Court.
The Executing Court rejected this objection and directed the Darkhast to pro ceed.
The defendants ' Civil Appeal No. 264 of 1977 therefrom was also rejected by the High Court.
Thereafter when the aforesaid Darkhast No. 20 of 1967 was set down for proceed ing further, once again the same judgment debtor Nos. 1 & 2 raised the plea of tenancy; and this time the Executing Court raised an issue of tenancy and referred the same to the Tenancy Court for determination.
The appellant moved the High Court in Civil Revision Application No. 270 of 1983 and the High Court observed, inter alia, that the Executing Court was not justified in raising an issue of tenancy, as such an issue did not arise 220 at all the Court having found on evidence that Waliunnissa had no title to the suit property and her son Sirajuddin could not have inherited it as an heir of Waliunnissa, and as such there could be no question of creation of tenancy interest by those who themselves had no title; that the judgment debtors ' earlier objection to execution on the ground of their claim of tenancy was also rejected; and it was not open to the judgment debtor Nos. 1 & 2 to once again raise an issue of tenancy before the Executing Court which ought to have rejected the same contention.
Even so, the High Court having noted that judgment debtor No. 2 had already filed an independent proceeding under the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter re ferred to as 'the Tenancy Act ') for declaration of his tenancy rights in the suit land observed that, if that was so, then the competent authority under the Tenancy Act would have to decide the issue "on its own merits and in accord ance with law irrespective of and regardless of all observa tions, if any, touching upon such a claim of tenancy in the civil proceedings between the parties, viz. Special Suit No. 32 of 1964 and Appeal No. 824 of 1967".
The High Court also observed that the question of tenancy was not directly in issue between the parties in the aforesaid civil proceedings and the judgment debtor No. 2 was not, therefore, debarred from instituting proceedings under the Tenancy Act before the competent authority.
The High Court further observed that as the execution proceedings had been pending since the year 1967 it was expected that the competent authority would decide the proceedings expeditiously.
Accordingly the High Court allowed the revision and set aside the impugned order dated April 28, 1983 passed by the Executing Court in the said Special Darkhast No. 20 of 1967 to the extent it re ferred issue No. 1 to the Tenancy Tahsildar or Mamlatdar under Section 99(a) of the Tenancy Act and the Executing Court was directed to proceed further with the Special Darkhast No. 20 of 1967 in the light of those observations.
In this appeal the appellant assails the Judgment of the High Court on the grounds, inter alia, that the High Court committed a serious error, while setting aside the order of the Executing Court referring the issue of tenancy to the Tahsildar, at the same time allowing the proceedings under the Tenancy Act before the Tahsildar to proceed in the face of the fact that the judgment debtors ' objection on the basis of their tenancy was already rejected by the Executing Court; and in holding that the competent authority should decide the issue of tenancy in accordance with law irrespec tive of and regardless of all observations made in the suit and the appeal.
221 In course of arguments, the learned counsel for the appellant has stated that the competent authority under the Tenancy Act, during the pendency of this special leave petition, has already passed an order in favour of judgment debtor No. 2 and the appellant has also since filed an appeal therefrom before the appellate authority.
In view of this subsequent development we have to examine the legal position qua the Tenancy Act.
The Tenancy Act had amended the law regulating the relations of land holders and tenants of agricultural land and the alienation of such land.
"Tenancy" as defined in section 2(u) of the Tenancy Act, means the relationship of land holder and tenant.
"Tenant" as defined in section 2(v) means an assami shikmi who holde land on lease and includes a person who is deemed to be a tenant under the provisions of the Tenancy Act.
As defined in section 2(r) "protected tenant" means a person who is deemed to be a protected tenant under the provisions of sections 34 to 37.
Under section 31 of the Tenancy Act no interest of a tenant in any land held by him as a tenant shall be liable to be attached or sold in execution of a decree or order of a Civil Court.
Section 32 of the Tenancy Act deals with procedure of taking possession.
Under subsec tion (1) thereof, a tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply to the Tahsildar in writing in the prescribed form for such posses sion.
Under sub section (2) thereof, no land holder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tahsildar, for which he shall apply in the prescribed form.
Under sub section (3), on receipt of an application under sub section (1) or sub section (2) the Tahsildar shall, after holding an enquiry, pass such order thereon as he deems fit.
Section 33 provides that the Tenancy Act is not to affect the rights, privileges of tenant under any other law.
Save as provided in subsec tion (1) of section 30, nothing contained in this Act shall be construed to limit or abridge the rights or privileges of any tenant under any usage or law for the time being in force or arising 'out of any contract, grant, decree or order of a court or otherwise howsoever.
Chapter IV in sections 34 to 46 deals with rights of protected tenants.
Chapter IX of the Tenancy Act in sections 87 to 95 deals with Constitution of Tribunal; Procedure and Powers of Authorities; Appeals etc.
Chapter XI contains the Miscellaneous provisions.
Section 99, dealing with Bar of Jurisdiction provides: "(1) Save as provided in this Act 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, decid ed or dealt with by the Tahsildar, Tribunal or Collector or by the Board of 222 Revenue or Government.
(2) No order of the Tahsildar, Tribu nal of Collector or of the Board of Revenue or Government made.under this Act, shall be questioned in any Civil or Criminal Court.
" Section 104 enjoins the Act to prevail over other enactments and says: "This Act and any rule, order or notification made or issued thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other enactment with respect to matters enumerated in List II in the Seventh Schedule to the Constitution of India or in any instrument having effect by virtue of any such other enactment.
" The Tenancy Act was inserted in the Ninth Schedule to the Constitution at Entry 36.
Article 3 lB of the Constitution of India gives full protection to the Tenancy Act and its provisions in the Schedule against any challenge on the ground of inconsistency with or abridging of any of the rights conferred by Part III of the Constitu tion and it would be so notwithstanding any judgment, decree or order of any court or Tribunal to the contrary.
Though after the decree of the civil court, on the authority of Latchaiah vs Subrahmanyarn, ; , it could be said that when the person who inducted the tenants on the land was found to be a trespasser on the date of the induction, the tenants could not continue to have a right to be on the land against the will of the true owner, yet, taking into consideration the exclusive nature of jurisdiction of the Tenancy authorities under the Tenancy Act, the above provisions, and the fact that the appellant has already preferred an appeal from the order of the compe tent authority, we are not inclined to interfere with the impugned order, as it will now be open to the appellant to place the decisions rendered in her favour by the Civil Courts before the competent authority hearing the appeal and to proceed in accordance with the provisions of the Tenancy Act.
If ultimately the judgment debtor No. 2 is held to have been or not to have been a tenant, it will be open for the appellant to proceed accordingly further in the Special Darkhast No. 20 of 1967 as directed by the High Court.
This appeal is disposed of as above, with no order as to costs.
R.S.S. Appeal dis posed of.
| IN-Abs | The appellant/plaintiff instituted a suit for declara tion of title, possession and mesne profits of the suit property.
The respondents/ defendants 1 and 2 resisted the suit mainly on the ground that they were tenants of one Sirajuddin who had allegedly acquired title to the suit property on the basis of a gift in favour of his wife.
The Trial Court decreed the suit holding that Sirajuddin had no right or title and that the defendants were trespassers.
The High Court rejected the defendants ' appeal and the special leave therefrom was rejected by this Court.
The decree holder moved an Execution Petition for pos session.
The respondents objected to the execution on the ground that they were tenants and could not, therefore, be dispossessed in execution of the decree of the Civil Court.
The objection was rejected and the High Court rejected the appeal therefrom.
Thereafter, when the Execution Petition was set down for proceeding further, once again the respondents raised the plea of tenancy, and this time the Executing Court raised an issue of tenancy and referred the same to the Tenancy Court for determination.
The appellant appealed to the High Court.
The High Court observed that there could be no question of creation of tenancy interest by those who themselves had no title; that the judgment debtors ' earlier objection to execution on the ground of their claim of tenancy was also rejected; and it was not open to the judgment debtors to once again raise an issue of tenancy before the Executing Court which ought to have rejected the same contention.
Even so, the High Court having noted that judgment debtor No. 2 had already filed an independent proceeding under the Hyd erabad Tenancy and Agricultural Lands Act, 1950 for declara tion of his tenancy rights observed that, if that was so, then the Competent 218 Authority under the Tenancy Act would have to decide the issue on its own merits and in accordance with law irrespec tive of and regardless of all observations, if any, touching upon such a claim of tenancy in the civil proceedings be tween the parties.
The High Court also observed that the question of tenancy was not directly in issue between the parties in the civil proceedings and the judgment debtor No. 2 was not debarred from instituting proceedings under the Tenancy Act before the Competent Authority.
The High court allowed the revision petition, set aside the order of the Executing Court referring the issue of tenancy, and directed the Executing Court to proceed further with the Execution Petition.
Before this Court it was contended that the High Court committed a serious error while setting aside the order of the Executing Court referring the issue of tenancy to the Tehsildar, at the same time allowing the proceedings under the Tenancy Act before the Tehsildar proceed in the face of the fact that the judgment debtors ' objection on the basis of their tenancy was already rejected by the Executing Court, and in holding that the competent authority should decide the issue of tenancy in accordance with law irrespec tive of and regardless of all observations made in the suit and the appeal.
Disposing of the appeal, this Court, HELD: (1) The Tenancy Act had amended the law regulating the relations of land holders and tenants of agricultural land and the alienation of such land.
[221B] (2) Though it could he said that when the person who inducted the tenants on the land was found to be a trespass er on the date of the induction, the tenants could not continue to have a right to be on the land against the will of the true owner, yet, taking into consideration the exclu sive nature of jurisdiction of the Tenancy authorities under the Tenancy Act, and the fact that the appellant has already preferred an appeal from the order of the competent authori ty, the Court was not inclined to interfere with the order of the High Court appealed against.
[222D E] Latchaiah vs Subrahmanyam, ; , referred to.
(3) It will now be open to the appellant to place the decisions rendered in her favour by the Civil Courts before the competent authority hearing the appeal and to proceed in accordance with the provisions of the Tenancy Act.
[222F] 219
|
ivil Misc.
Petition No. 20065 of 1988.
In Civil Appeal No. 1702 of 1987.
From the Judgment and Order dated 31.3.1987 of the Allahabad High Court in C.M.W.P. No. 5702 of 1985.
Petitioner in person.
G. Ramaswamy, Additional Solicitor General, C.V.S. Rao and A.K. Srivastava for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Petitioner, a Lt. Colonel in the Indian Army, has filed this application for taking contempt proceeding against the respondents on the allegation that the directions contained in the judgment of this Court, dated 20th April, 1988, in Civil Appeal No. 1702 of 1987 have not been complied with.
This Court in the Civil Appeal found that the petitioner was entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S I and directed: "The appeal is allowed in part and to the extent that the appellant 's medical cate gory shall be taken as being continued to be S I from 1977 and on that basis his promotion al entitlement shall be finalised by the respondents within three months hence." After this Court 's decision, by a letter dated 17th of June, 1988, the respondents informed the petitioner to the following effect: "In this connection, I have been directed to inform you that your case has been reexamined in the light of the judgment of the Supreme Court of India dated 20th April, 1988.
It may kindly be recalled that acting rank of Lt. Col. was granted to you with your original seniority based on the earlier direc tions of the Hon 'ble Court.
Substantive 373 rank of Lt. Col. was also granted to you along with your batch mates.
Consequent to the Supreme Court 's judgment dated th August, 1983, your case for promotion to the rank of A/Colonel was considered on three occasions viz., July 86, April 87, November 87 and rejected on all the three occasions based on your overall performance and merit of your batch.
Your medical category was not taken into consideration as per the laid down proce dure.
Therefore, upgradation of your medical category from Shape 2 to Shape I by the Su preme Court vide their orders dated 20th April, 1988, does not warrant reconsideration of your case for promotion because your medi cal category had not affected your case for promotion to the rank of A/Colonel on any occasion.
You failed to make the grade for promotion not on the basis of your medical category but on the basis of your overall performance and merit of your batch " Upon notice in this miscellaneous proceed ing a counter affidavit was filed on behalf of the respondents stating that the petition was misconceived and he was not entitled to any relief as claimed.
It was stated that the promotional entitlements of the petitioner had been finalised as per the directions of this Court after reexamining the petitioner 's case for promotion within the specified time and as there was no failure to comply with the direc tions, no contempt had been committed.
The counter affidavit proceeded to state: "As per the selection procedure explained in the proceeding paragraphs, the medical category of Lt. Col.
K.D. Gupta was not taken into cognizance.
On receipt of the directions of the Supreme Court dated 20th April, 1988, Lt. Cot.
Gupta 's case for promo tion was reexamined.
Since the Hon 'ble Court had given no such directions to the effect that the case of Lt. Col. Gupta shall be placed before the Selection Board and has only directed that the petitioner 's promotional entitlements be finalised in view of his continued medical category in Shape I since 1977, his case was reexamined and finalised and the same was intimated to him vide our letter dated 17th June, 1988".
The record of consideration for promotion of the petitioner at the various stages by the Board was directed to be produced before the Court.
In a further affidavit on behalf of the respondents, Col. Bharucha stated that: 374 "By letter dated 26.5.
1988, the Military Secretary observed as under: The Officer was considered by No. 3 Selection Board for promotion to the acting rank of Colonel and awarded the following: (a) 'R ' (Unfit) in July 1986 with ACR 84/85 (b) 'R ' (Unfit) in April, 1987 with ACR 6/85 to 2/86.
(c) 'R ' (Unfit) in November, 1987 with ACR 6/86 to 5/87 The Officer has been finally superseded for promotion to the rank of acting Colonel based on his overall profile and his medical catego ry was not taken into account during the above three considerations.
However, the officer has been granted the substantive rank of Lt. Colonel w.e.f. 01 August, 1979 vide Gazette Notification No. 1774/87 dated 19th September, 1987.
Therefore, no further action is required by the department in pursuance of the judgment of this Hon 'ble Court dated 20.4.1988." "I state that the petitioner had addressed a demi official letter dated 02.5.1988 to the Chief of Army Staff in this regard.
The Chief of Army Staff called for the details of the case of the petitioner and the same were placed before the Chief of Army Staff on 03.6.1988.
The Chief of Army Staff after considering the note put up to him, directed the office to intimate the petitioner accordingly.
By letter dated 17.6.1983, the office has informed the petitioner, a copy of which is enclosed herewith.
It is, therefore, humbly submitted that the case of the peti tioner was considered after the judgment of this Hon 'ble Court dated 20th April, 1988 by the Military Secretary of the rank of Lt. General and it was found that it is not neces sary to send him for selection board as he was already found unfit without reference to his medical certificate Shape II".
375 On 24th of January, 1989, this Court made the following order: "After carefully considering the matter, we direct the respondents to reconsid er the case of the appellant for promotion on the basis that his medical category continues to be S I from 1977.
The medical category will be taken into account if the rules for promo tion so require, otherwise not.
The considera tion of promotion will be completed within four weeks from today . " We have been informed that the petitioner 's case was considered on the basis of record and he was not found fit for any promotion.
It is relevant to notice at this stage that the petitioner had come before this Court on an earlier occasion by filing writ petition No. 5302 of 1980 which was disposed of on August 10, 1983 This Court in its judgment indicated: "Shri Abdul Khader, learned counsel for the respondents explained to us that the petition er had been reverted from the rank of Acting Lt. Colonel to Major for three reasons: (i) Reduction in rank had to follow as a matter of course on placement of the petitioner in a lower medical category; (ii) After the latest medical exami nation in 1978, he was not eligible to be considered for promotion for one year; his earlier reduction in rank was, therefore, justified; and (iii) He performed no duty for six months from March 22, 1976 when he was admit ted in the hospital and under the rules, he stood automatically reduced in rank.
We find no substance in any of the reasons mentioned by Shri Abdul Khader.
Shri Khader was unable to draw our attention to any rule, order or circular which prescribed that reduction in rank should inevitably follow on placement of an officer in a lower medical category.
In fact it was conceded by Shri Khader that an officer whose medical classifi cation is downgraded, will not be reduced in rank on that account, but will continue to hold the same rank as 376 before.
We are, therefore, unable to under stand why the petitioner had to be reduced in rank because subsequent to his promotion, his medical classification was downgraded.
The second reason given by Shri Khader that the petitioner would not be eligible to be promot ed for a year after the latest medical exami nation and, therefore, his earlier reduction in rank was justified, is only to be stated as rejected.
When the petitioner was promoted, he satisfied all the requirements including that of medical categorisation, if any.
We find it impossible to agree with the proposition that since he would be ineligible to be promoted today, he could not have been promoted yester day when he satisfied all the requirements.
The reason really pressed before us was the third reason, namely, that the petitioner had not performed any duty for six months and, therefore, he had to be reduced in rank in accordance with paragraph 5 of Special Army Instruction No. 1 dated January 9, 1974.
We do not propose to examine the question whether Special Army Instruction No. 1 authorises a reduction in rank for failure to rejoin duties for more than six months since that appears to be the case of the petitioner also.
" The counter affidavit filed m the writ petition and the submissions of counsel advanced at the hearing thereof clearly indicate that the medical category of the petitioner was connected with his entitlement to promotion.
In fact in the civil appeal itself the petitioner 's claim for promotion to higher ranks, keeping the promotions accorded to his batch mates in view, was challenged on the basis of the petitioner 's lower medical category.
In the affidavits filed in the civil appeal the respondents never took the stand that entitlement to promotion as claimed by the petitioner had nothing to do with the state of his healthphysical and mental.
If that stand had been adopted, this Court would certainly have gone into that question before directing the petitioner 's case to be reexamined by a Special Board of Psychiatrists, on the basis of whose report, the petitioner was allowed to be continued in shape I from 1977 without any break.
It is not disputed that the petitioner had in the second round of the litigation mainly pressed for his promo tion by contending that his medical categorisation was vitiated.
Counsel for the respondents at no stage during the hearing of the appeal advanced the contention that the claim for promotion was not, in any manner, connected with the medical category of the petitioner.
That is why this Court in its judgment stated: 377 " . . on the basis of material available on the record which had been partly dealt with by this Court on the earlier occa sion while disposing of the writ petition, and what we have now found on the basis of the result of examination by the Committee of Experts the appellant has become entitled to limited relief.
Though there was no order reducing him from the rank of acting Lt. Colonel to Major, he was treated to have been so reduced.
Then followed the frequent psychi atric examinations without any real justifica tion.
These have constituted the foundation of the appellant 's grievance.
His recategorisa tion as S II in 1978, in these circumstances, was without justification.
He is, therefore, entitled to a reconsideration of his claim for promotion on the basis of his medical categor isation continuing as S I." "The appellant, inter alia, has asked for entitlement to promotion in view of promo tions earned by his batchmates.
We do not think that would be a safe guide but we do hope and trust that the respondents would consider his case for promotion with an open mind on the basis of his continuity in Shape I." The judgment of this Court did clearly proceed on the foot ing that the lower medical categorisation prejudiced the petitioner in the matter of obtaining appropriate promo tions.
For the first time, the respondents have taken the stand in the contempt proceeding that the lower categorisa tion has nothing to do with the refusal to accord promotion to the petitioner.
In the circumstances indicated above, the plea now advanced cannot be accepted.
In fact, Mr. Ramaswa my, Additional Solicitor General, appearing for the respond ents being cognizant of this situation stated to us during the hearing of this application that the petitioner has justification to feel aggrieved.
The respondents have maintained that the petitioner has not served in the appropriate grades for the requisite period and has not possessed the necessary experience and training and consequential assessment of ability which are a precondition for promotion.
The defence services have their own peculiarities and special requirements.
The considera tions which apply to other government servants in the matter of promotion cannot as a matter of course be.applied to defence personnel of the petitioner 's category and rank.
Requisite experience, consequent exposer and appropriate review are indispensable for 378 according promotion and the petitioner, therefore, cannot be given promotions as claimed by him on the basis that his batch mates have earned such promotions.
Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not avail able.
We find force in the stand of the respondents and do not accept the petitioner 's contention that he can be grant ed promotion to the higher ranks as claimed by him by adopt ing the promotions obtained by his batch mates as the meas ure.
In the appellate judgment, this Court said: "He has also indicated in paragraph 8 of that petition that he is prepared to be released from service after his promotional entitlements are finalised and is given his dues on such basis as may be determined.
The appellant has claimed compensation which we see no basis to grant".
The petitioner also told us in course of the hearing of this case that even if he is not accorded promotions as claimed by him, he should suitably be compensated and thereafter he should be released from the Army on the basis of voluntary retirement.
The respondents have also indicated that his retirement is being processed separately.
The question for consideration now is as to how the petitioner has to be compensated and what should be its measure.
The petitioner has, of course, advanced tall claims by contending that he has suffered physical and mental torture, loss of reputation and of social acceptance and financial loss.
What promotions the petitioner would other wise have earned would be a matter of speculation and cannot be ascertained at this stage.
for lack of appropriate deci sive criteria.
His grievance that he suffered in dignity and humiliation as a result of being looked down upon by his batch mates, friends and relatives has perhaps been suffi ciently met by the appellate judgment which has declared that his lower medical categorisation was unjustified and the petitioner continued to be Shape I without break from 1977.
The defence personnel have peculiar incidence of serv ice.
Life 's course does not run smoothly for everyone.
In the present proceeding which is for contempt, we do not think that we can award compensation under every head of claim.
Some of factors relevant for such purpose are the duration of time for which the petitioner was subjected to various medical checks and hospitalisation, and the conse quent suffering which he underwent, the loss of promotional prospects 379 and the fact that he would now be obliged to request to be released from service pre maturely.
We are of the view that a total compensation of Rs. four lakhs would meet the ends of justice.
This would obviously mean that the petitioner would not be entitled to any other claim on these heads but we make it clear that he would be entitled to all other service benefits which an officer of the Lt. Colonel 's rank, which the petitioner admittedly holds, would be entitled to.
This judgment should serve the petitioner in vindication of his stand and to dispel clouds cast on his physical and mental health by the purported lower medical characterisa tion and obviously in the event of his being considered for reemployment after retirement his suitability would be considered on the basis of his service records and the judgment of this Court.
We direct that the amount of Rs. four lakhs be paid to the petitioner within two months and the petitioner may be released from the defence service m accordance with any decision that may be taken on his request for such release.
The contempt proceeding is disposed of with these direc tions and no order as to costs.
G.N. Petition dis posed of.
| IN-Abs | The appellant has filed a contempt petition against the Respondents, alleging that the directions dated 20.4.1988 of this Court, have not been complied with.
The Respondents were directed to reconsider the case of the appellant for promotion on the basis that his medical category continues to be S I from 1977, and that the medical category would be taken into account if the rules for promo tion so require; otherwise not.
It was also directed that the consideration of promotion would be completed within four weeks; (See 1988(3) SCR 646).
On behalf of the respondents, it was stated that the promotional entitlements of the petitioner had been fina lised as per the directions of the Court, after re examining the petitioner 's case for promotion within the specified time and since there was no failure to comply with the directions, no contempt had been committed.
It was also submitted that the petitioner 's medical categorisation has nothing to do with the refusal to promote him.
Disposing of the petition, HELD: 1.
The judgment of this Court did clearly proceed on the footing that the lower medical categorisation preju diced the petitioner in the matter of obtaining appropriate promotions.
For the first time, the respondents have taken the stand in the contempt proceeding that the lower categor isation has nothing to do with the refusal to accord promo tion to the petitioner.
The plea now advanced cannot there fore be accepted.
[377E F] 371 2.
The .defence services have their own peculiarities and special requirements.
The considerations which apply to other government servants in the matter of promotion cannot as a matter of course be applied to defence personnel of the petitioner 's category and rank.
Requisite experience, conse quent exposer and appropriate review are indispensable for according promotion, and the petitioner, therefore cannot be given promotions as claimed by him on the basis that his batch mates have earned such promotions.
Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not avail able.
[377G H; 378A B] 3.1 As regards compensation, the petitioner advanced tail claims by contending that he has suffered physical and mental torture, loss of reputation and of social acceptance and financial loss.
What promotions the petitioner would otherwise have earned would be a matter of speculation and cannot be ascertained at this stage for lack of appropriate decisive criteria.
His grievance that he suffered in dignity and humiliation as a result of being looked down upon by his batch mates, friends and relatives, has perhaps been suffi ciently met by the appellate judgment which has declared that his lower medical categorisation was unjustified and the petitioner continued to be Shape I without break from 1977.
[368E G] 3.2 The defence personnel have peculiar incidence of service.
Life 's course does not run smoothly for everyone.
Some relevant factors to be considered for award of compen sation are the duration of time for which the petitioner was subjected to various medical checks and hospitalisation, and the consequent suffering which he underwent, the loss of promotional prospects and the fact that he would now be obliged to request to be released from service prematurely.
A total compensation of RS.4 lakhs would meet the ends of justice.
The petitioner would not be entitled to any other claim on these heads, but he would be entitled to all other service benefits which an officer of the Lt. Colonel 's rank would be entitled to hold.
[378G H; 379A B] Major K.D. Gupta vs Union of India, and Lt. Col. K.D. Gupta, vs Union of India, ; referred to.
This Court directed that the amount of Rs.4 lakhs be paid to the petitioner within 2 months and the petitioner may be released from the defence service in accordance with any decision that might be taken on his request for such release.
[379C D] 372
|
ivil Appeal No. 1443 of 1972.
From the Judgment and Order dated 30.11.1971 of the Allahabad High Court in Special Appeal No. 491 of 1963.
213 Uma Dutt for the Appellants.
Ms. Rachna Gupta for Bagga for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
The appellants before us are the heirs and legal representatives of one Wali Mohammad.
Respondents Nos. 1 and 2 are the sons of one Ram Kumar.
Respondent No. 3 is the Board of Revenue, Allahabad.
On May 22, 1928 Wali Mohammad executed a usufructuary mortgage in favour of Ram Kumar and Shiv Kumar in respect of two plots.
According to Wali Mohammad, he redeemed the said mortgage and took possession of the said plots in the begin ning of Fasli Year 1354 (period from 1.7. 1946 to 30.6.1947) and continued to be in possession thereof.
On December 28, 1953 Ram Kumar moved an application under section 232 of the U.P., Zamindari Abolition and Land Reforms Act, 1950 (here inafter referred to as "the said Act"), for getting posses sion of the said two plots from Wali Mohammad On the ground that his name was recorded in the Khasra and Khatauni of 1356 Fasli and, therefore, he was the Adhivasi of the said plots.
This was contested by Wali Mohammad.
The Sub Divi sional Officer found that Wali Mohammad was in possession of the said plots since the redemption of the said mortgage and dismissed the suit of Ram Kumar.
That decision was confirmed by the Additional Commissioner on appeal holding that the entry in the Khasra relied on by Ram Kumar was fictitious.
On second appeal, the Board of Revenue set aside the deci sion of the Sub Divisional Officer and the Additional Com missioner and held that the entry in the Khasra to the effect that Ram Kumar was the occupant of the said plots in Khasra of Fasli Year 1356 was sufficient to confer Adhivasi rights on him and no further inquiry was called for to ascertain whether the said entry was correct or wrong.
Wali Mohammad filed a writ petition in the Allahabad High Court, challenging the aforesaid decision of the Board of Revenue.
The learned Single Judge of the High Court, after hearing the arguments in the said writ petition, allowed the same and quashed the order of the Board of Revenue on the ground that the Board of Revenue had committed an error of juris diction.
Ram Kumar preferred a Letters Patent Appeal against the said decision of the learned Single Judge.
The said appeal was allowed by a Division Bench of the said High Court.
The Division Bench set aside the order of the learned Single Judge, holding that the entry in the revenue records was enough to 214 confer rights of Adhivasi under section 20(b) of the said Act.
That decision is challenged before us in this appeal by Special Leave granted on the application of Wali Mohammad.
Wali Mohammad died during the pendency of the present appeal and his heirs and legal representatives have been brought on record in his place.
The relevant provision which falls for consideration is clause (i) of sub section (b) Of section 20 of the said Act.
The relevant part of section 20 runs as follows: "20.
Every person who (a) x x x x x (b) was recorded as occupant, (i) of any land other than grove land or land to which section 16 applies or land referred to in the proviso to sub section (3) of sec tion 27 of the U.P. Tenancy (Amendment) Act, 1947 in the Khasra or Khatauni of 1356 F. pre pared under sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901 (U.P. Act III of 1901), or who was on the date immediately preceding the date of vesting entitled to retain possession thereof under clause (c) of sub section (1) of section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act X of 1947), or (ii) x x x x x shall, unless he has become a bhumidhar of the land under sub section (2) of section 18 or an assami under clause (h) of section 21, be called Adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof.
" The said section deals with the question as to who is entitled to take or retain possession of the land in ques tion.
The plain language of the aforesaid clause (i) of sub section (b) of section 20 of the said Act suggests that this question has to be determined on the basis of the entry in the Khasra or Khatauni of 1356 Fasli Year prepared under sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901.
An analysis of the said section shows that under sub section (b) of section 20 the entry in the Khasra or Khatauni of the Fasli Year 1356 shall determine the question as to the person who is entitled to take or 215 retain possession of the land.
It is, of course, true that if the entry is fictitious or is found to have been made surreptitiously then it can have no legal effect as it can be regarded as no entry in law but merely because an entry is made incorrectly that would not lead to the conclusion that it ceases to be an entry.
It is possible that the said entry may be set aside in appropriate proceedings but once the entry is in existence in the Khasra or Khatauni of Fasli Year 1356, that would govern the question as to who is entitled to take or retain possession of the land to which the entry relates.
It was submitted by learned counsel for the appellants that if the entry was not correct, it could not be regarded as an entry made according to law at all and the right to take or retain possession of the land could not be deter mined on the basis of an incorrect entry.
He placed reliance on the decision of this Court in Bachan and another vs Kankar and others; , In that judgment the nature of the entries in Khasra or Khatauni is discussed and it is also discussed as to how this entry should be made.
This Court held that entries which are not genuine cannot confer Adhivasi rights.
It has been observed that an entry under section 20(b) of the said Act, in order to enable a person to obtain Adhivasi rights, must be an entry under the provisions of law and entries which are not genuine cannot confer Adhivasi rights.
In that judgment it has been stated that the High Court was wrong when it held that though the entry was incorrect, it could not be said to be fictitious.
That observation, however, has to be understood in the context of what follows, namely, that an entry which is incorrectly introduced into t, he records by reason of iII will or hostility is not only shorn of authenticity but also becomes utterly useless without any lawful basis.
This judgment, in our view, does not lay down that all incorrect entries are fictitious but only lays down that a wrong entry or incorrect entry which has been made by reason of iII will or hostility cannot confer any right under section 20(b) of the said Act.
This decision is clarified by a subsequent judgment of this Court in Vishwa Vijai Bharti vs Fakhrul Hasan and others, , where it has been held as follows: "It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry into their correct ness.
But the presumption of correctness can apply only to genuine, not forged or fraudu lent, entries.
The distinction may be fine but it is real.
The distinction is that one cannot challenge the correctness of what the entry in the 216 revenue record states but the entry is open to the attack that it was made fradulently or surreptitiously.
Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.
" Coming to the present case, although the Additional Commissioner has held that the entry was fictitious, that conclusion seems to have arrived at merely on the basis that Wali Mohammad was in possession in Fasli Year in question, with the result that the entry in the Khasra or Khatauni showing Ram Kumar as the occupant could not be correct.
There is nothing to show that the said entry was fictitious or was made fradulently or was incorrectly introduced by reason of iII will or hostility towards Wali Mohammad.
In these circumstances, the entry may not be correct but it could not be said to be fictitious or regarded as non est.
Merely because the entry might be incorrect, that would not make any difference to the determination of the question as to who is entitled to be declared to be the Adhivasi of the land under the provisions of section 20(b) of the said Act.
We agree with the conclusion and reasoning of the High Court.
In the result, the appeal fails and is dismissed with costs.
Y. Lal Appeal dis missed.
| IN-Abs | One Wali Mohammad (since deceased) executed on May 22, 1928 an usufructuary mortgage in favour of Ram Kumar and Shiv Kumar in respect of two plots.
According to Wali Moham mad he redeemed the said mortgage and took possession of the plots in the beginning of Fasli year 1354 (period from 1.7.1946 to 30.6.1947) and continued in possession thereof.
On 28th December 1953, Ram Kumar moved an application under Section 232 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 for obtaining possession of the two plots in question from Wali Mohammad on the ground that his name was recorded in the Khasra and Khatauni of 1356 Fasli and therefore he was the Adhivasi of the said plots.
Wali Moham mad contested the application before the Sub Divisional Officer.
The Sub Divisional Officer dismissed the suit finding that Wali Mohammad was in possession of the plots.
This decision was affirmed by the Addl.
Commissioner, who held that the entry in the Khasra relied on by Ram Kumar was a fictitious one.
On second appeal the Board of Revenue set aside the orders of the Sub Divisional Officer as also of the Addl.
Commissioner.
The Board held that the entry in the Khasra to the effect that Ram Kumar was the occupant of the two plots in Fasli year 1356 was sufficient to confer Adhiv asi rights.
Thereupon Wali Mohammad filed a Writ Petition in the High Court challenging the decision of the Board of Revenue.
The Single Judge who heard the Writ Petition al lowed the Writ Petition holding that the Board had committed an error of jurisdiction and consequently quashed the orders of the Board.
Ram Kumar preferred a Letter Patent appeal against the order of the Single Judge.
The Division Bench allowed the appeal and set aside the order passed by the Single Judge.
The Division Bench took the view that the entry in the revenue records was enough to confer rights of Adhivasi under Section 20(b) of the Act.
212 Being aggrieved by the said decision of the High Court the legal representatives of Wali Mohammad who has since died has filed this appeal, after obtaining Special Leave.
Dismissing the appeal, this Court, HELD: Section 20(b) of the Act deals with the question as to who is entitled to take or retain possession of the land in question.
The plain language of clause (1) of Sub Section (b) of Section 20 of the Act, suggests that this question has to be determined on the basis of the entry in the Khasra or Khatauni of the Fasli year 1356.
An analysis of the said section shows that Under sub section (b) of section 20, the entry in the Khasra of Khatauni of the Fasli year 1356 shall determine the question as to the person who is entitled to take or retain possession of the land.
If the entry is fictitious or is found to have been made surrepti tiously then it can have no legal effect as it can be re garded as no entry in law, but merely because the entry is made incorrectly that would not lead to the conclusion that it ceases to be an entry.
It is possible that the said entry may be set aside in appropriate proceedings.
[214G H; 215A] In the present case, although the Addl.
Commissioner has held that the entry was fictitious, the conclusion seems to have been arrived at merely on the basis that Wali Mohammad was in possession in Fasli year 1356, with the result that the entry in the Khasra or Khatauni showing Ram Kumar as the occupant could not be correct.
There is nothing to show that the said entry was fictitious or was made fraudulently or was in correctly introduced by reason of iII will or hostil ity towards Wali Mohammad.
In these circumstances, the entry may not be correct but it could not be said to be fictitious or regarded as non est.
Merely because the entry might be incorrect, that would not make any difference to the deter mination of the question as to who is entitled to be de clared to be the Adhivasi of the land under the provisions of Section 20(b) of the said Act.
[216B D] Bachan & Anr.
vs Kankar & Ors.
, ; and Vishwa Vijai Bharti vs Fakhrul Hasan & Ors., [1976] Suppl.
SCR 519, referred to
|
tion (C) No. 9960 61 of 1985.
163 (Under Article 32 of the Constitution of India).
Gobind Mukhoty and S.K. Verma for the Petitioners.
Dr. Shankar Ghosh and Prabir Choudhary for the Respondents.
The Judgment of the Court was delivered by OZA, J.
This Writ Petition was filed challenging the action taken by the respondent the State Government of Assam under the Asom Rashtrabhasha Prachar Samiti (Taking over management and Control) Act 1984 (Assam Act No. XXIII of 1984) which was an Act enacted by the Legislative Assembly of Assam and received the assent by the Governor of Assam and published in the Assam Gazette Extraordinary dated 15.12.84.
It also challenged the orders contained in Notifi cation Nos.
EPG 57/84/25/A EPG 57/84/30 A and EPG 57/84/ 51 A dated 1.10.84, 10.11.84 and 19.3.85 respectively issued by the Education (Personal) Department of the Government of Assam.
According to the petitioner in 1929 Lahore Congress under the leadership of Mahatma Gandhi adopted a resolution for the spread of Hindi as the common language for the whole of India with a view to promote national integrity and in pursuance of this resolution institutions for the spread and prachar of Hindi in the non Hindi areas were established.
First of this kind was established in Madras City in the name of Dakshin Bharat Hindi Prachar Samiti then in Wardha for the development and spread of Hindi.
in the rest of India.
Late Baba Raghab Das a devoted disciple of Gandhiji undertook the task of spreading Hindi in the North Eastern part of India and in 1934 eminent local leaders of this region Late Tarun Ram Phukan, Late Nabin Chandra Bardaloi, Late Gopinath Bardaloi, Late Krishna Nath Sarma and others joined Baba Raghab Das and the first institution named Asom Hindi Prachar Samiti was formed on 3.11.38 at Gauhati with late Gopinath Bardaloi the first Chief Minister of Assam under the 1935 Act as its President.
In 1948 Asom Hindi Prachar Samiti was renamed as Assam Rashtrabhasha Prachar Samiti with its head Office at Gauhati.
It is this Assam Rashtrabhasha Prachar Samiti, the petitioner No. 1, which is a registered society under the with its registered office at Hedayatpur, Gauhati 3 District Kamrup.
The registration No. of the Samiti which is 18th of 1951 and according to the petitioner this Society has a membership of about 164 22,000 persons scattered all over the States and Union Territories of North Eastern part of India.
The Samiti has district committees under its control.
The Samiti also has two affiliated bodies namely Manipur Hindi Prachar Sabha, Imphal and the Asom Rashtrabhasha Sewak Sangh.
This Samiti has a sole constitution known as Bidhan which is also regis tered with the Registrar of Societies Assam at Gauhati.
This Samiti is a literary body and under Section 4 of the Bidban the objects of the Samiti have been stated thus: (a) To propogate and promote Hindi as a na tional language in Assam, Meghalaya, Mizoram, Nagaland, Manipur, Tripura and Arunachal Pradesh as provided in Article 351 of the Constitution of India.
(b) to promote efficient, educated, qualified workers of good character to hold out the Indian ideal before the future generations (c) to serve the State languages and litera tures together with the promotion of Hindi.
(d) to serve the tribal language and culture through the medium of Hindi language and to create kindness with the tribal brethren.
(e) to undertake a programme of literacy amongst the illiterate.
This Samiti according to the petitioners discharge its functions including the holding of examinations in Hindi in the State of Assam, Meghalaya and the Union Territory (as they were then) of Mizoram and also production and publica tion of prescribed text books in Hindi for Primary Schools, High School, Higher Secondary schools and the Colleges upto the degree standard.
The Samiti holds different examinations twice in a year in which about 60,000 candidates at the time of the filing of this petition on an average used to appear.
The successful candidates are issued certificates which are recognised by the Government of India and the Government of Assam and various All India Organisation.
The Samiti also imparts training and teaching in Hindi through a large number of Vidyalayas numbering about 400 and through Prama nita Pracharaks i.e. authorised propagators numbering about 5000 scattered all over in the North Eastern part of India.
It is also alleged that the Samiti from the very inception had acquired assets 165 and properties and the assets and properties at the time of the filing of the petition were stated to be: 1.
Buildings Rs.70,64,000.00 2.
Printing Press with Machines Rs.15,00,000.00 and accessories 3.
Furniture Fixture Rs. 3,00,000.00 4.
Two portraits Rs. 10,000.00 5.
Vehicle Rs. 35,000.00 6.
Typewriting Schools including Rs. 60,000.00 machines and furnitures 7.
Iron Safe Rs. 30,000.00 8.
Compound fixing (leasedias) Rs. 30,000.00 9.
Bank Deposits Rs. 3,43,000.00 10.
Security Deposit with Ashok Rs. 30,000.00 Paper Mill Ltd. 11.
Shares of Assam Coop apex Rs. 5,000.00 Bank Ltd. 12.
Stock of printing papers Rs. 50,000.00 and stationaries 13.
Stock of text books Rs.22,00,000.00 14.
articles including Rs.50,00,000.00 utensils 15.
