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Special Leave Petition (Civil) No. 7914 of 1989.
From the Judgment and Order dated 26.5.1989 of Delhi High Court in S.A.O. No. 296 of 1984.
V.M. Tarkunde and S.K. Gupta for the petitioner.
Dr. Y.S. Chitale, Ramji Srinivasan, P.K. Jain and Ra vinder Nath for the respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Tenant inducted in 1979, for three years, 2by the landlord under a written agreement, in C 4/33, Saf darjang Development Area, New Delhi, with permission of Controller under Section 21 of Delhi Rent Control Act (for brevity the 'Act ') seeks leave of this Court on limited question of law if proceedings for recovery of possession under Section 21 of the Act could be initiated and continued by legal representatives of the landlord who had obtained permission but who died before expiry of period of tenancy.
Answer of it shall depend, primarily, on construction of word 'landlord ' used in Section 21, a provision held to be self contained code in Shiv Chand Kapoor vs Amar Bose, ; and also the purpose and objective of its enactment as provision of short duration tenancy or periodi cal tenancy in Rent Control Act of Delhi right from 1952, is unique amongst such legislations and is probably non exist ent in any other State.
It reads as under: 28 21.
"Recovery of possession in case of tenancies for limited period: (1) Where a landlord does not require the whole or any part of any premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed manner, lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does not, on the expiry of the said period, vacate such premises, then, notwithstanding anything contained in Section 14 or in any other law, the Controller may, or an application made to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premises or part thereof by evict ing the tenant and every other person who may be in occupa tion of such premises.
(2) while making an order under sub section (1), the Con troller may award to the landlord such damages for the use or occupation of the premises at such rates as he considers proper in the circumstances of the case for the period from the date of such order till the date of actual vacation by the tenant.
" What it, undoubtedly, projects is the legislative aware ness of acute crisis of houses in the State.
To resolve the paucity of accommodation, on one hand, due to enormous influx of office personnel and business class as a result of rapid growth of social, economic and political activity and apprehension of house owners, on other, bulk of whom hail from middle class or service class, of loosing their houses if not for good then for substantial period due to develop ment of strange phenomenon in big cities that allotted or rented houses are more economical than, even, own the legis lature which is the best judge of need of its people carved out an exception to usual rent control provisions of pro tecting tenants from eviction What was unique of it was not short duration tenancy but a fresh look on eviction.
Vacant possession was ensured, statutorily, without any notice, or termination of tenancy or the hazard of establishing bona fide need and comparative hardship etc.
Since sec.
21 is an exception to Section 14 and it mandates restoration of possession, "notwithstanding any other law" it has to be construed strictly and against any attempt to frustrate it.
Intensity of it can be appreciated better if its language, is compared 29 with other provisions of recovery of possession even though those provisions, namely, secs.
14A, 14B, 14C and 14D, were introduced later.
They also provide speedy remedy to recover possession.
But the landlord cannot succeed unless he is able to prove circumstances mentioned in it.
More than this the tenant has been given right to contest under Section 25B. Import of Section 21 on the other hand is altogether different.
It enjoins Controller to place landlord in vacant possession after expiry of time without any right to tenant to contest it except to the limited extent that permission was vitiated by fraud as held in S.B. Noronah vs Prem Kumari Khanna, ; or misuse of the provision by land lord taking advantage of helpless situation of the tenant as held in V.S. Rahe vs Smt.
Rem Chambeh, ; or the permission really did not create genuine tenancy as held in Shiv Chand Kapoor vs Amar Bose, supra.
Recovery of pos session under Section 21 is not hedged, by any inquiry or opportunity, if permission is not challenged on any of those exceptions which have been carved out by courts, obviously, to uphold fairness and honesty the core of our jurispru dence.
Right to get vacant possession is, thus absolute.
Purpose and objective of the Section having been ascer tained, it may now be examined if the word "landlord" used in the second part of the Section which empowers landlord to make an application for recovery of possession is to be understood as the same landlord who made the application or his legal representatives as well.
In other words, is there any justification for construing the word "landlord" in a narrow sense so as to restrict it, only, to the person who made the application and obtained permission.
"Landlord" has been defined in Section 2(e) as under: "2(e). 'landlord ' means a person who, for the time being is receiving, or is entitled to receive, the rent of any prem ises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant.
" Expression, "for the time being" makes it clear, that land lord has to be understood in praesentii.
That is anyone entitled to receive rent is the landlord.
It does not visua lise, past or future landlord.
Therefore, the word "land lord".
on plain reading of Section 21 does not warrant construction of the word in any other manner.
Basis for submission, however, that landlord in second part of Section 21 entitling him to 30 claim vacant possession should be confined to the person who obtained permission was rounded on use of expression, "who does not require the whole or any part of the premises for a particular period.
" Attempt was made to personalise eviction proceedings by linking it with the person, due to whose non requirement the permission was granted resulting in automatic exclusion of legal representatives.
To put it interpretationally the word "landlord", in second part was urged to be understood in a manner different than it is defined in Section 2(e).
Can it be said that context or setting of Section 21 is such that the word "landlord" in second part of it should be understood in a different sense than that in definition clause? Not on prima facie reading of it which has already been adverted to.
Neither on close analysis.
What is visualised is occasion for short duration tenancy due to non requirement of whole or part of premises by landlord for time being; method of its creation by writ ten agreement entered with tenant, statutory status to it by permission obtained from Controller and execution by resto ration of vacant possession if the tenant does not vacate after expiry of period.
All condensed in one.
Construction ally it is in two parts one creation of short term tenancy and other its execution after expiry of time.
Both stand on their own and operate independently.
Non requirement of premises for time being furnishes basis for entering into agreement for periodical tenancy.
Truth of it on its genu ineness are relevant considerations for granting permission.
But it exhausts thereafter except to the limited extent pointed out in decisions referred earlier.
And the permis sion granted continues unabated, unaffected irrespective of variation in requirement.
Necessity of landlord, again, does not entitle him to seek its revocation.
Even his death cannot shorten the period.
Similarly once period expires the agreement, the permission all cease to operate by operation of law.
Nothing further is required.
Vacation is not linked with landlord but with time.
Expiry of it obliges tenant to vacate.
If he does not then the landlord may approach Con troller for putting him in vacant possession.
Which land lord? Obviously whosoever is the landlord at the time of afflux of tenancy.
Death of landlord does not either shorten or enlarge period nor the consequences envisaged are altered or affected.
Use of expression notwithstanding any other law render it obligatory on tenant to vacate without questioning au thority of landlord.
Any other construction, may, as rightly observed by the High Court lead to disastrous consequences.
Even on principles of civil law the provision for recovery of possession being in nature of execution it could not be successfully resisted on the death of landlord due to whose non requirement the permission was granted.
Such narrow and 31 unreaIistic construction of the word 'landlord ' shall frus trate entire purpose of Section 21.
Maxim of actio personalies mortiur cum personna cannot apply, either, on principle or on facts.
In Supreme Bank vs
P.A. Tendulkar; , this Court while dis cussing applicability of the maxim held "whatever view one may take of the justice of the principle it was clear that it would not be applicable to actions based on contract or where tort feasers ' Estate had benefitted from a wrong done.
Its applicability was generally confined to actions for damages for defamation, seduction inducing a spouse to remain apart from the other and adultery." In Phool Rani vs Naubat Rai, ; a decision which was relied by petitioner in support of submission that an application filed for eviction of a tenant on bona fide need lapses on the death of landlord and it could not be continued by his legal representatives overruled in Shanti Lal Thakur Das and Ors.
vs Chaman Lal Maganlal Telwala, it was observed that doctrine of actio personalis moritur cum personna, did not apply to Rent Control Acts.
Even otherwise an action for eviction abates only if the cause of action does not survive.
What is the cause of action for an application for vacant possession in Section 21 death of landlord or expiry of time for which tenancy was created.
Obviously the latter, the failure ' of tenant to honour his commitment to vacate the premises after expiry of time for which he was inducted with permission of Control ler.
The death of the person who obtained the permission has nothing to do with it.
Permission was obtained because the landlord did not require the premises on the date when it was let out to tenant.
That does not continue on the date when the tenant does not vacate the premises.
The necessity of not requiring the premises, for some time, or for the duration the tenant was inducted was confined to the date when the permission was granted.
It could not be taken further to the time when the question of vacation arose.
The cause of action for granting permission was the non require ment by the landlord of the premises for the time mentioned in the agreement whereas cause of action for eviction is non vacation by the tenant after the expiry of period.
Therefore, it is immaterial who is the landlord at the time when the action for vacation arose.
Even on facts permission was applied for by the landlord as, premises was surplus to his need for a limited period of 3 years due to the reason that his son had gone abroad and he was expected to return 32 after three years.
Permission was granted for this reason on statement of parties.
Such necessity to let out or non requirement by the landlord could not be brought into those exceptions which invalidate permission.
Therefore death of the landlord was immaterial as even the reason for letting out did not die with death of landlord.
In the result this petition for special leave fails and is dismissed.
In the circumstances of the case the tenant is directed to suffer costs which we quantify at Rs.5,000.
R.S.S. Petition dismissed.
| IN-Abs | The petitioner tenant was let out the demised premises by the landlord for a period of three years, with permission of Controller under section 21 of the Delhi Rent Control Act, the landlord died before the expiry of period of tenan cy.
After the expiry of the period, his legal representa tives made an application for recovery of possession.
This application was resisted by the tenant on the ground that proceedings for recovery of possession under section 21 could not be initiated and continued by legal representa tives of the landlord who had obtained permission.
Having failed before the High Court, the petitioner has filed petition for special leave.
It was contended on his behalf that 'landlord ' in second part of section 21, enti tling him to claim vacant possession, should be confined to the person who had obtained permission on the premise that he "does not require the whole or any part of the premises for a particular period.
" Dismissing the special leave petition, this Court, HELD: (1) Section 21 is a self contained code.
The purpose and objective of its enactment as provision of short duration tenancy or periodical tenancy in Rent Control Act of Delhi is unique amongst such legislations.
What was unique of it was not short duration tenancy but a fresh look on eviction.
[27G; 28G] Shiv Chand Kapoor vs Amar Bose, ; , referred to.
(2) Since section 21 is an exception to section 14 and it mandates restoration of possession, "notwithstanding any other law" it has to be construed strictly and against any attempt to frustrate it.
[28G] 26 (3) Recovery of possession under section 21 is not hedged, by any inquiry or opportunity, if permission is not challenged on any of the exceptions which have been carved out by courts, obviously to uphold fairness and honesty the core of our jurisprudence.
Right to get vacant possession is thus absolute.
[29D] S.B. Noronah vs Prem Kumari Khanna, ; ; V.S. Rahe vs Smt.
Rem Chamben, ; Shiv Chand Kapoor vs Amar Bose, ; , referred to.
(4) The expression "for the time being" in section 2(e) makes it clear that landlord has to be understood in presen ti.
That is anyone entitled to receive rent is the landlord.
It does not visualise, past or future landlord.
Therefore, the word "landlord" on plain reading of Section 21 does not warrant construction of the word in any other manner.
[29G] (5) Constructionally, Section 21 is in two parts: one creation of short term tenancy and other its execution after expiry of time.
Both stand on their own and operate inde pendently.
Non requirement of premises for time being fur nishes basis for entering into agreement for periodical tenancy.
Truth of it or its genuineness are relevant consid erations for granting permission.
And the permission granted continues unabated, unaffected irrespective of variation in requirement.
[30D E] (6) Vacation is not linked with landlord but with time.
Expiry of it obliges tenant to vacate.
If he does not then whosoever is the landlord at the time of afflux of tenancy may approach Controller for putting him in vacant posses sion.
Death of landlord does not either shorten or enlarge period nor the consequences envisaged are altered or affect ed.
[30F] (7) The doctrine of actio personalies moritur cum per sonna does not apply to Rent Control Acts.
Its applicability was generally confined to actions for damages for defama tion, seduction, inducing a spouse to remain apart from the other and adultery.
[31D C] Supreme Bank vs
P.A. Tindulcar; , ; Shanti Lal Thakur Das & Ors.
vs Chaman Lal Magan Lal Lala, Phool Rani vs Naubat Rai, , referred to.
(8) An action for eviction abates only if the cause of action does 27 not survive.
The cause of action for granting permission was the nonrequirement by the landlord of the premises for the time mentioned in the agreement whereas cause of action for eviction is non vacation by the tenant after the expiry of period.
Therefore, it is immaterial who is the landlord at the time when the action for vacation arose.
[31F G] (9) Permission in the instant case was granted on state ment of parties in regard to their necessity or non require ment of the premises.
Such necessity to let out or non requirement by the landlord could not be brought into those exceptions which invalidated permission.
Therefore, death of the landlord was immaterial as even the reason for letting out did not die with death of landlord.
[32A B]
|
N: Civil Appeal No. 748 of 1975.
From the Judgment and Order dated 3.12.1971 of the Allahabad High Court in Special Appeal No. 289 of 1963.
R.K. Maheshwari for the Appellant.
Rachna Gupta, (NP) and Mrs. Rani Chhabra for the Re spondent.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal by special leave is from the Judgment and order dated 3.12.1971 of the Allahabad High Court in Special Appeal No. 289 of 1963 dismissing the appeal and consequently the writ petition.
The appellant is a (Pacca Arahatiya) commission agent engaged in the sale and purchase of grains, rice, oil seeds and jaggery in the town of Chirgaon, District Jhansi.
On March 4, 1933, the Government of U.P. published a Notification purported to have been issued under section 38(1) of the United Provinces Town Areas Act 1914 (Act II of 1914), hereinafter referred to as 'the Town Areas Act ', which read as under: "No. 090/XI 158 T.
It is hereby notified that the Governor acting with his Ministers, in exercise of the powers con ferred by section 38(1) of the United Provinces Town Areas Act 1914 (II of 1914) is pleased to extend the provisions of section 298(2)(F)(d) of the United Provinces Municipalities Act 19 16 to the Town Area of Chirgaon in the Jhansi District in the modified form set forth below: Modified section of the United Provinces Munici palities Act, 1916 (II of 1916) section 298(2)(F)(d) "The Pan chayat may make bye laws for the establishment, regulation and inspection of market and for the proper and cleanly Conduct of business therein.
" Later by section 4 of the United Provinces Town Area (Amendment) Act, 1934 (U.P. Act II of 1934) the word 'Pan chayat ' wherever 16 it occurred in the Principal Act was substituted by the word 'Committee '.
It may be noted that the Town Area Panchayat was super seded for a period of one year with effect from 20.10.1933 to 19.10.1934 and was revived thereafter.
The District Magistrate, Jhansi promulgated a set of bye laws dated 18.11.1934 for the establishment, regulation and inspection of the market in the Town Area of Chirgaon and for the proper and cleanly conduct of business therein.
Under Bye law (1), sellers and purchasers of the commodities mentioned thereunder were required to pay weighing dues.
It said: "1(a) Weighing dues shall be charged at the rate of 1/4/6 per cent (eight /8/ annas per cent from the sellers and twelve and a half annas per cent from the purchaser) on the following articles which comes to the Town Area for sale: Grains, oil seeds, oil cakes, cotton, vegetables for whole sale, Dhania for wholesale and gur etc.
(b) Weighing dues on Ghi shall be charged at the rate of /2/6/two and half annas per maund half from the seller and half from the purchaser.
In recovery of weighing dues fraction of a pie shall be omitted and more the figure adjusted to the nearest price.
(c) The purchaser shall be responsible for the full amount of weighing dues.
He shall deduct the seller 's share from the price.
(d) No weighing dues shall be charged on any article import ed by rail nor on rice, salt, gur and sugar imported from Jhansi and Moth by rail or road.
(e) On refusal to pay the weighing dues it shall be recover able as arrears of tax on circumstances and property.
" Since the appellant was a dealer in some of these commodities, was served with a notice dated 27.7.1962 de manding Rs. 1892.26 as weighing dues for the period from 1.5.1962 to 30.6.1962.
17 The appellant challenged the aforesaid notice filing a writ petition on 18.8.1962 in the Allahabad High Court being Civil Misc.
Writ Petition No. 2400 of 1962.
A learned Single Judge by his order dated 29.4.1963, dismissed the same taking the view that the demand made by the respondent was purely a measure of taxation.
The appellant filed therefrom Special Appeal No. 289 of 1963, which was dismissed by the impugned judgment and order.
Before the High Court the appellant contended, inter alia, that the Bye laws were invalid as the Town Area Com mittee, shortly 'the TAC ', did not frame them; that the TAC had no power to impose such tax; that the U.P. Town Areas (Amendment) Act 1952 did not empower the TAC to levy and collect weighing dues; that the weighing dues were discrimi natory because of the exemptions; that the weighing ' dues were not a tax but a fee which could not be charged without quid pro quo; that there was double taxation; and in the alternative, that the weighing dues amounted to neither a fee nor a tax but an illegal extraction without the authori ty of law.
All the arguments were rejected by the High Court.
Before us Mr. R.K. Maheshwari, the learned counsel for the appellant, submits, inter alia, that the Bye laws were invalid at the time when those were framed and could not have been validated by mere adoption by the TAC in 1935; that the weighing dues were merely in the nature of purchase tax and were illegal inasmuch as the TAC had no right or authority to levy the same when it had already been imposed by the State of Uttar Pradesh under section 128(1)(xiv) of the U.P. Municipalities Act; that the TAC did not render any special service to the 'Arhatias ' or farmers who came to the town to conduct their business, nor did it incur any expend iture in this regard; that the charging of weighing dues was discriminatory inasmuch as there were no weighing charges on some articles imported from Jhansi or Moth Tehsil by rail and on rice, salt, jaggery or sugar brought either by road or by rail; that goods coming from villages situate between Chirgaon and Jhansi were not required to pay weighing dues while goods from other places in the State of U.P. were being subjected to the dues; that similar tax had already been imposed by the State Legislature under the Provisions of the U.P. Sales tax Act under Entries 52 and 54 of List II and there was double taxation by the TAC; that the goods arriving by car have been subjected to the weighing dues while goods arriving by rail from Jhansi and Moth were exempted; that the levy of weighing dues by the Town Area Committee Chirgaon is arbitrary and discriminatory and is grossly violative of Article 14 of the Constitution; 18 that the levy, though called tax is actually a fee and is collected in the disguise of tax; that double taxation in the form of sales tax by the State Government and weighing dues by the TAC is unjustified and it imposes unreasonable restriction on the rights guaranteed under Article 19(1)(g) of the Constitution; and that the High Court erred in dis missing the appeal and the writ petition.
The learned counsel for the respondent refutes all the submissions of the appellant and supports the impugned judgment.
The first question that needs examination is the validi ty of the Bye laws promulgated by the District Magistrate on 18.11.1934 after the Notification published by the Govern ment of U.P. issued under section 38(1) of the Town Areas Act.
That section, as it stood at the relevant time, empow ered the Provincial Government to extend, by notification in the Gazette, to all town areas or to any town area or to any part of a town area any enactment for the time being in force in any municipality in the United Provinces subject to such restrictions and modifications, if any, as it thought fit.
By the instant Notification dated March 4, 1933 the Provincial Government extended the Provisions of section 298(2)(F)(d) of the United Provinces Municipalities Act, 1916, hereinafter referred to as the Municipalities Act, to the town area of Chirgaon in the Jhansi District in the modified form set forth in the Notification itself.
The word 'Panchayat ' was substituted by the word 'Committee ' by section 4 of the United Provinces Town Areas (Amendment) Act.
There could, therefore, be no doubt that the TAC could make the Bye laws.
The question then is the nature and extent of the empo werment under the above Notification.
The empowerment would naturally be what a Municipality could do under that provi sion, namely, section 298(2)(F)(d).
Section 298 was includes in Chapter IX of the Municipalities Act and it dealt with rules, regulations and bye laws.
There could, therefore, be no doubt that the TAC was empowered to make bye laws "for the establishment, regulation and inspection of market and for the proper and cleanly conduct of business therein.
" The Bye laws dated 18.11.1934 were promulgated by the District Magistrate.
The contention that the District Magis trate had no power to promulgate the Bye laws was rightly rejected by the learned courts below holding that the Dis trict Magistrate was at that time functioning as TAC as it then remained suspended and those were ratified on 9.1.1935 by the TAC after it was revived.
19 Section 298(2)(F)(d) as modified in the Notification did not ex facie authorise the imposition of any tax.
The Munic ipalities Act, Chapter V, (Sections 128 to 165) dealt with municipal taxation, imposition and alteration of taxes.
Chapter VII of that Act which included section 298(2)(F)(d) did not deal with taxation.
section 298(2)(F)(d) dealt with markets, slaughter houses, sale of food etc.
Clause (d) thereunder did not ex facie envisage imposition of any tax.
The Town Areas Act, Chapter III (Sections 14 to 25) dealt with taxation and town fund.
Under section 14, subject to any general rules or special orders of the Provincial Gov ernment in that behalf, the taxes which a TAC could impose had been stated.
It did not mention weighing dues as such.
The Bye laws envisaged by section 298((2)(F)(d), there fore, could not ex facie be said to have empowered the TAC to impose a tax on the subject matter of that clause.
It was contended before the High Court that the U.P. Town Areas (Amendment) Act, 1952 (U.P. Act 5 of 1953) cured the defects in the bye laws, if any, inasmuch as section 12 of that Amending Act added clause (g) to section 14(1) of the Town Areas Act in the following terms: "Any other tax being one of the taxes mentioned in subsec tion (1) of section 128 of the U.P. Municipalities Act, 19 16.
" Section 128(1) of the Municipalities Act did not mention weighing dues as such.
But Clause (xiv) of that section provided: "Any other tax which the State Legislature has power to impose in the State under the Constitution." At the relevant time, after the amendment of section 14(1)(g) of the Town Areas Act, the TAC was thus empowered to levy any other tax, being one of the taxes mentioned in sub section (1) of section 128 of the U.P. Municipalities Act, 1916.
The High Court on the basis of the above provision concluded that the TAC became empowered to levy all those taxes which the State Government could levy under sub sec tion (1) of section 128 of the Municipalities Act; and the TAC could impose any tax which the State legislature could impose under the Constitution.
Further, it was concluded that Entry 52 of list II empowered the State Government to impose tax on the entry of goods into local area for con sumption, use 20 or sale therein and Entry 54 of list II empowered the State Government to impose a tax on the sale or purchase of goods and hence the TAC could impose tax on the entry of goods as well as on the sale or purchase of goods in view of the Entries 52 and 54 of list II.
Referring to the Bye law No. 1, the High Court concluded that this imposition was upon the entry of the mentioned articles into Town area for sale and it was clearly covered by entry 52 of list II of the 7th schedule and hence it could not be said that the TAC did not possess the requisite power to levy this tax.
In other words, the weighing dues were construed as entry tax and sale or purchase of goods tax combined.
The High Court also held that the defect, if any, in this regard was cured by section 13 of the U.P. Town Areas (Amendment) Act, 1952 as section 13 of that Act provided: "Notwithstanding anything contained in the principal Act, (1) where any tax of the nature described in clause (g) of Sub section (1) of Section 14 of the Principal Act & by whatever name or description called has been imposed, levied or assessed by any Town Area Committee prior to the com mencement of this Act, the same shall be and is hereby declared to be good and valid in law as if this Act had been in force on all material dates and the tax had been imposed, levied and assessed under and in accordance with the appro priate provision in that behalf." (Emphasis supplied by us) The High Court concluded, and we think rightly, that the imposition of this tax (weighing dues) had been validated retrospectively, as if the Amending Act had been in force even in 1934, when the bye laws were framed.
The validity of the provision having not been challenged, it cannot be held that the imposition of this tax was without authority of law if it could be brought within any of the taxation entries of List II of the Seventh Schedule of the Constitution.
Howev er, if the weighing dues did not amount to a tax but a fee, then the question would be whether the TAC could levy such a fee.
In fact one of the submissions of the appellant is that it was a fee and not a tax as claimed by the respondent.
A fee is paid for performing a function.
A fee is not ordinarily considered to be a tax.
If the fee is merely to compensate an authority for services performed or as compen sation for the services rendered, it 21 can hardly be called a tax.
However, if the object of the fee is to provide general revenue of the authority rather than to compensate it, and the amount of the fee has no relation to the value of the services, the fee will amount to a tax.
In the words of Cooley, "A charge fixed by statute for the service to be performed by an officer, where the.
charge has no relation to the value of the services per formed and where the amount collected eventually finds its way into the treasury of the branch of the Government whose officer or officers collect the charge is not a fee but a tax.
" Under the Indian Constitution the State Government 's power to levy a tax is not identical with that of its power to levy a fee.
While the powers to levy taxes is conferred on the State Legislatures by the various entries in list II, in it there is Entry 66 relating to fees, empowering the State Government to levy fees "in respect of any of the matters in this List, but not including fees taken in any Court.
" The result is that each State Legislature has the power, to levy fees, which is co extensive with its powers to legislate with respect to substantive matters and it may levy a fee with reference to the services that would be rendered by the State under such law.
The State may also delegate such a power to a local authority.
When a levy or an imposition is questioned, the Court has to inquire into its real nature inasmuch as though an imposition is labelled as a fee, in reality it may not be a fee but a tax, and vice versa.
The question to be determined is whether the power to levy the tax or fee is conferred on that authority and if it falls beyond, to declare it ultra rites.
We have seen that a fee is a payment levied by an au thority in respect of services performed by it for the benefit of the payer, while a tax is payable for the common benefits conferred by the authority on all tax payers.
A fee is a payment made for some special benefit enjoyed by the payer and the payment is proportional to such benefit.
Money raised by fee is appropriated for the performance of the service and does not merge in the general revenue.
Where, however, the service is indistinguishable from the public services and forms part of the latter it is necessary to inquire what is the primary object of the levy and the essential purpose which it is intended to achieve.
While there is no quid pro quo between a tax payer and the author ity in case of a tax, there is a necessary co relation between fee collected and the service intended to be ren dered.
Of course the quid pro quo need not be understood in mathematical equivalence but only in a fair correspondence between the two.
A broad co relationship is all that is necessary.
22 Where it appears that under the guise of levying a fee the authority is attempting to impose a tax, the Court has to scrutinise the scheme to find out whether there is a real co relation between the services and the levy whether it is so co extensive as to be a pretence of a fee but in reality a tax, and whether a substantial portion of the fee collect ed is spent in rendering the service.
In the instant case replying to paragraph 9 of the writ petition in paragraph 6 to 9 of the Counter Affidavit in the High Court the TAC stated that it used to realise the amount of weighing dues as tax and not as a fee and that no ques tion of quid pro quo was involved in the matter.
Most of the carts of the cultivators who brought their produce were parked in the cart park which was on the land of the TAC 'and it maintained sanitary staff in order to keep the place clean as bullocks and carts made the place dirty.
Arrange ment for lighting the patromax lamps and for keeping the place clean was made by the TAC.
To ensure correct weighment and to prevent cheating and defrauding bakshis and peons of TAC were deputed to supervise the daily weighing of the goods and the TAC maintained standard weights and measures in case of any dispute which were to be settled.
The weights of persons were also checked and verified by the TAC and its seal was affixed to those weights in order to prevent cheat ing.
In paragraph 12 it was stated that TAC employed about 40 sweepers out of which about half were especially deputed for keeping the places where the sale transactions took place clean.
One bakshi, one jamadar and one peon were also deputed to supervise the selling in order to see that the bye laws in respect of weighment were carried out and that there was no cheating.
Thus, the TAC justified the charging of weighing dues, but conceded that the same was a tax as there was no quid pro quo.
The respondent having thus conceded that there was no quid pro quo, we have to hold, as also was rightly held by the High Court, that the weighing dues constituted a tax and not a fee.
We do not find any merit in the appellant 's submission that there was double taxation in this case.
The expression "double taxation" is often used in different senses, namely, in its strict legal sense of direct double taxation and in its popular sense of indirect double taxation.
Double taxa tion in the strict legal sense means taxing the same proper ty or subject matter twice, for the same purpose, for the same period and in the same territory.
To constitute double taxation, the two or more taxes must have been (1) levied on the same property or subject matter, (2) by the same Govern ment or authority, (3) during 23 the same taxing period, and (4) for the same purpose.
"There is no double taxation, strictly speaking" says Cooley, "where (a) the taxes are imposed by different States, (b) one of the impositions is not a tax, (c) one tax is against property and the other is not a property tax, or (d) the double taxation is indirect rather than direct.
" In the instant case there cannot be said to be double taxation as there is no such taxation imposed by the TAC for the same period on the same goods at the same time and for the same purpose.
Where more than one legislative authority, such as the State Legislature and a local or municipal body possess the power to levy a tax, there is nothing in the Constitution to prevent the same person or property being subject to both the State and municipal taxation or the same legislature exercising its power twice for different purposes.
In Avind er Singh vs State of Punjab, ; , the State of Punjab in April, 1977 required the various municipal bodies in the State to impose tax on the sale of India made foreign liquor @ Rs. 1 per bottle w.e.f. 20.5.1977.
The municipal authorities having failed to take action pursuant to the directive the State of Punjab directly issued a Notification under section 90(5) of the Punjab Municipal Corporation Act, 1976 and similar provision of the Municipal Act 1911.
The petitioner challenged the Constitutional validity of the said statutes and the levy on the, inter alia ground of double taxation.
Krishna Iyer, J. speaking for the Court held: "There is nothing in Article 265 of the Constitution from which one can spin out the Constitutional vice called double taxation.
(Bad ' economics may be good law and vice versa).
Dealing with a somewhat similar argument, the Bombay High Court gave short shrift to it in Western India Theatres (AIR 1954 Bom. 261).
Some undeserving contentions die hard, rather survive after death.
The only epitaph we may inscribe is: Rest in peace and don 't be re born.
If on the same sub ject matter the legislature chooses to levy tax twice over there is no inherent invalidity in the fiscal adventure save where other prohibitions exist.
" We do not find materials in this case to allow the contention to be re born.
The submis sion is accordingly rejected.
The contention that the tax is discriminatory in view of the exemptions granted to some of the products and to those that enter the TAC by rail or motor transport is equally untenable.
It is for the legislature or the taxing authority to determine the question of need, the policy and to select the goods or services for taxation.
The courts cannot review these decisions.
In paragraph 16 of the counter affidavit 24 the TAC tried to explain the reason of not taxing salt, sugar and rice stating that they were not local produce but were imported from distant places and that the tax was levied only on the local produce which came from the neigh bouring places.
Courts cannot review the wisdom or advisa bility or expediency of a tax as the court has no concern with the policy of legislation, so long they are not incon sistent with the provisions of the Constitution.
It is only where there is abuse of its powers and transgression of the legislative function in levying a tax, it may be corrected by the judiciary and not otherwise.
Taxes may be and often are oppressive, unjust, and even unnecessary but this can constitute no reason for judicial interference.
When taxes are levied on certain articles or services and not on others it cannot be said to be discriminatory.
Cooley observes: "Every tax must discriminate; and only the authority that imposes it can determine how and in what directions." The TAC having decided to impose weighing dues on the goods mentioned in the Bye Laws it is not for the court to ques tion it on the ground that some similar commodities or commodities arriving by rail or road were not subjected to the tax.
The tax having not been found to have been discriminato ry or otherwise illegal we do not find any force in the submission that it imposed any unreasonable restriction on the appellants ' rights guaranteed under Article 19(1)(g) of the Constitution of India.
In the result, we find no merit in this appeal and it is accordingly dismissed.
Considering the facts and circum stances of the case we, however, make no order as to costs.
Interim orders, if any, stand vacated.
Y. Lal Appeal dismissed.
| IN-Abs | The appellant is a commission agent, engaged in the business of sale and purchase of grains, rice, oil seeds etc.
in Chirgaon, District Jhansi.
By a notification issued under section 38(1) of the United Provinces Town Areas Act, 1914, the provisions of Section 298(2)(F)(d) of the U.P. Munici palities Act, 1916 were extended to the Town Area of Chirg aon, as a result of which, the Panchayat of Chirgaon was empowered to make bye laws for the establishment, regulation 'and inspection of market and 1or the proper and cleanly conduct of business therein.
Later by Section 4 of the U.P. Provinces Town Area (Amendment) Act, the word "Panchayat" wherever it occurred in the Principal ' Act was substituted by the word 'Committee '.
In pursuance of the powers con ferred on him the District Magistrate, Jhansi framed bye laws dated 18.11.1934 for the regulation of the market.in Chirgaon which inter alia provided that weighing dues shall be charged at different rates on various articles that came to the Town Area for sale at rates specified therein.
Since the appellant was a dealer in some of these commodities, he was served with a notice calling upon him to pay Rs.1892/26 as weighing dues for the period from 1.5.1962 to 30.6.1962.
The appellant challenged the notice by means of a writ petition in the Allahabad High Court.
A learned single Judge of the High Court dismissed the writ petition taking the view that the demand made by the respondent was purely a measure of taxation.
Special Appeal against the said order was also dismissed by the High Court.
Hence this appeal by special leave.
The main contentions of the appellant, as urged before the High Court, as have been repeated before this Court are; (i) that the bye laws were invalid; (ii) that the Town Area Committee had no power to impose such tax; as the Act did not empower the TAC to levy and collect weighing dues; (iii) that the weighing dues were discriminatory because of the exemptions; (iv) that the weighing dues were not a tax but a fee which could not be charged without quid pro quo and (v) that there was 14 double taxation.
It was also urged that the imposition of weighing dues is tantamount to illegal extraction without the authority of law.
The respondent, on the other hand, supported the judgment of the High Court; Dismissing the appeal, this Court, HELD: Under the Indian Constitution the State Govern ment 's power to levy a tax is not identical with that of its power to levy a fee.
While the powers to levy taxes is conferred on the State Legislatures by the various entries in List 11, in it there is Entry 66 relating to fees, empow ring the State Government to levy fees 'in respect of any of the matters in this List, but not including fees taken in any Court '.
The result is that each State Legislature has the power, to levy fees, which is co extensive with its powers to legislate with respect to substantive matters and it may levy a fee with reference to the services that would be rendered by the State under such law.
The State may also delegate such a power to local authority.
[21C D] A fee is a payment levied by an authority in respect of services performed by it for the benefit of the payer, while a tax is payable for the common benefits conferred by the authority on all tax payers.
[21F] 'While there is no quid pro quo between a tax payer and the authority in case of a tax, there is a necessary co relation between fee collected and the service intended to be rendered.
Of course the quid pro quo need not be under stood in mathematical equivalence but only in a fair corre spondence between the two, a broad co relationship is all that is necessary.
[21G] Courts cannot review the wisdom or advisability or expediency of a tax as the court has no concern with the policy of legislation, so long they are not inconsistent with the provisions of the Constitution.
It is only where there is abuse of its powers and transgression of the legis lative function in leving a tax, it may be corrected by the judiciary and not otherwise.
[24B] Taxes may be and often are oppressive, unjust and even unnecessary but this can constitute no reason for judicial interference.
When taxes are levied on certain articles or services and not on others it cannot be said to be discrimi natory.
[24C] Avinder Singh vs State of Punjab, ; , referred to.
|
tition No. 215 of 1989.
(Under Article 32 of the Constitution of India.) M.S. Gujral, Ms. Kirti Misra and B .B. Sawhney for the Petitioners.
G.B. Pari, O.C. Mathur, Ms. Meera and section Sukumaran for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This writ petition under article 32 filed on behalf of about 450 erstwhile employees of M/s. Burmah Shell retired between May 1, 1979 and December 1984, is for a mandamus or direction to the respondents to restore full pension (which had been commuted) to the petitioner Nos. 2 to 5 and others similarly situated upon the expiry of 12 1/2 years from date of retirement in case of those retired prior to April 1985 and after 11 1/3 years to those retired prior to April 1, 1985 from their respective dates of retirement.
They claim that though in their previous Writ Petition No. 590/87 disposed of by a Division Bench of this Court on May 11, 1988 of which one of us (Ranganath Misra, J.) was a member, a hike in the pension effective from May 1, 1988 was granted.
Consideration of the present relief had been left over for a later period.
Admittedly, the petitioners in Writ Petition No. 590/87 sought two reliefs, namely, (i) restora tion of the commuted portion of the pension, and (ii) en hancement of pension or par with the pensioners of the Hindustan Petroleum Corporation Limited, for short 'HPCL '.
During the course of hearing, claim for the 964 first relief was given up and submission was confined to the second relief.
This Court accepted the contentions of the petitioners and ordered a seizeable hike in the pension.
The relief in this writ petition squarely covers relief No. 1 of Writ Petition No. 590/87.
But the ground on which the peti tioners have again come before the Court within a short spell is that their hope of the respondent 's sister concern, namely, HPCL, restoring commuted portion of pension to its pensioners has been smashed as it has deferred its decision on the issue till 1992.
Their learned counsel contends that in Common Cause & Ors.
vs Union of India, ; this Court upheld the 15 years formula and directed that the commuted portion of the pension should be restored to all the civil servants as well as the armed forces personnel of the Central Government effective from April 1, 1985.
It is maintained that as principle the same would be applicable to the petitioners as well.
The respondents, it is claimed, have to bear an additional liability of only a sum of Rs.1,02,41,635 out of its huge profits without in any manner affecting its functioning.
When the employees of the Central Govt.
and other Public Sector Undertakings are receiving the same benefits, the denial thereof to the petitioners is arbitrary, unjust and unfair and offends article 14 of the Constitution.
There is no scheme in vouge in other Public Sector Undertakings like commuted pension scheme except in HPCI.
Though HPCL has postponed action in this regard till 1992, the petitioners are not precluded to approach this Court for redressal and the previous decision does not operate as res judicata.
This Court having accorded in equity benefits of pension, which is a legal right of the petitioner, the relief also may be granted to the petition ers.
Shri Pai, learned counsel for the respondents, has resisted all these contentions.
The short question is wheth er it is a fit case for interference and issue of a direc tion to the respondents to give the relief as prayed for.
Admittedly, the petitioners claimed this relief in Writ Petition No. 590/87.
This Court after appropriate considera tion held that a sizeable hike in pension would meet the ends of justice.
Admittedly, Burmah Shell has a unique scheme known as "Burmah Shell India Pension Fund" with its own rules.
This Court held that the retired personnel would be entitled to a hike in pension at par with pensioners of HPCL.
Admittedly, HPCL has not accorded to its pensioners the relief of restoration of the commuted portion of pension after the expiry of 15 years.
The order passed by this Court is as recent as May 11, 1988.
After such a short time lag and in the absence of any substantial change in the posi tion, in our considered view, it is not desirable to enter tain the claim for restoration of commuted pen 965 sion.
Admittedly, the petitioners are governed by a special scheme, which is not at par with Government employees or the other Public Sector Undertakings.
In all fairness Shri Pai also has stated that as and when HPCL revises its scheme the petitioners would be entitled to the same benefits.
Grant or ' the relief at this stage would create disparity between the personnel who receive pension from HPCL and the re spondents.
We find sufficient justification in the conten tion of Shri Pai.
So we do not feel justified that it would be appropriate to interfere and grant the relief as prayed for.
The writ petition is accordingly dismissed, but without costs.
G.N. Petition dismissed.
| IN-Abs | Some of the erstwhile employees of Burmah Shell, in an earlier writ petition, claimed restoration of the commuted portion of pension and enhancement of pension on par with the pensioners of Hindustan Petroleum Corporation Limited, (HPCL).
At the time of hearing, the claim for restoration of the commuted portion of pension was given up.
This Court accepted the claim of the petitioners as regards enhancement of pension and ordered a sizeable hike in the pension.
The present writ petition claims the same relief which was given up at the time of hearing of the earlier writ petition, viz., restoration of commuted portion of pension.
Admitted ly, HPCL had deferred its decision till 1992 in this regard.
On behalf of the petitioners it was contended that though, HPCL has deferred its decision till 1992, the peti tioners were not precluded from approaching this Court and that the earlier decision did not operate as res judicata.
On behalf of the respondents it was contended that as soon as HPCL revises its scheme the petitioners would also be entitled to the benefit thereof and that grant of the relief earlier would create disparity between the persons who receive pension from HPCL and those from the Respondent.
Dismissing the writ petition, this Court, HELD: 1.1.
It would be inappropriate to interfere and grant the relief as prayed for at this stage since that would create disparity between the personnel who receive pension from Hindustan Petroleum Corporation Ltd. and the respondent Corporation.
[965B] 963 1.2.
This Court has already held that the retired per sonnel of Burmah Shell would be entitled to a hike in pen sion at par with pensioners of HPCL.
(W.P. No. 590/87 decid ed on 11.5.
1988).
HPCL has not accorded to its pensioners the relief of restoration of the commuted portion of pension after the expiry of 15 years.
The order passed by this Court is as recent as May 11, 1988.
After such a short time lag and in the absence of any substantial change in the posi tion, it is not desirable to entertain the claim for resto ration of commuted pension.
The petitioners are governed by a special scheme, which is not at par with Government em ployees or the other Public Sector Undertakings.
[964G H; 965A] Common Cause & Ors.
vs Union of India, ; , referred to.
|
vil Appeal Nos. 4180 and 4181 of 1989.
From the Judgment and Order dated 20/21/22 7 1988 and 18/298 1988 of the Bombay High Court in Writ Petition Nos.
3313 and 3417 of 1987.
N.N. Keshwani and R.N. Keshwani for the Appellants.
383 A.B. Rohatgi, Mrs. Gool Barucha, M.J. Paul, Kailash Vasdev, R. Karanjawala, Mrs.M Karanjawala (NP) and H.S. Anand for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
Special leave granted.
These civil appeals have been preferred against a common judgment of the Bombay High Court dismissing writ petition No. 33 13/87 filed by Arjun Khiamal Makhijani who is the appellant in one of these appeals and writ petition No. 3417/87 by Prithdayal Chetandas and others who are the appellants in the other civil appeal.
Jamnadas C. Tuliani who is respondent No. 1 in both these appeals is the owner and tile landlord of the suit premises comprising two bed rooms flat together with a garage on the ground floor and a store room on Bhulabhai Desai Road in the city of Bombay.
A suit was instituted by him for ejectment from the said premises against five defendants on the ground that they were tenants of the said premises and were in arrears of rent for a period of more than six months which they had not paid in spite of a notice of demand having been served on them as contemplated by sub section (2) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Act) and were consequently liable for eviction under sub section (3)(a) of the Act as it then stood.
Two other grounds were pleaded by the re spondent No. 1 namely that the tenants had changed the user of the suit premises and that they had committed breach of terms and conditions of the tenancy.
Subsequently, Arjun Khiamal Makhijani aforesaid was impleaded as defendant No. 6 in the suit on the assertion that the tenants had illegally sublet a portion of the suit premises namely the garage to him and were consequently liable to be evicted on this ground also.
The suit was contested both by the tenants as well as by defendant No. 6.
The Trial Court recorded find ings in favour of the landlord in so far as the pleas of default in payment of rent and illegal sub tenancy are concerned.
The other two pleas namely that the tenants had changed the user of the suit premises and had also committed breach of terms and conditions of the tenancy were decided against the landlord.
On the basis of the findings on the pleas of default in payment of rent and illegal subletting, the suit was decreed.
Two appeals were preferred against the judgment of the Trial Court, one by the tenants and the other by defendant No. 6.
Both these appeals were dismissed and the tenants and defendant No. 6 aggrieved by the said decree filed two writ petitions in the High Court.
384 Against the common judgment of the High Court dismissing these writ petitions, the present civil appeals have been preferred.
Before dealing with the respective submissions made by learned counsel for the parties it may be pointed out that even though the finding that the tenants were defaulters in payment of rent has been upheld by the High Court, the other finding namely that the tenants had illegally sublet the garage of the suit premises to defendant No. 6 has been set aside and it has been held accepting the case of the tenants that the defendant No. 6 was a trespasser.
The tenants had also claimed before the High Court the benefit of sub sec tion (3) of Section 12 of the Act as substituted by Amend ment Act 18 of 1987 which came into force on 1st October 1987.
This plea too was repelled.
The defendant No. 6 before the High Court on the other hand took up the plea that in view of the finding in the suit that he was an illegal sub tenant of the garage since 1967, he was entitled to the benefit of sub section (2) of Section 15 of the Act as amended by the aforesaid Amendment Act 18 of 1987.
The High Court repelled this plea on the finding that he was not a sub tenant but a trespasser and also on the ground that he was not in possession on 1st February 1973, the relevant date mentioned in the said sub section.
The High Court also held that benefit of subsection (2) of Section 15 as amend ed, could not be given to defendant No. 6 in a writ peti tion, the same being not a proceeding contemplated by Sec tion 25 of the Amendment Act.
In order to appreciate the submissions made by learned counsel for the parties, it will be useful to extract sub section (3) as it stood at the time when the suit was instituted and sub section (3) as it stands after its amendment.
Subsection (3) as it stood when the suit was instituted reads as hereunder: "3(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court.
shall pass a decree for eviction in any such suit for recovery of possession.
(b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court max fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to 385 pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.
" After its amendment as aforesaid, it reads: "(3) No decree for eviction shall be passed by the Court in any suit for recovery of posses sion on the ground of arrears of standard rent and permitted increases if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and together with simple interest on the amount of arrears of such standard rent and permitted increases at the rate of nine per cent per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permit ted increases till the suit is finally decided and also pays costs of the suit as directed by the Court; Provided that, the relief provided under this sub section shall not be available to a tenant to whom relief against forfeiture was given in any two suits previously instituted by the landlord against such tenant." Sub section (2) of Section 15, on the other hand, after its amendment as aforesaid runs thus: "(2) The prohibition against the sub letting of the whole of any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in subsection (1), shall, subject to the provisions of this subsection, be deemed to have had to effect before the 1st day of February 1973, in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything con tained in any contract or in the judgment, decree or order of a Court, any such sublease, assignment or transfer of any such purported sublease, assignment or transfer in favour of any person who has entered into possession, despite the prohibition in subsection (1), as purported sub lessee, assignee or transferee and has continued in a possession on the date aforesaid shall be deemed to be valid and effectual for all purposes, 386 and any tenant who has sub let any premises or part thereof, assigned or transferred any interest therein, shall not be liable to eviction under clause (e) of sub section (1) of Section 13.
The provisions aforesaid of this sub section shall not affect in any manner the operation of sub section (1) after the date aforesaid." Since considerable emphasis has been placed on Section 25 of the Amendment Act 18 of 1987, the same may also be usefully quoted.
It reads: 25.
Nothing contained in the principal Act, as amended by this Act, shall be deemed to autho rise the re opening of any suit or proceeding for the eviction of any person from any prem ises to which the principal Act applies as if such proceeding had been finally disposed of before the commencement of this Act.
Explanation For the purposes of this section, suit or proceeding, as the case may be, shall not be deemed to have been finally disposed of, if in relation to that suit or proceeding, any appeal or proceeding is pending, or, if the period of limitation for preferring an appeal or proceeding, as the case may be, had not expired before the com mencement of this Act.
" It has been urged by the learned counsel for the tenants that 14th November 1967 was the first day of hearing of the suit and since in pursuance of an order passed by the Trial Court on that day, the tenants had deposited the entire arrears of rent on 9th January 1968 within the time granted by the Court and continued to deposit the monthly rent thereafter they could not be treated as defaulters in pay ment of rent even if the amendment made in sub section (3) of Section 12 by the Amendment Act 18 of 1987 was ignored.
We, however, find it difficult to agree with this submis sion.
It is not denied that the arrears of rent which were for a period of more than six months and in respect of which a notice of demand had been served on the tenants under sub section (2) of Section 12 of the Act had not been paid by the tenants to the landlord within one month of the service of the notice.
It is also not denied that during the said period of one month, no dispute regarding the amount of standard rent or permitted 387 increases was raised by the tenants.
On a plain reading of clause (a) of sub section (3) of Section 12 of the Act as it stood at the relevant time, the said clause was clearly attracted and the consequence provided therein had to follow namely a decree for eviction against the tenants had to be passed.
Clause (b) of sub section (3) on the face of it was not attracted inasmuch.
as the said clause applied only to a case not covered by clause (a).
This is amply borne out by the use of the opening words "In any other case" of clause (b).
In Harbanslal Jagmohandas and Anr.
vs Prabhudas Shiv lal, [1977] 1 S.C.C. page 576, these clauses (a) and (b) of sub section (3) of Section 12 of the Act came up for consid eration and it was held that the tenant can claim protection from the operation of the Section 12(3)(a) of the Act only if he makes an application raising a dispute as to standard rent within one month of the service of the notice terminat ing the tenancy.
In the instant case this had not admittedly been done by the tenants.
The consequence of non payment of arrears of rent claimed in the notice of demand was, there fore, inevitable.
In Jaywant section Kulkarni and Others vs Minochar Dosabhai Shroff and Others, [1988] 4 S.C.C.p.108, clauses (a) and (b) of sub section 3 of Section 12 again came up for consideration.
It was held: "Sub section (3)(a) of Section 12 categorical ly provided that where the rent was payable by the month and there was no dispute regarding the amount of standard rent or permitted increases, if such rent or increases were in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after notice referred to in subsection (2), the court shall pass a decree for evic tion in any such suit for recovery of posses sion.
In the instant case, as has been found by the court, the rent is payable month by month.
There is no dispute regarding the amount of standard rent or permitted in creases.
Such rent or increases are in arrears for a period of six months or more.
The tenant had neglected to make payment until the expi ration of the period of one month after notice referred to in subsection (2).
The Court was bound to pass a decree for eviction in any such suit for recovery of possession." Faced with this difficulty, learned counsel for the tenants urged that since the Act was a beneficial legisla tion the tenants having deposited the arrears of rent within the time granted by the Trial Court and having continued to deposit future rent thereafter the decree for 388 their eviction deserves to be reversed by this Court.
In so far as this submission is concerned, it may be pointed out that in Ganpat Ram Sharma and others vs Gayatri Devi, [1987] 3 SCC page 576, while dealing with almost a similar Rent Control Legislation it was held: "But quite apart from the suit being barred by lapse of time, this is a beneficial legisla tion, beneficial to both the landlord and the tenant.
It protects the tenant against unrea sonable eviction and exorbitant rent.
It also ensures certain limited rights to the landlord to recover possession on stated contingencies.
In Ganpat Ladha vs Sashikant Vishnu Shinde, [1978] 2 SCC page 73 while dealing with the scope of clauses (a) and (b) of sub section (3) of Section 12 of the Act, it was held: "It is clear to us that the Act interferes with the landlord 's right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlord 's power to evict them, in these days of scarcity of accommodation, by assert ing his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants.
The object was not to deprive the landlord altogether of his rights in property which have also to be respected.
Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf.
Thus Section 12(3)(a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J.) in Ratilal Balabhai Nazar vs Ranchhodbhai Shan kerbhai Patel, AIR 1968 Guj 172.
If there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlord acquires a right under Section 12(3)(a) to get a decree for eviction.
But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction.
He can comply with the conditions set out in section 12(3)(b) and defeat the landlord 's claim for eviction.
If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him.
It is difficult to 389 see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation." (Emphasis supplied).
When the Act contains provisions, some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord, the assertion that even with regard to such provisions of the Act which fall under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenants.
The argument indeed is self defeating and only justifies the cynical proverb Head I win tail you lose.
It is difficult to countenance the sentimental approach made by learned counsel for the tenants, for the simple reason that as pointed out in Latham vs
R. Johnson and Nephew Ltd., (408) sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles.
Reliance was placed by learned counsel for the tenants on Vatan Mal vs Kailash Nath, [1989] 3 SCC page 79.
In that case provisions of Amending Ordinance No. 26 of 1975 whereby Section 13(a) was inserted in the Rajasthan Premises (Con trol of Rent and Eviction) Act, 1950, came up for considera tion.
After pointing Out that the object of inserting Sec tion 13(a) was to confer benefit on all tenants against whom suits for eviction on ground of default in payment of rent were pending and to achieve that object, the said Section had been given overriding effect, it was held that the interpretation of Section 13(a) must conform to the legisla tive intent and the courts should not take narrow restricted view which will defeat the purpose of the Act.
In our opin ion, in view of the mandatory provisions contained in Sec tion 12(3)(a) of the Act, the decision in the case of Vatan Mal, (supra) is not at all attracted to the facts of the instant case.
Clauses (a) and (b) of sub section (3) of Section 12 of Act are calculated to meet entirely different situations and the object of clause (b) was not to defeat the mandatory requirement of clause (a) scope of which has already been discussed above.
For the same reason, the decision of this Court in B.P. Khemka Pvt. Ltd. vs Birendra Kumar Bhowmick & Anr., [1987] 2 SCR page 559 on which too reliance has been placed by the learned counsel for the tenants is of no assistance to them.
390 It was then urged by the learned counsel for the tenants that notwithstanding the provisions contained in Section 12(3)(a) of the Act, this Court can still grant relief to the tenants in view of the power conferred on it under Article 142 of the Constitution "for doing complete justice" in the case.
Reliance in support of this submission has been placed on Smt.
Kamala Devi Budhia and others vs Hem Prabha Ganguli and Others, [1989] 3 SCC page 145.
This submission ignores the basic concept that Article 142 does not contem plate doing justice to one party by ignoring mandatory statutory provisions and thereby doing complete injustice to the other party by depriving such party of the benefit of the mandatory statutory provision.
In the case of Smt.
Kamala Devi Budhia, (supra), the question arose as to wheth er an application under Section 12 of the Bihar Buildings (Lease, Rent and Eviction) Control Act was competent or in the circumstances of the case only a suit under Section 11 thereof could be filed.
It was pointed out that it is the same Court before which both a suit under Section 11 and an application under Section 12 are to be filed and it was in this background that it was held: "If it is assumed that an application under Section 12 of the Act is not maintainable in the facts and circumstances of the present case, in our opinion, the proceeding has to be treated as a suit and the judgment of the learned Munsif as a decree therein.
A further question may arise as to the effect of the Judicial Commissioner, Ranchi declining to pass a formal decree of eviction and directing the appellants to make an application under Section 12(3) of the Act for that purpose.
Can this Court restore the decree of the trial court in absence of an appeal by the appel lants before the High Court? We think.that we can and we should. the question does not affect the substantive right of the parties as the controversy was concluded by the first appellate court in favour of the appellants.
What was left was only procedural in nature and inconsistent with our decision to treat the proceeding as a suit.
The occasion for filing an application under Section 12(3) can arise only where the matter is covered by Section 12, and as we have made an assumption in favour of the respondents that Section 12 has no application to the present case, there is no point in asking the appellants to file such an application.
As mentioned in Article 142 of the Constitution of India, this Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, 391 and the present case is a most appropriate one for exercise of such power." (Emphasis supplied) The said decision apparently cannot be applied to the facts of the instant case.
Learned counsel for the tenants then urged, relying on Praduman Kumar vs Virendra Goyal (Dead) by L.Rs., [1969] 3 SCR page 950, that at all events the tenants were entitled to be relieved against forfeiture for non payment of rent under Section 114 of the Transfer of Property Act benefit of which could be given if deposit of rent was made at any stage of the hearing of the suit.
In our opinion, there is no substance in this submission either inasmuch as Section 114 of the Transfer of Property Act cannot be applied to a case where the suit for eviction of a tenant has been insti tuted not on the basis of forfeiture of lease under the Transfer of Property Act but on the basis of statutory provision dealing specifically with the rights and obliga tions of the landlords and tenants such as Section 12 of the Act.
In a case where a tenant renders himself liable to be evicted on the ground of being defaulter in the payment of rent as contemplated by sub sections (2) and (3)(a) of Section 12 of the Act, bar from the way of the landlord in instituting a suit for ejectment of a tenant is removed and he gets a right to have a decree for eviction.
Such removal of bar is not in any sense forfeiture of any rights under lease which the tenant held.
Section 114 of the Transfer of Property Act which provides relief against forfeiture for non payment of rent applies to a case where a lease of immovable property has determined by forfeiture for non payment of rent.
Section 111 of the Transfer of Property Act deals with various contingencies whereunder a lease of an immovable property determines.
Clause (g) contains one.of such contingencies being by forfeiture inter alia in case the lessee breaks an express condition which provides that on breach thereof the lessor may re enter.
In a case where forfeiture of lease is claimed for non payment of rent, it would, therefore, have to be established that one of the express conditions of the lease provided that on breach of that condition namely on nonpayment of rent the lessor was entitled to re enter.
It is only in those cases where such an express condition is contained in the lease and the lessee breaks the said condition and the lessor on his part gives notice in writing to the lessee of his intention to determine the lease that a lease of immovable property determines by forfeiture for non payment of rent.
In the instant case, the suit was not based on any such forfeiture of lease under the Transfer of Property Act but was filed for the 392 enforcement of the statutory right conferred on the landlord by subsections (2) and (3)(a) of Section 12 of the Act.
Lastly, it was urged by the learned counsel for the tenants that after clauses (a) and (b) of sub section (3) of Section 12 were substituted by the consolidated sub section (3) of the Amendment Act 18 of 1987, the tenants should have been given the benefit of the deposit of arrears of rent on the first day of hearing in pursuance of the order of the Trial Court dated 14th November, 1967, and of the deposits of future rent thereafter and at all events they were enti tled to make the necessary deposit after the commencement of the Amendment Act 18 of 1987.
In our opinion, the tenants are not entitled even to the benefit of the amended sub section (3) of Section 12 of the Act inasmuch as on a plain reading of the sub section it is not possible to give it a retrospective operation.
In this connection, it will be useful to notice that while amending sub section (2) of Section 15 of the Act, it was provided by the Amendment Act 18 of 1987 that the provisions which were substituted in the said sub section, shall be deemed to have been substituted on the 1st day of February 1973.
No such provision was made with regard to the substitution of sub section (3) of Sec tion 12 of the Act.
Sub section (3) uses the words "on the first day of the hearing of the suit or on or before such other day as the Court may fix".
If the deposit of arrears of rent on 9th January 1968 is pleaded as compliance of the deposit contemplated by the amended sub section (3) and even if for the sake of argument this plea is accepted, the said deposit would still not confer on the tenants the benefit of sub section (3) for the obvious reason that the said sub section contemplates not only the deposit of standard rent and permitted increases then due but also of simple interest on the amount of arrears of such rent and permitted in creases at the rate of nine per cent per annum.
Such amount of interest was admittedly not deposited by the tenants either on 9th January 1968 or on any date thereafter.
We owe turn to the submission of the learned counsel for the ten ants that the tenants were entitled to make the deposit contemplated by sub section (3) "on the first day of the hearing of the suit or on such other day as the Court may fix" after sub section (3) being substituted by the Amend ment Act 18 of 1987.
This argument ignores the difference between the terms "at the hearing of the suit" as used in Section 114 of the Transfer of Property Act and the term "on the first day of the hearing of the suit".
In the case of former, it may be possible to argue that the deposit can be made at any hearing of the suit either in the Trial Court or the Appellate Court, an appeal being a continuation of the suit but the said argument is not available in the latter case where the words used are "on the first day 393 of the hearing of the suit".
In the very nature of things it is not possible to contemplate numerous dates all of which may fulfil the requirement of being "the first day of the hearing of the suit".
In this connection, it would be useful to notice that the words "on the first day of the hearing of the suit or on or before such other day as the Court may fix" occurring in sub section (3) of Section 12 of the Act after its amendment by the Amendment Act 18 of 1987 occurred in clause (b) of the unamended sub section (3) also.
In S.D. Chagan Lal vs Dalichand Virchand Shroff and Others, [1968] 3 S.C.R. page 346 while dealing with the clauses (a) and (b) of the unamended sub section (3) of the Section 12 of the Act, it was held that the date fixed for settlement of issues was September 3, 1956 which can be taken to be the date of the first hearing of the suit for the purpose of the Act.
The same meaning obviously has to be given to the aforesaid words when they have been repeated in the amended sub section (3) of Section 12 of the Act.
The date fixed for settlement of issues in a suit cannot be equated with any other date or dates which may be fixed in the suit or the appeal.
The words "on or before such other dates as the Court may fix" occurring after the words "on the first day of the hearing of the suit" in subsection (3) of Section 12 of the Act were obviously meant to meet a situation where for some inevitable reason the necessary deposit could not be made on the day of the hearing of the suit and the Court extended the time to make such deposit.
A deposit made on or before such extended date would also meet the requirement of the subsection.
Even Section 25 of the Amendment Act 18 of 1987 would be of no assistance in so far as the interpreta tion of Section 12(3) of the Act is concerned.
The said Section provides for certain exceptions in which a suit or proceeding for the eviction of any person may be reopened.
A provision containing exceptions cannot be interpreted so as to enlarge the scope of sub section (3) of Section 12 of the Act.
The said Section 25 may be applicable to sub section (2) of Section 15 as amended by the Amendment Act 18 of 1987, the amendments whereunder were given retrospective effect as indicated earlier or also to a similar provision.
Clause (a) of the unamended sub section (3) of the Section 12 of the Act conferred a substantive right on the landlord to have a decree for eviction in his favour as held by this Court in the case of Ganpat Ladha, (supra) and such a right could be taken away only by a provision which either ex pressly took away that fight or could be interpreted to have taken away that right by necessary inendment We do not find any such indication either in the amended sub section (3) of Section 12 of the Act or even in Section 25 of the Amendment Act 18 of 1987.
By taking recourse to the process of reopen ing of proceedings one cannot put the hands of the clock back and create an artificial 394 date as the "first day of the heating of the suit".
No other point has been urged by learned counsel for the tenants and consequently we find no merit in the appeal filed on behalf of the tenants.
We now turn to the appeal filed by defendant No. 6 to whom the garage was found by the courts below to have been illegally sub let but who has been found to be a trespasser by the High Court.
As seen above, the High Court in its judgment under appeal repelled the claim of defendant No. 6 that he was entitled to the benefit of the amended sub section (2) of Section 15 of the Act on three grounds (i) that he was a trespasser and not a person to whom the garage had been illegally sub let, (ii) that he was not in posses sion on the relevant date namely 1st February, 1973 and (iii) that the said benefit could be extended only in a suit or proceeding under the Act and not in a writ petition which did not constitute a continuation of a suit or proceeding under the Act but was an independent proceeding under the Constitution.
It has been urged by learned counsel for defendant No. 6 that since the finding of the Courts below that the garage had been illegally sub let to the defendant No. 6 was in consonance with the pleading of the landlord in this behalf, the said finding could not be reversed in a. writ petition first, because it was not within the competence of the High Court to reverse that finding either under Article 227 or even under Article 226 of the Constitution and .secondly, that the landlord was bound by his admission in the plead ing.
In so far as the submission that the landlord was bound by his admission in the pleading is concerned, it is true that such an admission being a judicial admission under Section 58 of the Evidence Act stands on a higher footing than evidentiary admissions as held by this Court in Nagin das Ramdas vs Dalpatram Ichharam, [1974] 1 SCC page 242 but on the facts of the instant case to which reference shall be shortly made, it is the proviso to Section 58 which comes into play and the rights of the parties had to be determined de hors the said admission.
The said proviso contemplates that the Court may in its discretion require the facts admitted to be proved otherwise than by such admissions.
The scope of this provision did not fall for consideration in the case of Nagain Das (supra).
Reverting to the facts of the instant case it would be seen that there was a triangu lar dispute in this case.
After getting the plaint amended the landlord no doubt set up the case that the tenants had illegally sub let the garage to the defendant No. 6.
The case of the tenants, on the other hand, was that defendant No. 6 was a trespasser and they had never sub let the garage to him.
In so far as the defendant No. 6 is 395 concerned, the plea set up by him was that he came into possession of the garage in pursuance of an agreement en tered into between him and Daulat, son of one of the ten ants, for a period of six months.
As pointed out by the High Court in its judgment under appeal no positive plea of sub tenancy, whether lawful or unlawful was raised by defendant No. 6 in the Trial Court.
It is in this background that the controversy on the question as to whether the garage had been illegally sub let by the tenants to the defendant No. 6 had to be resolved.
First, since the defendant No. 6 himself had disputed the contention of the landlord that the garage had been illegally sub let to him by the tenants and had set up the agreement with Daulat who apparently had no interest whatsoever in the garage apart from being the son of one of the tenants, a finding that the garage had been sub let to the defendant No. 6 illegally could obviously not be given simply on the basis of the case set up by the landlord in this behalf.
Even if defendant No. 6 was permitted to take a somersault and set up a plea contrary to his pleadings, admitting the case of the landlord, any finding given on the basis of such admission would not be binding on the tenants who were contesting the plea of the landlord and had set up a case that defendant No. 6 was a trespasser and that the garage had never been sub let by them to him.
Such a finding as aforesaid vis a vis tenants would be a finding based on the admission of the landlord in his own favour.
To resolve the controversy as between the landlord and the tenants in this behalf, therefore, an independent finding on merits based on evidence and not on the basis of the plea raised by the landlord had to be given.
These are the peculiar facts of this case on account of which the proviso to Section 58 of the Evidence Act was clearly attracted and the parties had to be required to prove their respective cases by adduc ing evidence de hors the admission of the landlord in his plaint.
In so far as the submission made by learned counsel for defendant No. 6 that a finding of fact could not be inter fered with in a writ petition by the High Court is con cerned, by and large no exception can be taken thereto.
The rule in this behalf, however, is not inflexible but has exceptions recognised by judicial decisions which being well known are not necessary to be recapitulated.
For in stance this rule will not apply if a finding is arbitrary or based on no evidence or is such that no one properly in structed in law could have given it the same being in the teeth of some statutory provision or in ignorance of binding precedents.
In our opinion, the instant case is one which falls within the exception to the said rule.
It is true that the landlord by getting his plaint subsequently amended set up the plea that the garage had been illegally sub let by the tenants to defendant No. 6.
It is, 396 however, equally true that the said plea was categorically denied by the tenants and it was specifically asserted by them that they had never sub let the garage to defendant No. 6 and that the defendant No. 6 was a trespasser.
As regards the defendant No. 6 himself he pleaded to have come into possession of the garage for a period of six months on the basis of an agreement entered into between him and Daulat, the son of one of the tenants.
In the life time of his father Daulat could not have the status of a joint tenant and in the eye of law he had no interest in the garage, apart from using it in his capacity as the son of one of the tenants.
He was not in a position either to sub let the garage or even to grant a licence thereof.
As seen above, the High Court has emphasised in its judgment under appeal that no positive plea of sub tenancy, whether lawful or unlawful, was raised by defendant No. 6 in the Trial Court.
That apart, defendant No. 6 in unequivocal terms admitted in his deposition also before the Trial Court that he came in possession by virtue of the agreement with Daulat, the son of defendant No. 1.
He further admitted that he did not know that the defendant Nos. 1 to 5 were the tenants of the flat, store room and garage and that he did not make enquiry as to who were the tenants.
This being the situation there was no scope for even drawing an inference that taking of posses sion of the garage for six months by defendant No. 6 in pursuance of the agreement entered into between him and Daulat may have been with the tacit approval of the tenants namely defendant Nos. 1 to 5.
Nothing has been brought to our notice to indicate that the case of the landlord was that the tenants had sub let the garage to defendant No. 6 in his presence and he had personal knowledge about the transaction of sub letting.
The High Court has also pointed out in paragraph 25 of its judgment under appeal that in support of their plea that defendant No. 6 was a trespasser defendant Nos. 1 to 5 had led evidence and that the lower court had no justification to ignore that evidence.
It was apparently, therefore, a case where no one properly in structed in law could have come to the conclusion that the tenants had illegally sub let the garage to defendant No. 6.
In this state of affairs it cannot obviously be said that the High Court committed any error in holding that defendant No. 6 was a trespasser.
This being so, defendant No. 6 indisputably could not derive any benefit out of the amended subsection (2) of Section 15 of the Act.
The finding of the High Court that defendant No. 6 was not in possession on the relevant date namely 1st February, 1973 was based on the circumstance that on that date admit tedly the garage was in possession of a receiver appointed by the Court and not in possession of defendant No. 6.
It has been urged by learned counsel for defendant 397 No. 6 that possession of the receiver would enure to the benefit of defendant No. 6.
This proposition has been con tested by the learned counsel for the landlord.
We, however, do not find it necessary to go into this question in view of our conclusion that the finding of the High Court that the garage had not illegally been sub let to defendant No. 6 and that the said defendant was a trespasser is unassailable.
Even if the submission of learned counsel for defendant No. 6 in this behalf is accepted the nature of possession of defendant No. 6 on 1st February 1973 would be in no way better than of a trespasser.
For the same reason, we find it unnecessary to go into the correctness or otherwise of the view of the High Court that a writ petition being an inde pendent proceeding was not a proceeding in relation to a suit or proceeding under the Act.
It was lastly urged by learned counsel for defendant No. 6 that after the judgment had been delivered by the High Court on 22 July 1988 dismissing the two writ petitions it was not open to the High Court to reopen and hear the writ petitions on 18 August 1988 and 29 August 1988.
So far as this submission is concerned it may be pointed out that the very first sentence of the order of the High Court dated 18 August 1988 indicates that the judgment had not been deliv ered earlier but had only been dictated and the transcript was ready.
Listing the matter again for further hearing became necessary inasmuch as while dictating the judgment a factual position was noticed that defendant No. 4 had died and there was nothing to show that his heirs had been brought on record.
Learned counsel for the parties appeared on that date and an affidavit was taken on record.
They prayed for time to make submissions on the said question.
The matter was ordered to stand over till 29 August 1988 and in the meantime an affidavit in reply to the affidavit taken on record as aforesaid was permitted to be filed.
Time given to defendant No. 1 to file affidavit in support of the undertaking given by him earlier was also extended to 29 August 1988.
This submission also made by learned counsel for defendant No. 6 has, therefore, no substance.
In view of the foregoing discussion, there is no merit even in the appeal filed by defendant No.6.
In the result, both the appeals fail and are dismissed.
In the circumstances of the case, however, there shall be no order as to costs.
R.N.J. Appeals dismissed.
| IN-Abs | Jamunadas C. Tuliani is the owner and the landlord of the suit premises.
He instituted a suit for ejectment against five defendants on the ground that they were tenants of the said premises and were in arrears of rent for a period of more than six months which had not been paid inspite of notice having been served on them as required by Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates, Control Act, 1947 (hereinafter referred to as the Act) and were consequently liable for eviction under sub section 3(a) of the Act as it then stood.
Two other grounds were that the tenants had changed the user of the suit premises and they had committed breach of the terms and conditions of the tenancy.
Subsequently Arjun Khiamal Mak hijani was impleaded as defendant No. 6 in the suit on the assertion that the tenants had illegally sub let a portion of the premises namely garage to him and were thus liable to be evicted on that ground also.
The Trial Court decreed the suit in favour of the land lord on the plea of default in payment of rent and illegal sub letting.
The other two pleas that the tenants had changed the user of the suit premises and had committed breach of terms and conditions of tenancy were decided against the landlord.
Two appeals were preferred against the judgment of the Trial Court, one by the tenants and the other by the defend ant No. 6 and both these appeals were dismissed.
Aggrieved by the said decree the tenants and defendant No. 6 filed two writ petitions in the High Court.
Against the common judg ment of the High Court dismissing these writ petitions, the present civil appeals have been preferred.
381 Dismissing both the appeals, the Court, HELD: (i) On a plain reading of clause (a) of sub sec tion (3) of section 12 of the Act as it stood at the rele vant time, the said clause was clearly attracted and the consequence provided therein had to follow namely a decree for eviction against the tenants had to be passed.
Clause (b) of sub section (3) of the face of it was not attracted inasmuch as the said clause applied only to a case not covered by clause (a).
This is amply borne out by the use of the opening words "In any other case" of clause (b).
[387A B] (ii) Article 142 of the Constitution does not contem plate doing justice to one party by ignoring mandatory statutory provisions and thereby doing complete injustice to the other party by depriving such party of the benefit of the mandatory statutory provisions.
[390B] (iii) In a case where a tenant renders himself liable to be evicted on the ground of being defaulter in the payment of rent as contemplated by sub sections (2) and 3(a) of Section 12 of the Act, bar from the way of the landlord in instituting a suit for ejectment of a tenant is removed and he gets a right to have a decree for eviction.
Such removal of bar is not in any sense forfeiture of any rights under the lease which the tenant held.
In the instant case, the suit was not based on such forfeiture of lease under the Transfer of Property Act but was filed for the enforcement of the statutory right conferred on the landlord by sub sections (2) and 3(a) of Section 12 of the Act.
[391D; 391H;392A] (iv) The tenants are not entitled even to the benefit of the amended sub section (3) of Section 12 of the Act inas much as on a plain reading of the sub section it is not possible to give it a retrospective operation.
[392C ] The date fixed for settlement of issues in a suit cannot be equated with any other date or dates which may be fixed in the suit or the appeal.
[393C] The words "on or before such other date as the Court may fix" occurring after the words "on the first day of the hearing of the suit" in sub section (3) of Section 12 of the Act were obviously meant to meet a situation where for some inevitable reason the necessary deposit could not be made on the day of the hearing of the suit and the Court extended the time to make such deposit.
[393D] 382 By taking recourse to the process of reopening of pro ceedings one cannot put the hands of the clock back and create an artificial date as the "first day of the hearing of the suit." [393H; 394A] (v) Interpretation of statutes: "When the Act contains provisions, some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord, the assertion that even with regard to such provisions of the Act which fail under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenants.
The argument indeed is self defeating and only justifies the cynical proverb Head I win tail you lose.
It is difficult to countenance the sentimental approach made by learned counsel for the tenants, for the simple reason that as pointed out in Latham vs R. Johnson and Nephew Ltd., (408) sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles." [389B D] Harbanslal Jagmohandas and Anr.
vs Prabhudas Sivlal, [1977] 1 SCC page 576; Jaywant section Kulkarni & Ors.
vs Mino char Dosabhai Shroff & Ors., [1988] 4 SCC P. 108; Ganpat Ram Sharma & Ors.
vs Gayatri Devi, [1987] 3 SCC P. 576; Ganpat Ladha vs Sashikant Vishnu Shinde, [1978] 2 S.C.C.P. 573; Latham vs R. Johnson & Newhew Ltd., (408); Vatan Mal vs Kailash Nath, [1989] 3 S.C.C.P. 79; B.P. Khemda Pvt. Ltd. vs Birendra Kumar Bhowmick & Anr., [1987] 2 S.C.R.P. 559; Smt.
Kamala Devi Budhia & Ors.
vs Hem Prabha Ganguli & Ors., [1989] 3 S.C.C.P. 145; Praduman Kumar vs Virendra Goyal (Dead) by L.Rs., [1969] 3 S.C.R.P. 950; S.D. Chagan Lal vs Dalichand Virchand Shroff & Ors., [1968] 3 S.C.R.P. 346 and Nagindas Ramdas vs Dalpatram Ichharam, [1974] 1 S.C.C.P. 242, referred to.
|
Appeal No. 222 of 1956.
40 Appeal by special leave from the judgment and decree dated December 8, 1953, of the former Nagpur High Court in Misc.
Civil Case No. 55 of 1950.
C. K. Daphtary, Solicitor General of India, K. K. Rajagopala Sastri, R. H. Dhebar and D. Gupta, for the appellant.
The respondent did not appear.
October 3.
The Judgment of the Court was delivered by SARKAR J.
This is an appeal brought by special leave against the judgment of the High Court at Nagpur, delivered on a reference under section 66(1) of the Income tax Act.
The appeal is by the Commissioner of Income tax, Madhya Pradesh and Bhopal.
The respondents are the assessees Vyas & Dotiwala.
The respondents have not appeared in this appeal.
We shall presently set out the facts but before we do that, we wish to state that the assessment years concerned were 1945 46 and 1946 47.
Though there were two separate assessment orders in respect of these years, ultimately when they came up before the Appellate Tribunal they were consolidated into one appeal.
The appeal before us likewise concerns both these assessment years.
It appears that in or about July 1943 when considerable difficulty was being felt about cloth, the Deputy Commissioner, Amraoti, evolved a scheme to solve that difficulty.
Under that scheme Kisanlal Vyas and a firm called Edulji Framji Dotiwala who have in these proceedings been referred to as Dotiwala, undertook to finance the scheme without charging any interest or profit and were appointed as financiers and also distributors of a variety of cloth called standard cloth for the town and camp of Amraoti and certain areas in the interior It is not necessary to set out the various details of the scheme and it will be sufficient to state that Vyas and Dotiwala, who as an association of persons are the assessees concerned, agreed to open an account in the Imperial Bank of India to be operated by them out of which the purchases 41 of the cloth were to be financed.
The orders for the cloth were to be placed by the Government with the mills and on the arrival of a consignment of cloth, the assessees were to pay to the Deputy Commissioner, Amraoti, the value of the consignment together with 6 1/4 per cent.
of the ex mill price.
The consignment was thereupon to be opened and its contents checked by the assessees and the officials and delivered to the assessees on their granting a receipt for the same.
The Deputy Commissioner would pay 4 1/2 per cent.
of the ex mill price to the assessees out of the amount paid by the latter as aforesaid for contingent expenses of working the scheme.
The scheme provided that the contingent expenses were not to exceed 3 percent.
of the ex mill price.
The cloth coming to the hands of the assessees was to be distributed in Amraoti town and camp through a shop to be opened by the assessees and in the interiors of the area concerned through Tehsildars with Patils under them.
The substance of the arrangement of distribution appears to have been that it would be entirely under the control of the Deputy Commissioner who made himself responsible to the assessees for the sale proceeds receivable from the Tehsildars.
The Deputy Commissioner was to decide the price for which the cloth was to be sold to the consumers and also the persons entitled to buy the cloth.
Out of the sale proceeds the Deputy Commissioner was to pay to the assessees whatever they had advanced on account of the cloth.
The most important provision in this scheme is para.
14 which is set out below.
Profits resulting from the scheme shall be utilised for such charitable purposes as may be decided on by the Deputy Commissioner in consultation with the advisory committee appointed to supervise the scheme.
It appears that the books of the assessees showed Rs. 34,737/ for the assessment year 1945 46 and Rs. 17,682/ for the assessment year 1946 47 as profits earned in working the scheme.
The Income tax Officer assessed the assessees to tax on the profits so earned.
6 42 The assessment orders made by this officer would appear to show that the only point urged by the assessees before him against the assessment was that the income was exempt from taxation under section 4(3)(i a) of the Indian Income tax Act, 1922.
The officer rejected this contention.
The assessees went up in appeal to the Appellate Assistant Commissioner, before whom the same contention appears to have been repeated.
The Appellate Commissioner confirmed the order of the Income tax Officer.
The assessees then appealed to the Appellate Tribunal.
The Tribunal held that the assessees had objected to the assessment before the Income tax Officer on two grounds, namely, that the income was Dot the income of the assessees and that the income was exempt from taxation under section 4(3)(i a), as appeared from their letter dated January 22, 1947.
One of these alone had been dealt with by that officer, as appears from his order earlier referred to.
The Appellate Tribunal agreed with the conten tion of the assessees that they were not liable to be taxed on the profits because these did not form their income.
The Tribunal was of the view that the scheme was the scheme of the Deputy Commissioner and completely under his control; that the assessees were merely the financiers and also managers under the Deputy Commissioner to carry out the scheme and that the assessees only helped to work the scheme.
The Tribunal held that the profits that may have resulted from such working were not therefore theirs nor represented their income and the assessees could not be assessed to income tax thereon.
In this view of the matter the Tribunal set aside the orders of assessment.
Thereafter, on the application of the revenue authorities the Tribunal referred the following question to the High Court under section 66(1) of the Act: Whether on the facts of this case any income accrued to Messrs. Vyas and Dotiwala as the result of their associating themselves as financiers in the scheme for the distribution of standard cloth; and, if so whether such income was assessable in their hands.
43 On that reference the High Court held that under the charging section in the Indian Income tax Act, 1922, namely, section 4, it was necessary for the revenue authorities to prove that the assessees received or should be deemed to have received income or profit from the scheme during the relevant period.
It held that the asseess had not actually received any such income and further that the expression " deemed to be received " in that section only meant deemed by the provision of the Act to be received, and no such provisions of the Act had been relied upon on behalf of the revenue authorities.
In this view of the matter the High Court answered the question framed, in the negative.
The learned Solicitor General contends that the High Court failed to appreciate the real question.
He says that the question was not whether income was received or deemed to be received but whether income had accrued and the point for decision was, as appeared from the judgment of the Tribunal, whether the profits formed the income of the assesses.
We agree with this criticism of the judgment of the High Court.
On the point that arises from the question framed, we think that the Tribunal went wrong.
It is not disputed that the assessees worked the scheme and such working produced the profits as found in the assessment orders.
The Tribunal thought that since the scheme was completely under the control of the Deputy Commissioner, the assessees could not be said to have carried on business by working the scheme.
We are unable to see that the fact of the control of the Deputy Commissioner can prevent the working of the scheme by the assessees from being a business carried on by them.
In our view, it only comes to this that the assessees had agreed to do business in a certain manner.
The fact that the Deputy Commissioner guaranteed the payment by the Tehsildars of the price due from them, to the assessees would indicate that the assessees were treated as the owners of the business.
It would indicate that if there had been no such guarantee, the loss due to the failure of the Tehsildars to pay their dues would have to be borne 44 by the assessees.
Again the claim, may be in the alternative, by the assessees for exemption under section 4(3)(i a) would not arise unless the assessees were carrying on a business.
Lastly, para.
14 of the scheme which we, have earlier set out, clearly contemplates profits resulting from the scheme.
The provision that the profits would be devoted to charity to be decided by the Deputy Commissioner, would indicate that without it the profits would have been utilisable by the assessees.
The profits belonged to the assessees and hence the necessity for this agreement so that the assessees might be made to spend them on charity.
If, as the Tribunal thought, the profits were of the Government, there was no necessity for the Government providing for the profits being expended on charity, for the Government if minded to do so, could have done it without such a provision.
The fact remains that the working of the scheme produced profits and apart from para.
14 such profits undoubtedly belonged to the assessees.
If they chose to agree by para.
14 to devote the profits to charity, that was their business; the profits made by them would not change their character and cease to be the assessees ' income because they agreed to devote their income to charity.
We might also say that there is nothing in the scheme which shows that the assessees had undertaken not to make any profits on the distribution work under the scheme; they had only agreed to finance the scheme without receiving any interest or profit.
Furthermore, since the assessees actually made the profits, they are liable to pay tax thereon whether they agreed not to make any profits or not.
We wish also to point out that it is not the assessees ' case that they have been made to pay out the profits for any charity.
For these reasons we think that the profits were the profits of the assessees and they are liable to pay tax on them.
With regard to the assessees ' claim for exemption under section 4(3)(i a), they are clearly not entitled to any.
That claim of the assessees has not been accepted by any of the Courts below.
Section 4(3)(i a) applies to income derived from business carried on on behalf of a religious and charitable institution when the income 45 is applied solely to the purpose of the institution and the business is carried on in the manner provided.
It is enough to say that the scheme, considered as a business, was not carried on on behalf of any religious or charitable institution.
Once it is held that the assessees made the profit, how they use it would not matter.
In the result, we would answer both parts of the question framed, in the affirmative.
We hold that the profits were the income which accrued to the assessees and such income is assessable to income tax and is not exempt from taxation under section 4(3)(i a).
The appeal is allowed with costs here and below.
Appeal allowed.
| IN-Abs | The Deputy Commissioner of Amraoti, evolved a scheme for the distribution of standard cloth.
The assessees agreed to finance the scheme without charging any interest and were appointed financiers and distributors.
The orders for the cloth were placed by the Government with the mills and the cloth was delivered to the assessees upon their paying the value of the cloth together with 6 1/4% of the ex mill price.
The Deputy Commissioner paid 4 1/2% of the ex mill price to the asses sees for contingent expenses of working the scheme.
The assessees distributed the cloth at prices fixed by the Deputy Commissioner through the Tehsildars and the Deputy Commissioner was responsible to the assessees for the sale proceeds receivable from the Tehsildars.
Out of the sale proceeds the Deputy Commissioner paid to the assessees whatever they had advanced on the cloth.
The profits from the scheme were agreed to be utilised for such charitable purposes as might be decided by the Deputy Commissioner.
The assessees contended that the income was not their income and that it was exempt from taxation under section 4(3) (i a) of the Income tax Act.
Held, that the profits were income which accrued to the assessees.
The assessees worked the scheme and such working produced the profits.
The fact of the control of the Deputy Commissioner could not prevent the working of the scheme by the assessees from being a business carried on by them.
The provisions in the agreement that the Deputy Commissioner guaranteed the payment by the Tehsildars of the price due from them, and that the profits would be devoted to charity decided by the Deputy Commissioner and the claim for exemption under section 4(3) (i a) all indicated that the assessees were the owners of the business.
Held further, that the profits were not exempt from taxation under section 4(3) (i a), as the business was not carried on behalf of any religious or charitable institution.
|
ivil Appeal No. 1369 of 1990.
From the Judgment and Order dated 16.6.1989 of the Bombay High Court in W.P. No. 2513 of 1989.
Anil B. Diwan, Y.R. Naik, section Thananjayan and K.R. Choud hary for the Appellant.
Dr. Y.S. Chitale, Y.T. John, C.V. Francies, C.V. Rappai, 3.
Prakash and V.K. Purwani for the respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted.
Can a licensee occupying a flat in a tenant co partner ship society be evicted therefrom under Sub Section (1) of Section 91 of the Maharashtra Co operative Societies Act, 1960 (Act No. XXIV of 1961), hereinafter called 'the Socie ties Act ', notwithstanding the protection extended by Sec tion 15A of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947 ( 'Act No. LVII of 1947), hereinafter called 'the Rent Act ', as amended by Act XVII of 1973 or whether such proceedings would be governed by Section 28 of the Rent Act? That is the question which arises for our determination in he context of the fact that the appellant licensee claimed to be in actual possession of the flat on 1st February, 1973, under a subsisting licence, albeit without the express permission of the society.
The actual matrix in which this question needs to be answered may be briefly stated as under: The Vishwa Co operative Housing Society Ltd., respondent No. 1, hereinafter called 'the Society ', was registered sometime in 1948 ruder the provisions of the Bombay Co operative Societies Act, 1925 and is deemed to be registered by virtue of Section 166(2) under the present Societies Act.
On 2nd March, 1949 one Laxmi Devi Kejriwal was admitted to the membership of the society and was allotted Flat 865 No. 25 of the multi storeyed building known as 'Vishwa Mahal ' situate on "C" Road, Churchgate, Bombay 20.
The said Laxmi Devi gifted her interest as the allottee member of the society to her brother Ambica Prasad Sharma of Udaipur.
One D.P. Kejriwal who was looking after this flat inducted the appellant therein w.e.f.
1st June, 1957 under a leave and licence agreement on a licence fee of Rs.400 per month.
While the appellant was in actual occupation of the flat, the allottee member Ambica Prasad Sharma transferred his interest therein to his brother Hari Kumar Sharma, respond ent No. 2, sometime in July 1967.
The said respondent was admitted to the membership of the society on 15th July, 1967.
It appears that even after this transfer D.P. Kejriwal continued in management of the flat and collected and re ceived the licence fee from the appellant till the middle of 1979 when he received a letter from respondent No. 2 claim ing onwership of the flat.
The appellant then filed an interpleader suit in the Court of Small Causes, Bombay, seeking a direction to whom he should pay the rent for the flat occupied by him.
This interpleader suit was disposed of on 21st June, 1983.
Immediately thereafter respondent No. 2 deposited Rs.5,500 on 28th June, 1983 with respondent No. 1 society towards the society 's cost to initiate proceedings for eviction of the appellant from the flat in question under Section 91(1) of the Societies Act.
Two days later the respondent No. 2 filed a suit for the eviction of the appel lant from the flat in the Court of Small Causes, Bombay.
After respondent No. 2 deposited Rs.5,500, the society passed a resolution on 5th July, 1983 to initiate proceed ings under Section 91(1) of the Societies Act for the evic tion of the appellant from the flat in question.
Thereupon the society served the appellant with a notice to quit dated 11th July, 1983 and thereafter instituted the action under Section 91(1) of the Societies Act.
The appellant raised several defences, two of which may be noticed.
He firstly contended that the so called document of leave and licence in fact created a lease and, therefore, the proceeding under Section 91(1) of the Societies Act was not competent.
Secondly he contended that even if it is assumed that the relationship was of a licensor and a licen see under the deed, since he was in actual occupation and possession of the flat in question under a subsisting li cence right from 1957 to 1st February, 1973 he was a statu tory tenant under Section 15A of the Rent Act and was, therefore, entitled to protection from eviction till a competent court granted eviction on any of the grounds set out in Sections 12 or 13 of the Rent Act.
He, therefore, contended that the Cooperative Court had no jurisdiction under Section 91(1) of the Societies Act and the proper court to approach was 866 the one under Section 28 of the Rent Act, which the respond ent No. 2 had in fact approached.
The Cooperative Court came to the conclusion that the relationship created under the document of leave and licence was that of a licensor and a licensee.
On the question of tenancy under Section 15A the Court concluded as under: "So far as second part of the issue regarding opponent No. 2 contending to be tenant of opponent No. 1 is concerned, the opponent No. 1 in his evidence has mentioned to the effect that after his becoming a member of the society he initially accepted the opponent No. 2 as his licensee and allowed him to occupy the suit flat temporarily on his promise to vacate when required by opponent No. 1.
He has further stated that he filed the case in the Small Causes Court for ejectment of opponent No. 2 in his own right as advised by his Advocate in that case.
He has also stated that he accepted Opponent No. 2 as his tenant because after 1.2.1973 there is change in law and so he had to accept opponent No. 2 as his tenant.
In view of this evidence I have to give a finding in the affirmative in respect of part of the issue whether opponent No. 2 proves that he is a tenant of opponent No. 1".
In other words the Cooperative Court came to the conclusion that the appellant was a tenant of respondent No. 2 under Section 15A of the Rent Act since he was in occupation of the flat on 1st February, 1973.
After finding the appellant to be a tenant of respondent No. 2 under section 15A, the Cooperative Court proceeded to observe as under: "Now regarding the effect of findings on the parts of issue No. 2 as mentioned hereinabove, the position in law is quite clear that even though the non member occupant could at best be regarded as tenant of member, he cannot be deemed as tenant of the society because the society does not fall within the definition of the term landlord under the Rent Act".
The Cooperative Court, therefore, came to the conclusion that the society could maintain an action under Section 91(1) of the Societies Act notwithstanding the fact that the occupant was a tenant under Section 15A of the Rent Act qua the member allottee.
In this view, the 867 Cooperative Court passed an ejectment order against the appellant and ordered that the member shall personally occupy the flat in question within 15 days from the receipt of possession thereof.
The appellant feeling aggrieved by this order filed an appeal under Section 97 of the Societies Act to the Maha rashtra State Cooperative Appellate Court, Bombay, being Appeal No. 206 of 1988.
The said appeal was dismissed with costs on 22nd December, 1988.
The appellate court also took the view that regardless of the relations between the occu pant of the flat and the member allottee, the society was entitled to maintain an action under Section 91(1) of the Societies Act since there was not and there could not be any relationship of landlord and tenant between the society and the occupant.
It accordingly confirmed the order passed by the Cooperative Court.
Feeling aggrieved by the concurrent findings recorded by the said two courts, the appellant preferred writ petition No. 25 13 of 1989 in the High Court of Judicature at Bombay.
The said writ petition was summarily dismissed on 16th June, 1989 but by a speaking order.
The learned Singe Judge while dismissing the writ petition observed as under: "It has now been repeatedly held by the Supreme Court that the protection even though available to the occupier against member of the cooperative society, such protection cannot be claimed against a housing society.
A reference to the deci sion in O.N. Bhatnagar vs Rukibai Narsindas, reported in ; , is sufficient".
The decision of this Court in Hindustan Petroleum Corpora tion Limited vs Shyam Cooperative Housing Society, ; was distinguished as not laying down any proposition that a licensee is entitled to take advantage of Section 15A of the Rent Act even against the society.
So stating the learned Judge dismissed the writ petition.
That is how the appellant is before us by special leave.
Section 91(1) of the Societies Act insofar as relevant for our purposes reads as under: "Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitu 868 tion, . . . management or business of a Society shall be referred by any of the parties to the dispute . . to the Cooperative Court if both the parties thereto are one or other of the following: (a) a society . . (b) a member, past member or a person claiming through a member, past member or a deceased member of the society Sub section (3) reads as under: "Save as otherwise provided under sub section (2) to Section 93, no court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub section (1)" Sub section (2) of Section 93 lays down that: "Notwithstanding contained in this Act the Cooperative Court may, if it thinks fit suspend any proceedings in respect of any dispute, if the question at issue is one involving complicated questions of law and fact, until the question has been tried by a regular suit instituted by one of the parties or by the society".
Sub section (1) of Section 99 which begins with a non ob stante clause gets attracted if there arises any dispute touching the business of a society.
Such a dispute can be referred to a Cooperative Court if both parties to the dispute are one or other of those enumerated in clauses (a) to (e) thereof.
These include a society, a member or a person claiming through a member or a past member or a deceased member.
The dispute in the present case is between the society, its member and appellant, a person stated to be one claiming through the present member or the past member.
The crucial question which arises is whether the dispute or controversy between the parties can be said to be one touch ing the business of the society.
If yes, the Cooperative Court alone will have jurisdiction since the jurisdiction of every other court is ousted by virtue of Sub section (3) of Section 91 except for the limited purpose stated in sub section (2) of Section 93 of the Societies Act.
869 Under bye law No. 2 the objects of the society are inter alia to carry on trade of building, buying, selling, hiring, letting and developing land on cooperative principles.
Regulation 4 in Form A provides that no tenant member shall assign, under let, vacate or part with the possession of the tenement or any part thereof without the previous consent in writing of the society.
Bye law 7A lays down that an outsid er non member can be allowed to take advantage of the mem ber 's flat only on production of a written confirmation of the member before the society and on the society thereupon admitting such member as a 'nominal ' member of the society.
Admittedly in the present case no written permission of the society was obtained either by the member or by the appel lant before the latter was put in possession of the flat in question nor was any request made to the society to admit the appellant as a nominal member.
It was, therefore, con tended on behalf of the society that the entry of the appel lant in the flat in question was clearly in violation of Regulation 4 and bye law 7A adverted to above and, there fore, the dispute was clearly one touching the business of the society attracting Section 91(1) of the Societies Act.
The appellant 's challenge as pointed out earlier can be said to be two fold, namely, (1) the dispute between the appel lant and the society cannot be said to be in any manner related to the business of the society and (2) since the jural relationship between the member and the appellant was admittedly of landlord and tenant, the jurisdiction of the Cooperative Court under the Societies Act was clearly barred by virtue of Section 28 of the Rent Act which is a special statute dealing with landlord tenant relationship.
The Rent Act was enacted to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions and also to control the charges for licence of premises, etc.
Section 15A which was inserted by amending Act 17 of 1973 provides as under: "15A(1) Notwithstanding anything contained in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February, 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become for the purposes of this Act, the tenant of the landlord, in respect of the premises or any part thereof, in his occupation".
The expression 'licensee ' is defined in sub section (4A) of Section 5 as under: 870 '5(4A) licensee ', in respect of any premises or any part thereof.
means the person who is in occupation of the prem ises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a co operative housing society registered or deemed to be regis tered under the Maharashtra Co operative Societies Act, 1960); but does not include a paying guest, a member of a family residing together, a person in the service or employ ment of the licensor, or a person conducting a running business belonging to the licensor, for a person having any accommodation for rendering or carrying on medical or para medical services or activities in or near a nursing home, hospital or sanatorium, for a person having any accommoda tion in a hotel, lodging house, hostel, guest house, club, nursing home, hospital, sanatorium, dharmashala, home for widows, orphans or like premises, marriage or public hall or like premises, or in a place of amusement or entertainment or like institution, or in any premises belonging to or held by an employee or his spouse who on account of the exigen cies of service or provision of a residence attached to his or her post or office is temporarily not occupying the prem ises, provided that he or she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increases for such premises, and any additional sum for services supplied with such premises, or a person having accommodation in any premises or part thereof for conducting a canteen, creche, dispensary or other services as amenities by any undertaking or insti tution; and the expressions 'licence ', 'licensor ' and 'pre mises given on licence ' shall be construed accordingly".
The definition of a 'landlord ' in Section 5(3) includes in respect of a licensee deemed to be a tenant by Section 15A, the licensor who has given such licence.
Similarly the expression 'tenant ' as defined by Section 5(11) includes such licensees as are deemed to be tenants by Section 15A. Section 14(2) may also be noticed which reads as under: "Where the interest of a licensor who is a tenant of any 871 premises is determined for any reason, the licensee, who by .
Section 15A is deemed to be a tenant, shall, subject to the provision of this Act, be deemed to become the tenant of the landlord, on the terms and conditions of the agree ment consistent with the provisions of this Act".
The Courts below have come to the conclusion that the appel lant was a tenant of respondent No. 2 by virtue of Section 15A of the Rent Act since he was in actual occupation of the flat on 1st February, 1973.
Having recorded the relationship of landlord and tenant between the member, respondent No. 2, and the occupant appellant, the courts below took the view that as there was no such jural relationship between the society and the occupant, the society was entitled to evict the occupant from the flat in question by taking recourse to Section 91(1) of the Societies Act as the dispute between the society, its member and the occupant claiming through the member was essentially one touching the business of the society.
In other words according to the courts below while the member could not evict the occupant except through proceedings initiated under the Rent Act, the society was free to evict the occupant, without dis continuing the membership of the licensor, by virtue of Section 91(1) of the Societies Act.
There is, according to the courts below, no conflict between Section 91(1) of the Societies Act and Section 28 of the Rent Act because in order to attract the latter provision it must be shown that the relationship between the society and the occupant is that of a landlord and a tenant or a licensor and a licensee who is entitled to the benefit of Section 15A of the.
Rent Act.
Unless such a relationship is established, the society cannot be precluded from initiating eviction action under Section 91(1) of the Societies Act against an occupant with whom it has no privi ty of contract, notwithstanding the fact that he was induct ed in the flat by the member allottee, albeit contrary to the regulations and bye laws of the society, and by passage of time a relationship of landlord and tenant has developed between the two by virtue of Section 15A of the Rent Act.
What impelled the legislature to introduce Section 15A and the related provisions on the statute book by Act XVII of 1973? The acute paucity of accommodation, particularly in urban and metropolitan centres, is of common knowledge.
Section 15 of the Rent Act initially prohibited sub letting.
Despite this prohibition sub letting took place on a large scale because of non availability of rented premises.
The legislature had to face this hard reality and was required to extend protection to such sub tenants when they were threatened with evic 872 tion by enacting the Bombay Rents, Hotels & Lodging Houses Rates Control Act (Amendment) Ordinance, 1959.
Thereafter also the acute shortage of accommodation continued and to circumvent the prohibition of sub letting in Section 15 increasing use of inducting third parties in rented premises through the expedient of leave and licence agreements was made.
This becomes evident from the Objects and Reasons for Act No. XVII of 1973, which read as under: "It is now notorious that the Bombay Rents, Hotel and Lodg ing House Rates Control Act, 1947, is being avoided by the expedient of giving premises on leave and licence for some months at a time; often renewing from time to time at.
a higher licence fee.
Licensees are thus charged excessive licence fees; in fact, several times more than the standard rent, and have no security of tenure, since the licensee has no interest in the property like a lessee.
It is necessary to make provision to bring licensees within the purview of the aforesaid Act.
It is therefore provided by Clause 14 in the Bill that persons in occupation on the 1st day of Febru ary, 1973 (being a suitable anterior date) under subsisting licences, shall for the purposes of the Act, be treated as statutory tenants, and will have all the protection that a statutory tenant has, under the Act.
It is further provided in Clause 8 that in the case of other licences, the charge shall not be more than a sum equivalent to standard rent and permitted increases, and a reasonable amount for amenities and services.
It is also provided that no person shall claim or receive anything more as licence fee or charge, than the standard rent and permitted increases, and if he does re ceive any such amounts, they should be recoverable from the licensor".
The legislative policy is evident from the opening words of Section 15A Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract which convey in no uncertain terms that the legislature desired to protect licensees who were in actual occupation of any premises on 1st February, 1973 from eviction by conferring on them the status of a tenant and thereby bringing them within the purview of the Rent Act regardless of the other provisions of the said enactment or any other enactment or contract to the contrary.
A sweeping overriding effect is given over all laws and other provisions of the Rent Act as well as con tract providing to the contrary thereby placing the 873 question of status of licensees in occupation of any prem ises on 1st February, 1973 beyond the pale of doubt.
To make matters clear corresponding changes were simultaneously made, in the preamble of the Rent Act and the definitions of 'landlord ' and 'tenant ' and a new definition ' of 'licensee ' was inserted on the statute book.
Not only did the legisla ture desire to confer the status of a tenant on such licen sees but it went a step further by providing in Section 14(2) that on the determination of the licenser 's interest in the premises such a statutory tenant under Section 15A will become the tenant of the landlord, thereby establishing a jural relationship of landlord and tenant through statute as distinguished from contract.
It, therefore, seems crystal clear to us that the legislative policy was to extend the protective umbrella of the Rent Act to licensees who were in occupation of any premises on 1st February, 1973 by fiction ally conferring on them the status of a tenant, overriding all other provisions of the statute itself, all other stat utes and contracts providing to the contrary.
Therefore, every other provision of the Rent Act, every provision of any other law and every covenant of a contract which runs counter to the legislative policy engrafted in Section 15A, meaning thereby which provides to the contrary, must yield to Section 15A read with Section 14(2) of the Rent Act.
That is why this Court while overruling the decision of the Full Bench of the Bombay High Court in Ratanlal Chandiprasad vs Raniram Darkhand, writ petition No. 76 of 1980 decided on 18th October, 1985 observed in paragraph 69 of its judgment in Chandavarkar Sita Ratna Rao vs Ashalata section Gurnatn, ; at 478 as under: ".
. it must be held that all licensees created by landlords or by the tenant before February 1, 1973 and who were in actual occupation of a premises which was not less than a room as licensee on February 1, 1973 would be the licensees of the landlord or tenant and whether there by any term in the original agreement for tenancy permitting crea tion of such tenancy or licences or not they would become tenant and enjoy the fights granted under the Act specially those mentioned in Section 14(2) of the Act".
Therefore, this Court held that a licensee under a licence created by a tenant, be he a statutory tenant or a contrac tual tenant, whether or not his tenancy agreement permitted the creation of such licence, was entitled to the protection of Section 15A of the Rent Act.
In other words no statutory bar or contractual bar operated against the conferment of the statutory tenancy on the licensee in occupation of any 874 premises on 1st February, 1973 under Section 15A of the Rent Act.
That takes us to the next question whether or not a member of a co partnership type of a co operative society has such interest in the premises allotted to him as would entitle him to give the same on leave and licencee basis to a non member.
In a tenant co partnership type of society the members are shareholders; but the title to the property vests in the society which in turn rents the tenements or flats to its members.
The cost of construction of dwellings is met from deposits and loans besides the share money.
The rental is usually determined on long term basis so calculat ed as to meet the cost of construction and upkeep of the building and to guarantee perpetuity of occupation on repay ment of the whole value of the tenement or flat.
At the end of the period the member is credited with additional shares equal to the amount paid by him; the interest on these shares generally matches the rental payable by him to the society.
Thus on full payment the member becomes entitled to occupy the tenement or flat free of charge as the rental he has to pay to the society is almost met from the interest received from shares held by him.
Thus a member has more than a mere fight to occupy the flat.
A similar question came up for consideration before this Court in Ramesh Himmatlal Shah vs Harsukh.
Jadhavji Joshi, ; in the context of whether or not the mem ber 's right in the flat was liable to attachment and sale under Section 60 of the Code of Civil Procedure.
This Court after analysing the various provisions of the Societies Act, the bye laws and the regulations framed thereunder, came to the conclusion that the member 's right or interest to occupy is a species of property.
Proceeding further this Court made the following observations in paragraph 18 to 20 of the Judgment: "There is no absolute prohibition in the Act or in the Rules or in the bye laws against transfer of interest of a member in the property belonging to the Society.
The only transfer which is void under the Act is one made in contravention off sub section (2) of Section 47 [See Section 47(3)].
We have not been able to find any other provision anywhere to the same effect.
In the Scheme of the provisions a dichotomy is seen between share or interest in the capital and interest in property of the Society.
While Section 29(2) refers to transfer of a member 's share or his interest in the capital or property of any Society, Section 31 in contrast speaks of 'the share or interest of a member in the capital of a So 875 ciety '.
The Act, therefore, makes a clear distinction be tween the share or interest in the capital and share or interest in property of the Society.
We have also noticed that the Act does not recognise interest in the immovable property of the society as well [See section 41(1)(b)].
We have seen the qualifications for membership.
There is no reason to suppose that if the qualification under the bye laws are fulfilled an application for membership may be rejected".
After pointing out that the right or interest to occupy is a species of property this Court went on to add as under: "We, therefore, unhesitatingly come to the conclusion that this species of property, namely, the right to occupy a flat of this type, assumes significant importance and acquires under the law a stamp of transferability in furtherance of the interest of commerce.
We have seen no fetter under any of the legal provisions against such a conclusion.
The attachment and sale of the property in this case in execu tion of the decree are valid under the law.
XXXXXXXXXXXXXXXXXXXXXXXXX In absence of clear and unambiguous legal provisions to the contrary, it will not be in public interest or in the inter est of commerce to impose a bar on saleability of these flats by a tortuous process of reasoning.
The prohibition, if intended by the Legislature must be in express terms.
We have failed to find one".
It becomes clear from this decision that the member 's right to occupy the flat is a species of property liable to at tachment and sale.
It is more than a mere right to occupy.
It is transferable and if the transferee answers the quali fications under the bye laws for being admitted to the membership of the Society, the Society would be precluded from unreasonably withholding such admittance.
There can, therefore, be no doubt that a member allottee has a right to transfer his interest in the flat to a third party and, therefore, the right to induct a third party on leave and licence basis.
It was contended by the learned counsel for the appel lant that Section 15A was inserted in the Rent Act to serve a dual purpose namely (1) to curb exploitation of licensee and (2) to provide security 876 of tenure.
If the view taken by the Courts below in the name of maintenance of the 'distinctive mutuality ' principle is endorsed, the very purpose of the amendment, argued counsel, would be defeated.
He pointed out that in the State of Maharashtra the cooperative movement had taken rapid strides and the legislature was aware that a large number of licen sees were in occupation of flats situate in Cooperative Societies.
It must, therefore, be assumed that the legisla ture desired to extend the protection of the Rent Act to such licensees also by bringing them within the scope of Section 15A of the Act.
In support of this contention he placed strong reliance on the decision of this Court in Hindustan Petroleum Corporation Limited (supra).
This sub mission was countered by the learned counsel for the society and the member on the plea that the Courts below had rightly concluded that the jurisdiction of the Cooperative Court under Section 91(1) of the Societies Act was not ousted because there was no jural relationship of landlord and tenant between the society and the appellant.
According to them if non members could be inducted in tenements or flats belonging to a Cooperative Housing Society of the present type, the entire housing movement would become redundant and the object of forming such cooperative housing societies would be totally defeated.
Therefore.
submitted the learned counsel, even if it is assumed that the appellant had ac quired the status of a tenant by virtue of Section 15A of the Rent Act, the protection extended by the said provision would extend to the licenser member only and not to the society.
In this connection strong reliance was placed on the decision of this Court in O.N. Bhatnagar 's case (supra) which has been referred to and relied on in four subsequent decisions namely, M/s A.V.R. And Co. & Others vs Fairfield Cooperative Housing Society & Others, ; ; Sardar Mohan Singh Ahluwalia vs Maitrai Park Co operative Housing Society and Another, ; ; Hindustan Thompson Associates Ltd. vs Mrs. Maya Inderson Israni & Others, ; and Smt.
Krishna Rajpal Bhatia vs Miss Leela H. Advani and Others, ; Five decisions were rendered by a Division Bench of this Court (A.P. Sen & B.C. Ray, JJ.) on a single day i.e. 19th September, 1988 on the question of applicability of Section 91(1) of the Societies Act.
In four of those cases, namely, A.V.R. & Co. & Others; Sardar Mohan Singh Ahluwalia; Hindu stan Thompson Associates Ltd. and Smt.
Krishna Ralpal Bha tia, this Court on facts took the view that the applicabili ty of Section 91(1) of the Societies Act could not be as sailed.
In all those four cases the Court came to the con clusion that the licence was terminated before 1st February, 1973 and, therefore, 877 the occupant could not be said to be in occupation of the flat under a subsisting licence on 1st February, 1973 and hence Section 15A of the Rent Act had no application.
In such a fact situation this Court rightly took the view that Section 28 of the Rent Act was not attracted and hence the society was entitled to seek eviction under Section 91(1) of the Societies Act.
In Bhatnagar 's case the occupant was inducted in the flat on leave and licence basis after the Society had accepted him as a nominal member.
But his li cence was terminated by a notice dated 31st March, 1965 and thereafter his occupation was no more under a subsisting licence to entitle him to the protection of Section 15A of the Act.
In the case of A.V.R. & Co. also the licensee 's claim for deemed tenancy was rejected on the ground that the licence had expired long before 1st February, 1973 and had not been renewed since then.
The Court, therefore, came to the conclusion that the licence was not in occupation of the flat under a subsisting licence on 1st February, 1973 and, therefore, the benefit of Section lSA could not be extended to him.
In the case of Sardar Mohan Singh Ahluwalia also the Court found that as a matter of fact there was no subsisting licence on 1st February, 1973 to attract the application of Section 15A of the Rent Act.
In Hindustan Thompson Associ ates Ltd. the facts disclosed that the licence was terminat ed by the member on 1st October, 1972 and the occupant was called upon tO vacate the premises.
It was, therefore, held that since the subsequent occupation of the flat by the occupant was not under a subsisting licence his occupation was in the nature of a trespasser and hence Section 15A had no application.
The Court, therefore, concluded that evic tion proceedings could be commenced against him under Sec tion 91(1) of the Societies Act.
In the last mentioned case of Srnt.
Krishna Rajpal Bhatia the court found that the agreement in question created the relationship of a licensor and a licensee and the licence had in fact been terminated by a notice dated 21st May, 1969 and, therefore, the occu pant was a mere trespasser when the action was commenced under Section 91(1) of the Societies Act and was not enti tled to the benefit of Section 15A of the Rent Act.
It can, therefore, be seen that the aforesaid 5 decisions on which considerable reliance was placed by the learned counsel for the Society and its member can be distinguished on facts inasmuch as in all those cases the finding of fact recorded throughout was that the licensee was not in occupation of the premises in question under a subsisting licence on 1st February, 1973 to invoke the protection of Section 15A of the Rent Act.
However, in the case of Hindustan Petroleum Corporation Limited (supra) the Esso Easter Inc., a company, had taken flat No. 35 878 in Block No. 8 in Sham Niwas on leave and licence basis for a period of one year in terms of a written agreement dated November 26, 1968 from Smt.
Nanki M. Malkani.
On December 4, 1968 the Society passed a resolution admitting one T.J. Mansukani, an employee of the company, as a nominal member of the society since he was to occupy the flat.
The licence agreement was extended from time to time under the renewal clause incorporated in the agreement.
After the company was taken over under the Esso (Acquisition of Undertakings in India) Act, 1974 Smt.
Nanki M. Malkani sent a communication affirming the terms and conditions of the licence and again confirmed the same on 24th March, 1976.
It will be seen from these facts that the licence was subsisting on 1st February, 1973.
On 11th September, 1980 the Society passed a resolu tion calling upon the appellant corporation to vacate the said premises and directed its member Smt.
Nanki M. Malkani to occupy the same herself.
Upon the appellant corporation failing to vacate the premises the Society commenced pro ceedings under Section 91(1) of the Societies Act on 15th September, 1980 for eviction of the appellant corporation and its employee from the flat.
The Cooperative Bank Bombay, after considering the evidence adduced by the parties, dismissed the claim of the Society holding that the appel lant corporation was entitled to the benefit of Section 15A of the Rent Act and the said protection could not be taken away by the Society seeking eviction under Section 91(1) of the Societies Act.
The Society preferred an appeal which came to be allowed on 17th March, 1984 whereupon the appel lant corporation approached the High Court under Article 226 of the Constitution, but in vain.
The appellant corporation obtained special leave to appeal to this Court.
This court raised three questions for decision, two of which are relevant for our purpose.
The first question was whether the appellant corporation as successor in interest of Esso Eastern Inc., the licensee, was entitled to the protection of Section 15A of the Rent Act having regard to the fact that Esso Eastern Inc. was in occupation of the flat in dispute under a subsisting licence on 1st February, 1973 and whether the society 's action for ejectment of the occupant of the flat could be said to be a dispute touching the business of the society within the meaning of Section 91(1) of the Societies Act.
After referring to the relevant statutory provisions of both the Societies Act and the Rent Act, this Court observed that the finding of the appellate court that the appellant corporation was not entitled to the protection of Section 15A the Rent Act could not be sustained.
This Court concluded in paragraph 14 at page 758 as under: 879 "In the premises, petitioner 1 Hindustan Petroleum Corpora tion Ltd., is clearly protected under Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
In that view of the matter, we do not think it neces sary to deal with the contention as regard the applicability of Section 91 of the Maharashtra Co operative Societies Act, 1960.
All aspects arising out of the submissions as to the jurisdiction of the Registrar under Section 91(1) of the Act have already been considered by this Court in O.N. Bhatnagar case and we reiterate the principles laid down therein".
This Court did not consider it necessary to deal with the third contention whether a claim for ejectment of an occu pant of a flat in a cooperative housing society who has been put in possession thereof by the member under a leave and licence agreement, is a 'dispute touching the business of the society ' within the meaning of Section 91(1) of the Societies Act, because in its view it was already covered by Bhatnagar 's case.
To put it differently the Division Bench accepted the ratio of Bhatnagar 's case as laying down the correct law and did not see the need to restate the same.
While in Bhatnagar 's case this Court on facts came to the conclusion that the requirements of Section 15A were not satisfied and, therefore, action under Section 91(1) of the Societies Act was maintainable, it repelled the apprehension that such a view would throw out all licensees of residen tial flats in multi storeyed buildings belonging to Coopera tive Housing Societies in the following words: "The apprehension, if we may say so, appear to be wholly unfounded.
The legislature was fully aware of the acute paucity of housing accommodation in the metropolitan cities of Greater Bombay and other urban areas in the State, and also the fact that lessors of ownership flats were adopting a device of inducting tenants under the garb of an agreement of leave and licence which left the licensee with no protec tion.
The legislature, therefore, stepped in and by Maha rashtra Act 17 of 1973 the following provisions were insert ed in the Rent Act".
After referring Section 15A(1) and Section 5(4A) of the Rent Act this Court proceeded to observe as under: 880 "As a result of the introduction of Section 15A and Section 5(4A) of the Rent Act by Maharashtra Act 17 of 1973, the licensee of any premises or any part thereof in a building vesting in or leased to a cooperative housing society regis tered or deemed to be registered under the Act, who was in occupation of such premises under a subsisting licence as on 1.2.
1973, is by a legal fiction, deemed to be a tenant and thus has the protection of Rent Act.
In such a case the dispute between a licensor and licensee relating to posses sion of the premises of a fiat would attract Section 28 read with Section 15A and 5(4A) of the Rent Act and would fail outside the purview of the Registrar 's jurisdiction to adjudicate upon such dispute under Section 91(1) of the Act.
Once this aspect is kept in view, there need be no apprehen sion as expressed by learned counsel for the appellant . . . ,,.
Indubitably the flat in question fails within the defi nition of 'premises ' in Section 5(8) of the Rent Act.
The appellant, a licensee under Section 5(4A), is a deemed tenant under Section 15A and, therefore, falls within the definition of 'tenant ' under Clause (bb) of Section 5(11) of the Rent Act.
Such a tenant is entitled to the protection of the Rent Act and cannot be evicted from the premises in his occupation except as provided by the said Act.
To hold otherwise would be to render the status conferred on licen sees in actual occupation on 1st February, 1973, under a subsisting licence, nugatory.
The appellant was put in possession of the flat in question by the tenant co partner member of the Society and was accepted as such by the suc cessormembers also.
As pointed out earlier a member of a tenant copartnership type of Society is under an obligation to pay a fixed rental every month to the Society.
This rental is, no doubt.
determined on the basis of the member 's financial obligations incurred on account of the cost of construction, price of land or lease rent, as the case may be, interest on borrowings, etc.
The primary object of such a society is to provide residential accommodation to its members on easy payment basis.
That is why in Bhatnagar 's case this Court stated that 'it is as much the concern of the society formed with the object of providing residential accommodation to its members, which normally is its busi ness, to ensure that the flats are in occupation of its members, in accordance with bye laws framed by it, rather than of a person in an unauthorised occupation, as it is the concern of the member, who lets it out to another under an agreement of leave and licence and wants to secure posses sion of the premises for his own use after the termination 881 of the licence '.
Therefore, this Court held that ejectment of an occupant, whose licence is terminated and who does not have the protection of law, such as the Rent Act, can be secured under Section 91(1) of the Societies Act.
But what happens when competing provisions vesting jurisdiction under different laws open with a non obstante clause and invest jurisdiction in different Courts? The Societies Act under Section 91(1) confers jurisdiction on the Cooperative Court while Section 28 of the Rent Act confers jurisdiction on the Court of Small Causes, Bombay.
This Court observed in Deccan Merchants Cooperative Bank, Limited vs Dali Chand Jugraj Jain, [1969] 1 SCR 887 that 'the two Acts can be harmonised best by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act, should apply '.
This view was approved in Bhatnagar 's case also.
In Co operative Central Bank, Ltd. vs Additional Industrial Tribunal, Andhra Pra desh, also this Court was required to harmonise the competing provisions in Section 61 of the A.P. Co operative Societies Act, which is substantially the same as Section 91(1) of the Societies Act, and Section 10(1)(d) of the Industrial Disputes Act.
This Court applying the test laid down on Deccan Merchants Co operative Bank 's case held that a dispute relating to the service condition of an employee of the society would properly be governed by the Industrial Disputes Act.
It was, however, submitted by the learned counsel for the society that the earlier enactment i.e. the Rent Act must yield to the later Act, i.e. the Societies Act, if the competing provisions of the two cannot be reconciled lex posterior derogate priori.
But the Rent Act is special law extending protection to tenants, just as the Industrial Disputes Act which makes provision for the benefit of the workmen.
Ordinarily, therefore, a general provision, a dispute touching the business of the society, would have to give way to the special provision in the Rent Act on the maxim generalia specialibus non derogant.
That is why this Court harmonised the said provisions by holding that in matter covered by the Rent Act, its provisions, rather than the provisions of the Societies Act, should apply.
In the present case the appellant seeks protection of the Rent Act since he is a deemed tenant under Section 15A read with Section 5(4A) and 5(11)(bb) of the Rent Act.
The status of a tenant is conferred on him by law as the legislature desired to extend the protection of the Rent Act to such licensees.
Rights which do not flow from contracts but are conferred by law such as the Rent Act, must, we think, be determined by the machinery, if any, provided by the law conferring the right.
882 The submission that the appellant cannot seek protection against the Society as his entry into the flat was in viola tion of the Bye laws would have been valid had the statute not intervened.
To take such a view would tantamount to carving out an exception in Section 15A of the Rent Act that the said provision would not apply to licensees in occupa tion of flats owned by tenant co partnership societies.
The language of Section 15A read with Section 5(4A) of the Rent Act does not warrant such a construction.
The mere fact that there was a violation of the Bye laws would not make any difference for it is not unknown that even in cases of breach of statute, the legislature has conferred protection on those guilty of breach if the prevailing circumstances so warrant e.g., sub letting was prohibited by Section 15 but when the legislature realised the need to protect the sub tenants it did so by an ordinance promulgated in 1959.
Similarly when the legislature felt the need to protect licensees in occupation on 1st February, 1973, it intervened by enacting Section 15A.
The legislative policy is quite evident from Section 15A and the protection given to licen sees cannot be taken away on the plea that the initial entry of the licensee in the flat was in breach of the Bye laws.
If the occupant licensee who is a protected tenant under Section 15A 'can be evicted by the society on the plea of absence of privity between the society and the protected tenant, it would render the protection of Section 15A redun dant.
The situation is more or less similar to the case of an owner landlord whose tenant had contrary to the terms of the contract introduced a licensee who is now protected by Section 15A of the Rent Act.
In such a case notwithstanding the absence of privity of contract between the owner landlord and the licensee protected tenant, the latter cannot be evicted except in accordance with the provisions of the Rent Act.
We, therefore, do not see any merit in the contention that notwithstanding the protection given by Section 15A, the society can proceed to evict him under Section 91(1) of the Societies Act on the plea that such protection is not available against the society.
Such a view would defeat the legislative object of Section 15A of the Rent Act.
But the jurisdiction of the Court in which the action is originated must be determined on the averments in the plaint or claim application and not on the defence taken by the adversary party.
For example, if the plaintiff goes to court alleging that the defendant is a trespasser, the ordinary court will have jurisdiction and its jurisdiction will not be taken away merely because the defendant pleads tenancy.
If, however, the defendant succeeds in proving that he is a tenant in respect of premises, possession whereof is sought, the court trying the case would dismiss the suit on the ground that the plaintiff had failed to prove the 883 jurisdictional fact that the defendant was a trespasser.
Here also the claim was lodged by the society in the Cooper ative Court on the ground that the appellant was in wrongful occupation of the flat in question and was a mere trespass er.
On facts it is now found that the appellant was and is a protected tenant under Section 15A of the Rent Act.
The proceedings initiated under Section 91(1) of the Societies Act cannot, in the circumstances, succeed for the simple reason that the society has failed to prove the fact which constitutes the foundation for jurisdiction.
If the society fails to prove that the appellant has no right to the occu pation of the flat since he is a mere trespasser, the suit must obviously fail.
That is why even in the case of Hindu stan Petroleum Corporation Limited this Court did not con sider it necessary to deal with the contention based on Section 91(1) of the Societies Act in detail and felt con tent by observing that the point stood covered by the deci sion in Bhatnagar 's case.
For the reasons afore stated, we are of the view that the impugned Judgment of the Bombay High Court cannot be allowed to stand.
We allow this appeal, set aside the Judg ments of all the Courts below and direct that the claim application filed under Section 91(1) of the Societies Act shall stand dismissed.
However, in the facts and circum stances of the case we make no order as to costs.
R.N.J. Appeal allowed.
| IN-Abs | The question for determination is, can a licensee occu pying a flat in a tenant co partnership society be evicted therefrom under subsection (1) of section 91 of the Maha rashtra Cooperative Societies Act, 1960 notwithstanding the protection extended by Section 15A of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947 as amended by Act XVII of 1973 or whether such proceedings would be gov erned by Section 28 of the Rent Act? The appellant licensee was in actual possession of the fiat on 1st February 1973 under a license without the ex press permission of the Society.
He was let in, in 1957 by one D.P. Kejriwal who was looking after the flat originally allotted to one Laxmi Devi Kejriwal in 1949.
She gifted her interest as allottee member to her brother who in turn transferred his interest therein to his brother Hari Kumar Sharma, respondent No. 2, in July 1967.