Building Materials Rs.25,00,000.00 16.
Central Library Rs.10,00,000.00 17.
Value of the old books Rs. 3,00,000.00 TOTAL Rs. 124,42,000.00 According to the Bidhan of the Samiti the management and administration of the Samiti is run by elected bodies namely Byabasthapika Sabha (meaning the General Council) and the Karyapalika (meaning the Executive Committee), the term of each body is 5 years from the date of holding of their first meeting.
Accordingly the term of 166 the Byabasthapika Sabha was to expire on 9.8.87 (five years from the date of holding the first meeting) which was held on 10.8.82 and the term of Karyapalika was to expire on 18.8.87 (five years from the date of the first meeting which was 19.8.82).
That under Section 10 of the Bidhan the Karyapalika of the Samiti consisted of 17 members with the following of fice bearers: (i) Adhyakasha (President) (ii) Karyadhakshya (Working President) (iii) Upadhakshya (Vice President) (iv) Mantri (General Secretary) (v) Koshadhyaksha (Treasurer) (vi) Six members elected by the Byabasthapika Sabha (vii) The Education Secretary to the Government of Assam or a member nominated by him.
(viii) Five members of the Byabasthapika Sabha nominated by the Adhyaksha, and (ix) Pradhan Sachib (Chief Secretary) and other departmental secretaries of the Samiti.
According to the petitioner the first meeting of this last Byabasthapika Sabha was held on 10.8.82 wherein peti tioner No. 2 was elected unanimously as its Mantri (General Secretary) besides other office bearers.
According to the Bidhan of the Samiti as it stood in 1982, the Chief Minister of Assam was the Ex Officio Adhyaksha of the Samiti but as at the time of holding of the first meeting the State of Assam was under President 's rule, consequently the ' office of Adhyaksha of the Samiti remained vacant as then there was no Chief Minister of Assam.
Petitioner No. 2 and other office bearers of the Karyapalika of the Samiti held the first meeting of the Karyapalika on 19.8.82 and the Karyapa lika was running the day to day administration and was managing the affairs of the Samiti according to the Peti tioner very efficiently and diligently.
It is alleged that in early part of 1983 President 's rule was lifted from Assam and a Ministry headed by Shri Hiteswar Saikia was installed in power in Assam.
But in the meantime the Samiti in its meeting of the Byabasthapika Sabha held on 17.7.83 passed a resolution for 167 amendment of the provisions of the Bidhan in the following manner: "That the words contained in Section 16 at page 21 of the Bidhan to the effect that the Chief Minister of Assam shall be the Ex offi cio Adhyaksha of the Samiti be deleted.
All other such references contained in the Bidhan be also accordingly amended.
This amendment shall come into force from today the 17.7.83.
" That the said resolution was adopted in full compliance of Section 30 of the Bidhan and all members present in the meeting except one supported the resolution.
This resolution amending Section 16 of the Bidhan was passed considering the difficulties that arose in the working of the Samiti by keeping Chief Minister as the Adhyaksha of the Samiti.
According to the petitioner this amendment was sought neces sary to keep the Samiti away from politics.
According to the petitioner this amendment was introduced in accordance with Section 30 of the Constitution (Bidban) of the Samiti which provided: "The Constitution of the Samiti may be amended as follows: (Ka) The proposal for amendment must reach the head office within the month of January every year.
(Kha) The amendment proposals will be sent for information to all the members of the Byabas thapika Sabha from the Office.
(Ga) The amendment will be carried out by the 2/3rd members present." According to the petitioner the procedure stated in this Section of the Constitution was followed and as only one person opposed the Constitution amendment was passed.
It is further alleged by the petitioner that as this amendment was passed on 17.7.83 from this date the Chief Minister ceased to be the Ex officio President and since then according to the petitioner he had nothing to do with the Samiti.
The post of Ex officio President was abolished.
According to the petitioner that Respondent No. 4 after passing of this amendment of the Bidhan on political consid eration passed an order dated 7.7.84 contained in the noti fication No. CMS 202/79/319 168 dated 7.7.84 whereby respondent No. 4 purportedly to act as the Ex Officio Adhyaksha of the Samiti declared as a state of emergency in the Samiti in exercise of his powers con ferred under section 16 (Gha) of the Bidban and dissolved the existing Karyapalika of the Samiti with immediate effect and also constituted an ad hoc body with himself as Chairman and five others as members to manage the affairs of the Samiti.
The petitioner has also filed a copy of this order.
It is alleged by the petitioner that under this order peti tioners Nos. 1 and 2 were asked to hand over the charges of the management of the Samiti to the Ad hoc Committee.
There upon the petitioner filed a suit being a Title Suit No. 110 of 1984 in the Court of the Assistant District Judge No. 1, Gauhati for a declaration that the order dated 7.7.84 passed by Respondent No. 4 declaring a state of emergency and by which he dissolved the existing Karyapalika of the Samiti and constituted an Ad hoc Committee, as void, illegal and without jurisdiction and unenforceable against the petition er Society.
As on the day on which he passed the Order he was no longer the Adhyaksha as the Constitution has been amended before that day.
Petitioner also prayed for perma nent injunction restraining the respondent No. 4 and other members of the Ad hoc committee, their agents and servants from giving effect to the order.
The petitioners also filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure for the issuance of a temporary injunction.
It is alleged that the Assistant District Judge No. 1, Gauhati by his order dated 19.7.84 issued a notice to the defendants of that suit to show cause as to why a temporary injunction as prayed for by the petitioners should not be granted and fixed 13.8.84 as the date for showing cause.
The defendants filed their objection on 21.8.84 and the case was fixed on 25.10.84 for consideration of the question of issuing a temporary injunction.
When the matter was pending in the Court for considera tion of the question of temporary injunction the Governor of Assam purported to act under Clause 1 of Article 230 of the Constitution of India promulgated an Ordinance called the Asom Rashtrabhasha Prachar Samiti (taking over of Management and Control) Ordinance, 1984 and Section 1 sub clause (ii) of this Ordinance provided that the Ordinance shall extend to all areas over which the Asom Rashtrabhasha Prachar Samiti had its jurisdiction immediately before the commence ment of the Ordinance by a Notification No. EPG 57/84/16 issued under the signatures of Respondent No. 3 the Governor of Assam fixed Ist of October, 1984 as the appointed day on which the aforesaid Ordinance 169 came into force and Section 3 of the said Ordinance provided that the Government may constitute a Board for the purposes of taking over the management and control of the Samiti consisting of not more than 9 members.
According to the petitioners this Ordinance was issued at the instance of the Chief Minister which was unnecessary, unwarranted and un called for and was against the law laid down by the Consti tution Bench of this Court.
Notification was issued on 7.7.84, Preamble of which reads as under: "Whereas the Chief Minister of Assam in his capacity as Ex officio Adhyakasha of the Asom R.B.P. Samiti is satisfied that deterioration of the financial condition of the Samiti has resulted in financial deadlock and the group rivalry among the members, confrontation between the management and the employees culminating in institution of law suits, hunger strikes by employees and chaos in administration matters have resulted in admin istration deadlock.
" The petitioners contended that what is stated in the Pream ble is incorrect and misconceived.
The financial condition of the Samiti had never deteriorated nor there were any adverse remark by any auditor in the regular auditing of the accounts of the Samiti.
It is alleged that even other facts leading to the taking over are wholly incorrect and mala cious.
Thereafter in 1984 Assam Legislative Assembly passed an Act i.e. Act No. XXIII of 1984 replacing the Ordinance and this Act received the assent of the Governor of Assam on 12.8.84 and was published in the Gazette Extraordinary dated 15.12.84.
Under Section 3 of this Act the Assam Rashtrabha sha Prachar Samiti (taking over of Management and Control) Act, 1984, the number of members constituting the Board was raised to 13.
By the provisions of this Act virtually the Samiti which was a public body constituted by its members having elected Byabasthapika Sabha and Karyapalika were substituted by Board appointed by the Government and all the functions, properties and affairs of the Samiti were taken over by this Board and it is this action taken under the Ordinance and the Act and ultimately the Act which is the subject matter of challenge in this Writ Petition.
As this infringes the fundamental rights of the members who consti tute the Samiti their rights under Article 19(1)(c) and by this process of taking over the Samiti has been deprived of its assets and properties and even as alleged by the peti tioners Government has gone to the 170 extent of changing the name of the institution also.
It is alleged that after the passing of this Act the notification under section 3 was issued which was EPG 57/34/75 dated 1.10.84 by which the Rashtrabhasha Prachar Board was consti tuted with respondents 11, 12 and 13 as members and by this order all persons except respondent No. 12 who was not even the member of the Rashtrabhasha Prachar Samiti were nominat ed.
The petitioners also alleged that in fact all this happened because when the then Chief Minister of Assam learnt about the amendment of the Constitution carried out by Byabasthapika Sabha learnt that under the unamended Bidhan was the Ex officio Adhyaksha has been dropped by the amendment of the Constitution that with mala fide intention he started taking action in a manner in which he could retain the control of the institution.
First,he invoked the Constitution itself by superseding the body by invoking emergency provisions but when that was challenged by a suit, an ordinance was brought taking over the Samiti as a whole specially replacing the Byabasthapika Sabha and the Karyapa lika and later the ordinance was replaced by the Act and it was contended that this all was the mala fide action of the then Chief Minister of Assam and it is further contended that unfortunately even after the new elections and a new Government comes in power in Assam the Act which as its title discloses was a temporary measure was continued at perpetuity, and the Samiti is being run by nominated members and the rights of the members of the Samiti under Article 19 has not only been restricted but has been taken away.
It was also contended that the history of the Samiti and the manner in which it was formed and the persons who initially consti tuted the Samiti is of significance because its history and historical background touches the ideological and sentimen tal aspirations of the people of Assam and the infringement of this right to form an association under Article 19(1)(c) is challenged as mala fide action motivated with selfish political motivation.
It is also contended that by the operation of this Act those who have nothing to do with the Samiti or its ideals and who were not even the members of the Samiti have been nominated as the members of the Board and they are supposed to run the affairs of the Samiti whereas those who have contributed their heart and soul for the ideals of the Samiti and who have put in long years of hard labour to build up are deprived of their right to manage the affairs of the Samiti.
It is also contended that even the assets and the properties of the Rashtrabhasha Prachar Samiti is being mismanaged by nominated board as it has no moral attachment to the ideals nor aptitude with the work of the Samiti and the assets are being neutralized.
171 It was also contended that the heading of the Act as it disclosed "An Act to provide for temporary transfer of the management and control of the affairs of A.R.B.P.S. from the Byabasthapika Sabha, Karyapalika and other holders of office of the Assam Rashtrabhasha Prachar Samiti to a Board".
This heading of the Act, according to the learned counsel, is just an eye wash as this heading shows that a temporary arrangement was made because the management of the Samiti was not in proper hands and the temporary arrangement was only to improve the functioning of the society and ultimate ly it has to be handed over back to the elected body consti tuted under the Bidhan (constitution of the society regis tered under the ) but in fact after the passing of this Act in 1984 till today the re spondent State had no point of time, even thought of restor ing the body to the normal functioning after holding elec tion in accordance with the constitution of the Society.
In fact even during the hearing of this Writ Petition the counsel appearing for the State was asked to intimate the Court if even now the State knowing that this was a tempo rary measure is intending to restore the society back with elected functionaries under the constitution.
It was indi cated that the Government of Assam has no intentions even now to end this temporary arrangement of the Samiti.
It is plain that although the Act talks of a temporary measure but it is only an eye wash and by this process the State Govern ment intends to deprive the members of the society their rights under Article 19(1)(c) for all times to come.
In the Act there is no provision providing for restoration of the elected bodies which shows that the use of phrase 'tempo rary ' was just an eye wash.
Learned counsel appearing for the State attempted to justify the action however denying that it was not because the constitution was amended and therefore the Chief Minis ter was annoyed but attempted to suggest that there was some mismanagement of the society but in any event there was no logic which could be suggested for such a permanent taking over of the society registered discharging functions which could not be said to be not ideal and which had started working on some ideals which could not be said 'not for public good '.
It is clear that now as the Act of 1984 and a Board nominated or appointed under Section 3 of the Act is con trolling the affairs of the Society it is not necessary to go into the orders passed by the Chief Minister invoking the emergency powers although the facts which were alleged clearly go to show that except that constitution was amended and the Chief Minister was dropped from the place which he used to enjoy before the amendment of the Bidhan (Constitu tion).
There was 172 nothing serious and the Chief Minister who in fact had ceased to be an Adhyaksha because of the constitutional amendment took that action only to stick to the position and the subsequent acts even if mala fide action is not clearly established, as was alleged, we have no hesitation in ob serving that there appears to be no .justification as it is clear that if the Act was enacted to meet a temporary con tingency for taking over of the management temporarily it could have provided for the restoration of the elected body in due course.
It is significant that this Act is silent and although as quoted above it talks of being temporary act, it continues and even as stated above there appears to be no intention of the State Government to restore the body back to the elected bodies under the constitution of the society itself.
In these circumstances therefore there appears to be no justification for all these actions starting from invok ing the emergency provisions till enacting the present Act i.e. Asom Rashtrabhasha Prachar Samiti (taking over of the Management and Control) Act, 1984.
Except the allegations of mala fide which are not admit ted, rest of the facts are not in dispute.
The only sugges tion made in the counter is that there was mismanagement, delay in examinations and results and it was because of that that management only under this Act was taken over.
But neither in the counter nor during the course of arguments anything could be said on behalf of the State for a perma nent justification of taking over of the management of the Samiti depriving its members the right under Article 19(1)(c) of the Constitution of India.
In the counter it was contended that the Legislature of the State was competent under Entry 25 of the List Ill (concurrent list) Schedule 7 of the Constitution to enact this law.
Entry 25 List III reads: "25.
Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour." The mere perusal of Entry 25 will reveal as to how difficult it will be to stretch Entry 25 to mean the authority to deprive an association of its right under Article 19(1)(c) of the Constitution of India.
It would have been different situation, if the state felt that it wanted to do the same thing what this Samiti was doing and further the acts of education and for that purpose if it had taken steps to start similar functions at the 173 state level probably the things would have been different.
But here we are simply concerned with the taking over of the management of a registered society having large membership and assets and properties following programme and policies living to the ideals which could not be in any way chal lenged or adversely commented.
Article 19(1)(c) of the Constitution provides: "19.
Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right (a) xx xx xx (b) xx xx xx (c) to form associations or unions; (d) xx xx xx (e) xx xx xx (f) xx xx xx (g) xx xx xx" The Constitution Bench of this Court had an occasion to consider exactly a similar situation when a Hindi Sahitya Sammelan was taken over first by a State law and later by an Act of Parliament and this Court considering the question in Damyanti Naranga vs The Union of India and Others, ; , observed: "Further, under Section 7(2) of the Act, the Governing Body of the new Sammelan is to consist of such number of persons, not exceed ing 55, as the Central Government may from time to time determine; and out of these, a number not exceeding 7 are to be nominated by the Central Government from among education ists of repute and eminent Hindi scholars.
These 7 nominees are to be chosen by the Central Government.
" In the present case the Government has taken the power under Section 3 to appoint a Board and the Government can appoint any one not connected with the Society at all to be in the Board.
In the Act which was being examined by the Constitution Bench there were some restrictions on the nominations of persons although the persons were to be nominated by the Central Government but in the present Act it is left to the discretion of the Government to appoint the whole of the Board which will take place of not only 'the Managing Committee i.e. the Karyapalika but also the place of Byabasthapika Sabha which normally used to be an elected body.
In this view the observation of 174 the Constitution Bench in Damyanti Naranga 's case goes a long way.
It is observed in this judgment: "This is clear interference with the right to form an association which had been exercised by the members of the Society by informing the Society with its Constitution, under which they were members and future members could only come in as a result of their choice by being elected by their working Committee.
" It is therefore clear that so far as the present case is concerned it is not only that the new members are intro duced, not only that the complete control is left to the Board to be nominated by the Government, about the persons no norms have been laid down, the person so nominated could be anyone and no control is kept to those who formed the Society, those who had a right to form an association will be kept away and the Society shall be run by group of per sons nominated by the Government in accordance with Section 3.
It is therefore clear that what was done in the Sammelan Acts which were under examination in the Constitution Bench judgment referred to above, much more has been done in this case.
In this case virtually the right of association has been taken away and not only that it is a sort of depriva tion for all times as it is not even provided that this Board may be an interim Board and thereafter a proper Board will be elected but here this Board will continue to control and manage the affairs of the Society.
In the Constitution Bench case their Lordships considered the scope of Article 19(1)(c) in the context of what was contemplated in that Act and observed: "The right to form an association, in our opinion, necessarily implies that the persons forming the Association have also the right to continue to be associated with only those whom they voluntarily admit in the Association.
Any law, by which members are introduced in the voluntary Association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association.
If we were to accept the submission that the right guaranteed by article 19(1)(c) is confined to the initial stage of forming an Association and does not protect the right to continue the Association with the membership either chosen by the founders or regulated by rules made by the Association 175 itself, the right would be meaningless be cause, as soon as an Association is formed, a law may be passed interfering with its compo sition, so that the Association formed may not be able to function at all.
The right can be effective only if it is held to include within it the right to continue the Association with its composition as voluntarily agreed upon by the persons forming the association.
" It is therefore clear that even on the basis of the pro nouncement of the Constitution Bench, the Act and the noti fication issued under this Act taking over the management of the Rashtrabhasha Prachar Samiti could not be accepted to be in accordance with the Constitution.
Apart from this it is also clear that although when the Act talks of a temporary measure in fact, the Act does not provide for as to how when the temporary measures comes to an end the elected Byabasthapika Sabha and Karyapalika would be restored.
It is not only that but it is also apparent that since 1984 when this Act was passed and a notification appointing a Board was issued, the Government has not chosen to take any steps to restore the Society back to its elected authorities and office bearers, inspite of the fact that we indicated and asked the counsel appearing for the State to let us know even if now the State is intending to restore it back to the Society but unfortunately it appears that with out considering the question and its constitutional aspects the reply came that the State has no desire to restore the Samiti and therefore we are left with no option but to decide and decide upholding the Constitution and the right of association conferred under Article 19(1)(c) of the Constitution.
We therefore allow these writ petitions, set aside the notification issued under the Act enacted by the Assam Legislature holding that the Act itself is ultra vires of the Constitution.
We therefore also quash the notifica tion issued under Section 3 of the Act as ultra vires by which a Board was nominated to replace the Karyapalika and Byabasthapika Sabha.
At the time when this Board was constituted under Sec tion 3 the Karyapalika and Byabasthapika Sabha duly elected were functioning and they had sufficient time to go on and in this view of the matter we further direct that the Karya palika and Byabasthapika Sabha which were in existence in 1984 when initially the action under the emergency provi sions was taken followed by the notification under the Ordinance and the Act shall be restored back and they shall take over the management of the Samiti from the Board imme diately but it is made clear that the Karyapalika and Bya basthapika Sabha which were 176 functioning in 1984 and which we are restoring will within six months from the date of this Order will hold proper elections in accordance with the Constitution to elect a Byabasthapika and Karyapalika.
This is necessary because the period of the Karyapalika and Byabasthapika Sabha which was functioning in 1984 has come to an end although from 1984 till today they were not allowed to function.
It is further directed that the authorities, officers appointed by the Board or the State Government shall restore back all assets and properties of the Samiti to the Karyapalika which will be restored immediately after the passing of this Order.
The petitioners shall also be entitled to costs of this peti tion.
Costs quantified at Rs. 10,000.
R.N.J. Petition allowed.
| IN-Abs | For the spread of Hindi in North Eastern part of India an institution named Asom Hindi Prachar Samiti was formed on 3.11.38 at Gauhati.
In 1948 this Samiti was renamed as Assam Rashtrabhasha Prachar Samiti.
The Petitioner No. 1 herein is a registered body which claims to have a membership of about 22000 persons scattered all over the North Eastern part of India.
This Samity has a sole constitution known as Bidhan which is also a duly registered body.
The Samiti holds different examinations in Hindi twice a year, publishes text books in Hindi for Primary Schools, High Schools, Higher Secondary Schools and Colleges upto the degree standard.
Certificates issued by the Samity are recognised by the Government of India, the Government of Assam and various other organisations.
The Samiti also imparts training and teaching in Hindi through a number of Vidyalayas and Prama nita Pracharaks.
The assets and properties of the Samiti at the time of filing this Petition are stated to be worth Rs. 1,24,42,000.00.
According to the Bidhart, the management and administra tion of the Samiti is run by elected bodies namely Byabas thapika Sabha and Karyapalika, each having 5 years term from the date of holding of its first meeting.
The Karyapalika consisted of 17 members.
The Chief Minister of Assam was the Ex officio Adhyaksa of the Samiti but at the time of holding of the first meeting, the State of Assam was under Presi dent 's rule and consequently the office of Adhyaksha re mained vacant.
Petitioner No. 2 was unanimously elected Mantri.
Petitioner No. 2 and other office bearers of the Karyapalika held the first meeting on 19.8.1982 and the Karyapalika was running and managing the day 161 to day affairs of the Samiti efficiently and diligently.
The Samiti in its meeting held on 17.7.83 passed a resolution amending the Bidhan deleting the provision that the Chief Minister of Assam shall be the ex officio Adhyak sha of the Samiti.
This resolution was adopted in full compliance of Section 30 of the Bidhan and all members present in the meeting except one supported the resolution.
After the passing of this amendment, the Respondent No. 4 as alleged by the petitioners, passed an order dated 7.7.84 on political considerations purportedly to act as the Ex offi cio Adhyaksha of the Samiti declared a state of emergency in the Samiti in exercise of the powers conferred under section 16(Gha) of the Bidhan, dissolved the existing Karyapalika and constituted an ad hoc body with himself as Chairman and five others as members to manage the affairs of the Samiti and asked the Petitioners to hand over the charge of the Samiti to this Ad hoc committee.
Thereupon, the petitioners filed a suit for a declaration that the order dated 7.7.84 passed by Respondent No. 4 was void, illegal, without juris diction and unenforceable against the petitioner society.
The Petitioners also prayed for a permanent injunction restraining the respondents from giving effect to the order and also moved an application for issuance of a temporary injunction upon which a show cause notice was issued to the defendants who filed their objections.
While the matter was pending consideration of the question of issuing of a tempo rary injunction the Governor of Assam purporting to act under clause I of Article 230 of the Constitution of India promulgated an ordinance called the Asom Rashtrabhasha Prachar Samiti (taking over of management and control) Ordinance, 1984.
In due course the Ordinance was replaced by an Act passed by the Assam Legislative Assembly.
Under the Ordinance and the Act virtually the Samity which was a public body was substituted by a Board appointed by the Government and all the functions, properties and affairs of the Samiti were taken over by the Board.
It is this action taken under the Ordinance and ultimately the Act which is the subject matter of challenge in this Writ Petition.
It is contended that although the Act as its title discloses, was a temporary measure, was continued at perpetuity and the Samiti is being run by nominated members and the rights of the members of the Samiti under Article 19 of the Constitu tion of India have not only been restricted but taken away.
Even during the hearing it was indicated that the Government of Assam has no intention to end the temporary arrangement of the Samiti and by this process the State Government intends to deprive the members of the society their rights under Article 19(1)(C) for all times to 162 come.
In the Act there is no provision providing for resto ration of the elected bodies which shows that the use of phrase 'temporary ' was just an eye wash.
Accepting the contentions of the Petitioners, this Court while allowing the Writ Petition.
HELD: As the Act of 1984 and the Board nominated or appointed under Section 3 of the Act is controlling the affairs of the Society it is not necessary to go into the orders passed by the Chief Minister invoking the emergency powers although the facts alleged clearly go to show that except that the Constitution (Bidhan) was amended and the Chief Minister was dropped from the place which he used to enjoy before the amendment of the Bidhan, there was nothing serious justifying all these actions starting from invoking the emergency provisions till enacting the present Act.
[171G H; 172A] It is also apparent that since 1984 when this Act was passed and a notification appointing a Board was issued, the Government has not chosen to take any steps to restore the Society back to its elected authorities and office bearers and nor does it intend to do so even now.
Thus this Court is left with no option but to decide and decide upholding the Constitution and the right of association conferred under Article 19(1)(C) of the Constitution.
[175D E] The Complete Control has been taken away from the Peti tioner Society and is given to Board nominated by the Gov ernment.
The Board is not as an interim measure.
But will continue to control and manage the affairs of the society.
This amounts to taking away the fundamental right of the Petitioner Society to form an Association guaranteed under Article 19(1)(C) of the Constitution of India.
[170E] The Notification under the Act enacted by the Assam Legislature is set aside holding that the Act itself is ultra vires of the Constitution.
The Notification issued under Section 3 of the Act by which a Board was nominated to replace the Karyapalika and Byabasthapika Sabha is also quashed.
[175E] Damyanti Narang vs The Union of India and others, , referred to.
|
Appeals Nos. 224 and 225 of 1954.
Appeals from the judgment dated December 31, 1947, of the former Nagpur High Court in Misc.
(First) Appeal No. 310 of 1943, arising out of the Award dated March 31, 1943, of the Court of the Arbitrator, Addl.
and Sessions Judge, Khandwa.
Achhru Ram and Naunit Lal, for appellant (In C. A. No. 224/54) and respondent (In C. A. No. 225/54).
C. K. Daphtary, Solicitor General for India, R. Ganapathy Iyer and R. H. Dhebar, for respondent (In C. A. No. 224/54) and appellant (In C. A. No. 225/54).
August 22.
The Judgment of the Court was delivered by VENKATARAMA AIYAR J.
Both these appeals are directed against the judgment of the High Court of Nagpur passed in an appeal under section 19(1) (f) of the Defence of India Act, 1939, hereinafter referred to as the Act.
In exercise of the power conferred by section 75(A) of the Rules framed under the Act, the Central Government requisitioned on February 19, 1941, certain properties belonging to Hanskumar Kishanchand, the appellant in Civil Appeal No. 224 of 1954.
As there was no agreement on the amount of compensation payable to him, the Central Government referred the determination thereof to Mr. Jafry, Additional District Judge, Khandwa, under section 19(1) (b) of the Act.
On March 31, 1943, Mr. Jafry pronounced his award, by which lie awarded a. sum of Rs. 13,000 as annual rent for, the occupation of the premises.
Against this award, there was an appeal to the High Court of Nagpur under section 19(1) (f) of the Act, and that was heard by a Bench consisting of Grille C. J. and Padhve J.
By their judgment dated December 31, 1947, they enhanced the annual rent payable to the appellant by a sum of Its. 3,250, and they also allowed certain other sums as compensation for dislocation of the High School which 150 1180 was being run on the property.
The appellant applied for leave to appeal against this judgment to the Federal Court under sections 109 and I 10 of the Code of Civil Procedure in respect of the amounts disallowed.
A similar application was also filed by the Government with reference to the enhancement of compensation.
On August 25, 1949, both these applications were granted, and a certificate was issued that the appeals fulfilled the requirements of sections 109 and 110 of the Code of Civil Procedure.
That is how the two appeals come before us.
Hanskumar Kishanchand is the appellant in Civil Appeal No. 224 of 1954 and the Union of India, in Civil Appeal No. 225 of 1954.
At the opening of the hearing, a preliminary objection was taken by the learned Solicitor General to the maintainability of Civil Appeal No. 224 of 1954 on the ground that the judgment of the High Court passed in appeal under section 19(1) (f) was an award and not a judgment, decree or order within the meaning of sections 109 and 110 of the Code of Civil Procedure, and that accordingly the appeal was incompetent.
If this contention is right, Civil Appeal No. 225 of 1954 preferred by the Government would also be incompetent.
That, of course, does not preclude the Government from raising the objection as to the maintainability of the appeal, though the result of our upholding it would entail the dismissal of Civil Appeal No. 225 of 1954 as ' well.
We accordingly proceed to dispose of the objection on the merits.
It will be convenient at this stage to refer to the provisions of the Act bearing upon the present, controversy.
Section 19(1) provides that: " Where. any action is taken of the nature decribed in sub section (2) of section 299 of the Government of India Act, 1935, there shall be paid compensation, the amount of which shall be determined in the manner, and in accordance with the principles, hereinafter set out. . " Section 19(1) (a) provides for the amount of compensation being fixed by agreement, and section 19(1) (b) enacts that : " Where no such agreement can be reached, the Central Government shall appoint as arbitrator a 1181 person qualified under sub section (3) of section 220 of the above mentioned Act for appointment as a Judge of a High Court.
" Sub section (c) of section 19(1) provides for the appointment by the Central Government of a person having expert knowledge as to the nature of the property acquired and for the nomination of an assessor by the person to be compensated, for the purpose of assisting the arbitrator.
Sub section (e) of section 19(1) enacts that the arbitrator in making his award shall have regard to the provisions of sub section
(1) of section 23 of the Land Acquisition Act, 1894, so far as the same can be made applicable.
Then comes sub section
(f), which is important for the present purpose, and it is as follows: "An appeal shall lie to the High Court against an award of an arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government.
" Then we have sub section
(g), which is as follows: " Save as provided in this section and in any rules made thereunder, nothing in any law for the time being in force shall apply to arbitrations under this section.
" On these provisions, the contention on behalf of the Government is that the reference under section 19(1),(b) and the appeal under section 19(1) (f) are all arbitration proceedings, that the decision of the High Court in the appeal is really an award, and that it is, in consequence, not appealable under sections 109 and 110 of the Code of Civil Procedure, as they apply only to judgments, decrees or orders of Courts and not to awards.
Mr. Achbru Ram, learned counsel for the appellant does not dispute that the proceedings under section 19(1) (b) are by way of arbitration, but he contends that when once the matter comes before the High Court by way of appeal under section 19(1)(f), it becomes a civil proceeding under the ordinary jurisdiction of the Court, and that any decision therein is open to appeal under sections 109 and I 10 of the Code of Civil Procedure.
He further contends that even apart from those provisions, the appeal was competent under Cl. 29 of the Letters Patent, and that, 1182 the certificate granted by the High Court is under that provision as well.
Before discussing the authorities cited on either side in support of their respective contentions, it will be useful to state the well_established principles applicable to the determination of the present question.
When parties enter into an agreement to have their dispute settled by arbitration, its effect is to take the lis out of the hands of the ordinary Courts of the land and to entrust it to the decision of what has been termed a private tribunal.
Such an agreement is not hit by section 28 of the Contract Act as being in restraint of legal proceedings, because section 21 of the Specific Relief Act expressly provides that " save as provided by the , no contract to refer present or future differences to arbitration shall be specifically enforced ; but if any person who has made such a contract . and has refused to perform it sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.
" There is a similar provision in section 28 of the Contract Act which is applicable, where the is not in force.
Where an arbitration is held in pursuance of such an agreement and that results in a decision, that decision takes the place of an adjudication by the ordinary Courts, and the rights of the parties are thereafter regulated by it.
It is true that under the law the Courts have the authority to set aside the award, , made by arbitrators on certain grounds such as that they are on matters not referred to arbitration, or that the arbitrators had misconducted themselves, or that there are errors apparently the face of the award.
But where the award is not open to any such objection, the Court has to pass a decree in terms of the award, and under section 17 of the , an appeal lies against such a decree only on the ground that it is in excess of, or not otherwise in accordance with the award.
In other words, it is the decision of the arbitrator where it is not set aside that operates as the real adjudication binding on the parties, and it is with a view to its enforcement that the, Court 'is authorised to pass a decree in terms thereof.
There is thus a sharp distinction between a 1183 decision which is pronounced by a Court in a cause which it hears on the merits, and one which is given by it in a proceeding for the filing of an award.
The former is a judgment, decree or order rendered in the exercise of its normal jurisdiction as a Civil Court, and that is appealable under the general law as for example, under sections 96, 100, 104, 109 and 110 of the Code of Civil Procedure.
The latter is an adjudication of a private tribunal with the imprimatur of the Court stamped on it, and to the extent that the award is within the terms of the reference, it is final and not appealable.
The position in law is the same when the reference to arbitration is made not under agreement of parties but under provisions of a statute.
The result of those provisions again is to withdraw the dispute from the jurisdiction of the ordinary courts and to refer it for the decision of a private tribunal.
That decision is an award, and stands on the same footing as an award made on reference, under agreement of parties.
It is for this reason that section 46 of the X of 1940 enacts that: " The provisions of this Act, except subsection (1) of section 6 and sections 7, 12, 36 and 37 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that, other enactment were an arbitration agreement; except in so far as this Act is inconsistent with that, other enactment or with any rules made thereunder.
" Nor does it make any difference in the legal position that the reference under the statute is to a Court as arbitrator.
In that case, the Court hears the matter not as a Civil Court but as persona designata, and its decision will be an award not open to appeal under the ordinary law applicable to decisions of Courts.
A statute, however, might provide for the decision of a dispute by a Court as Court and not as arbitrator, in which ease, its decision will be a decree or order of Court in its ordinary civil jurisdiction, and that will attract the normal procedure governing the decision of that Court, and a right of appeal will be comprehended therein.
The position therefore is that if the 1184 reference is to a Court as persona designata, its decision will not be open to appeal except to the extent that the statute so provides; but that if, on the other hand, it is to a Court as Court, its decision will be appealable under the general law, unless there is something in the statute, which abridges or takes away that incident.
It may be a question whether the reference to a Court under a particular statute is to it as a Court or as persona designata ; but when once it is determined that it is to it as persona designata, there call be no question that its decision is not open to appeal under the ordinary law.
We shall now consider the authorities hearing on the question.
On behalf of the Government, the decisions in Rangoon Botatoung Company vs The Collector, Rangoon (1), The Special Officer, Salsette Building Sites vs Dossabhai Bezonji (2), The Special Officer, Salsette Building Sites vs Dassabhai Bozanji Moti.
wala (3), Manavikraman Tirumalpad vs The Collector of the Nilgris (4) and Secretary of State for India in Council vs Hindusthan Co operative Insurance Society Limited (5) were relied on as supporting the contention that the present appeals are incompetent.
In Rangoon Botatoung Company vs The Collector, Rangoon (1), the facts were that certain properties had been acquired tinder the Land Aequistion Act of 1894, and the Collector had determined the amount of compensation payable to the quondam owners.
On their objection as to the quantum of compensation, the matter was referred to the decision of the Chief Court of Burina.
It was heard by a Bench of two Judges, who determined that a sum of Rs. 13,25,720 was payable as compensation.
Dissatisfied with this decision, the owners preferred an appeal to the Privy Council under the provisions of tile Code of Civil Procedure.
A pre limilary objection was taken to the maintainability of the appeal on the ground that the decision sought to be appealed against was not a judgment of Court but an award and was therefore not appealable.
In giving effect to this objection, the Board observed: " Their Lordships cannot accept the argument or (1) (1912) 39 I.A. 197.
(2) Bom.
(3) (4) Mad.
(5) (193I) L.R. 58 I.A. 259.
1185 suggestion that when once the claimant is admitted to the High Court he has all the rights of an ordinary suitor, including the right to carry an award made in an arbitration as to the value of land taken for public purposes up to this Board as if it were a decree of the High Court made in the course of its ordinary jurisdiction.
" Shortly after this judgment was pronounced, the question arose for determination in The special officer, Salsette Building Sites vs Dossabhai Bezonji (1), whether a decision given by the High Court in appeal under section 54 of the Land Acquisition Act was a judgment within Cl.
39 of the Letters Patent, so as to enable a party to appeal to the Privy Council under that provision.
The applicant sought to distinguish the decision in Rangoon Botatoung Company vs The Collector, Rangoon (2) on the ground that there, the decision sought to be appealed against was that of the Chief Court of Burma, and the question of maintainability fell to be decided on the terms of the, Code of Civil Procedure, whereas in the instant case, the party had a right to appeal to the Privy Council under Cl.
39 of the Letters Patent.
In rejecting this contention, the High Court referred to the observations in Rangoon Botatoung Company 's Case (2) already quoted, and observed " This passage shows that it is a mistake to suppose that the award made in such a case by the High Court is a decree within the ordinary jurisdiction to which the Civil Procedure (" 'ode refers; and it seems to me it would be equally erroneous to regard such an award as a final judgment or order within the meaning of clause 39 of the Letters Patent.
" Leave to appeal to the Privy Council was accordingly refused.
There was an application to the Privy Council for special leave in this matter, but that was also rejected, and the report of the proceedings before the Privy Council in The special Officer, salsette Building Sites vs Dassabhai Basanji Motiwala (3)shows that the interpretation put by the Bombay High Court in The Special officer, salsette Building sites vs Dossabhai Bezonji (1) was accepted as correct.
In Manavikraman Tirumalpad vs The Collector of the (1) 130m 506.
(2) (1912) L.R. 39 I.A. 197.
(3) (1913) 17 C.W.N. 42I. 1186 Niligris(1) the question was whether a judgment of the High Court passed in an appeal under the Land Acquisition Act was a judgment within the meaning of Cl. 15 of the Letters Patent so as to entitle a party to file a further appeal to the High Court under that provision, and it was held, on a consideration of the authorities above referred to, that it was not.
Secretary of State for India in Council vs Hindusthan Cooperative Insurance Society Limited (2) is a decision under the Calcutta Improvement Act, 1911.
Under that Act, there is a tribunal constituted for determining the amount of compensation payable on acquisition of land, and under the Calcutta Improvement (Appeals) Act, 1911, an appeal is provided in certain cases from the decision of the tribunal to the Calcutta High Court.
The point that arose for determination was whether the decision given by the High Court in appeal under this provision was open to further appeal to the Privy Council.
In answering it ill the negative, the Privy Council observed that in view of the decision in Rangoon Botatoung Company vs The Collector, Rangoon (3), there could be no right of appeal against the decision of the High Court.
It further held that this conclusion was not affected by the amendment of the Land Acquisition Act, 1921, providing for an appeal to the Privy Council against the decision of the High Court under section 54 of that Act, as that amendment could not be held to have been incorporated by reference in the Calcutta Improve ment Act, 1911.
The law as laid down in the above authorities may thus be summed up: It is not every decision given by a Court that could be said to be a judgment, decree or order within the provisions of the Code of Civil Procedure or the Letters Patent.
Whether it is so or not will depend on whether tile proceeding in which it was given came before tile Court in its normal civil jurisdiction, or de hors it as a persona designata.
Where the dispute is referred to the Court for determination by way of arbitration as in Rangoon Botatoung Company vs The Collector, Rangoon (3), or where it comes (1) Mad.
(2) (1931) L.R. 58 I.A. 259.
(3) (1912) L.R. 39 I.A. 197.
1187 by way of appeal against what is statedly an award as in ' The Special Officer, Salsette Building Sites vs Dossabhai Bezonji (1), Manavikraman Tirumalpad vs The Collector of the Nilgris (2) and Secretary of State for India in Council vs Hindusthan Co operative Insurance Society Limited (3) then the decision is not a judgment, decree or order under either the Code of Civil Procedure or the Letters Patent.
Now, Mr. Achhru Ram contests this last proposition, and relies strongly on the decision in National Telephone Company Limited vs Postmaster General (4), as supporting his position.
There, the question arose on the construction of certain provisions of the Telegraph (Arbitration) Act, .1909.
Section I thereof enacted that certain differences between the Postmaster General and any other person should, if the parties agreed, be referred for decision to the Railway and Canal Commission constituted under an Act of 1888 ; and section 2 provided that all enquiries under the reference should be conducted by the Commission in accordance with the Act of 1888.
Pursuant to a reference under these provisions, the Railway and Canal Commission had determined certain disputes, and the question was whether its decision was open to appeal.
Under the Act of 1888, the Commission was constituted a Court of record and an appeal lay against its decision to the Court of Appeal except on questions of fact and locus standi.
It was held by the House of Lords that as under the Act of 1888 the reference to the Commission was to it as a Court, the reference under the Telegraph (Arbitration) Act, 1909, to that tribunal must also be held to be to it as a Court and not as a body of arbitrators, and an appeal against its decision was therefore competent.
The position was thus stated by Viscount Haldane L. C.: " When a question is stated to be referred to an established Court without more, it, iii my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.
" (1) Bom.
(2) Mad.
(3) (1931) L.R. 58 I.A. 259.