Even after this transfer D.P. Kejriwal continued in management of the flat till 1979 when he received a letter from Respondent No. 2 claiming ownership of the flat.
The appellant thereafter filed an interpleader suit.
On disposal of the said suit Respondent No. 2 deposited a sum of Rs.5,500 with Respondent No. 1, the Society, towards the cost of the Society to initiate proceedings for eviction of the appellant from the flat in question under Section 91(1) of the Societies Act.
The appellant contended that the proceeding under section 91(1) was not competent as the document of leave and licence in fact created a lease.
Alternatively, as he was in actual possession under a subsisting license right from 1957 to 1st February 1973, he was a statutory tenant under section 15A of Bombay Rent Act and the Cooperative Court had no juris diction under section 91(1) of the Societies Act and the proper court was one under section 28 of the Rent Act which the Respondent No. 2 had in fact approached.
863 The Co operative Court passed an ejectment order against the appellant.
The appellant filed an appeal under section 97 of the Societies Act to the State Co operative Appellate Court, Bombay.
The appellate court dismissed the appeal and confirmed the order of the Co operative Court.
Feeling aggrieved by the concurrent findings of the two courts the appellant preferred a Writ Petition in the High Court of Bombay.
The Writ Petition was also dismissed.
While allowing the appeal and setting aside the judg ments of all the Courts below and directing that the claim application filed under section 91(1) of the Societies Act shall stand dismissed, this Court, HELD: The appellant was and is a protected tenant under section 15A of the Rent Act.
The proceedings initiated under section 91(1) of the Societies Act cannot in the circum stances succeed as the Society has failed to prove the fact of trespass which constituted the foundation for jurisdic tion.
if the society fails to prove that the appellant has no right to the occupation of the flat since he is a mere trespasser, the suit must obviously fall.
[883B C] The Societies Act, section 91(1), confers jurisdiction on the Cooperative Court while section 28 of the Rent Act confers jurisdiction on the Court of Small Causes, Bombay.
[881B] The Status of a tenant is conferred on him by law as the legislature desired to extend the protection of the Rent Act to such licensees.
Rights which do not flow from contracts but are conferred by law such as the Rent Act must be deter mined by the machinery, if any, provided by the law confer ring the right.
[881G H] Notwithstanding the absence of privity of contract between the owner landlord and the licensee protected tenant the latter cannot be evicted except in accordance with the provisions of the Rent Act.
[882B] Chandavarkar Sita Ratna Rao vs Ashalata section Gum am; , at 478; Ramesh Himmatlal Shah vs Harsukh Jadhavji Joshi, ; ; Hindustan Petroleum Corpo ration Ltd. vs Shyam Cooperative Housing Society, ; 1989 SC 295; O.N. Bhatnagar vs Rukibai Narsim das; , ; M/s. AVR & Co. & Ors.
vs Fairfield Cooperative Housing Society & Ors., ; ; Sardar Mohan Singh Ahluwalia vs Maitrai Park Cooperative Housing Society & Anr., ; ; Hindustan Thompson Associ ates Ltd. vs Mrs. Maya Inderson Israni & Ors. 864 ; ; Smt.
Krishna Rajpal Bhatia vs Miss Leela H. Advani & Ors., ; ; Deccan Merchant Cooperative Bank Ltd. vs Pali Chand Jugraj Jain, [1969] 1 SCR 887 and Co operative Central Bank Ltd. vs Additional Industrial Tribunal, Andhra Pradesh, , referred to.
|
vil Appeal Nos. 16 16 17 of 1990.
From the Judgment and Order dated 22.5.1989 of the Allahabad High Court in Writ Petition No. 2777/78 & dated 5.7.89 Review Petition No. 68(W)/89 in W.P. No. 2777/78.
K. Parasaran, Amitabh Misra, section Murlidhar and M.S. Ganesh for the Appellant.
P.P. Rao, Raja Ram Aggarwal, E.C. Aggarwala, Atul Shar ma, Ms. Purnima Bhatt, Mrs. Shobha Dikshit, Lokesh Kumar, R.D. Kewalramani and M.K. Garg for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special Leave granted.
The Chancellor of the Lucknow University while exercis ing power under Section 31(8)(a) of the Uttar Pradesh State Universities Act, 1973 ("The Act") has directed that Km.
Neeliam Misra, the appellant herein should be appointed as Reader in Psychology in the University.
That order has been quashed by the High Court of Allahabad, Lucknow Bench in Writ Petition No. 2777 of 1978 ,at the instance of Dr. Harinder Kaur Paintal, respondent (1).
This appeal is from that judgment of the High Court.
90 The background of the case in the barest outline may be stated as under.
The Lucknow University invited applications for appoint ment of Reader in Psychology from candidates who possessed the prescribed qualifications.
In response to the advertise ment, several candidates filed their applications.
The appellant and respondents I to 5 were some of them who offered themselves as candidates.
The Committee which was constituted for selection of candidates called them for interview along with some others.
After considering their qualifications, experience and relative performance in the interview, the Selection Committee graded them as follows: "All the candidates who appeared for the interview possess a Ph. D. degree.
Neelima Misra does not possess a Ph. D. degree.
Her thesis is nearing 'completion.
Her thesis work alongwith her publication were scrutinised and it was found that she satisfies the condition of published work of a high standard in the subject, provided as an alternative to Ph. D. degree.
All the candidates have a consistently good academic record and more than 54% marks in the M.A. Examina tions, except Dr. C.B. Dwivedi, who has a 3rd Division in the High School, Dr. Ratan Singh who has 3rd Division in High School and B.A. 2.
All the candidates possess the requisite teaching experi ence of post graduate classes.
And the basis of the research work, publications, experi ence and performance at the interview, the Committee graded the candidates as follows: 1.
Ms. Neelima Misra 2.
Dr. (Km.) Mukta Rani Rastogi 3.
Dr. (Smt.) Harinder Kaur Paintal 4.
Dr. S.N. Rai The rest of the candidates were found unsuitable.
The view of the above Committee recommended that Km Neelima Misra be appointed to the post of Reader in Psychology." 91 Km.
Neelinia Misra was found to have to her credit a published work of high standard in the subject of Psychology though she had no Ph. D. degree.
Besides she was considered to be more suitable on the basis of research work, publica tion, experience and performance at the interview.
The Selection Committee, therefore, recommended her for appoint ment to the post of Reader in Psychology.
That recommendation came before the Executive Council.
The Executive Council, by a split majority disagreed with the recommendation and preferred the appointment of respond ent (5) Dr. (Km) M.R. Rastogi.
It has expressed the view that the appellant did not possess the essential qualifica tions prescribed for the post of Reader and therefore, not suitable for appointment.
The opinion expressed by the Executive Council is as under: perusal of the bio data of Km.
Neelima Misra shows that she does not possess Ph.D. degree nor has she submitted her thesis so far.
Yet it is strange to say that her pub lished work is of a high standard.
Thus she does not fulfil requirement of essential qualifications and not suitable for the post.
The bio data of Dr. (Km) M.R. Rastogi shows that she possesses 11 years teaching experience of post graduate classes.
She has a consistently good academic record and should be appointed Reader in Psychology as she has been graded No. 2 by the Selection Committee.
Dr. (Smt.) Harmder Kaur Paintal is a Lecturer since November 1972 and has also a consistently good academic record and is suitable for the post.
As a consequence there is no question of relaxa tion of essential qualification as candidate of requisite merit are available.
" When there is thus disagreement with the recommendation of the Selection Committee, the matter must be referred to the Chancellor for his decision.
That is the mandatory requirement of Section 31(8)(a) of the Act.
Accordingly, the Executive Council referred the matter to the Chancellor.
The Chancellor, however, by order dated August 16, 1978 did not approve of the Executive Council 's opinion to appoint Dr. (Km) M.R. Rastogi.
The Chancellor rejected the opinion of the Executive Council and accepted the recommendation of the 92 Selection Committee and directed that the appellant should be appointed as Reader.
The Chancellor observed: "The Selection Committee has unanimously recommended that Km.
Neelima Misra be appointed to the post of Reader in Psychology.
Instead of accepting this recommendation, the Executive Council held by a majority of 6:5 votes that Kumari Neelima Misra does not fulfil the requirement of essential qualifications and is not suitable for the post.
It was of opinion that Dr. (Km) M.R. Rastogi who has been graded No. 2 by the Selection Committee should be appointed and that Dr. (Smt) H.K. Paintal is also suitable for the post.
Neelima Misra does not possess a Doctorate in the subject of study, but the Selection Committee has re corded that her thesis alongwith her publications were scrutinised and it was found that she satisfies the condi tion of published work of a high standard on the subject, which is an alternative to the Doctorate degree, as provided in Statute 11.01 read with Statute 11.02 of the First Stat utes of Lucknow University.
Thus Km.
Neelima Misra possess the essential prescribed minimum qualification.
She has also been adjudged to be the most suitable candidate on the basis of research work, publications and experience and perform ance at interview, among all the candidates, by the Selec tion Committee which was in a better position to Judge the merits of the suitability of the appointment.
After considering all the facts and circumstances of the case, I approve the report of the Selection Committee and direct that the appointment order be issued accordingly.
Sd/ G.D. Tapase, Chancellor" As per the decision of the Chancellor, the appellant was appointed as Reader in Psychology.
Dr. (Smt) Harmder Kaur Paintal, respondent 1, moved the High Court under Article 226 of the Constitution challenging the Chancellor 's order.
The Writ Petition was filed on 17 August 1978 before the Lucknow Bench of the Allahabad High Court and it was admitted on 93 30 March 1979.
Ten years later i.e. on 3 May 1989 the writ petition was listed for hearing before the Division Bench of the High Court.
On 22 May 1989, the judgment was delivered by allowing the writ petition and quashing the Chancellor 's order with d direction to reconsider the matter.
It seems that learned Judges had little discretion in the matter in view of an earlier decision of the High Court on the nature and scope of the Chancellor 's power under Section 31(8)(a) of the Act.
In L.N. Mathur vs The chancellor, Lucknow Uni versity, Lucknow & Ors.
, , the Full Bench of the High Court by majority, inter alia, has held that the Chancellor must state explicitly the reasons for his deci sion.
The Chancellor in order to arrive at a decision has to make a judicial approach to the question and he is enjoined by the Act to act quasi judicially.
To reach that conclu sion, the Full Bench has relied upon the observations in the Division Bench judgment in Dr. U.N. Roy vs His Excellency Sr.
G.D. Tapase, (The Ex Governor, State of Uttar Pradesh), Chancellor Allahabad University (1981 UPLBEC 309.) Following those authorities, the learned Judges in the present case have set aside the Chancellor 's order making some more observations: "When difference of opinion between the Selection Committee and Executive Council is referred to the Chancellor, his position is that of an Arbitrator and there is a sort of 'lis ' before him and in case the Chancellor has to agree with the Selection Committee with which the Executive Coun cil has differed assigning particular reason, the Chancellor has to assign reasons as to why he has agreed with the recommendation made by the Selection Committee.
The dispute having been raised, was to be decided atleast like a dis pute" At this point, we may interrupt the narration and ana lyse Section 1 of the Act which provides procedure for selection of University eachers.
Omitting unnecessary clauses, the Section reads: "31(1) Subject to the provisions of the Act, the teachers of the University and the teachers of an affiliated or associ ated college (other than a college maintained exclusively by the State Government) shall be appointed by the Executive Council or the Management of the affiliated or associated college, as the case may be, on the recommendation of a Selection Committee in the manner hereinafter provided.
XXXX XXXXX XXXXX 94 (4)(a)The Selection Committee for the appointment of a teacher of the University (other than the Director of an Institute and the Principal of a constituent college) shall consist of (i) the Vice Chancellor who shall be the Chairman thereof,; (ii)the head of the Department concerned: XXX XXX XXX (iii) in the case of a Professor or Reader, three experts, and in any other case, two experts be nominated by the Chancellor; XXX XXX XXX (6) No recommendation made by a Selection Committee referred to in sub section (4) shall be considered to be valid unless one of the experts had agreed to such selection.
XXX XXX XXX (7 A) It shall be open to the Selection Committee to recom mend one or more but not more than three names for each post.
(8)(a) In the case of appointment of a teacher of the Uni versity, if the Executive Council does not agree with the recommendation made by the Selection Committee, the Execu tive Council shall refer the matter to the Chancellor along with the reasons of such disagreement, and his decision shall be final.
Provided that if the Executive Council does not take a decision on the recommendations of the Selection Committee within a period of four months from the date of meeting of such Committee, then also the matter shall stand referred to the Chancellor, and his decision shall be final.
" Three authorities are involved in the selection of University teachers; (i) Selection Committee, (ii) Executive Council and (iii) Chancellor. 95 The Selection Committee for appointment of University teachers is a recommendatory body the composition of which has been prescribed under section 31(4)(a).
It is a high power Committee of which the Vice Chancellor shall be the Chairman.
The Head of the department concerned shall be a member.
There shall also be expert members in the particular subject.
The experts shall be drawn from outside the Univer sity and the Chancellor must nominate them.
In the case of appointment of Professor or Reader, there shall be three experts and in any other case two experts in the Selection Committee.
In the case of selection of teachers of the University, the recommendation of the Selection Committee shall not be valid unless atleast one of the experts agrees to such selection.
The Selection Committee has the liberty to recommend one or more candidates but not more than three names for each post.
The Executive Council is the principal executive body of the University whose powers and duties are provided under Section 21 of the Act.
Subject to the provisions of the Act, the Executive Council has power to appoint officers, teach ers and other employees of the University.
The appointment shall be made on the basis of recommendation made by the Selection Committee, which means in the order of merit of candidates arranged by the Selection Committee.
The Selec tion Committee has expert members and it has thus the exper tise to judge the relative suitability of competing candi dates.
The Executive Council has no such experts on the subject for selection.
Therefore, the Executive Council shall make appointments as per the position or ranking obtained in the recommendation, unless any other rule re quires otherwise.
Section 31(8)(a) seems to suggest that if the Executive Council wants to agree with the recommendation and appoint candidates in the order of merits, no reasons are to be given.
But if it wants to disagree with the recom mendations made by the Selection Committee, it must give reasons for disagreement.
It has however, no power to over ride the recommendation and appoint a candidates of its own choice.
It may disagree, but should give reasons for disa greement and refer the matter under section 31(8)(a) to the Chancellor.
Then the decision of the Chancellor shall be binding on the Executive Council.
The nature of the Chancellor 's power located under Section 31(8)(a) is now to be considered.
The High Court has held that the Chancellor 's power is quasi judicial.
There is a 'lis ' before the Chancellor for determination and he has to decide the dispute as an arbitrator.
96 The suggested analogy with the position of an arbitrator was not even supported by counsel for the respondents.
The essence of the attack of Mr. Parasaran, learned counsel for the appellant is that there is no legal or equitable fight of parties or any dispute relating thereto for determination by the Chancellor and therefore, there is no duty to act judicially.
The Chancellor has only to consider the recom mendation of the Selection Committee in the light of disa greement if any, expressed by the Executive Council and direct appointment of a candidate in the select list.
The order of the Chancellor, and his function, it was argued, are purely administrative in nature.
Mr. K.P. Rao for re spondent (3) was indeed very fair in his submission.
He did not say that there is a 'lis ' before the Chancellor for determination.
He urged that the Chancellor is required to exercise his powers properly and not improperly even though there is no 'lis ' before him for adjudication.
The argument of Mr. Agarwal for the respondent No. 5, however, ranged a good deal under than his counter part appears to have done in the High Court.
The power of the Chancellor, he contend ed, is quasijudicial and he must determine the issue that is referred to him with reasons in support of his conclusion.
The question raised is of considerable importance and it has general application in Universities governed by similar pattern of statutory provisions.
Reference may be made to some of such enactments.
Section 27(4) of the provides that if the Executive Council is unable to accept any recommendation made by Selection Committee, it may remit the same for reconsidera tion and if the difference is not resolved, it shall record its reasons and submit the case to the Visitor for orders.
Similar are the provisions under the Calcutta University Act, 1979.
Section 32(2) therein provides that if the Syndi cate does not accept the recommendation of the Selection Committee it shall refer back the matter for reconsideration and if the Syndicate does not accept the reconsidered views, the matter shall be referred to the Chancellor whose deci sion shall be final.
Section 57(2)(e) of the Bombay Univer sity Act, 1974 is almost parallel and it states that if the Executive Council does not choose to appoint from amongst the persons recommended by the Selection Committee, it shall for reasons recorded refer to the Chancellor whose decision shall be final.
The by Section 27(5) also provides that if the Executive Council is unable to accept the recommendations made by the Selection Committee, it shall record its reasons and submit the case to the Visitor for final orders.
Section 49(2) of the M.P. Vishwavidhayalaya Adhiniyam, 1973 likewise requires where the Executive Council pro 97 poses to make the appointment otherwise than in accordance with the order of merit arranged by the Select Committee it shall record its reasons and submit its proposal for sanc tion of the Kuladhipati.
The pattern in the Kerala University Act, 1974 is slightly different.
The First Statute under that Act empow ers the Syndicate to make appointments contrary to recommen dation of the Committee but With the sanction of the Chan cellor.
The First Statute under the Delhi University Act, 1922 by clause 6 provides that the Executive Council shall appoint from time to time Professors and Readers etc.
on the recommendations of the Selection Committee constituted for the purpose.
Under the Act and Statute with which we are concerned, the Executive Council has no power to ask the Selection Committee to reconsider the recommendation.
It must for reasons recorded refer the matter under Section 31(8)(a) to the Chancellor for decision.
The Full Bench of the Allahabad High Court in L.N. Mathur, case (supra) had analysed the concept of quasi judicial function with reference to the power of the Chan cellor under Section 31(8)(a) and expressed the view that the reference to the Chancellor showed the existence of a disagreement between two University Authorities with respect to the claims of competing candidates.
The Chancellor has to decide the issue by examining the reasons given by the Executive Council and the records of the candidate.
The decision of the Chancellor is final and not subject to any appeal/revision and his power is quasi judicial.
The fact that the Chancellor is not required to follow any set proce dure or sit in public or take evidence does not make his function administrative.
Such are the reasonings for the conclusion of the High Court to hold that the Chancellor must act as a quasi judicial authority.
We find it difficult to accept the reasoning underlying the aforesaid view.
Before we consider the correctness of the proposition laid down by the High Court we must, at the expense of some space, analyse the distinctions between quasi judicial and administrative functions.
An administra tive function is called quasi judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice.
Where there is no such obligation.
the decision is called 'purely administrative ' and there is no third category.
This is what was meant by Lord Reid in Ridge vs Baldwin, ; , 75 76: 98 "In cases of the kind with which I have been dealing the Board of Works . . was dealing with a single isolated case.
It was not deciding, like a judge in a law suit, what were the rights of the persons before it.
But it was decid ing how he should be treated something analogous to a judge 's duty in imposing a penalty . " "So it was easy to say that such a body is performing a quasi judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character the principles of natu ral justice.
Sometimes the functions of a minister or de partment may also be of that character and then the rules of natural justice can apply in much the same way . " Subba Rao, J., as he then was, speaking for this Court in G. Nageshwara Rao vs Andhra Pradesh State Transport Corporation, 19 put it on a different empha sis (at 353): "The concept of a quasi judicial act implies that the act is not wholly judicial, it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its execu tive power . " Prof. Wade says "A judicial decision is made according to law.
An administrative decision is made according to administrative policy.
A quasi judicial function is an administrative function which the law requires to be exer cised in some respects as if it were judicial.
A quasi judicial decision is, therefore, an administrative decision which is subject to some measure of judicial procedure, such as the principles of natural justice." (Administrative Law by H.W.R. Wade 6th Ed.
p. 46 47).
An administrative order which involves civil conse quences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem.
It means that the decision maker should afford to any party to a dispute an opportunity to present his case.
A large number of authori ties are on this point and we will not travel over the field of authorities.
What is now not in dispute.is that the person concerned must be informed of the case against him and the evidence support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken.
Ridge vs Baldwin, (supra) and state of 99 Orissa vs Dr. Binapani Dei & Ors., ; The shift now is to a broader notion of "fairness" of "fair procedure" in the administrative action.
As far as the administrative officers are concerned, the duty is not so much to act judicially as to act fairly (See: Keshva Mills Co. Ltd. v: Union of India; , at 30; Mohinder Singh Gill vs Chief Election Commissioner, ; at 434; Swadeshi Cotton Mills vs Union of India, and Management of M/s M.S. Nally Bharat Engineering Co. Ltd. vs The State of Bihar & Ors., Civil Appeal No. 1102 of 1990 decided on February 9, 1990.
For this concept of fairness, adjudicative settings are not necessary, not it is necessary to have lis inter partes.
There need not be any struggle between two opposing parties giving rise to a 'lis '.
There need not be resolution of lis inter partes.
The duty to act judicially or to act fairly may arise in widely differing circumstances.
It may arise expressly or impliedly depending upon the context and considerations.
All these types of non adjudicative administrative decision making are now covered under the general rubric of fairness in the administration.
But then even such an administrative deci sion unless it affects one 's personal rights or one 's property rights, or the loss of or prejudicially affects something which would juridically be called atleast a privi lege does not involve the duty to act fairly consistently with the rules of natural justice.
We cannot discover any principle contrary to this concept.
In the light of these considerations, we revert to the central issue, that is with regard to the nature of the Chancellor 's power under Section 31(8)(a).
It may be noted that the Chancellor is one of the three authorities in the Statutory Scheme for selecting and appointing the best among the eligible candidates in the academic field.
The Chancel lor is not an appellate authority in matters of appointment.
He is asked to take a decision, because the Executive Coun cil who is the appointing authority has no power to reject the recommendation of the Selection Committee and take a decision deviating therefrom.
The Chancellor 's decision is called for when the Executive Council disagree with the recommendation of the Selection Committee.
What is referred to the Chancellor under Section 31(8)(a) of the Act, is therefore, not a dispute between the Selection Committee and the Executive Council on any issue.
Nor it is a dispute between two rival candidates on any controversy.
What is referred to the Chancellor is the recommendation of the Selection Committee with the opinion, if any, recorded thereon by the Executive Council.
In fact, even without any opinion of the Executive Council, the matter stands automat ically 100 remitted to the Chancellor if the Executive Council delays its decision on the recommendation of the Selection Commit tee.
The proviso to Section 31(8)(a) provides for this contingency.
It reads: "Section 31(8)(a) xxxxx xxxxx Proviso: Provided that if the Executive Council does not take a decision on the recommendation of the Selection Committee within a period of four months from the date of the meeting of such Committee, then also the matter shall stand referred to the Chancellor, and his decision shall be final.
" The matter thus goes to the Chancellor for decision since the Executive Council could not take a decision on the recommendation of the Selection Committee.
The Chancellor in the circumstances has to examine whether the recommendation of the Selection Committee should be accepted or not.
If any opinion by way of disagreement has been recorded by the Executive Council on that recommendation, the Chancellor has also to consider it.
He must take a decision as to who should be appointed.
It is indeed a decision with regard to appointment of a particular person or persons in the light of the recommendation and opinion if any, of the two statu tory authorities.
Such a decision appears to be of an admin istrative character much the same way as the decision of the Executive Council with regard to appointment.
In matters relating to public employment whether by promotion or direct recruitment, only requirement to be complied with is the mandate of Articles 14 and 16 of the Constitution.
There shall be equality of opportunity and no discrimination only on ground of religion, race, caste, sex, dissent, place of birth or residence or any of them.
The eligible candidate has a right to have his case considered in accordance with law.
In the instant case, that require ment has been complied with by the Selection Committee.
There is no further right with the candidates to make repre sentation to the Executive Council and much less to the Chancellor.
Reference however, was made to the observation of this Court in Dr. G. Sarana vs University of Lucknow and Ors., ; at 592.
While dismissing the writ petition challenging the recommendation made by the Selec tion Committee of the Lucknow University for appointment of a candidate as Professor, it was observed that "the ag grieved candidate has remedy by way of representation to the Executive Council and an application for re 101 ference under Section 68 of the Act to the Chancellor".
We have carefully perused the decision and that observation.
We find that it is of little assistance to the present case.
We are concerned with the scope of Section 31(8)(a) of the Act which was not considered in that case.
Apart from that, Section 31 confers no such right to make representation to the Executive Council or to the Chancellor against the recommendation of the Selection Committee.
There is no provision in the Section for hearing any candidate or the Executive Council.
There is also no provision for receiving evidence.
The material in respect of every candidate has already been collected and collated by the Selection Commit tee.
Every material is on the record and the Chancellor has no power to take further evidence.
The Chancellor is autho rised to take a decision and he must take it on the avail able records since the Executive Council has not taken a decision on the recommendation of the Selection Committee.
The decision of the Chancellor in the exercise of this Statutory function does not, in our opinion, expressly or impliedly require the application of the principles of natural justice.
See also the observations of K.N. Singh, J., in R.S. Dass vs Union of India, at 633.
It has been argued that the order of the Chancellor becomes final and binding which is one of the features of judicial power.
It is true that the conclusiveness of the decision without the need for confirmation or adoption by any other authority is generally regarded as one of the features of judicial power.
But it must be added that the order made by a statutory authority even it is given finali ty does not thereby acquire judicial quality if no other characteristic of judicial power is present.
Power to make orders that are binding and conclusive is not, by itself a decisive factor to hold that the power is judicial.
Prof. De Smith makes a similar point in his book 'Judicial Review of Administrative Action ' (4th Edition p. 82).
Taking all these factors into consideration, we would sum up our opinion m this way.
The power of the Chancellor under Section 31(8)(a) is purely of administrative character and is not in the nature of judicial or quasi judicial power.
No judicial or quasi judicial duty is imposed on the Chancellor and any reference to judicial duty, seems to be irrelevant in the exercise of his function.
The function of the Chancellor is to consider and direct appointment of a candidate on the basis of the relative performance assessed by the Expert Selection Committee and in the light of the opinion, if any, expressed by the Executive Council.
His decision nonetheless is a decision on the recommendation of the Selection Committee.
Such a power cannot be considered as a quasi judicial power.
And we see nothing in that to justify our thinking 102 that it must conform to the principles of natural justice.
The contention urged to the contrary is, therefore, unac ceptable to us.
We also do not agree with the contrary view taken by the High Court in the Full Bench decision in L.N. Mathur, case (supra).
The Chancellor, however, has to not properly for the purpose for which the power is conferred.
He must take a decision in accordance with the provisions of the Act and the Statutes.
He must not be guided by extraneous or irrele vant consideration.
He must not act illegally, irrationally or arbitrarily.
Any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitu tion.
As stated in E.P. Royappa vs State of Tamil Nadu & Anr., ; "equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch".
The principle of equality enshrined in Article 14 must guide every state action, whether it be legislative executive, or quasijudicial.
See Mrs. Maneka Gandhi vs Union of India & Anr., [1978] 1 SCC 248 at 283 84; Ajay Hasia & Ors.
vs Khalid Mujib Sehravardi & Ors., ; at 740 41 and Som Raj & Ors.
vs State of Haryana, JT 1990 1SC 286 at 290.
The order of the Chancellor impugned in this case indi cates very clearly that he has considered the recommendation of the Selection Committee and the opinion expressed by the Executive Council.
He has stated and in our opinion, very rightly that the appellant possesses the prescribed qualifi cation for appointment as Reader.
The decision of the Chan cellor gets support from the Statute 11.01 of the First Statute.
The Statute 11.01 is in these terms: "11.01.
(1) In the case of the Faculties of Arts, Commerce and Science, the following shall be the minimum qualifica tions for the post of Lecturer in the University, namely (a) a Doctorate in the subject of study concerned or a published work of a high standard in that subject; and (b) Consistently good academic record (that is to say, the overall record of all assessment throughout the academic career of a candidate), with first class of high second class (that is to say, with an aggregate of more than 54% marks Master 's Degree in the subject concerned or equivalent Degree of a foreign University in such subject .) 103 (2) Where the selection committee is of the opinion that the research work of a candidate, as evidenced either by his thesis or by his published work, is of a very high standard, it may relax any of the qualifications specified in sub:clause of clause (1).
" The minimum qualification prescribed for the post is a Doctorate in the subject of study concerned or a published work of high standard in the subject.
The appellant then was found to have an alternate qualification though not a Doc torate in the subject.
The Selection Committee has accepted the alternate qualification as sufficient and did not relax the essential qualification prescribed for the post.
The Executive Council appears to have committed an error in stating that the appellant has lacked the essential qualifi cation and the Selection Committee has relaxed the essential qualification.
The Chancellor was, therefore, justified in rejecting the opinion of the Executive Council.
It is not unimportant to point out that in matters of appointment in the academic field the Court generally does not interfere.
In the University of Mysore & Ant.
C.D. Govind Rao, , this Court observed that the Courts should be slow to interfere with the opinion ex pressed by the experts in the absence of mala fide alleged 2against the experts.
When appointments based on recommenda tions of experts nominated by the Universities, the High Court has got only to see whether the appointment had con travened any statutory or binding rule or ordinance.
The High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which the Chancellor has acted.
See also the decisions in Dr. J.P. Kulshreshtha & Ors.
vs Chancellor, Allahabad University, Raj Bhavan & Ors., ; at 912 and Dalpat Abasahed Solunke vs
B.S. Mahajan, at 309 310.
In the result, tile appeals are allowed, the judgment of the High Court is set aside.
We also set aside the conse quential order dated June 16, 1989 made by the Registrar of the University reverting the appellant to her substantive post of Lecturer in Psychology.
Needless to state that her original appointment as Reader pursuant to the decision of the Chancellor shall remain undisturbed with all the conse quential benefits.
In the circumstances of the case, however, we make no order as to costs.
T.N.A. Appeals allowed.
| IN-Abs | The appellant and the respondents applied for the post of Reader in Psychology in Lucknow University.
Under the University Statute, the minimum qualification for the post was a Doctorate degree or a published work of high standard in the subject.
The respondents possessed Ph.D. degree, while the appellant 's thesis was nearing completion.
On the basis of her experience, performance at the interview and published work, which was found to be of high standard on the subject, the Selection Committee recommended the appellant 's appointment by grading her No. 1. 85 By a split of the majority, the Executive Council disa greed with the recommendation of the Selection Committee on the ground that the appellant did not possess the essential qualification for the post of Reader and it preferred the appointment of respondent No. 2.
In view of the Council 's disagreement, the matter was referred to the Chancellor for his decision under Section 31(8)(a) of the U.P. State Universities Act, 1973.
The Chancellor rejected the opinion of Executive Council and accepted the recommendations of the Selection Committee and directed that the appellant should be appointed as a Reader.
Respondent No. 1 challenged the Chancellor 's order by filing a writ petition in the High Court, which following its earlier Full Bench decision wherein it was held that the Chancellor must explicitly state the reasons for his deci sion and was enjoined by the Act to act quasijudicially quashed the Chancellor 's order with a direction to reconsid er the matter.
In the appeal to this Court on the question of the nature of the Chancellor 's power under Section 31(8)(a) of the U.P. State Universities Act, 1973: Allowing the appeal and setting aside the order of the High Court, this Court, HELD: 1.
Three authorities are involved in the Selection of University teachers ' (i) Selection Committee, (ii) Execu tive Council and (iii) The Chancellor.
The Selection Commit tee for appointment of University teachers is a recommenda tory body the composition of which has been prescribed under section 31(4)(a).
The Executive Council is the principle executive body of the University.
Subject to the provisions of the Act, it has power to appoint officers, teachers and other employees of the University.
Section 31(8)(a) seems to suggest that if the Executive Council wants to agree with the recommendation and appoint candidates in the order of merits, no reasons are to be given.
But if it wants to disagree with the recommendations made by the Selection Committee, it must give reasons for disagreement.
It has however, no power to override the recommendation and appoint a candidate of its own choice.
It may disagree, but should give reasons for disagreement and refer the matter under section 31(8)(a) to the Chancellor.
Then the decision of the Chancellor shall be binding on the Executive Council.
The Chancellor is not an appellate authority in matters of appointment.
His decision is called for when the Executive Council disagree with the recommendation of the Selection Committee.
What is referred to him 86 under section 31(8)(a) of the Act, is therefore, not a dispute between the Selection Committee and the Executive Council on any issue.
Nor it is a dispute between two rival candidates on any controversy.
It is indeed a decision with regard to appointment of a particular person or persons in the light of the recommendation and opinion if any, of the two statutory authorities.
[94H; 95A, IL F G; 99F H] 1.1 The power of the Chancellor under Section 31(8)(a) is purely of administrative character and is not in the nature of judicial or quasijudicial power.
No judicial or quasi judicial duty is imposed on the Chancellor and any reference to judicial duty, seems to be irrelevant in the exercise of his function.
Such a power cannot be considered as quasi judicial power.
[101 F H] L.N. Malhur vs The Chancellor, Lucknow University, Lucknow & Ors., ; Dr. U.N. Roy vs
G.D Tapase, [1981] UPLBEC, 309, disapproved.
Section 31 confers no right to make representation to the Executive Council or to the Chancellor against the recommendation of the Selection Committee.
There is no provision in the Section for hearing any candidate or the Executive Council.
There is also no provision for receiving evidence.
The decision of the Chancellor in the exercise of this statutory function does not expressly or impliedly require the application of the principle of natural justice.
[ I 01 B 1)] Dr. G. Sarana vs University of Lucknow and Ors., ; ; held inapplicable.
R.S. Dass vs Union of India.
[1966] (Supp.) SCC 617; re ferred to.
2.1 The Chancellor, however, has to act properly for the purpose for which the power is conferred.
He must take a decision in accordance with the provisions of the Act and the Statutes.
He must not be guided by extraneous or irrele vant consideration.
He must not act illegally, irrationally or arbitrarily.
Any such illegal.
irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitu tion.
[102B C] 2.2 The order of the Chancellor impugned in this case indicates very clearly that he has considered the recommen dation of the question Committee and the opinion expressed by the Executive Council.
The 87 minimum qualification prescribed for the post is a Doctorate in the subject of study concerned or a published work of high standard in the subject.
The appellant was found to have an alternate qualification though not a Doctorate in the subject.
The Selection Committee has accepted the alter nate qualification as sufficient and did not relax the essential qualification prescribed for the post.
The Execu tive Council appears to have committed an error in stating that the appellant has lacked the essential qualification and the Selection Committee has relaxed the essential quali fication.
The Chancellor was, therefore, justified in re jecting the opinion of the Executive Council.
His decision gets support from the Statute I 1.01 of the First Statute of the Lucknow University.
Accordingly the judgment of the High Court and the consequential order made by the Registrar of the University reverting the appellant to her substantive post of Lecturer are set aside.
Her original appointment as Reader pursuant to the decision of the Chancellor shall remain undisturbed with all consequential benefits.
[102E, 103B C, G] 3.
An administrative function is called quasi judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice.
Where there is no such obligation, the decision is called 'purely administrative ' and there is no third category.
197G H] Ridge vs Baldwin, ; ; G. Nageshwara Rao vs Andhra Pradesh State Transport Corporation, ; Administrative Law by H.W.R. Wade 6th Ed.
p. 46 47, referred to.
3.1 The conclusiveness of the decision without the need for confirmation or adoption by any other authority is generally regarded as one of the features of judicial power.
But the order made by a statutory authority even it is given finality does not thereby acquire judicial quality if no other characteristic of judicial power is present.
Power to make orders that are binding and conclusive is not, by itself a decisive factor to hold that the power is judicial.
[101 E F] Prof. Desmith, 'Judicial Review of Administrative Ac tion ' 4th Ed., p. 82; referred to.
3.2 An administrative order which involves civil conse quences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem.
The person concerned must be informed of the case against him and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken.
[98G H] 88 State of Orissa vs Dr. Binapani Dei & Ors., ; ; Ridge vs Baldwin, ; ; referred to.
3.3 So far as the administrative officers are concerned, the duty is not so much to act judicially as to act fairly.
For this concept of fairness, adjudicative settings are not necessary, nor it is necessary to have lis inter parties.
There need not be any struggle between two opposing parties giving rise to a 'lis '.
There need not be resolution of lis inter parties.
The duty to act judically or to act fairly may arise in widely different circumstances.
It may arise expressly or impliedly depending upon the context and con siderations.
All these types of non adjudicative administra tive decision making are now covered under the general rubric of fairness in the administration.
But then.even such an administrative decision unless it affects one 's personal rights or one 's property rights, or the loss of or prejudi cially affects something which would juridically be called atleast a privilege does not involve the duty to act fairly consistance with the rules of natural justice.
[99A E] Keshva Mills Co. Ltd. vs Union of India, ; ; Mohinder Singh Gill vs Chief Election Commissioner. ; ; Swadeshi Cotton Mills vs Union of India, ; Management of M/s M.S. Nally Bharat Engi neering Co. Ltd. vs The State of Bihar & Ors., Civil Appeal No. 1102 of 1990 decided on 9.2.1990; ' referred to.
In matters of appointment in the academic field the Court generally does not interfere.
The Courts should be slow to interfere with the opinion expressed by the experts in the absence of mala fide alleged against the experts.
When appointments are based on recommendations of experts nominated by the Universities, the High Court has got only to see whether the appointment had contravened any statutory or binding rule or ordinance.
The High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which the Chancellor has acted.
[103D E] University of Mysore & Anr.
C.D. Govinda Rao, ; Dr. J.B. Kulshreshtha & Ors.
vs Chancellor, Allahabad University, Raj Bhavan & Ors.
, ; ; Dalpat Abasaheb Soluke vs
B.S. Mahajan, ; followed.
The principle of equality enshrined in Article 14 must guide every state action, whether it be legislative, executive or quasi judicial.
[102C D] 89 E.P. Royappa vs State of Tamil Nadu & Anr., ; ; Mrs. Maneka Gandhi vs Union of India & Ant., [1978] 1 SCC 248; Ajay Hasia & Ors.
vs Khalid Mujib Sehravardi & Ors., [1981] I SCC 722; Som Raj & Ors.
vs State Of Haryana, JT ; referred 5.1 In matters relating to public employment whether by promotion or direct recruitment, only requirement to be complied with is the mandate of Articles 14 and 16 of the Constitution.
There shall be equality of opportunity and no discrimination only on ground of religion, race, caste, sex, dissent, place of birth or residence or any of them.
The eligible candidate has a right to have his case considered in accordance with law.
[100F]
|
Special Leave Petition (Civil) No. 14395 of 1989.
From the Judgment and Order dated 18.7.1989 of the Bombay High Court in W.P. No. 6108 of 1987.
V.N. Ganpule for the Petitioners.
P. Chidambram, Mrs. Raian Karaniawala, N.H. Seerbai, Karanjawala and Ravinder Kumar for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
The petitioners seek leave to appeal against the decision of the Bombay High Court in Writ Petition No. 6108/87 quashing the proceedings for recovery of property tax and other expenses due from the first re spondent company.
The matter arises in this way: For the purpose of pre vention and revival of sick industries, the Central Govern ment has enacted the Act called "The Sick Industrial Compa nies (Special Provisions) Act, 1985 968 ( 'The Act ').
The Act extends to the whole of India including the State of Jammu & Kashmir.
It came into force (except sections 15 to 34) with effect from 15 May 1987.
The Act covers only sick industrial companies or industrial compa nies which have the potential to become sick.
The Act empow ers the Central Government to establish a Board to be known as the Board for Industrial & Financial Reconstruction to exercise the jurisdiction and powers, and discharge the functions and duties imposed under the Act.
The first respondent company M/s Shree Vallabh Glass Works Ltd. has been declared to be a sick industrial company within the meaning of clause (0) of sub section (1) of Section 3 of the Act. 'Sick Industrial Company ' "means an industrial company being a company registered for not less than seven years which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth and has also suffered cash losses in such financial year and the financial year immediately preceding such financial year.
" The first petitioner is the Gram Panchayat, Salwad and second petitioner is the Chairman of the Gram Panchayat.
The petitioners initiated coercive proceedings under Section 129 of the Bombay Village Panchayat Act to recover a sum of Rs.9,47,539 stated to be the property tax and other amounts due from the company.
Challenging that proceedings, the Company moved the High Court by way of Writ Petition under Article 226 of the Constitution claiming protection provided under Section 22 of the Act.
The High Court has accepted the writ petition and restrained the petitioners from recovering the said amount without the consent of the Board.
The question is whether the Panchayat could not recover the amount due to it from out of the properties of the sick industrial company without the consent of the Board? Section 22 provides, as far as material, as follows: "Section 22 Suspension of Legal Proceedings, contracts, etc (1) Where in respect of an industrial company, an inquiry under Section 16 is pending or any scheme referred to under Section 17 is under preparation or consideration or a sanc tioned scheme is under implementation or where an appeal under Section 25 relating to an industrial company 969 is pending, then, notwithstanding anything contained in the , or any other law or the memorandum and articles of association of the Industrial Company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority.
22(2) to 22(4) xxx xxx xxx 22(5) In computing the period of limitation for the enforce ment of any right, privilege, obligation or liability, the period during which it or the remedy for the enforcement thereof remains suspended under this section shall be ex cluded.
" Section 22(1) provides that in case the enquiry under Section 16 is pending or any scheme referred to under Sec tion 17 is under preparation or consideration by the Board or any appeal under Section 25 is pending then certain proceedings against the sick industrial company are to be suspended or presumed to be suspended. 'The nature of the proceedings which are automatically suspended are: (1) Winding up of the industrial company, (2) Proceedings for execution, distress or the like against the properties of sick industrial company, and (3) Proceedings for the ap pointment of receiver.
The proceedings in respect of these matters could, however, be continued against the sick indus trial company with the consent or approval of the Board or of the Appellate Authority as the case may be.
Section 16 authorises the Board to make such enquiry as it may deem fit for determining whether any industrial company has become a sick industrial company.
Where Board is satisfied that a company has become a sick industrial compa ny, it could give a reasonable time to the company to make its net worth positive (Sec.
17(2)).
Where it is not prac ticable for sick industrial company to make its net worth positive within a reasonable time, Section 17(3) steps in authorising the Board to direct any operating agency to prepare a scheme in relation to the company.
The Board may specify the various measures to be considered by the operat ing agency.
These measures are detailed out in Section 18.
The operating agency has to prepare a scheme as per the order specified by the Board.
970 In the instant case, the Board by order dated 27 August 1987 has stated that it was satisfied that the company has become a sick industrial company.
The Board directed that further proceedings under the Act shall be taken with re spect to the company.
On the same day the Board after having heard the representatives of the ICICI, the company, the concerned Banks, the other public financial institutions and the State Government of Gujarat, considered the entire material on record, held that it was not practicable for the company to make its net worth positive within a reasonable time and that further proceedings under sub section (3) of Section 17 of the Act are, therefore, to be taken.
Accord ingly, in exercise of the powers conferred under Section 17(3) of the Act, the Board appointed the ICICI as the operating agency to prepare a scheme for rehabilitation/revival of the company keeping in view of the provisions of Sections 18 and 19 and the guidelines.
At the same time the Board appointed Shri Y.V. Sivaramakrishnayya as the special director of the company for safeguarding its financial andother interests.
In the light of the steps taken by the Board under Sections 16 and 17 of the Act, no proceedings for execution, distress or the like proceedings against any of the proper ties of the company shall lie or be proceeded further except with the consent of the Board.
Indeed, there would be auto matic suspension of such proceedings against.
the company 's properties.
As soon as the inquiry under Section 16 is ordered by the Board, the various proceedings set out under sub section (1) of Section 22 would be deemed to have been suspended.
It may be against the principles of equity if the credi tors are not allowed to recover their dues from the company, but such creditors may approach the Board for permission to proceed against the company for the recovery of their dues/outstandings/overdues or arrears by whatever name it is called.
The Board at its discretion may accord its approval for proceeding against the company.
If the approval is not granted, the remedy is not extinguished.
It is only post poned.
Subsection (5) of Section 22 provides for exclusion of the period during which the remedy is suspended while computing the period of limitation for recovering the dues.
In our opinion, the High Court was justified in quashing the recovery proceedings taken against the properties of the company and we accordingly, reject this petition, with no order as to costs.
P.S.S. Petition dismissed.
| IN-Abs | Section 16 of the authorises the Board for Industrial and Financial Reconstruction established under the Act to make enquiry for determining whether any industrial company has become a sick industrial company.
Section 17(2) empowers the Board to grant a reasonable time to such a company to make its net worth positive.
Where such a course is not practicable section 17(3) empowers the Board to appoint an oper ating agency to prepare a scheme for rehabilitation/revival of the company.
Section 22(1) provides that in case the enquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration by the Board or any appeal under section 25 is pending, then proceedings for winding up, execution, distress or the like are to be suspended or presumed to be suspended.
The proceedings in respect of these matters could, however, be continued with the consent of the Board or of the appellate authority as the case may be.
Section 22(5) provides for exclusion of the period during which the remedy remains suspended, in comput ing the period of limitation for enforcement of the right.
The respondent company had been declared by the Board to be a sick industrial company under section 16 of the Act and an operating agency had been appointed under section 17(3) to pre pare a scheme for rehabilitation/revival of the company.
The respondent company owed a large sum to the petition er Panchayat on account of property tax and other dues.
When the petitioners initiated coercive proceedings to recover that amount the company moved the High Court by way of a writ petition under Article 226 of the Act.
The High Court restrained the petitioners from recovering the said amount without the consent of the Board.
Dismissing the special leave petition, the Court, 967 HELD: The High Court was justified in quashing the recovery proceedings taken against the properties of the company.
[970G H] The Board by order dated 27 August, 1987 had stated that it was satisfied that the company had become a sick indus trial company and directed that further proceedings under .the
Act shall be taken.
By another order made on the same day under section 17(2) the Board had found that it was not practicable for the company to make its net worth positive within a reasonable time and had proceeded to take action under section 17(3) and appointed the ICICI as the operating agency to prepare a scheme for rehabilitation/revival of the company.
In view of these steps taken by the Board under sections 16 and 17 of the Act, no proceedings for execution, distress or the like against any of the properties of the industrial company shall lie or be proceeded with further by virtue of section 22(1) except with the consent of the Board.
[970A D] The Board at its discretion may accord approval.
If the approval is not granted the remedy is not extinguished.
It is only postponed.
Sub section (5) of section 22 provides for exclusion of the period during which the remedy is suspended while computing the period of limitation for recovering the dues.
[970F G]
|
ivil Appeals Nos.
3222 3241 of 1988.
From the Judgment and Order dated 5.2.1981 of the Madras High Court in W.P. Nos.
59 18, 67 12, 7495, 7496, 7591, 8623, 8624 and 9088 of 1982, 502, 503, 1336, 2433, 3460, 3596, 3846, 6797, 8859, 104 18, 104 19 of 1983 and 5888 of 1984.
V. Krishnamurthy for the Appellants.
P. Chidambaram, A.S. Nambiar, Smt.
Shanta Vasudevan, P.K. Manohar, M.N. Krishnamani, Sunder Rao, Diwan Balak Ram, C.S. Vaidyanathan, S.R. Setia and K.V. Mohan for the Re spondents.
35 The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
The Tamil Nadu Government passed an Act called the Tamil Nadu Industrial Establish ments (Conferment of Permanent Status to Workmen) Act, 1981 ("The Act") which came into force on 1st January, 1982.
The Act was to confer permanent status to workmen in various industrial establishments who have put in continuous service for a period of 480 days in a period of 24 calendar months in an industrial establishment.
Section 3 is a crucial provision in the Act.
It reads as under: "Sec. 3.
Conferment of permanent status to workmen (1) Notwithstanding anything contained in any law for the time being in force every workman who is in continuous service for a period of four hundred and eighty days in a period of twenty four calendar months in an industrial establishment shall be made permanent.
(2) A workman shall be said to be in continuous service for a period if he is, for that period, in uninter rupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike, which is not illegal, or a lockout or on account of non employment or discharge of such workman for a period which does not exceed three months and during which period a substitute has been employed in his place by the employer, or a cessation of work which is not due to any fault on the part of the workman.
Explanation For the purposes of this section the number of days on which a workman has worked in an industri al establishment shall include the days on which (i) he has been laid off under an agreement or as permitted by standing orders made under the (Central Act XX of 1946) or under any other laws applicable to the industrial establish ment; (ii) he has been on leave with full wages, earned in the previous years; 36 (iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employ ment; and (iv) in the case of a female, she has been on maternity leave, so, however, that the total period of such maternity leave does not exceed twelve weeks." ' The constitutional validity of the Act was challenged in a batch of writ petitions by various industrial establish ments before the High Court of Madras.
The High Court has allowed the writ petitions in part holding, inter alia, as follows: "The Explanation to section 3 is incapable of enforcement and must therefore be held to be redundant.
(2) The provisions of Section 3(2) of the Act are valid except that the 'clause or on account of non employment or discharge of such workman for a period which does not exceed three months and during which period a substitute has been employed in his place by the employer ' is void on the ground that it amounts to an unreasonable restriction on the right of the employer.
(3) An apprentice or a badli worker could not be included in the 'workman ' referred to in section 3(1) and (2) of the Act, and they will, therefore, be not entitled to the bene fit of section 3.
(4) The Act will not supersede a settlement between the workers and the employer in so far as it deals with the subject of conferment of permanent status to workman.
(5) The Act cannot be held to be retrospective in character.
" On 7th July 1985, the State of Tamil Nadu preferred this appeal challenging the judgment of the High Court.
During the pendency of the appeal, the State also amended the principal Act in order to obviate the practical difficulties in implementing the provisions of the Act by reason of the judgment of the High Court.
The relevant portion of the Amending Act 44 of 1985 reads as under: 37 "2.
Amendment of section 3, Tamil Nadu Act 46 of 1981 In section 3 of the Tamil Nadu industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu Act 46 of 1981) (hereinafter referred to as the princi pal Act) (1) in the Explanation, for the opening portion beginning with the words "for the purposes of this section" and ending with the words "include the days on which", the following shall be substituted, namely "For the purposes of computing the continuous service re ferred to in sub sections (1) and (2), a workman shall be deemed to be in continuous service during the days on which "; (2) the Explanation shall be numbered as Explanation I and after Explanation I as so numbered, the following Explana tion shah be added, namely: "Explanation II For the purposes of this section, 'law ' includes any award, agreement, settlement, instrument or contract of service whether made before or after the com mencement of this Act.
The Amending Act also contains provision for validation in the following terms: "3.
Validation Notwithstanding anything contained in any judgment, decree or order of any court or other authority, all acts done or proceedings taken in pursuance of section 3 (including the Explanation) of the principal Act at any time on or after the 1st day of January 1982 and before the date of publication of this Act in the Tamil Nadu Government Gazette in relation to every workman in an industrial estab lishment for the purpose of conferment of permanent status to such workman by any officer or authority shall, for all purposes, be deemed to be, and to have always been, validly done or taken in accordance with law as if section 3 of the principal Act as amended by this Act had been in force at all material times when such acts or proceedings were done or taken".
38 Mr. Chidambaram learned counsel for the respondents argued that the Legislature while amending the principal Act with retrospective effect and also validating the acts done and proceedings taken under the principal Act appears to have accepted the judgment of the High Court so far as it relates to the offending portion in sub section (2) of section 3, since no different meaning has been given to that portion from the one asserted by the High Court.
But counsel for the appellant argued that the view taken by the High Court as to the scope of sub section (2) of section 3 has to be determined notwithstanding the foregoing amendments.
He claimed that non employment or discharge of any workman for a period which does not exceed three months, and during which period a substitute has been employed in his place by the employer was intended to cover such cases where the employer deliberately discharges a workman in order to effect a break in service and again re employs him as a fresh candidate without continuity of service.
We may first examine whether there is legislative ap proval of the High Court decision to the extent indicated by Mr. Chidambaram for the respondent.
The Statement of Objects and Reasons accompanying the Amending Act 44 of 1985 reads as follows: "STATEMENT TO OBJECTS AND REASONS The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu Act 46 of 1981) has been enacted with a view to provide for the con ferment of permanent status to workmen in the industrial establishments in the State of Tamil Nadu.
The judgment of the Madras High Court rendered in a batch of Writ Petitions (Nellai Cotton Mills Ltd. Tirunelveli vs State of Tamil Nadu, (Writ Petition No. 5910 of 1982 etc.) had given rise to certain practical difficulties in implementing the provi sions of the said Act.
It has, therefore, been decided to amend section 3 of the said Act to remove the difficulties caused by the said judgment and confer the intended benefits on workmen.
The Bill seeks to achieve the above object.
" When the Act has been judicially interpreted, Courts may study the _subsequent action or inaction of the legislature for clues as to legislative approval or disapproval of judicial interpretation.
After the statute has been judi cially interpreted in a certain way and if the legislature by taking note of the judgment amended the statute appro 39 priately so as to give it a different meaning from the one asserted by the courts, or not giving any different meaning from the view taken by the court, it may be argued with some justification that the legislature has expressly or by implication ratified the judicial interpretation.
In the instant case, the legislature has expressly taken note of the High Court verdict and removed the practical difficul ties caused thereby in implementing the provisions of the Act, by appropriate amendments.
No provision, however, was inserted to re write and validate the portion which was struck down by the High Court.
It could therefore, be rea sonably held that the legislature has accepted the judgment of the High Court to the extent indicated.
That apart, the view taken by the High Court, in strik ing down a portion of sub section (2), in our opinion, cannot be found fault with.
Sub section (2) of section 3 consists of three parts.
The first part refers to interrup tion of service including service which may be interruption on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout.
The second part Consists of the portion which has been struck down by the High Court as unreasonable restriction on the right of the employer.
The third part refers to cessation of work which is not due to any fault on the part of the workmen.
The provisions under the first and the third parts seem to be similar to the terms of section 25B of the Industrial Dis putes Act which also provides for continuous service of the workman.
The second part dealing with non employment and discharge of a workman is distinct from the first and the third parts.
It refers to the period during which there is no subsisting relationship of master and servant.
We agree with the High Court that the word 'non employment ' would include retrenchment as well and a person whose services have been terminated or discharged albeit illegal cannot at all be said to be a person in service.
much less in continu ous service.
Therefore, the period of non employment or the period after discharge cannot be counted for the purpose of giving continuity of service.
If the discharge is set aside and workman is reinstated by process known to law the work man automatically gets continuity of service.
No special provision is necessary for such purposes.
In any view of the matter we cannot therefore, accept this appeal and is accordingly dismissed.
In the circumstances of the case, however, we make no order as to costs.
G.N. Appeal dismissed.
| IN-Abs | In order to confer permanent status to workmen in var ious industrial establishments, who have put in a continuous service for a period of 480 days in a period of 24 calendar months, the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 was passed by the State Government.
The constitutional validity of the Act was challenged before the High Court by various industrial establishments by way of writ petitions.
The High Court allowed the writ petitions in part, striking down some portions of section 3 of the Act.
The State Government preferred appeals against the judgment of the High Court.
Meanwhile, the Appellant State amended the Act in the light of the High Court 's judgment.
On behalf of the appellant, it was contended that the view taken by the High Court as to the scope of section 3(2) has to be determined notwithstanding the,amendments made.
The contention of the respondents was that the legisla ture while amending the Act with retrospective effect has accepted the judgment of the High Court, since the amendment has not given a different meaning to section 3(2) from the one asserted by the High Court.
Dismissing the appeals, this Court, HELD: 1.
When an Act has been judicially interpreted, Courts 34 may study the subsequent action or inaction of the legisla ture for clues as to legislative approval or disapproval of the judicial interpretation.
After the statute has been judicially interpreted in a certain way and if the legisla ture by taking note of the judgment amended the statute appropriately so as to give it a different meaning from the one asserted by the Courts, or not giving any different meaning from the view taken by the Court, it may be argued with some justification that the legislature has expressly or by implication ratified the judicial interpretation.
[38G H; 39A] 2.
In the instant case, the legislature has expressly taken note of the High Court verdict and removed the practi cal difficulties caused thereby in implementing the provi sions of the Act, by appropriate amendments.
No provision, however, was inserted to re write and validate the portion which was struck down by the High Court.
It could, there fore, be reasonably held that the legislature has accepted the judgment of the High Court to the extent indicated.
[39A B] 3.
The view taken by the High Court in striking down a portion of sub section 2 of section 3 of the Act cannot be found fault with.
The word 'non employment ' would include retrenchment as well and a person whose services have been terminated or discharged albeit illegal cannot at all be said to be a person in service, much less in continuous service.
Therefore, the period of non employment or the period after discharge cannot be accounted for the purpose of giving continuity of service.
If the discharge is set aside and workmen is reinstated by process known to law the workman automatically gets continuity of service.
No special provision is necessary for such purposes.
[39C; E F]
|
Criminal Appeal No. 449 of 1989. 'From the Judgment and Order dated 7.12.1988 of the Delhi High 66 Court in Cr. Rev. No. 170 of 1987.
WITH Special Leave Petition (Crl.) No. 55 of 1988.
From the Judgment and Order dated 7.12.
1988 of the Delhi High Court in Crl.
(M) No. 1451 of 1987.
A.K. Sen, Kapil Sibal, Anil Dev Singh, Harlinder Singh, R.N. Joshi, Ms. Kamini Jaiswal (NP), Mrs. Sushma Suri, A.K. Srivastava and S.C. Agarwala for the appearing parties.
The Judgment of the Court was delivered by AHMADI, J.
Are the officers of the Department of Revenue Intelligence (DRI) who have been invested with the powers of an officer in charge of a police station under Section 53 of Narcotic Drugs & Psychotropic Substances Act, 1985 (herein after called 'the Act '), "police officers" within the mean ing of Section 25 of the Evidence Act? If yes, is a confes sional statement recorded by such officer in the course of investigation of a person accused of an offence under the said Act, admissible in evidence as against him? These are the questions which we are called upon to answer in these appeals by special leave.
These are the facts, briefly stated.
A motor truck DEL 3 124 was intercepted on July 12, 1986 near Calcutta by the DRI officials.
On search a large quantity of hashish weigh ing about 743 Kgs.
found concealed in machines loaded in the said truck was recovered.
The machinery was meant to be exported to Saudi Arabia and the United Kingdom by M/s. Northern Exports (Importers, Exporters and Commission Agents) and M/s. Modern Machinery and Instruments, both of New Delhi.
After the hashish was found hidden in the ma chines loaded in the said vehicle, the same was attached under a seizure memo.
Joginder Singh and Shivraj Singh, the drivers of the vehicle, were apprehended on the spot by the DRI officials.
The disclosure made by these two drivers led to the search of a Farm House at Khasra No.417, Gadaipur, Mehrauli, New Delhi on the 13th/14th and 15th of July, 1986.
In the course of the said search hashish weighing about 976 Kgs. was recovered from the machines lying in the said premises and a further quantity of 365 Kgs.
was recovered from Gunny bags which were secreted underground in the 67 out house of the Farm House.
The DRI officials learnt in the course of investigation that the said hashish was to be exported through M/s. Lee Muirhead (I) Ltd., and M/s. Shiekh and Pandit, of Calcutta.
Mohan Lal Pandit and Tushar Pandit, the partners of the said two firms, respectively, were arrested.
One Subhash Narang who was arrested by the DRI officials implicated the appellant Kitpal Mohan Virmani.
In the course of investigation the name of the other appellant Raj Kumar Karwal also surfaced.
Both these persons made confessional statements to the DRI officials in the course of investigation.
On the conclusion of the investigation a complaint was lodged against the said two persons under Sections 21, 23, 29 and 30 of the Act and Section 135A of the .
The appellants now stand committed to the Court of Sessions for trial.
On the appellants applying for enlarge ment on bail under Section 439 of the Code of Criminal Procedure, 1973 ( 'the Code ' hereinafter), the self incrimi nating statements made by the appellants to the DRI offi cials were used against them by the prosecution to establish a prima facie case and to prevent their enlargement on bail.
The appellants argued that the said statements were not admissible in evidence in view of Section 25 of the Evidence Act which provides that no confession made to a police officer shall be proved as against a person accused of any offence.
The question which arose for consideration was whether DRI officials invested with powers under Section 53 of the Act could be said to be "police officers" within the meaning of Section 25, Evidence Act, so as to place the confessional statements recorded by them beyond the reach of the prosecution.
The learned Single Judge of the Delhi High Court before whom the bail applications came up for hearing felt that the question of admissibility of the confessional statement was of vital and far reaching importance and since it was likely to ' arise in a number of such cases it was desirable that it be answered by a larger bench.
According ly, the question was referred to a Division Bench which concluded that the officials of the DRI invested with powers under Section 53 of the Act do not possess any of the at tributes of an officer in charge of a police station con ducting an investigation under Chapter XII of the Code.
The High Court held that a confessional or self incriminating statement made by a person accused of having committed a crime under the Act to an officer invested with the power of investigation under Section 53 of the Act was not hit by Section 25 of the Evidence Act.
After so answering the question, the learned Judges constituting the Division Bench sent back the matter for disposal in accordance with law to the learned Single Judge.
It is against this conclusion reached by the Division Bench of the High Court that the appellants are before us.
68 Section 25 of the Evidence Act reads as under: "No confession made to a police officer shall be proved as against a person accused of any offence." (Emphasis supplied).
Thus a confession made to a police officer cannot be used or tendered in evidence as against a person accused of any offence.
Section 26 next provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shah be proved as against such person.
Section 27, which is in the nature of an exception to Sections 25 and 26, pro vides that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
The restriction on admissibility of a confession of an accused person imposed by Sections 25 and 26 of the Evidence Act, when made to a police officer and not in the immediate presence of a Magistrate, is as a matter of public policy designed to prevent the practice of securing confes sional statements of persons in police custody by means of threats, inducements, torture, coercion, etc.
what impelled the introduction of this provision was the overwhelming evidence which disclosed that the powers vested in the police under the Code were often misused and abused by police officers investigating crimes for extorting a confes sional statement from the accused with a view to earning credit for the prompt solution of the crime and/or to secure himself against allegations of supineness or neglect of duty.
It was also realised that once a police officer suc ceeds in extorting a confession from the person accused of the commission of the crime by threats, inducements, etc.
, the real offender becomes more or less immune from arrest.
Therefore, the purpose of the restriction under Section 25 of the Evidence Act, is broadly speaking, two fold, namely, (i) to protect the person accused of a crime from third degree treatment and, more importantly, (ii) to ensure a proper and scientific investigation of the crime with a view to bringing the real culprit to book.
It was, therefore, argued by the counsel for the appel lants that the expression "police officer" used in Section 25 must not be read in the narrow sense of only those offi cers belonging to the regular police force but must be construed broadly to include all those who have been invest ed with powers of the police in the matter of investigation of a 69 penal offence.
Since Section 25 engrafts a rule of public policy and is designed to protect a person accused of com mission of a crime from third degree treatment or induce ments or fraud, counsel argued, confessional statements obtained by such officers exercising police powers, though not belonging to regular police force, should also be ex cluded from being tendered in evidence against such an accused person.
Counsel submitted that since the officers referred to in Section 53 have been invested with all the powers of an officer in charge of a police station for investigation of offences under the Act, they have all the attributes of a police officer investigating a crime under Chapter XII of the Code and would, therefore, fall within the expression "police officer" in Section 25 of the Evi dence Act.
To buttress this submission our attention was invited to Section 2 (xxix) of the Act which says that words and expressions used in the Act but not: defined will have the same meaning as is assigned to them in the Code.
Since the word 'investigation ' is not defined in the Act, counsel submitted, that we must look to Section 2(h) of the Code which defines the said expression to include all proceedings under the Code for the collection of evidence conducted by a police officer.
Section 4(2) of the Code next provides that all offences under any other law, i.e., other than the Indian Penal Code, shall be investigated, inquired into, tried, and otherwise dealt with according to the same provi sions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such of fences.
It was argued that since the Act does not regulate the manner of investigation, the investigation must be made in accordance with the provisions in that behalf contained in Chapter XII of the Code; it must, therefore, be assumed that the officer investigating the crime under the Act is a "police officer", properly so called, and any confessional statement made to such an officer must be rendered inadmis sible in evidence when the maker thereof is accused of having committed an offence.
To appreciate the submissions made by counsel for the appellants it is necessary to under stand the scheme of the Act.
We may at once examine the scheme of the Act.
Before the enactment of the Act, statutory control over narcotic drugs was exercised through certain State and Central enactments, principally through the Opium Act, 1856, the Opium Act.
1878, the Dangerous Drugs Act, 1930, etc.
However, with the increase in drug abuse and illicit drug traffic certain deficiencies in the existing laws surfaced which made it necessary for Parliament to enact a comprehensive legisla tion sufficiently stringent to combat the challenge posed by drug traffickers.
India had participated in the second International Opium 70 Conference held at Geneva in 1925 which adopted the conven tion relating to dangerous drugs.
To give effect to the obligations undertaken by the Government of India by signing and ratifying the said convention, the Dangerous Drugs Act, 1930 came to be enacted to vest in the Central Government the control over certain operations concerning dangerous drugs.
Article 25 of the Universal Declaration of Human Rights, 1948, and Article 12 of the International Covenant on Economical, Social and Cultural Rights, 1966, reflect the concern of the international community for the protection of the individual 's right to the enjoyment of the highest attainable standards of physical and mental health.
The other International Conventions which prompted the legisla tion are set out in Section 2(ix) of the Act.
Besides, one of the primary duties of the Government under our Constitu tion is improvement of public health.
inter alia, by prohib iting the consumption of intoxicating drinks and drugs injurious to health.
The Act was, therefore, enacted, as is evident from its Preamble, inter alia, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and to provide for deterrent punishment, including the forfei ture of property derived from or used in illicit traffic of such drugs and substances.
The Act is divided into VI Chapters accommodating 83 Sections.
Chapter I contains the short title of the Act.
definitions of various terms and expressions used therein and provisions enabling addition to and omission from the list of psychotropic substances.
Chapter II entitled 'au thorities & officers ' empowers the Central as well as the State Government to make appointments of certain officers.
for the purposes of the Act.
The newly added Chapter IIA provides for the Constitution of a national fund for control of drug abuse.
Provision for the prohibition, con trol and regulation on cultivation, production, manufacture, etc., of any narcotic drug or psychotropic substance is to be found in Chapter III.
Chapter IV defines the offences punishable under the Act and prescribes the penalties therefore.
Needless to say that the punishments prescribed are very severe.
In some cases the minimum punishment is 10 years with fine extending to Rs.2 lacs and above.
By a recent amendment death penalty is prescribed for certain offences committed by persons after a previous conviction.
Provision for rebuttable presumption of mensrea culpable mental state is also made under Section 35 and Special Courts are envisaged by Sections 36 and 36A for the trial of offences punishable under the Act.
Every offence punishable under the Act is made cognizable by virtue of Section 37.
, notwithstanding the provisions of the Code.
Then comes Chapter V which outlines the proce 71 dure to be followed by the officers appointed for the imple mentation of the various provisions of the Act.
Sub section (1) of Section 51 empowers a Metropolitan Magistrate or a Magistrate of the First Class or a Magistrate of the Second Class, specially empowered, to issue a warrant for the arrest of any person suspected of having committed any offence punishable under the provisions of Chapter IV of the Act and for the search of any premises, conveyance or place in which such person is suspected of having kept or con cealed any narcotic drug or psychotropic substance.
Sections 41(2), 42, 43, and 44 confer on officers named under Act the powers of arrest, search and seizure without any order or warrant from the concerned Magistrate.
We will refer to these provisions in some detail when we discuss the impact thereof hereafter.
Power to stop, rummage and search any conveyance or goods carried in any conveyance or on any animal is con ferred by Section 49.
Section 51 provides that all warrants issued and arrests, searches and seizures made shall be governed by the provisions of the Code unless such provi sions are not consistent with the provisions of the Act.
Next comes Section 53 which we consider proper to repro duce at this stage.
It reads as under: "Section 53: Power to invest officers of certain departments with powers of an officer in charge of a police station. (1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence or Border Security Force or any class of such officers with the powers of an officer in charge of a police station for the investigation of the offences under this Act.
(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any class of such officers with the powers of an officer in charge of a police station for the investigation of offences under this Act." Section 53A, inserted by Act 2 of 1989, makes a statement made and signed by a person before any officer empowered under Section 53 for 72 investigation of offences, during the course of such inves tigation, relevant in certain circumstances e.g., when the maker of the statement is dead or cannot be traced or is incapable of giving evidence or is kept away by the opposite party or whose presence cannot be secured without delay or when he is examined as a witness in the case.
Section 54 permits raising of a rebuttable presumption against an accused in a trial for any offence under the Act to the extent permitted by clauses (a) to (d) thereof.
Section 55 enjoins upon an officer in charge of a police station to take charge of and keep in safe custody any article seized under the Act and made over to him.
Section 57 enjoins upon the officer making an arrest or effecting seizure under the Act to make a full report thereof to his immediate superior within 48 hours.
Section 58 provides the punishment for vexatious entry, search, seizure or arrest.
Section 67 empowers an authorised officer to call for information or require any person to produce or deliver any document or thing useful or relevant to the enquiry or examine any person acquainted with the facts and circumstances of the case.
The newly added Chapter VA deals with forfeiture of property derived from and used in illicit traffic of drugs, etc.
The last Chapter VI contains miscellaneous provisions.
The scheme of the Act clearly shows that the Central Government is charged with the duty to take all such meas ures as it deems necessary or expedient for preventing and combating the abuse of narcotic drugs (Section 2(xiv) and psychotropic substances (Section 2(xxiii) and the menance of illicit traffic (Section 2(viiia) therein As pointed out earlier Chapter IV defines the offences and prescribes the punishments for violating the provisions of the Act.
We must immediately concede that the punishments prescribed for the various offences under the Act are very severe e.g., Sec tions 21 and 23 prescribe the punishment of rigorous impris onment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees, Section 29 which makes abet ment an offence prescribes the punishment provided for the offence abetted while Section 30 prescribes the punishment which is one half of the punishment and fine for the princi pal offence.
In addition thereto certain presumptions, albeit rebuttable, are permitted to be raised against the accused.
Counsel for the appellants, therefore, argued that when such extensive powers are conferred on the officers appointed under the Act and the consequences are so drastic, it is desirable that the protection of Section 25, Evidence Act, should be extended to persons accused of the commission of any crime punish 73 able under the Act.
In this connection our attention was drawn to the observations of this Court in Balbir Singh vs State of Haryana, J.T. 10 wherein it is empha sised that when drastic provisions are made by a statute the duty of care on the authorities investigating the crime under such law is greater and the investigation must not only be thorough but also of a very high order.
We, there fore, agree that as Section 25.
Evidence Act, engrafts a wholesome protection it must not be construed in a narrow and technical sense but must be understood in a broad and popular sense.
But at the same time it cannot be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred within the category of police officers.
See The State of Punjab vs Barkat Ram; , at 347 and Raja Ram Jaiswal vs State of Bihar; , at 761.
This view has been reiterated in subsequent cases also.
The question then is whether the expression "police officer", even if liberally construed, would take in its fold officers of other departments including the DRI invest ed with powers under Section 53 of the Act.
According to the view taken by the Bombay High Court in Sheikh Ahmed vs Emperor, Bombay 78 they perhaps would, but not if the view expressed by the Patna High Court in Radha Kishan Marwari vs King Emperor, [933] I.L.R. 12 Patna 46 prevails.
These two lines of thought have been the subject matter of scrutiny by this Court in a few subsequent cases.
We will presently refer to them.
In the case of Barkat Ram this Court was called upon to consider whether Customs Officers to whom confessional statements were made could be said to be police officers within the meaning of Section 25, Evidence Act.
On behalf of the prosecution it was argued that the mere tact that cer tain powers of arrest, search, seizure and recording of evidence have been conferred on such officers, where contra vention of the provisions of the statute is complained of, is not sufficient to make them police officers under Section 25 of the Evidence Act.
The respondents on the other hand contended that officers on whom such powers are conferred are in fact police officers, no matter by what name they are called.
This Court, by majority, pointed out that the pri mary function of the police under the , is prevention and detection of crime while the Customs Officers are mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties, i.e., they are more concerned with the goods and customs duty, than with the offender.
After referring to the provisions of the various statutes including Section 5(2) of the Old Code (now Section 4(2).
This Court held at pages 364 365 as under: 74 "The foregoing consideration of the case law and the statu tory provisions yields the following results: The term 'police officer ' is not defined in the Evidence Act, or, as a matter of fact, in any other contemporaneous or subsequent enactment.
The question, therefore, fails to be decided on a fair construction of the provisions of section 25 of the Evidence Act, having regard to the history of the legislation and the meaning attributed to that term in and about the time when section 25 of the Evidence Act came to be inserted therein.
If a literal meaning is given to the term 'police officer ' indi cating thereby an officer designated as police officer, it will lead to anomalous results.
An officer designated as a police officer, even though he does not discharge the well understood police functions, will be hit by section 25 of the Evidence Act, whereas an officer not so designated but who has all the powers of a police officer would not be hit by that section; with the result, the object of the section would be defeated.
The intermediate position, namely, that an officer can be a police officer only if powers and duties pertaining to an officer in charge of a police station within the meaning of the Code of Criminal Procedure are entrusted to him, would also lead to an equally anomalous position, for, it would exclude from its operation a case of an officer on whom specific powers and functions are con ferred under specific statutes without reference to the Code of Criminal Procedure does not define a 'police officer ' and section 5(2) thereof makes the procedure prescribed by the Code subject to the procedure that may be prescribed by any specific Act.
This construction would make the provisions of section 25 of the Evidence Act otiose in respect of officers on whom specific and incontrovertible police powers are con ferred.
But the third position would not only carry out the intention of the Legislature, but would also make the sec tion purposive and useful without doing any violence to the language of the section.
A police officer within the meaning of section 25 of the Evidence Act may be defined thus: An offi cer, by whatever designation he is called, on whom a statute substantially confers the powers and imposes the duties of the police is a police officer within the meaning of section 25 of the Evidence Act.
" In the final analysis this Court held that the duties of the Customs Officer were substantially different from those of the police and 75 merely because they possessed certain powers having similar ity with those of police officers, cannot make them police officers within the meaning of Section 25 of the Evidence Act.
In the case of Raja Ram Jaiswal, the undisputed facts were that a motor car was intercepted by an Excise Inspector and searched.
On search five bundles of non duty paid Napali charas were found and seized.
The Excise Inspector recorded the statements of all persons found in the car including the appellant.
The admissibility of the appellant 's statement, was challenged on the ground that it was hit by Section 25, Evidence Act, This Court, by majority, (Raghubar Dayal, J.) dissenting, laid down the test in the following words: "The test for determining whether such a person is a 'police officer ' for the purpose of section 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of a police station establish a direct or substantial relationship with the prohibition enacted by section 25 that is, the recording of a confession.
In our words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or a delinquent.
If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys" Applying this test this Court concluded that the Excise Inspector, who recorded the appellant 's confessional state ment was in fact a police officer, properly so called, within the meaning of that expression in Section 25, Evi dence Act.
Both these decisions came up for consideration before a bench consisting of five learned Judges of this Court in Badku Joti Savant vs State of Mysore, ; In that case the appellant was found in possession of con traband gold when his house was raided and searched in the presence of panches on November 27, 1960.
The appellant was arrested on November 30, 1960 and his statement was reduced to writing and his signature was obtained thereon.
In the course of his statement he admitted knowledge about the existence of the contraband goods.
Two questions arose for determination, the first related to the interpretation of Section 167(81) of the Sea and the second touched the point of admissibility of the confessional 76 statement in view of Section 25, Evidence Act.
This Court distinguished Raja Ram Jaiswal 's case and held that the facts of the case on hand were more in accord with the case of Barkat Ram.
Accordingly, it held that the Central Excise Officer was not a police officer under Section 25 of the Evidence Act.
This Court while dealing with the submission based on Section 21(2) of the Central Excise & Salt Act, 1944, observed that even though this sub section confers on the Central Excise Officer the same powers as an officer in charge of a police station investigating a cog nizable case "It does not, however, appear that a Central Excise Officer under the Act has power to submit a charge sheet under Section 173 of the Code . ".
Thus the ratio of the decision appears to be that even if an officer is invested under any special law with powers analogous to those exercised by police officer in charge of a police station investigating a cognizable offence, he does not thereby become a police officer under Section 25, Evidence Act, unless he has the power to lodge a report under Section 173 of the Code.
In Ramesh Chandra Mehta vs State of West Bengal, a bench of five learned Judges held: " . the test for determining whether an officer of customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qua inves tigation of an offence, including the power to submit a report, under section 173 of the Code of Criminal, Procedure.
It is not claimed that a Customs Officer exercising power to make an enquiry may submit a report under section 173 of the Code of Criminal Procedure".
In Illias vs Collector of Customs, Madras, ; the ' same bench was required to consider if Customs Officials under the , were police officers within the meaning of Section 25.
Evidence Act.
This Court referred to all the cases discussed hereinbefore and finally approved the test laid down in Badku Joti Savant and reiterated in Ramesh Chandra Mehta.
In State of U. P. vs Durga Prasad, ; , the question for consideration was whether an enquiry under Section 8(1) of the Railway Property (Unlawful Posssession) Act, 1966, is an investigation under the Code; if yes, whether statements recorded in the course of investigation are hit by Section 162 of the Code and if such statements are confessional in nature can they be admitted in evidence in 77 view of Section 25, Evidence Act.
This Court observed at pages 886887 as under: "The fight and duty of an investigating officer to file a police report or a charge sheet on the conclusion of inves tigation is the hallmark of an investigation under the Code.
Section 173(1)(a) of the Code provides that as soon as the investigation is completed the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government.
The officer conducting an inquiry under section 8(1) cannot initiate court proceedings by filing a police report as is evident from the two provisos to section 8(2) of the Act.
On the conclusion of an enquiry under sec tion 8(1), therefore, if the officer of the Force is of the opinion that there is sufficient evidence or reasonable ground of suspicion against the accused, he must file a complaint under section 190(1)(a) of the Code in order that the Magistrate concerned may take cognizance of the offence.
Thus an officer conducting an inquiry under section 8(1) of the Act does not possess all the attributes of an officer incharge of a police station investigating a case under Chapter XIV of the Code.
He possesses but a part of those attributes limited to the purpose of holding the inquiry".
In a more recent case, Balkishan A. Devidayal etc.
vs State of Maharashtra etc.
; , the question which arose for determination was whether an Inspector of the Railway Protection Force enquiring into an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966, can be said to be a "police officer" under Section 25, Evidence Act.
This Court, after a review of the case law, concluded at page 201 as under: "In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer in charge of a police station making an investi gation under Chapter XIV of the Code.
Particularly, he has no power to initiate prosecution by filing a chargesheet before the Magistrate concerned under Section 173 of 78 the Code, which has been held to be the clinching attribute of an investigating 'police officer '.
Thus, judged by the test laid down in Badku Jyoti Savant 's which has been con sistently adopted in the subsequent decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a 'police officer ' within the meaning of Section 25 of the Evidence Act . . . " Keeping in view the law laid down by this Court in the decisions referred to above, we may now proceed to apply the test in the context of the provisions of the Act.
We have noticed that Section 37 makes every offence punishable under the Act cognizable notwithstanding anything contained in the Code.
Section 41(1) empowers a Magistrate to issue a warrant for the arrest of any person suspected of having committed any offence under Chapter IV, or for the search of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or any document or other article is kept or concealed.
Section 41(2) empowers certain gazetted officers of central excise, narcotics, customs, revenue intelligence, etc., of the Central Government or the Border Security Force, or any such officer of the revenue, excise, police, drug control, or other departments of the State Governments empowered by general or special orders in this behalf to issue an author isation for the arrest of any person believed to have com mitted an offence or for the search of any building, convey ance or place whether by day or by night in which the of fending drug or substance or article is kept or concealed.
Section 42 enables certain officers duly empowered in this behalf by the Central or the State Governments to enter into and search any building, conveyance or enclosed place be tween sunrise and sunset without any warrant or authorisa tion, if there is reason to believe from personal knowledge or information given any person and reduced to writing, that any narcotic drug or psychotropic substance inrespect of which such an offence has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed therein and seize the same.
The proviso requires that the concerned officer must record the grounds of his belief before exercising power under the said provision.
Sub section (2) of section 42 enjoins upon an officer taking down the information or recording grounds for his belief to forward a copy thereof to his immediate superior.
Section 43 confers on any officer of any of the departments mentioned in Section 42, power to seize in any public place or in transit, any narcotic drug or psychotropic substance, in respect of which he has reason to believe an offence punishable under 79 Chapter IV has been committed, and along therewith any animal or conveyance or article liable to confiscation under the Act and any document or other article which furnishes evidence of the commission of the offence relating to such drug or substance.
Power is also conferred on such an offi cer to detain and search any person whom he has reason to believe to have committed an offence under Chapter IV and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him unlaw ful, arrest him, and any other person in his company.
By Section 44 the provisions of Sections 41, 42 and 43 are made applicable in relation to offences concerning coca plant, opium poppy or cannabis plant.
Where it is not practicable to seize any goods (including standing crop) liable to confiscation, any officer duly authorised under Section 42 is empowered to serve on the owner or person in possession of the goods, an order that he shall not remove, part with or otherwise deal with the goods except with the previous permission of such officer.
Section 48 confers on the Magis trate or any officer of the gazetted rank empowered under Section 42, power of attachment of crop illegally cultivat ed.
Section 49 empowers any officer authorised under Section 42, if he has reason to suspect that any animal or convey ance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance in respect of which he suspects that any provision of the Act has been.
or is being, or is about to be contravened, to stop such animal or conveyance and rummage and search the conveyance or part thereof; examine and search any goods on the animal or in the conveyance and use all lawful means for stopping it and where such means fail, the animal or conveyance may be fired upon.
Section 50 enjoins upon the officer who is about to search any person, if such person so requires, to take him without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
Then comes Section 51 which says that the provisions of the Code shall apply, insofar as they are not inconsistent with the provisions of the Act, to all warrants issued and arrests, searches and seizures made under the Act.
On a plain reading of the section it is clear that if there is any inconsistency between the provisions of the Act and the Code, the former will prevail.
Section 52 deals with the disposal of persons arrested and articles seized under Sections 41, 42, 43 or 44 of the Act.
It en joins upon the officer arresting a person to inform him of the grounds for his arrest.
It further provides that every person arrested and article seized under warrant issued under sub section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
Where, however, the arrest or seizure is effected by virtue of Sections 41(2), 42, 43 or 44 the Section 80 enjoins upon the officer to forward the person arrested and the article seized to the officer in charge of the nearest police station or the officer empowered to investigate under Section 53 of the Act.
Special provision is made in Section 52A in regard to the disposal of seized narcotic drugs and psychotropic substances.
Then comes Section 53 which we have extracted earlier.
Section 55 requires an officer incharge of a police station to take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under the Act within the local area of that police station and which may be delivered to him.
Section 57 en joins upon any officer making an arrest or effecting seizure under the Act to make a full report of all the particulars of such arrest or seizure to his immediate official superior within 48 hours next after such arrest or seizure.
These provisions found in Chapter V of the Act show that there is nothing in the Act to indicate that all the powers under Chapter XII of the Code, including the power to file a report under Section 173 of the Code have been expressly conferred on officers who are invested with the powers of an officer in charge of a police station under Section 53, for the purpose of investigation of offences under the Act.
The Act was enacted for the control and regulation of operations relating to narcotic drugs and psychotropic substances.
Under Sections 41, 42, 43, 44 and 49 of the Act certain powers of arrest, search and seizure have been conferred on certain officers of different departments.
If the arrest or seizure is made pursuant to a warrant issued under Section 41(1), the person arrested or the article seized has to be forwarded to the Magistrate with despatch.
If the arrest or seizure is made under Sections 41(2), 42, 43 or 44 the person arrested or the article seized has to be forwarded to the officer in charge of the nearest police station or the officer empowered under Section 53 of the Act.
Special procedure has been prescribed for the disposal of narcotic drugs and psychotropic substances having regard to the factors set out in Section 52A.
The role of the officers effecting arrest or seizure, except in the case of a police officer, ends with the disposal of the person arrested and the article seized in the manner provided by Section 52 and 52A of the Act.
Section 57 obliges the offi cer making the arrest or seizure to report the same to his superior within 48 hours.
These powers are more or less similar to the powers conferred on Customs Officers under the .
For the offences under the Act, the investigation is entrusted to officers in whom powers of an officer in charge of a police station are vested by a notification issued under Section 53 of the Act by the 81 concerned Government.
Thus a special investigating agency is created to investigate the commission of offences under the Act.
There is no doubt that the Act creates new offences, empowers officers of certain departments to effect arrest, search and seizure, outlines the procedure therefore, pro vides for a special machinery to investigate these offences and provides for the constitution of Special Courts for the trial of offences under the Act, notwithstanding anything contained in the Code.
But, argued learned counsel for the appellants, the officers empowered to investigate under Section 53 of the Act must of necessity follow the procedure for investigation under Chapter XII of the Code, since the Act does not lay down its own procedure for investigation.
By virtue of Section 51 of the Act, the provisions of the Code would apply since there is no provision in the Act which runs counter to the provisions of the Code.
It was said that since the term 'investigation ' is not defined by the Act, the definition thereof found in Section 2(h) of the Code must be invoked in view of Section 2(xxix) of the Act which in terms states that words and expressions used in the Act but not defined will carry the meaning assigned of them, if defined in the Code.
Section 2(h) of the Code, which defines 'investigation ' by an inclusive definition means all proceedings under the Code for collection of evidence con ducted by a police officer or by any person authorised by a magistrate in this behalf.
Under Section 4(2) of the Code all offences under any other law have to be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code.
However, according to Section 5, nothing contained in the Code shall, unless otherwise provided, affect any special or local law or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
The power to investigate is to be found in Chapter XII of the Code which begins with Section 154 and ends with Section 176.
The scheme of this Chapter is that the law can be set in motion in regard to a cognizable offence on re ceipt of information, written or oral, by the officer in charge of a police station.
Once such information is re ceived and registered, Section 156 empowers any officer incharge of the police station to investigate the same without any magisterial order.
The investigation which so commences must be concluded, without unnecessary delay, by the submission of a report under Section 173 of the Code to the concerned Magistrate in the prescribed form.
Any person on whom power to investigate under Chapter XII is conferred can be said to be a 'police officer ', no matter by what name he is called.
The nomenclature is not important, the content of the power he exercises is the determinative factor.
The important attribute of police power is not only the power to investigate 82 into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge sheet under Section 173 of the Code.
That is why this Court has since the decision in Badku Joti Savant accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, includ ing the power to submit a report under Section 173, he cannot be described to be a 'police officer ' under Section 25, Evidence Act.
Counsel for the appellants, however, argued that since the Act does not prescribe the procedure for investigation, the officers invested with power under Section 53 of the Act must necessarily resort to the proce dure under Chapter XII of the Code which would require them to culminate the investigation by submitting a report under Section 173 of the Code.
Attractive though the submission appears at first blush, it cannot stand close scrutiny.
In the first place as pointed out earlier there is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under Section 53 of the Act, all the powers of Chapter XII, including the power to submit a report under Section 173 of the Code.
But the issue is placed beyond the pale of doubt by sub section (1) of Section 36A of the Act which begins with a non ob stante clause notwithstanding anything contained in the Code and proceeds to say in clause (d) as under: "36 A(d): a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Gov ernment or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial." This clause makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI, the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned Government.
Needless to say that such a complaint would have to be under Section 190 of the Code.
This clause, in our view, clinches the matter.
We must, therefore, negative the contention that an officer appointed under Section 53 of the Act, other than a police officer, is entitled to exercise 'all ' the powers under Chapter XII of the Code, including the power to submit a report or charge sheet under Section 173 of the Code.
That being so, the case does not satisfy the ratio of Badku Joti Savant and subsequent decisions referred to earlier.
83 In view of the above discussion we are of the opinion that the view taken by the Delhi High Court in the impugned Judgment, which is in accord with the view taken by the Allahabad High Court in Mahesh vs Union of India, and the Gujarat High Court in Mangal Singh vs The State of Gujarat, , is unassailable and must be upheld.
We, therefore, see no merit in the appeal as well as the special leave petition and hereby dismiss them.
R.S.S. Appeal and Petition dismissed.
| IN-Abs | The officers of the Department of Revenue Intelligence (DRI) intercepted one truck.
On search, a large quantity of hashish was recovered.
In the course of investigation the names of the appellant and the petitioner surfaced.
Both of them made confessional statements to the DRI officials.
Complaints were lodged against the appellant and the petitioner under the Narcotic DrUgs & Psychotropic Sub stances Act, 1985 and the .
On their apply ing for enlargement on bail, the selfincriminating statements made by them to the DRI officials were used against them by the prosecution.
The appellant and the petitioner argued before the Single Judge of the High Court hearing the bail applications that the said statements were not admissible in evidence in view of section 25 of the Evidence Act.
The learned Single Judge referred the question of admissibility of the confessional statements to the Division Bench which concluded that the officials of the DRI invested with powers under section 53 of the Narcotic Act did not possess any of the attributes of an officer in charge of a police station conducting an investigation under Chapter XII of the Code of Criminal Procedure.
Against this decision of the Division Bench, the appellant and the petitioner have appealed to this Court.
It was contended before this Court on behalf of the appellant and the petitioner that: (1) the expression 'police officer ' used in section 25 64 of the Evidence Act must not be read in the narrow sense of only those officers belonging to the regular police force but must be construed broadly to include all those who have been invested with powers of the police in the matter of investigation of a penal offence; (2) when such extensive powers are conferred on the officers appointed under the Act and the consequences are so drastic, it is desirable that the protection of section 25, Evidence Act, should be ex tended to persons accused of the commission of any crime punishable under the Narcotic Act; (3) since the Act does not prescribe the procedure for investigation, the officers invested with power under section 53 of the Act must neces sarily resort to the procedure under Chapter XH of the Code of Criminal Procedure, 1973 which would require them to culminate the investigation by submitting a report under section 173 of the Code, and (4) since the officers referred to in section 53 have been invested with all the powers of an officer in charge of a police station for investigation of offences under the Narcotic Act, they have all the at tributes of a police officer investigating a crime under Chapter XII of the Code of Criminal Procedure, 1973 and would, therefore, fail within the expression "police offi cer" in section 25 of the Evidence Act.
Dismissing the appeal and the special leave petition, this Court, HELD: (1) Section 25, Evidence Act, engrafts a wholesome protection.
It must not, therefore, be construed in a narrow and technical sense but must be understood in a broad and popular sense.
But at the same time it cannot be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred within the category of police officers.
[73B C] Balbir Singh vs State of Haryana, J.T. ; The State of Punjab vs Barkat Ram, ; at 347 and Raja Ram Jaiswal vs State of Bihar, ; at 761, referred to.
(2) Even if an officer is invested under any special law with powers analogous to those exercised by a police officer in charge of a police station investigating a cognizable offence, he does not thereby become a police officer under Section 25, Evidence Act, unless he has the power to lodge a report under Section 173 of the Code.
[76C] Badku Joti Savant vs State Of Mysore, ; ; Romesh Chandra Mehta vs State of West Bengal, ; Illias vs Collector of Customs, Madras, ; ; State of U.P. vs 65 Durga Prasad, and Balkishan A. Devidayal vs State of Maharashtra; , , referred to.
(3) The role of the officers effecting arrest or sei zure, except in the case of a police officer, ends with disposal of the person arrested and the article seized in the manner provided by sections 52 and 52A of the Act.
Section 57 obliges the officer making the arrest or seizure to report the same to his superior within 48 hours.
These powers are more or less similar to the powers conferred on Customs Officers under the .
[80F G] (4) The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge sheet under section 173 of the Code.
[81H; 82A] (5) There is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under section 53 of the Act, all the powers of Chapter XII, including the power to submit a report under Section 173 of the Code.[82C D] (6) Section 36A (1)(d) of the Act makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI, the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned Government.
[82F G] (7) The Division Bench is right in holding that a con fessional or self incriminating statement made by a person accused of having committed a crime under the Narcotic Act to an officer invested with the power of investigation under section 53 of the Act was not hit by section 25 of the Evidence Act.
[67G] Mahesh vs Union of India, ; Mangal Singh vs The State of Gujarat, ; Radha Kishan Marwari vs King Emperor, Patna 46 and Sheikh Ahmed vs Emperor, Bombay 78, referred to.
|
ivil Appeal No. 380 of 1980.
From the Judgment and Order dated the 20.11.1979 of the Bombay High Court in F.A. No. 117 of 1968.
44 U.R. Lalit, Dr. N.M. Ghatate and S.V. Deshpande for the Appellants.
R.K. Garg, Tripurari Ray, M.N. Shroff and A.K. Sanghi for the Respondents.
The Judgment of the Court was delivered by KASLJWAL, J.
This Civil Appeal by Special Leave has been filed by the defendants Manibhai, Dhyaneshwar, and Waman Rao Narayan Rao aggrieved against the Judgment and decree of Bombay High Court dated 20th November, 1979.
Briefly stated the facts are that one Vithoba had two sons Beni Ram and Maroti.
A partition took place on 14th July, 1947 by a registered document between Vithoba, his son Beni Ram and two grandsons of pre deceased son Maroti.
In accordance with the above partition Beni Ram got agricultur al lands survey Nos. 1, 3, 18 & 19 measuring 11.69 acres, 00.06 acres, 4.48 acres and 8.40 acres respectively, situate in Village Kharbi Tehsil and district Nagpur.
Apart from the above agricultural lands Beni Ram also got a house No. 82 situate in Telipura, Itwari, Nagpur.
After receiving the above properties in partition Beni Ram along with his two minor sons Hemraj and Ramdass executed a deed of conditional sale on 22nd April, 1948 (exhibit 48) of their properties in favour of Narayan Dass for a sum of Rs.5,500.
Thereafter, by a reconveyance deed (exhibit 48) dated 11th February, 1953, Beni Ram, Hemraj and Ramdass got the properties reconveyed in their favour by Narayan Dass.
On the same day i.e 11th February, 1953 Beni Ram and his four minor sons executed a sale deed (exhibit 40) of house property and agricultural land survey Nos. 3 and 18 in favour of Manibhai, the brother of Narayan Dass for a consideration of Rs.5,500.
By another sale deed (exhibit 41) of the same date Beni Ram and his four minor sons sold 10.69 acres of land out of survey No. 1 in favour of Vithal and his brother Vishwanath for a sum of Rs.5,345.
Beni Ram and his minor sons then by sale deed (exhibit 61) sold the remaining one acre of land of survey No. 1 and 8.40 acres of survey No. 19 for a sum of Rs.3,000 on 19th July, 1954 in favour of the above mentioned Vithal and Vishwanath.
Manibhai subsequently sold the house property in favour of Waman Rao Narayan Rao, Bhujang Rao, Yadav Rao, Namdeo and Nago Rao.
Six sons of Beni Ram alongwith their mother Sona Bai filed a suit on 10th February, 1965 against Manibhar (de fendant No. 1), Vithal 45 and Vishwanath (defendants Nos. 2 and 3), Waman Rao, Narayan Rao, Bhujang Rao, Yadav Rao, Namdeo and Nago Rao (defendant Nos. 4 to 8) and Beni Ram (defendant No. 9) for a decree for possession of the agricultural lands and house which came in their share as members of Joint Hindu Family.
The case of the plaintiffs as set out in the plaint was that Beni Ram, father of the plaintiffs Nos. 1 to 6 and husband of the plaintiff No. 7 was a person given to heavy drinking and gambling and a satoria.
Due to all these vices he used to spend away everything whatever he used to earn in his busi ness of grain dalali.
The business of grain dalali did not require any capital.
In the partition of ancestral proper ties made on 14th July.
1947 Beni Ram was allotted the properties as given in para 3 of the plaint, and details of which have also been mentioned above.
It was further alleged in the plaint that the entire properties allotted to the share of Beni Ram in the aforesaid family partition were ancestral and the plaintiffs had acquired an interest in such properties by birth.
According to the plaintiffs all these alienations in favour of the defendants were illegal and invalid and were not binding on them.
Plaintiffs further alleged that none of these sales were for any legal necessity or for the benefit of the estate or for the benefit of the minors.
The sales were not for preserving or recovering any part of the estate of the plaintiffs.
None of the defendants Nos. 1, 2 and 3 made any reasonable, proper or bona fide enquiries as to the existence of any necessity before entering into the afore said transactions with defendant No. 9.
The plaintiffs further stated that the sale proceeds were not applied for the benefit of the minors or their estate by the defendant No. 9 and were squandered by him on his vices.
It was further alleged in the plaint that the defendant No. 1 sold a portion of the house to defendants Nos.
4 to 7 vide sale deed dated 9th August, 1956 and the remaining portion of the same house was sold to defendant No. 8.
Plaintiffs thus submitting that the defendants Nos. 4 to 8 very well knew about the defendant No. 9 's way of life.
They also knew that the defendant No. 9 is a gambler and drunkard and satoria and that he spent everything on these vices.
The plaintiffs thus submitted that the sales in favour of de fendants Nos. 4 to 8 were also illegal, invalid and inopera tive in law since their vendor had no valid title in them.
The plaintiffs in the above circumstances alleged that they were entitled to share in the joint family properties.
The plaintiffs called upon the defendants to deliver possession alongwith mesne profits by their notice dated 28th October, 1964.
The defendants received the notice but did not deliver possession nor paid the mesne profits and 46 hence suit was filed for possession and mesne profits amounting to Rs. 11,470.
Defendant No. 1, Manibhai denied the allegations made in the plaint.
He denied that the defendant No. 9 was a person given to heavy drinking and gambling and satoria.
He also denied that defendant No. 9 used to spend away everything whatever he used to earn in the business of grain dalali.
It was denied that the business of grain dalali does not re quire any capital.
It was alleged that defendant No. 9 was the sole owner and in possession of the properties described in Para 3 of the plaint but it was denied that defendent No. 9 acquired the same under the partition deed.
The plaintiffs were thus required to be put to strict proof of the same.
The defendant No. 1 also alleged that he had purchased the properties by registered sale deed dated 11th February, 1953 from defendant No. 9 and plaintiffs Nos. 1 and 4 for a valuable consideration of Rs.5,500 and plaintiffs Nos. 5 and 6 were not born till then.
The sale of the property was for the legal necessity and for the benefit of the plaintiffs.
It was further submitted that even if the property was found to be ancestral one the defendant No. 9 had power to sell the said properties being a manager of the joint family, on behalf of the plaintiffs also.
The defendant No. 9 had executed a mortgage by conditional sale on 22nd April, 1948 2in favour of one Narayan Dass S/o Kalidas Patel for a total consideration of Rs.5,500 mortgaging thereby all the proper ties mentioned in Para 3(A) and (B) of the plaint.
It had been further alleged that the answering defendant No. 1 purchased properties described in Para 3 A(ii) & (iv) and Para 3 B out of the said properties for a consideration of Rs.5,500 which was the market value of the said properties.
On 11th February, 1953 the defendant paid Rs.500 towards the earnest money and the balance of Rs.5,500 was paid on the same day before the Sub Registrar.
The defendant No. 9 paid this very amount to Shri Narayan Dass to obtain deed of reconveyance.
Thus the consideration paid by this defendant for the purchase of the property mentioned above has in fact been applied to make payment to Shri Narayan Dass to get all those properties released and to obtain the deed of recon veyance from him.
The sale deed in favour of the defendant No. 1 was, therefore, in fact for legal necessity i.e. to save a larger and valuable property from being lost to the family and/or also for payment of the antecedent debts of defendant No. 9 and further the defendant No. 9 saved for himself and the plaintiffs.
The fields mentioned in Para 3A(i) and (iii) of the plaint which subsequently the defend ant No. 9 and the plaintiffs sold to 47 defendants Nos. 2 and 3 by two registered sale deeds dated 11th of February, 1953 and 19th July, 1954 for Rs.5,345 and Rs.3,000 respectively.
Thus the plaintiffs got an advantage of Rs.8,345 by getting the properties from the original mortgagee Narayan Dass.
It was thus submitted that though the sale deed dated 11th February, 1953 executed by defend ant No. 9 did not recite all these facts, yet the sale deed in favour of defendant No. 1 was in fact for legal necessity and for discharging the antecedent debts of defendant No. 9.
In the alternative it was submitted that if the business of grain dalali was found to be an ancestral one then in that event also the property sold to defendant.
No. 1 was for legal necessity and for the benefit of the plaintiffs.
The suit brought by the plaintiffs was bogus and untenable in law to the knowledge of the plaintiffs and was liable to be dismissed with compensatory costs.
It was also submitted that the suit for possession and mesne profits as framed was not maintainable.
In the sale deeds dated 11th February, 1953 the defendant No. 9 is alleged to be the Karta of the plaintiffs ' family and the plaintiffs Nos. 1 to 4 were also parties to both the sale deeds in favour of the defendant No. 1 as well as in favour of the defendants Nos. 2 and 3.
Plaintiffs Nos. 5 and 6 were not born till then and plaintiff No. 7 had no title or his interest in the property.
Thus unless those sale deeds or transfers were not cancelled or set aside, the plaintiffs could not seek possession of the properties.
It was further submitted that the plaintiffs Nos. 1 to 6, who were sons of defendant No. 9 were under pious obligation to discharge their father 's debt.
The present transfers were for dis charging the father 's debt due to Narayan Dass and hence the plaintiffs were bound by the transfers.
The plaintiffs had no cause of action for seeking cancellation of the sale deed dated 11th February, 1953.
The present suit was barred by time as the claim for relief of cancellation of the sale deed dated 11th February, 1953 was also barred on expiry of three years from the date of sale deed.
Defendants Nos. 2 and 3 filed a joint written statement and apart from denial of defendant No. 9 being a gambler, drunkard or satoria it was alleged that they had purchased agricultural field from defendant No. 9 who sold the same for legal necessity and for valuable consideration and for the benefit of the minors.
It was also made to preserve the estate and to make the repayment of the loans by the defend ant No. 9.
Hence the sales made in their favour were binding on the plaintiffs.
The plaintiffs have filed the present suit in collusion with defendant No. 9 with ulterior and mala fide intention.
48 Defendants Nos. 4 to 8 filed a joint written statement and took almost a similar stand as taken by defendant No. 1.
These defendants further pleaded that they had purchased the suit house some time in the year 1956, with the knowledge of the plaintiff Nos. 1 and 2 and defendant No. 9.
After the purchase of the house the defendants demolished the old structure and constructed the whole house from foundation, at a cost of about Rs.25,000.
The plaintiffs Nos. 1 and 2 as also defendant No. 9 were in the full know of the fact of demolition of old house and new construction.
They did not at any time, raise any objection or claim to the house and allowed the defendants to carry out the work.
They did not at any time show or commit any act as to raise any doubt in the minds of defendants regarding their title to the house in suit.
Thus the defendants Nos. 4 to 8 in good faith and having full belief in their own title to the suit house, spent more than Rs.25,000 on the house and the plaintiffs and defendant No. 9 allowed the defendants to carry out the work even though they had full knowledge of the said con struction work and were thus now estopped from denying the title of the defendants to the suit house.
The plaintiffs and defendant No. 9 having acquiesced in the above acts of the defendants could not now file the suit and challenge the title of the defendants.
It was also alleged that the de fendant No. 9 was heavily indebted and had in fact executed a conditional sale deed in favour of Narayan Dass son of Kalidass for a consideration of Rs.5,500.
It was in order to redeem these properties that the defendant No. 9 sold the property and utilised the money received as a consideration of the sale deed towards the satisfaction of those debts.
Thus the impugned sale deeds were executed for good and valuable consideration for payment of antecedent debts and cannot be challenged by the plaintiffs.
Trial Court after considering the oral and documentary evidence led by the parties held that the defendant No. 9 Beni Ram after getting the ancestral share in the properties in 1947 remained joint with his sons i.e. the plaintiffs.
It was also found that the properties in question were ances tral and as such the plaintiffs had acquired interest in it by birth.
The Trial Court further held that Beni Ram, de fendant No. 9 was not indulging in any vices at the time he first mortgaged the properties by conditional sale vide exhibit 48.
The sale initially was for the satisfaction of the antecedent debt due on mortgage (exhibit 48).
The Trial Court further held that it was a legal cause and the pur chasers were armed with proper ground to purchase the property.
This being so, the contention of the plaintiffs, that these sales finally were for no legal necessity or for the benefit of the minors or their estate etc., fell to the ground.
Similarly, their contention that the defendant No. 9 was 49 given up to drinking and all other such bad habits, and it was known to the defendant Nos. 1 and 3 also, did not stand proved.
Trial Court also held that it was proved that the defendant No. 9 was a broker and he needed cash capital of Rs.4,000 to Rs.5,000 for his business even as a broker.
The evidence also satisfactorily proved that defendant No. 9 had a grain shop.
The Trial Court thus arrived at the conclusion that the plaintiffs had failed to prove their allegations that the defendant Nos. 1 to 3 wanted these properties somehow or the other and that they managed to get the sales executed in their favour from defendant No. 9 without en quiry about the legal necessity to sell.
The Trial Court also found proved that the defendants Nos. 4 to 8 had spent Rs.25,000 on the reconstruction of the house within the knowledge of the plaintiffs Nos. 1 and 2, after his purchase from the defendant No. 1 and still none had objected against it.
The plaintiffs Nos. 1 and 2 and defendant No. 9 were estopped from ' challenging the title of defendants Nos. 4 to 8.
In view of the findings recorded as mentioned above the Trial Court dismissed the suit filed by the plaintiffs.
The plaintiffs aggrieved against the Judgment and decree of the Trial Court flied an appeal before the Bombay High Court.
An argument was raised on behalf of the plaintiffs before the High Court that Manibhai and Narayan Dass ran a family firm of which they were owners and the execution of the conditional sale deed, reconveyance deed and the subse quent sale deed of the same day were nothing but a device and were really part of one and the same transaction.
The transactions were not independent of each other in the true sense of the term.
If the original transaction of 22nd April, 1948 of conditional sale deed with Narayan Dass was not a valid alienation and thus not binding upon the copar ceners, minor sons of Beni Ram, then subsequent transactions for the payment of the debt or liability due under that alienation also cannot be supported.
The relationship be tween Narayan Dass and Manibhai on the one hand and Beni Ram on the other hand appeared to be that of confidence from the nature of evidence given by Narayan Bhai and Manibhai.
Beni Ram seemed to have faith in the two brothers which they apparently used to their advantage.
The High Court considered the above arguments and ob served that in Exhibit 48 the reason for alienation of the property had been given by Beni 'Ram as for the purpose of carrying out business and for household purpose.
The defend ants further did not stick to this reason of alienation in the sale deed and gave evidence to show that it was with this amount that Beni Ram started new business.
As to what was 50 the household purpose, has nowhere been stated or clarified.
There was no evidence of any kind whatsoever led to show of any enquiry having been made by the alienees in regard to the existence of legal necessity or any antecedent debt.
There was no antecedent debt referred to at all in Exhibit 48 which was the commencement of the transaction.
The High Court then considered Exhibit 49 which was a reconveyance deed by which Rs.5,500 were repaid by Beni Ram to Narayan Dass.
The High Court then took into consideration Exhibits 40, 41 and 42(6 11 and arrived at the conclusion that there was no antecedent debt nor any legal necessity nor the money was needed for any joint family or ancestral business, in order to make these alienations valid.
After analysing the oral evidence, the High Court recorded the finding that even assuming that Beni Ram started a grain shop, it was admitted by the defendants that his former business was of brokerage in grain.
For a grain broker business no capital was neces sary or required.
For the purpose of a grain shop, which was an entirely different business, experience in salesmanship and dealing in grains as well as the purchase of grain wholesale or retail would be necessary.
It would involve outlay of capital and would be under the circumstances a new business.
The High Court then examined the question as to whether a father can by starting a new venture expose the family ancestral property to be taken and burden it there with and alienate for that purpose.
The High Court placed reliance on the following dictum laid down by Privy Council in Benares Bank Limited vs Hari Narain & Ors., Vol.
LIX Indian Appeals, 300.
" The manager of a Joint Hindu Family, whether governed by the Mitakshara or the Dayabhaga, has no authority to impose upon a minor member the risk and liability of a new business started by him; that the manager is father of the minor makes no difference.
" The High Court thus observed that in the present case the father had started new business with the alienation of the property and he had no right to impose the risk and liability upon the minor members.
If the business which Beni Ram, therefore, started were a new business and which he had no right to start so as to expose the interest of the minor coparceners in the family property, then Exhibit 48 cannot be supported on the ground either of legal necessity or benefit to the estate.
The High Court further observed that if Exhibit 48, therefore, was a transaction which the father was not entitled to enter into and 51 expose the family property to the risk then Exhibit 48 fell and could not be held to be a valid and binding transaction; then the transaction of 11th February, 1953, first of a reconveyance and then of a sale, evidenced by exhibits 49 and 40 also must fall and cannot be supported.
The evidence went to show that Beni Ram had confidence in Manibhai and Narayan Dass.
The reconveyance in favour of Narayan Dass and the immediate sale in favour of Manibhai on the same day was a mere device to support the transaction of sale Exhibit 40 in favour of Manibhai by a repayment of alleged antecedent debt.
The High Court held that they had no hesitation in thinking that if the alleged antecedent debt itself was an invalid transaction, was not an independent transaction but was a part of the same transaction, merely because it was separated in point of time it would not support the aliena tion in favour of Manibhai.
The High Court also referred the five propositions laid down in Brij Narain vs Mangala pra sad, AIR 1924 Privy Council, 50 and held that so far they were concerned the fourth proposition was relevant which was to the following effect: "Antecedent debt means antecedent in fact as well as in time; i.e. to say that the debt must be truly independent and not part of the transaction impeached.
" It was then held that applying the proposition laid down it was to be found out whether the transaction which was impeached, was a truly independent transaction and the debt discharged thereby was a truly independent antecedent debt and whether it was or it was not a part of the same transac tion.
According to the High Court apart from the fact that the alienation dated 22nd April, 1948 was not supportable and was invalid, the transaction was nothing but a mere device to clothe the debt due under Exhibit 48 with the antecedent character, when Exhibit 40 on 11th February, 1953 was executed.
The transaction Exhibit 40 must stand or fall alongwith the liability said to have been incurred under Exhibit 48.
Thus in the view taken of Exhibit 48 and the liability incurred thereunder, Exhibit 40 must also fall therewith.
As regards Exhibits 41 and 42(61) the High Court ob served that whatever little justification there was to sustain the transaction under Exhibit 40 even that did not hold good and was not available for the alienations under Exhibits 41 and 42.
There was not even a semblance of an tecedent debt existing or due from Beni Ram on 11th Febru ary, 1953 after the alleged liability under the conditional sale deed was discharged, so as to alienate survey No. 1 or subsequently in 1954 the remaining portion of survey Nos. 1 and 19.
After recording the above 52 findings the High Court observed that the present suit was brought by the minors who had 6/7th share in the Joint family properties and had brought the suit for the purpose of possession alleging that the alienations effected by defendant No. 9 thereafter were not binding upon them.
In such a case, the only consequence would be that the share of defendant No. 9 will go to the alienees.
But in such a suit the coparceners whose shares were not affected were entitled to possession and the alienees were not entitled to joint possession with them.
The alienees in such a case could bring, if so inclined and so advised a suit for working out their share in the family property.
In such a suit, the entire family properties shall be brought in and the share of the alienor coparcener worked out.
Thus the plaintiffs having succeeded, the alienees defendants Nos. 1 to 3 can be relegated to their right and work out their rights in a separate suit than making an order for joint possession.
Consequently the High Court allowed the appeal, set aside and reversed the Judgment and decree passed by the Trial Court, and instead a decree was passed in favour of plain tiffs Nos. 1 to 6 for possession of the properties in suit.
As regards, the mesne profits it was held that the plaintiffs had not led any evidence and as such relief for mesne profits was denied.
The plaintiffs were further held entitled to future mesne profits from the date of suit under Order 0.20 Rule 12 C.P.C. Manibhai, defendant No. 1 Dhyaneshwar S/o Vithal as legal representative of defendant No. 2 and Waman Rao, Narayan Rao, defendant No. 3 have filed this appeal against the Judgment of the High Court.
We have heard Learned counsel for the parties at length and have thoroughly perused the record.
The properties having come in the hands of Beni Ram after partition being ancestral and the plaintiffs having share as members of coparcenary were no longer in dispute before us.
The finding that the plaintiffs had not been able to prove that their father Beni Ram was a drunkard, 'gambler and satoria and the alienation made by him were not invalid on that account was also not challenged before us.
It may be mentioned at the outset that the very approach of the High Court in consider ing transaction Exhibit 48 dated 22nd April, 1948 as well as all the other transactions of 11th February, 1953 being part of the same transaction, is not correct.
It is necessary to examine each transaction independently and then to arrive at a conclusion whether such a transaction or alienation can be held to be valid or not.
The High Court also committed an error in 53 examining the transaction as if the same were without con sideration and on that account treating the transactions invalid, though no such plea was raised by the plaintiffs even in the plaint.
The alienations were challenged by the plaintiffs only on the ground of being without legal neces sity and not for the benefit of the estate and further tainted with immorality on the ground of their father Beni Ram being indulging in the vices of drinking, gambling and satoria.
Mulla in "Principles of Hindu Law" 15th Edition in paragraph 295 has dealt with the question of sale or mort gage of coparcenary property for payment of antecedent debt as under: "The father of a Joint Hindu Family may sell or mortgage the joint family property including the sons ' interest therein to discharge a debt contracted by him for his own personal benefit, and such alienation binds the sons, pro vided (a) the debt was antecedent to the alienation, and (b) it was not incurred for an immoral purpose.
The validity of an alienation made to discharge an antecedent debt rests upon the pious duty of the sons to discharge his father 's debt not tainted with immorality.
The mere circumstance, however, of a pious obligation does not validate the alienation.
To validate an alienation so as to bind the son, there must also be an antecedent debt.
Gener ally, there is no question of legal necessity in such a case.
"Antecedent Debt" means antecedent in fact as well as in time, that is to say, that the debt must be truly inde pendent of and not part of the transaction impeached.
A borrowing made on the occasion of the grant of a mortgage is not an antecedent debt.
To constitute a debt an "antecedent" debt it is not necessary that the prior and subsequent creditors should be different persons.
All that is necessary is that the two transactions must be dissociated in time as well as in fact".
It is thus clear that where the sons are joint with their father, and debts have been contracted by the father even for his own personal benefit, the sons are liable to pay the debts provided they were not incurred for an immoral or illegal purpose and such debts were antecedent to the alienations impugned.
The liability to pay the debts contracted by the father, for his own benefit, arises from an obligation of religion and piety which is placed upon the sons under the Mitakshara Law to discharge the 54 father 's debt, where the debts are not tainted with immoral ity.
In any event an alienation by the Manager of the Joint Hindu Family even without legal necessity and not tainted with immorality but for his personal benefit would be voidable and not void.
Now, we shall examine all the transactions which took place on 11th February, 1953.
So far as Exhibit 49 dated 11 th February, 1953 is concerned, it is a reconveyance deed by which an amount of Rs.5,500 was alleged to have been re turned to Narayan Dass and the possession of the properties mentioned in the conditional sale deed dated 22nd April, 1948 were handed back to Beni Ram.
This transaction was admittedly for the benefit of not only Beni Ram but other members of his family including the plaintiffs.
Another document executed on 11th February, 1953 is Exhibit 40 by which Beni Ram and his four sons sold the house property and agricultural land of survey Nos. 3 and 18 in favour of Manibhai.
The consideration of this sale deed is Rs.5,500 and it was this amount which was repaid to Narayan Dass for getting the reconveyance deed Exhibit 49.
Narayan Dass being the brother of Manibhai, it can be understood that no amount in fact may have reached the hands of Beni Ram by these two transactions of Exhibit 49 and Exhibit 40, but it becomes clear that the reconveyance deed Exhibit 49 could have been executed only when Rs.5,500 were returned to Narayan Dass and this amount could have only come by executing a sale deed Exhibit 40 in favour of Manibhai.
If we took at the matter from another angle, it is abundantly clear that on 22nd April, 1948 when conditional sale deed was executed by Beni Ram on his own behalf and two minor sons, he was paid Rs.5,500 by Narayan Dass.
This is not the case of the plain tiffs that Exhibit 48 was without consideration or that Beni Ram did not receive Rs.5,500 when this transaction took place.
We accept the finding of the High Court that this amount of Rs.5,500 was taken by Beni Ram for his business i.e. for his own personal benefit and not for any legal necessity or benefit of the joint family.
Even then the sale transaction exhibit 40 dated 11th February, 1953 for a consideration of Rs.5,500 in respect of house No. 82 and agricultural lands Nos. 3 and 18 is valid as such transac tion was made of payment of an antecedent debt of Rs.5,500 which was taken by Beni Ram on 22nd April, 1948.
Neither plaintiffs nor Beni Ram have come forward with the case that for reconveyance deed Exhibit 49 the amount of Rs.5,500 was repaid to Narayan Dass in any other manner except the trans action Exhibit 40 dated 11th February, 1953.
The transaction Exhibit 40 dated 11th February, 1953 is valid and binding on the plaintiffs as it was made in order to pay the antecedent debt of Beni Ram taken on 22nd April, 1948 and getting the recon 55 veyance of the property vide Exhibit 49.
In Raja Brij Narain vs Mangala Prasad, case (supra) it has been laid down that antecedent debt means "antecedent in fact as well as in time i.e. to say, that the debt must be truly independent and not part of the transaction impeached.
" Applying the above dictum also to the facts of the ease in hand before us, it is clear that the amount of Rs.5,500 taken by Beni Ram by way of transaction dated 22nd April, 1948 was antecedent in fact as well as in time to the trans actions of 11th February, 1953 which have been impeached by the plaintiffs.
By no stretch of imagination the transaction of 22nd April, 1948 can be said to be a part of the transac tion impeached.
It makes no difference if Manibhai was the brother of Narayan Dass and the consideration paid by Manib hai of the transaction Exhibit 40 may have gone to Narayan Dass for getting the reconveyance deed Exhibit 49 or may have come back to Manibhai himself as Manibhai and Narayan Dass were running some business jointly in a shop from where this money may have come.
Even if for argument 's sake we may accept the contention of Mr. R.K. Garg, Learned counsel for the plaintiffs that no money actually came in the hands of Beni Ram while executing Exhibit 49 and Exhibit 40 on 11th February, 1953, it will not make any difference in as much as Beni Ram was required to return the amount of Rs.5,500 taken by him on 22nd April, 1948 and transactions Exhibit 49 and Exhibit 40 were truly independent transactions to pay the antecedent debt of 22nd April, 1948.
The High Court has unnecessarily imputed the allegation of collusion on the defendants to hold their transactions invalid.
There could not have been any collusion unless Beni Ram, father of the plaintiffs may have joined hands with the defendants from the very beginning i.e. 22nd April, 1948 when he took an amount of Rs.5,500 as consideration for executing a condi tional sale deed.
There is nothing on record to infer such conduct on the part of defendants; on the other hand conduct of Beni Ram shows that he is all out in supporting his sons and to save the joint family property and to get the aliena tions declared invalid.
The trial court and the High Court both have recorded a finding against the plaintiffs that Beni Ram was not indulged in the vices of gambling, drinking and satta, and alienations were not invalid on that account.
Hemraj P.W. 1, one of the plaintiffs has appeared in the witness box but he nowhere stated that exhibit 48 was ille gal in any manner.
On the contrary he stated that his father had said to him that he had taken loans and had to pay the same.
These loans were taken from 56 Narayan Dass.
Sale deed conditional dated 22nd April, 1948 was shown and he admitted that it contained his father 's signature on it.
Narayan Dass has appeared as D.W. 1 and he clearly stated that he knew defendant No. 9 and he had loaned to him Rs.5,500 for his grain business vide Exhibit 48.
It was conditional sale dated 22nd April, 1948.
He further paid him back the money of Rs.5,500 as received from Manibhai and deposited Rs.3,745 on 11th February, 1953 out of the consideration received from Vithoba.
In further cross examination he stated that the account showed that on 10.2.1953 Rs.5,500 were credited in it as paid by Mahibhai on behalf of Beni Ram.
This was the consideration of Manib hai 's purchase of the property from Beni Ram.
It is perti nent to mention that even the High Court in its Judgment observed as under: "As we pointed out Exhibit 48 itself is the first alienation and there is no debt which is antecedent to 28th February, 1948 which can support Exhibit 48.
Though Exhibit 40 dated the 11th February, 1953, can be said to be an alienation for the purpose of discharging a debt or liability due under Exhibit 48, as we shall presently show if the liability created or incurred under Exhibit 48 is not binding upon the minor coparcener and sons of Beni Ram then Exhibit 48 also will not be binding upon them" The High Court further observed in this regard as under: "In the present case, as we have pointed out it is with the alienation of the property that the father has started a new business, which he had no right to impose the risk and liability upon the minor members.
If the business which Beni Ram, therefore, started were a new business and which he had no right to start so as to expose the interest of the minor coparceners in the family property, then we do not see how Exhibit 48 can be supported on the ground either of legal necessity or benefit to the estate.
If Exhibit 48, there fore, is a transaction which the father was not entitled to enter into and expose the family property to the risk, then we think that Exhibit 48 cannot be supported and is not for legal necessity.
If Exhibit 48 fails and cannot be held to be a valid and binding transaction upon the alienates then the transaction of 11th February, 1953, first of reconvey ance and then of a sale, evidenced by Exhibits 49 and 40 also must fail and cannot be supported.
" 57 The above observations made by the High Court clearly go to show that the High Court was considering the validity of the transaction of Exhibit 48 itself on the touchstone of its binding nature on the basis of any legal necessity or for the benefit of the estate of the joint family.
The High Court in this regard committed a clear error in assuming and treating the transaction of 22nd April, 1948 as a part and parcel of transactions of 11th February, 1953.
As a matter of fact the transactions of Exhibit 49 and Exhibit 40 dated 11th February, 1953 were independent but rather to pay the antecedent debt of 22nd April, 1948.
Mr. Garg Learned counsel.
for the plaintiff respondent contended that the transaction of conditional sale deed dated 22nd April, 1948 was void for want of legal necessity in as much as starting of a new business by Beni Ram did not constitute legal necessity.
It was also contended that in any case after the execution of reconveyance deed Exhibit 49 there was no antecedent debt that may have survived.
The reconveyance deed Exhibit 49 does not mention receipt of money from the vendee for repayment of any antecedent debt.
Exhibit 40 sale deed in favour of Manibhai was subsequent to reconveyance deed Exhibit 49 and the alleged payment by the vendee before the Registrar do not constitute payment for any independent antecedent debt which in fact and in reality existed on 11th February, 1953.
Strong reliance is placed on Benares Bank Limited vs Hari Narain & Ors., 59 Indian Ap peals, P. 300).
We do not find any force in the above contention of Mr. Garg.
We have already discussed in detail that the condi tional sale deed Exhibit 48 dated 22nd April, 1948 was not void even if the amount was taken by Beni Ram for his per sonal benefit of starting a new business of grain.
It was an independent transaction both in fact as well as in time to the subsequent transactions of 11th February, 1953.