(4) 151 1188 It may be noted that it was the use of the word " arbitration " in the title to the Act that furnished the ground for the contention that the proceedings before the Commission were of the nature of arbitration.
But that description, however, could not alter the true character of the reference under the Act, which was in terms to the Commission as a Court of record.
In fact, there was no element of arbitration in the proceedings.
It is true that under that Act there could be a reference only by agreement of parties.
That, however, could not make any difference in the character of the proceedings before the Commission, as a statute can provide for the jurisdiction of the Court being invoked as a Court on the agreement of parties, as for example, on a case stated under Order 36 of the Code of Civil Procedure.
There is thus nothing in National Telephone Company Limited vs Postmaster General (1), which can be said to conflict with the law as laid down in Rangoon Botatoung Company vs The Collector, Rangoon.
(2) that when the reference is to a Court as arbitrator, its decision is not open to appeal.
The distinction between the two classes of cases, where the reference is to court as court and where the reference is to it as arbitrator, was again pointed out by the Privy Council in Secretary of State for India vs Chelikani Rama Rao (3).
There, the question arose with reference to certain provisions of the Madras Forest Act, 1882.
That Act provides that claims to lands which are.
sought to be declared reserved forests by the Government are to be enquired into by the Forest Settlement Officer, and an appeal is provided against his decision to the District Court.
The point for decision was whether the decision of the District Court was open to further appeal under the provisions of the Code of Civil Procedure.
The contention was that the reference to the District Court under the Act was to it not as a Court but as arbitrator, and that therefore its decision was not open to appeal on the principle laid down in Rangoon Botatoung Company 's Case In repelling this contention, (1) (2) (1912) L.R. 39 I.A. 197.
(3) (1916) L.R. 43 I.A, 192.
1189 Lord Shaw observed that under the Land Acquisition Act the proceedings were ,from beginning to end ostensibly and actually arbitration ' proceedings ", but that the proceedings under the Forest Act were essentially different in character.
" The claim was " he said, " the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seized of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation" The principles being thus well settled, we have to see in the present case whether an appeal to the High Court under section 19(1)(f) of the Act comes before it as a Court or as arbitrator.
Under section 19(1)(b), the reference is admittedly to an arbitrator.
He need not even be a Judge of a Court.
It is sufficient that he is qualified to be appointed a Judge of the High Court.
And under the law, no appeal would have lain to the High Court against the decision of such an arbitrator.
Thus, the provision for appeal to the High Court under section 19(1)(f) can only be construed as a reference to it as an authority designated and not as a Court.
The fact that, in the present case, the reference was to a District Judge would not affect the position.
Then again, the decision of the arbitrator appointed under section 19(1)(b) is expressly referred to in section 19(1)(f) as an award.
Now, an appeal is essentially a continuation of the original proceedings, and if the proceedings under section 19(1)(b) are arbitration proceedings, it is difficult to see how their character can suffer a change, when they are brought up before an appellate tribunal.
The decisions in The Special Officer, Salsette Building Sites vs Dossabhai Bezonji (1), The Special Officer, Salsette Building Sites vs Dassabhai Basanji Motiwala (2), Manavikraman Tirumalpad vs The Collector of the Nilgris (3) and Secretary of State for India in Council vs Hindusthan Co operative Insurance Society Limited (4) proceed all on the view that an appeal against an award continues to be part of, and a (1) Bom.
(2) (3) Mad.
(5) (1931) L.R. 58 I.A. 259.
1190 further stage of the original arbitration proceedings.
ln our view, a proceeding which is at the inception an arbitration proceeding must retain its character :as arbitration, even when it is taken up in appeal, where that is provided by the statute.
The question whether an appeal under section 19(1)(f) is of the nature of arbitration proceedings, and whether the decision given therein is an award came up directly for consideration in Kollegal Silk Filatures Ltd. vs Province of Madras (1) before a Bench of the Madras High Court consisting of Patanjali Sastri and Chandrasekhara Aiyar JJ.
and it was held by them that the word "arbitration" in section 19(1)(g) of the Act covered the entire proceedings from their com mencement before the arbitrator to their termination in the High Court on appeal where an appeal had been preferred, and the High Court in hearing and deciding the appeal acted essentially as an arbitration tribunal.
We agree with this decision that the appeal under section 19(1) (f) is an arbitration proceeding.
We must therefore hold that the decision of the High Court in the appeal under that provision is not a judgment, decree or order either within sections 109 and I 10 of the Code of Civil Procedure or cl. 29 of the Letters Patent of the Nagpur High Court, which corresponds to cl. 39 of the Letters Patent of the Calcutta, Madras and Bombay High Courts, and that, therefore, the present appeals are incompetent.
Mr. Achbru Ram finally contended that even if no appeal lay under sections 109 and 110 of the Code of Civil Procedure or cl. 29 of the Letters Patent, it was, nevertheless within the competence of this Court to grant leave to appeal, and that this was a fit case for the grant of such leave.
He argued that the Privy Council had the power to grant leave to appeal against the decision of the Nagpur High Court in the appeal under section 19(1) (f), that under section 3(a)(ii) of the Federal Court (En. largement of Jurisdiction) Act I of 1948 that power became vested in the Federal Court, and under article 135 it has devolved on this Court, and that in the exercise of that power we should grant leave to appeal against (1) I.L.R. 1191 the decision now under challenge.
it is sufficient answer to this contention that the Federal Court had power under section 3(a) (ii) to grant leave only when the proposed appeal was against a judgment, and that, under the definition in section 2(b), meant a judgment, decree or order of a High Court in a civil case; and that on our conclusion that the decision in the appeal under section 19(1) (f) is not a judgment, decree or order but an award, no order could have been passed granting special leave under section 3(a) (ii).
In the result, we dismiss both the appeals as incompetent.
The parties will bear their own costs in this Court.
Appeals dismissed.
| IN-Abs | These two appeals were preferred against the decision of the Nagpur High Court in an appeal under 'section 19(1)(f) of the Defence of India Act, 1939, modifying an award of compensation made 1178 under section 19(i)(b) of that Act in respect of certain premises requisitioned by the Government under 75(A) of the Rules framed under the Act.
Both the parties applied for and obtained leave to appeal to the Federal Court under sections 109 and 110 of the Code of Civil Procedure.
A preliminary objection was taken on behalf of the Government that the decision of the High Court was an award and not a judgment, decree or order within the meaning of sections 109 and 110 of the Code and as such no appeal lay therefrom : Held, that the objection must prevail and both the appeals stand dismissed.
There could be no doubt that an appeal to the High Court under section 19(1)(f) Of the Defence of India Act from an award made under section 19(i)(b) of that Act was essentially an arbitration proceeding and as such the decision in such appeal cold not be a judgment, decree or order either under the Code of civil procedure or under Cl. 29 Of the Letters patent of the Nagpur High Court.
Kollegal Silk Filatures Ltd. vs province, of Madyas, I. I,.
R. , approved.
There is a well recognised distinction between a decision given by the Court in a case which it 'hears on merits and one given by it in a proceeding for the filing of an award.
The former is a judgment, decree or order of the Court appellable under the general law while, the latter is an adjudication of a private individual with the sanction of the Court stamped on it and where it does not exceed the terms of the reference, it is final and not appealable.
There can be no difference in law between an arbitaration by agreement of parties and one under a statute.
A referrence to arbitration under a statute to a court may be to it either as a court or as an arbitrator.
If it is to it as a court, the decision is a judgment, decree or order appealable under the ordinary law unless the statute provides otherwise, while in the latter case the Court functions as a persona designata and its decision is air award not appealable under the ordinary law but only under the statute and to the extent provided by it.
An appeal being essentially a continuation of the original proceedings, what *as at its inception an arbitration proceeding must retain its character as an arbitration proceeding even where the statute provides for an appeal, Rangoon Botatung Company vs The Collecter , Rangoon (1912) L.R. 39 I.A. 197 .The special officer sales the building sites Dassabhai Beznoji, Bom 506 the special officer sales the Building sites vs Dassabhai Bozanji Motiwala Manavikram Tirumalpad vs the Collector of the Nilagrie, Mad 943 and secretary of state for India in council vs Hindustan Co operative Insurance society Limited ,(1931) L.R. 58 I. A 259 relied on.
National Telephone Company Limited vs Postmaster General, , explained.
|
N: Civil Miscellaneous Peti tion No. 1103 of 1989.
IN Special Leave Petition No. 5597 of 1987.
From the Judgment and Order dated 2.4.87 of the Punjab & Haryana High Court in C.R. No. 1095 of 1987.
A.K. Sanghi for the Petitioner.
C.M. Ashri and S.M. Ashri for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This application is by Kalu Ram and another, who were the respondents in special leave petition No. 5597/87.
The petitioner in the special leave petition was the firm, namely, Ganpat Ram Rajkumar.
It appears that the applicants had filed proceedings for evic tion against the firm in respect of the property in Narnaul in the State of Haryana under section 13(3)(c) of the Haryana Urban (Control of Rent & Eviction) Act, 1973.
An order of eviction was passed against the said firm.
Ultimately the High Court upheld the said order of eviction.
The said firm came in special leave petition to this Court.
This Court found that there was nothing to interfere with the order of eviction and on August 24, 1987 passed the following order: In view of the finding that the landlord has made out a case for eviction under Section 13(3)(c) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 the Special Leave Peti tion is dismissed.
The order of eviction shall not be executed for a period of six months on the petitioners filing usual undertaking in this Court within four weeks from 226 today.
The dismissal of the Special Leave Petition should also not prevent the petition er to the benefit of putting back into posses sion in the equivalent accommodation in the reconstructed building provided the Court lays down such condition while interpreting the provisions of the Act.
We are informed that the question is pending consideration before this Court in some other cases i.e.W.P. Nos.
13385, 9921 24 of 1983 etc.
" From the aforesaid, it is apparent that the said firm wanted time to vacate the premises within six months from the date of the order and representation must have been made on behalf of the said firm that the 'usual undertaking ' will be filed in this Court.
Upon that, this Court restrained eviction for a period of six months from the date of the said order.
This Court, further preserved the right of the said petitioner to the benefit of being put back in posses sion in the equivalent accommodation in the re constructed building provided the Court laid down such condition while interpreting the provisions of the Act.
This Court recorded that the aforesaid question was pending consideration in this Court.
However, it appears that the said firm did not file any undertaking, usual or otherwise.
The usual undertaking to this Court means, inter alia, a statement that the party giving the undertaking is in possession of the premises and that it will further deliver vacant and peaceful possession to the landlord or the respondent.
As mentioned hereinbefore, the petitioner did not file the undertaking though it had obtained time from this Court on that plea.
Furthermore, the petitioner did not vacate the premises in question.
It appears that Sanjay Kumar and Lala Ram sons of Rajkumar and Ved Prakash who as sons of Ganpat Ram filed a suit in the court of Senior Sub Judge, Narnaul for permanent injunction, re straining the present applicants from ejecting Sanjay Kumar and Lala Ram.
It may be mentioned that Ganpat Ram and Rajku mar are the partners of the petitioner firm M/s Ganpat Ram Rajkumar.
The said firm and the partners thereof were bound in law to comply with the Order dated 24th August, 1987.
In the said suit Sanjay Kumar and Lala Ram obtained an order of temporary injunction dated 3rd November, 1988.
The learned Sr.
Sub Judge, Narnaul, by an order in an application under Order 39 Rules 1 & 2 read with section 151 of the Code of Civil Procedure in civil suit No. 121/88 filed in the Court of Sr.
Sub Judge, Narnaul, by Sanjay Kumar, Lala Ram minor sons of Rajkumar and Ved Prakash, son of Ganpat Ram as partners in the said firm, made the order of injunction.
227 The said suit was instituted against Kalu Ram and Puran Chand sons of Roshan Lal and also against Ganpat Ram.
In the order passed on the 12th February, 1988 in the said suit, the learned Senior Sub Judge, Narnaul had stated that the present plaintiffs had claimed right of tenancy to the premises in question independently and as such the decree of eviction passed by this Court in Special Leave Petition No. 5597 would not bind the plaintiffs therein.
He, therefore, issued an injunction restraining the parties who were Kalu Ram, Puran Chand and Ganpat Ram, partners of the petitioner firm.
As mentioned hereinbefore, both Sanjay Kumar and Lala Ram are sons of Rajkumar and Ved prakash respectively, who is a partner of the firm, Ganpat Ram Rajkumar.
Rajkumar was a partner, Ganpat Ram was a partner and their sons and grandsons were claiming in the suit in Narnaul.
On the date of the order of this Court dated 21st August, 1987 in the said Special Leave Petition, the peti tioner therein had obtained time on the implied assurance and representation that they were in possession of the premises in question and were capable of delivering the vacant possession to the applicants herein The effect of the said order of this Court, as we have set out hereinbefore, is that the applicants would have vacant possession from the firm, Ganpat Ram Rajkumar.
It is not clear from the order of the learned Sr.
Sub Judge, Narnaul dated 3rd November, 1988, how since the order of this Court 'dated 24th August, 1987, the plaintiffs in the suit in Narnaul Court could have in possession of the premises in question.
Having regard to the relationship between the parties and having regard to the undertaking promised to be filed in this Court upon which time was obtained from this Court, it appears to us that there is a clear non compliance of the order.
The order stated that vacant possession was to be given.
In the aforesaid view of the matter, the question that requires consideration is how will this order of eviction passed by the High Court and confirmed by this Court by dismissing the Special Leave Petition on the terms mentioned hereinbefore on 24th August, 1987 is to be enforced or implemented? In our opinion, the said order must be imple mented and cannot be allowed to be defeated by the dubious methods adopted by the partners of the said firm of Ganpat Ram Rajkumar.
The whole conduct betrays a calculated attempt to defeat the order of this Court and to mislead this Court.
If that is the position, in our opinion, parties cannot be allowed to do so and get away by misleading this Court.
This application was made for contempt.
It may or may not be appropriate to pass any order punishing the wrongdoers.
But there is no doubt that the order of this Court dated 24th August, 1987 is being sought to be defeated and frustrated.
Sons and grandsons 228 of the partners or erstwhile partners of the firm cannot be allowed to frustrate the order of this Court.
Mr Ashri, learned counsel for the respondents submitted that the respondents could not be held guilty of contempt of court.
It was further submitted by him that no undertaking had, in fact, been given, as such there is no question of breach of any undertaking by anybody.
Mr. Ashri was right.
In fact, no undertaking was given.
It is also true that the parties who instituted suit in Narnaul and obtained the order of injunction dated 3rd November, 1988 were not par ties before this Court when this Court passed the order on the 24th August, 1987 nor are those parties successors in interest, according to law, of those who were bound by the order dated 24th August, 1987, as such.
As we look at it, the order of this Court is an order of the High Court with a sanction of this Court and the applicants were entitled to have it executed.
It has been interfered, by the firm along with the plaintiffs in the said suit at Narnaul.
Mr. Ashri referred to certain observations of this Court in Babu Ram Gupta vs Sudhir Bhasin & Anr., ; , wherein pending decision of a dispute between the parties referred to an arbitrator, the High Court passed with the agreement of the parties a consent order appointing a receiver.
The Court directed that the receiver should take charge of the property forthwith from the appellant therein and submit periodical reports to the Court regarding the running of the business.
Without making an express direction to the appel lant, that the properties in its possession should be handed over to the receiver, the High Court directed the appellant not to interfere with the receiver in the running of the business and that the appellant should give the receiver all cooperation that the receiver might require.
In the petition filed before the High Court in that case, the respondent alleged that by failing to hand over possession of the property to the receiver, in terms of the consent order the appellant had committed breach of the undertaking given to the court and hereby committed an offence punishable under section 2(b) of the (hereinafter referred to as 'the Act ').
The High Court held the appellant to be guilty of contempt of court and sentenced him to undergo civil imprisonment.
This Court held that the act of the appellant in not complying with the terms of the consent order did not amount to an offence under section 2(b) of the Act, however improper or reprehensible his conduct might be.
It was further held that when a person appearing before a court files an application or affidavit giving an undertaking to the court or when he clearly and expressly gives an oral undertaking which is incorporated by the court in its order and fails to honour that undertaking then a wilful breach of 229 the undertaking would amount to an offence punishable under the Act.
An undertaking given by one of the parties should be carefully construed by the Court to find out the nature and extent of the undertaking given by the person concerned.
It is not open to the court to assume an implied undertaking when there was none of the record, this Court said.
As mentioned hereinbefore, the facts of that decision are significantly different from the facts in this case.
The parties by no conduct, overt or otherwise, herein misled this Court.
Indubitably, in the instant case, the decree of eviction was passed by the learned St. Sub Judge, Narnaul and upheld by the High Court of Punjab & Haryana.
This Court dismissed the Special Leave Petition and granted time of six months on the plea that the petitioner firm would file an undertaking.
All this could not have happened if the present plaintiffs in the Narnaul suit had not consented or allowed it to be passed or stood by.
It is difficult to accept the position that they did not know.
In the facts of this case, we are of the opinion that they deliberately did not object to this Court passing the order and thereby allowed the firm to mislead this Court.
They are, therefore, bound to see that the order of this Court is complied with.
Though, contempt is a serious matter and it interferes with the right of those who are found guilty of contempt, no court should allow any party to mislead the court and thereby frustrate its order.
In the aforesaid view of the matter, we are of the opinion that though perhaps the petitioner firm could not be found guilty of violating any undertaking as there was none, in the facts and circumstances of the case, this Court should ensure compliance with its order dated 24th August, 1987 and see that vacant and peaceful posses sion is given to the applicant in the interest of justice.
Mr. Sanghi, learned counsel for the applicant drew our attention to an order of this Court in Thackar Harirarn Motirarn vs Balkrishan Chatrathu Thacker & Ors., [1988] 3 JT SC 18.
That decision was, however, on the question of enter taining a Special Leave Petition or not.
Special leave was not entertained in that case because the petitioner therein had obtained time from the High Court in respect of decree of eviction.
In this case, also the Special Leave Petition was dismissed but out of consideration for the difficulties of the petitioner firm in the said petition, this Court was induced to grant some time on certain considerations.
It appears that this Court was mislead.
It further appears that the respondents, all of them, were guilty of acts which led to the situation and thereby frustrate the order of this Court.
Another point was taken about limitation of this appli cation under section 20 of the Act.
section 20 states that no court shall initiate any proceedings for contempt, either on its own motion or otherwise, after 230 the expiry of a period of one year from the date on which the contempt is alleged to have been committed.
In this case, the present application was filed on or about 3rd November, 1988 as appears from the affidavit in support of the application.
The contempt considered, inter alia, of the act of not giving the possession by force of the order of the learned Sr.
Sub Judge, Narnaul dated 12th February, 1988.
Therefore, the application was well within the period of one year.
Failure to give possession, if it amounts to a contempt in a situation of this nature is a continuing wrong.
There was no scope for application of s: 20 of the Act.
In the aforesaid view of the matter, we direct the learned St. Sub Judge, Narnaul (Haryana) to cause deliver up the vacant possession of the shop situated at Sabji Mandi, Narnanl.
Distt.
Mohindergarb (Haryana), if necessary with the help of police forthwith.
The learned Sr, Sub Judge, Narnaul is also directed to report compliance immediately.
Save as aforesaid, there will be no order on this applica tion, but we direct that the respondents, namely, firm Ganpat Ram Rajkumar, Ganpat Ram Rajkumar, Sanjay Kumar, lala Ram and Ved Prakash should pay and bear the costs of this application to the applicant, which is quantified and as sessed at Rs.2,500 (Rupees two thousand five hundred only).
Save as aforesaid, there will be no further orders on this application.
This order will not prevent or prejudice the applicants from taking any step for recovery of arrears of rent and mesne profit as they are entitled to in accordance with law.
Y. Lal Petition dis posed of.
| IN-Abs | The Respondent filed proceedings for eviction against the Petitioner firm in respect of a property situated at Narnaul under the Haryana Urban (Control of Rent and Evic tion) Act, 1973 and obtained a decree of eviction.
Petition er 's appeal against that decree failed in the High Court and the Special Leave Petition filed by it in this Court was also dismissed on 24.8.87.
While dismissing the Special Leave Petition this Court inter alia directed that the order of eviction shall not be executed for a period of six months on the Petitioner 's filing usual undertaking in this Court within four weeks.
Usual under taking implied that the Petitioner was in possession of the property and that it would deliver vacant possession of the property by the time granted to it by the Court.
The Petitioner did not file any undertaking in this Court.
Instead three of Sanjay Kumar and Lala Ram sons of Rajkumar and Ved Prakash who are sons of Ganpat Ram (a partner in the petitioner 's firm) filed a suit in the Court of senior Sub Judge, Narnaul for permanent injunction restraining the decree holders from ejecting Sanjay Kumar & Lala Ram.
In the said suit the said plain tiffs obtained an order of temporary injunction dated 3.11.
The said suit was filed against Kalu Ram and Puran Chand son of Roshan Lal and also against Ganpat Rai.
The learned Senior Subordinate Judge in his order dated 12.2.88 granting injunction to the plaintiffs took the view that the plaintiffs had claimed a right of tenancy to the premises in question independently and as such the decree of eviction passed by this Court in Special Leave Petition No. 5597 of 1987 would not bind the plaintiffs.
On this reason ing he issued the injunction.
Being unable to obtain possession of the property in question, Kalu Ram and Ant.
who were respondents in Special Leave Petition (decree holders) have filed this Petition praying for initiation of Contempt of Court proceedings against the Petitioner firm.
224 Disposing of the Petition with some directions this Court, HELD: On the date of the order of this Court dated 21st August 1987, in the Special Leave Petition, the Petitioner therein had obtained time on the implied assurance and representation that they were in possession of the premises in question and were capable of delivering the vacant pos session to the applicants.
The effect of the said order of this Court, is that the applicants would have vacant posses sion from the firm, Ganpat Ram Rajkumar.
[227C D] Having regard to the relationship between the parties and having regard to the undertaking promised to be filed in this Court, upon which time was obtained from this Court, it appears, there is a clear non compliance of the order.
[227E] The said order must be implemented and cannot be allowed to be defeated by the dubious methods adopted by the part ners of the said firm of Ganpat Ram Raj Kumar.
The whole conduct betrays a calculated attempt to defeat the order of this Court and to mislead the Court.
Sons and grandsons of the partners or erstwhile partners of the firm cannot be allowed to frustrate the order of this Court.
[227G H; 228A] The Respondents, all of them, were guilty of acts which had to the situation and thereby frustrate the order of this Court.
Though perhaps the respondents could not be found guilty of violating any undertaking as there was none, in the facts and circumstances of the case, this Court should ensure compliance with its order dated 24th August 1987 and see that vacant and peaceful possession is given to the applicant in the interest of Justice.
[229D E] Failure to give possession, if it amounts to contempt in a situation of this nature is a continuing wrong.
There was no scope for application of section 20 of the Act.
[230B] The Court accordingly directed the learned Senior Sub Judge.
Narnaul (Haryana) to cause, deliver up the vacant possession of the shop situated at Sabji Mandi Narnaul Distt.
Mohindergarh (Haryana), if necessary with the help of police forthwith.
The learned Senior Sub Judge is also di rected to report compliance immediately.
Save as aforesaid, the Court passed no order on this application.
Respondents viz., firm Ganpat Ram, Rajkumar, Ganpat Ram, Rajkumar, Sanjay Kumar, Lalu Ram and Ved Prakash are directed to pay to the applicants the costs of this Application, quantified at Rs.2,500.
This order will 225 not prevent or prejudice the applicants from taking any step for recovery of arrears of rent and mesne profits as they are entitled to in accordance with law.
[230C E] Babu Ram Gupta vs Sudhir Bhasin & Anr., ; and Thackar Hariram Motiram vs Balkrishan Chatrathu Thacker
|
tion (Criminal) No. 296 of 1989.
(Under Article 32 of the Constitution of India).
U.R. Lalit, Mrs. Rani Chhabra and Ms. Meera Chhiba for the Petitioner.
B. Dutta, Additional Solicitor General, Yogeshwar Pd., Ms. Sucharita, Ms. A Subhashini, Dalveer Bhandari, Ms. Rachna Joshi and Rachna Gupta for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
In this writ petition under Article 32 of the Constitution of India, the mother of the detenu, Shri Pra veen Kumar Gupta, has prayed for the quashing of the deten tion order of her son dated May 6, 1989 passed under sub section (2) read with sub section (3) of section 3 of the , as confirmed by the order dated May 11, 1989 of the State of U.P. on the report of the Advisory Board.
There is also a prayer for issuance of an appropriate writ in the nature of habeas corpus directing the respondents to release the said Praveen Kumar Gupta forthwith.
The grounds of detention, as communicated to the detenu by the District Magistrate, Meerut, are as follows: 243 "That on 30.4.89 at about 9.15 P.M. at Delhi Road, Kesarganj, P.S. Delhi Gate, Meerut, you along with your other accomplice with the common intention to kill Babli showing your wrath gave him a gun injury and also threat ened to give gun shot to those persons who came in his rescue.
On the basis of informa tion given by Mohd. Bhura a Crime Case No. 12 1 was registered against you u/s 307 IPC in P.S. Delhi Gate, Meerut, which is pending.
By your above misdeed fear and terror was spread in the hearts of public in the markets, Mela Manchandi and in the city of Meerut.
Thus you have committed an act which is prejudicial to the maintenance of public order.
You are at present in jail and are trying to be released on bail and there is every possibility of releasing you on bail.
On the basis of above grounds and reasons 1 am satisfied that you are likely to indulge in the activities prejudicial to the public order and public life and with a view to prevent you from acting in any manner prejudicial to the public order and public life, it has become necessary to detain you.
" It is apparent from the grounds of detention that a crime case was registered against him under section 307 IPC and he was arrested and detained in jail.
Along with the grounds of detention, a copy of the report of the Inspector in Charge, P.S. Delhi Gate, Meerut, was also supplied to the detenu in jail.
The relevant por tion of the report is extracted below: "On 30.4.89 at busy road (Delhi Road) at about 21.15 P.M. he without any reasons gave a gun shot to one Babli S/o Sh.
Bhura R/o Mohalla Purwa Hamidnagar who had come for reading Namaz, as a result of which he was seriously injured.
At present he is in serious condition in the hospital.
This site is the most sensi tive area of the city for communal point of view.
On receiving the information of the gun injury to Babli by the Muslim community on the pious occasion of Ramzan there spread great excitement.
Thousands of people from community gathered.
There was 244 an apprehension of communal threat in the city and area.
People closed their shops feeling threat of communal riots and the road became quiet due to fear and terror.
Above all, on receiving the news of this incident the people of famous Manchandi Mela started running to their houses.
This news of fear and terror created due to this incident was also pub lished in the newspaper Amar Ujala on 1.5.89.
Bhura S/o Dilsad R/o 29, Purwa Hamid Hussain got lodged one report in the Police Station Delhi Gate and a Crime Case No. 12 1 of 89 under section 307 IPC is pending consid eration.
Praveen Kumar is in jail for commission of this offence.
Praveen Kumar has given application for bail in the above matter and there is every possibility of his release on bail.
He is a man of strong means.
After release on bail he would again commit such serious act which would be prejudicial to communal harmony and cause adverse reaction in general public especially in Muslim community.
Therefore the detention under Na tional Security Act is recommended to above Praveen.
" At this stage, it may be mentioned that the detenu has since been granted bail, but in view of the order of deten tion, he is not released.
Mr. Lalit, learned Counsel appear ing on behalf of the petitioner, has strongly urged that as the grounds of detention does not disclose any past history of commission of any crime by the detenu and the incident that has been referred to in the grounds being the solitary incident and there having been no materials on record to show that such an incident would be repeated in future, the order of detention is illegal and should be quashed.
Counsel submits that the only ground on which the detaining authori ty had placed.reliance for making the order of detention was that there 'was a chance of the detenu being released on bail by the criminal court and, in that event, it was appre hended that he would act prejudicially to the interest of public order.
It is submitted that such apprehension is not supported by any material on record and, accordingly, the detention order should be quashed.
In support of the above contention, learned Counsel has placed much reliance upon a decision of this Court in Smt.
Shashi Aggarwal vs State of U.P. and others; , In that case, this Court observed as follows: 245 "Every citizen in this country has the right to have recourse to law.
He has the right to move the court for bail when he is arrested under the ordinary law of the land.
If the State thinks that he does not deserve bail the State could oppose the grant of bail.
He cannot, however, be interdicted from moving the court for bail by clamping an order of detention.
The possibility of the court grant ing bail may not be sufficient.
Nor a bald statement that the person would repeat his criminal activities would be enough.
There must also be credible information or cogent reasons apparent on the record that the dete nu, if enlarged on bail, would act prejudi cially to the interest of public order.
" In laying down the above proposition of law, this Court has placed reliance upon its two earlier decisions in Alijan Mian vs District Magistrate, Dhanbad, ; and in Ramesh Yadav vs District Magistrate, Etah, It is true that the incident on April 13, 1989 was a solitary one so far as the detenu was concerned, but the question is whether the incident had prejudicially affected the public order.
In other words, whether it had affected the even tempo of life of the community.
As observed in Alijan Mian 's case (supra), it is for the detaining authori ty to have the subjective satisfaction about the apprehen sion of the breach of the public order and that even one incident may be sufficient to satisfy the detaining authori ty in that regard depending upon the nature of the incident.
It is not disputed by Mr. Lalit that a single incident may disturb the tranquility and the even tempo of life of the community.
In the grounds of detention, it has been stated "By your above misdeed, fear and terror was spread in the hearts of public in the markets, Mela Manchandi and in the city of Meerut.
Thus you have committed an act which is prejudicial to the maintenance of public order.
" This is not a mere bald statement of the detaining authority without any material in support of the same.
We have already extracted above the report of the Inspector in Charge, P.S. Delhi Gate, Meerut, which has been taken into account by the detaining authority at the time he passed the order of detention.
It has been already noticed that a copy of the said report was served on the detenu along with the grounds of detention.
A situation that emerged as a result of the incident, as stated in the said report, was grave and serious and prejudicially affect ed public order.
It may be a solitary incident, but it gave 256 rise to communal tension and there was apprehension of a communal riot as alleged in the report.
The report, in our opinion, is a sufficient material for the subjective satis faction of the detaining authority that there was disturb ance of ,tranquility and harmony of public life.
It is not correct to say that there is no material for the apprehension that if released on bail, the detenu will indulge in such criminal acts affecting public order.
Real ly, the detaining authority had taken into consideration all the circumstances including the! grave and serious situation that emerged as a result of the incident.
In our opinion, when an incident was such that it created communal tension and the authorities were apprehensive of the breaking of a communal riot, such incident in itself may be sufficient and may afford justification for the satisfaction of the detain ing authority for the detention of the detenu in order to prevent him from indulging in such activity prejudicial to public order even though, as submitted by the learned Coun sel, there is no antecedent acts of similar nature or past history of commission of crime by the detenu.
In this con nection, we may refer to a recent decision of this Court in Ayya vs State of U.P. and Another, ; In that case, this Court observed as follows: "Even a single instance of activity tending to harm "public order" might, in the circum stances of its commission, reasonably supply justification for the satisfaction as to a legislative apprehension of a future repeti tion of similar activity to the detriment of "public order".
" The above observation fully supports the view we have taken.
In our opinion, there were cogent reasons apparent on the face of the record justifying the order of detention.
In the circumstances, we are of the view that the deten tion of the petitioner was justified.
The rule nisi is dis charged and the writ petition is dismissed.
N.P.V. Petition dis missed.
| IN-Abs | A detention order under sub section (2) read with sub section (3) of Section 3 of the was passed against the detenu on the ground that the detenu, who was in jail in a case registered under Section 307 IPC was trying for release on bail, and there was every possi bility of his being released, and that he was likely to indulge in activities prejudicial to public order and public life.
The order was confirmed by the State Government on the report of the Advisory Board.
In a Writ Petition filed in this Court it was contended that as the grounds of detention did not disclose any past history of any crime by the detenu, nor was there any mate rial on record to show that the incident referred to in the grounds would be repeated in future, the detention order based on a solitary incident and on an apprehension that the detenu was likely to act prejudicially to the interest of public order, in the event of his being released on bail, was illegal.
Dismissing the writ Petition, the Court, HELD: When an incident was such that it created communal tension and the authorities were apprehensive of the break ing of a communal riot, such incident in itself may be sufficient, and may afford justification for the satisfac tion of the detaining authority for the detention of the detenu in order to prevent him from indulging in such activ ity prejudicial to public order even though there is no antecedent act of similar nature or past history of commis sion of crime by the detenu.
[246C D] In the instant case, the situation that emerged as a result of the incident was grave and serious and prejudi cially affected public order.
242 It may be a solitary incident but it gave rise to communal tension and there was apprehension of a communal riot.
The police report on the incident is a sufficient material for the subjective satisfaction of the detaining authority that there was disturbance of tranquility and harmony of public life.
The detaining authority had taken into consideration all the circumstances including the grave and serious situa tion that emerged as a result of the incident.
There were cogent reasons apparent on the face of the record for justi fying the order of detention.
[245H; 246A B] Alijan Mian vs District Magistrate, Dhanbad, ; and Ayya vs State of U.P. and another; , , relied on.
Ramesh Yadav vs District Magistrate, Etah, and Smt.
Shashi Aggarwal vs State of U.P. and others; , , referred to.
|
vil Appeal No. 1845 (N) of 1974.
From the Judgment and Decree dated 6/7.3.1974 of the Bombay High Court in First Appeal No. 586 of 1969.
133 S.K. Dholakia and H.S. Parihar for the Appellant.
A.K. Ganguli, A.M. Khanwilkar, A. Subba Rao, C.V. Subba Rao and A.S. Bhasme for the Respondents.
The appellant is a Limited Company registered under the Companies Act having its registered office situate at Ahmed nagar within the State of Maharashtra.
The appellant carries on business, inter alia, as manufacturers of Ayurvedic preparations including "Asavas", "Aristhas".
At all times material to this appeal, the appellant was manufacturing and selling an Ayurvedic product called "Ashvagandhaarist" which is a medicinal preparation containing self generated alcohol but not capable of being consumed as ordinary alcoholic beverage.
Under the provisions of the Medicinal and Toilet Prepara tions .
(Excise Duties) Act, 1955, hereinafter referred to as "the Act", which came into force on 1st April, 1957, excise duties were levied on medicinal and toilet prepara tions specified in the Schedule to the Act, hereinafter referred to as "the Schedule".
The Act, as originally stood in 1955, inter alia, contained two items in the Schedule respectively specifying "medicinal and toilet preparations containing alcohol which are prepared by distillation or to which alcohol has been added and which are capable of being consumed as ordinary "alcoholic beverage" and "medicinal and toilet preparations not otherwise specified containing alcohol", being the commodities excisable under the provi sions of the Act.
The said "Ashvagandhaarist" was treated and accepted by the Excise Authorities as being exempt from the payment of any excise duty upon the basis and the foot ing that the same was an Ayurvedic preparation containing self generated alcohol which was not capable of being con sumed as ordinary alcoholic beverage, and which fell under item 2(i) Of the Schedule in respect of which the rate of excise duty postulated in the Schedule was "Nil".
The Act was amended by the Amendment Act 19 of 1961.
The amendment, inter alia, introduced the concept of "patent and pro 134 prietary medicine" in the Schedule.
The amendment Act, however, by an Explanation, introduced in the Schedule the definition of the "patent and proprietary medicine" con tained in the Drugs Act, 1940.
Even after the introduction of the said amendment, the appellant 's aforesaid product continued to be treated as exempt from the liability to pay any excise duty on the self same ground, namely, that it was covered under item 2(i) of the Schedule which item 2(i) was renumbered as item 3(i) of the Schedule as amended by the Amendment Act of 1961.
By Section 18 of the Finance Act, 1962, the Act was further amended by substitution of an Explanation No. 1 to the Schedule of the Act.
By virtue of and under the said Explanation, a patent and proprietary medicine was defined as a medicinal preparation of the description and the type specified in the Explanation.
The Explanation which was brought in by the Finance Act was given retrospective effect from April 23, 1962.
In purported pursuance of the said Explanation and/or upon the basis thereof, a circular dated May 31, 1962 was issued by the then Director of Prohibition and Central Excise, Government of Maharashtra, Bombay which, inter alia, directed that the medicinal preparations containing self generated alcohol but not capable of being consumed as alcoholic beverage were to be treated as products falling under item 1 and not item 3 of the Schedule.
consequent thereupon, the respondents levied and recovered from the appellant diverse sums aggregating to Rs.2, 18,282.16 being the alleged amount of the excise duty payable in respect of the product "Ashvagandharist".
The amounts were paid by the appellant "under protest".
With a view to enforcing their rights in respect thereof and/or recovering the said amount illegally recovered by the respondents, on July 14, 1965, the appellant filed a suit, being Special Suit No. 23 of 1965 in the Court of Civil Judge, Senior Division, Ahmednagar.
On March 4, 1966, the respondent No. 4 filed its written statement and similarly on the 4th April, 1966 the respond ent Nos. 1 to 3 filed written statements.
In the written statements, filed on behalf of the respondents it was, inter alia, contended that the said product of the appellant was "the unrestricted ayurvedic preparations" manufactured by the plaintiff (appellant) labelled and marked by the 135 plaintiff (appellant) under their brand name and trade mark.
This, therefore, fell within the scope of patent or proprie tary medicine as given in Explanation 1 below the Schedule annexed to the Act, as inserted from April 23, 1962 by Finance Act (No. 2) 1962.
By his Judgment and Decree dated March 27, 1969, the learned Civil Judge was pleased to decree the appellant 's suit for Rs.2,22,582.07 together with future interest at 6 per cent per annum from the date of the suit till realisa tion.
Aggrieved by the Judgment and Order dated March 27, 1969, the respondents (being the defendants therein) pre ferred an appeal to the High Court of Judicature at Bombay, which was registered as First Appeal No. 586 of 1969.
The said appeal was heard by the High Court alongwith other appeals being First Appeals Nos.
136 of 1968 and 93 of 1970 as also suits being Suit Nos. 230 of 1965 and 319 of 1965.
The appeals and the suits were heard together having regard to the common questions of law involved therein.
By its judgment and decree the High Court was pleased to allow the said first appeal of the respondents, reversing the judgment and decree of the Trial Court and to dismiss the appellant 's special suit.
Hence this appeal by special leave.
Mr. S.K. Dholakia, the learned counsel for the appellant submits, inter alia, that the findings of the High Court are repugnant to the relevant provisions of the Act and/or the rules framed thereunder and/or the scheme, intendments and purposes thereof.
It is contended that the appellant 's product "Ashvagandhaarist" fell squarely within item 3(i) of the Schedule and as such wholly exempt from the payment of excise duty; that in view of the admitted position that until 1962 "Ashvagandhaarist" was exempt from the payment of excise duty as being a commodity falling under item No. 2(i) of the Schedule, simply by reason of the Explanation which was introduced in the Act by the Finance Act of 1962, as the explanation could never be considered to be or, in any event, in the scheme of the provision of the Act, was not a substantive provision of the Act and the explanation was not intended to and it did not seek to disturb the enumeration of the categories or the respective fields assigned to the various items of the schedule in existence prior thereto.
It is submitted that item 3 of the amended Schedule was a specific item and enumerated categories of Ayurvedic medici nal preparations covered thereby and that being so, all commodities answering description set out therein fell within the 136 ambit thereof and was excluded from the purview of the other items contained in the said schedule and that the express language of item 3(i), namely, of "Ayurvedic preparations containing self generated alcohol which were not capable of being consumed as ordinary alcoholic beverages" were exempt ed and that the appellant 's product "Ashvagandhaarist" was admittedly and obviously an Ayurvedic preparation containing self generated alcohol which was not capable of being con sumed as ordinary alcoholic beverage and as such it could not be made excisable on the ground that it fell within any other item of the schedule but it constituted residuary clause of the schedule in so far as the medicinal and toilet preparations containing alcohol were concerned.
Counsel further submits that the expression "not otherwise speci fied" occurring in item 3 of the schedule did not restrict the scope of the enumerated categories under item 3 but was merely a marginal note showing that the said item 3 was residuary item and comprised of three sub groups of commodi ties specified therein; and that item No. 1 was not a speci fied item.