The transaction of reconveyance deed dated 11th February, 1953 vide Exhibit 49 was for the benefit of not only Beni Ram but for the entire family including the plaintiffs.
There was no consideration for this reconveyance of the property except the transaction of sale made in favour of Manibhai on 11th February, 1953 vide Exhibit 40.
Thus sale deed Exhibit 40 was perfectly valid and was made in order to pay the an tecedent debt of Exhibit 48.
So far as Benares Bank Limited vs Hari Narain, case (supra) is concerned, it did not lay down any proposition against the conclusions arrived at by us.
In the above case the appellant Bank had instituted a 58 suit against the members of a joint Hindu family governed by the Mitakashara Law to recover the balance due on and mort gage of a joint family property to secure an advance of Rs.28,000.
The mortgage deed was executed by Jagdish Narain and Raghubir Narain each on behalf of his minor sons; the adult sons of Jagdish Narain were also joined in the deed.
The deed recited that the advance was required to pay off two earlier mortgages and to carry on the mortgagor 's busi ness.
Only the respondents, who were minors at the date of the mortgage, appeared to defend the suit.
The Trial Judge passed a preliminary decree for sale for the sum claimed.
On appeal the High Court of Allahabad held that the mortgage was valid only as to Rs. 18,000 which sum had been used to discharge antecedent debts.
As to the remaining sum of Rs. 10,000 they found it had not been proved that the alleged debt of Rs.6,342 existed, and that the business for the purposes of which the balance of Rs.3,658 had been applied was not an ancestral business, and that, therefore, there was no authority to bind the minor members in respect of it.
On further appeal their Lordships of the Privy Council held that the mortgage as regards the item of Rs.6,342 must be deemed to have been made for the payment of an antecedent debt of Jagdish Narain and Raghubir, and it was, therefore, binding upon their sons.
As regards the item of Rs.3,658 their Lordships found that this amount was borrowed for the Thika business.
Their Lordships after examining the evidence in this regard held that the business was started by Jagdish Narain and Raghubir Narain as managers of the family.
A business, therefore, cannot be said to be ancestral so as to render the minors ' interest in the joint family property liable for the debt.
Their Lordships did not agree with the argument that a business started by a father as manager, even if new, must be regarded as ancestral.
Thus it was held that the mortgage as to Rs.3,658 being neither for a neces sity recognised by the law nor for the payment of an an tecedent debt was wholly invalid under the Mitakashara Law, as applied in United Provinces and it did not pass the shares even of the alienating coparceners.
Thus in the above case their Lordships considered the mortgage as not binding only to the extent of Rs.3,658 which amount was given by the bank by the transaction in dispute itself.
In the case in hand before us the facts are entirely different and as we have already observed, an amount of Rs.5,500 was taken by Beni Ram in 1948 and if the same was paid back by transac tion Exhibit 40 dated 11th February, 1953, then it would certainly be a valid transaction for making the payment of an antecedent debt.
In Irukulapati Venkateswara Rao vs Vemuri Ammayya and Others, AIR 1939, Madras 561 it was held as under: 59 "On the above finding, Exhibit A would prima facie be bind ing on defendant 2 's share as well.
But it has been contend ed on his behalf that as the debts of defendant No. 1 were incurred by him in connection with a trade started by him self, when trade was not the normal occupation of the fami ly, the debts must be held to be avyavaharik debts and as such not binding on the son.
The Learned counsel for the appellant submitted that this contention was opposed to the decision in Atchutaramayya vs Ratanjee Bhootaji, 211; but he argued that it is supported by the decision of the Privy Council in Benares Bank Limited vs Hari Narain & Ors., 54 ALL 564.
We find nothing in 54 All 564 that supports this argument.
Their Lordships there decided only the question of the binding character of the mortgage as such on the footing that moneys had been bor rowed contemporaneously with the mortgage for the purpose of carrying on a trade started by the father.
They declined to deal with the question of the son 's liability for the debt under the pious obligation doctrine, on the ground that the question had not been raised in the Court in India." A Bench of three Judges of the Supreme Court in Luhar Amrit Lal Nagji vs Doshi Jayantilal Jethalal & Ors., ; has already held that the doctrine of pious obligation under which sons are held liable to discharge their father 's debts is based only on religious considera tions.
This doctrine inevitably postulates that the father 's debts must be vyavaharik.
If the debts are not vyavaharik or are avyavaharik the doctrine of pious obligation cannot be invoked.
Their Lordships quoted with approval the five proposi tions laid down by the Privy Council in the case of Brij Narain vs Mangala Prasad, (supra).
Dealing with Suraj Bansi Koer, case 6 Indian Appeals 88 (PC) observed as under: "We have carefully considered this matter and we are not dispossessed to answer this question in favour of the appel lants.
First and foremost in cases of this character the principle of stare decisis must inevitably come into opera tion.
For a number of years transactions as to immovable property belonging to Hindu families have taken place and titles passed in favour of alienees on the understanding that the propositions of law laid down by the Privy Council in 60 the case of Suraj Bansi Koer, 6 Indian Appeals 88 PC, cor rectly represent the true position under Hindu Law in that behalf.
It would, we think, be inexpedient to reopen this question after such a long lapse of time," It was further observed in the above case.
"It is also well known that, in dealing with questions of Hindu Law, the Privy Council introduced considerations of justice, equity and good conscience and the interpretation of the relevant texts sometimes was influenced by these considerations.
In fact, the principle about the binding character of the antecedent debts of the father and the provisions about the enquiry to be made by the creditor have all been introduced on considerations of equity and fair play.
When the Privy Council laid down the two propositions in the case of Suraj Bansi Koer, 6 Indian Appeals 88 PC, what was really intended was to protect the bona fide alie nees against frivolous or collusive claims made by the debtor 's sons challenging the transactions Since the said propositions have been laid down with the object of doing justice to the claims of bona fide alienees, we do not see any justification for disturbing this well established position on academic considerations which may perhaps arise if we were to look for guidance to the ancient texts today.
In our opinion, if there are any anomalies in the adminis tration of this branch of Hindu Law their solution lies with the legislature and not with the courts.
What the commenta tors attempted to do in the past can now be effectively achieved by the adoption of the legislative process.
There fore, we are not prepared to accede to the appellants ' argument that we should attempt to decide the point raised by them purely in the light of ancient Sanskrit Texts." In Vyankates Dhonddeo Deshpande vs Sou.
Kusum Dattatraya Kulkarni & Ors., ; , this Court clearly laid down as under: "Assuming we are not right in holding that the debt, was for the benefit of the estate of the joint family and, there fore, a joint family debt, and assuming that Mr. pal is right in contending that it was the personal debt of the father, 61 yet the doctrine of pious obligation of the son to pay the father 's debt would still permit the creditor to bring the whole joint family property to auction for recovery of such debts.
Where the sons are joint with their father and debts have been contracted by the father for his personal benefit, the sons are liable to pay the debts provided they were not incurred for an illegal or immoral purpose.
This liability to pay the debt has been described as pious obligation of the son to pay the father 's debt not tainted with illegality or immorality.
It was once believed that the liability of the son to pay the debts contracted by the father, though for his own benefit, arises from an obligation of religion and piety which is placed upon the sons under the Mitakshara Law to discharge the father 's debts, where the debts are not tainted with immorality, yet in course of time this liabili ty has passed into the realm of law.
" Thus we also hold that even if any loan is taken by the father for his personal benefit which is found as vyavaharik debt and not avyavaharik, the sons are liable to discharge their father 's debts under the doctrine of pious obligation and in this view of the matter if any alienation of the joint family property is subsequently made to discharge such antecedent debt or loan of the father, such alienation would be binding on the sons.
Now, so far as the house property is concerned, the same was subsequently sold by Manibhai to defendants Nos.
4 to 8.
The defendants Nos. 4 to 8 demolished the house and by spending an amount of Rs.25,000 constructed a new house much before the filing of the present suit.
The issue No. 10 was framed in this regard and the Trial Court gave a categorical finding that the defendants Nos. 4 8 had proved that they had spent Rs.25,000 on the reconstruction of the house within the knowledge of the plaintiffs Nos. 1 and 2 after his purchase from the defendant No. 1 and still none had objected or noticed them against it.
In this view the plain tiffs Nos. 1 and 2 and the defendant No. 9 would be estopped from challenging the title of defendants Nos. 4 to 8 now.
The High Court also did not set aside the above finding and as such we uphold the finding of the Trial Court in this regard.
Now, so far as the transactions Exhibit 41 and Exhibit 42(61) are concerned, they stand on a different footing altogether.
By Exhibit 41 part of agricultural field survey No. 1 measuring 10.69 acres has been 62 sold by Beni Ram and his four sons to Vishwanath and Vithal Rao for a sum of Rs.5,345.
By another transaction vide Exhibit 42(61) Beni Ram and his sons sold one acre of agri cultural land of survey No. 1 and 8.40 acres.of survey No. 19 in favour of Vithal Rao and Vishwanath for a sum of Rs.3,000 on 19th July, 1954.
The High Court in this regard has recorded a clear finding that the aforesaid alienations were made neither for any legal necessity nor for the bene fit of the estate nor for payment of any antecedent debt.
We have also gone through the evidence in this regard and we are fully convinced that the aforesaid transactions ' had no connection with Exhibit 48 or to pay any other antecedent debt and we agree with the finding of the High Court in this regard.
The net result of the above discussion is that this appeal is allowed in part.
The Judgment and decree passed by the High Court is set aside to the extent of granting a decree for possession of the house property and agricultural land survey Nos. 3 and 18 sold in favour of Manibhai vide Exhibit 40 dated 11th February, 1953 and the suit with regard to these properties is dismissed.
The rest of the Judgment and decree of the High Court in respect of agricul tural lands survey Nos. 1 and 19 which were alienated in favour of Vithal Rao and Vishwanath, defendants Nos. 2 and 3 vide Exhibits 41 and 42(61) is maintained and the suit of the plaintiffs for possession with regard to these proper ties stands decreed.
In the facts and circumstances of the case, the parties shall bear their own costs.
T.N.A. Appeal allowed.
| IN-Abs | 'B ', who received some agricultural lands and a house in the partition of his ancestral properties, and his minor sons 'H ' and 'R ' (Respondent) mortgaged their properties for a sum of Rs.5,500 by executing a conditional sale deed on 22nd April, 1948 in favour of 'N '.
But by a reconveyance deed dated 11th February, 1953 they got their properties reconveyed in their favour by 'N '.
On the same"day i.e. 11 th February, 1953 they sold some agricultural lands and the house for Rs.5,500 to 'M ', (Appellant) who was brother of 'N '.
Subsequently 'M ' sold the house to 'W ' and others.
The remaining land was sold by them on the same date to 'V ' and his brother. 'B 's sons and wife (Plaintiffs) filed a suit against 'M ' (Defendant No. 1), 'V ' and his brother (Defendant No. 2 and 3), 'W ' and others (Defendant No. 4 to 8) and 'B ' (Defendant No. 9) for a decree of possession of the agricultural lands and house which came in their share as members of the Joint Hindu Family contending that alienation made by 'B ' was not binding on them because it was neither for any legal neces sity nor for the benefit of the minors or their Estate, but was for satisfying the personal needs of 'B ' who had the vices of drinking and gambling and was spending everything he used to earn in his business of grain delali.
41 The Trial Court dismissed the suit by holding that (i) 'B ' was not indulging in any vices, (ii) the alienation made by 'B ' was for the satisfaction of ' the antecedent debt due on mortgage '; and (iii) 'B ' was a broker who needed cash capital for his business and (iv) the plaintiffs and 'B ' were estopped from challenging the title of 'W ' and others, since 'W ' and others (Defendant No. 4 to 8) had spent Rs.25,000 on the reconstruction of the house purchased from 'M ' within the knowledge of plaintiffs and without their objection.
Plaintiffs preferred an appeal before the High COurt contending that 'M ' and 'N ' ran a family firm of which they were owners and the execution of the conditional sale deed, reconveyance deed and the subsequent sale deed of the same day were nothing but a device and were really a part of one and the same transaction and that if the original transac tion of 22nd April, 1948 of the conditional sale with 'N ' was not valid and binding on the minor sons of 'B ' then the subsequent transaction of 11th February, 1953, for payment of debt or liability due under that alienation cannot be supported.
Allowing the appeal, the High Court reversed the judg ment of the Trial Court, had passed a decree for possession of the suit properties in favour of the plaintiffs by hold ing (i) that the transactions dated 22nd April, 1948 as well as all other transactions of 11th February, 1953 were part of the same transaction; (ii) that since transaction dated 22nd April, 1948 was invalid because it was not supported by any legal necessity, then the subsequent transactions of sale and reconveyance of 11th February, 1953 were also invalid.
Hence this appeal by special leave by the defend ants.
Allowing the appeal in part, this Court, HELD: 1.
The doctrine of pious obligation under which sons are held liable to discharge their father 's debts is based only on religious considerations.
This doctrine inevi tably postulates that the father 's debts must be vyavaharik.
If the debts are not vyavaharik or are vyavaharik the doc trine of pious obligation cannot be invoked.
[59E] Luhar Amrit Lal Nagji vs Doshi Jayantilal Jethalal & Ors., ; , relied on.
Where the sons are joint with their father, and debts have been contracted by the father even for his own personal benefit, the sons are liable to pay the debts provided they were not incurred for an immoral 42 or illegal purpose and such debts were antecedent to the alienations impugned.
[61B] 2.1 Even if any loan is taken by the father for his personal benefit which is found as vyavaharik debt and not avyavaharik, the sons are liable to discharge their father 's debts under the doctrine of pious obligation and if any alienation of the joint family property is subsequently made to discharge such antecedent debt or loan of the father, such alienation would be binding on the sons.
[6 ID] Mulla, "Principles of Hindu Law", 15th Edn.
Paragraph 295; lrukulapati Venkateshwara Rao vs Vemuri Amayya & Ors.
, A.I.R. 1939 Mad. 561, referred to.
Vyankates Dhonddeo Deshpande vs Sou.
Kusum Dattatraya Kulkarni & Ors., [1979] 1 955, relied on.
Atchutaramayya vs Ratanjee Bhootaji, [1926] A.I.R. Mad. 211; Suraj Bansi Koer vs Sheo Prasad Singh, 6 I.A. 88 (PC) cited.
Benares Bank Ltd. vs Hari Narain & Ors., LIX I.A. 300, distinguished.
"Antecedent debt" means antecedent in fact as well as in time i.e. to say, that the debt must be truly independent and not part of the transaction impeached.
To constitute a debt an "antecedent" debt it is not necessary that the prior and subsequent creditors should be different persons.
All that is necessary is that the two transactions must be disassociated in time as well as in fact.
[53E F] Mulla, "Principles of Hindu Law", 15th Edn.
paragraph 295; Brij Narain vs Mangala Prasad, A.I.R. 1924 P.C. 50, referred to. 4.
It is necessary to examine each transaction independ ently and then to arrive at a conclusion whether such a transaction or alienation can be held to be valid or not.
[52G H] 4.1 The approach of the High Court in considering trans action dated 22nd April, 1948 as well as all the other transactions of 11th February, 1953 being part of the same transaction, is not correct.
[57B] 5.
The conditional sale deed dated 22nd April, 1948 was not void even if the amount was taken by 'B ' for his person al benefit of starting a 43 new business of grain.
It was an independent transaction both in fact as well as in time to the subsequent transac tions of 11th February, 1953.
The transaction of reconvey ance deed dated 11th February, 1953 was for the benefit of not only 'B ' but for the entire family including the plain tiffs.
There was no consideration for this reconveyance of the property except the transaction of sale made in favour of 'M ' on 11th February, 1953.
This sale deed was perfectly valid and was made in order to pay the antecedent debt.
[57F G] 6.
So far as the house property is concerned, the Trial Court 's finding that defendants Nos. 4 to 8 had spent Rs.25,000 on the reconstruction of the house within the knowledge and without the objection of the plaintiffs Nos. 1 and 2 and as such plaintiffs No. 1 and 2 and defendant No. 9 were estopped from challenging the title of those defendants had not been set aside by the High Court.
This finding of the High Court has to be upheld.
[61F G] 7.
So far as the transactions of sale of the remaining properties in favour of 'V ' and his brother are concerned, they stand on a different footing altogether.
The High Court in this regard has recorded a clear finding that the afore said alienations were made neither for any legal necessity nor for the benefit of the State nor for payment of any antecedent debt.
[61H; 62B] The evidence in this regard is also fully convincing that the aforesaid transaction had no connection with pay ment of any antecedent debt.
The finding of the High Court has to be upheld in this regard.
[62C] 8.
Accordingly the Judgment and decree passed by the High Court is set aside to the extent of granting a decree for possession of the house property and agricultural lands sold in favour of 'M ' on 11th February, 1953, and the suit with regard to these properties is dismissed.
The rest of the Judgment and decree of the High Court in respect of agricultural lands which were alienated in favour of 'V ' and his brother is maintained and 'the suit of the plaintiffs for possession with regard to these properties stands decreed.
[62D E]
|
ivil Appeal No. 1537 of 1990 From the Judgment and Order dated 6.2.1989 of the Madhya Pradesh High Court in M.C.C. No. 213 of 1988.
K. Parasaran, P.P. Rao, Sushil Kumar Jain, Mrs. Pratibha Jain and Sudhanshu Alreya for the Appellant.
M.L. Chansoria, R.K. Gupta, K.K. Gupta, Dr. A.M. Singhvi, Ashok Mathur and N. Waziri for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special leave granted.
Mr. B.M. Lal, J. of the Madhya Pradesh High Court while dismissing an apparently unsustainable review petition has, however, made certain derogatory remarks against Mr. A.M. Mathur, senior Advocate and also the Ex Advocate General of the State.
Mr. Mathur has appealed to this Court for setting aside that order.
This matter pertains to a case which has come to be known as M.P. Liquor case.
It was with regard to the grant for construction of new distillaries by the policy decision of the State Government of Madhya Pradesh.
That policy decision was challenged before the High Court by way of writ petitions.
The Writ Petitions were allowed by the Division Bench consisting of the Acting Chief Justice Mr. J.S. Verma (as he then was) and Justice B.M. Lal.
In those writ peti tions, 113 Mr. Mathur as Advocate General appeared and argued for the State Government.
Learned Acting Chief Justice delivered the main judgment in the writ petitions invalidating the deci sion of the Government on the ground that it violated Arti cle 14 of the Constitution.
Justice B.M. Lal delivered a separate concurring opinion in which he made highly dispar aging remarks attributing mala fides and underhand dealing to the State Government.
Against the judgment of the High Court, several appeals including one by the State of Madhya Pradesh were filed before this Court.
The appeal preferred by the State was argued by the then Attorney General of India assisted by the appellant.
This Court.
allowed the appeals and set aside the judgment of the High Court.
The decision of this Court has since been reported in ; of M.P. vs Nandlal Jaiswal & Ors.,).
Bhagwati, CJ., speaking for the Court in that case while expressing strong disapproval of the strictures made by B.M. Lal, J. observed (at p. 66): "We may observe in conclusion that Judges should not use strong and carping language while criticising the conduct of parties of their witnesses.
They must act with sobriety, moderation and restraint.
They must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do consider able harm and mischief and result in injustice.
Here, in the present case, the observations made and strictures passed by B.M. Lal, J. were totally unjustified and unwarranted and they ought not to have been made.
" On or about 3rd June 1988 i.e. after a delay of 738 days Mr. Promod Kumar Gupta, Advocate who had no connection whatsoev er with the earlier litigation in the writ petitions or appeals, filed a review petition before the High Court.
He was represented by Mr. section Dixit, Advocate.
In the review petition it was inter alia alleged that the State Government by committing fraud has procured the judgment from the Supreme Court, thereby vitiating the most solemn proceedings of the Apex Court of the Nation.
He has also filed an appli cation No. 3858 of 1988 for interim findings on the question of fraud.
On 29 October, 1988, the matter was listed for admission before a Bench consisting of learned Judges Mr. C.P. Sen and Mr. B.M. Lal.
After arguments, C.P. Sen, J., seems to have dictated his order in the 114 open Court dismissing the review petition.
He expressed the view that the petitioner has no locus standi to file the petition and the economically well to do parties to the writ petitions who lost their case before this Court did not choose to file any review petition.
He also held that the petition for review was not maintainable before the High Court since the decision of the High Court was reversed by this Court.
The petition was also held to be hopelessly barred by limitation and there was no sufficient cause for condoning the inordinate delay.
B.M. Lal, J. did not pass any order on 29 October, 1988.
He pronounced his order on 6th February 1989.
In this inter regnum there was another application from Mr. Gupta.
On 25 January 1989, he filed an application in the aforesaid review petition requesting the Court to take judicial notice of some extract of the Vidhan Sabha proceedings and to pass appropriate strictures against the appellant.
According to him, that extract of the proceedings of the Vidhan Sabha would lend credence to his contention that the State has practised fraud on the Court.
That application was not served on the appellant nor the Court gave him any opportu nity to file his counter.
It may be mentioned that Mr. Mathur has tendered his resignation as Advocate General on 25 January 1989.
On 6 February 1989, the said application was taken on record along with the documents annexed there by.
On the same day B.M. Lal, J. pronounced his order dis missing the review petition.
The relevant portion of that order is as under: "While briefing about the application for amendment of the return to the Chief Minister Shri Arjun Singh, had Shri A.M. Matbut, Advocate General acted in bona fide and honest manner, the fraud on the Court would have been avoided.
So also the misleading press statement by the Chief Minister to the Blitz would have been on true facts and this situation would not have arisen; putting the Courts in an embarrassing position.
" Continued: "It is the moral duty of a lawyer, much less the Advocate General, to act faithfully for the cause of his client and to furnish information about the Court 's proceedings cor rectly.
In the past the chair of Advocate General was adorned by glorious and eminent lawyers who never showed any sycophancy and never suffered from mosaifi.
As such, the 115 action on the part of the Advocate General, was not befit ting to the status of the High Office.
" Added: "It appears that this was the reason that Shri A.M. Mathur avoided filing reply to the petition and skilfully succeeded in his attempt to abstain himself from the case on28.8. 1988, presumably, he had no courage to face the situation." Finally, rounded off the conclusion: "As far as exercise of jurisdiction of this Court is con cerned, observing the judicial discipline envisaged under Article 141 of the Constitution and has been merged in the decision of the Supreme Court particularly when the decision of this Court in State of Madhya Pradesh vs Nandial Jaiswal, case, it is for the petitioner, if he is so advised, to vindicate his grievances before the Apex Court.
Learned counsel further pointed out that one of the distiller 's application for modification of the order is sub judice before the Apex Court.
As such, in view of the observations made in A.R. Antulay 's, case [1988] SCC II 602 the petitioner, if so advised, may approach the Apex Court for getting redress.
" From the foregoing order it will be seen that the learned Judge seems to have formed an opinion that the appellant did not act honestly and bona fide in briefing the then Chief Minister Mr. Arjun Singh and if he had acted bona fide and in honest manner, the fraud on the Court would have been avoided and the Chief Minister would not have given a misleading press statement.
He has also remarked that the appellant did not act befitting with the status of the High Office of the Advocate General and he did not have the courage to face the situation in the Court.
Such are his conclusions, or surmises in the review petition which was not disposed of on the merits but dismissed for want of jurisdiction.
The appellant 's complaint before us is that he had no opportunity to meet the allegations in the review petition, much less as against averments in the subsequent application dated 25 January, 1989.
He made it clear to the High Court on 6 October 1988 and also 116 on 29 October 1988 that he entered appearance pursuance to service of a copy of the review petition as per the High Court rules, on the Advocate General 's office.
He has not entered appearance as such on behalf of the State or other respondents.
He has, further, made it clear that there was no ground for review and it deserved to be dismissed and so he did not wish to enter appearance at that stage before the admission of the review petition.
The appellant appears to be correct in these statements and they are found recorded in the Court proceedings dated 6 October, 1988.
It may be noted that C.P. Sen, J. dismissed the review petition on the ground of maintainability, limitation and locus standi of the petitioner.
Thereafter the application was filed to pass strictures against the appellant in the light of the Vidhan Sabha proceedings.
B.M. Lal, J. seems to have acceded to that request.
No doubt each Judge is inde pendent to form an opinion of his own in deciding cases or in any phase of the decisional function.
But the facts of the present case against the background of the views ex pressed by this Court apropos to the earlier strictures against the Government, should have warned B.M. Lal, J., no matter how clear he was in his mind, not to criticise the appellant.
The avoidance of even the appearances of bitter ness, so important in a Judge required him not to cast aspersions on the professional conduct of the appellant.
Justice Cardozo of course said: "The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass judges by.
We like to figure to ourselves the processes of justice as coldly objective and impersonal.
The law, conceived of as a real existence, dwelling apart and alone, speaks, through the voices of priests and ministers, the words which they have no choice except to utter.
That is an ideal of objec tive truth toward which every system of jurisprudence tends . .
It has a lofty sound; it is well and finely said; but it can never be more than partly true. "(1) Justice Felix Frankfurter, put it with a different emphasis: "Judges are men, not disembodied spirits.
Of course a Judge is not free from preferences or, if you will, biases.
"(2) (1) The Nature of the Judicial Process by Benjamin N. Cardo zo p. 168 169.
(2) Some observations of Felix Frankfurter, J., on the Nature of Judicial Process of Supreme Court Litigation 98 Proceedings AM Phil Society 233 (1954).
117 It is true that the judges are flesh and blood mortals with individual personalities and with normal human traits.
Still what remains essential in judging, Justice Felix Frankfurter said: "First and foremost, humility and an understanding of the range of the problems and (one 's) own inadequacy in dealing with them, disinterestedness . . and allegiance to noth ing except the effort to find (that) pass through precedent, through policy, through history, through (one 's) own gifts of insights to the best judgment that a poor fallible crea ture can arrive at in that most difficult of all tasks, the adjudication between man and man, between man and state, through reason called law.(3) Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army.
The duty of restraint, this humility of function should be a constant theme of our judges.
This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary.
Judicial restraint in this regard might better be called judicial respect; that is, respect by the judiciary.
Respect to those who come before the Court as well to other co ordinate branches of the State, the Execu tive and Legislature.
There must be mutual respect.
When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.
The Judges Bench is a seat of power.
Not only do judges have power to make binding decisions, their decisions legit imate the use of power by other officials.
The Judges have the absolute and unchallenged control of the Court domain.
But they cannot misuse their authority by intemperate com ments, undignified banter or scathing criticism of counsel, parties or witnesses.
We concede that the Court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a gener al principle of the highest importance to the proper admin istration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct.
(See (i) R.K. Lakshmanan vs
A.K. Srinivasan, [1976] I SCR 204 and (ii) Niranjan Patnaik vs Sashibhushan Kar, at 576.
(3) The Judiciary and Constitutional Politics Views from the Bench by Mark W. Cannon and David M.O. 's Brien p. 27.
118 Learned Judge having held that the High Court has no jurisdiction to entertain the review petition ought not to have commented on the professional conduct of the appellant and that too without an opportunity for him.
We regret to note that the observations made and aspersions cast on the professional conduct of the appellant are not only without jurisdiction, but also they are wholly and utterly unjusti fied and unwarranted.
We therefore, allow the appeal and expunge all the remarks made by B.M. Lal, J. against the appellant in the impugned order.
Normally, we would have awarded heavy costs against the respondent but since the respondent is also an Advocate, we refrain from making any order as to costs.
G.N. Appeal allowed.
| IN-Abs | While allowing a writ petition, one of the Judges deliv ered the main Judgment invalidating the decision of the Government on the ground that it violated Article 14 of the Constitution.
The other Judge delivered a separate, but concurring opinion which contained highly disparaging re marks attributing mala fides and underhand dealing on the part of the State Government.
Several appeals were filed against the said decision before this Court.
This Court allowed the appeals and observed that the strictures passed in the concurring Judgment were totally unjustified and unwarranted.
State of M.P. vs Nandial Jaiswal & Ors., ; Thereafter an Advocate who had no connection whatsoever with the litigation filed a review petition before the High Court.
It was alleged that the State Government committed fraud and procured the judgment from this Court.
The matter was listed before a Division Bench on 29th October 1988, and one of the Judges dismissed the review petition as not maintainable.
Meanwhile, another application for review was filed stating that the Vidhan Sabha proceedings would lend credence to the claim that the State Government had prac tised fraud on the Court.
On 6th February, 1989 the other Judge,(who had passed strictures against the Government in the Writ Petition) dismissed the review position, for want of jurisdiction, with an observation that had the appellant acted bona fide in briefing the then Chief Minister, the fraud on the Court, as also the misleading press statement by the then Chief Minister, would have been avoided.
It was further observed that the appellant did not act befitting the status of the high office of the Advocate General and that he did not have the courage to face the situation in the Court later.
Before this Court.
the appellant contended that he had no 111 opportunity to meet the allegations in the review petitions.
He had also contended that earlier he entered appearance as Advocate General on behalf of the State, and that when the review petitions were heard neither he was the Advocate General nor did he wish to enter appearance since he thought that the review petitions deserved to be dismissed as there were no valid grounds.
Allowing the appeal, this Court, HELD: 1.
Judicial restraint and discipline are as neces sary to the orderly administration of justice as they are to the effectiveness of the army.
The duty of restraint, this humility of function should be a constant theme of our judges.
This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary.
Judicial restraint in this regard might better be called judicial respect; that is, respect by the judiciary.
Respect to those who come before the Court as well to other co ordinate branches of the State, the Execu tive and the Legislature.
There must be mutual respect.
When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.
[117C E] 2.
The Judges Bench is a seat of power.
Not only do judges have power to make binding decisions, their decisions legitimate the use of power by other officials.
The Judges have the absolute and unchallengeable control of the Court domain.
But they cannot misuse their authority by intemper ate comments, undignified banter or scathing criticism of counsel, parties or witnesses.
The Court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication but it is a general prin ciple of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct.
[117F G] R.K. Lakshmanan vs
A.K. Srinivasan; , and Niranjan Patnaik vs Sashibhushan Kar, , relied on.
No doubt each Judge is independent to form an opinion of his own in deciding cases or in any phase of the deci sional function.
But the facts of the present case against the background of the views expressed by this Court apropos to the earlier strictures against the Government, should have warned the Judge no matter how clear he was in his mind, 112 not to criticise the appellant.
The avoidance of even the appearance of bitterness, so important in a Judge, required him not to cast aspersions on the professional conduct of the appellant, especially when he held that the High Court had no jurisdiction to entertain the review petition.
The observations made are not only without jurisdiction, but are also wholly and utterly unjustified and unwarranted, and hence expunged.
[116C 1); 118B] The Nature of the Judicial Process by Benjamin N. Cardo zo, p. 168 169; Some Observations of Felix Frankfurter, J., on the Nature of Judicial Process of Supreme Court Litiga tion, 98 Proceedings AM Phil Society 233 (1954) and The Judiciary and Constitutional Politics Views from the Bench by Mark W. Cannon and David M.O. 's Brien, p. 27, referred to.
|
ition Civil Nos.
999 of 1988 and 1043 of 1989.
(Under Article 32 of the Constitution of India).
R.K. Jain, Rakesh K. Khanna, Ms. Sangeeta Mandal, Surya Kant and R.P. Singh, (NP) for the Petitioners.
106 section Hegde, Additional Solicitor General, Ms. A. Subha shini, Ms. Uma Jain and R.K. Mehta for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Both these are applications under article 32 of the Constitution, the first one by three peti tioners and the second by one.
The respondent All India Institute of Medical Sciences has been set up under a Cen tral Act of that name of 1956.
Section 13 of the Act pro vides the objects of the Institute which are: "(a) to develop patterns of teaching in udergraduate and post graduate medical education in all its branches so as to demonstrate a high standard of medical education to all medical colleges and other allied institutions in India; (b) to bring together in one place educational facilities of the highest order for the training of personnel in all important branches of health activity; and (c) to attain self suffi ciency in post graduate medical education.
" Section 14 of the Act lays down the functions of the Institute and, inter alia provides in cls.
(a) and (b): "14.
With a view to the promotion of the objects specified under section 13, the Institute may (a) provide for undergraduate and post graduate teaching in the science of modern medicine and other allied sciences including physical and biological sciences; (b) provide facilities for research in the various branches of such sciences"; Petitioners have alleged that ever since its inception the Institute has taken up various research projects and has made valuable contribution to the updating of medical knowl edge and building up coordinated research activity.
For the purposes of carrying out such research programme in conjunc tion with the world Health Organisation, the Indian Council of Medical Research and other celebrated organisations both national and international research projects are undertaken by the Institute by employing researchers.
For the carrying out of the assignments of research projects the petitioners were employed more than a decade ago and their assertion to the effect that 107 they have continuously worked for more than 10 15 years has not been disputed.
Petitioners have also asserted that they have worked to the satisfaction of the authorities and the guides and there is no denial of that fact too.
It is the case of the petitioners that by working for such a long period continuously and in different projects under differ ent guides, they have picked up the requisite expertise which would be useful in carrying out any normal research project.
Petitioners allege that there is work in the hands of the Institute but petitioners ' employment excepting in the case of Dr. Jasbir Kaur Dhawan (Kochhar), petitioner No. 3 in the first writ petition, as Researchers have now been terminated.
They contend that having worked for a long period in the Institute they have reached an age in life where they are no more entitled to enter into Government service or any other suitable public employment.
While they have gathered the requisite expertise and are useful for the purpose of assisting research programme with the deprivation of their employment and faced with the ban of over age for any public employment they are deprived of the source of sustenance and the nation is deprived of their useful serv ice.
The Institute, the Union of India in the Ministry of Health and the Indian Council of Medical Research have responded to the notice on the petition.
A common affidavit has been filed purporting to be on behalf of the respondents by the Director of the Institute.
It has been stated therein that the Institute is assigned projects and the Project Guides pick up Researchers depending upon suitability.
The employment is project wise and once the project is complete, the job comes to an end.
The fact that there has been con tinuous engagement available to the petitioners does not change the nature of employment and the fortuitous circum stance of continuity does not confer any right in the peti tioners to be continued in employment even when the Insti tute does not have any research project in hand.
It has been specifically pleaded that the services of the petitioners are not required any longer in the absence of any research project with the Institute where their services would be suitable.
The other two respondents being the Union of India and the Indian Council of Medical Research have not filed any counter affidavit of their own.
The Institute and the Union of India appeared through separate Advocates at the time of hearing.
Mr. Hegde, learned Additional Solicitor General indicat ed his sympathy to the cause of the petitioners and took an adjournment from the Court to explore the possibility of offering a solution to the 108 problem and returned to tell us that though there was a human problem, no solution could be worked out.
The Institute set up by statute is intended to carry on research in a continuous way to improve the level of medical knowledge.
Under the Act the Institute is an autonomous body though the Chairman thereof is no other than the Union Minister of Health.
It is true that the Institute is en trusted from time to time with research projects by the World Health Organisation, the Indian Council of Medical Research and other government and semi government bodies.
It is appropriate that a scheme should be evolved by the Insti tute in coordination with the Health Ministry and the Indian 2Council of Medical Research so that a team of researchers is built up to meet the general requirements of research.
It is quite possible that certain projects would require spe cialised hands and on such occasions a special team could be set up on casual basis by drawing the competent hands from different institutions for a period but to keep up the tempo of research if a team of researchers is built up, it would be convenient for the Institute for purposes of discipline and control as also for efficiency.
The Health Ministry must also sponsor continuous research projects in the field of medicine and health and for such purpose several projects should be listed out from time to time and entrusted to the respondent Institute as also a similar Institute at Chandi garh and to institutes as and when set up elsewhere.
This would assist in updating relevant medical information and knowledge, apart from building up a scientific tone and temper for general circulation.
We commend that the Insti tute initiates seriously action in this regard without delay and we suggest that the Ministry of Health and the Indian Council of Medical Research collaborate with the Institute to work out the same.
Respondent no.3 Indian Council of Medical Research has not chosen to appear separately before us inspite of service of notice.
Since we have been told that the respondent Institute has immediately no scope to employ the petitioners excepting the one that we have named above, we direct that the remaining three petitioners in these two petitions should be provided employment either as Researchers or in any suitable alternative employment until their inclusion in a team of researchers is considered.
The Indian Council of Medical Research shall take appropriate steps to offer adequate employment to the three petitioners within two months hence.
If the question of funding becomes necessary, we direct the Ministry of Health to cooperate and place adequate funds at the disposal of the Indian Council of Medical Research.
109 These two petitions are disposed of with the aforesaid directions and without any order for costs, with liberty to the petitioners to apply, with the fond hope that all con cerned will appreciate the spirit of the order and implement the direction in the proper way as stipulated.
N.P.V. Petitions disposed of.
| IN-Abs | The Petitioners were employed by the respondent Insti tute for carrying out assignments of research projects undertaken by the Institute.
The employment of three of the four petitioners was terminated.
The petitioners filed Writ Petitions in this Court alleging that they were continuously employed for more than 10 15 years and had reached an age in life where they were no more entitled to enter into Govern ment service or any other suitable employment and, with the deprivation of their employment they were deprived of the source of sustenance and the nation of their useful service, as they had picked up requisite expertise which would be useful in carrying out any normal research project.
In the common affidavit filed on behalf of the respond ents, the respondent Institute stated that the employment was project wise,.and once the project was complete, the job came to an end, and the services of the petitioners were no longer required in the absence of any research project, and that the fortuitous circumstances of continuous engagement did not confer any right on the petitioners to be in contin ued employment even when no research project was in hand.
Disposing of the petitions, this Court, HELD: The All India Institute of Medical Sciences set up by 105 statute is intended to carry on research in a continuous way to improve the level of medical knowledge.
The Institute is entrusted from time to time with research projects by the World Health Organisation, the Indian Council of Medical Research and other government and semigovernment bodies.
Therefore, a scheme should be evolved by the Institute in coordination with the Health Ministry and the Indian Council of Medical Research so that a team of researchers is built up to meet the general requirements of research.
Certain projects would quite possibly require specialised hands and on such occasions a special team could be set up on casual basis by drawing the competent hands from different institu tions for a period but to keep up the tempo of research if a team of researchers is built up, it would be convenient for the Institute for purposes of discipline and control as also for efficiency.
[108B C] The Health Ministry must also sponsor continuous re search projects in the field of medicine and health and for such purpose several projects should be listed out from time to time and entrusted to the respondent Institute as also a similar Institute at Chandigarh and to Institutes as and when set up elsewhere.
This would assist in updating rele vant medial information and knowledge, apart from building up a scientific tone and temper for general circulation.
[108D E] The Institute should initiate seriously action in this regard without delay and the Ministry of Health and Indian Council of Medical Research should collaborate with the Institute.
[108E] Since the respondent Institute has immediately no scope to employ the petitioners, excepting the one already re tained, the remaining three petitioners should be provided employment either as Researchers or in any suitable alterna tive employment until their inclusion in a team of research ers is considered.
The Indian Council of Medical Research should take appropriate steps to offer adequate employment to the three petitioners within two months hence.
If neces sary, the Ministry of Health should cooperate and place adequate funds at the disposal of the Indian Council of Medical Research.
[108F H]
|
Criminal Appeal No. 461 of 1987.
From the Judgment and Order dated 20.5.1987 of the Delhi High Court in Criminal Revision No. 105 of 1987.
Ashok Desai, Additional Solicitor General, P.K. Chaube, G. Venkatesh Rao, Ms. A. Subhashini and P.K. Choudhary for the Appellant.
R.K. Garg, J.P. Pathak and P.H. Parekh for the Respondent.
The Judgment of the CoUrt was delivered by section RATNAVEL PANDIAN, J.
The State represented by C.B.I., New Delhi has directed this appeal against the Order dated 20.5.1987 of the High Court of Delhi passed in Criminal Revision No. 105 of 1987 dismissing the petition of the petitioner in limine.
The relevant facts which have given rise to this appeal can be stated thus: The respondent, S.J. Choudhary is taking his trial before the Additional Sessions Judge, New Delhi for the offences under Section 302 I.P.C. and Sections 3 and 4 of the Explosive Substances Act in Sessions Case No. 36 of 1983.
According to the prosecution that on 2.10.1982 at about 5.45 p.m., the deceased in this case, namely, Krishan Sikand received a parcel addressed to him.
The deceased being unaware of the camouflaged contents opened the parcel which on opening exploded resulting in the instantaneous death of the deceased.
Relating to this incident, a case was registered at Hazrat Nizamuddin Police Station as FIR No. 305 dated 2.10.1982.
The investigation was taken up by the police of the said police station.
Thereafter, the investi gation was transferred to Crime Branch, Delhi on the very next day i.e. on 3.10.1982 and finally in March 1983 to the Central Bureau of Investigation where it was registered as case RC 3/83 CBI/DSPE/CIUI(P)/New Delhi.
The respondent/accused was arrested by the C.B.I. on 1.8.83.
Under the orders of Court, the 126 custody of the respondent was handed over to the CBI for sometime.
After completing the investigator the CBI laid the charge sheet on 28.10.1983.
Presently, the case is pending trial before the Addi tional Sessions Judge, Delhi.
While the petitioner in the SLP, filed in August, 1987 would state that as many as 63 prosecution witnesses have been examined and PW 64 is in the witness box, the respondent in his affidavit dated 21.2.
1990 has stated that so far 67 witnesses have been examined.
Be that as it may, according to the prosecution the cover of the device parcel containing camouflaged live hand grenade was found pasted with a typewritten name and address of the deceased, Krishan Sikand on a white slip and the explosion of the hand grenade resulted in the shattering of the materials into pieces inclusive of the said slip.
The police collected from the scene of incident the typewritten pieces of the paper in which the grenade had been wrapped amongst the debris and remanents which were sent to the Central Forensic Science Laboratory for examination and expert opinion.
In the laboratory, the parcel sent by the Investigating Agency for examination was opened by PW 61, Dr. G.R. Prasad, Head of the Ballistic Division on 12.10.1982.
He while examining the contents of the parcel succeeded in partially reconstructing the typewritten name and address of the deceased from the shattered pieces of the slip.
It is the version of the prosecution that on 5.8.83, while the respondent was in the custody of the CBI pursuant to the order of the Court, he made a voluntary confession which led to the discovery of the fact that the address on the aforesaid parcel was got typed by him from a commercial college namely, Janta Commercial College at I 43, Lajpat Nagar II, New Delhi.
The Investigating Agency took the specimen of typing prints from the 13 English typewriters found in the said college.
The re constructed typed address and the specimen type prints were examined by Sh.
S.K. Gupta.
Head of Document Division in the Central Forensic Science Laboratory.
Mr. S.K. Gupta gave his opinion that on balance of similarities and dissimilarities, it is a asona ble to conclude that the typescripts found on the slip pasted on the wrapper of the parcel collected from the scene have been typed from one of the machines of the Janta Com mercial College as both the impressions are identical.
Now, the prosecution wants to examine Mr. S.K. Gupta as an expert to prove the above fact.
This request of the prosecution to examine Mr. S.K. Gupta was stoutly resisted by the learned counsel of the accused on the ground that the evidence of such typewriting expert is 127 inadmissible under Section 45 of the Indian Evidence Act as it does not fall within its ambit.
It seems from the. im pugned order that several decisions were cited at the Bar by both the parties but the Trial Court on the strength of certain observations made by this Court in Hanumant & Anr.
vs State of Madhya Pradesh, [1952] SCR 1091 dismissed the prayer of the prosecution holding thus: "It shows that Hon 'ble Judges of the Supreme Court meant that such evidence cannot be brought on record and be evaluated by the Court.
It is well settled that if their Lordships of the Supreme Court clearly intended to declare the law on a particular point then even though the observa tions may be 'obiter dictum ', they are nevertheless binding upon the High Court and subordinate Courts.
Under these circumstances, I uphold the objections raised by the counsel of the accused and order that Sh.
S.K. Gupta, who is sought to be examined as an expert on type written documents cannot be examined to give evidence on this point.
" On being dissatisfied with the above order of the High Court, this criminal appeal is filed by the State.
For proper understanding and appreciation of the ques tion involved in this case, the relevant portion of the observation of this Court in Hanurnant 's case on the strength of which the High Court has passed the impugned order may be reproduced hereunder: "Next it was argued that the letter was not typed on the office typewriter that was in use 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 opinions of such experts were not admissible under the Indian Evidence Act as they did not fail 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." Though a lengthy argument was advanced by the respective 128 counsel for both the parties by citing a series of decisions in support of their respective contentions, we are not adverting to all those contentions except to the relevant one, as we are of the view that the matter requires an in depth analysis and examination by a larger Bench in view of the observation in Hanumant 's case.
The learned Solicitor General has submitted that the words Science or Art ' occurring in Section 45 of the Indian Evidence Act should be given wide and liberal construction so as to cover all ranches of specialised knowledge to the formation of opinion, that by the march of science, the evidence of expert regarding type script has assumed impor tance, that such expert evidence on type script needs to be considered at par with the evidence of other experts brought within the ambit of Section 45 of the Evidence Act, and therefore, the expert opinion of Mr. S.K. Gupta cannot be shut out as being inadmissible.
According to him, the brief observation of this Court in Hanumant 's case (supra) cannot be construed as ratio decidendi binding on this Court or even obiter dictum but it is only a passing observation as there was no issue in that case as to whether the expert 's testimony on type script was admissible or not under the Evidence Act and consequently there was no discussion of law on that subject and in fact, there was no contest on the question of the admissibility of the evidence of an expert regarding typed documents.
He would reiterate that the judgment in Hanumant 's case has not declared the law in regard to the admissibility of the testimony of an expert in regard to typescript and that the learned Judges have pro nounced no independent opinion upon the same.
In support of this submission, firstly he drew our attention to the fol lowing passage appearing in Woodrofee and Ameerali 's Law of Evidence, which reads thus: "The Supreme Court has held in Hanumant v, State of M.P. that the opinion of an expert that a particular letter was typed on a particular typewriting machine does not fall within the ambit of section 45 of the Evidence Act and it is not admissible.
It is respectfully submitted it may require consideration in the light of the modern knowledge indicated to some extent by the research materials which show that detection of forgeries of typewritten documents has become an integral part of the science of questioned documents.
" Secondly, he brought to the notice of this Court the opinion expressed by the Law Commission in its 69th Report (Vol. IV) in Chap 129 ter 17 captioned 'Opinion of Expert ' wherein the Law Commis sion after referring to the decision in Hanumant 's case stated thus: "17.26 One could regard these observations as not laying down a definite view on the subject.
But the words "rightly held" could be construed as approving the negative view.
17.31.
We, therefore, recommend that Section 45 should be amended so as to include identity of typewriting".
According to the learned Solicitor General, as viewed by Woodrofee and Arneerali in 'Law of Evidence ' and by the Law Commission in its 69th Report, the word 'science ' occurring in Section 45 should be held comprehensive enough to include the opinion of an expert in regard to the transcript as well.
But the acceptability or otherwise of an expert testi mony on typewritten documents would depend upon the satis faction of the Court about the specialised skill and experi ence of that expert on that subject.
Finally, he requested that this Court notwithstanding the passing observation in Hanurnant 's case be pleased to examine in detail the ques tion of the admissibility or otherwise of an expert testimo ny on type script and lay down the law on this subject.
Mr. R.K. Garg, senior counsel appearing on behalf of the respondent vehemently urged that the observation in Hanu mant 's case cannot be discarded or brushed aside as a pass ing observation and if that argument is to be accepted by treating the view expressed by this Court as gratis dicta and to declare law on the subject ignoring the view in Hanumant 's case it would be tantamount to saying that the view expressed by the learned three Judges in that case as having been wrongly held and therefore, the argument of the learned Solicitor General has to be discountenanced.
The proceeding of the trial which has already been considerably delayed on this issue which is only academic so far as this case is concerned and so the respondent should not be sub jected to immeasurable hardship.
According to him, the High Court has passed this impugned order only on the strength of the observation in Hanumant 's case and rejected the plea of the prosecution to permit it to examine Sh.
S.K. Gupta as an expert and, therefore, the impugned order can neither said to be incorrect nor it calls for any interference.
He adds that this Court should not dissent lightly from the previous decision of this Court merely on the ground that the con trary view appears to be preferable and that the power of review must be exercised with due care and caution and that too only for advancing the public well being in the light of the surrounding cir 130 cumstances.
In support of this submission, he places reli ance in The Bengal Immunity Company Ltd. vs The State of Bihar & Ors., at 630.
He continues to state that this Court should exercise its discretionary jurisdic tion under Article 136 of the Constitution of India only in cases where there is violation of the principles of natural justice, causing substantial and grave injustice to parties or which raise important principles of law requiring eluci dation and final decision of this Court or which disclose such of the exceptional or special circumstances which merit the consideration of this Court on a particular issue.
He cites the decision of this Court in Bengal Chemical & Phar maceutical Works Ltd. Calcutta vs Their Workmen, ; at 140 in support of his later submission.
Finally, he states that the facts and circumstances of the case on hand do not warrant examination of the request made by the appellant.
After bestowing our anxious consideration on the ques tion of law involved, we without expressing any view at this stage on the observation made in Hanumant 's case feel that the question with regard to the admissibility of the opinion of an expert on type script should be examined in detail and decided.
Needless to say that by the march of time, there is rapid development in the field of forensic science and, therefore, it has become imperative to match the said march of modern vistas of scientific knowledge, the question whether the opinion of an expert in regard to type script would fall within the ambit of Section 45 of the Evidence Act has to be decided.
In fact, when the SLP in this matter came up for admission, the Bench considering the importance of the question involved made the following order: "Special leave granted.
Since the question involved is important and is involved in many cases, it is desirable that it should be heard as early as possible and the matter be mentioned to Hon 'ble the Chief Justice for appropriate directions.
" Taking the overall view of this matter, we feel that this important question of law involved in this case is to be examined in detail and decided by a larger Bench as the judgment in Hanumant 's case was rendered by three learned Judges of this Court.
Since the matter is urgent, it may be posted for hearing at an earliest point of time so that the trial of the case may not be further delayed.
| IN-Abs | A device parcel containing camouflaged live hand grenade exploded in the hands of the addressee resulting in his instantaneous death.
The police collected from the scene of incident the typewritten pieces of the paper in which the grenade had been wrapped and sent them to the Central Foren sic Science Laboratory where they succeeded in partially reconstructing the name and address of the deceased.
These were then examined by the Head of the Document Division in the said Laboratory with reference to the specimen of typing prints taken from the commercial college where they were alleged to have been got typed.
He opined that on balance of similarities and dissimilarities it was reasonable to con clude that the type scripts found on the slip pasted on the wrapper of the parcel had been typed from one, of the ma chines of the college as both the impressions were identi cal.
At the trial the prosecution wanted to examine the said expert to prove the fact.
This was resisted by the defence on the ground that the evidence of such typewriting expert was inadmissible under section 45 of the Indian Evidence Act as it did not fall within its ambit.
The trial court relying on the observations to that effect in Hanumant & Anr.
vs State of Madhya Pradesh, [1952] SCR 1091, dismissed the prayer.
The High Court dismissed the State 's revision petition in limine.
In the appeal by the State it was submitted that the word 'science ' occurring in section 45 of the Evidence Act should be held comprehensive enough to include the opinion of an expert in regard to transcript as well in view of the march of science.
Referring the matter to the larger Bench, the Court, HELD: By the march of time, there is rapid development in the 125 field of forensic science and it has become imperative to match the said march of modern vistas of scientific knowl edge.
The question in the instant case whether the opinion of an expert in regard to type script would fall within the ambit of section 45 of the Evidence Act should, therefore, be examined in detail and decided by a Large Bench as the judgment in Hanumant 's case was rendered by a Bench of three Judges.
[130D, G]
|
DICTION: Civil appeals No. 18 15 of 1982 etc.
From the Judgment and Order dated the 20.1.1982 of the Allahabad High Court in C.W.P. No. 2701 of 1981.
Shankar Ghosh, R.K. Jain, R.B. Mehrotra, Ms. Abha Sharma, Sangira Tripathi Mandal, R.P. Singh, Harish N. Salve, D.K. trg, Gopal Subramanium, Mrs. Shobha Dikshit, C.P. Pandey, S.K pharwal, M.P. Sarawala, R.S. Sodhi, D.D. Gupta, Shakil Ahmed ed, K.R.R. Pillai, M.A. Firoz, R.D. Upadhyay, U.S. Prasad and VI.
Nayar for the appearing parties.
The Judgment of the Court was delivered by 173 RANGANATH MISRA, J.
Special leave granted.
This bunch of cases either by special leave or under Article 32 of the Constitution is by a set of Lekhpals serving in the State of Uttar Pradesh whose services have been terminated.
Their Writ Petitions to the High Court have not been entertained on the ground that alternate relief is available before the U.P. Public Services Tribunal set up under U.P. Act No. 17 of 1976.
In the Civil Appeal arising out of Special Leave Petition No. 8826 of 1982 the High Court examined the question at length as to whether the jurisdiction of the High Court has been taken away by the setting up of the Services Tribunal under the U.P. Act.
We have heard counsel for the parties at some length as apart from this group of cases, some other cases involving the same question have also been heard and those matters have been disposed of excepting this bunch.
On merit, we are of the view that the decisions of the High Court should be vacated and in each case the dispute shall stand transferred to the Services Tribunal for disposal in accordance with law.
The Tribunal shall dispose of these cases within six months from the date of the receipt of this order.
We are at the view, as we have already indicated else where, that the 'Services Tribunal set up under the U.P. Act No. 17/76 should be withdrawn and an appropriate tribunal under the Central of 1985 should be set up.
Such a Tribunal if constituted would be in accord with the service jurisprudence which is developing.
Several States have already constituted such Tribunals under the Central Act.
The Tribunal set up under the Central Act is deemed to be one in terms of Article 323A of the Constitution.
When such a Tribunal is set up the High Court 's jurisdiction in regard to service disputes is taken away and the Tribunal functions as a substitute of the High Court.
More or less this service jurisprudence has almost gained ground and there is no justification as to why the Services Tribunal of a different pattern should operate in the State of Uttar Pradesh with inadequate powers to deal with every situation arising before it.
A Tribunal set up under the Central would have plenary powers to deal with every aspect of the dispute and would be in accord with the current thinking on this subject matter at differ ent levels.
We are, therefore, of the view that the U.P. Services Tribunal should be substituted by a Tribunal under the Central as early as possi ble in order that there may be uniformity of functioning and the High Court may be relieved of the 174 burden of dealing with the service disputes as is the situa tion at present.
In course of the hearing, a statement showing yearwise institution, disposal and pendency before the Public Serv ices Tribunals has been placed before us and we extract the same for convenience: STATEMENT SHOWING THE YEARWISE DISPOSAL, FILING AND PENDING CASES BEFORE THE PUBLIC SERVICE TRIBUNALS Year No.of Opening Cases filed Total Disposal Closing Tribunals Balance during the during Balance year year 1 2 3 4 5 6 7 1977 Two 2568 2156 4724 1744 2980 1978 Three 3700 6834 10534 4761 5773 1979 Four 5773 2710 8483 2826 5657 1980 Five 5657 2690 8347 2689 5658 1981 Five 5658 3192 8651 2290 6561 1982 Five 6561 3072 9633 1718 7915 1983 Five 7915 2206 10121 1988 8133 1984 Five 8133 2461 10594 1178 9416 A cursory analysis would show that while in 1977 two Tribu nals only were functioning, in 1984 as many as five Tribu nals came to be set up.
The chart indicates that while institutions have sizeably fallen or remained more or less constant, there has been rapid fall in the disposal of cases.
For instance, while in 1978, 4,761 cases have been disposed of, in the years 1982 and 1984 the numbers have been 1,7 18 and 1,178 respectively.
Even five Tribunals in place of two have obviously not been meeting the mounting challenge of institutions.
Learned counsel for the State of Uttar Pradesh was not able to indicate any specific reason as to why while the strength of Tribunals went up there was a proportionate fall in the disposals.
Again we find that 50 to 60% of the institutions are being attended to which certainly would lead accumulation to mount up.
These aspects require to be noticed seriously and the State Government should have applied its mind if 175 any system of review was in force.
Apparently, the perform ance was not being reviewed either by the Tribunal itself or by any other agency.
We have been told that the Services Tribunal mostly consists of Administrative Officers and the judicial element in the manning part of the Tribunal is very small.
As was pointed out by us in S.P. Sam path Kurnar vs Union of India & Ors., ; , the disputes require judicial handling and the adjudication being essentially judicial in character it is necessary that an adequate number of Judges of the appropriate level should man the Services Tribunals.
This would create the appropriate temper and generate the atmosphere suitable in an adjudicatory Tribunal and the institution as well would command the requisite confidence of the disputants.
We have indicated in the connected matter that steps should be taken to replace the Services Tribunals by Tribunals under the Central of 1985.
That would give the Tribunal the necessary colour in terms of Article 323A of the Constitution.
As a conse quence of setting up of such Tribunals, the jurisdiction of the High Court would be taken away and the Tribunals can with plenary powers function appropriately.
The disputes which have arisen on account of the Services Tribunals not having complete jurisdiction to deal with every situation arising before it would then not arise.
We have pointed out that notice has been issued in a later case for the State 's response to the question of Tribunals to be located at different parts of the State.
State of Uttar Pradesh territorially is the second largest State in India but considering the population it comes first.
Almost every part of the State is well advanced and service litigation in such setting is likely to arise every where.
To locate the seat of the Tribunals at the State capital in such a situation is not appropriate.
The accepted philosophy relevant to the question today is that justice should be taken to everyone 's doors.
This, of course, is not a statement which should be taken literally but undoubtedly the redressal forum should be available nearabout so that litigation may be cheap and the forum of ventillating griev ance may not be difficult to approach.
Keeping that in view which is a legitimate consideration it would be appropriate for the State Government to consider, firstly, increase in the number of Benches of the Tribunal and secondly, to locate them not at the same station but at various sectors or depending upon the number of institution of disputes and pendency at the level of independent Commissionerate or by clubbing two or three of them together.
This, of course, is a matter which would require further 176 examination at the administrative level and, therefore, we express no opinion regarding location of such Tribunal although we are of the definite view that there should be Tribunals available in different parts of the State and all the Benches of the Tribunal should not be located at one place.
The writ Petitions and the civil appeals are disposed of with these directions.
, N.P.V. Petition & Appeals disposed of.
| IN-Abs | The appellants/petitioners filed Writ Petitions before the High Court against the termination of their services as Lekhpals in the State of Uttar Pradesh.
The High Court did not entertain the petitions on the ground that alternate relief was available before the U.P. Public Services Tribu nals set up under U.P. Act 17 of 1976.
Hence, the appeals, by special leave/Writ Petitions.
Disposing of the appeals/petitions, this Court, HELD: 1.1 The Services Tribunal set up under the U.P. Act No. 17/76 should be withdrawn and an appropriate tribu nal under the Central should be set up.
Such a Tribunal is deemed to be one in terms of Article 323A of the Constitution.
When set up, it would take away High Court 's jurisdiction in regard to service disputes, and function as its substitute.
It would have plenary powers to deal with every aspect of the dis pute.
This would be in accord with the current thinking on this subject matter at different levels.
[173E; F G] 1.2 A cursory analysis of year wise institution, penden cy and disposal of cases between 1977 and 1984 before the Public Services Tribunal shows that while institutions have sizeably fallen or remained more or less constant, there has been rapid fall in the disposal of cases, even though there has been increase in strength of Tribunals, and only 50 to 60% of the institutions are being attended to, which cer tainly would lead accumulation to mount up.
These aspects require to be noticed seriously.
[174F H] 172 1.3 Since the disputes require judicial handling, and the adjudication being essentially judicial in character, an adequate number of judges of the appropriate level should man the Services Tribunals.
This would create appropriate temper and generate atmosphere suitable in n adjudicatory Tribunal and the institution as well would command he requi site confidence of the disputants.
[175B C] S.P. Sampath Kumar vs Union of India & Ors., , referred to.
1.4 State of Uttar Pradesh territorially is the second largest State India, but populationwise comes first.
Almost every part of the State well advanced and service litigation in such setting is likely to arise everywhere.
Therefore to locate the seat of the Tribunals at the State capital is not appropriate.
Keeping in view the accepted philosophy that justice should be taken to everyone 's doors, State Govern ment would consider increasing the number of Benches and locating them at various sectors or depending upon the number of institution of disputes and pendency at the level of independent Commissionerate or by clubing two or three of them together.
The location of Benches would inquire further examination at administrative level.
but definitely, the tribunals should be available in different parts of the State and all the benches of the Tribunal should not be located at one place.
[175E H; 176A] The decision of the High Court in each of the cases is set aside and e dispute transferred to the Services Tribunal for disposal within six months.
[173C D]
|
Appeal No. 205 of 1953.
Appeal from the Judgment and Order dated the 24th February, 1953, of the High Court of Judicature at Calcutta in Appeal from Original Order No. 19 of 1952, arising out of the Order dated the 23rd day of August, 1951, of the High Court of Calcutta in its Ordinary Original Civil Jurisdiction Matter No. 157 of 1951.
K. P. Khaitan, (section N. Mukherjea and Rajinder Narain, with him) for the appellant.
M. C. Setalvad, Attorney General for India, (A. N. Sen, V. section Sawhney and section P. Varma, with him) for the respondents.
November 1.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal is directed against a judgment of an appellate bench of the Calcutta High Court, dated the 24th February, 1953, reversing, on appeal, the judgment and order of a single Judge sitting on the Original Side of that Court, passed on an application under section 34 of the .
The material facts are not in controversy and may be shortly stated as follows: On the 7th of July, 1950, the respondent, Moran and Company Limited, passed two Bought Notes to the appellant company, couched in identical terms, under which the appellant purchased 12,00,000 yards of hessian cloth, 6,00,000 yards under each contract, on certain terms and conditions stated therein.
The delivery was to be made every month from January, 1951, at the rate of 1,00,000 yards per month under 864 each of these notes and payments were to be made in cash 'on delivery, each delivery being treated as a separate and distinct contract.
The Bought Notes commenced thus: Dear Sirs, We have this day Bought by your order and on your account from our Principals.
" The particulars of the goods, the price, the time of delivery and other terms of the contract are then set out and amongst the terms is an arbitration clause worded as follows: " All matters, questions, disputes, differences and/ or claims arising out of and/or concerning and/or in connection with and/or in consequence of or relating to this contract, whether or not the obligations of either or both parties under this contract be subsisting at the time of such dispute and, whether or not this contract has been terminated or purported to be terminated or completed, shall be referred to the arbitration of the Bengal Chamber of Commerce under the rules of its Tribunal of Arbitration for the time being in force and according to such rules the arbitration shall be conducted.
" The notes were signed by the respondent, Moran and Company, describing themselves as brokers.
It is admitted that the goods covered by the Bought Notes were delivered to the appellant in all the months from January to June, 1951, with the exception of the goods due to be delivered for the month of March, 1951.
The appellant required from the respondent delivery of goods in respect of the month of March but the latter informed the appellant, by a letter dated the 27th March, 1951, that its principals disowned a liability in this respect as there was default on the part of the appellant in not giving shipping instructions for the said goods within the time mentioned in the contracts.
The appellant denied any default on its part and did not also accept the position that the respondent had any principal, and on the 27th of April, 1951, it sent its bills to the respondent claiming Rs. 1,13,042 3 0 as damages for non delivery of the 865 goods.
As the respondent did not comply with this demand, the appellant contemplated referring the matter in dispute to the arbitration of the Bengal Chamber of Commerce as provided in the contracts and while it was preparing to take steps in that direction, the respondent, on the 11th of June, 1951, filed a suit against the appellant in the Original Side of the Calcutta High Court (being Suit No. 2516 of 1951,) and it is in respect of this suit that the application under section 34 of the has been made.
It was alleged in the plaint that the plaintiff acted merely as broker and in that capacity brought about the two contracts of sale and purchase evidenced by the two Bought Notes mentioned above, that the real seller was a firm known as Gowarchand Danchand, and that the plaintiff not being a party to the contract could not incur any liability under its terms.
There were prayers in the plaint for a declaration that the plaint.
off was not a party to the said contracts and, that it had no liability under the same.
There was a further prayer for an injunction restraining the respondent from, claiming any damages in respect of the said contracts The writ of summons was served on the appellant on the 23rd of June, 1951.
On the 19th July, 1951, it filed an application under section 34 of the praying that the proceedings in the suit may be stayed in order that the matter in dispute between the parties may be dealt with under the arbitration clause contained in the contracts.
The application was heard by Das Gupta J. who allowed the prayer of the applicant and stayed further proceedings in the suit.
In the opinion of the learned Judge the dispute in this case was not whether there was any contract entered into by and between the appellant and the respondent: but whether the respondent, who admittedly passed the two Bought Notes to the appellant, could be made liable under the contract by reason of the fact that it described itself as broker.
The answer to this question depended according to the learned Judge upon the interpretation of the contract itself and the dispute arising as.
it did out of or concerning or relating to the 866 contracts would come within the purview of the arbitration clause.
Against this judgment the respondent took an appeal to the Appellate Division of the High Court and the appeal was heard by a bench consisting of Chakravartti C.J. and Sarkar J.
By two separate judgments which concurred in the result, the Chief Justice and the other learned Judge allowed the appeal and vacated the order for stay.
It is against this judgment that the appellant has come to this Court on the strength of a certificate under article 133(1)(a) of the Constitution.
The short point for our consideration is, whether on the facts of this case, the appellant is entitled to an order under section 34 of the , staying the proceedings of the suit commenced by the respondent.
Section 34 of the is in these terms: " Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings.
" Thus in order that a stay may be granted under this section, it is necessary that the following conditions should be fulfilled: (1)The proceeding must have been commenced by a party to an arbitration agreement against any other party to the agreement; (2)the legal proceeding which is sought to be.
stayed must be in respect of a matter agreed to be referred 867 (3)the applicant for stay must be a party to the legal proceeding and he must have taken no step in the proceeding after appearance.
It is also necessary that he should satisfy the Court not only that he is but also was at the commencement of the proceedings ready and willing to do everything necessary for the proper conduct of the arbitration; and (4)the Court must be satisfied that there is no sufficient reason why the matter should not be referred to an arbitration in accordance with the arbitration agreement.
The third condition can be taken to have been fulfilled on the facts of the present case, and the fourth is one which is exclusively for the determination of the Court.
The controversy between the parties centres round the other two conditions, namely, conditions (1) and (2) ; and unless the applicant for stay succeeds in establishing that the respondent is a party to an arbitration agreement and that the subject matter of dispute in the suit is a matter coming within the scope of such agreement, it cannot possibly ask the Court to order a stay of the proceedings, under section 34 of the .
The learned Judges of the appellate bench of the High Court have taken the view that the only matter in dispute between the parties to the suit is whether the plaintiff was a party to the contract.
It was definitely alleged by the plaintiff that the contract was not between it and the appellant but was one between the appellant and a third party and since the arbitration agreement is contained in the contract, it is an agreement between those parties only, which could not bind or affect the plaintiff in any way.
The dispute, it is said, which is the subject matter of the suit does not arise under the contract and does not relate to it; it is outside the contract altogether and does not come within the scope of the arbitration agreement.
The decision in the appeal therefore rests entirely on the finding of the learned Judges that the matter in dispute between the parties to the suit does not come within the ambit of the arbitration clause.
In view of this decision the learned Judges did not consider it necessary to go into the first point as to whether in fact 868 there was a binding arbitration agreement between the parties to the suit.
The learned Chief Justice no doubt did in a manner consider that point also, but he refrained from pronouncing any decision upon it, being of opinion that a decision on this question which was the only issue in the suit itself might prejudice the parties and create a bar of res judicata against one or the other.
We think that on the facts of this case it was necessary for the learned Judges of the appellate bench to decide the question as to whether or not the plaintiff in the suit which the applicant wants to stay was a party to the arbitration agreement.
This would have a material bearing on the decision of the other question upon which the learned Judges rested their judgments.
The first and essential pre requisite to making an order of stay under section 34 of the is that there is a binding arbitration agreement between the parties to the suit which is sought to be stayed.
The question whether the dispute in the suit falls within the arbitration clause really pre supposes that there is such agreement and involves consideration of two matters, viz., (1) what is the dispute in the suit and (2) what disputes the arbitration clause covers?(1).
The contention raised by the plaintiff in the present suit is, that the contract was really between the appellant and another party and not between it and the appellant and consequently it was not bound by the contract and could not be made liable for any damages in terms thereof.
In substance therefore the controversy between the parties in the suit is whether the plaintiff did incur any liability in terms of the contracts evidenced by the two Bought Notes to which it was a signatory no matter in whatever capacity.
The question whether the plaintiff was a party to the agreement at all is undoubtedly one which cannot go before the arbitrators and with that question they cannot possibly deal.
But as Lord Porter pointed out in Heyman vs Darwins (2), "this does not mean that in every instance (1) Vide per Viscount Simon in Heyman vs Darwins, at 360.
(2) , 393.
869 in which it is claimed that the arbitrator has no juris diction the Court will refuse to stay an action.
If this were the case such a claim would always defeat an agreement to submit disputes to arbitration, at any rate until the question of jurisdiction had been decided.
The Court to which an application for stay is made is put in possession of the facts and arguments and must in such a case make up its mind whether the arbitrator has jurisdiction or not as best it can on the evidence before it.
Indeed, the application for stay gives an opportunity for putting these and other considerations before the court that it may determine whether the action shall be stayed or not.
" Section 34 of the as is well known is a virtual reproduction of section 4 of the English of 1889.
The observations quoted above were approved of by Mr. Justice section R. Das in the case of Khusiram V. Hanutmal (1) and it was held by the learned Judge that where on an application made under section 34 of the for stay of a suit, an issue is raised as to the formation, existence or validity of the con.
tract containing the arbitration clause, the Court is not bound to refuse a stay but may in its discretion, on the application for stay, decide the issue as to the existence or validity of the arbitration agreement even though it may involve incidentally a decision as to the validity or existence of the parent contract.
We are in entire agreement with the view enunciated above.
As we have said already, it is incumbent upon the Court when invited to stay a suit under section 34 of the to decide first of all whether there is a binding agreement for arbitration between the parties to the suit.
So far as the present case is concerned if it is held that the arbitration agreement and the contract containing it were between the parties to the suit, the dispute in the present suit would be one relating to the rights and liabilities of the parties on the basis of the contract itself and would come within the purview of the arbitration clause worded as it is in the widest of terms, in accordance with the principle enunciated by this Court in A. M. Nair and (1) at 518.
870 Company vs Gordhandass (1).
If on the other hand it is held that the plaintiff was not a party to the agreement, the application for stay must necessarily be dismissed.
The appellate Judges of the High Court in our opinion held rightly that the decision in A. M. Mair and Company vs Gordhandass (1) was not in any sense conclusive in the present case on the question of the dispute in the suit being included in the arbitration agreement.
The report shows that the dispute in that case was whether the appellants had made the contract in their own right as principals or on behalf of the Bengal Jute Mill Company as agents of the latter.
The decision of this question was held to turn upon a true construction of the contract and consequently it was a dispute under or arising out of or concerning the contract.
The judgment proceeds on the footing that there was in fact a contract between the parties and the only dispute was in which character they were parties to it, the respondents contending that the appellants were not bound as principals while the latter said that they were.
Mr. Justice Fazl Ali in delivering the judgment pointed out that the error into which the learned Judges of the appellate bench of the High Court appeared to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract never having been entered into.
In this case it is certainly not admitted that the respondent was a party to the contract.
In fact that is the subject matter of controversy in the suit itself.
But, as has been said already, the question having been raised , in this application, under section 34 of the , the Court has undoubted jurisdiction to decide it for the purpose of finding as to whether or not there is a binding arbitration agreement between the, parties to the suit.
It has been said by Chakravartti C.J. and in our opinion rightly, that if the person whose concern with the agreement is in question is a signatory to,the contract and formally a (1) ; 871 contracting party, that will be sufficient to enable the Court to hold for purposes of section 34 that he is a party to the agreement.
It was the contention of the respondent in the Court below that this test was not fulfilled in the present case.
The point has been canvassed before us also by Mr. Sen and it has been argued on the authority of several decided cases that in cases of this description the Bought Note is a mere intimation to the buyer, that the orders of the latter have been carried out and purchases have been made from other persons and not from them.
The writer does not thereby become a party to the contract of purchase and sale even as an agent.
He remains a mere broker or intermediary and the provision of section 230(2) of the Contract Act 'Cannot be invoked against him.
Mr. Khaitan on the other hand argues that the English law being quite different from the Indian law regarding the liability of an agent contracting on behalf of an undisclosed principal, the English authorities are no guide to a solution of the problem.
It is said that the case of Patiram Banerjee vs Kanknarrah Co., Ltd.(1), upon which the respondent relies, was wrongly decided being based upon English authorities which have no application to India.
The respondent here, it is pointed out, signed an elaborate document setting out in full every particular of the contract entered into and it is impossible to say that he was not an agent executing a contract on behalf of another whose identity he did not disclose but was a mere intermediary conveying an information to the buyer.
In our opinion, the point is not free from doubt and requires careful consideration and as it was not decided by the learned Judges of the High Court and we have not the advantage of having their views upon it, the proper course for us to follow would be to send the case back for a hearing of and decision on this point.
We, therefore, allow the appeal and set aside the judgments of both the Courts below.
The matter will go back to the appellate bench of the Calcutta High Court which will decide as an issue in the proceeding under section 34 of the the question whether the respondent was or was not a party (1) Cal.
I050. 872 to the arbitration agreement.
If the Court is of opinion that the respondent was in fact a party, the suit shall be stayed and the appellant would be allowed to, proceed by way of arbitration in accordance with the arbitration clause.
If on the other hand the finding is adverse to the appellant, the application will be dismissed.
The appellant will have its costs of this appeal.
Further costs between the parties will abide the result.
Appeal allowed.
| IN-Abs | Held, that in order that a stay may be granted under section 34 of the Indian , it is necessary that the following conditions should be fulfilled: (1) The proceeding must have been commenced by a party to an arbitration agreement against any other party to the agreement; (2) the legal proceeding which is sought to be stayed must be in respect of a matter agreed to be referred ; (3) the applicant for stay must be a party to the legal proceeding and he must have taken no step in the proceeding after appearance.
It is also necessary that he should satisfy the court not only that he is, but also was at the commencement of the proceedings, ready and willing to do everything necessary for the proper conduct of the arbitration ; and (4) the Court must be satisfied that there is no sufficient reason why the matter should not be referred to an arbitration in accordance with the arbitration agreement.
The first and essential pre requisite to making an order of stay under a. 34 of the is that there is a binding arbitration agreement between the parties to the suit which is sought to be stayed.
The question whether the dispute in the suit falls within the arbitration clause really pre supposes that there is such agreement and involves consideration of two matters, viz., (1) what is the dispute in the suit and (2) what disputes the arbitration clause covers.
It is incumbent upon the Court, when invited to stay a suit under section 34 of the Indian , to decide first of all whether there is a binding agreement for arbitration between the parties.
If, in the present case, it is held that the arbitration agreement and the contract containing it were between the parties to the suit, the dispute in the present suit would be one relating to the rights and liabilities of the parties on the basis of the contract itself and would come within the purview of the arbitration clause 863 worded as it is in the widest of terms.
If, on the other hand, it is held that the plaintiff was not a party to the agreement, the application for stay must necessarily be dismissed.
Case sent back for the decision of the question whether the respondent was or was not a party to the arbitration agreement.
Heyman vs Darwins ([1942] A.C. 356), Khusiram vs Hanutmal ((1948) , A. M. Mair and Companay vs Gordhandas ([1960] S.C.R. 792) and Patiram Y. Kankarah Company ((1915) I.L.R. referred to.
|
iminal Appeal No. 103 of 1956.
H. J. Umrigar and R. H. Dhebar, for the appellant.
The sole question arising for determination is whether on the facts and circumstances of the case the High Court was correct in holding that the act of the respondent complained of constituted an offence under section 228 of the Indian Penal Code, and the jurisdiction of the High Court was, therefore, ousted by reason of the provision of section 3(2) of the .
The High Court in coming to this conclusion appears to have relied on two decisions of the Supreme Court [1952] S.C.R. 425 and The facts in the two Supreme Court cases were quite different and they do not, in any way justify the view taken by the High Court.
It will be my submission that the allegations made in the so called transfer application as also the affidavit are of such a serious nature that they are not a mere personal insult to the Magistrate, but go far beyond; they scandalise the Court in such a manner as to create distrust in the minds of the public, and pollute the stream of justice, and in such cases the jurisdiction of the High Court is not ousted (Reads out portions of the transfer application and the affidavit in support).
From a perusal of the extracts which have been read, it will be seen that the aspersions made against the Magistrate are of a very serious nature alleging criminal conspiracy, and also that he had taken a bribe of Rs. 500 from the opposite side.
So far as the offence under section 228 of the Indian Penal Code is concerned, the first essential ingredient is that there must be an " intention " to insult.
In the affidavit filed in the High Court in reply to the 1370 show cause notice the respondent had stated that there was no intention to insult or show disrespect to the Magistrate.
[Imam J. I cannot agree with that, the language used in the application and affidavit is such that intention to insult was clearly there.] That may be true, but there are several earlier decisions of the Allahabad High Court which have been referred to in the case relied upon by the High Court Narotam Das vs The Emperor, A.I.R 1943 All.
97, wherein it was held that where scandalous allegations were incorporated in a transfer application, there was not necessarily an intention to insult, as the primary object was to seek a transfer and not to insult the Court.
So far as the decisions are concerned, they support my contention that when scandalous allegations are made against a Magistrate in a transfer application they would not necessarily constitute an offence under section 228 of the Indian Penal Code and could be punished by the High Court.
In I.L.R. 1941 Nagpur 304, the Judge, who was seized of the case, made a complaint to the High Court about a letter sent to him by one of the parties, and it was there held that the sender of the letter could be punished for Contempt of Court by the High Court.
It is true that there is no discussion about.
228 of the Indian Penal Code but in the course of the judgment the case of Emperor vs Jagnath Prasad Swadhiry, I.L.R. 1938 All.
548, was mentioned.
In the Allahabad case a person during the pendency of a suit sent communications by post to the Judge containing scandalous allegations.
It appears that it was urged that section 228 of the Indian Penal Code would bar the jurisdiction of the High Court under section 3(2) of the Contempt of Courts Act, 1926, but this contention was repelled and the High Court stated that its jurisdiction to punish for contempt was not ousted.
[Reference was also made to I.L.R. 12 Patna I and I.L.R. 12 Patna 172].
I submit that where the allegations made go beyond 1371 mere personal insult and tend to bring the whole administration of justice, into disrepute, then the juris diction of the High Court would not be ousted by section 3(2) of the Act.
In a case where there is only an insult to the Judge by using vulgar abuse such as " rogue or rascal " and this abuse was made " ex facie curiae ", then it may be said that the jurisdiction of the High Court is ousted as the offence falls within the purview of section 228 of the Indian Penal Code.
[Das J. Also if the abuse relates to the private life of the Judge, such as, calling him a drunkard or imputing some immorality to him, unconnected with his judicial duties.] I agree.
In the instant case the Magistrate must have been fully conscious of the powers possessed by him under section 228 of the Indian Penal Code as also the relevant provisions in the Criminal Procedure Code which permit him to punish for Contempt of Court, yet he presumably must have felt that the aspersions made in the present case were so grave as to transcend mere personal insult and as such it was a fit case to be referred to the High Court for taking necessary action.
In conclusion, it is submitted that the view taken by the High Court is much too narrow.
and cannot be supported either in principle or by the, authorities cited.
J. B. Dadachanji and section N. Andley, for the respondent.
The view taken by the High Court is correct and is in accordance with the judgments of the Supreme Court in the cases reported in [1952] S.C.R. and [1953] S.C.R.
If the act complained of intentionally offers a personal insult to the Magistrate concerned, it may tend to undermine the administration of justice thereby, but it will nevertheless amount to an offence under section 228 of the Indian Penal Code and as such the jurisdiction of the High Court will be ousted by section 3(2) of the Act.
It is unsound to say that there are two kinds of contempt, and the lesser kind of contempt will come under section 228 of the Indian Penal Code and the grosser kind will not come under section 228 ; every insult to a Court, whatever its nature, is contempt and punishable under section 228 of the Indian Penal Code.
1372 [Kapur J.
Every insult to a Judge will not necessarily be a contempt.
A libel attacking the integrity of a Judge may not, in the circumstances of a particular case, amount to a contempt at all, although it may be the subject matter of a libel proceeding.] [Das J.
It appears that there is a further difficulty in your way, that is, whether the Magistrate was sitting in any stage of a judicial proceeding when the application and the affidavit were filed; if he was not, then one of the essential ingredients of section 228 of the Indian Penal Code was not satisfied.] The High Court has assumed that the Magistrate was sitting as a Court at that time and this was also borne out by the facts stated in the petition for special leave to appeal filed by the appellant wherein it is stated " the application having been presented during the sitting of the Court was clearly calculated to lower the dignity of the Court in the public mind ".
Section 480 of the Code of Criminal Procedure specifically mentions section 228 of the Indian Penal Code and treats it as a form of contempt, therefore, it will be an offence of contempt punishable under the Indian Penal Code and as such the jurisdiction of the High Court would be ousted under section 3(2) of the Act.
I submit that the view taken by the High Court is the correct view and is supported by the two decisions of the Supreme Court as also the judgment of the Bombay High Court in Bom.
Umrigar in reply.
During the course of discussion, doubts have arisen whether there was any intention to insult, or whether what was said was an insult, or whether the insult was offered in any stage of a judicial proceeding.
If any one of these three essentials is lacking, then, obviously, there is no offence under section 228 of the Indian Penal Code.
Where there is so much doubt as to whether an offence under section 228 of the Indian Penal Code has been committed or not, and there is no doubt that " prima facie " a Contempt of Court apart from the provisions of section 228 has been committed, it is wrong to say that the jurisdiction of the High Court is ousted.
1373 I submit that the case relied upon by the High Court, Narotam Das vs Emperor, A. 1.
R. 1943 All. 97, correctly lays down the law so far as the question of intention " is concerned.
September 24.
The Judgment of the Court was delivered by section K. DAS, J.
This is an appeal by special leave from the judgment and order of the then Madhya Bharat High Court, dated February 9, 1955, in Criminal Miscellaneous Application No. 2 of 1954.
Originally, the appeal was filed on behalf of the State of Madhya Bharat, now substituted by the State of Madhya Pradesh.
The appeal raises an important question with regard to the interpretation of section 3(2) of the (XXXII of 1952), hereinafter referred to as the Act, which repealed the earlier Contempt of Courts Act, 1926 (XII of 1926), as also the Indore Contempt of Courts Act (V of 1930) which was earlier in force in the State of Madhya Bharat.
The facts so far as they are relevant to this appeal are these.
One Ganga Ram, stated to be the landlord of the respondent Revashankar, instituted a suit, which was numbered as 1383 of 1952 in the court of the Additional City Civil Judge, Indore, for ejectment and arrears of rent against Revashankar.
It was stated that the suit was filed in the name of Ganga Ram and his wife Chandra Mukhi Bai.
It was further alleged that one Mr. Uma Shankar Chaturvedi, a lawyer acting on behalf of Ganga Ram, advised the latter to sign the name of his wife Chandra Mukhi Bai though Chandra Mukhi Bai herself did not sign the plaint or the vakalatnama.
In this suit Chandra Mukhi Bai filed an application for permission to prosecute her husband for forgery.
Another application was filed by certain other persons said to be other tenants of Ganga Ram in which some allegations were made against Revashankar.
On June 29, 1953, Revashankar filed a complaint against five persons for an alleged offence under section 500, Indian Penal Code.
This complaint was verified on July 13, 1953, and was registered as Criminal Case No. 637 of 1953 in the court of one 1374 Mr. N. K. Acharya, Additional District Magistrate, Indore.
In that case one Mr. Kulkarni appeared on behalf of the complainant Revashankar.
The accused persons appeared on August 8, 1953, through Messrs. Mohan Singh and Uma Shankar Chaturvedi.
An objection was raised on behalf of the accused persons to the appearance of Mr. Kulkarni as the latter 's name appeared in the list of witnesses.
This was followed by a spate of applications and counter applications and on October 12, 1953, the learned Additional District Magistrate passed an order to the effect that the copies of the applications as well as of the affidavits filed by both parties should be sent to the District Judge for necessary action against the lawyers concerned.
In the meantime a criminal case was started against Revashankar in the court of the Additional City Magistrate, Circle No. 2, for an alleged offence under section 497, Indian Penal Code.
The case was started on the complaint of Ganga Ram.
That case was numbered as 644 of 1953.
We then come to the crucial date, namely, December 17, 1953.
On that date Revashankar filed an application in the court of the Additional District Magistrate who was in seizin of Criminal Case No. 637 of 1953.
The application purported to be one under section 528, Code of Criminal Procedure.
This application contained some serious aspersions against the Magistrate, Mr. N. K. Acharya.
The aspersions were summarised by the learned Judges of the High Court under the following four categories.
The first aspersion was that from the order dated October 12, 1953 it appeared that Mr. N. K. Acharya wanted to favour Mr. Uma Shankar Chaturvedi.
The second aspersion was that from certain opinions expressed by the Magistrate, Revashankar asserted that he was sure that he would not get impartial and legal justice from the Magistrate.
The third aspersion was of a more serious character and it was that the Magistrate had a hand in a conspiracy hatched by Messrs. Mohan Singh and Uma Shankar Chaturvedi regarding certain ornaments of Chandra Mukhi Bai with the object of involving, Revashankar and his brother Sushil Kumar in a false case of theft of ornaments.
The fourth aspersion was that Mr. Uma 1375 Shankar Chaturvedi had declared that he had paid Rs. 500 to the Magistrate through Ganga Ram.
These aspersions were later repeated in an affidavit on December 21, 1953.
On January 11, 1954, the learned Magistrate reported the aforesaid facts to the Registrar of the Madhya Bharat High Court, and prayed for necessary action against Revashankar for contempt of court.
On this report the High Court directed the issue of notice to Revashankar to show cause why action should not be taken against him under the and Criminal Miscellaneous Application No. 2 of 1954 was accordingly started against Revashankar.
On March 3, 1954, Revashankar showed cause.
The case was then heard by a Division Bench consisting of V. R. Newaskar and section M. Samvatsar, JJ.
and by an order dated February 9, 1955, the learned Judges held that by reason of the provisions in section 3(2) of the Act the jurisdiction of the High Court was ousted inasmuch as the act complained of constituted an offence under section 228 of the Indian Penal Code.
The question for consideration in the present appeal is if the aforesaid view of the High Court is correct.
Mr. H. J. Umrigar, who has appeared on behalf of the appellant, has very strongly submitted before us that the High Court has erred in holding that the act of the respondent complained of constituted an offence under section 228, Indian Penal Code, and the jurisdiction of the High Court was, therefore, ousted by reason of the provisions in section 3(2) of the Act.
It is necessary to read first section :3(2) of the Act.
We may state here that the corresponding section in the earlier Contempt of Courts Act, 1926 was section 2(3) and in the judgment under consideration there is some confusion as to the correct number of the sub section.
Section 3(2) of the Act is in these terms : " No High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (Act XLV of 1860).
" 175 1376 The sub section was considered in two decisions of this Court, Bathina Ramakrishna Reddy vs The State of Madras (1) and Brahma Prakash Sharma vs The State of Uttar Pradesh (2).
In the earlier case of Ramakrishna Reddy (1) the appellant was the publisher and managing editor of a Telugu Weekly known as " Praja Rajyam ".
In an issue of the said paper dated February 10, 1949, an article appeared which contained defamatory statements about the stationary sub Magistrate, Kovvur, and the point for consideration was if the jurisdiction of the High Court to take cognisance of such a case was expressly barred under section 2(3) of the earlier Contempt of Courts Act, when the allegations made in the article in question constituted an offence under section 499, Indian Penal Code.
On behalf of the appellant it was argued that what the subsection meant was that if the act by which the party was alleged to have committed contempt of a s subordinate court constituted offence of any description whatsoever punishable under the Indian Penal Code, the High Court was precluded from taking cognizance of it.
This argument was repelled and this Court said (at page 429): " In our opinion, the sub section referred to above excludes the jurisdiction of High Court only in cases where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code.
This would be clear from the language of the sub section which uses the words " where such contempt is an offence " and does not say " where the act alleged to constitute such contempt is an offence ".
On an examination of the decisions of several High Courts in India it was laid down that the High Court had the right to protect subordinate courts against contempt but subject to this restriction, that cases of contempt which have already been provided for in the Indian Penal Code should not be taken cognizance of (1) ; (2) 1377 by the High Court.
This, it was stated, was the principle underlying section 2(3) of the Contempt of Courts Act, 1926.
This Court then observed that it was not necessary to determine exhaustively what were the cases of contempt which had been already provided for in the Indian Penal Code; it was pointed out, however, that some light was thrown on the matter by the provision of section 480 of the Code of Criminal Procedure which empowers any civil, criminal or revenue court to punish summarily a person who is found guilty of committing any offence under sections 175, 178, 179, 180 or section 228 of the Indian Penal Code in the view or presence of the court.
The later decision of Brahma Prakash Sharma (1) explained the true object of contempt proceedings.
Mukherjea J. who delivered the judgment of the Court said (at page 1 176) : " It would be only repeating what has been said so often by various Judges that the object of contempt proceedings is not to afford protection to Judges personally from imputations to which they may be exposed as individuals; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which people have in the administration of justice by it is weakened ".
It was also pointed out that there were innumerable ways by which attempts could be made to hinder or obstruct the due administration of justice in courts and one type of such interference was found in cases where there was an act which amounted to " scandalising the court itself ": this scandalising might manifest itself in various ways but in substance it was an attack on individual Judges or the court as a whole with or without reference to particular cases, causing unwarranted and defamatory aspersions upon the character and ability of the Judges.
Such conduct is punished as contempt for the reason that it tends to create distrust in the popular mind and impair the confidence of the people in the courts which are of prime importance to the litigants in the protection of their rights and liberties.
(1) 1378 Bearing the aforesaid principles in mind, let us now examine the case under consideration.
The High Court expressed the view that the act of the respondent complained of merely amounted to an offence under section 228, Indian Penal Code.
Nevaskar J. said: " It appears to me that the application, though it was stated to be an application for transfer, was intended to offend and insult the Magistrate.
A man 's intention can be judged by the nature of the act he commits.
The application directly and in face attributes partiality and corruption to the Magistrate.
It was not an application made bona fide to a court having jurisdiction to transfer the case from that Court to some other Court.
It was an application thrown in the face of the Magistrate himself.
The action is no better than telling the Magistrate in face that he was partial and corrupt.
The allegations in the application no doubt are insulting to the Magistrate and he felt them to be so and at the time the application was submitted on 17th December, 1953, when he was sitting as a Court and dealing with the case of the opponent." " Thus, since I hold that the opponent intended to offer insult to the Magistrate concerned there is no doubt that the act would fall within the purview of section 228, Indian Penal Code, and this Court will be precluded from taking action for the contempt committed before the Court of the Magistrate by reason of section 2(3) of the Contempt of Courts Act ".
The other learned Judge also expressed the same view in the following words: " The subordinate Courts can sufficiently vindicate their dignity by proceeding against the offenders under the provisions of criminal law in such cases.
Legislature has deemed it proper to exclude such cases from the jurisdiction of the High Court under section 2(3) of the Contempt of Courts Act.
This, however, does not mean that High Court 's jurisdiction is excluded even in cases where the act complained of, which is alleged to constitute contempt, is otherwise an offence under the Indian Penal Code." "The question to be considered in this case is 1379 whether the act complained of is punishable as contempt under any one of the specific provisions of the Indian Penal Code.
In other words whether it falls under any one of the sections 175, 178, 179, 180 or 228 of the Indian Penal Code." " If the act complained of constitutes an offence under any of these sections, it can be dealt with by the subordinate Court itself under section 480 of the Criminal Procedure Code and the High Court will have no power to take cognizance of it under the Contempt of Courts Act.
" We are of the opinion that the learned Judges were wrong in their view that prima facie the act complained of amounted to an offence under section 228, Indian Penal Code, and no more.
We are advisedly saying prima facie, because the High Court did not go into the merits and we have no desire to make any final pronouncement at this stage on the merits of the case.
Section 228, Indian Penal Code, is in these terms: " Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." The essential ingredients of the offence are (1) intention, (2) insult or interruption to a public servant and (3) the public servant insulted or interrupted must be sitting in any stage of a judicial proceeding.
In the present case there is an initial difficulty which has been pointed out to us.
The respondent was sought to be proceeded against by reason of the aspersions he made in the application dated December 17, 1953, and the affidavit dated December 21, 1953.
It is not very clear from the record if the learned Magistrate was sitting in any stage of a judicial proceeding when the application and the affidavit were filed.
The High Court no doubt says that the Magistrate was sitting as a court at the time; but there is no reference to the particular work, judicial or otherwise, which the 1380 Magistrate was doing at the time.
The practice as to the filing of applications and affidavits varies from court to court and in some courts applications and affidavits are filed within stated hours before the reader or the bench clerk; they are so filed even when the Judge or Magistrate is in chamber or preoccupied with some administrative duties.
So far as the present case is concerned, it is not at all clear, from the record as placed before us, as to what was the judicial work which the learned Magistrate was doing when the application and affidavit were filed.
If he was not doing any judicial work at the relevant time, then the third essential ingredient mentioned above was not fulfilled and the act complained of would not amount to an offence under section 228, Indian Penal Code.
We are not, however, basing our decision on the mere absence of materials to show what particular judicial work the learned Magistrate was doing when the application dated December 17, 1953, and the affidavit dated December 21, 1953, were filed.
If that were the only infirmity, the proper order would be to ask for a finding on the question.
Our decision is based on a more fundamental ground.
Learned counsel for the parties have taken us through the applica tion dated December 17, 1953, and the affidavit dated December 21, 1953.
The aspersions made therein prima facie showed that they were much more than a mere insult to the learned Magistrate ; in effect, they scandalised the Court in such a way as to create distrust in the popular mind and impair the confidence of people in Courts.
Two of the aspersions made, taken at their face value, were (1) that the learned Magistrate had joined in a conspiracy to implicate the respondent in a false case of theft.
In the affidavit it was stated that the learned Magistrate had sent for the respondent and his brother and had asked them to make a false report to the police that the ornaments of Chandra Mukhi Bai had been stolen.
The learned Magistrate characterised the aspersion as totally false and said that he neither knew the respondent nor his brother and had no acquaintance with them.
Another aspersion was that the Magistrate had taken a bribe 1381 of Rs. 500.
This aspersion was also stoutly denied.
We must make it clear here that at this stage we are expressing no opinion on merits, nor on the correctness or otherwise of the aspersions made.
All that we are saying is that the aspersions taken at their face value amounted to what is called scandalising the court itself, manifesting itself in such an attack on the Magistrate as tended to create distrust in the popular mind and impair the confidence of the people in the courts.
We are aware that confidence in courts cannot be created by stifling criticism, but there are criticisms and criticisms.
" The path of criticism ", said Lord Atkin in Ambard vs Attorney General for Trinidad and Tobago (1), " is a public way: The wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune ".
If, therefore, the respondent had merely criticised the Magistrate, no notice need have been taken of such criticism as contempt of court whatever action it might have been open to the Magistrate to take as an aggrieved individual; but if the respondent acted in malice and attempted to impair the administration of justice, the offence committed would be something more than an offence under section 228, Indian Penal Code.
Learned counsel for the respondent has contended before us that as soon as there is an element of insult in the act complained of, section 228, Indian Penal Code, is attracted and the jurisdiction of the High Court to take cognizance of the contempt is ousted.
We are unable to accept this contention as correct.
Section 228 deals with an intentional insult to a public servant in certain circumstances.
The punishment for the offence is simple imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.
Our attention has been drawn to the circumstance that under section 4 of (1) [1936] A. C.322, 335.
1382 the Act the sentence for contempt of court is more or less the same, namely, simple imprisonment for a term which may extend to six months.
The fine is a little more and may extend to two thousand rupees.
Section 4 of the Act contains a proviso that the accused person may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.
We do not, however, think that a similarity of the sentence in the two sections referred to above is a real test.
The true test is: is the act complained of an offence under section 228, Indian Penal Code, or is it something more than that ? If in its true nature and effect, the act complained of is really " scandalising the court " rather than a mere insult, then it is clear that on the ratio of our decision in Ramakrishna Reddy 's case(1) the jurisdiction of the High Court is not ousted by reason of the provision in section 3(2) of the Act.
Mr. Umrigar has urged a further point in this connection and has contended that for an offence under section 228, Indian Penal Code, the insult must be an intentional insult.
The first essential requirement of the offence, according to him, is that the insult must be offered intentionally.
He has pointed out that the application which the respondent filed purported to be an application under section 528, Criminal Procedure Code, and though it is difficult to see how that section applied in the present case, the intention of the respondent was not to insult the Magistrate, but merely to state the 'Circumstances in which the respondent was praying for a transfer of the case.
Mr. Umrigar has pointed out that in the reply which the repondent gave to the notice issued from the High Court, he said that he had no intention to insult or show disrespect to the learned Magistrate.
Mr. Umrigar has further submitted that the decision in Narotam Das vs Emperor (2) (on which the learned Judges of the High Court relied) where in somewhat similiar circumstances it was held that section 228, Indian Penal Code, applied, does not correctly lay down the law.
In that case Yorke J. observed that it would be a matter for (1) ; (2) A.I.R. 1943 All. 97.
1383 consideration in each individual case how, insulting the expressions used were and whether there was any necessity for the applicant to make use of those expressions in the application which he was actually making to the court.
While we agree that the question of intention must depend on the facts and circumstances of each case, we are unable to accept as correct the other tests laid down by the learned Judge as finally determinative of the question of intention.
In two earlier decisions of the same High Court, in Queen Empress vs Abdullah Khan(1) and Emperor vs Murli Dhar (2), it was held that where an accused person made an application for transfer of the case pending against him and inserted in such application assertions of a defamatory nature concerning the Magistrate who was trying the case, there was no intention on the part of the applicant to insult the court, but the intention was merely to procure a transfer of the case.
We do not think that any hard and fast rule can be laid down with regard to this matter.
Whether there is an intention to offer insult to the Magistrate trying the case or not must depend on the facts and circumstances of each case and we do not consider it necessary, nor advisable, to lay down any inflexible rule thereto.
Taking the aspersions made by the respondent in the application dated December 17, 1953, and the affidavit dated December 21, 1953, at their face value, we have already expressed the view that they amounted to something more than a mere intentional, personal insult to the Magistrate; they scandalised the court itself and impaired the administration of justice.
In that view of the matter section 3(2) of the Act did not stand in the way and the learned Judges of the High Court were wrong in their view that the jurisdiction of the High Court was ousted.
We accordingly allow the appeal and set aside the order of the High Court dated February 9, 1955.
In our view, the High Court had jurisdiction to take cognizance of the act complained of and the case must (1) 176 (2) (1916) 38 All.
1384 now be decided by the High Court on merits in accordance with law.
It is only necessary to add that the act complained of was committed as far back as 1953 and it is desirable that the case should be dealt with as expeditiously as possible.
Appeal allowed.
| IN-Abs | The respondent, who had filed a complaint in respect of an alleged offence under section 500 of the Indian Penal Code in the Court of the Additional District Magistrate of Indore, made a number of aspersions against the Magistrate in an application I74 1368 made to him under section 528 of the Code of Criminal Procedure, two of which were of a serious character.
It was alleged that the Magistrate was a party to a conspiracy with certain others the object of which was two implicate the complainant in a false case of theft and that a lawyer appearing for the accused persons, to whom the Magistrate was favourably inclined, had declared that he had paid a sum of Rs. 500 to the Magistrate.
Those allegations were later on repeated in an affidavit.
The Magistrate reported the matter to the Registrar of the High Court for necessary action.
The High Court called upon the respondent to show cause why he should not be proceeded against in contempt under the .
The judges of the Division Bench who heard the matter, without going into the merits of the case, held that, Prima facie, the offence was one of intentional insult under section 228 of the lndian Penal Code and, consequently, the jurisdiction of the High Court was ousted under section 3(2) Of the .
Held, that the High Court had taken an erroneous view of the matter and its order must be set aside.
The mere existence of an element of insult in the alleged act of contempt was not conclusive as to the applicability of section 228 Of the Indian Penal Code so as to oust the jurisdiction of the High Court under section 3(2) of the .
While Judges and Courts are not beyond criticism, and there are well recognised limits to such criticism, and contempt proceedings are not meant to shield judges from personal insults, there can be no question that where defamatory aspersions are cast upon the character and ability of individual judges or of Courts in general, which in substance scandalise the Court itself and have the effect of undermining the confidence of the public in it and thus hinder due administration of justice, the contempt is of a kind which exceeds the limits of section 228 of the Indian Penal Code.
The true test, therefore, is: is the act complained of an offence under section 228 of the Indian Penal Code, or something more than that ? If it is something more, the jurisdiction of the High Court is not ousted by section 3(2) Of the .
So judged, there could be no doubt that the aspersions cast in the present case amounted to scandalising the court itself, and were no mere personal insults, and the High Court had jurisdiction to take cognizance of the same.
Bathina Ramkrishna Reddy vs The State of Madras, [1952] section C. R. 425 and Brahma Prakash Shayma vs The State of Uttar Pradesh, , relied on.
Ambard vs Attorney Geneyal for Trinidad and Tobago, , referred to.
1369 The question whether an insult offered to a public servant is intentional so as to attract section 228 of the Indian Penal Code has to be decided on the facts of each particular case and it is neither necessary nor advisable to Jay down any hard and fast rule.
Narotam Das vs Emperor, A.I.R. 1943 All. 97, Queen Empress vs Abdullah Khan, and Emperor vs Murli Dhar, All. 284, considered.
|
ivil Appeal No. 6729 of 1983.
From the Judgment and Order dated 22.3.1983 of the Allahabad High Court in C.M.W.P. No. 7787 of 1979.
Shankar Ghosh, R.K. Jain, R.B. Mehrotra, Ms. Abha Shar ma, Ms. Sangita Tripathi Mandal, R.P. Singh, Harish N. Salve, D.K. Garg, Gopal Subramanium, Mrs. Shobha Dikshit, C.P. Pandey, S.K. Sabharwal, M.P. Sarawala, R.S. Sodhi, D.D. Gupta, Shakil Ahmed Syed, K.R.R. Pillai, M.A. Firoz, R.D. Upadhyay, U.S. Prasad and C.M. Nayar for the appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by special leave was heard along with Civil Appeals Nos. 776 of 1984 and 4356 of 1986.
Those two appeals were disposed of by a common judg ment dated March 1, 1990, by remitting the dispute forming the subject matter of those appeals to the U.P. Public Services Tribunal for disposal on merit and judgment was reserved in this appeal as we were of the view that certain relevant aspects required notice and we should commend to the U.P. State to bring its Services Tribunal at par with the State Administrative Tribunals set up under the Central of 1985.
So far as the merits of the case go, we are of the view that it should also be remitted for disposal by the Services Tribunal and we direct that the Tribunal shall dispose of the matter in accordance with its rules by the end of Sep tember, 1990.
The of 1985 is a legisla tion in terms of article 323A of the Constitution.
By setting up a Tribunal under that Act for resolution of service disputes, the jurisdiction of the High Court in regard to such matters is intended to be taken away and under 170 the scheme of that Act, the jurisdiction of the High Court in regard to service disputes is intended to be vested in the Tribunal.
That is the view expressed by the Constitution Bench of this Court in S.P. Sampath Kurnar vs Union of India & Ors., ; The Uttar Pradesh Public Services Tribunal which func tions under a different State Act does not have power to make any interim order.
In fact, exercise of that power is denied to the Tribunal by specific provision.
That is why the appellants had taken up the plea before the High Court that filing of a claim in the Tribunal was not an adequate alternate relief.
In such setting it had been canvassed that the High Court under article 226 of the Constitution was not debarred from entertaining writ petitions.
Under the Admin istrative Tribunals Act, it is open to the State to also set up Tribunals for adjudication of service disputes in regard to employees of the State.
Several States have already set up their own Tribunals.
We commend to the State of Uttar Pradesh to consider the feasibility of setting up of an appropriate tribunal under the Central Act in place of the Services Tribunal functioning at present so that apart from the fact that there would be uniformity in the matter of adjudication of service disputes, the High Court would not be burdened with service litigations and the Tribunal with plenary powers can function to the satisfaction of everyone.
case the Uttar Pradesh Services Tribunal set up under the U.P. No. 17 of 1976 is continued, it would be appropriate for the State of Uttar Pradesh to change its manning and a sufficient number of people qualified in Law should be on the Tribunal to ensure adequate dispensation of justice and to maintain judicial temper in the functioning of the Tribu nal.
We find that in Writ Petition No. 373 of 1989 relating to the self same question a Bench of this Court has issued notice wherein the proposal for additional Benches at places like Allahabad, Meerut and Agra apart from the seat at Lucknow have been asked to be considered.
We are of the view that if the Services Tribunal is to continue, it is neces sary that the State of Uttar Pradesh should plan out immedi ately diversification of the location of the Benches for the Tribunal so that service disputes from all over the State are not required to be filed only at Lucknow and on account of a single tribunal disputes would not pile up without disposal.
There would be no order as to costs.
P.S.S. Appeal disposed of.
| IN-Abs | The writ petitions preferred by the appellants before the High Court were sought to be resisted by the State on the preliminary objection that they had an alternative remedy available before the Public Services Tribunal set up under the U.P. Act 17 of 1976.
The appellants took the plea that filing of a claim in the Tribunal was not an adequate alternate relief inasmuch as it did not have power to make any interim order.
The High Court declined to exercise its power under article 226 of the Constitution.
Remitting the case to the Public Services Tribunal for disposal on merits, the Court, HELD: 1.
The Uttar Pradesh Public Services Tribunal which functions under a State Act does not have power to make any interim order.
Under the .
which is a legislation in terms of article 323 A of the Constitution, the jurisdiction of the High Court in regard to service matter is intended to be taken away and vested in the Tribunal.
It is open to the State to also set up Tribunals for adjudication of service disputes in regard to its employees.
Several States have already set up their own Tribunals under that Act.
[170B, 169H, 170C] S.P. Sampath Kumar vs Union of India & Ors., ; , referred to. 2.
It is commended to the State to consider the feasi bility of setting up of an appropriate tribunal under the Central Act in place of the Services Tribunal so that apart from the fact that there would be uniformity in the matter of adjudication the High Court would not be burdened with service litigations and the Tribunal with plenary powers 169 can function to the satisfaction of everyone.
[1701)] 3.
In case the existing Services Tribunal is continued the State should change its manning so that a sufficient number of people qualified in Law could be on the Tribunal to ensure adequate dispensation of justice, and plan out diversification of the location of the Benches for the Tribunal.
[170E G]
|
t Petition (Civil) No. 1152 of 1988.
(Under Article 32 of the Constitution` of India).
M.K. Ramamurthi, R.C. Pathak, Naresh Mathut, Sudhir Kumar and Ms. Baby Lal for the petitioners.
B. Dutta, R.K. Joshi and S.K. Jain for the Respondents.
The Judgment of the Court was delivered by S.C. AGRAWAL, J.
The only question which arises for consideration in this writ petition, filed under Article 32 of the Constitution, is whether persons who were employed in temporary capacity with the Oil & Natural Gas Commission (hereinafter referred to as 'the Commission '), when it was being run as a Department of the 159 Government of India prior to the enactment of the Oil & Natural Gas Commission Act, 1959 (hereinafter referred to as 'the ONGC Act ') and who were subsequently absorbed in the Commission, as established under the said Act, are entitled to pension, in addition to the Provident Fund benefits to which they are entitled under the provisions of the Employ ees ' Provident Fund and Miscellaneous Provisions Act (here inafter referred to as the Provident Fund Act ').
The Commission was initially formed as a Department of the Government of India and it continued to be so till October 15, 1959, when the ONGC Act was enacted and the Commission was established as a statutory body under the said Act.
Section 13 of the ONGC Act makes provision for transfer of service of the existing employees to the Commis sion on the same tenure, remuneration and terms and condi tions as they would have held, if the Commission had not been established, until such tenure, remuneration and terms and conditions are duly altered by the Commission.
In the proviso of Sub Section (1) of Section 13 of the ONGC Act, it is further provided that the tenure, remuneration and terms and conditions of service of any such employee shall not be altered to his disadvantage without the previous approval of the Central Government.
In exercise of the powers conferred by Section 32 of the ONGC Act the Commission, with the previous approval of the Central Government, has made the Oil & Natural Gas Commission (Terms and Conditions of Ap pointment and Service) Regulations, 1975 (hereinafter re ferred to as the Regulations ').
In clause 2(b) of Regulation 3, it has been provided that nothing in the Regulation shall operate to deprive any employee of any right or privilege to which he is entitled by the terms or conditions of service, or any agreement, subsisting between such person and the Government.
By notification No. GSR 705, dated May 16, 1961, Sched ule 1 to the Provident Fund Act was amended so as to make the provisions of the said Act applicable to any industry engaged in the manufacture of petroleum or natural gas exploration, prospecting, drilling or production with effect from June 30, 1961.
By another Notification No. GSR 706, dated May 16, 1961, issued under Section 1(3)(b) of the Provident Fund Act the provisions of the said Act were made applicable to establishments engaged in the storage or transport or distribution of petroleum or natural gas or products of either petroleum or natural gas with effect from June 30, 1961.
A corresponding amendment was made in the Employees ' Provident Fund Scheme, 1952 (hereinafter referred to as 'the Provident Fund Scheme '), by Notification dated 160 June 5, 1961, whereby Sub Clause (xviii) was inserted in Clause (b) of sub para (3) of para 1 of the said scheme and thereby the Provident Fund Scheme was made applicable, with effect from June 30, 1961, to factories relating to petrole um or natural gas exploration, prospecting, drilling or production and petroleum or natural gas refining and estab lishments engaged in the storage or transport or distribu tion of petroleum or natural gas or products of either petroleum or natural gas covered by the notifications of the Government of India in the Ministry of Labour and Employ ment, Nos.
G.S.R. 705 and 706, dated May 16, 1961, respec tively.
As a result of the aforesaid amendments introduced in the Provident Fund Act and the Provident Fund Scheme, the provisions of the Provident Fund Act and the Provident Fund Scheme became applicable to the Commission with effect from June 30, 1961.
The petitioners in this writ petition represent the employees who were employed on temporary basis with the Commission prior to the enactment of the ONGC Act and who have been absorbed in the Commission after the enactment of the ONGC Act and the establishment of the Commission is a statutory body.
The case of the petitioners is that while they were employed in the Commission before the enactment of the ONGC Act, they were entitled under the relevant rules governing their service, to pension on their being made permanent and that the said right to pension, which was part of their conditions of service, is protected under Section 13(1) of the ONGC Act.
The petitioners have submitted that persons who were employed on temporary basis with the Com mission prior to the enactment of the ONGC Act and were absorbed in the Commission subsequent to the enactment of the ONGC Act are entitled to pension on their retirement irrespective of the fact that they are entitled to Provident fund benefits under the provisions of the Provident Fund Act and the Provident Fund Scheme.
The writ petition has been contested by the Commission and in the counter affidavit filed on behalf of the Commis sion it has been stated that after the introduction of Contributory Provident Fund, in accordance with the provi sions of the Provident Fund Act and the Provident Fund Scheme, the petitioners have been availing the benefits of Contributory Provident Fund and since the petitioners have opted for Contributory Provident Fund under the Provident Fund Act and the Provident Fund Scheme they cannot claim pension in addition to Contributory Provident Fund.
It has been submitted that, on the date of enactment of the ONGC Act, the petitioners were temporary 161 employees and they were not entitled to pension under the relevant service rules applicable to them and, therefore, they are not entitled to pension on their retirement after being absorbed in the Commission subsequent to the enactment of the ONGC Act.
It has been further submitted that the petitioners cannot claim a double benefit i.e., Contributory Provident Fund as well as pension, and that they could either claim Contributory Provident Fund or pension, and since they opted for Contributory Provident Fund on the introduction of the Provident Fund Scheme and have been availing the said benefit during the past 28 years, they cannot be permitted to claim pension in addition to Contrib utory Provident Fund.
Shri M.K. Ramamurthi, the learned counsel for the peti tioners, has placed reliance on Sub Section (1) of Section 13 of the ONGC Act and Clause (2) of Regulation 3 of the Regulations which provide as under: "Section 13(1): Subject to the provisions of this Act, every person employed by the existing organisation immediately before the date of establishment of the Commission shall, on and from such date, become an employee of the Commission with such designation as the Commission may determine and shall hold his office or service therein by the same tenure, at the same remuneration and upon the same terms and condi tions as he would have held the same on such date if the Commission had not been established and shall continue to do so unless and until his employment in the Commission is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Commission: Provided that (a) the tenure, remuneration and terms and conditions of service of any such person shall not be altered to his disadvantage without the previous approval of the Central Government; (b) any service rendered in the existing organisation by any such person shall be deemed to be service under the Commis sion; and (c) all persons employed by the Commission on the date of 162 its establishment, who, immediately before such date.
hold, in a permanent or quasi permanent capacity, posts in connec tion with the affairs of the Union or of any State, but not posts in the existing organisation, shall be treated as Government servants on foreign service with the Com mission." "Regulation 3(2): Nothing in these regulations shall operate to deprive any employee of any right or privilege to which he is entitled: (a) by or under any law for the time being in force; or (b) by the terms or conditions of service, or any agreement.
subsisting between such person and the Government, or (c) by the terms of any agreement subsisting between him and the Commission at the commencement of these regulations.
" The submission of Shri Ramamurthi is that in view of SubSection (1) of Section 13 of the Act, the employees who were employed in the Commission immediately before the establishment of the Commission under the ONGC Act became employees of the Commission and they are entitled to hold their office or service in the Commission upon the same terms and conditions as they were applicable to them on the date of such establishment of the Commission and they are entitled to continue to do so until such terms and condi tions are duly altered by the Commission and that any such alteration in the terms and conditions of service which is to their disadvantage could be made only with the previous approval of the Central Government and the said right of the employees is also protected by Clause (2) of Regulation 3 of the Regulations which have been framed by the Commission with the previous approval of the Central Government.
Shri Ramamurthi has urged that under the relevant Service Rules, which were applicable to the petitioners at the time when they were absorbed in the service of the Commission on the enactment of the ONGC Act, the petitioners, though temporary employees, were entitled to pension on their being made permanent and that the said right of the petitioners, being part of their conditions of service, has been protected by Sub Section (1) of Section 13 of the ONGC Act, as well as Clause (2) of Regulation 3 of the Regulations and it has not been taken away 163 because the Central Government has not given its approval to the denial of the said right of the petitioners.
In support of his aforesaid submissions, Shri Ramamurthi, has invited our attention to the provisions of Rule 13 of the Central Civil Services (Pension) Rules 1972 (hereinafter referred to as 'the Pension Rules '), which deals with commencement of qualifying service and prescribes that qualifying service of a government servant shall commence from the date he takes charge of the post to which he is appointed either substan tively or in an officiating or temporary capacity, provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post.
The Pension Rules were issued in 1972 and were not applicable at the time when the petitioners were absorbed in the Commission on the enactment of the ONGC Act, 1959.
It is, however, not disputed that the provisions with regard to pension, as contained in the Civil Service Regulations which were applicable at that time, were not different from those contained in the Pension Rules and pension was payable only if the employment was substantive and permanent (Regulations 352, 362 and 368).
Under the Civil Service Regulations, an employee who was initially engaged on contract and was subsequently appointed to the same or different post in a substantive capacity on pensionable basis without interrup tion of duty was allowed the option of surrendering the Government contribution to his Contributory Provident Fund together with the interest thereon for the period of the contract and to count one half of the contract service towards pension (see: Choudhari 's compilation of Civil Service Regulations, 5th Edition, Volume I, pages 216 217).
Similarly, in cases where a permanent Government servant was transferred to an autonomous organisation consequent on the conversion of a Government Department into such a body, there was Government order dated 5th November, 1964 (Annex ure III to the writ petition) which provided that the Gov ernment servant would be given an option to either retain the pensionary benefit available to him under the Government Rules or be governed by the Rules of the autonomous body.
This option was also available to quasi permanent and tempo rary employees after they had been confirmed in the autono mous body.
In other words, a Government servant could either avail pensionary benefits or the benefit of Contributory Provident Fund, but he could not avail both the benefits.
In the Pension Rules, there is an express provision in Rule 2(d) which prescribes that the said Rules shall not apply to persons entitled to the benefit of a Contributory Provident Fund.
164 In the present case, the petitioners were employed on temporary basis at the time when the Commission was established as a statutory body under the ONGC Act and on that date they were not entitled to claim pension because under the relevant Rules pension was not payable to a person employed on temporary basis.
The petitioners, therefore, cannot claim that on the date of their becoming the employ ees of the Commission established under the ONGC Act in 1959, they had a fight to pension which has been protected under Sub Section (1) of Section 13 and Clause (2) of Regu lation 3 of the Regulations.
The petitioners cannot also claim protection of the aforesaid provisions on the basis that right to receive pension was part of their condition of service on the date of their becoming the employees of the Commission under Sub Section (1) of Section 13 of the ONGC Act, in as much as under the relevant service rules applica ble to them, they could either claim pension or the benefit of the Contributory Provident Fund and they could not avail both the benefits.
Since the petitioners are entitled to the benefit of the Contributory Provident Fund under the Provi dent Fund Act and the Provident Fund Scheme and have availed the said benefit for the past 28 years, they should be taken to have opted for said benefit and they cannot invoke the service rules with regard to pension and claim the right to receive pension as part of their conditions of service.
We are, therefore, unable to accept the contention of Shri Ramamurthi, 'based on the provisions of Sub Section (1) of Section 13 of the ONGC Act and Clause (2) of Regulation 3 of the Regulations, that the petitioners are entitled to claim pension in addition to the Provident Fund payable to them under the Provident Fund Act and the Provident Fund Scheme.
Shri Ramamurthi, has next contended that in view of Section 12 of Provident Fund Act, the right of the peti tioners to pension has been preserved and the introduction of the Contributory Provident Fund under the provisions of the Provident Fund Act and the Provident Fund Scheme does not disentitle the petitioners from claiming pension to which they were entitled before the introduction of the Contributory Provident Fund in the Commission.
In support of the aforesaid submission, Shri Ramamurthi has placed reli ance on the decision of this Court in Sorn Prakash Rekhi vs Union of India & Another, ; Section 12 of the Provident Fund Act, provides as under: "No employer in relation to an establishment to which any 165 Scheme or the Insurance Scheme applies shall, by reason only of his liability for the payment of any contribution to the Fund or the Insurance Fund or any charges under this Act or the Scheme or the Insurance Scheme reduce, whether directly or indirectly, the wages of any employee to whom the Scheme or the Insurance Scheme applies or the total quantum of benefits in the nature of old age pension, gratuity, Provi dent Fund or life insurance to which the employee is enti tled under the terms of his employment, express or implied.
" The said provision in our view is not applicable in the present case.
The Provident Fund Act has been enacted with the object of providing social security to the employees in factories and other establishments covered by the said Act, after their retirement.
In the Statement of Objects and Reasons for the said enactment it was mentioned as under: "The question of making some provision for the future of the industrial worker after he retires, or for his dependents in case of his early death, has been under consideration for some years.
The ideal way would have been provisions through old age and survivors ' pensions as has been done in the industrially advanced countries.
But in the prevailing conditions in India.
the institution of a pension scheme cannot be visualised in the near future.
Another alternative may be for provision of gratuities after a prescribed period of service.
The main defect of a gratuity scheme, however, is that amount paid to a worker or his dependents would be small, as the worker would not himself be making any contri bution to the fund.
Taking into account the various diffi culties, financial and administrative, the most appropriate course appears to be the institution, compulsorily, of Contributory Provident Fund in which both the worker and the employer would contribute.
Apart from other advantages, there is the obvious one of cultivating among the workers a spirit of saving something regularly." This indicates that the scheme of Contributory Provident Fund, by way of retiral benefit, envisaged by the Provident Fund Act, is in the nature of a substitute for old age pension because it was felt that in the prevailing condi tions in India, the institution of a pension scheme could not be visualised in the near future.
It was not the inten tion of 166 Parliament that Provident Fund benefit envisaged by the said Act would be in addition to pensionary benefits.
Section 12 of the Provident Fund Act seeks to protect the wages of an employee to whom the scheme framed under the said Act ap plies as well as the total quantum of certain specified benefits to which he is entitled under the terms of his employment.
With that end in view, Section 12 prohibits an employer from reducing, whether directly or indirectly, the wages of an employee to whom the Scheme applies or the total quantum of benefits in the nature of old age pension, gratu ity, Provident Fund or life insurance to which the employee is entitled under the terms of his employment express or implied.
The said Section proceeds on the basis that if an employee is entitled to any benefit in the nature of old age pension under the terms of his employment the said benefit would not be denied to him on the application of the Scheme.
It is not the case of the petitioners that on June 30, 1961, when the Provident Fund Scheme was made applicable to the Commission, the petitioners had become permanent and were entitled to pension.
It cannot, therefore, be said that on the date of the application of the Provident Fund Scheme to the Commissioner, the petitioners were entitled to pension under the terms of their employment.
They cannot, therefore, invoke the provisions of Section 12 of the Provident Fund Act.
In Sorn Prakash Rekhi vs Union of India & Another, (supra) on which reliance has been placed by Shri Rama murthi, the petitioner before this Court was employed as a clerk in Burmah Shell Oil Storage Ltd. The undertaking of that company was statutorily acquired by the Government of India under the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, and subsequently the said undertaking was vested by the Central Government in the Bharat Petroleum Corporation Limited, a Government Company.
In the Burmah Shell, there was a voluntary retirement scheme in force which was governed by the terms of a trust deed of 1950.
The said petitioner was receiving pension under the said scheme.
Certain deductions were made from the pension paid to the petitioner on account of Employees ' Provident Fund and Gratuity paid to him.
This Court held that in view of Sec tion 12 of the Provident Fund Act, such deductions were not permissible and that the entire amount of pension should be paid to the petitioner without deduction.
This decision has no application to the instant case because in that case the petitioner before this Court was entitled to receive pension under the voluntary retirement scheme at the time when the provisions of the Provident Fund Act became applicable to Burmah Shell and the right to receive pension was part of the terms of employment of the said petitioner.
In the present case it cannot be said 167 that on the date of the application of the Provident Fund Scheme to the Commission on June 30, 1961, the petitioners were entitled to receive pension and the benefit of pension was a part of the terms of employment of the petitioners on that date.
For the reasons mentioned above, it must be held that the persons who were employed in temporary capacity with the Commission when it was being run as a Department of the Government of India prior to the enactment of the ONGC Act and who were subsequently absorbed in the Commission, as established under the said Act, are not entitled to pension in addition to the Provident Fund benefits to which they are entitled under the provisions of the Provident Fund Act.