Mr. Dholakia further submits that the interpreta tion that "ashvagandhaarist" fell within item No. 1 rendered the provisions of item No. 3 wholly nugatory inasmuch as if an Ayurvedic preparation containing self generated alcohol but incapable of being used as ordinary alcoholic beverage, is treated as failing under item 1 there would be no Ayurvedic medicine which would factually fail under item 3 of the schedule and that the Explanation newly introduced by the Finance Act, 1962 could not add to, amend or alter or vary the classification of the goods existing prior thereto as covered by the various items of the said schedule; nor could it otherwise nullify or add to, amend or alter or vary the substantive provisions of the schedule and it could not be considered to be a substantive provision of the Act nor could it be allowed to abrogate the substantive provisions of the Act.
In other words, the submission is that in view of the fact that the product of the appellant was exempt from payment of duty because the duty against item No. 3(i) in the amended Schedule of 1961 was mentioned to be 'nil ' the High Court ought to have held that the said legal and factual position could not be transformed to the detriment of the appellant by shifting the said commodity from the field covered by item 3(i) to that covered by item 1 of the Act merely on the basis of the Explanation which was intro duced by the Finance Act of 1962.
Counsel argues that this was more so because "ashvagandhaarist" was not a name within the contemplation of the explanation but was merely a de scriptive appellation of the medicine manufactured and sold by the appellant and it being a standard preparation accord ing to the Ayurvedic system could be manufactured by any one conversant with the said system, and it did 137 not have a brand name in the hands of the appellant and the High Court 's interpretation that a mere description is a name is inconsistent with the scheme of the definition of "patent and proprietary medicines" in the Explanation.
This was the reason, it is argued, why Asavas and Aristhas were expressly made non dutiable after 25.9.6,4.
by subsequent amendment by the Government.
Mr. A.K. Ganguli, learned counsel appearing for the respondents, demurring, submits that there can be no doubt that "Asavas" and "Aristhas" fall under item 1 of the sched ule to the Act as substituted by Finance Act 2 of 1962 and hence taxable at 10% ad valorem; and those being Ayurvedic preparations are specified preparations and they could never fail under item 3 or any part thereof which deals with medicinal preparations not otherwise specified containing alcohol.
Item 1, Mr. Ganguli submits, specifically describes that medicinal and toilet preparation which has alcoholic contents and which alcohol comes to be present in those medicines by use of one of the two methods described in that item.
First of such methods contemplates alcohol contents in the medicine which is prepared by distillation and the second method is addition of alcohol to the medicine.
The medicinal preparation which is prepared by distillation and which contains alcohol and other medicinal preparations to which alcohol is added fall in category I and such medicines would cover medicinal preparations belonging either to Allopathic or Ayurvedic system or I any other system of medicines.
For every system of medicines, counsel argues, item No. 1 is not general item but it is a specific item in the sense it covers only those medicines which are prepared by distillation and contain alcohol and others to which alcohol has been added.
According to counsel, such medicines belonging to any system whether indigenous or foreign are covered by item 1 and would be taxable as per that item and the disputed goods are undoubtedly medicinal preparations and they are also patent and proprietary medicines in view of the Explanation 1 and these Ayurvedic preparations are medicinal preparations being patent or proprietary medicines containing alcohol which are not capable of being consumed as alcoholic beverages and as such they squarely fall under item 1 of the Schedule, and the main Act and the Explanation is a self contained provision which eliminates the reference either to Drugs Act or to the Rules made under the Act; and one has to read only the provision of the Schedule as a whole including the Explanation, and their meaning being simple and plain, they must be given their full effect.
138 To appreciate the rival contentions we can appropriately refer to the provisions and the Schedule of the Act and the legislative changes thereof.
The Act was meant to provide for the levy and collection of duty of excise on medicinal and toilet preparations containing alcohol, opium, Indian hemp or other narcotic drug or narcotic.
The statement of objects and reasons as notified in Gazette of India of 16.9.1954, Part II, section 2, Ext., page 596 said that by virtue of entry 40 in List II in the Seventh Schedule to the Gov ernment of India Act, 1935, medicinal and toilet prepara tions containing alcohol, etc., were subjected to Provincial excise duties.
In order to secure uniformity the entry relating to excise duty on medicinal and toilet preparations containing alcohol, etc. were transferred under the Consti tution from the State list to the Union List.
The Act was intended to implement this provision in the Constitution and proposed uniform rates of excise duty and a uniform proce dure for the collection thereof.
The Act came in force on 1.4.57.
The Act in Section 2(a) defined "alcohol" to mean "ethyl alcohol of any strength and purity having the chemical composition C2H5OH"; and it defined "medicinal preparation" in Section 2(g) to include "all drugs which are a remedy or prescription prepared for internal or external use of human beings or animals and all substances intended to be used for or in the treatment, mitigation or prevention of disease in human beings or animals".
It did not define "drug".
The Drugs Act, 1940, as it was substituted by the Drugs (Amend ment) Act, 1955 (16.4.55) had defined "drug" in Section 2(b) to include "(i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals other than medicines and substances exclusively used or prepared for use in accordance with the Ayurvedic or Unani systems of medicine; and (ii) such substances (other than food) intend ed to affect the structure or any function of the human body or intended to be used for the destruction of vermins or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette." (Emphasis supplied) Section 3(i) of the Act provides that "there shall be levied duties of excise, at the rates specified in the Schedule, on all dutiable goods manufactured in India.
" The original Schedule to the Act in 1955 read: 139 THE SCHEDULE (See section 3) Item Description of dutiable Rate of No. goods.
Medicinal and toilet preparations, Rupees seven containing alcohol, which are prepared and annas eig which are prepared by distilation or ht per gallon to which alcohol has been added, and of strength which are capable of being consumed as of London ordinary alcoholic beverages.
proof spirit.
Medicinal and toilet preparations not otherwise specified containing alcohol (i) Ayurvedic preparations containing Nil self generated alcohol, which are not capable of being consumed as ordinary alcoholic beverages.
(ii) Ayurvedic preparations containing Rupees three self generated alcohol, which are per gallon.
capable of being consumed as ordinary alcoholic beverages.
(iii) All others.
Rupees five per gallon of the strength of London proof spirit 3.
Medical and toilet preparations, Nil not containing alcohol, but containing opium, Indian hemp, or other narcotic drug or narcotic.
It would thus be clear that medicinal and toilet prepara tions were classified into those which were capable of being consumed as ordinary alcoholic beverages and those which were not capable of being consumed as ordinary alcoholic beverages.
Again, medicinal and toilet preparations contain ing alcohol prepared by distillation or adding alcohol is differentiated from medicinal and toilet preparations 'not otherwise specified containing alcohol '.
Further, under this 'not 140 otherwise specified ' category Ayurvedic preparations have been classified into three groups, namely, Ayurvedic prepa rations containing self generated alcohol not capable of being consumed as ordinary alcoholic beverages, those capa ble of being consumed as ordinary alcoholic beverages; and others.
These three divisions were not drugs as defined in Drugs Act then.
The first category of Ayurvedic preparations had not been subjected to duty while the other two catego ries had been.
Admittedly, under the above Schedule the product of the appellant 'ashvagandhaarist ' was not dutiable which meant that it was included in item 2(i).
It would also be clear that 'Ayurvedic preparations containing self generated alcohol which were capable of being consumed as ordinary alcoholic beverages ' were dutiable at the rate of Rupees 3 per gallon and the third category of others was also dutia ble at the rate of Rupees 5 per gallon on the strength of London proof spirit.
Alcohol and self generated alcohol were treated differently.
The Schedule was amended by the Amending Act No. 19 of 1961 and the amended Schedule stood as follows: Item No. Description of dutiable goods Rate of duty 1.
Medicinal preparations, being patent Ten per cent or proprietary medicines, contain ad valorem.
ing alcohol and which are not capable of being consumed as ordinary alcoholic beverages.
Medicinal preparations, containing Rupees three alcohol, which are and eight prepared by distillation or to which five naye alcohol has been added, paise per and which are capable of being litre of consumed as ordinary alcoholic the streng beverages.
th of Londo n proof spi rit.
Medicinal preparations not otherwise specified containing alcohol (i) Ayurvedic preparations containing Nil self 'generated alcohol which are not capable of being consumed as ordinary alcoholic beverages.
141 (ii) Ayurvedic preparations, contain Thirty eight ing self generated alcohol, which naye paise per are capable of being consumed as litre.
ordinary alcoholic beverages.
(iii) All others.
Rupee one and ten naye paise per litre of the strength of London proof spirit.
Explanation I: "Patent or proprietary medicines" has the same meaning as in clause (h) of Section 3 of the Drugs Act, 1940 (23 of 1940).
The statement of objects and reasons of the Amendment Bill, as published in Gazette of India, 8.3.1961, Pt.
II, section 2, Ext., page 106, said: "Consequent on the decision to adopt metric units from the 1st April, 1961, in the sale of alcohol and collection of duty thereon, it is proposed to provide for the levy and collec tion of excise duty on medicinal and toilet preparations in terms of metric units. . . . . . . .
Under existing item 2(ii) of the Schedule to the Act, Ayurvedic preparations containing self generated alcohol which are capable of being consumed as ordinary alcohol ic beverages are subjected to duty at the rate of Rs.3 per gallon.
However, by virtue of the provision contained in section 19(2)(xix) of the Act, read with Rule 8 of the Medicinal and Toilet Preparations (Excise Duties) Rules 1956, the rate of duty with respect to such preparations has been reduced to Rs. 1.75 per gallon with effect from the 10th September, 1960, and it is this reduced rate that is, proposed to be expressed in terms of metric units in the Bill.
" It would thus be clear that the main purpose was the levy and collection of excise duty on medicinal and toilet preparations in terms of metric unit.
while there was refer ence to them existing item 2(ii) of the Schedule of the Act, namely, Ayurvedic preparations containing 142 self generated alcohol which were capable of being consumed as ordinary alcoholic beverages the duty whereof was reduced to Rs. 1.75 per gallon from Rs.3 per gallon, there was no mention that item No. 2(i) of the Schedule, namely, Ayurved ic preparations containing self generated alcohol which were not capable of being consumed as ordinary alcoholic bever ages was subjected to tax.
The statement of object and reasons was silent about item No. 2(i).
In the amended Schedule we find that item 1 for the first time mentioned medicinal preparations being patent or proprietary medicines, containing alcohol and which are not capable of being consumed as ordinary alcoholic beverages and the earlier item No. 1 has been re numbered as item No. 2 and the earlier item No. 2(i), (ii) and (iii) remained as they were as 3(i), 3(ii) and 3(iii).
As regards levy of duty item 2(i) of the old Schedule was kept duty free in item 3(i) of the Schedule.
Thus, there has been no fresh charging of duty on what was 2(i) and is now 3(i) under which catego ry the appellant 's product 'ashvagandhaarist ' was exempted from duty before the amendment of the Schedule.
There is, therefore, no doubt that item 1 & 2(i) remained mutually exclusive or in other words, they would not be overlapping.
Item 1 in the amended Schedule deals with medicinal prepara tions being patent or proprietary medicines and not medici nal preparations 'not otherwise specified. ' The Explanation I says that patent or proprietary medi cines has the same meaning as in clause (h) of Section 3 of the Drugs Act, 1940.
The High Court has found that re num bered definition 3(h) was earlier 3(d) and read as follows: "3(d) 'Patent or proprietary medicine ' means a drug which is a remedy or prescription pre pared for internal or external use of human beings or animals, and which is not for the time being recognised by the Permanent Commis sion on Biological Standardisation of the World Health Organisation or in the latest edition of the British Pharmacopoeia or the British Pharmaceutical Codex or any other Pharmacopoeia authorised in this behalf by the Central Government after consultation with the Board." Thus, patent or proprietary medicines meant a drug which was defined in the Drugs Act and not in the Act.
The High Court rightly held that Ayurvedic medicine was not a drug at all.
The definition of drug expressly excluded them.
So the definition of patent or proprietary medicine 143 was exclusive of Ayurvedic medicinal preparations, those being excluded from the definition of drug.
The definition of patent and proprietary medicines till then did not apply to Ayurvedic preparations.
This position continued indeed till the amendment of Drugs Act by the Drugs and Cosmetics (Amendment) Act, 1964.
Several amendments were effected by that Amendment Act of 1964.
Section 33A and Chapter IV A were inserted.
Section 33A said that Chapter IV was not to apply to Ayurvedic (including Siddha) or Unani drugs.
"Save as otherwise provided in this Act, nothing contained in this Chapter shall apply to Ayurvedic (including Siddha) or Unani drugs".
Chapter IVA made.provisions relating to Ayurvedic (including Siddha) and Unani drugs.
This shows that prior to this amendment of 1964 Ayurvedic preparations were expressly not drugs under the Drugs Act.
The Drugs and Cosmetics Act in the amendment First Schedule after the amendment Act of 1964 included Ayurvedic (including Siddha) and Unani system drugs prepared under Section 3(a) which contains the definition: "Ayurvedic (including Siddha) or Unani drugs includes all medicines intended for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of disease in human beings and animals, mentioned and process and manufac ture exclusively in accordance with the formula prescribed in the authoritative book on Ayurvedic (Siddha) Unani system of medicines specified in the first schedule.
" This defini tion was also inserted by Drugs and Cosmetics (Amendment) Act, 1964 (13 of 1964) Section 2(a)(i) with effect from 15.9.1964.
The same exclusion remained in the related Central Acts.
For example, the Drugs Control Act, 1950 (Act 26 of 1950) replaced the Drugs Control Ordinance, 1949 (6 of 1949) which was promulgated on 3.10.
1949 in order to ensure that cer tain essential imported drugs and medicines were sold in the reasonable price in the Chief Commissioner 's provinces.
Similar ordinances were issued by all the provinces.
The necessity for continuing price control of these essential drugs continued.
That was an Act to provide for the control of sale, supply and distribution of drugs.
Drug meant any drug as defined in clause (b) of Section 3 of Drugs Act, 1940, in respect of which a declaration had been made under Section 3 which defined drug.
It may be noted that Pharmaco poeia authorised for the purpose of Section 3(h) of the Drugs Act, 1940, were: The Indian Pharmacopoeia, the Pharma copoeia of the United States, the National formulary of the United States, the International Pharmacopoeia and the State Pharmacopoeia 144 of the Union of Soviet Socialist Republics, vide S.O. 701 Gazette of India, 1961, Pt.
II, section 3(ii), p. 725.
There was thus no Ayurvedic Pharmacopoeia prescribed for the purpose of that Act.
Pharmacopoeia is a book containing the list of drugs with directions for use.
The fact that no Ayurvedic Pharmacopoeia had been notified at the relevant time was because Ayurvedic preparations were not drugs for the pur pose of Drugs Act and, for that matter, of , at the relevant time.
It could be for this reason that in the original Schedule the expression medicinal and toilet preparations 'not otherwise specified ' was used and Ayurvedic prepara tions of different categories were put under item 2.
In the Schedule as amended by the 1962 Act, this expression contin ued in item 3, The same definition of 'drug ' also continued in the Drugs Act.
From the Explanation I of the Schedule of the Act as substituted by Act 5 of 1964 also it is clear that patent or proprietary medicine means any medicinal preparation which is not specified in a monograph in a Pharmacopoeia, Formu lary or other publications notified in this behalf by the Central Government in the Official Gazette.
To be a patent medicine one would be required to have a patent.
A patented article means an article in respect of which a patent is in force.
"Patent" means a patent granted under the Indian Patent and , and now the Patent Act, 1970.
A patent medicine will, therefore, mean medicine in respect of which a patent is in force.
"Proprie tary" means of a proprietor, that is, holding proprietary rights.
Patent means a grant of some privilege, property, or authority, made by the Government or sovereign of a country to one or more individuals.
A proprietor is one who has the legal right or exclusive title to anything.
It is synonymous with owner.
A person entitled to a trade mark or a design under the acts for the registration or patenting of trade mark or design is called a proprietor of the trade mark or design.
Under the , "trade mark" means: "(i) in relation to Chapter X (other than section 81), a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark; and (ii) in relation to the other provisions of this Act, a mark used or proposed to be used in relation to goods for the 145 purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indica tion of the identity of that person, and includes a certification trade mark registered as such under the provisions of Chap.
" As defined in section 2(a), registered proprietor in relation to a trade mark means a person for a time being entered in the register as proprietor of the trade mark.
A registered trade mark means a trade mark which is actually on the register.
By section 18 of the Finance (No. , the Schedule to the Act was further amended substituting the Explanation 1 by the following: "Explanation 1: "Patent or proprietary medi cines" means any medicinal preparation which bears either on itself or on its container or both a name which is not specified in a mono graph in a Pharmacopoeia, Formulary or other Publications notified in this behalf by the Central Government in the Official Gazette, or which is a brand name, that is a name or a registered trade mark under the Trade and Merchandise Mark Act, 1958 (43 of 1958), or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used m relation to that medicinal preparation for the purpose of indicating or so as to indicate a connection in the course of trade between as preparation and some person having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person.
" This amendment of the Explanation came into force in June, 1962 with retrospective effect from 23rd April, 1962.
The Director of Prohibition and Excise, for Maharashtra State, Bombay, thereafter issued the circular dated 31.5.
1962 (Ext. 44).
It said that the patent or proprietary medicines as defined in clause (d) of section 3 of the Drugs Act of 1940 (23 of 1940) and falling under items No. 1 and No. 4 of the Act as substituted by the Amendment Act, 1961 were, prior to 23rd April, 1962, subject to levy of duty at 10 per cent ad 146 valorem by virtue of the Explanation I below the Schedule to the Act which has now been deleted from 23rd April, 1962.
According to new definition of 'Patent and Proprietary Medicines ' as given in the new Explanation as amended by Finance (No. medicinal preparations containing alcohol, opium, Indian hemp or other narcotic drugs or narcotic falling under item 3(i), 3(iii) and 3(v) of the said Schedule, were with effect from 23rd April, 1962 liable to duty not under the said items but under item No. 1 or item No. 4 of the said Schedule at 10 per cent ad valorem, if such preparations are "patent or proprietary medicines" as defined in the Explanation.
Excise duty on all 'patent or proprietary medicinal preparations ' (Alopathic, Ayurvedic, Unani and Homoeopathic preparations) containing alcohol, opium, Indian hemp or other narcotic drug or narcotic, which fall within the purview of the new definition of 'patent or proprietary medicines ' given in the Explanation, should therefore, be recovered at the rate of 10 per cent ad valo rem from the holders of the licences granted under the said Act and the rules thereunder in accordance with the instruc tions contained in their Circular No. DQ 64 31/61 dated 22nd July, 1961.
A note received from the Government of India, explaining the scope of the new definition of 'patent or proprietary medicines ' was also enclosed along with the circular.
It is in evidence in the instant case that two bottles containing Asavas were produced in the Court as Exhibit 42/1 and Exhibit 42/2.
Both the bottles contained the same kind of Asavas.
The ingredients of the two were the same and the preparation of the two was also the same.
When the Asavas were sold during the period beginning from June, 1962 to February, 1964, no excise duty was levied because on the label there was no trade mark of patent and proprietary right printed.
If the Asavas were sold in the bottle having a label with no trade mark as at Exhibit 42/1, no duty was recovered from the plaintiff.
These Asavas were supplied to Employees ' State Insurance as per their tender without the trade mark on the label to see that the plaintiffcompany were not taxed the excise duty which would have been charged had they put the patent mark on the label.
But in order to fight for blemish of cheating, the plaintiff thought it necessary to have the trade mark on such bottles without any difference.
As soon as the goods were sought to be sold in the above manner the excise duty was levied and was sought to be recovered from the plaintiff 's fund.
No excise duty was recovered after February, 1964 even though Asavas were sold with their trade mark.
It is also in evidence that there were two sub groups in the group of Asavas and Aris thas known as 'restricted ' and 'unrestricted '.
Restricted means preparations which 147 could be used as alcoholic beverages.
In this case the period from 26.7.62 to 29.2.64 is alone material inasmuch as by the Finance Act of 1964 with reference to item No. 1, the Ayurvedic and Unani medicines containing self generated alcohol and which were not capable of being consumed as ordinary alcoholic beverages were exempted from the levy of excise duty.
In other words, the position prior to Finance Act of 1962 was continued and thereafter the medicinal preparations, namely, Asavas and Aristhas ceased to be taxed from 1964.
It would be noted that the Explanation itself did not specifically mention "Allopathic, Ayurvedic, Unani and Homoeopathic preparations" as was done in the Director 's Circular.
On a comparison of the earlier Explanation and the substituted Explanation one would notice that earlier "patent and proprietary medicines" meant a drug.
In the substituted Explanation it means any medicinal preparation.
However, it can not be lost sight of that the words "medici nal preparation" as continued to be defined in section 2(g) of the Act "includes all drugs which are a remedy or prescrip tion prepared for internal or external use of human beings or animals and all substances intended to be used for or in treatment, mitigation or prevention of diseases in human beings or animals.
" We have already noticed that the Drugs Act continued to exclude Ayurvedic preparations till its amendment in 1964.
It has been stated that even after amend ment of the Schedule after 1961 amendment the appellant 's product was exempted from duty, till the Director 's Circular disturbed the position.
This brings us to the question of interpretation of the Act and the Schedule with the Explanation.
in view of the submission that the Explanation could not have rendered item 3(i) of the Schedule redundant.
Was there any change of intention of the Legislature in this regard? A Schedule in an Act of Parliament is a mere question of drafting.
It is the legislative intent that is material.
An Explanation to the Schedule amounts to an Explanation in the Act itself.
As we read in Halsbury 's Laws of England, Third Edition, Vol. 36, para 551: "To simplify the presentation of statutes, it is the practice for their subject matter to be divided, where appropriate, between sections and schedules, the former setting out matters of principle, and introducing the latter, and the latter containing all matters of detail.
This is purely a matter of arrangement, and a schedule is as much a part of the statute, and as much an enactment, as is the section by which it is introduced.
" The schedule may be used in construing provisions in the 148 body of the Act.
It is as much an act of Legislature as the Act itself and it must be read together with the Act for all purposes of construction.
Expressions in the Schedule cannot control or prevail against the express enactment and in case of any inconsistency between the schedule and the enactment the enactment is to prevail and if any part of the schedule cannot be made to correspond it must yield to the Act.
Lord Sterndale, in Inland Revenue Commissioners vs Gittus, said: "It seems to me there are two principles of rules of interpretation which ought to be applied to the combination of Act and Sched ule.
If the Act says that the Schedule is to be used for a certain purpose and the heading of the part of the Schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the Schedule as though the Schedule were operating for the purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it.
But if in spite of that you find in the language of the Schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the Schedule or by the purpose mentioned in the Act for which the Schedule is prima facie to be used.
You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the Schedule and the definition of the purpose of the Schedule contained in the Act.
" The above observation was not disapproved in appeal However, the basic principle is that in case of a conflict between the body of the Act and the Schedule, the former prevails.
In the instant case we do not find any such conflict.
An Explanation, as was found in Bihta Marketing Union vs Bank of Bihar, ; , may only explain and may not expand or add to the scope of the original section.
In State of Bombay vs United Motors, ; ,it was found that an Explana tion could introduce, a finction or settle a matter of controversy.
Explanation may not be made to operate as "exception" or "proviso".
The construction of an Explana tion, as was held in Collector of Customs vs G. Dass & Co., AIR 1966 SC 1577, must depend upon its terms and no theory of its purpose can be entertained 149 unless it is to be inferred from the language used.
It was said in Burmah Shell Oil Ltd. vs Commercial Tax Officer, AIR 1961 SC 3 15: , that the explanation was meant to explain the Article and must be interpreted accord ing to its own tenor and it was an error to explain the Explanation with the aid of the Article to which it was annexed.
We have to remember what was held in Dattatraya Govind Mahajan vs State of Maharashtra, ; (928): ; , that mere description of a certain provision, such as "Explanation" is not decisive of its true meaning.
It is true that the orthodox function of an expla nation is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it, but ultimately it is the intention of the legislature which is paramount and mere use of a label cannot control or deflect such intention.
State of Bombay vs United Motors, (supra) laid down that the inter pretation must obviously depend upon the words used therein, but this must be borne in mind that when the provision is capable of two interpretations, that should be adopted which fits the description.
An explanation is different in nature from a proviso for a proviso excepts, excludes or restricts while an explanation explains or clarifies.
Such explanation or clarification may be in respect of matters whose meaning is implicit and not explicit in the main section itself.
In Hiralal Ratanlal vs State of U.P., ; (225), it was ruled that if on a true reading of an Explanation it appears that it has widened the scope of the main section, effect be given to legislative intent notwithstanding the fact that the Legislature named that provision as an Expla nation.
In all these matters courts have to find out the true intention of the Legislature.
In D.G. Mahajan vs State of Maharashtra, (supra) xx this Court said that legislature has different ways of expressing itself and in the last analysis the words used alone are repository of legislative intent and that if necessary an Explanation must be con strued according to its plain language and 'not on any a priori consideration '.
Applying the above principles we do not find any differ ence between the Schedule and the Explanation I; the latter has not amended the Schedule by either deleting item 3(i) or by adding or including Ayurvedic preparations in item 1.
No change of legislative intent is indicated.
In the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956 Section C Medicinal and Toilet preparations, Allopathic preparations, Homoeopathic preparations and Ayurvedic preparations are dealt with separately.
So far as Ayurvedic preparations are concerned, 150 Rule 64 dealing with types of preparations said: "Asavas and Aristhas are the principal types of Ayurvedic preparations in which alcoholic content is self generated and not added as such.
" Rule 65 on Pharmacopoeia for Ayurvedic prepara tions said: "Until a standard Ayurvedic pharmacopoeia has been evolved by the Central Government, the pharmacopoeias that are in vogue in the various States shall be recognised as standard Ayurvedic pharmacopoeias." Rule 66 classified the preparations containing self generated alcohol for purposes of levy of duty.
It said: "No duty shall be levied on Ayurvedic preparations containing self generated alcohol in which the alcohol content does not exceed 2 per cent.
Where the percentage of proof spirit is in excess of 2 per cent, duty will be leviable under item 2(ii) or 2(i) of the Schedule to Act the according as the preparations are capa ble of being consumed as ordinary alcoholic beverage or not." Thus Ayurvedic preparations containing self generated alcohol which are not capable of being used as alcoholic beverages fall under original 2(i) and now 3(i).
The above Rules, which have not been shown to have been amended clearly say that where the percentage of proof spirit is in excess of 2% the preparation would be dutiable under item 2 which became item No. 3 in the amended Sched ule.
This Rule is consistent with the Schedule but is wholly inconsistent with the Director 's circular.
Mr. Ganguli relies on ; Baidyanath Ayurved Bhawan Pvt. Ltd. vs The Excise Commis sioner of U.P., The question there was whether medicinal preparation containing tincture, spirit etc.
was dutiable.
The tincture and spirit in their turn contained alcohol.
It was contended that alcohol was not directly added but was component of the tincture or spirit.
It was, however conced ed that the preparations were medicinal preparations and that tincture was a component of that preparation and alco hol was a component of tincture.
Therefore, this Court held that it was difficult to see how it could be urged that the preparation did not contain alcohol.
All that the plain language of the provision required was that the preparation should contain alcohol.
The question whether Ayurvedic preparation was a drug to be included in the definition of medicinal preparation was not involved.
Whether self gener ated alcohol was to be treated differently was also not there.
In Mohanlal Maganlal Bhavsar vs Union of India.
it was held that before a medicinal preparation can fall under Item 151 1 of the Schedule three conditions are required to be satis fied: (A) the preparation must be a patent or proprietary medicine; (2) it must contain alcohol; and (3) it must not be capable of being consumed as an ordinary alcoholic bever age.
The fact that ointments and liniments were medicinal preparations containing alcohol in semi liquid form did not make any difference.
However it was not in dispute that the articles were medicinal preparations for the purposes of the Act and that they were patent and proprietary medicines.
In the instant case the question is whether Ayurvedic prepara tions, in view of the definition of medicinal preparations in the Act, could be regarded as drugs and could be dutiable under Item 3 and not Item 1.
In Commissioner of Sales Tax vs The Modi Sugar Mills Ltd.; , it was held that a taxing statute must be interpreted in the light of what is clearly expressed therein and nothing can be implied nor can provisions be imported into them so as to supply an assumed deficiency.
In Baidyanath Ayurved Bhawan (supra) this Court quoted the observation of Rowlatt, J. in Cape Brandy Syndi cate vs Commissioners of Inland Revenue, that "in a taxing Act one has to look at what is clearly said.
There is no room for any intendment.
There is no equity about a tax.
There is no presumption as to tax.
Nothing is to be read in, nothing is to be implied.
One can only look fairly at the language used.
" The question in the instant case, however, is whether the appellant 's product being an Ayurvedic preparation could be a drug for being included in the definition of medicinal preparation for the purpose of the Act.
This question was not raised in the above cases.
As Mr. Dholakia points out, the Circular would render item 3(i) of the Schedule wholly redundant.
It has been the consistent policy of legislature to exempt item 3(i) hither to 2(i), from duty.
The legislature has not in any way changed it.
The Explanation has not in any way altered the classification in the Schedule.
The substituted Explanation no doubt stressed on patents and trade marks.
But it has not expressly envisaged in item I, patented trade marked Ayurvedic preparations contrary to the classification in the Schedule.
Ex praecedentibus et consequentibus optima fit interpretatio.
The best interpretation is made from the context.
Injustum est nisi tota lege inspecta, de una aliqua ejus particula proposita judicare Vel respondere.
It is unjust to decide or respond as to any particular part of a law without examining the whole of the law.
Interpretare et concordare leges legibus, est optimus interpretendi modus.
To interpret and in such a way as to harmonize laws with laws, is the best mode of interpretation.
In the instant case the Director 's Circular is not in harmony with item 3(i) or with the classifi 152 cation of Ayurvedic preparations in separate item 3.
It would not be in conformity with definition of medicinal preparation ' in section 2(g) of the Act.
Jura eodern modo dislit uentur quo constitutuntur.
Laws are abrogated by the same means (authority) by which they are made.
The Director 's Circular is not shown to have been a piece of delegated legislation.
The Explanation on its tenor does not amend the Schedule.
No part of a Statute is to be taken as superfluous or redundant.
Every word in a Statute is to be given a meaning.
A construction which would leave without effect any part of the language of a statute will normally be rejected.
Every clause of a statute is to be construed with reference to the context and other clauses of the Act so as to make, as far as possible, a consistent enactment of the whole Statute.
The High Court accepted the submission that it provided a selfcontained definition of 'patent and proprietary medi cines ' for the purpose of the main Act and severed the connection between the provisions of the Drugs Act as was contemplated in earlier Explanation I, and consequently one need not look to the Drugs Act at all for its interpretation and the Schedule was thence to be interpreted as it existed along with that self containing definition in Explanation I.
In doing so, the position that "Patent and Proprietary medicines" means "any medicinal preparation" which very "Medicinal preparation" includes all drugs which are a remedy or prescription etc.
as defined in section 2(g) of the Act.
So a reference to the Drugs Act was still necessary.
No doubt this is an inclusive definition.
To enlarge its deno tation a specific provision to include Ayurvedic prepara tions containing selfgenerated alcohol which are not capable of being consumed as ordinary alcoholic beverages was neces sary.
That having not been done by the Explanation itself, it was not permissible to include it by the Circular.
The Explanation I could not have been in conflict with the provisions of the Act and the Circular could not have been in conflict with the Explanation, the Schedule, the Rules and the Act.
In the result, we set aside the judgment and decree of the High Court and restore those of the Civil Judge decree ing the suit.
We leave the parties to bear their own costs.
Y. Lal Appeal allowed.
| IN-Abs | The appellant is a company having its registered office at Ahmednagar in Maharashtra.
It carries on business as manufacturers of Ayurvedic preparations including "Asvas" and "Aristhas".
At the material time the appellant was manufacturing and selling an Ayurvedic product, "Ashvagand harist" which is a medicinal preparation containing self generated alcohol but not capable of being consumed as ordinary alcoholic beverages.
came into force on 1.4.1957.
The schedule to the said Act contained two items specifying "medicinal and toilet preparations containing alcohol" which are prepared by distillation or to which alcohol has been added and which are capable of being consumed as ordinary "alcoholic bever age" and "medicinal and toilet preparations not otherwise specified containing alcohol" as the commodities excisable under the provisions of the Act.
The said "Ashvagandharist" was treated and accepted by the Excise Authorities as being exempt from the payment of excise duty upon the basis and footing that the same was an Ayurvedic preparation contain ing self generated alcohol which was not capable of being consumed as ordinary alcoholic beverage and which fell under item 2(i) of the schedule in respect of which, the rate of excise duty prescribed in the schedule was "Nil".
130 The Act was amended by Amendment Act 19 of 1961 whereby concept of "patent and proprietary" medicine was introduced in the schedule.
The Amendment Act, by an Explanation intro duced in the schedule the definition of "patent and proprie tary" medicine contained in the Drugs Act 1940.
Despite the said amendment in the schedule the appellants ' product continued to be treated as exempt from the liability to pay excise duty on the ground that it was covered under item 2(i) of the schedule which item was re numbered as item 3(i) of the schedule.
Thereafter by section 18 of the Finance Act 1962, the Act was further amended by substitution of Expla nation I to the schedule of the Act.
By the said explana tion, a "patent and proprietary" medicine was defined as a medicinal preparation of the description and the type speci fied in the Explanation.
The said Explanation was given retrospective effect from April 23, 1962.
In pursuance of the said Explanation I brought by the Finance Act, Director of Prohibition and Central Excise, Govt.
of Maharashtra, Bombay issued a circular dated May 31, 1962, which inter alia directed that the medicinal preparations containing self generated alcohol but not capable of being consumed as alcoholic beverage were to be treated as products falling under Item No. I and not Item 3 of the schedule.
As a result of that circular, the Respondents levied excise duty on the appellants ' product amounting to Rs.2, 18,282.16p.
and realized the same from the appellant.
The appellant paid the amount "under protest".
With a view to recover the aforesaid amount, which according to the appellant, was illegally recovered by the Respondents, the appellant filed a suit, being special suit No. 23 of 1965 in the Court of Civil Judge Sr. Division, Ahmednagar.
The Civil Judge by his order dated 27.3.69 decreed the appellantplaintiff 's suit with interest at 6% per annum from the date of the suit till realisation.
The Respondents appealed to the High Court against the Order of the Civil Judge and the High Court allowed the appeal, reversed the Judgment and decree passed by the Civil Judge and dismissed the appellant 's suit.
Hence this appeal by the plaintiff appellant by special leave.
Allowing the appeal, this Court, HELD: From Explanation I of the Schedule of the Act as substituted by Act 5 of 1964 it is clear that patent or proprietary medicine 131 means any medicinal preparation which is not specified in a monograph in a Pharmacopoeia, Formulary or other publica tions notified in this behalf by the Central Government in the Official Gazette.
[144C] To be a patent medicine one would be required to have a patent.
A patented article means an article in respect of which a patent is in force, [144D] A patent medicine will, therefore, mean medicine in respect of which a patent is in force.
[144E] Patent means a grant of some privilege property, or authority, made by the Government or sovereign of a country to one or more individuals.
A proprietor is one who has the legal right or exclusive title to anything.
It is synonymous with owner.
A person entitled to a trade mark or a design under the Acts for the registration or patenting of trade mark or design is called a proprietor of the trade mark or design.
[144E F] A Schedule in an Act of Parliament is a mere question of drafting.
It is the legislative intent that is material.
An Explanation to the Schedule amounts to an Explanation in the Act itself.
[147F] The Schedule may be used in construing provisions in the body of the Act.
It is as much an Act of the Legislature as the Act itself and it must be read together with the Act for all purposes of construction.
Expressions in the Schedule cannot control or prevail against express enactment and in case of any inconsistency between the schedule and the enactment, the enactment is to prevail and if any part of the schedule cannot be made to correspond it must yield to the Act.
[147H; 148A B] An explanation is different in nature form a proviso, for a proviso excepts, excludes or restricts while an expla nation explains or clarifies.
Such explanation or clarifica tion may be in respect of matters whose meaning is implicit and not explicit in the main section itself.
[149F] Bihta Marketing Union vs Bank of Bihar, ; ; ; State of Bombay vs United Motors, ; ; Collector of Customs vs G. Dass & Co., AIR 1966 SC 1577; Burmah Shell Oil Ltd. vs Commercial Tax Officer, AIR 1961 SC 315: ; Dattatraya Govind Mahajan vs State of Maharashtra, ; (928): ; and Hiralal 132 Ratanlal vs State of U. P., ; Ex praecedentibus et consequentibus optima fit interpre tatio.
The best interpretation is made from the context.
Injustum est nisi tota lege inspecta, de una aliqua ejus particula proposita judicare Vel respondere.
It is unjust to decide or respond as to any particular part of a law without examining the whole of the law.
Interpretare et concordare leges ligibus, est optimus interpretendi modus.
To interpret and in such a way as to harmonize laws with laws, is the best mode of interpretation.
[151G H] Jura eodem modo distituentur quo constitutuntur.
Laws are abrogated by the same means (authority) by which they are made.
[152A] Every word in a Statute is to be given a meaning.
A construction which would leave without effect any part of the language of a statute will normally be rejected.
Every clause of a statute is to be construed with reference to the context and other clauses of the Act so as to make, as far as possible, a consistent enactment of the whole statute.
[152B] A specific provision to include Ayurvedic preparations containing self generated alcohol which are not capable of being consumed as ordinary alcoholic beverages was neces sary.
That having not been done by the Explanation itself, it was not permissible to include it by the Circular.
The Explanation I could not have been in conflict with the provisions of the Act and the Circular could not have been in conflict with the Explanation, the Schedule, the Rules and the Act.
[152E F] The Court set aside the order of the High Court and restored that of the Civil Judge decreeing the suit.
[152G] Inland Revenue Commissioners vs Gittus, [1920] I KB 563; Baidyanath Ayurved Bhawan Pvt. Ltd. vs The Excise Commis sioner, U.P.; , ; Mohanlal Maganlal Bhavsar vs Union of India, ; Commissioner of Sales Tax vs The Modi Sugar Mills Ltd., ; and Cape Brandy Syndicate vs Commissioners of Inland Revenue, , referred to.
|
Civil Appeals Nos.
1573/88, 3954/87 and 3370 of 1988.
From the Judgment and Order dated 1.2.1988, 10.6.1987 and 28:4.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. C/1373/85 C Order No. 87.,88 C, 1704/83 D Order No. 463/87 D and Appeal No. C 605 1986(C) in Order No. 429/88 C respectively.
A.K. Ganguli, P. Parmeshwaran, T.V.S.N. Chari and Mrs. Sushma Suri for the Appellant.
section Ganesh, K.J. John and San jay Grover for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
These three appeals under Section 130 E(b) of the raise the same issue.
They are therefore disposed of by a common order.
The respondent M/s.
K. Mohan & Co. imported, from Japan, "metallised poIyester films" under an import licence dated 14.6.1978.
The goods were admittedly in the shape of film rolls several metres long.
They were cleared on payment of customs duty leviable under the (CA) as well as the additional duty of customs (or countervailing duty) leviable under section 3 of the Customs Tariff Act, 1976 (CTA).
Subsequently, the respondent firm made three applica tions for the refund of the amount of the additional duty of customs paid by it.
The claim for refund was based on the terms of a notification of exemption issued under section 25(1) of the CA.
Under notification No. 228/76 dated 2.8.1976, an exemption from the customs duty payable under section 3 of the CTA was granted in respect of "articles made of plastics, all sorts, but excluding those specified in the table an nexed hereto and falling within Chapter 39 of the First Schedule to the (51 of 1975)".
The annexed table 234 excepted the following items from the purview of the exemp tion: "Tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexible including tubings and polyvinyl chloride sheets".
Notification No. 443 dated 29.11.76 omitted the words of notification No. 228 which have been underlined above but left the main notification otherwise untouched.
The assesses ' claim for refund was accepted by the Tribunal.
The Tribunal held that the goods imported by the respondent were articles made of plastics.
But they were 'films ' and not one of the categories of articles enumerated in the table.
In reaching its conclusion, the Tribunal followed the decisions, of the Madras High Court in Precise Impex P. Ltd. vs Collector, , of the Calcut ta High Court in Continental Marketing P. Ltd. vs Union, and of the Bombay High Court in A.V. Jain vs Union, WP 2136 of 1986, decided on 30.1. 1987.
The Tribu nal also referred to its own earlier decisions in Export India Corpn.
P. Ltd. vs Collector and Collector vs Fancy Dyeing and Printing works, Bombay.
The Collector of Customs is aggrieved by the orders of the Tribunal and hence these appeals.
There are three appeals as there were three appli cations for refund by the assessee in respect of different periods.
There is no dispute before us that the goods in question are articles made of plastics.
This being so, the assessee is entitled to the exemption conferred by the notification unless the goods answer the description of one or other of the specific items set out in the table.
The onus of showing this is clearly on the Revenue.
The department contends that the goods are "sheets" or "foils" or "other rectangular or profile shapes" and hence liable to duty.
On the other hand the assesses ' case is that they are "films", a specie of plastic articles different from any mentioned in the table.
It is alternatively contended that, even if they are treated only as thin sheets of plastic material, they can be more accurately described only as "sheetings" and not "sheets".
It is pointed out that the goods are in the form of large rolls containing films several metres long.
Such huge lengths can only be called "sheetings" for the expression "sheets", it is said, connotes only smaller lengths or bits cut out from "sheetings" which mean sheets of immense lengths.
Also, being in the form of rolls, they cannot be said to be articles of "rectangular shape" merely because, when cut into segments, they may fall into rectangular pieces.
235 After giving the matter our careful consideration, we are of opinion that the view taken by the three High Courts and the Tribunal that "films" made of plastic fall in a category of their own and do not fall within the categories of articles excepted by the table is correct.
We have come to this conclusion because there are various statutory indications and other material which support such a conclu sion: (1) Duty under the CTA in respect of artificial resins, plastic materials of various types and articles thereof is leviable under section 3 read with Chapter 39, containing heading nos.
39.01/06 and 39.01/07 in section VII of the First Schedule to the CTA.
This aspect found a reference in the original notification No. 228 but was omitted, apparently as being redundant, by the amendment of 29.11.1976.
In Note 3 at the commencement of the said Chapter 39, clause (c) talks of "seamless tubes, rods, sticks and profile shape while clause (d) refers to "plates, sheets, films, foils and strips".
This indicates that plates, sheets, films, foils, etc.
are categories of plastic articles distinct from one another.
(2) Notification No. 228 contains a reference to the tariff schedule under the Central Excises & Salt Act, 1944 (CESA).
The CESA, read with item 15A of its First Schedule, provides for the levy of an ad valorem duty of excise on all "artificial or synthetic resins and plastic materials and cellulose esters and ethers and articles thereof" described in greater detail in sub items (1) to (4) thereunder.
Of these, sub item (2) reads: (2) Articles made of plastics all sorts, including tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexi ble, including lay flat tubings and polyvinyl chloride sheets, not otherwise specified"; and Explanation I appended to item 15A clari fies: "For the purpose of sub section (2), "plas tics" means the various artificial or synthet ic resins or plastic materials or cellulose esters and ethers included in sub item (1)" Comparing item 15A of the CESA tariff with the notification under consideration, it will be seen that the intention was to exempt, from countervailing duty, "articles made of plastics, all sorts" (the expression "plastic" having the very wide meaning given to it in Explanation 236 I of the CESA tariff) and falling within the main part of sub item (2) of item 15A and to deny exemption to goods which fall under the second (inclusive) part of the said sub item.
In this context it is of some interest to refer to item 15A as substituted by the Finance Act, 1982.
This item describes in greater detail than before various "artificial and synthetic resins and plastic materials" liable to duty.
of these item (2) reads: "Article of materials described in sub item (1) including the following, namely: Boards, sheeting, sheets and films, whether lacquered or metallised or laminated or not: lay flat tubings not containing any textile material.
This item, it will be seen, does not stick to the classifi cation made earlier in sub item (2).
However, it does make a distinction between "sheeting, sheets and films".
(3) There are a number of exemption notifications issued under rule 8(1) of the Central Excise Rules in respect of items falling under Item No. 15A of the CESA Tariff which make a pointed reference to 'films ' and draw a similar distinction as above.
Notification No. 68 of 1971 dated 29.5.
1971 exempts articles made of plastics, all sorts, falling under sub item (2) of Item No. 15A except (i) rigid plastic boards, sheeting, sheets and films, whether laminat ed or not; and (ii) flexible polyvinyl chloride sheeting, sheets, films and lay flat tubings not containing any tex tile material.
Notification No.69 of 1971, dated 29.5.1971, read with notification No. 7417 and 107/73, exempts articles made of polyurethane foam except, inter alia, sheets and sheetings.
Notification No. 70 of 1971, of the same date, restricts the duty on rigid polyvinyl chloride boards, sheeting, sheets and films.
Notification No. 71 of 1971, also of the same date, grants limited exemption, subject to certain conditions to rigid plastic boards, sheeting, sheets and films, whether laminated or not, other than those manu factured from polyvinyl chloride.
Notification No.72 of 1971 of the same date limits the excise duty in respect of flexi ble polyvinyl chloride sheeting, sheets, films and lay flat tubings, not containing any textile material and falling under sub item (2) of Item No. 15A to 25 per cent (amended later to 30%) ad valorem, subject to certain conditions.
Notification No. 39 of 1973 dated 1.3.
1973, exempts rigid and flexible polyvinyl chloride films of thickness below 0.25 mm as well as polyvinyl chloride lay flat tubings in certain circumstances.
By notifi 237 cation No. 151 of 1975 dated 31.5.1975 exemption was granted in respect of cellulose tri acetate, when intended for use in the manufacture of cine films, X ray films or photograph ic films.
Item 15B talks of "film or sheet" of cellulose and a notification of 1981 specifically added item 15BB to the Tariff under CESA dealing with polyster films as a separate item, though this entry was subsequently omitted by the Finance Act of 1982.
All these indicate that 'film ' is a well known, distinct and independent category of plastic article known to commerce.
(4) There is a like distinction maintained even by the notifications issued under section 25 of the in regard to items falling within chapter 39 of the First Schedule to CETA.
Notification No. 227 dated 2.8.1976 limits the rate of duty on various items, two of which are "film scrap" and "cellulose nitrate sheets and cellulose nitrate films".
We then have notification No. 223 of the same date, which falls for interpretation now and which omits a refer ence to "films" while enumerating various other categories of plastic articles.
Notification No. 229, also of 2nd August, 1976, restricted the customs duty on metallised or plain plastic films imported for certain specified purposes to 60%.
Notification Nos. 230 dated 2nd August, 1976 and 36 of 1.3.
1978, also granted limited exemption to other types of polyster films.
(We must, however, point out that these last two notifications are somewhat ambiguous for our present purposes as they also specifically provide for an exemption to the said articles from the additional duty which, on the argument of the assessee before us, would be really unnecessary.
The Revenue 's stand is that the articles in question may be films in a generic sense but that, in this particular case, they are either 'foils ' or 'sheets '.
For this purpose our attention is drawn to the discussions contained in the Bombay case where the issue was decided on the basis of evidence produced by both parties.
This shows that according to the glossary of terms used in the plastic industry issued by the Indian Standards Institution (IS 2828 1954, as well as in 1979), a film is "a sheeting having nominal thickness not greater than 0.25 mm".
A report of the Chief Chemist of the Customs Department as well as extracts from certain text books were produced to show that 'foil ' is the term "applied to materials which are made in continuous rolls and are less than 1/1000th of an inch thick (0.254 mm).
In the present case, the film rolls were of thickness varying between 0.025 mm to 0.501 mm.
It is, therefore, submitted that to the extent the material was less than .0254 mm in thickness it would constitute 'foils ' and to the extent 238 it exceeded 0.25 mm in thickness it will be a 'sheet '.
It is urged that since 'sheets ' and 'foils ' are specifically mentioned in the entry in question, the imported goods, at least to the extent indicated above, cannot qualify for exemption.
The answer given by the Bombay High Court to the conten tion that the goods were 'foils ' was that while it may be that, technically and scientifically speaking, the articles in question may be capable of being characterised as 'foils ', one is concerned in a customs or excise matter not so much with the technical or scientific definitions of these terms but rather with commercial usage.
One has to see how the trade understands the expression "films" and one should also bear in mind in this connection that the expres sions set out in the table are applicable not merely to the articles with which we are at present concerned but also to various other types of articles of plastics with varied commercial use.
The question is whether the trade under stands the article presently in question as a 'film ' or whether there is a distinction in trade usage also between 'foils ' and 'films '.
It has been pointed out by the Bombay High Court, on the basis of the evidence before it, that in the understanding of those who are in this particular trade, metallised polyester films are referred to as 'films '.
Reference has been made to the classification made by the only manufacturer of polyester films in India for purposes of CEA.
Reference has also been made to the brochures brought out by the Japanese manufacturers of the goods in question which show that metallised polyester 'films ' could consist of films of the thickness of even 12 to 25 microns.
It has been pointed out that, under the Import Export Policy of India for 1984 85, reference has been made to metallised polyester 'films ' having thickness of even less than 6 microns which are used in the electronic industry.
In the light of the above material and the absence of any additional material led in the present case, we agree with the view of the Bombay High Court that, though for certain purposes there is a distinction between 'films ', 'foils ' and 'sheets ', so far as the article presently in question is concerned it is recognised in trade only as 'film '.
It is difficult to imagine any person going to the market and asking for these films by describing them either as 'foils ' or as 'sheets '.
We are therefore of opinion that the goods under consideration cannot be described either as 'foils ' or as 'sheets '.
There is also another reason why the articles in the present case, to the extent they have thickness of more than 0.25 mm cannot be described as 'sheets '.
Shri Ganesh for the assessee contended and we 239 think rightly that a film roll of indefinite length and not in the form of individual cut pieces can be more appropri ately described as 'sheetings ' rather than 'sheets '.
The Indian Standard Institution also defines 'sheets ' as a piece of plastic 'sheeting ' produced as an individual piece rather than in a continuous length or cut as an individual piece from a continuous length.
We have also earlier pointed out that there are various items in various notifications making distinct reference to sheets and sheetings.
Actually, we also think that there is a factual confusion on this aspect.
While One of the Collectors has referred to the goods as being of thickness varying between 0.025 mm and 0.501 mm, it is seen from another of the orders that the goods are 3000 metres in length, 0.501 mm in width and 0.025 mm in thick ness.
If the latter is the correct version and all the goods are only 0.025 mm in thickness, the question now posed will not at all arise.
However, as indicated above, there is force in the contention of Shri Ganesh that if the articles be held not to be 'films ', because they exceed 0.25 mm in thickness, they would be 'sheetings ' rather than 'sheets ' and would therefore not fall within the meaning of the expression "sheets" in the table.
We would also like to add that the expression 'other rectangular or profile shapes ' in the table is also not appropriate to bring in the items in question.
For one thing, the articles have a distinct name in the market as 'films ' and therefore they are outside the table as already pointed out.
For the same reasons as we have mentioned in the context of 'foils ' and 'sheets '; it will not be possible to accept the contention that articles which have a clear commercial identity as 'films ' should be brought within the wide and vague expression "other rectangular or profile shapes", because, if the film is cut into small pieces, each piece will be rectangular in shape, The items imported do not come in a rectangular shape; they are imported as rolls of polyester films.
They are not articles of rectangular shape.
Nor would it be possible to treat them as of other 'profile ' shapes.
We are unable to attribute any precise meaning to the expression 'profile ' shape but it cannot be taken to be comprehensive enough to take in any shape what ever, as is contended for.
If we give the expression 'rec tangular or other profile shapes ' in the table such wide and unrestricted interpretation as is suggested, then practical ly any article of plastic can be brought within the meaning of one or other of the expressions used in the table and thus the entire exemption can be altogether deprived of any content.
For the above reasons, we are of opinion that the articles are 240 'films ' and, as this expression does not find specific mention in the table, the assessee is entitled to exemption under the main part of the notification.
The conclusion arrived at by the Tribunal is therefore upheld and these appeals are dismissed with no orders as to costs.
Y. Lal Appeals dis missed.
| IN-Abs | The Respondent firm imported from Japan, "metallised polyester films" which were in the shape of film rolls several metres long.
The goods were cleared on payment of customs duty as well as additional duty/countervailing duty leviable under section 3 of the Customs Tariff Act.
Thereaf ter the Respondent firm moved three applications claiming refund of the additional duty of customs paid by it.
The claim was made under the terms of a notification of exemp tion issued under section 25(1) of the Customs Act.
Under notification No 228/76 dated 2.8.1976, an exemption from the Customs Tariff Act was granted in respect of "articles made of plastics, all sort but excluding those specified in the Table annexed and failing under Chapter 39 of the First Schedule to the Customs Tariff Act.
The Tribunal accepted the claim of refund made by the ' Respondent.
In so doing it relied on the decisions of the Madras High Court in Precise Impex P. Ltd. vs Collector, , of the Calcutta High Court in Continental Marketing P. Ltd. vs Union, and of the Bombay High Court in A.V. Jain vs Union, WP 2136 of 1986 decided on 30.1.1987.
The Tribunal also referred to its earlier decision in Export India Corporation P. Ltd. vs Collector; and Collector vs Fancy Dying and Printing Works Bombay.
The Tribunal held that the goods imported by the Re spondent were articles made of plastics but they were "films" and thus not one of the Categories of articles mentioned in the Table.
Aggrieved by the decision of the Tribunal, the Collector of Customs has filed these appeals under section 130 E(B) of the . 232 Before this Court the Department contended that the goods are "sheets" or "foils" or other "rectangular or profile shape" and hence liable to duty.
The assesses ' assertion is that the goods are "films" though specie of plastics articles yet they are different from any mentioned in the table.
According to it even if they are treated only as thin sheets of plastic material, they can be described only as "sheetings" and not sheets.
On consideration of the rival contentions advanced by the parties and after making reference to the other relevant notifications granting exemption issued under rule 8(1) of the Central Excise Rules in respect of items falling under Item No. 15A of the Central Excise Tariff Act, this Court dismissing the appeals, HELD: Films made of plastic fall in a category of their own and do not fail within the categories of articles ex cepted by the Table.
Film is a well known, distinct and independent category of plastic article known to commerce.
[235A] The Court agreed with the view of the Bombay High Court that, though for certain purposes there is a distinction between "films", "foils" and "sheets", so far as the article presently in question is concerned it is recognised in trade only as "film".
[238F] The goods under consideration cannot be described either as "foils or sheets".
A film roll of indefinite length and not in the form of individual cut piece can be more appro priately described as "sheetings" rather than ' 'sheets".
[238G ;239A] The expression "other rectangular or profile shapes" in the table is also not appropriate to bring in the items in question.
For one thing, the articles have a distinct name in the market as "films" and therefore they are outside the table.
It will not be possible to accept the contention that articles which have a clear commercial identity as "films" should be brought within the wide and vague expression "other rectangular or profile shapes", because if the film is cut into small pieces each piece will be rectangular in shape.
The items imported do not come in a rectangular shape they are imported as rolls of polyester films.
They are not articles of rectangular shape.
Nor would it be possible to treat them as of other "profile" shape.
The Court was unable to attribute any precise meaning to the expression "profile" shape but it cannot be taken to be comprehensive enough to take in any shape whatever.
If the expression "rectangular" or other "profile" shape in the table is given 233 such wide and unrestricted interpretation then practically any article of plastic can be brought within the meaning of one or other of the expressions used in the Table and thus the entire exemption can be altogether deprived of any content.
The Court took the view that the articles are "films" and, as, this expression does not find specific mention in the table, the assessee is entitled to exemption under the main part of the notification.
[239E H; 240A]
|
ivil Appeal No. 2653 of 1980.
From the Judgment and Order dated 24.7.1980 of the Delhi High Court in L.P.A. No. 113 of 1980.
V.M. Tarkunde, A.B. Lal and V.N. Ganpule for the Appellant.
T.S.K. Iyer and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
The appellant Ajit Singh was appointed as Grade II Stenographer on February 2, 1953 and was promoted to the post of Senior Personal Assistant w.e.f.
April 1, 1970.
On January 4, 1974 he was further promoted to the post of Private Secretary to the Deputy Election Commissioner in which capacity he worked till July 26, 1977 when the Deputy Election Commissioner under whom he was working relinquished charge of office.
The first respondent is the Chief Election Commissioner.
One Tilak Raj was the Private Secretary to the first re spondent.
On the said Tilak Raj being promoted as Under Secretary, the post of Private Secretary to the Chief Elec tion Commissioner fell vacant and it was not filled in forthwith.
However, by an order dated October 23, 1979 respondent No. 2 M.L. Sarad was appointed to the same post w.e.f. September 1, 1979.
On learning about the appointment of respondent No. 2 to the said post the appellant com plained that the said appointment was contrary to the Elec tion Commission (Recruitment of Staff) Rules, 1974 (herein after called 'the 1974 Rules ').
The appellant 's representa tion was rejected on the ground that he was not eligible for appointment to the post in question.
The appellant then filed a Civil Writ Petition No. 1583 of 1979 in the High Court of Delhi challenging the notifica tion dated October 23, 1979 appointing M.L. Sarad to offici ate as Private Secretary to the Chief Election Commissioner w.e.f. September 1, 1979 as well as the Memorandum dated October 26, 1979 informing him that he was 252 eligible for appointment to the said post.
During the pend ency of this writ petition it was disclosed to the Court that the Commission proposed to make suitable changes in the 1974 Rules insofar as appointment to the post of Private Secretary to the Chief Election Commissioner was concerned.
The leave of the Court was sought to amend the 1974 Rules.
It was also disclosed that the Commission proposed to with draw the order of October 23, 1979 appointing M.L. Sarad as Private Secretary to the Chief Election Commissioner.
The Court granted leave to the Commission to amend the 1974 Rules.
By the notification dated December 3, 1979 earlier notification of October 23, 1979 appointing M.L. Sarad as officiating Private Secretary to the Chief Election Commis sioner was withdrawn.
The 1974 Rules were amended by notifi cation dated December 10, 1979 by the President in exercise of the power conferred by the proviso to Article 309 of, the Constitution of India.
By the said amendment entry at serial No. 9 relating to the post of the Private Secretary to Chief Election Commissioner and the entries relating thereto came to be omitted.
The respondent No. 1 brought these two changes to the Court 's notice by an application dated Decem ber 21, 1979.
Thereupon, the appellant sought leave to amend the memo of his writ petition.
The Commission also informed the appellant by its communication dated January 17, 1980 that it had withdrawn its earlier memorandum of October 26, 1979 whereby it was stated that the appellant was not eligi ble for appointment to the said post.
The Court took notice of these facts but thought that the writ petition survived, since the appellant was not considered for appointment to the post in question w.e.f. September 1, 1979.
Besides the appellant also challenged the Election Commission (Recruit ment of Staff) Amendment Rules, 1979 (hereinafter called 'the 1979 Rules ') by which entry at serial No. 9 came to be omitted.
The contention of the appellant was that the entire exercise culminating in the amendment of 1974 Rues was mala fide and was undertaken with the sole purpose of depriving him of appointment to the said post.
It may here be men tioned that after the 1979 Rules came into force respondent No. 2 was re appointed to the same post by notification dated February 27, 1980 w.e.f. the previous day.
It was contended that the 1979 Rules had the effect of conferring an absolute discretion on the Chief Election Commissioner to appoint any person of his choice to the post in question.
To put it differently the appellant contended that the amend ment conferred arbitrary and unfettered power on the Chief Election Commissioner to appoint any person he deemed fit as his Private Secretary regardless of his qualification.
It was further contended before us by the learned counsel for the appellant that if the appellant had been appointed to the post in question on September 1, 253 1979 the subsequent amendment of the Rules would not have operated retrospectively to his detriment and he would have continued as Private Secretary even after the amendment.
A learned Single Judge of the High Court came to the conclusion that the 1979 Rules were not mala fide nor were they arbitrary as alleged by the appellant.
The High Court also came to the conclusion that since the memorandum of October 26, 1979 was withdrawn the appellant was entitled to be considered for appointment to the post of Private Secre tary w.e.f. September 1, 1979.
The High Court, therefore, directed Class II Departmental Promotion Committee to con sider the case of the appellant for appointment to the post of Private Secretary to the Chief Election Commissioner w.e.f. September 1, 1979.
It ordered that if the appellant is selected for appointment by promotion to the said post his appointment will be deemed to have been made on ad hoc basis from September 1, 1979 to December 14, 1979 after which the 1979 Rules came into force.
Monetary benefits due to the appellant on such appointment were ordered to be calculated and paid.
The appellant feeling aggrieved by this order preferred an appeal, L.P.A. No. 113 of 1980, before a Division Bench of the same High Court.
This Letters Patent Appeal was summarily dismissed on July 24, 1980.
Feeling aggrieved by the said order the petitioner approached this Court and secured special leave under Article 136 of the Constitution.
Mr. Tarkunde, the learned counsel for the appellant, reiterated the same contentions which were convassed before the learned Single Judge of the High Court and added that if the appellant was appointed w.e.f. September 1, 1979, the subsequent amendment of the Rules would not have stood in his way and he would have continued as Private Secretary to the Chief Election Commissioner even after the amendment of the said Rules.
He, therefore, contended that the High Court was not right in limiting the relief in regard to the appel lant 's appointment upto December 14, 1979 i.e. till the 1979 Rules came into force.
It may at this stage be pointed out that pursuant to the order of the High Court directing the Class II Departmental Promotion Committee to consider the case of the appellant for appointment to the post of Private Secretary w.e.f. September 1, 1979, the said Committee met on May 9, 1980 and considered the case of all eligible persons for appointment to the post in question w.e.f. September 1, 1979.
The Departmental Promotion Committee did not find anyone suitable for appointment tO the said post.
Intimation in that behalf was given to the appellant by the memorandum of May 14, 1980.
This decision of the 254 Departmental Promotion Committee sets at rest the argument that the appellant would have continued as Private Secretary had he been appointed to the said post w.e.f. September 1, 1979.
Mr. Tarkunde, the learned counsel for the appellant, rightly did not seriously contend before us that the 1979 Rules were mala fide and were made solely with a view to deny appointment to the appellant as Private Secretary to the Chief Election Commissioner.
It must be realised that in reply to the proposal to amend the extent rules the Ministry of Law, Justice and Company Affairs, in consultation with the Department of Personnel and Administrative Reforms, wrote to the Commission on December 5, 1974 as under. "The post of Private Secretary to the Chief Election Commissioner is borne on the personal staff of the Chief Election Commissioner and appointment thereto is outside the purview of the U.P.S.C. vide entry 5 of Schedule to the Union Public Service Commission (Exemption from consultation) Regulations 1958.
The appointment of a person thereto may be made by the Chief Election Commissioner at his discre tion without the consultation of the Union Public Service Commission.
The appointment to the post of Private Secretary to the Chief Election Commissioner is also co terminus with the appointment of Chief Election Commission er.
In view of this position, the Department of Personnel and Administrative Reforms have advised that the Recruitment Rules for the post of Private Secretary to the Chief Elec tion Commissioner need not be made.
The Rules for the post as proposed by the Commission have therefore not been notified." After the amendment of the 1974 Rules the Commission issued an office order dated February 18, 1980 stating that ap pointment to the post of Private Secretary shall be made 'in the absolute discretion of the Chief Election Commissioner ' from amongst persons of suitable class or category serving in the Commission or from outside, as he may deem fit.
The words 'in the absolute discretion of the Chief Election Commissioner ' were construed by counsel to mean that arbi trary and unfettered power was conferred to the Chief Elec tion Commissioner in the matter of choice of his Private Secretary.
The office order further stated that the appoint ment of the incumbent to the said post 'shall be co terminus with the incumbency in the post of the Chief Election Com missioner '.
This order shows that after the amendment of the 255 1974 Rules the matter in regard to the choice of personnel for the post of Private Secretary to the Chief Election Commissioner was left to the sole discretion of the Chief Election Commissioner.
It will appear from the above developments that the proposal for the amendment of the relevant recruitment Rules was moved way back in July 1970.
The advice given by the Law Ministry by their communication of December 5, 1974 was ultimately accepted by the Commission.
By the letter of March 19, 1975, the Law Ministry, however, informed the Commission that the Commission 's proposal would be consid ered at the time if change in the incumbency in the post of the Chief Election Commissioner.
That was why the process of amendment of the 1974 Rules was delayed until December 1979.
The incumbent to the post of Chief Election Commissioner at all material times had, therefore, nothing to do with the proposal to amend the recruitment rules.
It was, therefore, impossible to contend that respondent No. 1 's action was mala fide and was actuated with the sole desire to deny promotion to the appellant to the post of Private Secretary to the Chief Election Commissioner.
Coming to the next limb of attack it must be realised that in a democratic republic like ours the office of the Chief Election Commissioner is of vital importance.
Article 324 confers the power of superintendence, direction and control of elections in the Chief Election Commissioner.
Free and fair elections are the basic postulates of any democratic order.
A duty is cast on the Chief Election Commissioner to ensure free and fair elections.
This makes the post of the Chief Election Commissioner a sensitive one.
The Chief Election Commissioner has to deal with several matters which are brought before him by political parties as well as the Government.
His office is called upon to handle correspondence which require a high degree of secrecy and confidentiality.
He would naturally require the services of his Private Secretary for handling such highly secret and confidential files and correspondence.
It is, therefore, imperative that the person working as Private Secretary to the Chief Election Commissioner must be one in whom implicit faith and confidence can be placed.
He must be a man of impeccable character and integrity, besides being competent in secretarial work.
Integrity, honesty and competence are the basic hallmarks for the post.
In addition, he must be a person in whom the Chief Election Commissioner has absolute trust and faith.
It is for this reason that the tenure of the post is made co terminus with the tenure of the Chief Election Commissioner.
That is for the obvious reason that a man chosen by the predecessor may not be enjoying the 256 same degree of confidence of his successor.
He may like to have his own man of confidence to attend of his secretarial work.
It is, therefore, not without reason that the choice of personnel to the post of Private Secretary is left to the Chief Election Commissioner himself.
This is nothing new.
Similar provision is made for certain other functionaries as can be seen from the Home Department 's Notification dated 1st September, 1958 as amended from time to time.
We are, therefore, of the opinion that having regard to the special needs of the post it was imperative to leave the matter of choice of personnel in the absolute discretion of the Chief Election Commissioner.
We, therefore, do not think that the office order of February 18, 1980 can be struck down.
The High Court was, therefore, right in limiting the relief upto December 14, 1979 i.e. till the 1974 Rules became effective.
Since consultation with the U.P.S.C. was not necessary after the amendment introduced by the 1979 Rules, the Chief Elec tion Commissioner was entitled to choose the man of his confidence as Private Secretary.
The choice of respondent No. 2 to the post cannot, therefore, be questioned.
In view of the above, we do not see any merit in the contentions urged before us by the learned counsel for the appellant.
We, therefore, dismiss this appeal but in the facts and circumstances of the case leave the parties to bear their own costs.
Y. Lal Appeal dismissed.
| IN-Abs | The appellant was working as Private Secretary to the Deputy Election Commissioner until July .26, 1977 when the Deputy Election Officer under he whom was working relin quished his charge.
One Tilak Raj who was working as Private Secretary to Chief Election Commissioner was promoted as Under Secretary.
In order to fill the vacancy caused by his promotion, Re spondent No. 2 M.L. Sarad, was appointed to the said post w.e.f. September 1,1979.
The appellant made a representation complaining that the said appointment was contrary to the Election Commission {Recruitment of Staff) Rules, which was rejected on the ground that he was not eligible for appoint ment to the said post.
Thereupon, the appellant filed a Writ Petition challenging the notification dated 23.10.79 ap pointing the said M.L. Sarad as Private Secretary.
During the pendency of the Writ Petition the Commission under due intimation to the Court amended the 1974 Rules as a result of which entry at serial No. 9 relating to the Post of P.S. to Chief Election Commissioner was omitted.
The appellant was informed by the Commission that it had withdrawn the Memo of October 26, 1979 wherein it was stated that the appellant was not eligible for appointment to the post in question.
The Court took due notice of the amendment but held that the Writ Petition survived since the appellant was not considered for appointment to the post w.e.f. 1.9.79.
The appellant contended before the High Court that (i) the entire exercise culminating in the amendment of the Rules was mala fide; (ii) that the amendment conferred arbitrary and unfettered power on the Chief Election Commis sioner to appoint any person as his Private Secretary; (iii) that in case the appellant had been appointed to the post on 1.9.79, subsequent amendment of the Rules would not have operated 250 retrospectively to his detriment and he would have contin ued.
The High Court came to the conclusion that the 1979 Rules were not mala fide nor were they arbitrary and that since the memo of 26.10.79 was withdrawn, the appellant was entitled to be considered for appointment to the post in question w.e.f. 1.9.79.
Accordingly the High Court directed the class II Departmental Promotion Committee to consider the case of the appellant to the post in question w.e.f. 1.9.79.
It further ordered that if the appellant is selected for appointment to the said post, his appointment will be deemed to have been made on ad hoc basis from 1.9.79 to December 14, 1979 after which 1979 Rules came into opera tion.
Monetary benefits were also directed to be paid to the appellant.
The appellant being dissatisfied with the aforesaid order preferred Letters Patent Appeal which was summarily rejected on 24.7.80.
The appellant has, therefore, appealed to this Court after obtaining Special Leave.
Dismissing the appeal, this Court, HELD: Article 324 confers the power of superintendence, direction and control of elections in the Chief Election Commissioner.
Free and fair elections are the basic postu lates of any democratic system.
A duty is cast on the Chief Election Commissioner to ensure free and fair elections.
This makes the post of Chief Election Commissioner a sensi tive one.
The Chief Election Commissioner has to deal with several matters which are brought before him by political parties as well as the Government.
His office is called upon to handle correspondence which require a high degree of secrecy and confidentiality.
He would naturally require the services of his Private Secretary for handling such secret and confidential files and correspondence.
Integrity, hones ty and competence are the basic hallmarks for the said post.
In addition, he must be a person in whom the Chief Election Commissioner has absolute trust and faith.
It is for this reason that the tenure of the post is made co terminus with the tenure of the Chief Election Commissioner.
That is for the obvious reason that a man chosen by the predecessor may not be enjoying the same degree of confidence of his succes sor.
He may like to have his own man of confidence to attend to his secretarial work.
It is, therefore, not without reason that the choice of personnel to the post of Private Secretary is left to the Chief Election Commissioner him self.
[255E G] Since consultation with the U.P.S.C. was not necessary after the 251 amendment introduction by the 1979 Rules, the Chief Election Commissioner was entitled to choose the man of his confi dence as Private Secretary.
The choice of Respondent No. 2 to the post cannot, therefore, be questioned.
[256C]
|
ivil Appeal Nos.
1506 1507 of 1974.
From the Judgment and Order dated 4.8.1972 of the Guja rat High Court in Special Civil Appln.
No. 121 of 1972 and 1187 of 1970.
248 G.A. Shah and M.N. Shroff for the Appellants.
V.V. Vaze, Ms. Gitanjali, P.H. Parekh (N.P.), Vimal Dave (N.P.) and M. Mudgal (N.P.) for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These appeals by special leave are directed against the judgment of the Gujarat High Court dated 4.8.1972 quashing the declaration under section 6 of the Land Acquisition Act, Act 1 of 1894, on the ground that the same made on 18th of January, 1969, was issued beyond rea sonable time.
The short facts are: The preliminary notification under section 4(1) of the Act was made on 26.7.1963.
On 16/18, 1,J969, the declaration under section 6 was duly notified.
On 17.1.1972 a writ petition was filed in the High Court challenging the declaration.
The High Court took notice of the Land Acquisi tion (Amendment & Validation) Act of 1967 but relying upon a Division Bench judgment of the same High Court in Valji Mulji vs State, held that the period of 5 1/2 years from the date of the preliminary notification was unreasonable delay for making of the declaration under section 6 of the Act.
The validation provision came into force on 20th Janu ary, 1967.
Two judgments of this Court dealing with this aspect being Gujarat State Transport Corporation vs Valji Mulji Soneji & Ors., ; and State of Gujarat & Anr.
vs Punjabai Nathubhai & Ors., have now concluded the position with reference to the provisions of the Validation Act and on the ratio of these judgments the decision of the Gujarat High Court on which reliance was placed by the High Court in disposing of these matters cannot be sustained.
We accordingly allow the appeals, set aside the decision of the High Court and sustain the decla ration under section 6 of the Land Acquisition Act dated 18.1.
There shall be no order as to costs.
G.N. Appeals allowed.
| IN-Abs | A preliminary notification under Section 4(1) of the Land Acquisition Act, 1894 was made on 26.7.1963.
The decla ration under Section 6 was duly notified on 16/18.1.1969.
A Writ Petition was filed in the High Court challenging the declaration.
The High Court took notice of the Land Acquisi tion (Amendment & Validation) Act, 1967, but held that the delay of 5 1/2 years from the date of the preliminary noti fication was unreasonable, and quashed the said declaration, relying on its own decision in Valji Mulji vs State, These appeals, by special leave, are against the High Court 's judgment.
Allowing the appeals, HELD: 1.
The validation provision came into force on 20th January, 1967.
The position is now concluded and the reliance placed by the High Court on its decision cannot be sustained.
[248E] Gujarat State Transport Corporation vs Valji Mulji Soneji & Ors., ; and State of Gujarat & Anr.
vs Punjabhai Mathubai & Ors., , followed.
The decision of the High Court is set aside and the declaration under section 6 of the Land Acquisition Act is sus tained.
[248F]
|
ivil Appeal No. 3544 of 1989.
From the Judgment and Order No. 131/89 D dated 9.5.
1989 of the Central Excises & Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E/1176/88 D. Rajiv Dutta, Nimish Kothare and K.K. Patel for the Appel lant.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal under section 35L of the Central Excise & Salt Act, 1944 (hereinafter referred to as 'the Act ').
The appellant is a manufacturer of various types of food products known as Sapaghetti, Macaroni, Vermicelli, etc., falling under Heading No. 1902.10 of the Central Excise Tariff Act.
The appellant filed classification list effec tive from 1st March, 1987 claiming that their pre budget stocks of non excisable goods, namely, various types of food products declared in the classification list as aforesaid were entitled to duty free clearance being pre budget stocks.
The Assistant Collector of Central Excise, however, held that the question of clearing pre budget stocks duty free did not arise because the products in question were excisable though exempted from the duty.
There was an appeal from the said order of the Assistant Collector before the Collector of Central Excise (Appeals), Bombay.
He dismissed the appeal.
The appellant went up in appeal before the Tribunal.
It was contended before the Tribunal on behalf of the appellant that the goods in question were not leviable to duty under the aforesaid head until 28th February, 1987 and the said goods had been made dutiable only by the 313 Finance Bill, 1987 88 with effect from 1st March, 1987.
It was submitted further that on 27th February, 1987, the appellant had in their factory a stock of the said product which were fully manufactured, packed and ready for sale and the inventory of the said stock was prepared by the Supdt.
of Central Excise on 1st March, 1987.
Reliance was placed on several decisions of the different High Courts, namely, decision of the Madhya Pradesh High Court in Kirloskar Brothers Ltd. vs Union of India, ; Union of India vs Kirloskar Brothers Ltd., , decision of the Bombay High Court in Synthetic Chemicals Pvt.
Ltd. vs
S.C. Coutinho, , decision of the Bombay High Court in New Chemicals Ltd. vs Union of India, decision of the Madras High Court in Sundaram Textiles Ltd. vs Asstt.
Collector of Central Excise, , decision of the Allahabad High Court in Union of India vs Delhi Cloth & General Mills, On the other hand, the revenue contended that the goods forming the pre budget stocks were very much excisable goods and that for the purpose of collecting duty, date of manufacture was not material under the scheme of the Act even though the taxable event is the manufacture.
It was, therefore, contended that at the time of manufacture of the goods in question, the goods were excisable goods and in view of rule 9A of the Central Excise Rules, 1944, though the taxable event is the manufacture and production, the payment of duty is related to and postponed to the date of removal of articles from the manufactury.
The Tribunal accepted the said contention.
We are of the opinion that the Tribunal was right.
It is well settled by the scheme of the Act as clarified by sever al decisions that even though the taxable event is the manufacture or production of an excisable article, the duty can be levied and collected at a later stage for administra tive convenience.
The Scheme of the said Act read with the relevant rules framed under the Act particularly rule 9A of the said rules, reveals that the taxable event is the fact of manufacture or production of an excisable article, the payment of duty is related to the date of removal of such article from the factory.
In that view of the matter, the Tribunal dismissed the appeal and rejected the assessee 's contention.
Appearing before us in support of the appeal, Mr. Rajiv Dutta, learned counsel for the appellant contended that in several decisions it has been held, and referred us to the said decisions referred to hereinbefore, that the relevant date would be the date of manufacture and in this case the manufacture was complete before the introduction of the budget.
It was submitted that until 28th February, 1987, when, 314 according to Shri Dutta, the goods had been manufactured, the goods in question were unconditionally exempt from the duty.
Under the Finance Bill, 1987 88, the said products were made dutiable at the rate of 15% ad valorem on or from 1st March, 1987.
But the appellant had in their factory, a stock of the said products which were duly manufactured, according to Shri Dutta, packed and ready for sale prior to 28th February, 1987.
In those circumstances, the goods in question, according to Shri Dutta, would not be subjected to duty at 15% ad valorem.
Having considered the facts and the circumstances of the case, we are unable to accept this submission.
Excise is a duty on manufacture or production.
But the realisation of the duty may be postponed for admin istrative convenience to the date of removal of goods from the factory.
Rule 9A of the said rules merely does that.
That is the scheme of the Act.
It does not, in our opinion, make removal be the taxable event.
The taxable event is the manufacture.
But the liability to pay the duty is postponed till the time of removal under rule 9A of the said Rules.
In this connection, reference may be made to the decision of the Karnataka High Court in Karnataka Cement Pipe Factory vs Supdt.
of Central Excise, 13, where it was decided that the words 'as being subject to a duty of ex cise ' appearing in section 2(d) of the Act are only descriptive of the goods and not to the actual levy. 'Excisable goods", it was held, do not become non excisable goods merely by the reason of the exemption given under a notification.
This view was also taken by the Madras High Court in Tamil Nadu (Madras State) Handlook Weavers Cooperative Society Ltd. vs Assistant Collector of Central Excise, [1978] ELT J 57.
On the basis of rule 9A of the said rules, the central excise authorities were within the competence to apply the rate prevailing on the date of removal.
We are of the opinion that even though the taxable event is the manufacture or the production of an excisable article, the duty can be levied and collected at a later date for administrative conven ience.
Having regard to the facts and the circumstances of this case and having regard to the scheme of the excise law, we are of the opinion that the Tribunal was right and there are no grounds to assail the order of the Tribunal.
In the aforesaid view of the matter, the appeal must fail and, accordingly, is dismissed.
there will, however, be no order as to costs.
R.S.S. Appeal dis missed.
| IN-Abs | The appellant is a manufacturer of various types of food products known as Sapaghetti, Macaroni, Vermicelli, etc., failing under Heading No. 1902.10 of the Central Excise Tariff Act.
The said goods had been made dutiable only by the Finance Bill 1987 88 with effect from Ist March, 1987.
The appellant claimed that their pre budget stocks of fully manufactured non excisable goods were entitled to duty free clearance.
The Assistant Collector of Central Excise, the Collector of Central Excise (Appeals) and the Tribunal rejected the claim of the appellant.
Before this Court it was contended on behalf of the appellant that the relevant date would be the date of manu facture and in this case the manufacture was complete before the introduction of the budget.
Dismissing the appeal, this Court, HELD: (1) Excise is a duty on manufacture or production.
But the realisation of the duty may be postponed for admin istrative convenience to the date of removal of goods from the factory.
Rule 9A of the Central Excise Rules merely does that.
[314C] (2) The scheme of the Act read with the relevant rules framed under the Act, particularly rule 9A, reveals that the taxable even is the fact of manufacture or production of an excisable article, the 312 payment of duty is related to the date of removal of such article from the factory.
[313F] (3) On the basis of rule 9A of the Central Excise Rules, the Central Excise authorities were within the competence to apply the rate prevailing on the date of removal.