The writ petition, therefore, fails and it is accordingly dis missed.
There will be no order as to costs.
T.N.A. Petition dismissed.
| IN-Abs | The petitioners, employed in temporary capacity with the Oil and Natural Gas Commission when it was a Department of the Government of India, were subsequently absorbed in the said Commission when it was established as a statutory body under the .
The was made applicable to the Commission.
The petitioners opted for Contributory Provident Fund and availed the bene fit.
The petitioners filed a writ petition in this Court claiming the benefit of pension in addition to the Provident Fund contending that (i) under the relevant Rules governing their service, they were entitled to pension on their being made permanent and that the right to pension, 157 which was part of their service condition, was protected by Section 13(1) of the read with Regulation 3(2) of the Oil and Natural Gas Commission (Terms and Conditions of Appointment and Service) Regula tions 1975; and (ii) In spite of the introduction of the Contributory Provident Fund Scheme 'their right to pension was preserved by Section 12 of the Provident Fund Act.
Dismissing the writ petition, this Court, HELD: 1.
The scheme of Contributory Provident Fund, by way of retiral benefit, envisaged by the Provident Fund Act, is in the nature of a substitute for old age pension because it was felt that in the prevailing conditions in India, the institution of a pension scheme could not be visualised in the near future.
It was not the intention of Parliament that Provident Fund benefit envisaged by the said Act would be in addition to pensionary benefits.
[165G H; 166A] 2.
Section 12 of the Provident Fund Act seeks to protect the wages of an employee to whom the scheme framed under the said act applies as well as the total quantum of certain specified benefits to which he is entitled under the terms of his employment.
It prohibits an employer from reducing, whether directly or indirectly, the wages of an employee to whom the Scheme applies or the total quantum of benefits in the nature of old age pension, gratuity, Provident Fund or life insurance to which the employee is entitled under the terms of his employment express or implied.
The said section proceeds on the basis that if an employee is entitled to any benefit in the nature of old age pension under the terms of his employment the said benefit would not be denied to him on the application of the Scheme.
[166A C] 2.1 In the instant case, on the date of application of the Provident Fund Scheme to the Oil and Natural Gas Commis sion.
the benefit of pension was not a part of the terms of employment of the petitioners and they were not entitled to receive pension on that date.
Consequently, the petitioners cannot invoke the provisions of Section 12 of the Provident Fund Act.
[166D] Som Prakash Rekhi vs Union of India & Anr., ; , held inapplicable.
The petitioners were employed on temporary basis at the time when the Commission was established as a statutory body under the "and on that date they were not 158 entitled to claim pension because under the relevant Rules pension was not payable to a person employed on temporary basis.
The petitioners, therefore, cannot claim that on the date of their becoming the employees of the Commission established under the Oil and Natural (;as Commission Act in 1959, they had a right to pension which has been protected under sub section (1) of Section 13 and clause 12) of Regu lation 3 of the Regulations.
[164A B] 3.1 Under the relevant service rules applicable to petitioners, they could either claim pension or the benefit of the Contributory Provident Fund and they could not avail both the benefits.
Since the petitioners are entitled to the benefit of the Contributory Provident Fund under the Provi dent Fund Act and the Provident Fund Scheme and have availed the said benefit for the past 28 years, they should be taken to have opted for said benefit and they cannot invoke the service rules with regard to pension and claim the right to receive pension as part of their conditions of service.
I 164C D] 3.2 The persons who were employed in temporary capacity with the Oil and Natural Gas Commission when it was being run as a Department of the Government of India prior to the enactment of the and who were subsequently absorbed in the Commission, as established under the said Act, are not entitled to pension in addition to the Provident Fund benefit to which they are entitled under the provisions of the Provident Fund Act.
[167B C]
|
Criminal Appeal Nos. 7 18 7 19/81 & 205 2 12, 2 13 2 17 & 204 of 1990.
From the Judgments and Order dated 29.4.1981, 22.5.1981 & 29.4.
1981 of the Punjab and Haryana High Court in Crl.
W.P. Nos. 38 & 46, 80 84, 86 88 & 40 of 1981.
R.S. Suri, Mr. Mohan Pandey and R.P. Singh for the Appel lants.
S.Srinivasan and C.L. Sahu Amicus Curiae for the Respond ents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted in all the above matters.
These appeals involve the interpretation of paragraphs 516 B and 631 of the Manual for the Superintendence and Management of 150 Jails in the Punjab.
The preface to the Manual shows that those paragraphs of the Manual against which a black line appears are, in substance, either quotations from the law, or, from the Rules having the force of law, the authority having been indicted on the upper right hand margin of each paragraph whereas the paragraphs which have not been black lined are executive instructions issued from time to time by the Government of India, or the Local Government or the Inspector General with the sanction and approval of the Local Government.
It may at once be mentioned that paragraph 5 16 B contained in Chapter XV entitled 'Release of Prison ers ' is not blacklined while paragraph 631 contained in Chapter XX entitled 'Remission System ' is blacklined.
The note in the upper right hand margin of paragraph 516B refers to G of I Resolution No. 159 167 dated 6th September, 1905 and P.G. No. 18608 Jails dated 28th June, 1920.
There is no dispute that this paragraph contains an executive instruc tion only.
Paragraph 631 contains a note on the upper right hand margin referring to the G of I Resolution No. 161 172 of 2nd May, 1908 and P.G. Letter No. 1669 S (Home) of 31st July, 1908.
At the foot of paragraph 631 is a 'Note ' in small type with a right hand marginal note See para 5 16B '.
While there can be no controversy that paragraph 631 which is blacklined has statutory force, the question is whether the Note at the foot thereof, which is not blacklined, also has statutory force.
Paragraph 5 16 B provides that the case of every con victed prisoner (except females and males below 20 years at the date of the commission of the crime) sentenced to im prisonment for life or imprisonment aggregating to over 14 years and who has undergone a period of detention in Jail amounting, together with remission earned, to 14 years, 'shall be ' submitted to the State Government, through the Inspector General of Prisons, for orders.
In the case of female prisoners or prisoners who were below 20 years on the date of commission of the crime, reference is required to be similarly made to the State Government on their completing a detention period of 10 years inclusive of remissions.
Clause (v), however, provides that notwithstanding anything con tained in the earlier part of the paragraph, a Superintend ent of jail 'may ', in his discretion, refer at any time, for the orders of the State Government, the case of any prisoner sentenced to imprisonment for life whose sentence might in the Superintendent 's opinion be suitably commuted to a term of imprisonment.
It would appear from a plain reading of this paragraph that in the case of a prisoner who has com pleted 14 years of detention in jail.
inclusive remissions earned, it is imperative on the part of the Superintendent of 151 the Jail to submit his case, through the I.G. of Prisons, to the State Government for consideration.
The use of the words 'shall be submitted ' bring out this intention when we con trast them with the word 'may ' and the words 'in his discre tion ' used in clause (v) thereto which begins with a non obstante clause.
Therefore, where the intention was to confer a mere discretion on the Superintendent of Jail, it was made manifest by the use of the expression 'may ' fol lowed by the words 'in his discretion ' and where the inten tion was to cast a duty to submit the case of the State Government, it was brought out by the word 'shall ' preceding the words 'be submitted . . for the orders of the State Government '.
We have, therefore, no doubt in our minds that paragraph 5 16B, though an executive instruction, has been couched in language which clearly shows that in the former type of cases where the prisoner has completed 14 years of detention in jail, inclusive of remissions, his case must be referred to the State Government for consideration.
Notwith standing this limitation of completion of 14 years, clause (v) confers a discretion on the Superintendent of the jail to refer or submit the case of a prisoner to the State Government even before he has completed 14 years if in his opinion the case is fit for commuting the sentence.
Paragraph 631 is indisputably a statutory one as it is blacklined.
But the blacklined portion of the paragraph merely defines certain expressions including the expression 'life convicts ' which means a person whose sentence amounts to 20 years imprisonment.
Then appears the Note which reads as follows: "Note: The case of all life convicts and of all prisoners sentenced to more than 14 years imprisonment or to transpor tation and imprisonment for terms exceeding in the aggregate 14 years shall, when the term of imprisonment undergone, together with any remission earned under the rules amounts to 10 or 14 years, as the case may be, submitted for the orders of the Local Government in accordance with the in structions contained in the Home Department Resolution No. 159 167 (Jails), dated the 6th September, 1905." (See para 516B) It will be seen that the note merely reproduces the gist of paragraph 5 16 B. Even the right side marginal note says 'see para 5 16 B ' and is based on the same Resolution of 6th September, 1905 on which paragraph 5 16 B is based.
The note is not blacklined as in the case of 152 the Note below paragraph 633.
It was, therefore, urged that when paragraph 516 B is not blacklined, this note below.
paragraph 63 1, which too is not blacklined, can not be construed to be statutory in character merely because para graph 631 incorporates a statutory rule.
Since the source of paragraph 5 16 B and the Note at the foot of paragraph 631 is the same, namely, the Resolution of 6th September, 1905, counsel for the State of Punjab submit ted that the learned Judge in the High Court was not right in concluding that the Note being an integral part of the statutory rule incorporated in paragraph 631 must receive the same character and if there is a conflict between the two, the note which is statutory in character must prevail.
The difficulty arises because the State Government has issued instructions in 1971 which has the effect of modify ing the executive instructions in paragraph 5 16 B, in that, it is now provided that a convict must have undergone 8 1/2 years of substantive sentence before his case for premature release can be submitted to the State Government for consid eration.
A further change was made by an executive instruc tion issued in 1976 whereby it was provided that cases of convicts who were sentenced to death and whose sentences were subsequently commuted to life imprisonment will not be submitted to the State Government for consideration unless the convict has undergone atleast 14 years of substantive imprisonment.
The High Court has taken the view that while paragraph 5 16 B would stand amended or modified by the subsequent executive instructions, the statutory rule con tained in the Note below paragraph 631 cannot be touched by mere executive instructions and hence it still holds the field and the Superintendent for the jail is bound to submit the case to the State Government ignoring the change brought about by the executive instructions of 1971 and 1976.
In other words, according to the High Court the executive instructions of 1971 and 1976 being in conflict with the statutory Note must give way to the latter.
Before we deal with the above question it may be advan tageous to refer to Sections 432,433 and 433A of the Crimi nal Procedure Code which have a bearing on the question of premature release.
Section 432 confers on the appropriate Government the power to suspend the execution of the sen tence or remit the whole or part of the sentence with or without conditions.
Section 433 confers power on the appro priate Government to commute (a) a sentence of death for any other punishment provided under the Penal Code, (b) a sen tence of imprisonment for life, for imprisonment for a term not exceeding 14 years or 153 fine (c) a sentence of rigorous imprisonment, for simple imprisonment or fine or (d) a sentence of simple imprison ment for fine.
Section 433A provides that where an offender is visited with a sentence of imprisonment for life for an offence for which death is one of the punishments or where a sentence of death is commuted under Section 433 into one of punishment for life, such persons shall not be released from prison unless he has served atleast 14 years of imprison ment.
It will thus seen that Section 432 and 433 confer powers of suspension, remission and commutation of sentences on the appropriate Government, an expression defined in Sub section (7) of Section 432 of the Code.
In Gopal Vinayak Godse vs State of Maharashtra, ; , this Court held that a sentence of transportation for life or imprisonment for life must be treated as trans portation or imprisonment for the whole of the remaining period of the convict 's normal life, unless the said sen tence is commuted or remitted by the appropriate Government.
Dealing with the Rules framed under the , this Court held that even though they were statutory in character they did not confer an indefeasible right on a prisoner sentenced to transportation for life an uncondi tional release on the expiry of a particular term including remissions.
It held that the rules framed under the enabled a prisoner to earn remissions ordinary, special and State the said remissions were to be given credit to wards his term of imprisonment and for the purpose of work ing out the remissions the sentence of transportation for life was equated with a definite period, but it is only for the particular purpose and not for any other purpose.
Lastly it observed that the question of remission was exclusively within the province of the appropriate Government.
In Maru Ram vs Union of India, ; this Court repelled the challenge to Section 433A both on the question of competence of Parliament to enact the provision and its constitutional validity.
While interpreting Sections 432,433 and 433A of the Code, this Court pointed out that wide powers or remission and commutation of sentences were conferred on the appropriate government but an exception was carved out for the extreme category of convicts who were sentenced to death but whose sentence had been commuted under Section 433 into one of imprisonment for life.
Such a prisoner is not to be released unless he has served atleast 14 years of imprisonment.
The Court refused to read down Section 433A to give overriding effect to the Remission Rules of the State.
It categorically ruled that Remission Rules and like provisions stand excluded so far as 'lifers ' punished for capital offences are concerned.
Remissions by way of 154 reward or otherwise cannot cut down the sentence awarded by the Court except under Section 432 of the Code or in exer cise of constitutional power under Article 72/161 of the Constitution.
Remission cannot detract from the quantum and quality of the Judicial sentence except to the extent per mitted by Section 432 of the Code, subject of course to Section 433A, or where the clemency power under the Consti tution is invoked.
But while exercising the Constitutional power under Article 72/161, the President or the Governor, as the case may be, must act on the advice of the Council of Ministers.
The power under Article 72 and 161 of the Consti tution is absolute and cannot be lettered by any statutory provision such as Sections 432,433 and 433A of the Code.
This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules.
Now, paragraph 5 16 B requires that the case of every convict sentenced to imprisonment for life or imprisonment aggregating to more than 14 years and who has undergone a period of detention in jail amounting, together with remis sion, to 14 years, shall be submitted to the State Govern ment for orders.
The State Government 's instruction issued in 1971 provides that the convict must have undergone 8 1/2 years of substantive sentence before his case could be submitted to the Government.
The other instruction issued in 1976 provides that the case of a convict who was sentenced to death and whose sentence was subsequently commuted to life imprisonment will not be submitted unless he has under gone atleast 14 years of substantive imprisonment.
Remission schemes are introduced to ensure prison discipline and good behaviour and not to upset sentences; if the sentences is of imprisonment for life.
ordinarily the convict has to pass the remainder of his life in prison but remissions and commutations are granted in exercise of power under Sections 432 and 433 carving out an exception in the category of those convicts who have already enjoyed the generosity of executive power on the commutation of death sentence to one of life imprisonment.
Even in such cases Section 433A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years.
In the case of other 'lifers ' the insistence under the 1971 amendment is that he should have a period of atleast 81/2 years of incarceration before release.
The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433A of the Code.
Since Section 433A is prospective, so also would be the 1971 and 1976 amendments.
155 But the High Court has come to the conclusion that Paragraph 5 16 B, as amended by the executive instructions of 1971 and 1976, cannot override the statutory rule con tained in Paragraph 631 read with the note appended thereto.
Counsel for the State argued that the Note at the foot of Paragraph 631 merely reproduces Paragraph 5 16 B; the mar ginal note thereto says to in no uncertain terms and, there fore, the Note cannot be ascribed a statutory character.
We think there is considerable force in this submission.
In the first place it must be realised that according to the pref ace only those paragraphs which are blacklined have statuto ry character.
The Note in question is not so blacklined.
Where the note is intended to be given statutory character it is blacklined, see the note at the foot of Paragraph 633.
Secondly the source of paragraph 5 16 B and the Note is the very same Resolution No. 159 167 of the Government of India dated 6th September, 1905.
It is difficult to believe that the same resolution was intended to be a mere executive instruction in one part of the Manual and was intended to be conferred a statutory character in another part of the same Manual.
Thirdly the marginal note to the Note in question in terms refers to Paragraph 5 16 B which means it was merely a reproduction of the latter paragraph.
In the circumstances if the Note was intended to be conferred a statutory charac ter, it would have been blacklined in keeping with the scheme of the Manual.
These are clear indicators which support the submission of the learned counsel for the State.
Lastly Paragraph 631 classifies prisoners and fixes the duration of their sentences e.g. 20 years for life convicts and class 3 prisoners and 25 years for class 1 and 2 prison ers.
The Note at the foot of the paragraph is by way of a reminder that notwithstanding the duration fixed under the said rule, Paragraph 5 16 B requires that cases of such prisoners should be submitted on the expiry of the duration fixed under Paragraph 5 16 B. It, therefore, seems clear to us that the Note is neither an integral part of Paragraph 631 nor does it have statutory flavour as held by the High Court.
We, therefore, find it difficult to uphold the view taken by the High Court in this behalf.
We may make it clear that Paragraph 516B insofar as it stands amended or modified by the 1971 and 1976 executive orders is prospective in character.
We allow these appeals and set aside the judgment and Order of the High Court in each of these appeals.
G.N. Appeals allowed.
| IN-Abs | Paragraph 516 B of the Manual for the Superintendence and Management of Jails in Punjab provides for premature release of prisoners.
The State Government had issued in structions in 1971 modifying the executive instructions in paragraph 516B, to the effect that a convict must have undergone 8 1/2 years of substantive sentence before his case could be submitted to the Government for consideration.
Again there was another executive instruction in 1976 which provided that cases of convicts who were sentenced to death and whose sentences were subsequently commuted to life imprisonment would not be submitted to the State Government for consideration unless the convict has undergone atleast 14 years of substantive imprisonment.
Paragraph 631 of the said Manual relates to remission of sentences.
The note below paragraph 631 reproduces the gist of paragraph 516 B. Going by the preface of the Manual, paragraph 631 has statutory force whereas paragraph 5 16B being in the nature of executive instruction has no statutory force.
The respondents filed Criminal Writ Petitions before the High Court praying for their premature release on the basis that the note under paragraph 631 has statutory force, the executive instructions issued in 1971 and 1976 have to be ignored and that the Jail Superintendent was bound to submit their cases to the Government for premature release.
148 The High Court allowed the claim of the respondents and held that the executive instructions issued in 1971 and 1976 being in conflict with the statutory note must give way to the latter.
These appeals, by special leave, preferred by the State Government challenge the High Court 's decision on the ground that the source of paragraphs 516 and the note at the foot of paragraph 631 being the same, viz., resolution dated 6th September, 1905, it cannot be concluded that the note being an integral part of the statutory rule incorporated in paragraph 631 must receive the same character and in case of conflict between the two, the note which is statutory in character must prevail.
Allowing the appeals, this Court, HELD: 1. Remissions by way of reward or otherwise cannot cut down the sentence awarded by the Court except under Section 432 of the Criminal Procedure Code or in exercise of constitutional power under Article 72/161 of the Constitu tion.
Remission cannot detract from the quantum and quality of the judicial sentence except to the extent permitted by Section 432 of the Code, subject of course to Section 433A, or where the clemency power under the Constitution is in voked.
The power under Articles 72 and 161 of the Constitu tion is absolute and cannot be lettered by any statutory provision such as Sections 432, 433 and 433A of the Code.
This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules.
[153H; 154A C] 2.
Remission schemes are introduced to ensure prison discipline and good behaviour and not to upset sentences.
If the sentence is of imprisonment for life, ordinarily the convict has to pass the remainder of his life in prison but remissions and commutations are granted in exercise of power under Sections 432 and 433 Cr.
P.C., carving out an exception in the category of those convicts who have already enjoyed the generosity of executive power on the commutation of death sentence to one of life imprisonment.
Even in such cases Section 433A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years.
In the case of other 'lifers ' the insistence under the 1971 amendment is that he should have a period of atleast 8 1/2 years of incarceration before release.
The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433A of the Code.
Since Section 433A is prospective, so also 149 would be the 1971 and 1976 amendments.
[154E H] Gopal Vinayak Godse vs State of Maharashtra, ; and Maru Ram vs Union of India, ; , relied on.
According to the preface only those paragraphs which are blacklined have statutory character.
The note in ques tion is not so blacklined.
The source of paragraph 516B and the note is the very same Resolution No. 159 167 of the Government of India dated 6th September, 1905.
It is diffi cult to believe that the same resolution was intended to be a mere executive instruction in one part of the Manual and was intended to be conferred a statutory character in anoth er.
The marginal note to the Note in question in terms refers to paragraph 516 B which means it was merely a repro duction of the latter paragraph.
In the circumstances, if the note was intended to be conferred a statutory character, it would have been blacklined in keeping with the scheme of the Manual.
Paragraph 631 classifies prisoners and fixes the duration of their sentences e.g., 20 years for life convicts and class 3 prisoners and 25 years for class 1 and 2 prison ers.
The note at the foot of the paragraph is by way of a reminder that notwithstanding the duration fixed under the said rule, paragraph 5 16B requires that cases of such prisoners should be submitted on the expiry of the duration fixed under paragraph 516B.
It is, therefore, clear that the note is neither an integral part of paragraph 631; nor does it have statutory flavour as held by the High Court.
[155B F]
|
Writ Petition No. 1555 of 1979 etc.
(Under Article 32 of the Constitution of India).
144 D.N. Dwivedi and Sarwa Mitter for the Petitioners.
Dr. L.M, Singhvi, B.D. Sharma, Shri Narain, Sandeep Narain, Shrid Rizvi and D.K. Singh for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Validity of Rajasthan Agricultural Pro duce Markets Act, 1961 (for brevity the Act) levying market fee on sale and purchase of agricultural produce in market yard or sub marketyard was challenged by dealers for lack of legislative competence, violation of Articles 14, 19, 30 1 and 304 of Constitution, absence of any quid pro quo in the fee paid and service rendered, illegal and arbi trary inclusion of manufactured articles such as Khandsari, Shakkar, Gur and Sugar as agricultural produce in the sched ule etc.
Acts of other States, for instance, Punjab and Haryana and U.P. were also assailed for similar infirmities.
Whether these petitions, which appear to be identical, are reproduc tion of any of those petitions, which were pending in this Court from before is not relevant but various group of petitions of Punjab and Haryana dealers challenging consti tutionality and legality of Act and its provisions including Gut, Khandsari and Shakkar as agricultural produce in the schedule of Punjab Act have been dismissed by different benches presumably because of decisions in Kewal Krishan Puri vs State of Punjab, ; ; Ramesh Chandra vs State of U.P., ; Rathi Khandsari Udyog vs State of U.P., and Sreenivisa General Traders vs State of Andhra Pradesh, AIR 1983 SC 1264.
Despite these decisions spelling out basic principles for determining validity of marketing legislations dealing with agricultural produce the petitioners were not willing to take it lying down probably because none of these deci sions dealt with sugar.
It was urged that inclusion of sugar in the Schedule of the Act was arbitrary., primarily because it being a declared commodity of public importance under Entry 52 of List I of Schedule VII the State legislature was precluded from legislating on it.
Its inclusion in the Schedule was also assailed as it being a Mill or Factory produce it could not be deemed to be agricultural produce which is basically confined to produce of or from soil.
Sugar is one of the items which was included in the Schedule to the Act, statutorily, right from its inception.
Such inclusion is found in 145 Maharashtra, Gujarat, West Bengal, Bihar etc.
Whether it was subsequently deleted or re included or re grouped or it was added later was immaterial as Section 40 of the Act empow ered State Government to amend or include any item in the Schedule of agricultural produce.
Existence of such delegat ed power is usual feature of the statutes.
No illegality or infirmity could be pointed out in it.
Any challenge, there fore, rounded on excessive delegation of legislative power was misconceived.
Inclusion of sugar in the Schedule was urged to be arbitrary as it was not produced out of soil the basic ingredient of agricultural produce.
Fallacy of the submis sion is apparent as it was in complete disregard of defini tion of the word "agricultural produce" in the Act which includes all produce whether agricultural, horticultural, animal husbandry or otherwise as specified in the Schedule.
The legislative power to add or include and define a word even artificially, apart, the definition which is not ex haustive but inclusive neither excludes any item produced in mill or factories nor it confines its width to produce from soil.
If that be the construction then all items of animal husbandry shall stand excluded.
It further overlooks expanse of the expression "or otherwise as specified in the Sched ule.
" Nor switch over from indigenous method of producing anything to scientific or mechanical method changes its character.
Khandsari sugar, which is produced by open pan process and is not different from sugar produced by vacuum pan process except in composition, filterability and conduc tivity as held in Rathi Khandsari Udyog, (supra) was held to be agricultural produce in some decisions.
No distinction was made on method of production, namely, by modern plant and machinery.
To say, therefore, that sugar being produced in mill or factories could not be deemed to be agricultural produce is both against the statutory language and judicial interpretation of similar provisions of the Act in statutes of other States.
Rice or dal produced in mills have been held to be agricultural produce in Ramesh Chandra vs
U.P. State, and State of U.P. vs Ganga Das Mill, Even in Halsbury Law of England, ' Vol.
I the word agricultural produce for purpose of agricultural marketing schemes is understood as, 'including any product of agriculture or horticulture and any article of food or drink wholly or partly manufactured or derived from any such product and fleeces (including all kinds of wool) and the skins of animals '.
In the same volume products covered by the provisions of EEC Treaty as to agriculture (classified according to the Brussels Nomenclature of 1965) are men tioned in paragraph 1845.
Sugar is one of them.
146 Another legalistic challenge regarding inhibition of State to legislate on sugar or of repeated argument of occupied field was more attractive than of any substance.
Reliance on Article 246 of the Constitution was academic only.
As far back as 1956 Constitution Bench of this Court in Choudhary Tika Ram and others vs State of U.P., ; examined the matter in detail and held sugar legis lations to be within the scope of Entry 33 of concurrent list.
It was observed that all 'Acts and the notifications issued thereunder by the Centre in regard to sugar and sugarcane were enacted in exercise of concurrent jurisdic tion '.
Effect of it was described thus, 'The Provincial Legislature as well as the Central Legislature would be competent to enact such pieces of legislation and no ques tion of legislative competence would arise '.
Any further discussion on clash between Entry 52 of List I of VII Sched ule with Entry 28 of List II in the circumstances is unnec essary.
As regards the submission of occupied field suffice it to say that there is no repugnancy m the Central and State legislation.
At least none was made out.
Even if there would have been any the Act having received assent of the President it is fully protected by Article 254(2).
For these reasons these petitions fail and are dismissed with costs.
N.P.V. Petitions dismissed.
| IN-Abs | In the Writ Petition flied in this Court, the validity of Rajasthan Agricultural Produce Markets Act, 1961, levying market fee on sale and purchase of agricultural produce was challenged for lack of legislative competence, and arbitrary inclusion of Khandsari, Shakkar, Gur and Sugar as agricul tural produce in the Schedule.
It was contended that inclu sion of sugar was arbitrary inasmuch as it being a declared commodity of public importance under Entry 52 of List I of Schedule VII, the State Legislature was precluded from legislating on it and that being a mill or factory produce, it could not be deemed to be agricultural produce, which was basically confined to produce of or from soil.
Dismissing the Petitions, this Court, HELD: 1.1 Sugar is one of the items which was included in the Schedule to the Rajasthan Agricultural Produce Mar kets Act, 1961, statutorily, right from the inception.
Such inclusion is found in many States.
Whether it was subse quently deleted or re included or regrouped or was added later was immaterial, as Section 40 of the Act empowered State Government to amend or include any item in the Sched ule of agricultural produce.
Existence of such delegated power is 143 usual feature of the statutes.
No illegality or infirmity could be pointed out in it.
Any challenge, therefore, round ed on excessive delegation of legislative power was miscon ceived.
[144H, 145A B] 1.2 The definition of the word "agricultural produce" in the Act includes all produce whether agricultural, horticul tural, animal husbandry or otherwise as specified in the Schedule.
The legislative power to add or include and define a word even artificially, apart, the definition which is not exhaustive but inclusive, neither excludes any item produced in mill or factories nor it confines its width to produce from soil.
Nor switch over from indigenous method of produc ing anything to scientific or mechanical method changes its character.
To say, therefore, that sugar being produced in mill or factories could not be deemed to be agricultural produce is both against the statutory language and judicial interpretation of similar provisions of the Act in statutes of other States.
[145C D, F] Kewal Krishan Puri vs State of Punjab, ; ; Ramesh Chandra vs State of U.P., ; Rathi Khandsari Udyog vs State of U.P., ; Sreenivisa General Traders vs State of Andhra Pradesh, AIR 1983 SC 1264; Ramesh Chandra vs U.P. State and State of U.P. vs Ganga Das Mill, , re ferred to.
Halsbury 's Law of England, Vol.
I and Paragraph 1845, re ferred to. 2.
In view of the settled position of law that sugar legislations are within the scope of Entry 33 of Concurrent List, no further discussion on clash between Entry 52 of List I of Vllth Schedule and Entry 28 of List II is neces sary.
There is no repugnancy in the Central and State legis lation.
Even if there would have been any, the Act having received assent of the President is fully protected by Article 254(2) of the Constitution.
[146B D] Choudhary Tika Ram and Others vs State of U.P., ; , followed.
|
ivil Appeal No. 931 of 1986.
From the Judgment and Order dated 3.10.1985 of the Madhya Pradesh High Court in Civil Misc.
W.P. No. 15 10 of 1981.
P.N. Lekhi, M.K. Garg, Aman Lekhi and Lokesh Kumar for the appellants.
R.B. Datar, Sakesh Kumar, Uma Nath Singh, Satish K. Agnihotri and Ashok Singh for the respondents.
The Judgment of the Court was delivered by 133 SAWANT, J.
The two appellants in this case had joined the service in the Public Works Department of the respond ent Madhya Pradesh State, as Overseers.
They were thereafter appointed as Junior Engineers by direct recruitment the first appellant on August 29, 1969 and the second appellant on September 12, 1969.
Although the High Court in its im pugned judgment has stated that they were promoted as Junior Engineers from the posts of Overseers, it appears that that statement is not correct since their orders of appointment to the post of Junior Engineer which are Annexures P 1 and P 2 to the writ petition filed in the High Court show that their appointments as Junior Engineers were not by way of promotion.
This, however, makes no difference to the issues involved in the present appeal.
We have stated it to keep the record straight.
The grievance of the appellants is with regard to their seniority in the next promotional post, viz., that of Assistant Engineer.
The Recruitment Rules which govern the said promo tional post are known as Madhya Pradesh P.W.D. (Gazetted) Recruitment Rules, 1969 (hereinafter referred to as the 'Rules ').
According to these Rules, Junior Engineers, Over seers, Head Draftsmen and Draftsmen are eligible to be considered for promotion to the post of Assistant Engineer on their securing the requisite experience.
Each of these categories further has a fixed quota of its own.
The Depart mental Promotion Committee, D.P.C. to be short, whose con stitution is also prescribed in these Rules, is required to consider the names of all the eligible candidates on merits, and judge their suitability in all respects on merit cum seniority basis.
The D.P.C. is also required to arrange the names of all the selected candidates ordinarily in the order of their seniority unless a junior is exceptionally merito rious in which case, of course, he is given a higher number in the selection list.
This list is then sent through the State Government to the Public Service Commission for its consideration and approval.
The list as approved by the Commission then becomes the select list, and promotions are made from this list in the same order as is arranged in the list.
However, in case of an administrative exigency, the State Government is given power to appoint anyone not in cluded in the said list if the vacancy is not likely to last for more than three months.
Under the Rules, to be eligible to be considered for promotion to the post of Assistant Engineer, a Junior Engineer has to have an experience of two years as Junior Engineer.
It appears that the State Government wanted a certain 134 number of Assistant Engineers, but enough number of Junior Engineers with requisite qualifying service were not avail able at the relevant time.
Admittedly the appellants were two of such unqualified Junior Engineers since they had not completed their two years ' qualified service as Junior Engineers at the relevant time.
Hence, taking resort to the Rule of Administrative Exigency contained in the proviso to Rule 19(1) of the said Rules, the Government promoted some Junior Engineers including both the appellants as Assistant Engineers on July 22, 1971 on purely ad hoc basis.
In the order appointing then, it was stated as follows: "Since adequate number of Junior Engineers with requisite qualify ing service are not available for appointment as Assistant Engineers, and but for these promotions large number of Assistant Engineers ' posts would remain vacant adversely affecting the construction work . . . . .
These appointments will not be deemed to determine seniority as Assistant Engineer for any purpose whatsoever.
It is not disputed that on July 22, 1971 when the appellants were so appointed as Assistant Engineers on ad hoc basis, appellant No. 1 was short of 'two years ' qualify ing service period by one month and appellant No. 2, by two months.
They became qualified on August 22, 1971 and on September 11, 1971 respectively.
It appears that while the appellants continued to act as Assistant Engineers on ad hoc basis, on August 7, 1972.
respondents 40 to 63 were appointed as Assistant Engineers by direct recruitment.
Thereafter, on November 22, 1972 respondents 2 to 39 and the appellants were selected as Assistant Engineers by the D.P.C.
On the same date, the State Government issued an order of appointment of the appellants and respondents 2 to 39 in which appellant No. 1 was shown at Serial No. 14 and appellant No. 2 at Serial No. 28.
The State Government thereafter prepared a seniority list of Assistant Engineers which reflected the seniority of appellants as having been appointed on and from November 22, 1972 and as per the ranking given in the said order of November 22, 1972.
The appellants challenged the seniority list before the High Court by a writ petition.
Although it appears the appellants had also joined to the petition, those Junior Engineers who were promoted as Assistant Engi neers along with the appellants by the same order and whose seniority in the list had reflected their placement in the order of appointment, the challenge to the seniority of those Junior Engineers was given up at the time of the arguments before the High Court, and it was confined to the seniority of respondents 2 to 39 who were Overseers and were selected by the D.P.C. 135 from their own quota as Assistant Engineers along with the appellants, and to the seniority of respondents 40 to 63 who were appointed by direct recruitment on August 7, 1972.
The first challenge common to the seniority of all the respondents 2 to 63 was based on the contention that the appellants ' ad hoc service as Assistant Engineers from July 22, 1971, when they were promoted on ad hoc basis, to Novem ber, 22, 1972, on which date they were selected as regular appointees, was not taken into account.
The second challenge was confined to the seniority given to respondents 2 to 39 by giving them a weightage of their experience as Overseers.
The High Court negatived both the challenges and dismissed the writ petition.
Hence the present appeal.
The same contentions which were advanced before the High Court was advanced before us.
We will, therefore, first examine the grievance that the ad hoc service of the appel lants was not counted for the purpose of the appellants ' seniority.
A heavy reliance is placed on behalf of the appellants on the decision of this Court reported in Balesh war Dass & Ors.
vs State of U.P. & Ors. etc.
, [1981] 1 S.C.R. 449 in support of the contention that ad hoc officia tion is entitled to be counted for the purpose of seniority.
The ratio of the said decision however is not applicable to the present case.
In that case there was no dispute that the temporary appointees to the posts, who were claiming benefit of their temporary appointment or officiation were qualified to be appointed to the posts when they were initially ap pointed.
, All the procedural formalities of their appoint ments were also followed, namely, they had completed their probationary period, the Public Service Commission had given its approval and they had also been medically examined and found it.
No rule was breached in making their appointment.
The vacancies to which they were appointed were also sub stantive vacancies.
Their appointments, however, had contin ued for a number of years although there was no obstacle whatsoever in making them regular or permanent.
All that had remained to be done was the issuance of a format order of regularisation of the appointment which for unexplained reasons, the Govt.
had failed to do for a number of years.
The Court therefore observed that "a post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for 10 or more years under the head "temporary" for budgetary or other technical reasons.
Those who are appointed and hold tempo rary posts of the latter category are also members of the service provided they have been appointed substantively to that temporary post".
A 136 little later, the Court made further observations in this connection, as follows: "Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary.
If it is not, the further point to notice is as to whether the appointments are regular and not in viola tion of any rule, whether the Public Service Commission 's approval has been obtained and whether probation, medical fitness etc., are complete.
Once these formalities are complete, the incumbents can be taken as holding posts in substantive capacities and the entire officiating service can be considered for seniority.
For other purposes they may remain temporary . . .
The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist.
We see nothing in the scheme of the Rules contrary to that principle.
Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes, have been regularised and are fit to be absorbed into permanent posts as and when they are vacant. ' ' (Emphasis supplied) It will thus be seen that in that case the appointments to the substantive vacancies were made according to rules after complying with the procedure for regular appointment.
There was no requirement of the Recruitment Rules which was left to be complied with.
In our case unless the D.P.C. makes the selection, none can be appointed as Assistant Engineer regularly.
Similar were the facts in the case of G.P. Doral & Ors.
vs Chief Secretary, Government of U. P. & Ors., ; in that case the petitioners were temporarily appointed as Khandsari Inspectors having been selected in the departmental competitive test and interview.
Their appointments were however "subject to final selection by Public Service Commission at a later date".
Some of the respondents 137 were also appointed to the same posts subsequently in the same manner.
The names of these recruits were later forward ed to the Public Service Commission which accorded its approval to their appointments.
The Department drew up a provisional seniority list on the basis of the recommenda tions of the said Commission by taking the date of approval/selection by the Commission in respect of each candidate as the basis for determining the length of contin uous officiation.
The Department supported its action on the ground that it had prepared the list by reckoning seniority from the date of their "substantive appointments" in accord ance with an earlier Government Order of 1940 which pre scribed certain guidelines or model rules for framing rules governing conditions of service.
The model set out in the order suggested two independent principles for determining seniority, namely, (i) the date of substantive appointment and (ii) the date of the order of first appointment, if such appointment is followed by confirmation.
In the seniority list, the petitioners were placed below the respondents though they were initially appointed prior to the respond ents.
This Court quashed the seniority list holding that the question as to from what date the service is to be reckoned will depend upon the facts and circumstances of each case.
It was observed there that: "Where officiating appointment is followed by confirmation, unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list.
If the first appointment is made by not following the prescribed procedure but later on the appointee is approved making his appointment regular, then in the absence of the contrary rule, the approval which means confirmation by the authority which had the authority, power and jurisdiction to make appointment or recommend for appointment, will relate back to the date on which first appointment is made . . .
If a stopgap ap pointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, there is no justification for ignoring his past service.
At any rate, there is no justification for two persons selected in the same manner being differently treated." (emphasis ours) The Court also found there that the earlier order of 1940 had not prescribed any binding rule of seniority and assum ing that it did, the 138 seniority list did not conform to the model.
The model set out in the Government Order prescribed two different start ing points for reckoning seniority and it was difficult to assume that the department adopted one and rejected the other without making a specific rule in that behalf.
It will thus be clear that the Court was dealing with an altogether different situation in both the aforesaid cases.
There was no dispute in those cases that except for the terminology and nomenclature there was no distinction be tween a temporary and permanent appointment and all that remained to be done in those cases was the formalisation of the appointments.
That is not the situation in the present case.
The appellants were ineligible to be appointed as Assistant Engineers initially.
Their appointments were made specifically under the power given to the Government to make ad hoc appointments for administrative exigency.
The ap pointment orders made it clear that the appointments were in the said special circumstances and that they will not be deemed to determine seniority for any purpose whatsoever.
There is further no dispute that no appointments could be made as Assistant Engineers except by way of either direct recruitment through the Public Service Commission or promo tion through the selection made by the D.P.C. as per the quota assigned to different categories.
The first D.P.C. which met for selection, after the appellants became quali fied for being promoted, was held on October 12, 1972.
It is in this meeting that the appellants were selected along with the other qualified promotees, namely, respondents 2 to 39.
The D.P.C. further had the power also to arrange the senior ity of the promotees according to merits.
For all purposes, therefore, the appointment of the appellants on July 22, 1971 was ad hoc and not according to rules.
Their selection/appointment on November 22, 1972 by the D.P.C was further not a mere formality or a process undertaken only for formalisation of their earlier appointment.
In the circumstances, their appointment on November 22, 1972 could not relate back to July 22, 1971 and hence they were not entitled to claim their officiation between July 22, 1971 and November 22, 1972 for being counted for the purposes of their seniority for placing them either above respondents 40 to 63, who were directly recruited on August 7, 1972 or above respondents 2 to 39, who were promoted by the D.P.C. along with them, on November 22, 1972, and who happened to be senior to them even as Junior Engineers.
The other leg of the aforesaid contention was that the appellants were appointed under Rule 7(4) of the said Rules and not under 139 the proviso to Rule 19 of the Rules inasmuch as under the latter provision, their appointments could not have been made.
The argument was that the latter provision permitted appointments for an administrative exigency only in vacan cies which did not last for more than three months.
Since the appellants continued in the post for more than a year before they were selected on November 22, 1972, it should be held that their appointment was under Rule 7(4) of the Rules.
As has been pointed out by the High Court, the re course to Rule 7(4) is unwarranted because that provision deals with the method of recruitment and permits the State Government to adopt any method other than those provided there.
One of the methods permitted by that provision admit tedly is promotion, and since the appellants were admittedly promoted, though they were not qualified on that date, their case would not be covered by the third method of recruitment which is other than the one prescribed there.
Therefore, the argument that they should be considered to have been re cruited to the post of Assistant Engineer by a method other than that expressly provided by the said Rule 7(4) is only to be stated to be rejected.
Once it is held that they were promoted on ad hoc basis, what comes in the play is the proviso to Rule 19(1) which permitted the Government to make such ad hoc appointments for purely administrative exigen cies.
It was then contended that since the proviso to Rule 19(1) permitted appointments in vacancies which were to last for more than three months, it should be held that after the appellants became eligible during the first three months of their appointment, their further continuation was on regular basis.
This argument has also no substance in it, for as pointed out earlier, for being selected for appointment as Assistant Engineers, the appellants had to face the D.P.C. and the Government had no power to make regular appointments to the said post unless the D.P.C. had selected the candi dates for the posts.
Secondly, the proviso to Rule 19(1) has to be read liberally.
The said provision has to be inter preted to mean that the appointments under the said provi sion can be made for three months at a time.
Thus there was nothing to prevent the State Government from renewing the appointment of the appellants every three months.
The second contention is directed against the senior ity of respondents 2 to 39 and proceeds on the ground that the weightage given to them is illegal.
This contention must also fail for the following reasons.
Admittedly the Rules of Recruitment prescribe appointments to the post of Assistant Engineer from two sources, namely, (i) by direct recruitment and (ii) by promotion in the proportion of 50 50. 140 The promotional posts are further required to be filled in from three different cadres in the following proportion: '(i) 25% from Junior Engineers (ii) 20% from Overseers (iii) 5% from Head Draftsmen/Draftsmen.
Under the Madhya Pradesh P.W.D. (non gazetted) Recruitment Rules of 1972 (hereinafter referred to as 1972 Rules), the Overseers who acquire an Engineering degree or qualify for A.M.I.E. become eligible for promotion to the post of Junior Engineers as soon as the vacancy arises.
The inter se sen iority between the Overseers and the Junior Engineers in the cadre of Junior Engineers is to be fixed in accordance with Rule 14(3) of the said Rules by giving weightage of two months for every year of their service to the Overseers.
When the D.P.C. met on October 12, 1972 and considered the cases both of the appellants and the respondents, the Com mittee had submitted the names of the selected candidates cadre wise, i.e. separately of Junior Engineers, Overseers, Head Draftsmen/Draftsmen.
The General Administration Depart ment thereafter considered the matter.
Under the Rules, the Overseers were required to obtain an Engineering degree or qualify for A.M.I.E. and were also required to serve for 12 years as Overseers to become eligible for being considered for appointment as Assistant Engineers.
As against this, the Junior Engineers who were degree holders were required to serve only for two years to become eligible for being con sidered to the said post.
Taking these aspects into consid eration their inter se seniority, namely, the interse sen iority of the appellants and the Overseers promotee respon deets was fixed by the Government according to the following formula which was in vogue for a number of years: (a) In the cadre of Junior Engineers, Overseers so promoted were given weightage as per Rules of 1972, and promotional dates for seniority in the cadre were fixed accordingly.
(b) In the cadre of Assistant Engineers, the date of reckon ing of seniority was the one on which Junior Engineer or Overseer or Head Draftsman/Draftsman completed the respec tive span of service for eligibility.
Hence, when seniority was fixed as per the impugned seniori ty list of 141 the cadre of Assistant Engineers, when admittedly the Rules of 1972 were in vogue, it was fixed according to the afore said formula.
There is no dispute that according to the said formula, which can hardly be faulted, respondents 2 to 39 who were senior as Junior Engineers, were entitled to sen iority over the appellants.
It may further be pointed out that the Rules of 1972 were not challenged either before the High Court or before us.
All that was challenged before the High Court was that these Rules were restricted in their application only to the promotions made to the post of Junior Engineers and were not applicable to the promotions made to the post of Assistant Engineers.
On the face of it, such a challenge is meaningless because Rule 14 of the said Rules is clearly meant for the promotions to the post of Assistant Engineers.
Otherwise the seniority given to the Overseers etc.
in the seniority list of Junior Engineers on the basis of the their service as Overseers, is meaningless.
For all these reasons, we find no substance in this conten tion either.
We, therefore, confirm the decision of the High Court and dismiss the appeal.
There will, however, be no order as to costs.
R. N.J. Appeal dismissed.
| IN-Abs | The two appellants had joined as overseers in the P.W.D. of the respondent Madhya Pradesh State.
Thereafter they were appointed as Junior Engineers.
The grievance of the appel lants is with regard to their seniority in the next promo tional post viz, that of Assistant Engineer.
Recruitment Rules which govern the promotional post lay down that the Departmental promotion Committee is required to consider the names of all eligible candidates on merits and judge their suitability in all respects on merit cum seniority basis.
The D.P.C. is also required to arrange the names of all the selected candidates in the order of their merit.
In the case of exceptionally meritorious junior he is given a higher number in the selection list.
This list is sent to Public Service Commission for its approval.
After approval the list becomes the select list and the promotions are made from this list serial wise.
Under the Rules to be eligible to be considered for promotion to the post of Assistant Engineer a Junior Engineer has to have an experi ence of two years as Junior Engineer.
As the State Govt.
wanted a certain number of Assistant Engineers but enough number with requisite qualifying serv ice were not available so taking resort to the Rule of Administrative Exigency contained in the proviso to Rule 19(1) of the Rules the Govt.
promoted some Junior Engineers including both the appellants is Assistant Engineers on July 22, 1971 on purely ad hoc basis.
On August 7, 1972 respond ents 40 to 63 were appointed as Assistant Engineers by direct recruitment and on November 22, 1972 respondents 2 to 39 and the appellants were selected as Assistant Engineers by the D.P.C.
On the same date the State Govt.
issued an order of appointment of the appellants and respondents 2 to 39 in which appellant No. 1 was shown at 132 serial No. 14 and appellant No. 2 at serial No. 28.
The State Govt.
thereafter prepared a seniority list of Assist ant Engineers as per the order of November 22, 1972.
The appellants challenged the seniority list before the High Court by a Writ Petition.
The High Court dismissed the Writ Petition.
Hence the present appeal.
Dismissing the appeal, this Court, HELD: Under the Rules to be eligible to be considered for promotion to the post of Assistant Engineer, a Junior Engineer has to have an experience of two years as Junior Engineer.
[133G] In the instant case, unless the D.P.C. makes the selec tion, none can be appointed as Assistant Engineer regularly.
The appellants were ineligible to be appointed as Assistant Engineers initially.
Their appointments were made specifi cally under the power given to the Government to make ad hoc appointments for administrative exigency.
The appointment orders made it clear that the appointments were in the said Special Circumstances and that they will not be deemed to determine seniority for any purpose whatsoever.
[138C D] Once it is held that the appellants were appointed on ad hoc basis, what comes into play is the proviso to Rule 19(1) which permitted the Government to make such ad hoc appoint ments for purely administrative exigencies.
[139D] Baleshwar Dass & Ors.
vs State of U.P. & Ors etc.
, [1981] 1 S.C.R. 449 and G.P. Doval & Ors.
vs Chief Secre tary, Government of U.P. & Ors., ; , re ferred to.
|
Criminal Appeal No. 219 of 1990.
214 WITH Writ Petition (Crl.) No. 92 of 1990.
From the Judgment and Order dated 12.12.1989 of the Allahabad High Court in Habeas Corpus W.P. No. 13644 of 1989.
A. Jaitley, Additional Solicitor General, R.K. Jain, Yogeshwar Prasad, Gaurav Jain, Abha Jain, D. Bhandari, Ms. A. Subhashini and R.B. Misra for the Appearing Parties.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
Leave granted in the Special Leave Petition.
This appeal is against the judgment and order dated 12.12.89 in Habeas Corpus Writ Petition No. 13644/89 passed by the High Court at Allahabad dismissing the writ petition filed by the appellant, Vashisht Narain Karwaria, the detenu herein.
The District Magistrate, Allahabad, in exercise of powers conferred on him under Section 3(3) of the (hereinafter referred to as 'Act ') passed the impugned order of detention on 31.3.88 against the detenu on reaching his requisite subjective satisfaction on consideration of the materials placed before him that it had become necessary to pass the detention order with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order.
The salient and material facts which necessitated the detaining authority to pass the impugned order, as set out in the grounds of detention are as follows: On 30.3.1988 at about 3.30 P.M. the auction of liquor shops for the sale of Indian made foreign liquor was held in the campus of Collectorate at Allahabad.
A large number of bidders were present.
Among them, the detenu along with his three other associates also participated in the auction.
At about 3.30 P.M. the auction of the liquor shop within the area of Mooratganj took place.
For this shop the first bid was from one Ajai Kumar for Rs. one lakh.
The next bid for the same shop was of Chedi Lal for Rs. one lakh and ten thousand.
The moment the said two persons made their bid, the detenu along with his associates stood UP in ,the ,presence of all prospective bidders and told Ajai Kumar, Chedi Lal and others that the above said shop fell within his area and, therefore, if anybody dared to bid the shop in the auction he Would shoot him and also the entire members of his 215 family.
So saying the detenu along with his associates advanced towards Ajai Kumar and Chedi Lal threatening them with dire consequences.
This created terror and panic among all the bidders.
As the situation was becoming worse, Shri Rana Pratap Singh, Station House Officer along with other police officials advanced towards the detenu and his associ ates to apprehend them.
On seeing the police party advanc ing, the detenu fired at the police party with his country made pistol.
Fortunately, no body was hurt.
The detenu, however, escaped on being chased by the police party.
The detenu fired another two shots and hurled bombs on the police party while fleeing away.
His repeated firing and explosion of bombs created further panic and the people assembled for bidding the auction started running away and the nearby shopkeepers pulled down their shutters of their shops.
The vehicles parked there fled away.
Thus the public order was completely disrupted.
In connection with this incident, a case was registered in crime No. 221/88 in the Colenolganj Police Station under Section 307 and 506 of Indian Penal Code.
The case is still under investigation.
On the basis of the above material the detaining author ity on being satisfied that there was apprehension of com mission of act of violence at the hands of the detenu, which would be prejudicial to the maintenance of public order, passed this impugned order and directed the detenu to be kept under detention.
Admittedly, along with his ground of detention 4 docu ments were enclosed and served on the detenu.
Those docu ments are: (1) Report of S.S.P. Allahabad dated 31.3.
(2) Report of the S.H.O. Colenolganj Police Station.
(3) Copy Chik No.199, Crime No. 221 of 1988 under Section 307/506 I.P.C. in Colenolganj Police Station, Allahabad.
(4) Copy of G.D. No. 37 relating to the aforesaid offence.
The detenu challenged the validity of this order before the High Court, but became unsuccessful.
Feeling aggrieved by the impugned judgment, this appeal is now preferred.
Mr. R.K. Jain, the learned Sr. counsel appearing on behalf of the appellant made a number of submissions at the hearing, one of which being that the sponsoring authority had placed 216 certain irrelevant and extraneous matters before the detain ing authority which should have influenced the mind of the detaining authority and stealthily crept into the decision of the said authority directing detention of the detenu and as such the impugned order is liable to be quashed.
This argument was resisted by Shri Dalveer Bhandari, the learned counsel appearing on behalf of the respondents that the detaining authority had not considered any other material save the material referred to in the grounds of detention '.
Therefore, the short question for our consideration is whether the sponsoring authority has placed before the detaining authority any extraneous and irrelevant materials which might have influenced the mind of the detaining au thority.
It cannot be disputed indeed there is none that the four documents referred to above, copies of which were furnished to the detenu have been placed before the detain ing authority.
It follows that the detaining authority passed this order only on consideration of the above said materials.
In the confidential letter dated 31st March 1988 sent by the Senior Superintendent of Police, Allahabad to the detaining authority it is stated thus: "It is stated that the accused is a hardened criminal and has a gang.
Such persons are committing heinous crimes often which adversely affects the public order.
There are many cases/offences against accused Vashistha narayan registered in various police stations.
It has become his habit to commit offences . .
Hence I recommend that an order for atleast 12 months detention be passed against Shri Vashisht Narayan Karwaria alias Bhukkhal son of late Shri Jagat Narayankarwaria, the aforesaid accused under Section 3(2) of the above mentioned Act.
" The preamble of the letter submitted by the Station House Officer of Colenolganj, Allahabad dated 31.3.
1988 to the Senior Superintendent of Police, Allahabad reads as follows: "It is submitted that Shri Vashisht Narayan Karwaria alias Bhukkal, the aforesaid accused is a hardened criminal and has a gang.
In his gang his son Kapil and two other big offenders Ram Chandra Tripathi and Santosh Kumar Tripathi son of Gaya Prasad, resident of Ganspur, P.S. Poormufti, District Allahabad, are included.
These 217 people often used to commit heinous crimes, by which terror and fear prevails in the people.
Many crimes are registered against Vashisht Narayan Karwaria in many Police Stations.
" The above averments made in the above two letters, the copies of which are furnished to the detenu along with grounds of detention unequivocally and clearly spell out that the detenu is a hardened criminal, having a gang under his control often committing heinous crimes, that many cases against the detenu are registered in various police stations and that he is in the habit of committing offences.
No doubt, these averments are not made mention of in the grounds of detention.
But can it be said that these materi als placed before the authority might not have influenced the mind of the detaining authority in taking the decision of detaining the detenu? In our view, the above averments which are extraneous touching the character of the detenu though not referred to in the Grounds of detention, might have influenced the mind of the detaining authority to some extent one way or other .in reaching the subjective satis faction to take the decision of directing the detention of the detenu.
As rightly pointed out by Mr. Jain, had these extraneous materials not been placed before the detaining authority, he might or might not have passed this order.
Therefore, we have to hold that the detention order is suffering from the vice of consideration of extraneous materials vitiating the validity of the order.
There are several pronouncements of this Court, on this point, of which we will make mention of to the following decisions: Ram Krishna Paul vs The Government of West Bengal & Ors., ; Smt.
Pushpa vs Union of India & Others, [1980] Supp.
SCC 39 1; Merugu Satyanarayana vs State of Andhra Pradesh & Ors., 1 and Mehboob Khan Nawab Khan Pathan vs Police Commissioner, Ahmedabad and Another, Mr. Dalveer Bhandari relying on Section 5A of the Act urged that the order of detention should not be deemed to be invalid or inoperative merely on the ground that some extra neous materials were placed before the detaining authority since those alleged extraneous materials have no bearing on the validity of this impugned order which can be sustained on the material set out in the Grounds of detention itself.
Placing reliance on decision of this Court in Prakash Chan dra Mehta vs Commissioner and Secretary, Govt.
of Kerala and Others, [1985] Supp.
SCC 144 wherein it has been observed that the 'grounds ' under Article 22(5) of the Constitution do not mean mere factual 218 inferences but mean factual inferences plus factual material submitted that in the present case the factual material set out in the grounds of detention alone led to the passing of the order with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order.
We are unable to see any force in the above submis sion.
What Section 5A provides is that where there are two or more grounds covering various activities of the detenu, each activity is a separate ground by itself and if one of the grounds is vague, nonexistent, not relevant, not con nected or not proximately connected with such person or invalid for any other reason whatsoever, then that will not vitiate the order of detention.
It is not the case that this impugned order has been made on the two or more grounds covering various activities of the detenu, but on the other hand the order has been passed on the sole ground relatable to a single incident.
The conclusion arrived at by us is only on the basis that the aforesaid extraneous materials, placed before the de taining authority might have influenced the mind of the detaining authority, but not on the ground that one of the grounds of the detention order has become invalid or inoper ative for the reasons mentioned in Section 5(A)(a).
The next submission made by Mr. Jain on behalf of the detenu is on the basis of Ground Nos.
VII & VIII of the Special Leave Petition in which the appellant has expressed his grievance that he had been deprived of making an effec tive and purposeful representation as envisaged under Arti cle 22(5) of the Constitution of India since no particulars or details are given in documents I & H enclosed with the grounds of detention in regard to the alleged 'many cases/offences ' said to have been registered in various police stations against him and in regard to the allegations that he was a hardened criminal and had a gang often commit ting heinous crimes and that it had become the habit of the detenu to commit offences.
In support of this contention reference was made to the decision in Mehboob Khan Nawab Khan Pathan 's case (ibid).
No denial is made in the counter filed on behalf of the first respondent.
This latter submis sion, in our opinion, cannot be rejected as having no force.
In the result, we without going into the merits of the other contentions allow this appeal, quash the detention order and direct the detenu to be set at liberty forthwith.
219 ORDER The Writ Petition is connected with the Criminal Appeal No. 219 of 1990 arising out of SLP (Crl.) No. 2473/89.
The detention order under challenge in both the proceedings is the one passed by the District Magistrate, Allahabad on 31.3.1988 under Section 3(.3) of the .
As we have now set aside the order of detention in the Criminal Appeal, no order is necessary in this Writ Peti tion.
The Writ Petition is disposed of accordingly.
T.N.A. Appeal allowed and Petition disposed of.
| IN-Abs | The petitioner was detained under section 3(3) of the , under an order passed by the detaining authority after consideration of the documents placed before it by the sponsoring authority alleging that the detenu was a hardened criminal and habitual offender against whom many cases were registered.
The documents placed before the detaining authority were also served on the detenu along with the ground of detention.
The appellant filed a writ of Habeas Corpus in the High Court challenging the validity of the detention which was dismissed.
Hence this appeal.
The appellant also filed a writ petition in this Court challenging his detention.
In this appeal it was contended on behalf of the appellant that the detaining authority had acted on irrelevant and extrane ous matters therefore the detention order is liable to be quashed.
On behalf of the respondent it was contended that the order of detention was not invalid merely because some extraneous materials were placed before the detaining au thority since the impugned order could be sustained on the material set out in the grounds of the detention itself.
Allowing the appeal and disposing the Writ Petition, this Court, 213 HELD: 1.
The averments made in the documents, the copies of which are furnished to the detenu along with grounds of detention unequivocally and clearly spell out that the detenu is a hardened criminal, having a gang under his control often committing heinous crimes, that many cases are against the detenu are registered in various police stations and that he is in the habit of committing offences.
These averments which are extraneous touching the character of the detenu though not referred to in the grounds of detention, might have influenced the mind of the detaining authority to some extent one way or other in reaching the subjective satisfaction to take the decision of directing the detention of detenu.
Had these extraneous materials not been placed before the detaining authority, he might or might not have passed this order.
Therefore the detention order is suffer ing from the vice of consideration of extraneous materials vitiating the validity of the order.
detention order is therefore quashed.
[217B E] Ram Krishna Paul vs The Government Of West Bengal & Ors., ; ; Smt.
Pushpa vs Union of India & Ors., [1980] Supp.
SCC 391; Merugu Satyanarayana vs State of A.P. & Ors., ; and Mehboob Khan Nawab Khan Pathan vs Police Commissioner, Ahmedabad & Anr., ; followed.
Section 5A provides that where there are two or more grounds covering various activities of the detenu, each activity is a separate ground by itself and if one of the grounds is vague, non existent, not relevant, not connected or not proximately connected with such person or invalid for any other reason whatsoever, then that will not vitiate the order of detention.
In the instant case the impugned order has not been made on two or more grounds covering various activities of the detenu.
but has been passed on the sole ground relatable to a single incident.
The conclusion ar rived at is only on the basis that the extraneous materials placed before the detaining authority might have influenced the mind of the detaining authority, but not on the ground that one of the grounds of the detention order has become invalid or inoperative for the reasons mentioned in Section 5(A)(a).
Therefore the submission that the factual material set out in the grounds of detention alone led to the passing of the order with a view to preventing the detenu from acting in any manner prejudicial to the public order is not correct.
[218B D] Prakash Chandra Mehta vs Commissioner and Secretary Government of Kerala & Ors., [1985] Supp.
SCC 144; distin guished.
|
vil Appeal No. 16 13 of 1990.
From the Judgment and Order dated 1.4.
1987 of Patna High Court in Civil Writ Jurisdiction Case No. 4097 of 1985.
196 R.K. Garg, Praveen Swarup and Pramod Swarup for the Appellants.
M.K. Ramamurthi, L.R. Singh, B.B. Singh, D.P. Mukherjee and M.P. Jha for the Respondents.
The Judgment of the Court was delivered by RAY, J.
Arguments heard.
Special Leave granted.
This appeal on Special Leave is directed against the Judgment and Order dated April 1, 1987 passed by the High Court, Patna m C.W.J.C. No. 4097/1985 allowing the writ petition in part.
The subject matter of the writ petition is the gradation list dated 9.1.
1986 of the Inspectors of Excise by which the Government of Bihar has finally fixed the inter se seniority of the petitioners (respondents in this Appeal) who were promoted vis a vis the respondents Nos. 3 and 4 (appellants in this appeal) who are promoted to posts of Inspectors of Excise in 5% quota for promotion from the posts of Upper Division Assistants of Excise Department in the said Civil Writ Petition.
The matrix of this case in short is that the appellants Nos. 1 and 2 who were respondents 3 and 4 of the writ peti tion were promoted to the posts of Excise Inspectors from among the Upper Division Assistants of the Excise Department against the vacancies of the year 1974 75 and they joined as Inspectors of Excise on May 7, 1976.
The respondent Nos. 3 and 4 who were Sub Inspectors of Excise were promoted on 24.4.74 in the vacancy of the year 1974 75 by the Commis sioner of Excise, Bihar.