[314E] Karnataka Cement Pipe Factory vs Supdt.
of Central Excise, and Tamil Nadu (Madras State) Handloom Weavers Co operative Society Ltd. vs Assistant Collector of Central Excise, [1978] ELT J. 57, referred to.
|
ivil Appeals Nos. 484 & 485 of 1987.
336 From the Judgment and Order dated 2.12.1986 of the Andhra Pradesh High Court in Election Petition Nos. 3 & 5 of 1985.
P.P. Rao, P. Krishna Rao, V.A. Babu and K.R. Nagaraja for the Appellants.
Shanti Bhushan, G. Narasimhulu and T.V.S.N. Chari for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
These two appeals arise out of the judgments in two Election Petitions in the Andhra Pradesh High Court questioning the election of respondent No. 1 as a Member of Parliament from Srikakulam No. 1 Parliamentary Constituency in the 8th General Election to the House of the People.
The points raised in these appeals are common and so are the relevant facts; and, hence, they are being disposed of by this common judgment.
We propose to take note of only the few facts which are necessary for the appreciation of the controversy before us.
The polling date for the said election along with other parliamentary elections in the State of Andhra Pradesh was December 27, 1984 but in Srikakulam No. 1 Parliamentary Constituency the polling was countermanded and the date of polling was later fixed on January 28, 1985.
In both the Election Petitions the election of respondent No. 1 was questioned mainly on the ground that Shri N.T. Rama Rao, the Chief Minister of Andhra Pradesh as well as the President of the Telugu Desam Party as well as respondent N. 1 gave certain speeches and certain advertisements were got pub lished by Shri N.T. Rama Rao through the Publicity Depart ment of the Government of Andhra Pradesh in the newspapers containing certain statements which are alleged to amount to a corrupt practice within the meaning of the said term in section 123(1)(A) of the Representation of the People Act, 1951 (hereinafter referred to as "the said Act").
The main question canvassed before us is whether the statements contained in these aforesaid advertisements amount to a corrupt practice under section 123(1)(A)(b) of the said Act.
Section 123(1)(A)(b) of the said Act runs as follows: "123.
Corrupt practices The following shall be deemed to be corrupt practices for the purposes of this Act: 337 (1) 'Bribery ', that is to say (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoev er, with the object, directly or indirectly of inducing (a) x x (b) an elector to vote or refrain from voting at an election, or as a reward to (i) a person for having so stood or not stood, or for having withdrawn or not having with drawn his candidature; or (ii) an elector for having voted or refrained from voting.
" The advertisements very shortly stated, refer to the auspicious gifts made by the Government of Andhra Pradesh to the poor people on the eve of New Year and Sankranti.
In the said advertisements, it is stated that the said Government which was formed by the Telugu Desam Party was giving to the poor people whose income was below Rs.6,000 per year, a kilo of rice at Rs.2 per Kg.
and the said advertisements referred to a new scheme of selling sarees and dhoties at half prices to the poor people in the State of Andhra Pradesh having Green cards.
Green cards were directed to be issued to all the persons whose annual income was below Rs.6,000.
The supply of the rice at subsidised rates as aforesaid was also to be made to the Green card holders only.
The scheme to sell sarees and dhoties at subsidised rates was to be opera tive from January 26, 1985 to March 31, 1985.
In considering the question whether the said advertise ment and the said speeches amount to a corrupt practice, we are of the view that the provisions of section 123 of the said Act which deal with corrupt practices have to be inter preted, keeping in mind that dictates of commonsense require that they never could have been intended to treat normal election promises made in election manifestoes or usual election speeches by members of various political parties aspiring to power and by different candidates aspiring to get elected to legislative bodies concerned as corrupt practices.
We are of the view that these advertisements and speeches amount to nothing more than statements extolling the achievements of the Government of the State of Andhra 338 Pradesh under the Telugu Desam Party headed By N.T. Rama Rao, the Chief Minister and contain normal election promises and these statements do not amount to corrupt practices falling within the scope of sub clause (b) of clause (A) of sub section (1) of section 123 of the said Act.
It was urged by Mr. Rao, learned counsel for the appel lants that in the impugned judgments, the High Court has incorrectly taken the view that in order to amount to brib ery within the meaning of the said term in section 123(1)(A), the transaction must amount to a bargain by the candidate with a view to get votes.
It was pointed out by him that the said view has been taken in the impugned judg ments, relying upon the decision of a Bench comprising two learned Judges of this Court in Ghasi Ram vs Dal Singh and Others, ; at pp 109 110.
We have gone through to the relevant portion of that judgment (at page 109 and 110 of the said report).
A careful perusal of the said judgment shows that what has been really held in that case is that if the promises given or made amount to a bargain entered into by a candidate for a vote or votes, that would amount to a corrupt practice; but it has not been held there that unless the act alleged amounts to such a bargain, it could not amount to a corrupt practice.
In our view, that judgment does not lay down that in order to amount to a corrupt practice, the transaction must amount to a bargain for getting a vote.
It was pointed out by Mr. Rao, however, that such a view seems to have been taken in two other decisions rendered by two Benches, each comprising two learned Judges of this Court in Bhanu Kumar Shastri vs Mohan Lal Sukhadia and Others, ; at p. 543 and Harjit Singh Mann vs section Umrao Singh and Others, ; at p. 5 10 and these judgments need to be overruled.
We do not propose to go into the correctness or otherwise of this view because, even on the footing that in order to amount to a corrupt practice under the aforesaid provision the alleged acts need not constitute a bargain, the acts established in the present case, in our opinion, do not amount to a corrupt practice.
Our attention was drawn by Mr. Rao to the fact that in this case the said advertisements and the speeches had to be viewed in the context of the fact that the advertisements were issued and the speeches were made after respondent No. 1 filed his nomination papers on January 4, 1985, for the election and before the election was held in the aforesaid constituency.
It was further pointed out that the offer made for the sale of sarees and dhoties at subsidised rates was limited to the period from January 26, 1985 to March 31, 1985.
It 339 cannot be denied that these factors are relevant factors.
We cannot, however, lose sight of the fact that this offer was made not only in this constituency but throughout the State where the elections to the House of the People were sched uled to be held, and were, in fact, held on December 27, 1984.
It was only in case of this constituency that the election to be held on the scheduled date was countermanded and later held on January 28, 1985.
We cannot lose sight of the fact that, as far as the said speeches and the said advertisements, which were issued by the Publicity Depart ment of the State, are concerned, they deal in the main with the achievements of the Government of Andhra Pradesh which, of course, was being run by Ministers belonging to Telugu Desam Party to which respondent No. 1 also belonged.
More over, the offer in the advertisements for the sale of dhoties and sarees at discount rates was in the nature of a benefit offered to poor persons in that State.
When a Gov ernment announces the measures which are intended for the benefit of any of the classes for whose the Government can normally be expected to work like the poor or the economical backward classes, it is only in rare circumstances that such a promise can be said to amount to a corrupt practice within the meaning of section 123(1)(A) even though such a promise might be made on the eve of elections.
Keeping this in mind, in our opinion, although the offer to sell dhoties and sarees at discount rates was of a limited duration as afore stated, it cannot be regarded as a corrupt practice.
Such an offer was bound to have financial repercussions and it is quite possible the duration of the offer was limited to enable the Government to study the financial repercussions rather than from any improper motive.
We find support for this view from the decision of this Court in H.V. Kamath vs Ch.
Nitiraj Singh, that case an Ordi nance was passed by the Government of Madhya Pradesh as a result of which a large number of agriculturists, namely, those holdings of plots of land of less than 7.5 acres area of paying land revenue not exceeding Rs.5 were exempted from the payment of the land revenue.
It was held that such a concession does not amount to a gift, offer or promise of any gratification within the meaning of section 123(1)(A) of the said Act nor does the announcement of the declaration made at a meeting shortly before the election or the issue of a pamphlet containing that declaration at that time carry the matter any further.
It was held that neither Shri D.P. Misra who was the Chief Minister nor Shri S.K. Dixit who acted as his agent were guilty of any corrupt practice within the meaning of the aforesaid provision.
It was next contended by Mr. Rao, although very faintly, that the High Court was in error as it had not decided all other issues which 340 were raised in the election petition.
In this regard we cannot lose sight of the fact that the term of the present Lok Sabha is likely to be over within a few months and fresh elections are likely to be held and it would, therefore, be an exercise in futility to remand the matter to the High Court for deciding the remaining issues.
In the result, the appeals fail and are dismissed.
Looking to the facts and circumstances of the case, there will be no order as to costs.
R.N .J.
Appeals dis missed.
| IN-Abs | These two appeals arise out of the judgments in two Election Petitions before the Andhra Pradesh High Court questioning the election of respondent No. 1 as a Member of Parliament from Srikakulam No. 1 Parliamentary constituency in the 8th General Election to the House of the People on the ground that Shri N .T.
Rama Rao the Chief Minister of Andhra Pradesh as well as respondent No. 1 gave certain speeches and certain advertisements were got published by Shri N.T. Rama Rao through the Publicity Department of the Govt.
of Andhra Pradesh in the newspapers containing certain statements which are alleged to amount to a corrupt practice within the meaning of Section 123(1)(A) of the Representa tion of the People Act 1951.
Dismissing the appeals, this Court, HELD: That these advertisements and speeches amount to nothing more than statements extorting the achievements of the Government of the State of Andhra Pradesh under the Telegu Desham party headed by N.T. Rama Rao, Chief Minister and contain normal election promises and these advertise ments donot amount to corrupt practices falling within the scope of sub clause (b) of clause (A) of sub section (1) of Section 123 of the said Act.
[337H; 338A] Ghasi Ram vs Dal Singh & Ors., ; at pp.
109 110; Bhanu Kumar Shastri vs Mohal Lal Sukhadia & Ors., ; at p. 543 and Harjit Singh Mann vs section Umrao Singh & Ors., ; at p. 510, referred to.
|
ivil Appeal No. 2882 of 1989.
From the Judgment and Order dated 2.12.1988 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E/1351 of 1988 C. C. Shirappa Adv.
General for State of Karnataka, A.K. Ganguli, K. Swami and Mrs. Sushma Sun, Advs.
with them for the Appellant.
326 Soli J. Sorabji, O.P. Malhotra, Ms. Indu Malhotra, Ms. Auesha Zaidi and Mrs. Nisha Bagchi for the Respondent.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
This appeal, under Section 35 L(b) of the Central Excise and Salt Act, 1944, arises out of and is directed against the Order No. E/1351/88 C dated 2.12.1988, by the Customs, Excise and Gold (Control) Appellate Tribu nal, (Tribunal) New Delhi, allowing the appeal preferred by the Respondent and holding that Respondent was entitled to certain proforma credits of the duty paid on "Sodium Sul phate" used in the manufacture of paper and paper boards in which respondent is engaged.
The short point for consideration in this appeal is whether the Respondent Manufacturer, The Ballarpur Indus tries Ltd., was entitled to the benefit of Central Govern ment 's Notification No. 105/ 82 CE dated 28.2.1982 a ques tion which in turn, depends on whether Sodium Sulphate could be said to have been used as "Raw Material" in the manufac ture of 'paper ' and 'paper board '.
In the proceedings before the authorities, the dispute initially concerned six other inputs.
But the controversy before us was limited, as it should rightly be, only to Sodium Sulphate inasmuch as even in the appeal before the Collector (Appeals), the depart ment 's grievance, apparently, was confined to the Proforma Credits of duty earlier paid on Sodium Sulphate [See Col. 6 of the Assistant Collector 's Memorandum Appeal dated 15.7.1987 before the Collector (Appeals)].
Respondent is a manufacturer of paper and paper boards in the processes relating to which "Sodium Sulphate" is used "in the chemical recovery cycle of Sodium Sulphate which forms an essential constituent of Sulphate cooking liquor used in the digestion operation.
" The notification dated 28.2.1982 under which the credit is claimed reads: "In exercise of the power conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, and in supersession of the Noti fication of the Government of India in the Ministry of Finance (Department of Revenue) No. 178/77 Central Excise, Dated 18 June, 1977, the Central Government hereby exempts all excisable goods (hereinafter referred as "the said goods") on which the duty of excise is leviable and in the manufacture of which any goods failing under 327 Item No. 68 of the First Schedule to the (1 of 1944) (hereinafter referred as "the inputs") have been used as raw material or component parts (hereinafter referred to as "the inputs") from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the " 'inputs".
(Emphasis Supplied) The Superintendent of Central Excise, Range 2, Yamunana gar, declined the Proforma Credit to the duty paid on "Sodium Sulphate" on the ground that Sodium Sulphate "was burnt up in the process of manufacture and was not retained in the paper" and that, therefore, it could not be consid ered "Raw Material" in the manufacture of paper.
According ly, he caused a notice dated 18.1.1983 to be issued requit ing respondent to show cause why the amounts of Proforma Credit availed of by the respondent for the period between 28.2.1982 and 31.10.1982 should not be recovered.
The reason why "Sodium Sulphate" could not be held to be a "raw materi al" in the manufacture of paper was set out in the notice thus: " . .
The Proforma Credit claimed and granted in respect of the above mentioned items from 28.2.82 to 31.10.82 is not admissi ble because these Chemicals are burn out and do not remain in the finished product.
The amount of proforma credit availed is, there fore, liable to be recovered . . " (Emphasis supplied) However, the Assistant Collector of Central Excise, Ambala, by his order dated 27.6.1986 took a different view and held that Sodium Sulphate, even as the other inputs referred to in the said notice, was an essential raw materi al in the manufacture of paper and attracted the benefit of the notification.
The show cause notice dated 18.1.1983 was, accordingly, set aside.
But, the Collector of Central Excise (Appeals) set aside the order of the Assistant Collector and remitted the matter to Assistant Collector for a readjudication.
The respondent manufacturer challenged this order before the Tribunal.
The Tribunal upheld the contention of the Respond ent Manufacturer, set aside the order of the Collector (Appeals) and restored the order of the Assistant Collector.
The Tribunal adopted the reasoning in its earlier decision in Seshasayee Paper and Boards Ltd. vs Collector of Central Excise, [1985] 22 in which the Tribunal had held: " . . the term "raw material" has to be interpreted in the circumstances of each case in the absence of any acceptable or useful definition of the term either in the diction ary or in the technical literature . . " " . . sodium sulphide lye, Sodium Sul phate, Daicol (Gaur Gums) and Fluo solid lime used for the bleaching of pulp should be considered as raw materials in the manufacture of paper; they serve a distinct and definitive purpose in the normal and recognised process of manufacture of paper and are essential for the process of manufacture . . " In this appeal, the Collector challenges the correctness of the decision of the Tribunal.
We have heard Sri A.K. Ganguly, learned Senior Coun sel for the Appellant and Sri Soli Sorabjee, learned Senior Counsel for the Respondent Manufacturer.
The thrust of Sri Ganguly 's arguments is that the amplitude of the expression "Raw material" in the Notification has to be ascertained with reference to and in the context of the purpose in substituting that expression in place of the words obtaining in the earlier Notification No. 79/CE dated 4.6.1979, in which credit was given to duty paid on "goods" which have been "used" in the manufacture of excisable goods.
Sri Ganguly says that the Tribunal has, virtually and in effect, ignored the essential and important distinction between goods being "used" in the manufacture on the one hand and "goods" used as "Raw Material" on the other, ignoring the conscious change intended by the substitution of the expres sion "Raw Material" in the later notification dated 28.2.1982 which was clearly intended to cut down the bene fit.
Sri Ganguly referred to the following observations of this Court in Collector of Central Excise vs Eastend Paper Industries Ltd., SC: In J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs Sales Tax Officer, [1965] 16 STC 563 SC, this Court while construing the expression 'in the manufacture or processing of goods for sale ' in the context of Sales Tax Law, though the concept is different under the Excise Law, has held that manufacture of goods should normally encompass the entire 329 process carried on by the dealer of convert ing raw materials into finished goods . . " (P. 204) (Emphasis Supplied) and contended that the import of the word "Raw Material", judicially accepted, connotes something more than what is 'used ' in the manufacture and requires that goods to become "Raw Material" must, either in their original or altered form, endure as a composite element of the end product.
Ganguly submitted that the technical literature and evidence in the case as to the part played by Sodium Sulphate in the chemical technology of paper making suggested two things: First, that Sodium Sulphate was utilised in the preparation of an anterior, intermediate product at the stage of 'diges tion ' of the pulp and did not, therefore, strictly belong to the process of manufacture of paper itself; and, Secondly, that Sodium Sulphate did not go directly into and find a place in the finished product and did not, therefore, quali fy for being "Raw Material" in the manufacture of paper.
Learned Counsel said that no satisfactory answer to the question raised in the appeal could be afforded unless a clear line of demarcation between the material merely used in the manufacture of paper on the one hand and material used as "Raw Material" on the other is drawn.
Sri Ganguly sought to substantiate this distinction in the present case with reference to certain observations of this Court in Deputy Commissioner of Sales Tax, Board of Revenue vs Thomas Stephen & Co., Ltd., JT One of the ques tions there was whether cashew shells used in the kiln by the dealer who was a manufacturer of tiles, terra cotta ware and ceramic items were exigible to purchase tax under Sec tion 5A (1)(a) of the Kerala General Sales Tax Act, 1963, on the ground that the dealer had "consumed such goods in the "The Tribunal had held that manufacture of other goods . ." cashew shells had been used only as fuel in the kiln for the manufacture of tiles and that, therefore, the condition of 5A (1)(a) of the Act was not satisfied, there having been no consumption of cashew shells in the manufacture of the ceramic goods.
This Court held: "The cashew shells in the instant case, had been used as fuel in the kiln.
The cashew shells did not get transformed into the end product.
These have not been used as raw materials in the manufacture of the goods.
These have been used only as an aid in the manufacture of the goods by 330 the assessee.
Consumption must be in the manufacture as raw material or of other compo nents which go into the making of the end product to come within the mischief of the section.
Cashew shells do not tend to the making of the end product.
Goods used for ancillary purposes like fuel in the process of the manufacture, do not fail within section 5A(1)(a) of the Act.
Cashew shells, therefore, do not attract levy of tax under the said section . . " (p. 634) (Emphasis Supplied) Sri Ganguly says that "Sodium Sulphate" in the present case must, like the cashew shells, be held to have been used as an aid in the manufacture of paper and for ancillary purposes like fuel and not as "Raw Material in the manufac ture of paper.
Sri Sorabjee, for the Respondent, sought to maintain that Sodium Sulphate was an essential chemical ingredient in the chemistry of paper technology and that the fact that the ingredient was actually burnt up or sublimated in the proc ess and did not retain its identity in the end product, will not, necessarily, detract from its being a "Raw Material".
The relevant test is how essential is the ingredient in the manufacture.
Learned counsel said that in the complexity of the chain of chemical reactions in the manufacturing proc ess, undue emphasis on the search for the identity of any individual chemical ingredient 'in the final product would be artificial and unrealistic.
Sri Sorabjee submitted that authoritative scientific treatises on the paper technology recognise that "Sodium Sulphate" is an essential raw materi al.
Sri Sorabjee referred to the publication of the Food and Agriculture Organisation of the United Nations under the caption "Guide for Planning Pulp and Paper Enterprises" in which the following statement occurs: "For any pulp and paper enterprise a variety of non fibrous raw materials are required: water, fuel, power and paper making chemicals and, for pulp mills, pulping and bleaching chemicals . . " (p. 270) "The sulphate (kraft) pulping proc ess, now the most common pulping process for both wood and nonwood fibrous raw materials, requires the purchase of salteake (sodium sulphate) and limestone (calcium carbonate).
De 331 pending on the efficiency of the recovery system, about 40 to 80 kilogrammes of salteake and 25 kilogrammes of limestone are needed per ton of pulp.
These chemicals are converted in the chemical recovery and causticizing systems to give sodium hydroxide and sodium sulphide, which are the active chemicals in the pulping liquor." (p. 275) Sri Sorabjee submitted that the Tribunal had consistent ly taken this view in several cases and that the department not having carried those matters up in appeal must be held to have accepted the correctness of that view.
As instances in point, Learned Counsel referred to two decisions, in Collector of Central Excise, Nagpur vs Ballarpur Industries Ltd., Chandrapur, and in Collector of Cen tral Excise, Bhubaneswar vs Titaghur Paper Mills, Adverting to appellant 's contention that use of Sodium Sulphate was at a stage of preparation of the Pulp which is a stage anterior to the actual manufacture of paper, Sri Sorabjee submitted that, apart from the fallacy inherent in the attempt to dissect an otherwise integrated process of manufacture, the definition of 'manufacture ' in Section 2(f) of the 'Act ' which takes with in it all ancillary and inci dental processes, should secure to render the contention insubstantial.
The question, in the ultimate analysis, is whether the input of Sodium Sulphate in the manufacture of paper would cease to be a "Raw Material" by reason alone of the fact that in the course of the chemical reactions this ingredient is consumed and burnt up.
The expression "Raw Material" is not a defined term.
The meaning to be given to it is the ordinary and well accepted connotation in the common parlance of those who deal with the matter.
The ingredients used in the chemical technology of manufacture of any end product might comprise, amongst others, of those which may retain their dominant individual identity and character throughout the process and also in the end product; those which as a result of interaction with other chemicals or ingredients, might themselves undergo chemical or qualitative changes and in such altered form find themselves in the end product; those which, like cata lytic agents, while influencing and accelerating the chemi cal reactions, however, may themselves remain uninfluenced and unaltered and remain independent of and outside the end products and those, as here, which might be burnt up or consumed in the chemical reactions.
The ques 332 tion in the present case is whether the ingredients of the last mentioned class qualify themselves as and are eligible to be called "Raw Material" for the end product.
One of the valid tests, in our opinion, could be that the ingredient should be so essential for the chemical processes culminat ing in the emergence of the desired end product, that having regard to its importance in and indispensability for the process, it could be said that its very consumption on burning up is its quality and value as raw material.
In such a case, the relevant test is not its absence in the end product, but the dependance of the endproduct for its essen tial presence at the delivery and of the process.
The ingre dient goes into the making of the end product in the sense that without its absence the presence of the end product, as such, is rendered impossible.
This quality should coalesce with the requirement that its utilisation is in the manufac turing process as distinct from the manufacturing apparatus.
The decision of this Court in Deputy Commissioner of Sales Tax, Board of Revenue vs Thomas Stephen & Co. Ltd., relied upon by Sri Ganguly, does not really advance the appellant 's case.
The observations therein to the effect that "consumption must be in the manufacture of raw material or of other component which go into the making of end product" were made to emphasise the distinction between the "fuel" used for the kiln to impart the heat treatment to ceramics and what actually went into the manufacture of such ceramics.
The observations, correctly apprehended, do not lend themselves to the understanding that for something to qualify itself as "Raw Material" it must necessarily and in all cases go into, and be found, in the end product.
We also find no substance in the contention of Sri Ganguly that the process in which the Sodium Sulphate was used, was anterior to and at one stage removed from the actual manufacture of paper.
Sri Sorabjee 's answer to this contention is, in our view, appropriate.
That apart the following observations in Collector of Central Excise vs Eastend Paper Industries Ltd., cited by Sri Ganguly himself is a complete answer: " . .
Where any particular process, this Court further emphasised, is so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be commercially inexpedient, articles required in that proc ess, would fall within the expression 'in the manufacture of goods ' . . " 333 8.
On a consideration of the matter, we are persuaded to the view that the Tribunal was right in its conclusion that Sodium Sulphate was used in the manufacture of paper as "Raw Material ' within the meaning of the Notification No. 105/82 CE dated 28.2.1982.
Now a word about Sri Ganguly 's insistence on drawing a line of strict demarcation between what can be said to be 'goods ' merely "used" in the manufacture and what constitute goods used as "Raw Material" for the purpose.
We are afraid, in the infinite variety of ways in which these problems present themselves it is neither necessary nor wise to enunciate principles of any general validity intended to cover all cases.
The matter must rest upon the facts of each case.
Though in many cases it might be diffi cult to draw a line of demarcation, it is easy to discern on which side of the border line a particular case fails.
Sri Ganguly 's insistence, however, serves to recall the pertinent observations of an eminent author on the point.
It was said: " . .
A common form of argument used by counsel in legal cases is to suggest that if the court decides in favour of the opposing counsel 's arguments, it will become necessary to draw lines which may be very difficult or impossible to draw.
"Where will you draw the line"? 1s, of course, a question which must be faced by a legislator who is actually propos ing to lay down lines for all future cases, but it is not a question which needs in gener al to be faced by common law courts who pro ceed in slow stages, moving from case to case . . ' ' [See: "Pragmatism and Theory in English Law:; page 75; Hamlyn Lectures of 1987] The learned author recalls Lord Lindley 's "robust answer" to the question: Where will you draw the line? "Nothing is more common in life than to be unable to draw the line between two things.
Who can draw the line between plants and animals? And yet who has any difficulty in saying that an oak tree is a plant and not an animal?" [See: Att.
Gen vs Brighton & Hove Co operative Assoc., at p. 282] 334 Again, Lord Coleridge in Mayor of Southport vs Morris, at 361 said: "The Attorney General has asked where we are to draw the line.
The answer is that it is not necessary to draw it at any precise point.
It is enough for us to say that the present case is on the right side of any line that could reasonably be drawn.
In the result for the foregoing reasons, we find no merit in this appeal which is, accordingly, dismissed.
G.N. Appeal dis missed.
| IN-Abs | Respondent has been using Sodium Sulphate in the process of manufacture of paper and paper boards, and by virtue of Notification No. 105/82 CE dated 28.2.1982 claimed pro forma credits.
The Superintendent of Central Excise de clined the claim on the ground that Sodium Sulphate was burnt up in the process of manufacture and was not retained in the paper, and therefore, could not be considered .as raw material in the manufacture of paper.
He also issued a show cause notice for the recovery of proforma credits already availed of by the respondent.
On appeal, however, the Assistant Collector set aside the show cause notice holding that Sodium Sulphate was an essential raw material in the manufacture of paper and as such attracted the benefit of the notification.
But, the Collector of Central Excise (Appeals) set aside the order of the Assistant Collector and remitted it back to him for readjudication.
Respondent challenged this order before the Customs, Excise and Gold (Control) Appellate Tribunal.
Adopting the reasoning in its earlier decision in Seshasayee Paper and Boards Ltd. vs Collector of Central Excise, , the Tribunal allowed the appeal and restored the order of the Assistant Collector.
This appeal under Section 35 L(b) of the is against the Tribunal 's order.
On behalf of the Appellant, it was contended that the word "raw material" connotes something more than what is 'used ' in the manufacture and requires that goods to become "raw material" must either in their original or altered form, endure as a composite element of the end product.
324 The Respondent contended that Sodium Sulphate was an essential chemical ingredient in the chemistry of paper technology and the fact that the ingredient was actually burnt up or sublimated in the process; and did not retain its identity in the end product, will not detract from its being a raw material.
Dismissing the appeal, HELD: 1.1.
The Tribunal was right in its conclusion that Sodium Sulphate was used in the manufacture of paper as "Raw Material" within the meaning of the Notification No. 105/82/CE dated 28.2.1982.
[333A] 1.2.
The expression "Raw Material" is not a defined term.
The meaning to be given to it is the ordinary and well accepted connotation in the common parlance of those who deal with the matter.
The ingredients used in the chemi cal technology of manufacture of any end product might com prise, amongst others, of those which may retain their dominant individual identity and character throughout the process and also in the end product; those which, as a result of interaction with other chemicals or ingredients, might themselves undergo chemical or qualitative changes and in such altered form find themselves in the end product; those which, like catalytic agents, while influencing and accelerating the chemical reaction, however, may themselves remain uninfluenced and unaltered and remain independent of and outside the end products and those, as here, which might be burnt up or consumed in the chemical reactions.
It could be that the ingredient should be so essential for the chemi cal processes culminating in the emergence of the desired end product, that having regard to its importance in the indispensability for the process, it could be said that its very consumption on burning up is its quality and value as raw material.
In such a case, the relevant test is not its absence in the end product, but the dependence of the end product for its essential presence at the delivery end of the process.
The ingredient goes into the making of the end product in the sense that without its absence, the presence of the end product, as such, is rendered impossi ble.
This quality should coalesce with the requirement that its utilisation is in the manufacturing process as distinct from the manufacturing apparatus.
[331F H; 332A C] Deputy Commissioner of Sales Tax, Board of Revenue vs Thomas Stephen & Co. Ltd., JT , distinguished.
Seshasayee Paper and Boards Ltd. vs Collector of Central Excise, 325 ; Collector of Central Excise vs Eastend Paper Industries Ltd., SC; Collector of Central Excise, Nagpur vs Ballarpur Industries Ltd., Chan drapur, and Collector of Central Excise, Bhubaneshwar vs Titaghur Paper Mills, , referred to. 2.
It cannot be gain said that Sodium Sulphate used was anterior to and at one stage removed from the actual manu facture of paper.
Section 2(1 ') of the Act defines 'manufac ture ' and it takes within it all ancillary and incidental purposes.
Where any particular process, is so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be commercially inexpedient, articles required in that process, would fail within the expression 'in the manufac ture of goods '.
[332F G, 331D] Collector of Central Excise vs Eastend Paper Industries Ltd., SC, followed.
is not always possible to draw a line of strict demarcation between what can be said to be 'goods ' merely used in the manufacture and what constitute goods used as "Raw Material" for that purpose.
In the infinite variety of ways in which these problems present themselves it is nei ther necessary nor wise to enunciate principles of any general validity intended to cover all cases.
The matter must rest upon the facts of each case Though in many cases it might be difficult to draw a line of demarcation, it is easy to discern on which side of the boarder line a particu lar case falls.
[333B C] Pragmatism and Theory in English Law, page 75, Hamlyn Lectures of 1987; Attorney General vs Brighton & Hove Co operative Association, ; Mayor of South Port vs Morris, , relied on.
|
ivil Appeal No. 2472 of 1989.
From the Judgment and Order dated 23.4.1987 of the Orissa High Court in M.A. No. 332 of 1984.
A.K. Panda for the Appellant.
R.K. Sahoo for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave by the State of Orissa is directed against the judgment of the Orissa High Court rejecting its appeal under section 39 of the Arbitration Act.
The respondent executed certain work under a written agreement with the appellant and a dispute arose thereunder which was referred to arbitration.
The Arbitration made an award which was filed in Court.
On service of notice the appellant raised several objections which the trial court overruled.
The award was made a rule of the court.
After unsuccessfully moving the 368 High Court in appeal, the appellant has approached this Court.
Except for the objection taken by the appellant on the question of the power of the Arbitrator to grant interest, we do not find any merit in the other points decided by the impugned judgment.
The decision of the High Court is there fore affirmed on all the other points.
So far the question relating to interest is con cerned, it has been contended by the learned counsel for the appellant that the arbitrator exceeded his jurisdiction in allowing the respondent 's claim in view of the decision in Executive Engineer (irrigation), Balimela and others vs Abhaduta Jena and Others, [1988] 1 SCC 418.
It was pointed out therein that this Court had in Seth Thawardas Pherumal vs The Union of India, , held that in case of direct reference to arbitration without the intervention of a court, provisions of neither the Interest Act, 1839 nor the Civil Procedure Code applied to an arbitrator as he was not a court, and interest could, therefore, be awarded only if there was an agreement to pay interest or a usage of trade having the force of law or some other provision of the substantive law which entitled the plaintiff to receive interest.
On the coming in force of the , although the position in regard to the arbitrator 's power to award pendente lite interest continued to be the same, he was vested with the jurisdiction to allow interest pior to the proceeding in view of the definition of "court" in the Act which includes the arbitrator.
Accordingly, it was held that in cases in which the reference to arbitration was made after the commencement of the new Act, that is, August 19, 1981, the arbitrator may award prior interest, but in those cases also he cannot grant pendente lite interest.
Since the reference in the case before us was made in March 1982, no objection can be taken to that part of the award whereby the respondent has been allowed the claim of interest for the earlier period.
The learned counsel for the appellant argued that the arbitrator allowed the past interest twice over.
The award is a nonspeaking one and in paragraph 1 it says that the appellant shall pay the claimant Rs. 1,29,000 in full satis faction of the claims.
In paragraph 2 of the award it is held that the claimant is entitled to interest at the rate of 12 per cent per annum on the above principal sum of Rs. 1,29,000 from 1.10.1978 till the payment of the decree.
According to the learned counsel for the appellant the sum of Rs. 1,29,000 included the claim of interest also.
In view of the clear language of paragraph 2 of the award, we reject the argument.
369 5.
The appellant, however, is entitled to relief with respect to the pendente lite interest included in the award.
The question is as to when this period commences.
According to the appellant the period began on the 20th April, 1982 when the arbitrator must be deemed to have entered on refer ence.
The respondent contends that this period must be held not to have commenced earlier than the 9th of July, 1982 when the parties filed their claim and counter claim.
The argument is that until the arbitrator applies his mind, he cannot be assumed to have entered on arbitration.
Reliance has been placed on Gujarat Water Supply and Sewerage Board vs Unique Erectors (Gujarat) (P) Ltd. and another; , 6.
Before proceeding further it will be helpful to examine the language of section 3 of the which states that in cases where the conditions mentioned in clauses (a) and (b) of sub section (1) are satisfied the Court may allow interest for the past period terminating on "the date of institution of the proceedings".
By reason of.the inclusive definition of "court" in section 2(a) the Act is applicable to arbitration.
The question, therefore, is as to when the proceeding before an arbitrator is deemed to com mence.
It has not been suggested before us that the neces sary conditions for the application of section 3 .are not satis fied in the present case and so the respondent is not enti tled to the benefit under 1978 Act; and we, therefore, proceed on the assumption that the provisions of the Act govern the case.
The arbitrator in the present case was appointed on 16.3.
He after being informed about his appointment, directed the parties to submit their statements of claim by the 20th April, 1982.
The actual date when this order was made is not known.
The contractor respondent filed his statement on 5.5. 1982 and the appellant on 9.7.1982.
Rely ing on the observation in lossifoglu vs Coumantaros, , and those of Raghubar Dayal, J. in Hari Shankar Lal vs Shambhunath Prasad and others; , at page 732, Mr. Panda, learned counsel for the appellant, contended that the arbitrator cannot be said to have entered on the reference earlier than April 20, 1982.
According to the learned counsel for the respondent it could not be before 9.7. 1982 when the arbitrator applied his mind to the cases of the parties.
Reference was made to the decisions of several High Courts.
In our view none of these cases is helpful to resolve the present controversy.
They all deal with the point as to when an arbitrator is said to enter on reference.
They were not concerned with the question as to when a proceeding before an arbitrator is deemed to com mence.
370 8.
So far an action in a court of law is concerned, it must be held that it commences on the filing of a proper claim in accordance with the prescribed procedure before the authority empowered to receive the same.
If a plaint, drawn up in accordance with the prescribed law, is filed before a civil court, the suit must be deemed to have been instituted on the date, and not on a later date when the court takes up the plaint and applies its mind.
Ordinarily the plaint is examined by the stamp reporter of the court who scrutinises whether proper court fee has been paid or not, and then makes a report.
The court generally takes up the plaint only later.
Similar is the position with respect to other appli cations and memoranda of appeals.
It must, therefore, be held that the proceeding is instituted when the claimant files his claim.
We do not see any reason to apply a differ ent approach in the case of an arbitration proceeding.
As soon as the arbitrator indicates his willingness to act as such, the proceeding must be held to have commenced.
This aspect did not arise for decision in the cases Executive Engineer (Irrigation) vs Abhaduta Jena, [1988] 1 SCC 418 or Gujarat Water Supply and Sewerage Board vs Unique Erectors (Gujarat) (P) Ltd., ; and no assistance from them can be taken in the present appeal.
The learned counsel for the appellant is, therefore, right in saying that the arbitrator in the present case, by directing on 20.4.
1982 the parties to file 'their statements of claim, clearly indicated that he accepted the offer to arbitrate.
The proceeding must, therefore, be deemed to have instituted not later than this date.
We accordingly hold that the award so far it allowed interest for the period after 20.4.
1982 is without jurisdiction and must be excluded.
The appeal is accordingly allowed in part.
The parties shall bear their own costs.
Y. Lal Appeal partly allowed.
| IN-Abs | The Respondent executed certain works under a written agreement with the appellant and a dispute arose thereunder which was referred to arbitration.
The arbitrator made an award which was filed in Court.
The appellant raised several objections which were all overruled by the Trial Court, and the award was made a rule of the Court.
The appellant there upon appealed to the High Court under section 39 of the Arbitration Act which was rejected.
Hence this appeal by the appellant.
The Court did not find any substance in the objections raised by the appellant except the one taken by him regard ing the power of the arbitrator to grant interest.
Therefore the question that arose for determination by the Court was whether the arbitrator was competent to award interest and if so in respect of which period, and further in the circum stances of the case, from which date the proceedings before the Arbitrator should be deemed to have commenced.
Partly allowing the appeal on that question, this Court, HELD: Since the reference in this case was made in March 198L no objection can be taken to that part of the award whereby the respondent has been allowed the claim of inter est for the earlier period.
[368F] See: Executive Engineer (Irrigation) Balimela and Ors.
vs Abliaduta Jena and Others, [1988] 1 SCC 418 and Seth Thawardas Pherumal vs The Union of India, The arbitrator in the present case was appointed on i6.3.1982.
He after being informed about his appointment, directed the parties to submit their statements of claim by the 20th April, 1982.
The actual 367 date when this order was made is not known.
[369E] So for as an action in a Court of law is concerned, it must be held that it commences on the filing of a proper claim in accordance with the prescribed procedure before the authority empowered to receive the same.
No reason is seen to apply a different approach in the case of arbitration proceedings.
As soon as the arbitrator indicates his will ingness to act as such, the proceeding must be held to commence.
[370A C] The arbitrator in the present case, by directing on 20.4.82 the parties to file their statements of claim, clearly indicated that he accepted the ' offer to arbitrate.
The proceeding must, therefore, be deemed to have been instituted not later than this date.
[370D] The award so far as it allowed interest for the period after 20.4.82 is without jurisdiction and must be excluded.
The appeal is accordingly allowed in part.
[370E] Gujarat Water Supply and Sewerage Board vs Unique Erec tors (Gujarat) (P) Ltd. & Anr.
, ; ; lossi foglu vs Coumantaros, and Hari Shankar Lal vs Shambhunath Prasad & Ors., ; , referred to.
|
Criminal Appeal No. 56 of 1951.
Appeals by special leave from the Judgment and Order dated the 9th March, 1950, of the High Court of Judicature at Nagpur (C. R. Hemeon J.) in Criminal Revisions Nos. 152 and 153 of 1949 arising out of Judgment and Order dated the 24th March, 1949, of the Court of the Sessions Judge, Nag pur, in Criminal Appeals Nos. 26 and 27 of 1949 and Judgment and Order dated the 15th January, 1949, of the Court of the Special Magistrate, Nagpur, in Criminal Case No. 1 of 1948.
1092 N.C. Chatterjee (B. Bannerjee and A.K. Dart, with him) for the appellant in Criminal Appeal No. 56 of 1951.
Bakshi Tek Chand(K. V. Tarnbay, with him) for the appel lant in Criminal Appeal No. 57 of 1951.
T.L. Shivde, Advocate General of Madhya Pradesh (T. P. Naik, with him) for the respondent.
Sept. 23.
The Judgment of the Court was delivered by MAHAJAN J.
This is a consolidated appeal by special leave from the two orders of the High Court of Judicature at Nagpur passed on the 9th March, 1950, in Criminal Revisions Nos. 152 and 153 of 1949.
On a complaint filed by the Assistant Inspector General of Police, Anti Corruption Department, Nagpur, the appel lant in Criminal Appeal No. 56 of 1951 (H. G. Nargundkar, Excise Commissioner, Madhya Pradesh), and the appellant in Criminal Appeal No. 57 of 1951 (R.S. Patel) were tried in the court of Shri B.K. Chaudhri, Special Magistrate, Nag pur, for the offence of conspiracy to secure the contract of Seoni Distillery from April, 1947, to March 1951 by forging the tender, Exhibit P 3A, and for commission of the offences of forgery of the tender (Exhibit P 3A) and of another document, Exhibit P 24.
The learned Special Magistrate convicted both the appellants on all the three charges.
He sentenced R.S. Patel to rigorous imprisonment for one year under each charge and to pay fines of Rs. 2,000, Rs. 2,000, and Rs. 1,000, under the first, second and third charges respectively.
The appellant Nargundkar was sentenced to rigorous imprisonment for six months under each charge and to pay fines of Rs. 2,000, Rs. 2,000 and Rs. 1.,000, under the first, second and third charges respectively.
Each of the appellants appealed against their respective convictions and sentences to the Court of the Sessions Judge, Nagpur.
The learned Sessions Judge quashed the conviction of both the appellants under the first charge of criminal conspiracy under section 120 B, I.P.C., but maintained the 1093 convictions and sentences under section 465, I.P.C. or the charges of forging Exhibits P 3 (A) and P 24.
Both the appellants went up in revision against this decision to the High Court but without any success.
An application was then made under article 136 of the Constitution of India for special leave to appeal and this was allowed by this Court on 24th March, 1950 The appellant, Nargundkar, is a member of the Central Provinces & Berar Provincial Service and held the substan tive post of Deputy Commissioner for several years.
In April, 1946, he was appointed Excise Commissioner.
Madhya Pradesh, and continued to hold that office till the 5th September, '1947.
The appellant, R.S. Patel, is a sugar Technologist and Chemical Engineer.
He received his technical education and practical training in America and after working as Chief Chemist and General Manager in factories in Madras for five years, came to the Central Provinces in 1944, when the Provincial Government gave him a licence to set up a dis tillery for the manufacture of industrial spirit.
On the 11th September, 1946, Nargundkar in his capacity as Excise Commissioner invited tenders for working the Government distillery at Seoni and supplying spirit to certain specified districts f or a period of four years from 1st April, 1947, to 31st March, 1951.
The last date for submitting the tenders was the 31st October, 1946.
In response to this tender notice, five tenders were filed including those filed by (1) appellant, R.S. Patel, (2) K.B. Habibur Rahman, (3).
Zakirur Rahman, and (4) Edulji V. Doongaji (P. W. 4), in sealed covers with the Excise Commis sioner on the 31st October, 1946, and he handed them over with the seals intact to the office superintende.
nt, S.W. Gadgil (P. w. 13), for safe custody.
Gadgil took them to his room and kept them under lock and key in the office safe.
The case for the prosecution is that on the 9th Novem ber, 1946, accused Nargundkar took these sealed tenders home, that the tenders were opened by him at his house, that the rates of the tender (Exhibit 1094 P 6) of E.J. Doongaji (P. W. 4) were divulged to accused 2 (R. section Patel), who was allowed to substitute another tender (Exhibit P 3A), containing rates lower than those of Doongaji, that thereafter these open tenders were brought to the office on the 11th November, 1946, and given to Amarnath (P.W. 20) who was the Assistant Commissioner of Excise, for submitting a report and that on the recommendation of Nar gundkar the tender of accused 2 (Patel) was accepted and the contract was given to him.
In May, 1947, on receipt of an application (Exhibit P 1) from one Dilbagrai (P. W. 14), enquiries were started by the Anti Corruption Department.
Both the accused became aware of the enquiry.
In order to create evidence in their favour they brought into existence a letter (Exhibit P 24) and antedated it to 20th November, 1946.
This document was forged with the intention of com mitting fraud and of causing injury to Amarnath (P. W. 20) and also to Doongaji (P.W. 4).
Exhibit P 24 is alleged to have been typed on a typewriter (Article A) which was pur chased on the 30th December, 1946, by the National Industri al Alcohol Co., Nagpur, of which accused Patel was the managing director.
It Was further alleged that the endorse ment made by accused 1 (Nargundkar) in the said letter "No action seems necessary.
File", and marked to Superintendent "S" was not made on the 21st November, 1946, which date it bears.
This letter was handed over by accused 1 to the Office Superintendent, S.W. Gadgil (P.W. 13) about the middle of August, 1947, and thereafter accused I wrote a letter (Exhibit P. 26), on the 2nd October, 1947, to Sri section Sanyal (P.W. 19) who was then the Excise Commissioner, requesting that this letter (Exhibit P 24) and a note sheet (Exhibit P 27) be kept in sale custody.
Both the accused denied the commission of the offences of criminal conspiracy, forgery and abetment thereof.
Nargundkar denied having attended office on the 9th Novem ber, 1946.
He denied having taken the tenders home.
Ac cording to him, the tenders were opened by him in the office on the 1095 11th November, 1946.
Accused 2 denied that the tender of Doongaji was shown to him by accused 1 between the 9th and 11th November, 1946.
He stated that the tender (Exhibit P 3A) was the original tender submitted by him on the 31st October, 1946.
As regards Exhibit P 24, it was denied that it was fabricated or antedated.
Accused 2 stated that it was not typed on article A.
He also alleged that the allegations made in Exhibit P 24 were correct.
Accused Nargundkar stated that the endorsement was made by him on the 21st November, 1946.
The first charge having failed, nothing need be said about it herein.
In order to prove the second charge the prosecution had to establish that Gadgil, P.W. 13, handed over the sealed tenders on the 9th November, 1946, to accused Nargundkar, that the latter took them home, that between the 9th and the 11th November he met Patel at his house or elsewhere and that accused.
Nargundkar showed or communicated the particu lars of the tender of Doongaji to accused Patel who substi tuted Exhibit P 3A for his original tender before the 11th November, 1946.
Admittedly there is no direct evidence to prove any of these facts except the first one, and the nature of the case is such that recourse could only be had to circumstantial evidence to establish those facts.
The fact that the sealed tenders were handed over by Gadgil to accused Nargundkar on the 9th November has been held proved solely on the uncorroborated testimony of Gadgil as against the denial of Nargundkar.
Gadgil was himself a suspect in the case.
He was kept by the police away from the office for about eight months during the investigation, he was asked to proceed on leave at the instance of the police and his leave was extended at their request.
On the expiry of his leave he was kept off duty without salary for a period of about five months but later on he was paid his full salary after he had given evidence in support of the prosecution.
He made addi tions and improvements on vital points from stage to stage of his deposition and in certain particulars his statement was contradicted by Ramaswami, P.W. 80.
On his own admission he is an accomplice in respect 1096 of the forgery of Exhibit P 27, one of the documents al leged to have been forged for purposes of the defence but concerning which no prosecution was started.
Exhibit P 27 bears date 31st October, 1946.
Gadgil 's statement about it is as follows: "He (Nargundkar) put down his signature and the date 31st October, 1946.
This order was actually written by Sh.
Nargundkar in the note sheet, Exhibit P 27, in the month of July or August, 1947.
The dates were antedated.
In the margin of the note sheet I have put down my initials S.W.G. and put the date 31st October, 1946.
This note sheet was not prepared on gist October, 1946.
He asked me to keep it in my custody.
" The witness admittedly became a party to the preparation of a forged document.
Whether he was telling the truth, or he was telling a lie, as appears likely from his cross examination, he is in either event, not a person on whom any reliance could be placed.
It is curious that this aspect of the evidence of Gadgil has not been noticed by any of the three courts below.
When the court of first instance and the court of appeal arrive at concurrent findings of fact after believing the evidence of a witness, this court as the final court does not disturb such findings, save in most exceptional cases.
But where a finding of fact is arrived at on the testimony of a witness of the character of Gadgil and the courts below depart from the rule of prudence that such testimony should not be accepted unless it is corroborated by some other evidence on the record, a finding of that character in the circumstances of a particular case may well be reviewed even on special leave if the other circumstances in the ease require it, and substantial and grave injustice has result ed.
After fully examining the material on the record we have reached the conclusion that the courts below were in error in accepting the uncorroborated testimony of Gadgil to find the fact that he handed over the tenders to Nargund kar on the 9th November, 1946.
The witness was not allowed to live in a free atmosphere and was kept under police 1097 surveillance during the whole of the period of investigation and the trial and was rewarded with payment of his full salary after he had given evidence to the satisfaction of the prosecution.
He is a person who felt no hesitation in deposing on oath that he willingly became a party to the forgery of Exhibit 13 27.
Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution, in order to bring the guilt home to the accused, has yet to prove the other facts referred to above.
No direct ' evidence was adduced in proof of those facts.
Reliance was placed by the prosecution and by the courts below on certain circumstances, and intrinsic evidence contained in the impugned document, Exhibit P 3A.
In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind.
In such cases there is always the danger that conjecture or suspi cion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson to the jury in Reg vs Hodge (1) where he said : "The mind was apt to take a pleasure in adapting circum stances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to over reach and mislead itself, to supply some little link that 'is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
" It is well to remember that in cases where the evidence is of a circumstantial nature,the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so estab lished should be consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.
In (1) 141 1098 other words, there must be a chain of evidence so far com plete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
In spite of the force ful arguments addressed to us by the learned Advocate Gener al on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P 3A or ,outside and we are constrained to observe that the courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case.
The trial magistrate was of the opinion that friendship between the two accused was of a very rapid growth and that their relations were very intimate and accused 2 was in a position to influence accused 1.
He thus found that there was motive for the commission of the crime.
The learned Sessions Judge disagreed with this finding and the High Court agreed with the Sessions Judge on this point.
It observed that the evidence which tended to prove friendship or undue favour was not such as to form the basis for a finding.
It further found that there was nothing to show that the appellant Nargundkar received any illegal reward or the promise of one for showing Doongaji 's tender to accused R.S. Patel.
The first circumstance therefore on which the trial Judge placed considerable reliance was negatived by the court of appeal and in revision.
It having been found that there was no motive whatsoever for accused Nargundkar to show the tenders to accused Patel and to take a substi tuted tender from him, the main link in the chain of reason ing of the trial court vanishes.
Amiable relations between the two accused or their official relationship could not be regarded as sufficient motive for committing the crime of forgery.
The mainstay of the prosecution case is the intrinsic evidence of the contents of Exhibit P 3A itself which ac cording to the courts below are unusual, peculiar and strange and which according to the Advocate General could not be there if it was a genune 1099 document.
The argument would have force provided the prem ises on which it is based are correct.
Having examined the contents of Exhibit P 3A, we do not find anything very unusual or extraordinary in it which could not be there without its author having seen Exhibit P 6.
We now proceed to examine the so called peculiar features in Exhibit P 3A.
In order to appreciate the points made by the learned Advocate General it is necessary to set out certain facts.
Exhibit P 9 is the notice calling for tenders for the supply of country spirit in the Seoni distillery area.
The rates which were called for by this notice were as follows: 1.
Flat rate for four years.
Rates on sliding scale for four years.
All in rate on the sliding scale for one year 1947 48. 4.
Flat rates on the basis of the price of mahua flowers for three years 1948 51. 5.
All in sliding scale rate on the basis of the price of mahua flowers for three years 1948 51.
The trial magistrate held on a construction of it that no rate or rates of separate years were asked for in this notice and that one flat rate was only asked for, for four years.
Habibur Rahman and Zakirur Rahman in their tenders, Exhibits P 4 and P 5, quoted one flat rate for four years and did not mention separate flat rates for separate years.
Doongaji in his tender, Exhibit P 6, mentioned separate flat rates for each separate year also.
He did so because he consulted one Mr. Munshi, Personal Assistant to the Excise Commissioner, whether he should quote each rate separately and Mr. Munshi told him that he could give flat rate for the combined years as well as flat rates and also sliding scale rates for each year separately.
Admittedly accused 2 was working as an agent of Habibur Rahman and his son Zakirur Rahman for the distillery contracts of Betul and Seoni, and, therefore, he must have been the author not only of his own tender but of the tenders submitted by Habibur Rahman and Zakirur Rahman, Exhibits 1100 P 4 and P 5.
All of them were acting together with the object of getting the contract though they were submitting three separate tenders.
The trial magistrate held that as Habibur Rahman and Zakirur Rahman gave one flat rate for four years as called for by Exhibit P 9, but accused 2, the author of all these tenders, did not do it in Exhibit P 3A, but followed the method of Doongaji in giving the rates of each year separately as well as the rate for the combined four years.
lie must have done so as he was shown the tender Exhibit P section The question arises whether the circumstance that the accused Patel and Habibur Rahrnan and Zakirur Rahman were acting together was such from which a necessary inference arises that the accused Patel must have been the author of all the three tenders and, if he were, that he could not have departed from the method adopted by him in preparing Exhibits P 4 and P 5 unless and until he had seen Exhibit P 6.
We are clearly of the opinion that from the premises stated this inference does not necessarily follow.
Doongaji even after reading Exhibit P 9, could not make up his mind whether to submit the tender with one flat rate for all the four years or whether to submit it by giving sepa rate flat rates for each of the four years and made enquiry from the office of the Excise Commissioner and then quoted separate rates for each of the four years separately also.
Patel who has admittedly considerable experience of distill ery contracts and about the method of submitting tenders might very well have thought that it was best to quote a flat rate for all the years as well as a flat rate for each year separately.
The circumstance that he did not do so in the other two tenders prepared by him does not materially advance the prosecution case.
The very object of submitting several tenders on behalf of three persons acting in unison was to indicate to the excise authorities that they were being submitted by three different persons.
If there were no variations whatsoever between those tenders that would have defeated the very purpose of submitting them.
More over, a variation of this trifling nature between Exhibits P 3A and P 4 1101 and P 5 cannot be said to be of such an unusual or of such an extraordinary character as to warrant the inference that it could not have been made except without a look at the tender of Doongaji.
The circumstance is of a neutral charac ter and the trial magistrate and the learned Sessions Judge gave undue importance to it, being obsessed with the idea that such a quotation of flat rates for each year could not be mentioned in a tender by a contractor merely on a con struction of Exhibit P 9 and without any further inquiry or without seeing the tender of somebody else who had followed that method.
The next circumstance on which considerable reliance is placed is that accused 2 studiously maintained rates below the rates of Doongaji throughout, that when Doongaji lowered his rates for the second year accused 2 did the same, and when Doongaji raised his rates for the third and fourth years accused 2 also did so, at the same time maintaining rates lower than Doongaji 's rates.
It is said that the system followed by Habibur Rahman and Zakirur Rahman and Patel originally must have been the same as Patel was the author of all the three tenders, that Habibur Rahman 'srates were higher than Zakirur Rahman 's by six pies and this variation was constant throughout, that in Patel 's original tender which must have followed the same system his rates would be lower than Habibur Rahman 's by three pies through out.
Exhibit P 3A, however, shows that this is not so.
Patel abandoned the system when he found that his rates on his original scheme would be higher than the correspond ing rates of Doongaji.
Learned Advocate General contended that it was impossible for Patel unless he had seen Exhibit P 6, to quote rates of a large number of items numbering about 197, in every case lower than the rates given in Exhibit P 6 and the circumstance that in not a single case he has quoted a higher rate than Exhibit P 6 is conclusive of the fact that he had done so after he had seen Exhibit P 6.
It was also said that there is no satisfactory explana tion why Patel abandoned the scheme adopted by him in 1102 drawing up Exhibits P 4 and P 5 and his original tender.
In our view, this circumstance again is not so strange or peculiar as was made out by the learned Advocate General or in the courts below.
In the first place, there is no material whatsoever for the assumption that the so called original tender was drawn up on the same scheme as Exhibits P 4 and P 5 or that there was a constant variation in rates between it and Habibur Rahman 's tender.
It has been assumed on mere surmise that the first five rates in the tender, Exhibit P 3A, are the rates that had been originally quoted.
The original tender is not forthcoming and there is no evidence at all about its contents.
Moreover, in the depo sition of Doongaji it was elicited that in the year 1942 when tenders for the Seoni distillery contract were called for, the rates quoted by Ratanshah were lower than his rates for all items.
He, however, voluntarily added that Ratanshah obtained his rates of the previous contracts before he submitted his tender for the year 1942 and that he had made a reduction of annas two to three in those rates but he was forced to admit that the rate of Ratanshah in the tender was not only lower than his but was also lower throughout than the rates of Laxminarain, Haji Ismail and Habibur Rahman even without seeing their tenders.
From this statement it is quite clear that even without seeing the tenders of differ ent tenderers a contractor may quote rock bottom rates of all items on his own calculation or impelled by the desire of taking the contract anyhow.
We do not follow why Patel could not do in 1946 what was done by Ratanshah in his tenders in 1942 and quote rates lower in all particulars and regarding all items than the rates of Doongaji.
If a person is out to give rockbottom rates and his calculation is such that his rates work out lower than the rates of others, it may well be that he may quote lower rates in respect of all items.
It was then said that Patel had adopted a particular plan in submitting the three tenders, of himself, Habibur Rahman and Zakirur Rahman and that his plan was that his rates should be less by three pies 1103 than the rates he had quoted for Habibur Rahman, that in the first five items of Exhibit 145 he stuck to that plan and did not alter the rates of those items as originally submit ted by him, as those rates were lower than the rates of Doongaji but from the sixth item onwards he substituted new rates for the ones he had originally submitted and he de parted from the plan so that his rates for each item were to be lower only by three pies as compared with the rates of Habibur Rahman.
It is no doubt true that Patel did not adhere to the plan that he adopted in the first five items of his tender but is that a circumstance from which any inference can be drawn that the first five items are a part of his original tender or that he did so depart from them because he had seen Exhibit P 6 and he wanted to underbid Doongaji.
As we have already said, the object of submitting three separate tenders ostensibly by persons who were acting together was to secure the contract in one or the other name and Patel who was the author of all the three documents may very well in his own document have quoted much lower figures than were quoted by Habibur Rahman and Zakirur Rahman, in order also to give the impression that all these tenders had not been submitted by one and the same person.
Be that as it may, a closer examination of the tenders of Doongaji and Patel completely negatives the theory of the courts below.
The rates quoted in the first five items of Exhibit P 145 are lower than the rates of Doongaji by 102, 69, 18, 12 and 9 pies respectively.
Even in the subsequent quotations except in one case where the disparity in the tales of Doongaji and Patel is only two pies, the disparity in the rates is from 9 to 11 pies.
Patel is certainly a businessman and the whole object of quoting the rates was to earn the maximum profit.
If he had seen the tender of Doongaji he would have modelled the rates in a manner that would give him the highest profit.
The learned Advocate General could not suggest any reason whatsoever why Patel would maintain his quotation for the quantity of 50,000 gallons at Rs, 2 10 6 when the rate of Doongaji was Rs. 3 3 0 1104 He could easily raise the quotation to Rs. 3 and similarly in all other cases he could have underbid Doongaji by 2, 3 or 6 pies at the most.
He need not have maintained a dis parity of 9 to 11 pies between his rates and the rates of Doongaji.
In our opinion, therefore, no conclusion of any character could be drawn from the disparity in the rates of Doongaji or of Patel or of the expected uniformity in the rates of Habibur Rahman or of R.S. Patel which would estab lish that Exhibit P 3A had been prepared by having a look at Exhibit P 6.
Another circumstance on which reliance was placed was that certain rates in Exhibit P 3A are lower than the corre sponding rates in Exhibit P 6 by only one or two pies.
There is no doubt that one or two rates are lower by two pies than the rates in Exhibit P 6 but nothing follows from that innocent circumstance, unless one starts with a pre sumption of guilt.
Once it is assumed that the tender of Doongaji was shown to Patel, all these circumstances might to some extent fit in with the view that in certain respects it may have been copied from Exhibit P 6.
The courts below fell into this error and departed from the rule that in a criminal case an accused person is to be presumed to be innocent and that it is for the prosecution to establish his guilt conclusively.
Next it was urged that in the covering letter Exhibit P 3 sent by Patel he mentions three appendices numbered 1, 2 and 3, The same expression finds place in the covering letter Exhibit P 4 of Habibur Rahman and Exhibit P~5 of Zakirur Rahman, that appendices 1 to a of the tender of Habibur Rahman and Zakirur Rahman correctly answer to the reference in the covering letters but this is not so in Patel 's case; on the other hand, instead of appendix 1, Patel has appendix 1 (a) and 1 (b) and the number of his appendices thus goes up to four and this departure from Exhibits P 4 and P 5 came about because of his having seen Exhibit P 6 and the number of appendices annexed to it.
It was urged that the original tender of Patel must have contained three appendices like those of Habibur Rahman and 1105 Zakirur Rahman and not appendix l(a) and l(b) as now found and that this circumstance showed substitution of the 'tender.
The learned magistrate, in our opinion, in giving importance to this circumstance mislead himself completely.
In the first place, it is not accurate to say that the expression appendices 1, 2 and 3 was common to the covering letters Exhibts P 4 and P 5.
In Exhibit P 5 the appen dices are marked A, B and C. Therefore, no uniform method was adopted by Patel in marking the appendices to the ten ders, Exhibits P 4 and P 5.
Secondly, there is no conflict in the expression of the appendices of Habibur Rahman and Patel.
They have been marked as 1, 2 and 3 and a mere subdi vision of the first appendix into (a) and (b) could not be taken to be a departure from the method adopted in the description of the appendices.
It may further be observed that the covering letter signed by Patel mentions four appendices, while the covering letters of Habibur and Zaki rur Rahman only mention three appendices.
The trial magis trate as well as the Sessions Judge ignored all these dif ferences in the method of the description of the appendices and assumed that they had been uniformly described.
The result therefore is that all these so called peculiar features found by the courts below in Exhibit P 3A should be eliminated from consideration and it must be held that there are really no circumstances inconsistent with Exhibit P 3A being a genuine document.
It could have been made out without looking at Exhibit P 6.
In this view of the case the whole basis on which the judgments of the courts below are founded vanishes, and in the absence of any evidence of motive, we are of the opinion that the facts did not on any just or legal view of them warrant a conviction, and al though the proceedings are taken to have been unobjection able in form, justice has gravely and injuriously miscar ried.
We therefore set aside the conviction of both the appellants on the second charge and acquit them, 142 1106 In order to appreciate the third charge, it is necessary to set out the terms of Exhibit P 24 which it is said was antedated in order to create evidence for the defence of the accused and to injure Amarnath.
It is in these terms: Congress Nagar, Nagpur, 20th November, 1946.
The Commissioner of Excise, C.P. & Berar, Nagpur.
Dear Sir, I beg to submit few of my complaints for such action as you may be pleased to take, which are as under.
I went to see Mr. Amarnath last week, at his residence in connection with Seoni Distillery work.
I saw Mr. Edulji and his partner with Mr. Amarnath in the office room of his residence with some office files.
From the papers I could recognize my tender open on the table in front of them.
As soon as I went there, all of them were astonished and they could not speak with me for a moment, and then they carried on some dry general conversation with me.
Same way after about a week, when I went to Seoni for mahua bill, when Mr. Amarnath visited for sanctioning the advance, I had the opportunity to see Mr. Amarnath in dak bungalow at about 9 30 p.m. when I saw Mr. Mehta the ex manager of Mr. Edulji (who is also the manager of Seoni Electric Co.) with Mr. Amarnath near table with the same file of the tender.
No doubt after seeing the above two incidents I requested Mr. Amarnath to be fair in this af fair.
I am bringing these incidents to your notice, as I fear that something underhand may not be going on, and I am afraid that my tender may be tampered with.
Hoping to get justice, Yours faithfully, Sd.
R.S. Patel.
" 1107 The words "Congress Nagar, Nagpur, 20th November, 1946" are in manuscript, while the rest of the letter has been typed.
The digit 6 of the year 1946 has been over written on digit 7 written in continental style and it is apparent to the naked eye that originally the writer wrote 7 and subsequently changed it to 6.
It was contended by the learned Advocate General, and this is the finding of the courts below, that this letter was written some time during the investigation of the case in July or August 1947, and was antedated in order to implicate Amarnath and to use it as evidence in defence.
The point for decision is wheth er there is any evidence whatsoever to establish this act.
We have not been able to discover any such evidence on the record; on the other hand the intrinsic evidence in the letter proves that most likely it came into existence on the date it bears.
The relevant facts are that the tenders were opened by accused Nargundkar on the 11th November, 1946, he handed them over after making the endorsements to Amarnath and Amarnath had to submit a report about them.
It is alleged in this letter that "last week", i.e., during the week commencing on the 11th November, 1946, accused Patel went to see Amarnath and there he saw Edulji Doongaji with him with his tender open on his table in front of him and that he was astonished at it, that about a week later he again went to Seoni and had the opportunity to see Amarnath and Mr. Mehta, ex manager of Edulji Doongaji, was with him and the tender file was lying there.
It was stated that he had requested Amarnath to be fair in this affair and the Commissioner was asked that he should see that his tender was not tampered with and he got justice.
The whole purpose and object of this letter was to protect himself against any underhand dealing in the granting of the contract.
In his statement under section 342, Cr. P.C., Patel said that he saw Amarnath on the morning of the 15th or 16th November, 1946, and he met Amarnath at Seoni at the distillery prem ises on the 16th November, 1946, and on the same 1108 day he met him at about 9 p.m. at the Seoni dak bungalow and that he again met him on the 17th November, at 10 a.m.
He also stated that he had gone to see Amarnath at his resi dence at Nagpur between the dates 12th and 18th November.
It was contended by the learned Advocate General that his statement was inconsistent with the recitals contained in Exhibit P 24.
We see nothing inconsistent between this statement and the recitals.
If accused Patel saw Amarnath on the 12th, the letter having been written on the 20th November, it would be quite a correct thing to say that he saw him "last week" and the next recital when he said that about a week thereafter he saw him again is quite consistent with his going and seeing him on the 16th or 17th November.
That would be about a week after the first visit.
To draw any conclusion adverse to the accused from a slight inaccu racy in the description of dates and to conclude therefrom that it was established that the accused Patel had seen Amarnath on the 9th November, 1946, amounts to unnecessari ly stretching a point against the accused.
The recitals in the letter, true or false, are quite consistent with the letter bearing date 20th November, 1946.
The magistrate observed that the vagueness about the date and the week shows that the allegations therein are not correct.
We have not been able to understand how the vagueness about the date could lead to the conclusion arrived at.
Emphasis was laid on the overwriting of the figure 6 over the figure 7 in the manuscript part of the letter.
It was said that the normal experience is that it becomes a subconscious habit to automatically write the year correctly when several months have elapsed after the change of the year and that by sheer force of habit the correct year must have been put down when the date was entered in the letter Exhibit P 24 and that the figure was subsequently changed to 6 and this fact was an indication that the letter was written some time in the year 1947.
In our view this argument again involves an element 1109 of conjecture.
The mistake may well have been inadvertent ly made and the correction made there and then.
That such mistakes are not very uncommon or unusual and occur in official documents is fully established on the record, in para 93 of the judgment of the learned Sessions Judge and it is said as follows: "The appellants have produced a file which is Exhibit ID 35.
It contains a sheet which bears pages 9 and 10.
On the 10th page there are two office notes one is written by A.M. Naidu and the other by the appellant Nargundkar.
A.M. Naidu below his signature has written '6 4 1948 '.
The appellant Nargundkar below his signature has written '6 4 1947 '.
The other notes in the office file show that the correct date of the two signatures was 6th August, 1947.
Thus in this sheet there are two mistakes in mentioning the number of the month and one mistake in mentioning the number of the year.
The appellants contend that such mistakes are possible.
Nobody can deny that such mistakes are possible; but it has to be decided what inferences can be drawn from such mistakes, if there is other evidence also.
" We have looked in vain for other evidence to prove that the letter was not written on 'the date it bears.
Even Gadgil could not explain why he said that the letter was written in July, 1946.
It is clear that he is not telling the ' truth in this respect.
The endorsement made on the letter by accused Nargundkar clearly bears the date 21st November, 1946, and if this letter was not given to him on the date of the endorsement and was given to him several months afterwards he would in ordinary course have made some note either on the letter or in the receipt register of his office when that letter was received by him.
Then it was said that this letter was not in the file of the tenders which were kept separate.
The Commissioner had noted that the letter be filed and he sent it to the office.
If the office people did not put it in the file, from that circum stance no adverse inference could 1110 be drawn as to the date that the letter bears.
It is dear that no forger would have in such a clumsy manner corrected 1947 into 1946 so as to leave the original figure "7" intact and thus leave evidence of its suspicious character writ large on its face.
There was no hurry about it, and a second letter without the alteration could easily have been typed.
Next it was argued that the letter was not typed on the office typewriter that was in those days, viz., article B, and that it had been typed on the typewriter article A which did not reach Nagpur till the end of 1946.
On this point evidence of certain experts was led.
The High Court rightly held that opinion of such experts was not admissible under the Indian Evidence Act as they did not fall within the ambit of section 45 of the Act.
This view of the High Court was not contested before us.
It is curious that the learned Judge in the High Court, though he held that the evidence of the experts was inadmissible, proceeded nevertheless to discuss it and placed some reliance on it.
The trial magis trate and the learned Sessions Judge used this evidence to arrive at the finding that, as the letter was typed on article A which had not reached Nagpur till the end of December, 1946, obviously the letter was antedated.
Their conclusion based on inadmissible evidence has therefore to be ignored.
It was further held that the evidence of experts was corroborated by the statements of the accused recorded under section 342.
The accused Patel, when questioned about this letter, made the following statement: "Exhibit P 31 was typed on the office typewriter article B. Exhibit P 24 being my personal complaint letter was typed by my Personal Assistant on one of the typewriters which were brought in the same office for trial, with a view to purchase.
As this was my personal complaint no copy of it was kept in the Correspondence Files Exhibit P 34 and Exhib it P 35 just 1111 as there is no copy in these files of my tender Exhibit P 3A . . .
In the month of September, October and November, 194t5, several machines were brought for trial from various parties in our of rice till the typewrit er article A was purchased by National Industrial Alcohol Ltd. Company.
" If the evidence of the experts is eliminated, there is no material for holding that Exhibit P 24 was typed on article A.
The trial magistrate and the learned Sessions Judge used part of the statement of the accused for arriving at the conclusion that the letter not having been typed on article B must necessarily have been typed on article A.
Such use of the statement of the accused was wholly unwar ranted.
It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.
An admission must be used either as a whole or not at all.
If the statement of the accused is used as a whole, it completely demolishes the prosecution case and, if it is not used at all, then there remains no material on the record from which any inference could be drawn that the letter was not writeen on the date it bears.
For the reasons given above we hold that there is no evidence whatsoever on the record to prove that this letter Exhibit P 24 was antedated and that being so, the charge in respect of forgery of this letter also fails.
Read as a whole, this letter cannot be said to have been written with the intention of causing any injury to Amarnath or for the purpose of creating a defence in respect of the second charge.
The letter read as a whole is an innocuous document and its dominant purpose and intent was to safeguard the interests of accused Patel and to protect him against any underhand or unfair act of his rival contractors.
We cannot infer any intent to defraud or any intention to injure Amarnath, though in order to protect himself accused Patel made certain allegations against him.
We therefore set aside the conviction of both the appellants under the third charge and acquit them.
1112 The result is that the consolidated appeal is allowed, the judgments of all the three courts below are set aside and the appellants are acquitted.
Appellants acquitted.
Agent for the appellant in Criminal Appeal No. 56 of 1951: Ganpat Rai.
Agent for the appellant in Criminal Appeal No. S7 of 1951: Rajinder Narain.
| IN-Abs | In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof.
It is therefore right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved.
In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
vs Hodge [(1838) referred to.
An admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.
It must be used either as a whole or not at all.
|
minal Appeal No. 49 of 1956.
Appeal by special leave from the judgment and order dated October 13, 1954, of the Madras High Court in Criminal Revision Case No. 267 and 1954 154 1212 (Criminal Revision Petition No. 249 of 1954) arising out of the judgment and order dated January 12, 1954, of the Court of the District and Sessions Judge as Tiruchirapalli in Criminal Revision Petition No. 17 of 1953.
R. Ganapathy Iyer and G. Gopalakrishnan, for the appellant.
No one appeared for the respondents.
August 25.
The Judgment of the Court was delivered by SINHA J.
The only question for determination in this appeal by special leave, is whether the petition of complaint, disclosed a prima facie offence under section 295 of the Indian Penal Code.
The courts below have taken the view that it did not, and on that ground, it stood summarily dismissed, before evidence pro and con had been recorded.
It appears that the appellant filed a petition of complaint in the court of the Additional First Class Magistrate, Tiruchirappalli, against the respondents, three in number.
The petition of complaint alleged inter alia that the first accused is the leader of Dravida Kazakam (a community of persons who profess to be religious reformers, one of whose creeds is to carry on propaganda against idol worship), and as such, be was out to " vilify a certain section of the Hindu community and do propaganda by holding meetings and writing articles.
" It is further alleged in the petition of complaint that " recently, the first accused announced his intention of breaking the image of God Ganesa, the God sacred to the Saiva Section of the Hindu Community on 27th May, 1953, in a public meeting at Town Hall.
This caused terror commotion in the mind of the Saivite Section of the Hindu Community.
" The complainant claims to be a Saivite.
The complainant further alleged in his petition that on May 27, 1953, at about 5 30 p.m., the accused broke an idol of God Ganesa in public at the Town Hall Maidan, and before breaking the idol, lie made a speech, and expressly stated that he intended to insult the feelings of the Hindu community by breaking the idol of God 1213 Ganesa.
The said act of breaking the idol was alleged to have been actively abetted by instigation and aid by the other two accused persons, who also made speeches.
The petition of complaint also alleged that the said act of breaking the image of God Ganesa was done with the intention of insulting the religious feelings of certain sections of the Hindu community, who hold God Ganesa in veneration, and that the acts complained of, amounted to offences under sections 295 and 295A of the Indian Penal Code.
On those allegations, the petition of complaint (dated June 5, 1953) prayed that processes might issue against the three accused persons.
In the list of witnesses appended to the petition, figured the Additional District Magistrate, the Sub Divisional Magistrate, the Town Sub Inspector of police, Tiruchi Fort, and Sub Magistrate, Tiruchy Town.
On the same date, the learned magistrate examined the complainant on oath.
The complainant made statements in support of his allegations in the petition of complaint.
Thereupon, the learned magistrate directed that the petition of complaint be sent to the Circle Inspector of police, Trichy, for inquiry and report under section 202, Criminal Procedure Code.
On June 26, 1953, on receipt of the police report which " showed that though the occurrence as alleged had taken place it was a point of law if the act of the accused would amount to any offence ", the learned magistrate passed his order, dismissing the complaint under section 203 of the Criminal Procedure Code.
In the course of his order, the learned magistrate observed as follows: "The mud figure of Ganesa alleged to have been broken by accused is not an object held sacred or worshipped by any class of persons.
Simply because it resembled the God Ganesa held in veneration by a section it cannot become an object hold sacred.
Even Ganesa idol abandoned by the people as unworthy of worship loses its sanctity and it is no longer an object held sacred by anybody, since such given up idols are found in several places of defilement.
It is not an offence if a person treads union any such abandoned idol.
Therefore the breaking of mud figure of Ganesa 1214 does not amount to an offence under Section 295, Indian Penal Code. " "The speeches delivered by the accused with deliberate and malicious intention of outraging religious feelings of a community, no doubt amount to an offence under Section 295 A, Indian Penal Code.
But for laying a complaint under this section the sanction of the Government is necessary.
This section has been clearly mentioned in the complaint and it cannot be said it was included by oversight.
Without a proper sanction an offence under this section is unsustainable.
I therefore see no sufficient ground for proceeding with the complaint and I dismiss the same under section 203, Criminal Procedure Code.
" The complainant moved the learned Sessions Judge of Tiruchirappalli, by his petition in revision, filed on July 9, 1953, under sections 435 and 436 of the Criminal Procedure Code, for setting aside the order of dismissal of the complaint.
In the petition filed in the Court of Session, the complainant stated that the petition was confined to the complaint in respect of the alleged offence under section 295, Indian Penal Code, and that it did not seek to revise the order of dismissal of the complaint in respect of an offence tinder section 295 A of the Indian Penal Code.
The learned Sessions Judge dismissed the petition by an order dated January 12, 1954, holding, in agreement with the learned magistrate, that the acts complained of did not amount to an offence under section 295, Indian Penal Code.
In the course of his order, the learned Sessions Judge made the following observations: " I agree with the learned Magistrate that the acts complained of do not amount to an offence.
The accused, who profess to be religious reformers in a campaign against idolatory organized a public meeting at which they broke an earthern image of the God Ganesa.
The particular image broken was the private property of the accused and was not in itself an object held sacred by any class of persons; nor do I think that idol breaking by a non believer can reasonably be regarded by a believer as an insult to his religion ; and the ingredients of Section 295, Indian Penal Code, are therefore not made out.
" 1215 The complainant then moved the High Court in its revisional jurisdiction under section 439 of the Code of Criminal Procedure.
The matter was heard by a learned single Judge of that Court.
The learned single Judge also agreed with the courts below in the reasons given by them for dismissing the petition of complaint, and refused to order further inquiry.
In the course of his judgment, he discussed the question whether a mud image of God Ganesa, came within the scope of the words " any object held.
sacred by any class of persons " in section 295, and he answered the question in the negative.
In this connection, he referred to the judgment of the Full Bench of the Allahabad High Court in the case of Queen Empress vs Imam Ali (1), which is directly an authority for this proposition only that the word 'object ' in section 295 of the Indian Penal Code, does not include animate objects.
That case dealt with the complaint of killing a cow.
Edge C. J. in the course of his judgment, made an observation that the word ' object ' should be interpreted ejusdem generis with the words 'place of worship ', and by way of an example of such an inanimate object, he mentioned an idol.
That observation, if anything, is not against the complainant.
The learned single Judge also referred to the case of Romesh Chunder Sannyal vs Hiru Mondal (2), which also is not in point inasmuch as it dealt with the case of a dedicated bull.
But the learned Judge seemed to draw from those cases the inference which may be stated in his own words, as follows: " Interpreted like that, it would mean that the section would apply only to cases where an idol in a temple is sought to be destroyed, damaged, or defiled.
The words 'any object held sacred by any class of persons ' even otherwise will apply only to idols in a temple or when they are carried out in processions on festival occasions.
The object held sacred ' will mean only the idols inside the temple and when they are taken out in processions on festival occasions.
In such circumstances as in the present case the breaking is nothing more than a doll taken from the shop.
(1) All. 150.
(2) Cal.
1216 Though the intention of the respondents may be to decry the feelings and wound the susceptibilities of a large section of the people, still the intention alone is not sufficient unless it is carried out by an act which must fall within the scope of this section.
The dolls in the shop, though they may resemble several of the deities in the temple, cannot be held to be objects held sacred by any class of persons.
In modern society there are several images of the deities in the drawing rooms of several houses.
It cannot for a moment be suggested that these images are objects held sacred.
These have got to be distinguished from the objects held sacred, which can only be when they are duly installed in a temple and from which they are subsequently taken out in procession on festival occasions.
What was broken therefore by the respondents is nothing more than a doll taken either from a shop or made for the occasion, and it cannot by any means be called ail object held sacred.
The offence is not made out and the dismissal is therefore justified.
" The petitioner moved the High Court for the necessary certificate of fitness for making an appeal to this Court.
The learned Judge, who had heard the case on merits, also dealt with this application, and refused to certify that this was a fit case for appeal to this Court under article 134(1)(c) of the Constitution.
The petitioner moved this Court and obtained the necessary special leave to appeal.
It is regrettable that the respondents have remained ex parts in this Court.
The learned counsel for the appellant has urged that the courts below had unduly restricted the meaning of the words of section 295, particularly, the words " any object held sacred by any class of persons ", and that the words have been used in their fullest amplitude by the Legislature, in order to include any object consecrated or otherwise, which is held sacred by any class of persons, not necessarily belonging to a different religion or creed.
In the first place, whether any object is held sacred by any class of persons, must depend upon the evidence in the case, so also the effect of the words " with the intention of thereby insulting the religion of any class 1217 of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion.
" In this case, the facts alleged in the petition, do not appear to have been controverted, but the learned magistrate, as also the learned Sessions Judge and the learned Judge in the High Court, have thrown out the petition of complaint solely on the ground that the image of God Ganesa, treated by the respondents as alleged by the complainant, could not be said to be held sacred by any class of persons.
In the instant case, the insult alleged was by destruction of the image of God Ganesa.
Apart from the question of evidence, which had yet to be adduced, it is a well knonwn fact that the image of Lord Ganesa or any objective representation of a similar kind, is held sacred by certain classes of Hindus, even though the image may not have been consecrated.
The learned Judge in the Court below, has given much too restricted a meaning to the words any object held sacred by any class of persons ", by holding that only idols in temples or idols carried in processions on festival occasions, are meant to be included within those words.
There are no such express words of limitation in section 295 of the Indian Penal code, and in our opinion, the learned Judge has clearly misdirected himself in importing those words of limitation.
Idols are only illustrative of those words.
A sacred book, like the Bible, or the Koran, or the Granth Saheb, is clearly within the ambit of those general words.
If the courts below were right in their interpretation of the crucial words in section 295, the burning or otherwise destroying or defiling such sacred books, will not come within the 'Purview of the penal statute.
In our opinion, placing such a restricted interpretation on the words of such general import, is against all established canons of construction.
Any object however trivial or destitute of real value in itself, if regarded as sacred by any class of persons would come within the meaning of the penal section.
Nor is it absolutely necessary that the object, in order 1218 to be held sacred, should have been actually worshipped.
An object may be held sacred by a class of persons without being worshipped by them.
It is clear, therefore, that the courts below were rather cynical in so lightly brushing aside the religious susceptibilities of that class of persons to which the complainant claims to belong.
The section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds.
Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the court.
As a result of ' these considerations, it must be held that the courts below have erred in their interpretation of the crucial words of section 295 of the Indian Penal Code.
But the question still remains whether, even after expressing our strong disagreement with the interpretation of the section by the courts below, this Court should direct a further inquiry into the complaint, which has stood dismissed for the last about 5 ),ears.
The action complained of against the accused persons, if true, was foolish, to put it mildly, but as the case has become stale, we do not direct further inquiry into this complaint.
If there is a recurrence of such a foolish behaviour on the part of any section of the community, we have no doubt that those charged with the duty of maintaining law and order, will apply the law in the sense in which we have interpreted the law.
The appeal is, therefore, dismissed.
Appeal dismissed.
| IN-Abs | The words " any object held sacred by any class of persons" occurring in section 295 Of the Indian Penal Code are of general import and cannot be limited to idols in temples or idols carried on festival occasions.
Not merely idols or sacred books, but any other object which is regarded as sacred by any class of persons, whether actually worshipped or not, fall within the description.
Queen Empress vs Imam Ali, All. 150 and Romesh Chunder Sannyal vs Hiru Mondal, Cal.
852, considered.
Consequently, in a case where the allegation in the petition of complaint was that one of the accused broke the idol of God Ganesa in public and the two others actually aided and abetted him with the intention of insulting the religious feeling of the complainant and his community who held the deity in veneration and the trial Magistrate, on receipt of the Police report that the alleged occurrence was true, dismissed the complaint under section 203 of the Code of Criminal Procedure holding that the breaking of a mud image of Ganesa was not an offence under section 295 of the Indian Penal Code and the Sessions judge and the High Court in revision, agreeing with the view of the trial Court, refused to direct further enquiry : Held, that the courts below were clearly in error in inter preting section 295 of the Indian Penal Code in the way they (lid, but since the complaint stood long dismissed, no further enquiry need be directed into the matter.
Held, further, that the Courts must be circumspect in such matters and pay due regard to the religious susceptibilities of different classes of persons with different beliefs, whether they shared those beliefs or not or whether those beliefs in the opinion of the Court were rational or not.
|
ivil Appeal No. 4 177 of 1989.
From the Judgment and Order dated 28.3.1989 of the Madras High Court in O.S.A. No. 48 of 1989.
K.K. Venugopal, K. Chandra Mouli, Ms. Meenakshi Sundaram and K.K. Mani for the Appellant.
Dr. Y.S. Chitale, V.G. Pragasam, Satya Mitra Garg, V. Prakash and R. Venkataramani for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special Leave granted.
The question raised in this appeal is whether the agent after revocation of his authority is entitled to remain in possession of the premises of the principal and interfere with the business thereof.
The learned single Judge of the Madras High Court in Original Suit C.S. No. 1317 of 1988 has granted temporary injunction restraining the respondent from interfering with the appellant 's transport business.
But the Division Bench by judgment delivered on March 28, 1989, vacated that temporary injunction.
The present appeal is directed against the judgment of the Division Bench.
The facts are substantially undisputed.
The appellant company under the name as Southern Roadways Ltd. is engaged in the business of transport of goods and parcels to differ ent places in Southern India.
It has appointed commission agents at various stations for the purpose of carrying on its business.
S.M. Krishnan respondent was one such agent appointed at Madras city.
Clause III of the agreement by which he was appointed provides that the respondent should arrange a suitable godown and engage employees.
Clause XI provides for his removal from service at any time without notice.
It also provides that upon removal of the agent the company could occupy the godown.
The company could also utilise the services of employees engaged by the respondent.
As per the agreement perhaps at the 413 suggestion of the respondent, the Company took on lease a godown at No. 10, Srinivasan Road, T. Nagar, Madras.
The godown was put in possession of the respondent for the purpose of carrying on his agency business of the company.
In the course of the company 's audit, it was discovered that the respondent had mismanaged the business and misap propriated the income of the company.
By letter dated Octo ber 13, 1988, the company terminated his agency with effect from October 14, 1988.
He was informed that the company would be taking possession of the godown and carrying on the business on its own.
By subsequent letter, he was also intimated that the company has taken possession of the godown on October 15, 1988 and another agent called R. Sundarajan, was appointed in his place.
The respondent however, prevented R. Sundarajan and also the company from carrying on business at the godown premises.
The company, therefore, had to institute a suit for declaration of its right to carry on business in the said premises.
Permanent injuction restraining the respondent from interfering was also sought for.
The suit was based on two separate grounds.
The first related to legal right of the company to carry on its business after termination of agency of the respondent; the second concerned the factum of taking actual possession of the premises on October 15, 1988.
Pending suit, the company moved the High Court for temporary injunction.
The temporary injunction restraining the respondent from interfering with the possession of the premises and the business thereof.
The learned single Judge (M. Srinivasan, J.) acceded to that request.
The judge said: "As pointed out already, in this case, there is no denial of the lease arrangement between the owner of the premises and the plaintiff.
The defendant does not claim to be the owner of the premises nor does he put forward any rival title as against the plaintiff.
The only claim of the defendant is that he is in pos session and that he has been paying the rent to the owner.
He does not claim that he took possession as a lessee from the owner.
Though there is a specific averment in the plaint and the affidavit of the plaintiff that there is a lease arrangement between the plaintiff and the owner, there is no denial of the same by the defendant.
In these circumstances, the defendant cannot claim that he is in posses sion pursuant to any right enured in him.
" 414 As to the possession of the premises, he said: "The claim made by the plaintiff that it took possession on 15.10.1988 is acceptable in view of the fact that the defendant was never the lessee under the owner of the premises.
The defendant was only looking after the business as an agent of the plaintiff and as such he was permitted to enter the premises and he cannot claim independent possession.
" Finally, he concluded: "In the circumstances of the case, there can be no doubt that the plaintiff has been in legal and actual possession of the premises on the date of suit.
The fact that the business has been temporarily shifted to another place in view of the threat meted out to the plain tiff 's agent will not disentitle the plaintiff to get injunction.
The plaintiff is certainly entitled to carry on its business at No. 10, Srinivasan Road, T. Nagar, Madras 600017, having taken the premises on lease.
It is ot open to the defendant to prevent the plaintiff from carrying on such business.
" The respondent was thus restrained by means of temporary injunction from interfering with the company 's transport business in goods and parcels at the suit premises.
The respondent took up the matter in appeal before the Division Bench of the High Court.
The Division Bench con sisting of Sathidev and Padmini Jesudurai, JJ., accepted the appeal and vacated the temporary injuction.
The conclusion of learned Judges is largely based on the actual possession of the premises claimed by the Company.
They found it hard to accept that claim and observed: "The plaintiff will not be entitled to the relief sought for unless it establishes that its claim that possession of the property was handed over to it on 15.10.1984 is true.
The defendant has consistently been contending that possession was not handed over to the plaintiff on 15.10.1984 and that he continues to be in actual and physical possession of the property even now.
No material has been placed before the Court to substantiate the claim of the plaintiff that possession was taken over on 15.10.1984.
" 415 They continued: "In the face of these documents and in the absence of any material to show that posses sion of the suit property was taken by the plaintiff on 15.10.1988, it would be impossi ble for this Court to grant the plaintiff, the relief of injuction." As to the company 's right to treat the respondent as trespasser, the Division Bench observed: "Before the defendant could be characterised as a trespasser, the validity of the termina tion of the agency and the rights of the parties, following that, have also to be determined and this could be done only during trial." At the outset, we may state that we are not so much concerned with the rival claims relating to actual posses sion of the suit premises.
Indeed, that is quite irrelevant for the purpose of determining the rights of the company to carry on its business.
Mr. Venugopal, learned counsel for the appellant also discreetly did not advert to that contro versy.
He, however, rested his case on certain facts which are proved or agreed.
They may be stated as follows: The company was and is the tenant of the suit premises and has been paying rent to the owner.
The lease in respect of the premises has been renewed up to November 22, 1983.
It was the company which has executed the lease and not the respondent.
The respondent as agent was allowed to remain in possession of the premises.
It was only for the purpose of carrying on company 's business.
His agency has been termi nated and his authority to act for the company has been put an end to.
These facts are indeed not disputed.
On these facts the contention of counsel is that when the agency has been terminated, the respondent has no legal right to remain in the premises or to interfere with the business activities of the company.
The force of this argument cannot be gainsaid.
Counsel, in our opinion, appears to be on terra firma.
The principal has right to carry on business as usual after the removal of his agent.
The Courts are rarely willing to imply a term lettering such freedom of the principal unless there is some agreement to the contrary.
The agreement between the parties in this case does not confer right on the respondent to continue in possession of the suit premises even after termination of agency.
Nor does it preserve right for him to interfere with the com 416 pany 's business.
On the contrary, it provides that the respondent could be removed at any time without notice and after removal the company could carry on its business as usual.
The company under the terms of the agreement is, therefore, entitled to assert and exercise its right which cannot be disputed or denied by the respondent.
Even otherwise, under law revocation of agency by the principal immediately terminates the agent 's actual authori ty to act for the principal unless the agent 's authority is coupled with an interest as envisaged under section 202 of the .
When agency is revoked, the agent could claim compensation if his case falls under section 205 or could exercise a lien on the principal 's property under section 22 1.
The agent 's lien on principal 's property recognised under section 22 1 could be exercised only when there is no agreement inconsistent with the lien.
In the present case the terms of the agreement by which the re spondent was appointed as agent, expressly authorises the company to occupy the godown upon revocation of agency.
Secondly, the lien in any event, in our opinion, cannot be utilised or taken advantage of to interfere with principal 's business activities.
There is yet another significant factor to be borne in mind when we deaf with the rights of an agent.
An agent who receives property or money from or for his principal obtains to interest for himself in the property.
When he receives any such property he is bound to keep it separate from his own and that of others.
Long ago, Lord Cottenham, L.C. (Foley vs Hill; , 1843 60 All E.R. (Reprint) 16 at 198) said: ".
So it is with regard to an agent dealing with property; he obtains no interest himself in the subject matter beyond his remuneration; he is dealing throughout for another, and though he is not a trustee according to the strict technical meaning of the word, he is quasi a trustee for that particular transac tion for which he is engaged.
" Out of this practice there has emerged a rule, which is a normal incident of agency, that an agent cannot deny principal 's title to property nor he can convert it into other kind or use.
Fridman 's Law of Agency (5th Edition page 150) also supports this view: "Respect of Principal 's title: "The agent cannot deny the title of the prin cipal to goods, 417 money, or land possessed by the agent on behalf of the principal.
The possession of the agent is the possession of the principal for all purposes, including the acquisition of title under statutes of limitation, even where in fact the agent, though in ignorance of his claim, is entitled to the land, unless the agent possesses not as agent but on his own behalf, in which event his possession will be personal and not for his principal." As to the nature of agent 's possession in respect of principal 's property, this Court in a recent judgment ren dered in Smt.
Chandrakantaben and Anr.
vs Vadilal Bapalal Modi and Ors., [1989] 2 SCC 630 said at 643: "It is well settled that the possession of the agent is the possession of the principal and in view of the fiduciary relationship defend ant 1 cannot be permitted to claim his own possession.
This aspect was well emphasised in David Lyell vs John Lawson Kennedy, [1889] 14 HL (E) 437 where the agent who was collecting the rent from the tenants on behalf of the owner and depositing it in a separate ear marked account continued to do so even after the death of the owner.
After more than 12 years of the owner 's death his heir 's assignee brought the action against the agent for possession and the agent defendant pleaded adverse possession and limitation.
The plain tiff succeeded in the first court.
But the action was dismissed by the Court of Appeal.
The House of Lords reversed the decision of the Court of Appeal and remarked: "For whom, and on whose behalf, were those rents received after Ann Duncan 's death? Not by the respond ent for himself, or on his own behalf, any more than during her lifetime." Emphasising the fiduciary character of the agent his possession was likened to that of trustee, a solicitor or an agent receiving the rent under a power of attorney.
Another English case of Williams vs Pott, LR 12 Eq Cas 149, arising out of the circumstances similar to the.
present case was more interesting.
The agent in that case was the real owner of the estate but he collected the rents for a considerably long period as the agent of his principal who was his mother.
After the agent 's death his heir claimed the estate.
The mother (the principal) had also by then died after pur porting by her will to devise the disputed lands to the defendants upon certain 418 trusts.
The claim of the plaintiff was dis missed on the plea of adverse possession.
Lord Romilly, M.R., in his judgment observed that since the possession of the agent was the possession of the principal, the agent could not have made an entry as long as he was in the position of the agent for his mother, and that he could not get into possession without first resigning his position as her agent which he could have done by saying: "The property is mine; I claim the rents, and I shall apply the rents for my own purposes.
" The agent had thus lost his title by reason of his own possession as agent of the principal.
" We wish to add that it is not every agent who is in a fiduciary position vis a vis his principal.
For example is A appoints B to be his agent merely to sign a memorandum and places no particular trust in B, the doctrine of fiduciary relations would not apply.
Like wise, where the principal authorises an agent to do particular or specified acts, the doctrine of fiduciary relation may not arise.
What we want to emphasise is, in all cases of general agency, the rela tion may be generally fiduciary, but in other kinds of agencies, the relation may vary with the confidence which the principal chooses to repose in the agent.
It may also depend upon the power which the agent exercises over the subject matter under the terms of the contract of agency or by virtue of the incident of law and usage of the business which the relationship implies.
Thus the fiduciary element in agency, though the key to much of the law governing this relation, is not the essential element in the relation.
(See Modern Law Review, Vol.
17 pp. 31 32).
The crux of the matter is that an agent holds the prin cipal 's property only on behalf of the principal.
He ac quires no interest for himself in such property.
He cannot deny principal 's title to property.
Nor he can convert it into any other kind or use.
His possession is the possession of the principal for all purposes.
As the Kerala High Court in Narayani Amma vs Bhaskaran Pillai, AIR 1969 Kerala 214, observed at 217: "The agent has no possession of his own.
What is called a caretaker 's possession is the possession of the agent.
" So much is, we think, established law as regards agent 's right to property belonging to the principal.
Dr. Chitale, learned counsel for the respondent, however, cited in this context, two decisions: (i) Abdul Nabi Sahib vs Bajab Sahib and Anr., AIR 1944 Mad 221 and (ii) 419 Jemma vs Raghu, AIR 1977 Orissa 12.
In the former case of the Madras High Court, the suit was for a permanent injunc tion restraining the defendant from interfering with the plaintiff 's peaceful possession and enjoyment of the suit properties and performance of the religious services.
The defendant admitted that he was agent of the plaintiff but set up title to the property in himself as donee.
He has also set up title by adverse possession.
On these claims, Kunhi Raman, J., observed: "Since the plaintiff had not got possession of the property, it would not be sufficient to show that he was in constructive possession and the theory of constructive possession as between the principal and agent, cannot be relief upon by the principal for the purpose of meeting the contention of the description raised on behalf of the defendant, who is the agent." If the defendant in the above case, has admitted that he was the agent of the plaintiff and yet set up title to the property of his principal, the above observation may not be consistent with the settled principle of law.
We have al ready stated that the agent acquires no interest in the property of the principal and he cannot, therefore, non suit the principal on the possessory title as agent.
The second case in Jemma vs Raghu, referred to us is the decision of the Orissa High Court.
That case dealt with the general principle that the plaintiff who is not in posses sion of the suit premises is not entitled to relief of injunction.
The plaintiff must ask for recovery of posses sion.
But this principle has no application with regard to dispute between the principal and agent in respect of prin cipal 's property.
In this case, the respondent 's possession of the suit premises was on behalf of the company and not on his own right.
It is, therefore, unnecessary for the company to file a suit for recovery of possession.
The respondent has no right to remain in possession of the suit premises after termination of his agency.
He has also no right to interfere with the company 's business.
The case, therefore, deserves the grant of temporary injunction.
The learned single Judge of the High Court in our judgment, was justified in issuing the injunction.
The Division Bench of the High Court was clearly in error in vacating it.
In the result, we allow the appeal with costs.
In rever sal of the order of the Division Bench, we restore the temporary injunction granted by learned single Judge of the High Court.
Y. Lal Appeal allowed.
| IN-Abs | The appellant company is engaged in the business of transport of goods and parcels in Southern India and for that purpose has appointed agents at various stations.
The respondent was one such agent appointed at Madras.
As pro vided in clause III of the Contract, the respondent was to arrange a suitable godown and engage employees.
The Company took on lease a godown at No. 10, Srinivasan Road, T. Nagar, Madras and the same was put in possession of the respondent for the purpose of carrying on his agency business of the Company.
During the course of the Company 's audit, it transpired that the Respondent not only mismanaged the business but had misappropriated some of the income of the company.
The appellant, therefore, terminated his agency with effect from 14.10.1988 in terms of clause XI of the Contract and in formed him that the company would be taking possession of the Godown premises for carrying on the business on its own, as provided in the contract.
Thereafter the respondent was informed by a letter that the company has taken possession of the Godown on 15.10.88 and another agent R. Sundarajan had been appointed in his place.
But the respondent prevent ed R. Sundarajan and also the company from carrying on the business at the godown premises.
The company, therefore, filed a suit for declaration of its right to carry on the business in the premises and for a permanent injunction restraining the respondent from interferring with its pos session on the ground that after the termination of the agency of the respondent, the company acquired a right to carry on the business of the company and further the company had since acquired the possession of the premises on 15.10.88.
Pending decision of the suit, the appellant prayed for the issuance of a temporary injunction.
The Trial Judge of the Madras High Court granted temporary injuction re straining the 411 respondent from interfering with the appellant 's business but on appeal by the respondent the Division Bench of the Madras High Court vacated that temporary injunction.
Hence this appeal by the appellant company.
Allowing the appeal, this Court, HELD: Under law, revocation of agency by the Principal immediately terminates the agent 's actual authority to act for the Principal unless the agent 's authority is coupled with an interest as envisaged under section 202 of the .
When agency is revoked, the agent could claim compensation if his case falls under section 205 or could exercise a lien on the Principal 's property under section 221.
The agent 's lien on Principal 's property recog nised under section 221 could be exercised only when there is no agreement inconsistent with the lien.
[416B C] In the present case, the terms of the agreement by which the respondent was appointed as agent, expressly authorise the company to occupy the godown upon revocation of agency.
Secondly the lien, in any event, cannot be utilised or taken advantage of to interfere with Principal 's business activi ties.
[416C D] An agent who receives property or money from or for his Principal obtains no interest for himself in the property.
When he receives any such property he is bound to keep it separate from his own and that of others.
[416E] (See Foley vs Hill, All E.R. Reprint 16 at 198; It is not every agent who is in a fiduciary position vis a vis his principal.
For example if 'A ' appoints 'B ' to be his agent merely to sign a memorandum and places no particular trust in 'B ' the doctrine of fiduciary relations would not apply.
Likewise where the Principal authorises an agent to do particular and specified acts, the doctrine of fiduciary relation may not arise.
[418C D] In this case, the respondent 's possession of the suit premises was on behalf of the company and not on his own right.
It is, therefore, unnecessary for the company to file a suit for recovery of possession.
The respondent has no right to remain in possession of the suit premises after termination of his agency.
He has also no right to interfere with the Company 's business.
The case, therefore, deserves the grant of temporary injunction.
[419F G] 412 Smt.
Chandrakantaben and Anr.
vs Vadilal Bapalal Modi and Ors., [1989] 2 SCC 630 at 643; Narayani Amma vs Bheska ran Pillai, AIR 1969 Kerala 214; Abdul Nabi Sahib vs Bajab Sahib & Anr., AIR 1944 Mad 221 and Jamma vs Reghu, AIR 1977 Orissa 12, referred to.
|
Writ Petition (Crimi nal) No. 184 of 1989.
(Under Article 32 of the Constitution of India).
Kapil Sibbal, K.K. Lahiri, K.R. Nagaraja and R.S. Hegde for the Petitioner.
V.C. Mahanjan, T.V.S.N. Chari and Ms. A. Subhashini for the Respondents.
344 The Judgment of the Court was delivered by DUTT, J.
In this writ petition the petitioner has chal lenged the validity of the detention order dated January 19, 1989 passed under the , hereinaf ter referred to as 'the Act ', by virtue of which the peti tioner has been under detention since the said date.
The allegations made in the grounds of detention need not be stated, for only legal submissions have been made on behalf of the petitioner in challenging the order of detention.
The order of detention dated January 19, 1989 reads as follows: "WHEREAS, I, Vijay Karan, Commissioner of Police, Delhi, am satisfied that with a view to prevent Sh.
Jitender Tyagi s/o Sh.
Ram Nath Tyagi, R/o VIII.
Khajuri, Police Station.
Kila, Distt.
Meerut (Uttar Pradesh) aged at about 25/26 from acting in a manner prejudi cial to the maintenance of public order, it is necessary to make an order directing that the said Sh.
Jitender Tyagi may be detained.
Now, therefore, in exercise of the powers conferred vide sub section (2) of section 3 of the as delegated to me vide Delhi Administration, Delhi 's order No. F2/1/88 H.P. II, dated 11.1.89.
I hereby direct that the said Sh.
Jitender Tyagi be detained and kept in Central Jail, Tihar, Delhi.
" It, thus, appears from the order of detention that it was passed by the Commissioner of Police, Delhi, in exercise of the powers conferred by sub section (2) of section 3 of the Act as delegated to him by the Delhi Administration.
The order of detention was approved by the Administrator of Delhi by his order dated January 31, 1989.
Paragraph 3 of the said order is in the following terms: "3.
Now, therefore, in exercise of the powers conferred upon him by sub section (4) of section 3 of the , the Administrator hereby approves the order of the Police Commissioner dated 19.1.1989 de taining Sh.
Jitender Tyagi and further directs that Sh.
Jitender Tyagi be kept in custody in Central Jail, Tihar, New Delhi.
The first point that has been strenuously urged by Mr. Kapil Sibal, learned Counsel appearing on behalf of the petitioner, is that the order of detention not having been approved within a period of 345 twelve days, as provided in sub section (4) of section 3 of the Act, it had spent its force on the expiry of the said period and, accordingly, the detention of the petitioner is illegal.
Section 3 of the Act provides for the power to make orders of detention under certain circumstances.
Sub section (4) of section 3 reads as follows: "(4).
When any order is made under this sec tion by an officer mentioned in sub section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub section shall apply sub ject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted.
" Under sub section (4) of section 3, "no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government".
The question that arises for our consid eration relates to the computation of the period of twelve days.
To be more explicit, the question is whether in com puting the period of twelve days, the day on which the order of detention is passed should be included or not.
It is submitted on behalf of the petitioner that the day on which the order of detention was passed should be included and the order approving the detention having been passed on January 31, 1989, that is, on the thirteenth day after the expiry of twelve days, it had ceased to be in force.
On the other hand, it is contended on behalf of the respondents that the day on which the detention order was passed should be excluded and, accordingly, the detention of the petitioner having been approved on January 31, 1989, it was quite within the period of twelve days.
Further, it is the case of the respondents that the order of detention was, as a matter of fact, approved on January 26, 1989 and by the order dated January 31, 1989, the order of approval was communicated to the authorities concerned.
346 We may first consider the contention of the respondents that the order of detention was duly approved on January 26, 1989.
A statement in that regard has been made in the coun ter affidavit of the respondents.
We are, however, unable to accept the same.
We have already extracted above paragraph 3 of the order of detention dated January 31, 1989 in which it has been categorically stated "the Administrator hereby approves the order of the Police Commissioner dated 19.1.1989 detaining Sh.
Jitender Tyagi.
" After the said categorical statement in paragraph 3, it is difficult to accept the contention of the respondents that the said order dated January 31, 1989 was made for the purpose of communi cating the approval of the order of detention.
In our view, there can be no doubt, whatsoever, that the order of deten tion was approved by the said order dated January 31, 1989.
Now, we may consider the question as to the computation of twelve days as referred to in sub section (4) of section 3.
Sub section (4), inter alia, provides that when an order is made by an officer mentioned in sub section (3), he shall forthwith report the facts to the State Government.
It is contended on behalf of the petitioner that under sub section (4), the officer has to act forthwith after the making of the order in reporting the fact to the State Government and this is sufficient indication that the day on which the order of detention is made should be included in computing the period of twelve days.
In our opinion, sub section (4) has given a clear indi cation as to the computation of twelve days.
The period of twelve days has to be calculated 'after ' the making of the order of detention.
Thus, it is apparent that the period of twelve days comes after the making of the order of deten tion.
It is true that in sub section (4), the officer making the order of detention shall forthwith report the fact to the State Government, but the word 'forthwith ' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is a clear indica tion that the said period shall be computed after the order is made.
In other words, sub section (4) itself excludes the day on which the order is made.
Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub section (4) itself, that the said period of twelve days will commence after the making of the detention order.
It is, however, submitted that when two interpretations are possible, that which enures to the benefit of the detenu should be accepted.
In our opinion, sub section (4) admits of only one interpretation regarding the computation of twelve days and, accord 347 ingly, the question as to the adoption of the interpretation which enures to the benefit of the detenu does not arise.
The view which we take, is in accordance with the well established canons of interpretations.
It has been stated in Stroud 's Judicial Dictionary, Third Edition, Volume I, page 86, as follows: "Where an act has to be done within so many days "after" a given event, the day of such event is not to be reckoned In Smt.
Manjuli vs Civil Judge, AIR 1970 Bom.
1, the provision of section 15(1) of the Village Panchayats Act, 1958 came up for interpretation before the Nagput Bench of the Bombay High Court.
Section 15(1), inter alia, provides that any person who is qualified to vote is entitled to challenge the validity of the election "within 15 days after the date of the declaration of the result of the election".
The High Court in interpreting the provision rightly laid stress on the word "after" and held that the day of which the result was declared must be excluded.
This Court had also occasion to construe rule 119 of the Election Rules framed under the Representation of the People Act in T.C. Basappa vs T. Nagappa, ; Rule 119 provides, inter alia, that an election petition against a returned candidate is to be presented at any time after the publica tion of the name of such candidate under section 67 of the Act, but not later than 14 days from the date of publication of the notice in the official gazette under rule 113.
Mukh erjea, J. (as he than was) speaking for the Bench observed as follows: The High court seems to think that in comput ing period of 14 days the date of publication is to be included.
This seems to us to be an unwarranted view to take which is opposed to the ordinary canons of construction.
Dr. Tek Chand appearing for the respondent No. 1, plainly confessed his inability to support this view and we must hold therefore that there is no question of the Tribunal 's enter taining election petition after the prescribed period in the present case.
" In re: V.S. Mehta, AIR 1970 A.P. 234 which is a decision of the Andhra Pradesh High Court, relating to the computa tion of the period of three months in section 106 of the Factories Act Section 106 provides that no court shall take cognizance of any offence punishable 348 under the Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector.
The question before the High Court was whether in computing the said period of three months, the day on which the offence was alleged to be committed should be excluded or not.
The Andhra Pradesh High Court has taken the view that the term "within three months of the date" in section 106 of the Factories Act means 'within three calendar months after the commission of the offence came to the knowledge of an In spector ' and, consequently, the date of the knowledge, that is, the date of inspection should be excluded in computing the period of three months.
That interpretation resulting in the exclusion of the date of knowledge should be made as the High Court considered the expression "within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector" as "within three months after the date on which etc . . ".
Thus, what is significant to be noticed is the word "after" which the High Court has substituted for the word 'of ' in the expression "of the date" in section 106.
In Haru Das Gupta vs State of West Bengal, ; , the question was whether under section 12 of the West Bengal (Prevention of Violent Activities) Act, 1970, the order or decision of the State Government confirming the detention order was made within three months from the date of detention.
In holding that in computing the said period of three months, the date of detention shall be excluded, this Court has laid down that the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day.
This Court has agreed to the view expressed by Wills, J. in Ratcliff vs Bartholomew, that a complaint under the Prevention of Cruelty to Animals Act filed on June 30 in respect of an act alleged to have been committed on May 30 was "within one calendar month after the cause of such complaint shall arise".
The principle on the basis of which that view was expressed by Wills, J. is that the day on which the cause for the complaint arose had to be excluded while computing the period within which under the Act, the complaint had to be filed.
Thus, it is apparent from the above decision that the day on which the cause of action arises has to be excluded in computing a particular period of time and, in the instant case, such an exclusion has to be made in view of the word "after" in sub section (4) of section 3 of the Act.
349 The petitioner has, however, placed reliance on a few decisions which will be stated presently.
In Prabhu Narain Singh vs Superintendent, Central Jail, Varanasi, ILR (1961) 1 All.
427 the Allahabad High Court has, on an interpreta tion of sub section (3) of section 3 of the , which is verbatim the same as subsec tion (4) of section 3 of the Act, with which we are con cerned, held that in computing the period of twelve days, the day on which the order of detention is passed should be included.
One of the reasons for the view expressed by the Allahabad High Court, which is strongly relied on by the learned Counsel for the detenu, is that if the day on which the order is passed is to be excluded .
from twelve days prescribed for the approval of the said order, then the consequence of the acceptance of this interpretation would be that it would not be possible for the State Government to approve of the order until after the day on which it was passed had expired.
It has been observed that such an unrea sonable consequence was not contemplated by the legislature.
When the language of a statute is plain and simple, the question of ascertaining the intention of the legislature does not arise.
In our opinion, the word 'after ' in sub section (4) of section 3 of the Act is very significant and clearly excludes any contention that in computing the period of twelve days the day on which the order of detention is passed should be included.
The Allahabad High Court has omitted to consider the word "after" in the section.
We are unable to subscribe to the view of the High Court that if the day on which the order of detention was made is excluded from the calculation of the period of twelve days, in that case, the position would be that it would not be possible for the State Government to approve of the order of deten tion until after the day on which it was passed had expired.
The expression "in the meantime" in sub section (4) of section 3 of the Act clearly indicates that the State Gov ernment can approve of the order of detention even on the day it is passed.
The language of sub section (4) of section 3 is plain and simple and the question whether the order of detention can be approved on the day it is passed or not does not at all arise.
In our opinion, Prabhu Narain Singh 's case (supra) has not correctly interpreted the provision of section 3(3) of the in regard to the computation of the period of twelve days.
The learned Counsel for the detenu has placed reliance upon two other decisions, namely, Nillapareddi Chandrasekhra Reddy vs The Government of Andhra Pradesh and Another, and C. Krishna Reddy and Another vs Commissioner of Police, Hyderabad 350 and Others, , both are of the Andhra Pradesh High Court.
These two decisions relate to the commu nication to the detenu of the grounds of detention not later than five days from the date of detention as provided in section 8(1) of the Maintenance of Internal Security Act, 1951.
We do not think that we should be justified in ex pressing any opinion as to the correctness or otherwise of the computation of the said period of five days as made in these two decisions, for the language that is used in sub section (4) of section 3 of the Act, with which we are concerned, is different from that used in section 8(1) of the Maintenance of Internal Security Act, 1951.
Similarly, the decision of the Patna High Court in Gulam Sarwar vs State of Bihar and Others, relied on by the respondents also related to the computation of the period of five days, as contained in section 8(1) of the Maintenance of Internal Security Act, 1951.
In this case, a contrary view has been expressed.
In our view all these decisions are of no help to us having regard to the differ ence in language of the provision with which we are con cerned.
Be that as it may, we have no hesitation in holding that in computing the period of twelve days referred to in sub section (4) of section 3 of the Act, the day on which the order of detention was passed should be excluded and, upon such computation, it must be held that the approval of the order of detention was made within twelve days after the making of the order of detention.
The next point that has been urged on behalf of the detenu is that the order dated January 11, 1989 of the Administrator of the Union Territory of Delhi, directing that during the period from 19.1.1989 to 18.4.
1989 the Commissioner of Police, Delhi, may also exercise the powers of detaining authority under sub section (2) of section 3 of the Act, is ultra vires section 3(3) of the Act.
Section3(3) provides that if, having regard to the circumstances pre vailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that during such period, as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in subsection (2), exer cise the powers conferred by the said sub section.
It is contended that as no circumstances, as mentioned in section 3(3) in respect of which satisfaction has to be made by the Administrator of Delhi, have been stated in the order, nor in the grounds of detention, the said order dated January 11, 1989 is illegal and invalid.
This point has not been taken in the writ petition and, accordingly, the Delhi Administration did not get an opportunity to controvert the allega 351 tions made for the first time in the argument.
The point is not one involving only a question of law, but it also in volves question of fact.
In the circumstances, we do not think we shall be justified in allowing the petitioner to take the point for the first time in the argument.
The next point that has been urged by the learned Coun sel for the petitioner is that the detaining authority, that is, the Commissioner of Police, Delhi, not having supplied to the detenu a copy of the said order dated January 11, 1989 of the Administrator of Delhi directing him to exercise the powers of the detaining authority under subsection (2) of section 3 of the Act, a serious prejudice has been caused to the detenu in that, if the copy of the said order had been supplied, the detenu might have contended that no such circumstances, as contemplated by sub section (3) of section 3 of the Act, were prevailing and that the delegation of the powers on the Commissioner of Police of Delhi was illegal and invalid and, consequently, the order of detention was inoperative and void.
The Act does not provide for supplying a copy of an order under section 3(3) of the Act.
The said order has not been relied upon by the Commissioner of Police in passing the impugned order of detention.
It may be that by virtue of the said order dated January 11, 1989 passed under section 3(3) of the Act, the Commissioner of Police could exercise the powers of the detaining authority under section 3(2) of the Act.
But, that has nothing to do as to the subjective satisfaction of the Commissioner of Police in making the impugned order of detention.
We do not think there is any substance in the contention made on behalf of the detenu and it is, accordingly, rejected.
In the grounds of detention it is, inter alia, stated as follows: "Though Sh.
Jitender Tyagi is in judicial custody, it is reported that applica tion for his bail has been filed in the court in case FIR No. 6 dated 7.1.89 u/s 25/54/59 Arms Act, P.S. Yamuna Vihar, Delhi.
It is likely that he may be released in these cases on bail and again indulge in nefarious activi ties of extortion and intimidation.
Keeping in view his activities, I have issued order for his detention under section 3(2) of the Na tional Security Act, 1980, so that his crimi nal activities which are prejudicial to the maintenance of public order, could be stopped.
" It is urged on behalf of the detenu that only in one case the detenu has made an application for bail, but in the said statement of 352 the Commissioner of Police in the grounds of detention, he was proceeding on the assumption that in all the cases the detenu had made applications for bail.
Accordingly, it is submitted that this shows complete non application of mind by the detaining authority.
We are unable to accept the contention.
Mr. Mahajan, learned Counsel for the respond ents, has produced before us the records of the detaining authority from which it appears that a copy of the applica tion for bail was with the detaining authority before he made the order of detention.
So, the contention that the detaining authority proceeded on the basis that the detenu had made applications for bail in all the cases pending against him is not correct.
There is, therefore, no sub stance in this contention.
Equally non meritorious is the contention that a copy of the application for bail has not been supplied to the de taining authority for his consideration.
It is submitted that if such a copy had been supplied to the detaining authority, he would have considered the statement of the detenu that he was falsely implicated in these cases.
The contention is based on erroneous assumption that a copy of the bail application was not supplied to the detaining authority.
Indeed, as noticed already, a copy of the bail 'application was with the detaining authority before he had passed the order of detention.
This contention is also rejected.
No other point has been urged in this writ petition.
For the reasons aforesaid, the writ petition is dismissed.
T.N.A. Petition dismissed.
| IN-Abs | Sub section (4) of section 3 of the provides that no order passed by an officer men tioned in sub section (3) shah remain in force for more than twelve days after the making thereof unless, in the mean time, it has been approved by the State Government.
The Commissioner of Police, Delhi, in exercise of the powers conferred by sub section (2) of section 3 of the Act, as delegated to him by the Delhi Administration, passed an order on 19.1.1989 detaining the petitioner The order of detention was approved by the Administrator on 31.1.1989.
The petitioner filed a writ petition in this Court challenging the validity of the detention order contending that (i) the day on which the order of detention was passed should he included in the period of computation of twelve days and since the order of detention was approved on 31.1.1989, that is, on the thirteenth day after the expiry of twelve days, it had ceased to be in force; (ii) the non supply of the copy of order delegating the power of deten tion on the Commissioner of Police has seriously prejudiced the detenu; and (iii) there was serious non application of mind by the detaining authority.
342 Dismissing the petition, this Court, HELD: 1.
In computing the period of twelve days referred to in sub section (4) of section 3 of the Act, the day on which the order of detention was passed should be excluded.
Therefore the approval of the order of detention was made within twelve days after the making of the order of deten tion.
[350D] 1.1 Sub section (4) of section 3 has given a clear indication as to the computation of twelve days.
It excludes the day on which the order is made.
The word 'after ' in sub section (4) of section 3 of the Act is very significant and clearly excludes any contention that in computing the period of twelve days the day on which the order of deten tion is passed should be included.
The period of twelve days has to be calculated 'after ' the making of the order of detention, i.e. the day on which the cause of action arises has to be excluded in computing the period of time.
[346E F; 349D; 348H] 1.2 It is true that in sub section (4) the officer making the order of detention shall forthwith report the fact to the State Government, but the word 'forthwith ' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is clear indica tion that the said period shah be computed after the order is made.
Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub section (4) itself, that the said period of twelve days will commence after the making of the detention order.
[346F G] 2.
When the language of a statute is plain and simple, the question of ascertaining the intention of the legisla ture does not arise.
[349D] 2.1 Sub section (4) of section 3 admits of only one interpretation regarding the computation of twelve days and, accordingly, the question as to the adoption of the inter pretation which ensures to the benefit of the detenu does not arise.
[346H; 347A] T.C. Basappa vs T. Nagappa, ; ; Haru Das Gupta vs State of West Bengal, ; and Ratcliff vs Bartholomew, , followed.
Nillapareddi Chandrasekhara Reddy vs The Government of Andhra Pradesh and Anr., ; C. Krishna Reddy and Anr.
vs Commissioner of Police Hyderabad & Ors., 343 and Gulam Sarwar vs State of Bihar & Ors.
, , distinguished.
Manjuli vs Civil Judge, AIR 1970 Bom.
1 and In re: V.S. Mehta, AIR 1970 AP 234, approved.
The expression "in the meantime" in sub section (4) of section 3 of the Act clearly indicates that the State Government can approve of the order of detention even on the day it is passed.
The language of sub section (4) of section 3 is plain and simple and the question whether the order of detention can be approved on the day it is passed or not does not at all arise.
[349F] Prabhu Narain Singh vs Superintendent, Central Jail, Varanasi, ILR 1961 1 All. 427, disapproved.
The Act does not provide for supplying a copy of an order under Section 3(3) of the Act.
In the instant case, the said order has not been relied upon by the Commissioner of Police in passing the impugned order of detention.
It may be that by virtue of the said order under section 3(3) of the Act, the Commissioner of Police could exercise the powers of the detaining authority under section 3(2) of the Act.
But, that has nothing to do as to the subjective satis faction of the Commissioner of Police in making the impugned order of detention.
[351D E] 5.
In the instant case, a copy of the application for bail was with the detaining authority before he made the order of detention.
So, it is not correct to say that the detaining authority proceeded on the basis that the detenu had made applications for bail in all the cases pending against him.
Accordingly there was no non application of mind by the detaining authority.
[352A B & C]
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