In the gradation list prepared by the Government on January 9, 1986 the appellants were shown as seniors to the respondents even though the respondents were promoted from selected Sub Inspectors of Excise and they joined the posts of Excise Inspectors earlier than the date when the appellants were promoted as Excise Inspectors.
This has been challenged by the respondents on the ground that there is an apparent error committed by the State in showing the respondents juniors to the appellants in the gradation list.
The gradation list was challenged mainly on two grounds namely: (1) the State Government has no jurisdiction to determine the seniority of Excise Inspectors and the only competent authority for determining the same was the Excise Commis sioner who has neither determined the seniority nor prepared the gradation list.
197 (2) The respondents (petitioners of the writ petition) have continuously officiated for years together in the vacancy of direct recruits and merely because the respondents were appointed against the vacancy of direct recruits they could not be pushed down for determining the seniority and shown junior to the contesting appellants.
The writ petition was allowed by the High Court holding that the respondents were not appointed in the 5% quota set apart for being filed up by promotion from the posts of Upper Division Assistants in the Excise Department inasmuch as this quota was notified by the Government on March 31, 1975 even though the Government passed order providing 5% of the total vacancies to be filled by the promotion from among the selected Upper Divi sion Assistants and selected Head Clerks.
It has, therefore, been contended that the petitioners Nos. 3 and 4 (respond ents Nos. 3 and 4 in this appeal) cannot be shown as juniors to the appellants.
Moreover it has been alternatively urged that these respondents having been promoted to the posts of Inspectors of Excise in the quota of direct recruitment for several years, they could not be pushed down and the appel lants who joined on promotion to the posts of Inspectors of Excise subsequently cannot be shown as senior to the re spondents Nos. 3 and 4 in the said gradation list.
The High Court, Patna after hearing the parties held that the re spondents Nos. 3 and 4 who were appointed in the vacancies of the promotees of the year 1974 75 and who joined as Inspectors on 24.4.1974 cannot be made juniors to appellants Nos. 1 and 2 who were promoted and joined two years later on 7.5.
The High Court allowed the writ petition in part by quashing the gradation list (Annexure 15) and directed the Government to draw up a fresh gradation list in the light of observations made therein.
It is against this judgment and order passed in C.W.J.C. No. 4097/85, the instant appeal on special leave has been filed by the appellants.
The only question that falls for consideration in this appeal is whether the appellants who claim to be promoted to the posts of Inspectors of Excise in the 5% quota set apart for promotion to the posts of Inspector of Excise from among the Upper Division Assistants of the Excise Department against the vacancies of the year 1974 75 had been promoted in this quota.
In order to decide this question, it is relevant to refer to certain provisions of the Bihar Excise Act, 1915 as well as Rules 1 & 4 of the Inspectors of Excise Recruitment Rules, 1936.
198 Section 2(7) of the Bihar Excise Act, 1915 (hereinafter referred to as Act) defines Excise Commissioner "as the Officer appointed under Section 7 sub section 2 clause (a) of the said Act".
Section 7 Sub Section (2)(a) provides that the State Government may appoint an officer who shall sub ject to such control as the State Government may direct, have the control of the administration of the Excise Depart ment and the collection of the excise revenue.
Section 7(2)(a) further provides that the State Government may delegate to the Board, the Commissioner of a Division or the Excise Commissioner all or any of the powers conferred upon the State Government by or under this Act except the powers conferred by Section 89 to make Rules.
Section 7(2)(f) provides that the State Government may withdraw from any officer or person all or any of the powers of duties con ferred or imposed upon him by or under this Act.
By Notifi cation No. 417 dated January 15. 1919, in exercise of the powers conferred under the Act, the Lt. Governor in Council was pleased to make clause (ii) of the Notification order to the effect that there shall be an Excise Commissioner who shall subject to the control of the Board will have through out the province of Bihar the control of the administration of the Excise Department and the collection of excise reve nue.
It has also been provided in clause (iv) of the Notifi cation that the power to appoint by promotion Inspector of Excise was delegated to the Excise Commissioner by the Government.
Thus, it is clear and apparent that the Excise Commis sioner has been delegated the powers by the State Government to appoint by promotion from selected Sub Inspectors of Excise, but no here it has been mentioned in any of those provisions that the Excise Commissioner has been vested with the power of determining the seniority of the Inspectors of Excise.
Therefore, the submission that the seniority list or the gradation list prepared by the State Government is unauthorised being beyond the powers of the State Government is unsustainable and the gradation list that has been pre pared on January 9, 1986 by the State Government is legal and valid as upheld by the High Court.
It is necessary to refer to the recruitment rules to determine seniority.
Rule 1 of Excise Recruitment Rules, 1936 reads as follows: "1.
Inspectors of Excise and Salt shall be appointed: (i) by direct recruitment by the Board of Revenue,or, 199 (ii) by promotion of selected Sub Inspectors by the Commissioner of Excise and salt.
Not more than 25 per cent of the vacancies shall ordinarily be filled by direct recruitment; but with the approval of the Board of Revenue on the recommendation of the Commissioner of Excise this proportion may on any occa sion, be increased to 50 per cent".
Later on by Notification No. 1451 dated 2.3.
1945 published in the Bihar Gazette on March 7, 1945, the expression "not more than" in the last paragraph of Rule 1 has been delet ed.
Subsequently by Government Notification S.O. 411, dated 31st March, 1975 published in the Bihar Gazette, Extra ordinary Issue on that day, after clause (2) or rule 1 clause (3) has been added and it reads as follows: "by promotion from among selected confirmed Upper Division Assistants of the Excise Commissioner 's office and selected confirmed Head Clerks of the District Excise Offices".
By the said notification the following has been added at the end of rule 1 "Atleast 5 per cent of the total vacancies shall be filled by promotion from among the selected Upper Division Assistants and selected Head Clerks." Thus on a perusal of the said rule as amended clearly it indicates that 25% of the total vacancies for the post of Inspectors of Excise shall be filled by direct recruitment, 70% shall be filled by promotion from among the selected Sub Inspectors and 5% shall be filled by promotion from among the confirmed Upper Division Assistants of the Excise Commissioner 's Office and confirmed Head Clerks of the District Excise Offices.
The 25% quota of direct recruits can be relaxed and increased to 50 per cent.
It is signifi cant to note in this connection that no provision has been made in the said rules for relaxation of the quota of promo tees.
The necessary question arises if the promotion from Sub Inspectors of Excise to the post of Inspectors of Excise have been made in excess of the quota of the promotees in the vacancy of direct recruits and later on direct recruit ment has been made the promotees can in such circumstances be treated to be juniors to the direct recruits or not.
This question was under consideration before this Court in the case of V.B. Badami vs State of Mysore, A.I.R. 1980 SC 1561.
In this case The Mysore Administrative Service 200 (Recruitment) Rules, 1957 classified class 1 posts into two categories: senior scale posts and the junior scale posts.
Two thirds of the junior class I posts were filled by promo tion from Class II officers and the balance one third by direct recruitment by the Public Service Commission.
By the Mysore Recruitment of Gazetted Probationers Rules, 1959, the quota for direct recruitment to the Mysore Administrative Service was increased from one third to two thirds for a period of five years as a consequence of which the quota for promotees had been reduced to one third, Rule 17(b) of the 1957 Recruitment Rules empowered the Government to fill up posts temporarily by promotion against vacancies for direct recruits but such promotees were liable to be reverted after the appointment of direct recruits.
In January 1972, a Gradation List was published in which the direct recruits (respondents) were shown as senior to the appellants.
The appellants challenged the seniority of the respondents in writ petitions on the ground mainly that the respondents were recruited only to the 20 temporary posts created and that the appellants and 51 others were appointed to 59 permanent vacancies.
The appeal was dis missed by this Court and it has been observed as follows: "The principles generally followed in working out the quota rule are, (i) Where rules prescribe quota between direct recruits and promotees confirmation or substantive appoint ment can only be in respect of clear vacancies in the perma nent strength of the cadre; (ii) confirmed persons are senior to those who are officiating; (iii) as between per sons appointed in officiating capacity, seniority is to be counted on the length of continuous service; (iv) direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules.
In promo tional vacancies, the promotion is either by selection or on the principle of Seniority cum merit.
A promotion could be made in respect of a temporary post or for a specified period, but direct recruitment has generally to be made only in respect of a clear permanent vacancy, either existing or anticipated to arise at or about the period of probation is expected to be completed; (v) if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular.
The promotees can not claim any right to hold promotional posts unless the vacancies fall within their quota.
If the promo tees occupy any vacancies which are within the 201 quota of direct recruits, when the direct recruitment takes place, the direct recruits will occupy the vacancies within their quota.
Promotees who are occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of the case; and (vi) as long as the quota rule remains, neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies; and (vii) quotas which are fixed are unalterable according to exigencies of the situation.
They can only be altered by fresh determination of quotas under the relevant rules.
One group either on the ground that the quotas are not filled up or that because there had been a number in excess of the quota the same should be absorbed depriving the other group of quota.
" It thus emanates from the said Judgment of this Court that when promotion has been made in excess of the quota the promotees who have been promoted in the quota of direct recruits will be pushed down and will be absorbed in the quota of promotees of subsequent years and the direct re cruits made within their quota would be deemed to be senior to those promotees recruited in excess of their quota.
In the case of A. Janardhana vs Union of India & Ors., ; the question of determination of seniority between the direct recruits to the post of Assistant Execu tive Engineer (AEE) and the promotees from the post of Assistant Engineer fell for consideration.
The Military Engineer Services Class I (Recruitment, Promotion and Sen iority) Rules (1949 Rules for Short) were brought into operation on or from 1.4.
Under Rule 3 and 4 of 1949 Rules the recruitment to MES Class I was to be made from two sources, namely, by competitive examination in accordance with Part II of the Rules and by promotion in accordance with Part III of the Rules.
Rule 4 prescribed a quota of 9:1 between direct recruits and promotees.
During the years 1962, 1963 and 1964 particularly and until the year 1969, the Class I Service Rules were not statutory in character.
The Union Government relaxed the Rules both in regard to recruitment by interview and in regard to the quotas fixed by the Rules for direct recruitment and recruitment by promotion to Class I Service.
The 1949 Rules and the subse quent amendments thereto acquired statutory flavour in character by incorporation only in 1969 and till then they were mere administrative instructions.
202 It was due to emergency situation in .the market of recruitment of engineers between 1959 and 1969 and the dire need of urgently recruiting engineers which led the Govern ment to make recruitment m relaxation of quota rule by foregoing the competitive examination and promoting subordi nate ranks to Class i Service.
Appellant and similarly situated persons were thus promoted to meet the dire need of service in relaxation of the quota rule.
It has been observed by this Court that when recruitment is from two independent sources, subject to prescribed quota, but the power is conferred on the Government to make recruitment in relaxation of the rules any recruitment made contrary to quota rule would not be invalid unless it is shown that the power of relaxation was exercised mala fide.
It was also observed that the recruitment made to meet the exigencies of service by relaxing the quota rule the promo tion in excess of quota would be valid.
It had further been observed that once the quota rule was fully relaxed between 1959 and 1969 to suit the requirements of service and the recruitment made in relaxation of the quota rule and the minimum qualification rule for direct recruits was held to be valid, no effect could be given to the seniority rule enunciated in Para 3(iii) of Appendix V of the 1949 Rules, which was wholly interlinked with the quota rule and could not exist apart from it on its own strength.
This was im pliedly accepted by the Union Government and was implicit in the seniority lists prepared in 1963 and 1967 68 in respect of AEE, because both those seniority lists were drawn up in accordance with the rule of seniority provided in Army Instruction No. 241 of 1950.
It has been further held that 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 was liable to be quashed and the two 1963 and 1967 seniority lists must hold the field.
In Shri O.P. Singla and another vs Union of India & Ors., ; the question of inter se seniority between promotees and direct recruits came up for consideration before this Court.
Delhi Higher Judicial Service was consti tuted on May 15.
It was governed by the Delhi Higher Judicial Service Rules, 1970.
Rule 7 provides that the recruitment to the service will be made from two sources i.e. by promotion on the basis of selection from members of the Delhi Judicial Service, who have completed not less than ten years of service in the Delhi Judicial Service and by direct Recruitment from the Bar 203 provided that not more than 1/3rd of the substantive posts in the service shall be held by direct recruits.
The senior ity of direct recruits vis a vis promotees shall be deter mined in the order of rotation of vacancies between the direct recruit and promotees based on the quota of vacancies reserved for both categories.
Rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on.
It has been observed that persons who are appointed or promoted on an ad hoe basis or for fortuitous reasons or by way of a stop gap arrangement cannot rank for purposes of seniority with those who are appointed to their posts in strict conformity with the rules of recruitment, whether such latter class of posts are permanent or temporary.
It has also been observed that persons belonging to the Delhi Judicial Service who are appointed to temporary posts of Additional District and Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop gap arrangement, constitute a class which is separate and dis tinct from those who are appointed to posts in the Service in strict conformity with the rules of recruitment.
In view of this, the former class or promotees cannot be included in the list of seniority of officers belonging to the Service.
It has, therefore, been held that those who are appoint ed to the post of Additional District and Sessions Judges on ad hoc basis for fortuitous reasons cannot be taken into consideration in determining the seniority of the members of the Service.
In the case of G.S. Lamba & Ors.
vs Union of India & Ors.
, ; the question of inter se seniority between direct recruits and promotees cropped up for consid eration before this Court.
The Indian Foreign Service Branch 'B ' was constituted in 1956.
The statutory rules Indian Foreign Service Branch 'B~ (Recruitment, Cadre, Seniority and Promotion) Rules, 1964 were enforced on or from May 6, 1964.
It provided for recruitment from three sources: (1) direct recruitment on the result of a competitive exami nation held by the Union Public Service Commission (2) substantive appointment of persons included in the selective list promoted on the basis of a limited competi tive examination held by the Union Public Service Commission and 204 (3) Promotion on the basis of seniority By a notification dated February 12, 1975, Rule 13 was amended to provide that recruitment to the three different sources of integrated Grades II and III to be: (1) 1/6th of the substantive vacancies to be filled in by direct recruitment (2) 331/3 % of the remaining 5/6 of the vacancies to be filled on the basis of results of the limited competitive examination and (3) the remaining vacancies to be filled in by promotion on the basis of seniority.
The petitioners were selected by the Union Public Serv ice Commission on the basis of the merit obtained at the examination of Assistants conducted for the purpose for appointment to the post and allocated to the Ministry of External Affairs.
After the initial constitution of the service of 1956, they were offered an option whether they would like to join the I.F.S. Branch 'B ' in grade IV.
They opted and were inducted into the service.
Later they were promoted between 1976 and 1979 from Grade IV to the inte grated Grades II and III.
The Government of India published a seniority list of the integrated Grades II and III as on June 25, 1979 and before objections taken by the petitioners to the seniority list were dealt with, another seniority list was published on June 30, 1983.
This list was assailed by the petitioners on the ground that it is discriminatory and is consequently violative of Article 14 and 16 of the Constitution.
This Court upheld their contention and quashed the seniority list.
The Union Government was directed to prepare a fresh seniority list.
In the instant case direct recruitment had not been presumably made in excess of the quota and the promotees were appointed to substantive vacan cies in the service and they had been holding the posts for over 6 to 8 years.
In the seniority list that was prepared the direct recruits who were promoted much later to the promotees in excess of their quota were shown senior to the promotees, it has been held that once the promotees were promoted regularly and they have been officiating for a number of years the continuous officiation confers on them an advantage of being senior to the later recruits under Rule 21(4).
It has been further observed that if there has been an enormous departure from the quota fixed by exercis ing the powers to relax, the quota rule was not adhered to, the rota rule for inter se seniority as prescribed in 205 Rule 25(i) and (ii) cannot be given effect.
In the absence of any other valid principle of seniority it has been held that continuous officiation in the cadre, grade or service will provide a valid principle of seniority.
It has been held that where the direct recruitment had not been made according to the quota for years and promo tions have been made in excess of the quota and the promo tees were appointed in the vacancies of the direct recruits and work for a number of years, the quota rule cannot be given effect to and the promotees cannot be shown as junior to the direct recruits in the seniority list.
Continuous officiation in the cadre, grade or service will provide a valid principle of seniority.
Seniority List was, therefore, quashed and set aside.
In the case of Narendra Chadha vs Union of India, ; there was a quota rule for filling up the vacancies from two sources by direct recruitment as well as by promotion.
The direct recruitment was not made for number of years and the posts of direct recruits were filed up by promotion.
The promotees were allowed to function in the promoted posts for 15 to 20 years.
Thereafter direct re cruitment was made.
There was a rule which empowers the Government to relax the quota.
It was held that whenever a person is appointed in a post without following the rules prescribed for that appointment to the post, he should not be treated as a person regularly appointed to that post.
Such a person may be reverted from that post but in a case where persons have been allowed to function in higher posts for 15 to 20 years without due deliberation it would be unjust to hold that they had no claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the service at all particularly where govern ment is endowed with the power to relax the rules to avoid injustice.
It has been held by this Court that continuous officiation of the promotees could be justified on the basis of the rule 16 on the presumption that the Government had relaxed the rules and appointed the promotees to the posts in question to meet the administrative requirements.
In the instant case undoubtedly, the Government made an order on 20.3.1974 for reservation of 5% of the posts for recruitment by promotion from among selected confirmed Upper Division Assistants of the Commissioner 's Office and the selected confirmed Head Clerks of the District Excise Of fices.
Pursuant to that order, the Government later on published a Notification S.O. 411 in the Bihar Gazette on March 31, 1975 stating therein about the quota of 5% of total vacancies reserved for the promotion of the selected Upper Division 206 Assistants to the post of Inspectors of Excise.
It has been urged by the learned counsel appearing on behalf of the respondents that the respondent Nos. 3 and 4 being promoted and appointed as Inspectors of Excise from the 75% quota for promotion from selected SubInspectors of Excise in April, 1974 they cannot be shown as junior to the appellants, in the seniority list inasmuch as the appellants were appointed on 7.5.1976.
It has been further submitted in this connec tion that the appointment of the appellants on promotion from the 5% quota of the vacancies available in 1974 cannot be made.
It has also been submitted that the Notification referring to the 5% quota for promotion of Upper Division Assistants cannot be deemed to be a quota in respect of vacancies for the year 1974 75.
As such quota cannot be enforced unless and until the reservation of 5% quota of vacancies is published in the official gazette for informa tion of the public.
In support of this submission the deci sion in Harla vs State of Rajasthan, ; was cited at the Bar.
In this case on 11.12.
1923 the counsel passed a resolution which purported to enact a law called The Jaipur Opium Act and the only question was whether the mere passing of the resolution without promulgation or publication in the Gazette or by other means to make the Act known to the public was sufficient to make it a law and enforce the same.
There was an amendment of Section 1 of the Jaipur Opium Act to the effect that it shall came into force from 1.9.1924.
The Act was never published in the Gazette.
It was held that the Jaipur Laws Act 1923 which required the whole of the Act to be published instead of publication of only one section, will not validate the same.
In the instant case, the Government made an order reserving 5% of the total vacancies in a year for being filled in by promotion from the selected Upper Division Assistants and Notification to that effect was published in the Gazette in March, 1975.
This Notification related to the vacancies for the year 1974 75 i.e. the year ends on March 31, 1975.
It is perti nent to refer to the specific averments made by Excise Commissioners, Government of Bihar, on behalf of the re spondent Nos. 1 and 2 The State of Bihar and Commissioner cum Secretary, Excise and Prohibition, Government of Bihar.
It has been stated in paragraph 3 of the Counter Affidavit: "That the promotion of the petitioners were caused in the Quota of 5% which was given to the petitioner by a Notifica tion dated 31.3.
1975 which is annexed in the petition as Annexure A but due to the noting given in the File, firstly by the Member of Board of Revenue on 20.3.
1974 and the 207 same has caused promotion to the petitioner which should not have been done unless there is a notification in effect to the noting given by the State Government.
" Noting given by the Board is reproduced herein below: quota in the cadre of Excise Inspector is given from the cadre of confirmed Upper Division Clerks, Excise Commissioner 's office and confirmed Head Clerks of District offices.
" It has been further stated that in the year 1976 the Secre tary of the Commission, Excise Department gave a note whose English translation is given below: "As stated at page 22 of the notesheet that the pay scale of Upper Division Assistants is more than the Head Clerks and therefore they will rank senior on that basis.
So first of all the question of promoting Sarvasri Awadh Prasad Singh and Ram Vriksh Pd.
Singh 's against the vacancy at Roster 67 and 68 has to be considered.
The question of promotion of Sarvasri Vidyadhar Ghatwari and Devendra Narain Pd. would be considered against future vacancies and therefore it is proposed to keep their names in the waiting list Sd/ Ravikishore Narain 26.4.
1976" It has been further stated in paragraph 5 of the said affi davit that the Excise Commissioner accordingly passed an order in the year 1976, which is dated 5.5. 1976, promoting the petitioner in accordance with the quota.
The English translation of the same is as follows: " So far the question of promotion of Assistants/Head Clerks is concerned the rule has been framed in 1974 and for the first time promotion is being given on this account.
I have carefully gone through the above rules and from perusal of the file it would appear that only 5% of the total vacan cies shall be filled in by the promotion.
In the rule, the word 2% at least" has come perhaps inadvertantly in at least 5%.".
There is no such mention in the file.
On this basis, as has been mentioned in the note of the Secretary only two posts have to be filled up from the quota of 208 Assistants.
So far as the persons by whom the filling up of the vacancies are concerned, I agree with the note of the Secretary marked 'Kh ' in the notesheet i.e. at present Awadh Prasad Singh and Ram Brikh Pd.
Singh should be promoted.
The name of Vidyadhar Pd.
and Devendra Narayan Pd. should be kept in the waiting list.
" It has been further stated that the Notification giving 5% quota which is annexed in the petition as Annexure A from the grade of Assistant/Head Clerks came into picture only on 31.3.1975 on the basis of order made by Government in March, 1974.
However, the petitioners were promoted on the vacan cies caused in the year 1974 75, because the decision was taken in the year 1974 itself and accordingly the Department carried out the same and accordingly a Gradation List was prepared.
A counter affidavit has also been filed on behalf of the respondent Nos. 6 & 7, that is, promotees, Inspectors of Excise.
It has been stated in paragraph 6 that the rules of recruitment of Inspectors of Excise were modified by Notifi cation No. 411 dated 31.3.
There was no provision in the Excise Act and Rules for appointment of Inspectors of Excise from among selected Assistants of Commissioner 's office and Head Clerks of the District Excise offices prior to this Notification.
This Notification for the first time required the Department of Excise to fill at least 5% of the total vacancies by promotion from among the confirmed Upper Division Assistants and selected Head Clerks.
The respond ents were promoted as Inspectors of Excise from Sub Inspec tors of Excise vide Order 2091 dated 24.4.1974 in their own quota and joined the promotional posts on 1.5.
It has also been stated that the appellants were appointed Inspec tors of Excise in the year 1976 and joined on 7.5.
Apparently there was no quota for appointment of Inspectors of Excise from among Assistants and Head Clerks in the year 1974 and the averments made by the respondent State or appellants to this effect is mala fide, ridiculous and false.
The appellants being appointed in the year 1976 by virtue of the Notification which came into existence on 31.3.
1975 cannot claim this vacancy of 1974 and hence seniority allotted to them by the respondent State was in flagrant, violation of law laid down by the Supreme Court and hence the High Court rightly allowed the C.W.J.C. No. 4097/85 against the appellants herein.
In the supplementary rejoinder affidavit on behalf of the appellants it has been stated in paragraph 4 that the State of Bihar has 209 proved the appellants, right to promotion on a vacancy that occurred in 1974 by the following clear admissions made by the State of Bihar in its counter affidavit.
"So far the question of promotion of Assistants or Head Clerks is concerned, the rule has been framed in 1974 and for the first time promotion is being given on this account." "However, the petitioners were promoted on the vacancies caused in the year 1974 75, because the decision was taken in the year 1974 itself and accordingly the Department carried out the same." It has also been stated in paragraph 5 of the said Rejoin der: "That the Government who was clearly conscious of the rights created by the decision to amend the Rules taken in 1974 and in accordance with the decision a Notification was issued later in March 1975.
But the ministerial failure to make the Notification conformed to the decisions taken in 1974 is no more than a clerical error and the Government therefore rightly promoted the petitioner within their quota against the vacancies occurred in 1974 by its Order.
" 1t has been further stated in paragraph 10 of the said rejoinder: "That there is a provision of seniority of Excise Inspector in Rule 6 of Recruitment Rules vide notification No. 54 dated 3.1.1936 for Excise Inspector.
It is clearly stated that the seniority of all Inspectors on confirmation will be determined in accordance with Government Order No. 6509/A dated 12.12.1934 which is still in force.
Besides there are also Government instructions with regard to seniority such as letter No. 15784 dated 26.8.1972.
The High Court ought to have considered the Rules of seniority when the case related to the seniority of Excise Inspector.
" In paragraph 11 it has been further averred: "That in view of the clear admission of the Government the petitioners are entitled to the benefit of promotion with effect from as against the vacancies of 1974 as fixed by the Government and the High Court order is liable to be set aside and the appeal may be allowed.
" 210 It thus appears from a perusal of the Affidavit in counter sworn by the Commissioner of Excise on behalf of the State of Bihar, the respondent Nos.
I and 2, that the order creating 5% of the vacancies for promotion from the posts of confirmed Upper Division Assistants and selected Head Clerks have been made by the Notification dated 31.3.
1975, though according to the noting given in the File by the Member, Board of Revenue on 20.3.
1974 on the basis of the Govern ment Order the petitioners (appellants of this appeal) were promoted in the vacancies of the year 1974 75 by order of the Excise Commissioner dated 5.5.1976.
Therefore, the argument on behalf of the respondents in this appeal that the appellants were promoted against the 5% quota in respect of the vacancies of the year 1975 76 is not sustainable.
The appellants having been appointed in the quota of 5% out of the vacancies of 1974 75 are entitled to be shown as senior in the gradation list prepared by the Government on 9.1.
We have already mentioned hereinbefore that the re spondent Nos. 3 and 4 were promoted from the selected Sub Inspectors Excise, that is, in the 5% quota reserved for promotion from the Upper Division Assistants of the Excise Department.
In accordance with the decisions rendered by this Court in the case of V.R. Badami vs State of Mysore, (supra) the respondent Nos. 3 and 5 who were promoted to officiate in the 5% quota of Upper Division Assistants and confirmed Head Clerks are to be pushed down as soon as the appellants have been recruited in the said quota to the posts of Inspectors of Excise in 1976 inasmuch as the promo tion though not illegal is irregular and the promotees are to be accommodated in the vacancies of subsequent years in their quota.
1t is only in the case of Narendra Chandha vs Union of India, (supra) exception was made by this Court to the aforesaid decision on the ground that the quota was broken down or not adhered to as there was no recruitment from the quota of direct recruits for a period of 15 to 20 years and the promotees were allowed to officiate in the quota of direct recruits for a long period of 15 to 20 years, in such circumstances, it was held that in view of Rule 16 empowering the Government to relax the quota rules, the promotees officiating in the vacancies of direct re cruits were presumable permitted to do so in relaxation of the quota as such the seniority will be determined from the date of their continuous officiating in the said posts.
Similar view has been expressed in G.S. Lamba 's case (supra).
In the instant case there was no rule for relaxa tion of the quota nor the respondent Nos. 3 and 4 who were promoted from selected Excise Sub Inspectors to the Inspec tors of Excise in the 5% quota of Upper Division Assistants in 1974 officiated till 7.5.1976 when the appellants joined as Inspectors of Excise from their 5% quota.
It cannot be said in such circumstances 211 that the quota has not been filled up for a long period nor can it be said that the respondents 3 and 4 who were promot ed in excess of their quota have worked as Inspectors of Excise for long time and as such the respondents Nos. 3 and 4 cannot claim to be seniors to the appellants.
Moreover, it is evident from the affidavit of the Commissioner of Excise on behalf of the State of Bihar that the 5% quota of vacan cies were brought into being by the Board of Revenue of March 20, 1974 though there was delay in notifying the same in the Gazette till 31.3.
Nevertheless, it has been subsequently averred that the appellants were promoted from the said 5% quota of vacancies of the year 1974 75.
In these circumstances on a conspectus of the decisions referred to hereinbefore as well as of the Government Order reserving 5% quota of vacancies on 20.3.
1974 and subsequent Notification of the same on 31.3.
1975 the only conclusion that follows is that the appellants being promoted as In spectors of Excise from the 5% quota of vacancies of the year 1974 75, they were rightly shown as seniors in the gradation list prepared by the Government on 9.1.
The findings of the High Court to the effect that the appellants were not promoted in the 5% quota of vacancies for the year 1974 75 is wholly wrong.
Accordingly, the gradation list prepared by the Government on 9.1.
1986 showing the appel lants as seniors to the respondents are quite legal and valid and so the same is upheld.
We, therefore, set aside the judgment and order passed by the High Court in C.W.J.C. No. 4097/ 85.
In the facts and circumstances of the case, there will be no order as to costs.
S.B. Petition allowed.
| IN-Abs | The subject matter of the Writ Petition is the gradation list dated 9.1.1986 of the Inspectors of Excise by which the Government of Bihar has finally fixed the inter se seniority of the Petitioners who were promoted vis a vis the appel lants in the present appeal who were promoted to posts of Inspectors of Excise in 5% quota reserved for promotion from the posts of Upper Division Assistants of Excise Department.
In the gradation list the appellants who joined as Inspectors of Excise on 7.5.76 were shown as senior to the Excise Inspector who were promoted from Sub Inspectors on 24.4.74 in the vacancies of direct recruits.
The gradation list was challenged in the High Court by the Respondents on two grounds i.e., (1) the State Govern ment has no jurisdiction to determine the seniority or gradation list of the Excise Inspectors, the competent authority is the Excise Commissioner (2) The Respondents in the present appeal have been continuously officiated for years together in the vacancies of direct recruits and thus could not be pushed down for determining the seniority and shown as juniors to the contesting appellants.
The High Court allowed the Writ Petition in part.
It was held that 5% quota to be filled up by promotion from Upper Division Assistants of Excise Department was notified only on 31st March 1975, whereas the appellants have been promot ed in the 5% quota of vacancies of the year 1974 75.
Hence they have not been promoted in the 5% quota.
The Respondents in the present appeal were promoted as Excise Inspectors on 24.4.74 in the quota of direct recruits and thus they could not be shown as juniors to those who were promoted and joined on 7.5.76 from 5% quota of the 1974 75 year vacan cies.
The High Court quashed the 194 gradation list and directed the State Government to draw up a fresh list in the light of the observations made.
Further it held that State Government is the competent authority to determine inter se seniority because where in any provisions of Bihar Excise Act 1915 government has vested the Excise Commissioner with the power of determining the seniority of the Excise Inspectors.
Hence the gradation list prepared by the State Government is legal and valid.
The appellants filed Special Leave petition in this Court against the High Court Judgment and Order.
Allowing the Special Leave Petition, this Court, HELD: The appellants claimed to be promoted to the posts of Inspectors in the 5% quota set apart for promotion from the Upper Division Assistants against the vacancies of the year 1974 75.
Since under Bihar Excise Act 1915 vide notifi cation No. 417 of 15.1.1919 clause (iv) the Excise Commis sioner was given only the powers to appoint Excise Inspec tors by promotions but not to determine inter se seniority etc.
Hence vide Excise Recruitment Rules 1936, Rule No. I vide notification No. 411 dated 31.3.75, after clause (2) clause (3) was added making provision for promotion from selected confirmed Upper Division Assistants and Head Clerks of the District Excise Office and also added at the end of the Rule 1 that at least 5% of the total vacancies shall be filled up by promotion from among the above notified staff.
In this rule the provision for relaxation of direct recruit ment quota was made but there was no relaxation of the quota of promotees.
[197G; 198C; 199E] The State Government made this decision and order on 20.3.74 regarding reservation of 5% of the total vacancies to be filled by promotion for the year 1974 75 but the notification to that effect was published on 31.3.75.
The promotion could not have been given unless the decision was confirmed by notification.
It was only after the notifica tion of 31.3.75, that the Upper Division Assistants were promoted as Excise Inspectors for the first time out of the 5% quota created in the vacancies of 1974 75, in the year 1976.
[205G H; 206B] The Government has rightly promoted the appellants within their quota in the vacancies occurred in 1974 by its orders.
[211D] When there is no relaxation in the quota vacancies as between the direct recruitment and promotees, the determina tion of inter se 195 seniority shall be determined in the order of rotation of vacancies reserved for both categories, the direct recruits made within their quota would always deemed to be senior to those promotees recruited inexcess of their quota.
[210H; 21 1A] V.B. Badami vs State of Mysore, AIR 1980 SC 1561; A. Janardhana vs Union of India & Ors., ; and O. Singla & Anr.
vs Union of India & Ors.
, ; , relied on.
It is only when the quota rule was not adhered to or followed for a long time and the promotees are allowed to officiate in the quota of direct recruits for a period of 15 to 20 years, in such circumstances Government is empowered to relax the quota rule and the promotees will have seniori ty from the date of the continuous officiations in the cadre, grade or service.
[210F] Narendra Chadha vs Union of India, ; and G.S. Lamba & Ors.
vs Union of India & Ors.
, ; Quotas are fixed under the relevant rules of recruit ments and can be altered only by fresh determination of quotas under the relevant rules of recruitments.
[201 C] In the instant case, there was no rule for relaxation of the quota.
The respondent Nos. 3 & 4 who were promoted from selected Excise Sub Inspectors to the Inspectors of Excise in 1974, officiated till 7.5.
1976 when the appellants joined as Inspectors of Excise from their 5% quota.
It cannot be said in such circumstances that the quota was not filled up for a long period nor can it be said that the respondents 3 & 4 who were promoted in excess of their quota have worked as inspectors of Excise for long time and as such the respondents 3 & 4 cannot claim to be seniors to the appellants.
[210G H; 211A] The appellants being promoted as Inspectors of Excise from the 5% quota of vacancies of the year 1974 75, were rightly shown as seniors.
in the gradation list prepared by the Government on 9.1.1986 which is legal and valid.
[21 1D]
|
vil Appeals Nos.
1597 98 of 1988.
From the Judgment and Order dated 3.3.1988 of the Bombay High Court in W.P. Nos.
1409 & 1776 of 1986.
Dr. Y.S. Chitaley and Mrs. Urmila Sirur for the Appellant.
Ahok K. Gupta, S.J. Deshmukh, Ms. Vrinda Grover and Ms. Bina Gupta for Respondent Nos.
1 to 4.
The Judgment of the Court was delivered by SAWANT, J.
The present appeals arise out of a battle for recognition between the rival trade unions in proceedings under the Maharashtra Recognition of Trade Union & Preven tion of Unfair Labour Practices Act, 1971 (hereinafter referred to as the 'Act ').
The fourth respondent Company has two factories, one at Bhandup, Bombay employing about 1700 workers and the other at Aurangabad employing about 1000 workers.
The first respondent Union, viz., the Association of Engineering Work ers, Bombay obtained a certificate of recognition from Industrial Court, Thane under Section 12 of the Act, on April 7, 1977 for the Company 's undertaking at Bhandup.
While the first respondent Union was acting as such recog nised union, many of the workers claimed that they had resigned from the said Union and formed a new union called the Automobile Products of India Employee 's Union which is the appellant Union and registered it on January 7, 1981 under the .
On October 9, 1981, the appellant Union made an application to the Industrial Court, Thane under Section 13(1)(ii) of the Act for cancellation of the recognition of the first respondent Union on the ground that the latter 's membership in the Bhandup Undertaking had fallen below 30 per cent of the total strength of workmen in that Undertaking for the preceding six months.
In its reply dated November 16, 1981, the first respondent Union refuted the allegation in the application and contended that its membership was more than 30 per cent for the relevant peri od.
The appellant Union on March 1, 1982 submitted yet another application for cancellation of recognition of the first respondent Union this time under Section 13(1)(i) of the Act alleging that the recognition was obtained by the first respondent Union by misrepresentation and/or fraud, and that it was granted recognition also by mistake.
The Industrial Court rendered the relief in favour of the appel lant Union.
However, the said decision was set aside by the High Court and the decision of the High Court was upheld by this Court.
Here ended the first skirmish.
182 3.
The appellant Union thereafter started the second battle this time for its own recognition under Section 14 of the Act and the present appeals are an outcome of the said proceedings.
On July 29, 1982, the appellant Union filed an application under Section 14 of the Act for being registered itself as a recognised union in place of the first respond ent Union on the ground that it had the largest membership of the workers in the Bhandup undertaking, viz., 1036 out of a total of 1700 workers, i.e., about 69% of the total stength.
The first respondent Union in its reply of October 7, 1982 contested the appellant Union 's claim and pleaded that it had a membership of about 1400 workers.
Both the appellant Union and the first respondent Union furnished with their pleadings the details of their membership.
On August 19, 1985, the appellant Union made an application to the Industrial Court to hold an inquiry under Section 12(2) of the Act by directing the investigating officer to verify the membership of both the Unions.
On September 5, 1985, the Industrial Court gave directions to the Investigating Offi cer appointed under the Act to assist the Court, to investi gate the membership of both the Unions.
While the Investigating Officer was in the process of verifying the memberships of the two Unions, suggestions were made for deciding by secret ballot as to which of the Unions commanded the majority.
As per the suggestion, the first respondent Union on December 19, 1985 submitted a draft proposal to the Industrial Court as follows: 1.
The issue pertaining to recognition of any of the unions be decided by secret ballot and the Investigating Officer be directed to conduct the same ballot.
The Union which would have the majority of the votes would be treated as recognised trade union and the one which fails to get the majority would not raise any tech nicality or objection.
The union which thus fails to secure majority in the ballot would raise no objection for the period of three years to the union thus declared as the recognised union.
The appellant Union also submitted its draft proposal, at the same time, in more or less the same terms.
On the same day, i.e., December 19, 1985, the Industrial Court passed an order directing the Investigating Officer to hold a secret ballot in the premises of the Company within 30 days from the date of the order.
The employees who were entitled to vote in the ballot were those who were on the rolls of the 183 Company on July 1, 1985, those who joined employment of the Company, thereafter, being disentitled to do so.
According ly, a secret ballot was held on January 4, 1986.
The result of the ballot showed that in all 1585 workers voted, but only 1578 ballot papers were valid.
The appellant Union secured 798 votes whereas the first respondent Union secured 780 votes.
The Investigating Officer submitted his report to the Industrial Court on January 21, 1986.
On January 30, 1986, the first respondent submitted its objections contend ing that the cut off date of July 1, 1985 was not correct as the employees who were in employment of the Company and whose services were intermittently interrupted were not given an opportunity to exercise their votes, and that there should have been a proper notification with regard to the date of voting so that the employees who were away could have exercised their votes.
On February 10, 1986, the Indus trial Court passed an order granting recognition to the appellant Union in place of the first respondent Union, under Section 14 of the Act after disposing of the objec tions raised by the first respondent Union.
The Industrial Court held that since there was an agreement between the two unions, the procedure adopted to grant recognition to the union under the Act was a valid one.
The Industrial Court also held that there was no substance in the objections of the first respondent Union that by treating July 1, 1985 as the cut off date, the workers who were otherwise entitled to vote were deprived of their right to vote and also that the notice of the ballot which was given to the workers was proper one.
The Industrial Court further granted the request of the appellant Union for cancellation of the recognition of the respondent union.
under Section 13(1)(vii) of the Act as a consequence of the recognition of the appellant Union.
On February 11, 1986, the Industrial Court granted a certif icate of recognition to the appellant Union under Section 14 of the Act.
Against the said decision, two writ petitions were filed in the Bombay High Court under Article 227 of the Constitution of India, one, viz., Writ Petition No. 1409 of 1986 by two workers who were members of the first respond ent Union and the other, viz., Writ Petition No. 1776 of 1986 by the first respondent Union.
In both the petitions, it was alleged that the Industrial Court had violated the provisions of the Act relating to the grant of recognition of the Union by adopting a procedure which was not sanc tioned by it and which was, therefore, illegal and invalid.
Reliance was placed for this purpose on a decision of the Bombay High Court in Maharashtra General Karngar Union, Bombay vs Mazdoor Congress, Bombay & Ors., [1983] M.L.J. 147.
The appellant Union contested both the petitions con tending that 184 the petitioners there were estopped from challenging the procedure which was adopted by the Industrial Court by consent of the first respondent Union.
The High Court by its impugned decision allowed both the writ petitions and set aside the order of the Industrial Court mainly relying upon its earlier decision in Maharashtra General Kamgar Union, Bombay case (supra).
The present appeals are directed against the impugned decision passed in both the said writ petitions.
What, therefore, fails for our consideration in these appeals is whether the procedure adopted by the the Indus trial Court for granting recognition to the appellant Union was illegal.
To appreciate the answer, it is necessary first to appreciate the object and the scheme of the Act.
As has been stated in the Preamble of the Act, the State Government had appointed a committee called the "Committee on Unfair Labour Practices" for indentifying certain activities of employers and workers and their organisations which should be treated as unfair labour practices and for sug gesting actions to be taken against the employers and employees or their organisations for engaging in such unfair labour practices.
The Government, after considering the report of the Committee, was of the opinion that to deal with the unfair labour practices, it was necessary among other things, to provide for the recognition of trade unions for facilitating collective bargaining, and to state their rights and obligations, to confer certain powers on them and to provide for certain consequences for indulging m unfair labour practices.
It is further a common knowledge that although since long there was a strong demand from some sections for recog nising the bargaining agent of the workmen by a ballot secret or otherwise, the National Labour Commission did not countenance it for certain obvious reasons.
It was felt that the elective element would introduce unhealthy trends which would be injurious to the trade union movement, to industri al peace and stability endangering the interests of the workers, the employers and the society as a whole.
It was feared, and from what has become almost a normal feature today, we can say rightly, that the elective element will encourage the growth of mushroom unions just on the eve of election outbidding each other in promising returns to the workers merely to assort supremacy and unmindful of the health of the industry leading eventually to unwarranted industrial strife, stoppage of production and even closure of the establishment with a consequent loss of production and employment.
It was, therefore, thought prudent in the interests of stable industrial 185 relations and industrial peace to evolve a mechanism whereby the bargaining agent on behalf of the workers will have a durable stability as such agent, with a guarantee of unin terrupted loyalty of its members and an unquestionable representative character over a certain period of time.
That is why the concepts such as "recognised union" or "represen tive union" emerged and along with it the machinery to determine it.
The mechanism necessarily involved a process by which the workers who claimed that they were speaking through their bargaining agent had the responsibility to maintain their support to it over a reasonable period of time.
This could be ensured by them by continuing their membership of the union over a specific period.
The continu ation of their membership of the union concerned over a period ensured that their association with the bargaining agent was of a steady and durable character and their alle giance and loyalty to it were not of a fleeting moment but were born of a proper evaluation of all facts.
It is in the light of this background that we have.
to examine the scheme of the Act so far as it relates to the recognition and derecognition of the Unions.
Chapter III of the Act deals with the recognition of unions, whereas Chapter IV deals with their obligations and rights.
Chapter VI deals, among other things, with unfair labour practices on the part of the recognised unions and Chapter VII gives powers to Courts to declare certain acts of recognised unions as unfair labour practices.
Chapter VIII gives to the Courts the power to punish and Chapter IX, to impose penalty on the recognised unions.
The privileges given to the recognised unions and the obligations and responsibilies cast on them are also considerable.
Chapter III which deals with the recognition of unions makes it clear in Section 10 that the said Chapter shall apply to every undertaking where fifty or more employees are employed, or were employed on any day of the preceding 12 months.
If the number of employees employed in the undertak ing at any time falls below 50 continuously in a period of one year, the Chapter ceases to apply to such undertaking.
Section 11 of the Chapter then states the procedure for recognition of union.
A union which is desirous of being registered as a recognised union for any undertaking has to make an application to the Industrial Court for the purpose.
However, for making such application, the Union must have not less than 30 per cent of the total number of employees in that undertaking as its members for the whole of the period of six calendar months immediately preceding the calendar month in which it makes the application.
The Indus trial Court then has 186 to dispose of the application as far as possible within three months from the elate of the receipt of the applica tion if all the concerns of the undertaking are situated in the same local area; and in any other case, within four months.
Section 12 then lays down the manner in which the Indus trial Court will proceed to enquire into the application and grant recognition.
On receipt of the application, the Indus trial Court has to make a preliminary scrutiny of it to find out that it is in order.
The Court then has to cause a notice to be displayed on the notice board of the undertak ing for which the recognition is sought, stating therein that the Court intends to consider the said application on a date specified in the notice, and also calling upon the other union or unions, if any, in the undertaking as well as the employers and employees affected by the proposal for recognition, to show cause within a prescribed period as to why recognition should not be granted to the applicant union.
If after considering the objections, if any received, and if after holding such enquiry in the matter as it deems fit, the Industrial Court comes to the conclusion that the applicant union satisfies the condition stated in Section 11, viz., among other things, that it has a membership of not less than 30 per cent for the relevant period and that it also satisfies the conditions which are specified in Section 19 of the Act, the Court grants recognition to the applicant union and issues a certificate of such recognition to it.
On the other hand, if the Court comes to the conclu sion that any of the other unions has the largest membership of employees and the said other union has notified to the Court its claim to be registered as a recognised union and if that other union also satisfies the requisite conditions of Section 11 and 19 of the Act, the Court has to grant recognition to the said other union.
It is necessary, at this stage to state the conditions laid down in Section 19 which are necessary to be complied with by a union for recognition.
Section 19, which appears in Chapter IV dealing with the obligations and rights of recognised unions, lays down that the union which seeks recognition under the Act has to provide in its rules the following matters, and those matters have to be duly observed by it, viz., (i) the mem bership subscription of the union should not be less than fifty paise per month; (ii) the Executive Committee of the union must meet at intervals of not more than three months; (iii) all resolutions passed by the Executive Committee or the general body of the union have to be recorded in a minute book kept for the purpose; and (iv) the union 's accounts have to be audited at least once in each financial year by an auditor appointed by the State Government.
187 Section 12 then states that at any time there shall not be more than one recognised union in respect of the same undertaking.
The section also enjoins upon the Court not to recognise any union, if it is not satisfied that the appli cation for its recognition is not made bona fide in the interest of the employees but is made in the interest of the employer and to the prejudice of the interest of the employ ees.
So also the section mandates the Court not to recognise any union if at any time within six months immediately preceding the date of the application for recognition, the applicant union has instigated, aided or assisted the com mencement or continuation of a strike which is deemed to be illegal under the Act Section 13 provides for cancellation of the recognition of the union and suspension of its rights as a recognised union.
It states that if the Industrial Court is satisfied after holding an enquiry in the matter that: (i) the union was recognised under mistake, misrepresen tation or fraud, or (ii) the membership of the union has for a continuous period of six calendar months fallen below the minimum required under Section 11 for its recognition, viz., 30 per cent of the total strength of the employees; or (iii) the recognised union has, after its recognition, failed to observe the conditions specified in Section 19; or (iv) the recognised union is not being conducted bona fide and is being conducted in the interest of employer to the prejudice of the interest of the employees; or (v) it has instigated, aided or assisted the commencement or continuation of a strike which is deemed to be illegal under the Act; or (vi) its registration under the is cancelled; or (vii) another union has been recognised in place of the union recognised under the said Chapter, it would cancel its recognition.
The Industrial Court is also given the power to suspend the rights of the 188 recognised union for some specified period and it may not proceed to cancel the recognition, if it is satisfied that the former course is in the circumstances, a proper one.
Section 14 with which we are concerned then lays down the procedure for recognition of other union when there is already a recognised union in the field.
It states that any union can make an application for being registered as a recognised union in place of a recognised union which is already registered as such for the undertaking.
Such other union can make an application on the ground that it has the largest membership of employees employed in the undertaking.
The conditions precedent to making such application, howev er, are that: (i) a period of at least two years must have elapsed since the day of the registration of the recognised union; (ii) a period of one year should have elapsed since the date of disposal of the previous application for recognised of such union; (iii) the union must have satisfied the conditions neces sary for recognition specified under Section 11; and in addition, (iv) its membership during the whole of the period of six calendar months immediately preceding the calendar month in which such application is made must have been larger than the membership of the recognised union; (v) the provisions of Section 12 (which also include the conditions specified in Section 19), are satisfied.
If, however, the Court comes to the conclusion that any of the other unions has the largest membership of employees and such other union has also notified to the Court its claim to be registered as a recognised union and that such other union also satisfies the necessary conditions, the Court will grant recognition to the other union.
Section 15 provides for re recognition of the union whose recognition has been cancelled on the ground that it was recognised under a mistake or on the ground that its membership had for a continuous period of six calendar months fallen below the minimum required under Section 11, viz., below 30%.
Such an application can be made by the derecognised union after three months from the date of its derecogni 189 tion.
On such application being made, the provisions of Section 11 and 12 referred to above would apply to it as they applied to an application made for the union 's initial recognition.
However, this section also makes it clear that if the recognition of the union had been cancelled on any other ground, it cannot apply for re recognition within a period of one year from the date of such derecognition save with the permission of the Court.
Section 16 states that even if the recognition of union is cancelled, it will not relieve the union or any of its members from any penalty or liability incurred under the Act prior to such cancellation.
Section 18 provides for recogni tion of unions for more than one undertaking.
Section 20 which appears along with Section 19, 21 and 23 in Chapter IV dealing with the obligations and rights of recognised un ions, among other things, deals with the right of a recog nised union and of such officers and members of the office staff and members of the recognised union, as may be autho rised by or under rules made by the State Government.
Those rights include the right: (a) to collect sums payable by members to the union on the premises, where wages are paid to them; (b) to put up or cause to be put up a notice board on the premises of the undertaking in which its members are em ployed and to affix or cause to be affixed notice thereon; (c) for the purpose of the prevention or settlement of an industrial disputes (i) to hold discussions on the premises of the undertaking with the employees concerned, or its members (ii) to meet and discuss with the employer or any person appointed by him in that behalf the grievances of employees; (iii) to inspect, if necessary, any place in the undertaking where any employee is employed; (d) to appear on behalf of any employee or employees in any domestic or departmental enquiry.
The section also makes it clear that it is only the recog nised union.
190 when there is one, which shall have the right to appoint its nominees to represent workmen on the Works Committee consti tuted under Section 3 of the and it is only the recognised union which shall have the right to represent in certain proceedings under the said Act, and that the decisions arrived at or order made in such proceedings shall be binding on all the employees in such undertaking, and to that extent the provisions of the said Act shall stand amended.
Section 21 then states that when there is a recognised union, no employee in the undertaking shall be allowed to appear or act or allow to be represented in any proceedings relating to unfair labour practices specified in Items 2 and 6 of Schedule IV of the Act except through the recognised union.
The only exception to this rule is in the case of the undertakings governed by the Bombay Industrial Relations Act where the representatives of the employees under Section 30 of that Act are given the special privilege.
It is not necessary to deal with the other provisions of the Act.
It is thus clear that the recognition or derecogni tion of a union under the Act is not a matter which concerns only the contesting unions or its members.
It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general.
No union is entitled to be registered as a recog nised union under the Act merely because it satisfies the membership qualification.
The Industrial Court is forbidden from granting recognition to a union whatever its member ship, if the Court is satisfied that it is disqualified for reasons mentioned under Section 12(.5) and 12(6) or does not satisfy the conditions mentioned in Section 19.
A period of two years must further have elapsed since the registration of the recognised union, if there is one, before an applica tion for recognition of a new union is entertained.
A union whose recognition is cancelled on the ground specified in clause (ii) of Section 13 cannot make a fresh application for a period of three months, and if its recognition is cancelled on any other ground it cannot make a fresh appli cation for recognition for a period of one year from the date of the cancellation in the latter case without the permission of the Court.
In addition to the membership qualification, therefore, the Court has also to satisfy itself that the applicant union is not disentitled to recog nition or to apply for recognition, under the other provi sions of the Act.
As regards the membership qualification itself, the Act enjoins that for being recognised, the applicant union must have firstly a membership of a minimum of 30 per cent of the employees of the undertaking for the whole of the period of at least six calendar months 191 preceding the month in which the application for recognition is made.
When the applicant union seeks recognition for itself by displacing the existing recognised union, the applicant union has, in addition, to satisfy that not only it had 30 per cent of the membership during the six calendar months immediately preceding the calendar month in which it made its application, but had also a larger membership during the said period than the membership of the recognised union.
Even with regard to membership, therefore, what has to be satisfied by the concerned union is not only its minimum qualifying membership but also its competing superi ority in it over a continuous specified period.
What should further be not lost sight of is the paramount fact that it is the membership of the workmen of the union over a period vouched by the relevant documents and not their vote on a particular day which under the Act gives the Union its representative character.
It is its representative character determined by such membership that gives a union a right to make the application for recognition.
However overwhelming therefore the vote may be in its favour in a ballot, it will not entitle a union to recognition under the Act.
the recog nition by ballot or by any method other than that laid down in the Act is, therefore, alien to the Act.
The facts in the present case would reveal that what was done by the Industrial Court was to permit the registra tion of the union as a recognised one by a method which was clearly alien to the Act.
The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union.
In effect, therefore, the Court ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act.
Not only that, but by adopting this method, the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot.
This is apart from the fact that what has to be found out is the exclusive member ship of the contesting unions continuously over the speci fied period, the overlapping membership being ignored.
The consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality.
For reasons which we have indicated earlier the legislature did not opt for the ballot as a method for determining the representative character of the union and laid down an elaborate procedure with necessary safeguards, to do so.
In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them 192 to substitute the provisions of the Act.
Hence, we are of the view that the order of the Industrial Court granting recognition under the Act to the appellant Union by following the method of ballot is prima facie illegal being in breach of the provisions of the Act.
The High Court had, therefore, rightly interfered with the said order by relying on its earlier decision in the case of the Maharashtra General Kamgar Union, (supra).
In the re sult, the appeals fail and are dismissed.
The matter is remanded to the Industrial Court for disposal according to law.
It is, however, made clear that if there are any set tlements which have been arrived at between the appellant Union and the respondent Company, they will be allowed to run their full course.
The appellant Union will not enter into any settlement during the pendency of the present proceedings and if any settlement is to be entered into, it should be done only with the consent of the respondent Union which has not lost its recognition as yet.
There will be no order as to costs.
N.V.K. Appeals dismissed.
| IN-Abs | The fourth respondent, a company had two factories in the State of Bombay.
The first respondent Union obtained a certificate of recognition from the Industrial Court under section 12 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 for one of the company 's undertakings.
While it was acting as such recognised union, many of the workers claimed that they had resigned from the said union and formed a new union, the appellant Union had it registered on January 7, 1981.
The Appellant Union made an application to the Industri al Court under Section 13(1)(ii) on October 9, 1981 for cancellation of the recognition of the first respondent Union on the ground that the latter 's membership in the undertaking had fallen below 30 per cent of the total strength of workmen in the undertaking for the preceeding six months.
The allegations were refuted by the first re spondent Union and it was further contended that its member ship was more than 30 per cent for the relevant period.
Another application was submitted by the appellant Union on March 1, 1982 for cancellation of the recognition of the first respondent Union under Section13(1)(ii) alleging that the recognition was 178 obtained by misrepresentation and/or fraud, and that it was also granted recognition by mistake.
The Industrial Court rendered the relief in favour of the appellant Union, but the said decision was set aside by the High Court, and confirmed by this Court.
After sometime the appellant Union moved an application under section 14 for being registered itself as a recognised union in place of the first respondent Union on the ground that it had the largest membership of the workers in the undertaking, i.e. about 69% of the total strength.
This claim was contested by the first respondent Union, in its reply, and it was pleaded that it had a membership of 1400 workers.
Details of membership were furnished by the parties with their pleadings and an application was made by the appellant Union to the Industrial Court to hold an enquiry under section 12(2) by directing the Investigating Officer to verify the membership of both the Unions.
The Industrial Court thereupon gave directions to the Investigating Officer appointed under the Act to investigate the membership of both the Union.
While the investigation was in progress, both the Unions submitted draft proposals to the following effect: (1) The issue pertaining to recognition of any of the Unions be decided by secret ballot and the Investigating Officer be directed to conduct the same ballot; (2.) The union which would have the majority of the votes would be treated as recognised trade union and the one which fails to get the majority would not raise any technicality or objec tion and (3) The union which fails to secure majority in the ballot would raise no objection for the period of three years to the union thus declared as the recognised union.
The Industrial Court directed the Investigating Officer to hold a secret ballot in the premises of the Company and the employees who were entitled to vote in the ballot were those who were on the rolls of the Company on July 1, 1985.
A secret ballot was held and the appellant Union secured 798 votes whereas the first respondent Union secured 780 votes.
The first respondent Union submitted objections contend ing that he cut off date of July 1, 1985 was not correct as the employees who were in employment of the Company and whose services were intermitently interrupted were not given an opportunity to exercise their votes.
179 The Industrial Court disposing of the aforesaid objection, held that since there was an agreement between the two unions, the procedure adopted to grant recognition to the union under the Act was a valid one, and granted the request of the appellant Union for cancellation of the recognition of the respondent Union under section 13(1)(VII) of the Act, and as a consequence of the recognition, granted recognition to the appellant Union in place of the first respondent Union under section 14 of the Act, and granted the necessary certificate of recognition.
Writ petitions were filed in the High Court under Arti cle 227 of the Constitution by two workers of the first respondent Union, contesting the aforesaid order of the Industrial Court, and they were allowed.
The High Court relying on its earlier decision in Maharashtra General Kamgar Union, Bombay vs Mazdoor Congress, Bombay & Ors., , set aside the order of the Industrial Court.
In the appeals to this Court on the question: whether the procedure adopted by the Industrial Court for granting recognition to the appellant Union was illegal.
Dismissing the appeals, this Court, HELD: 1.
The order of the Industrial Court granting recognition under the Act to the appellant Union by follow ing the method of ballot is prima facie, illegal being in breach of the provisions of the Act.
The High Court had, therefore rightly interfered with the said order.
[192B] Maharashtra General Kamgar Union, Bombay vs Mazdoor Congress, Bombay & Ors., , approved.
Section 14 lays down the procedure for recognition of the other union when there is already a recognised union in the field.
The conditions precedent to making such applica tion are; (i) a period of at least two years must have elapsed since the day of the registration of the recognised union; (ii) a period of one year should have elapsed since the date of disposal of the previous application for recog nition of such union; (iii) the union must have satisfied the conditions necessary for recognition specified under section 11; and in addition; (iv) its membership during the whole of the period of six calendar months immediately preceding the calendar month in which such application is made must have been larger than the membership of the recog nised union; (v) the provisions of Section 12 (which also include the conditions specified in Section 19), are satis fied.
If, however, the Court comes to the conclu 180 sion that any of the other unions has the largest membership of employees and such other union has also notified to the Court its claim to be registered as a recognised union and that such other union also satisfies the necessary condi tions, the Court will grant recognition to the other union.
[188B, C G] 3.
The recognition or derecognition of a union under the Act is not a matter which concerns only the contesting unions or its members.
It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general.
No union is entitled to be registered as a 'recognised union under the Act merely because it satisfies the membership qualification.
[1901D E] 4.
The Industrial Court is forbidden from granting recognition to a union whatever its membership, if the Court is satisfied that it is disqualified for reasons mentioned under section 12(5) and 12(6) or does not satisfy the condi tions mentioned in section 19.
[190E] In the instant case what was done by the Industrial Court, was to permit the registration of the union as a recognised one by a method which was clearly alien to the Act.
The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever command a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union.
The Court thus ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act.
Not only that, the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot.
What had to be found out was the exclusive membership of the contesting unions con tinuously over the specified period the overlapping member ship being ignored, [191D G] 5.
The consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality.
To permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of the Act.
[191G, H; 192A] [Matter remanded to Industrial Court for disposal ac cording to law.] [192B] 181
|
ivil Appeal No. 3388 of 1984.
From the Judgment and Order dated 4.4.1989 of the Andhra Pradesh High Court in C.R.P. No. 1450 of 1981.
A.K. Sen, C. Sitaramiah, P.A. Chaudhary, K. Jagannatha Rao, P.R. Ramachandra Murthy, Mrs. Anjani, K. Ram Kumar, Y.P. Rao, P.S.R. Murhty, B. Kanta Rao, N.D.B. Raju, R.N. Keshwani, R.F. Nariman, Raj Kumar Gupta, P.C. Kapur, Rajen dra Chaudhary, A. Subba Rao, K.R. Nagaraja, P.K. Rao, A.T.M. Sampath, P.N. Ramalingam, R. Venkatramani, G. Narasimhulu, G.N. Rao and S.K. Sucharita for the Appellants.
K. Parasaran, T.V.S.N. Chari, Mrs. B. Sunita Rao, Ms. Manjula Gupta and V. Sekhar for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is a group of matters comprising Civil Appeal No. 3388 of 1984 in this Court and other cases which have been placed before us for hearing along with this appeal.
We propose to deal first with Civil Appeal No. 3388 of 1984.
This appeal by special leave is directed against a judgment of the Andhra Pradesh High Court in Civil Revision Petition No. 1450 of 1981.
The question involved in the appeal before the High Court from which this appeal arises was whether land which has been agreed to be sold by the owner under an agreement of sale and possession of which was delivered in part performance of the agreement .for sale but pursuant to which no conveyance had been executed till the relevant date, could be included both in the holding of the owner vendor as 223 well as the purchaser or whether it was liable to be includ ed only in the holding of the purchaser for the purposes of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (hereinafter referred to as 'the said Act ').
There are a number of connected matters where the same question is involved and which have been placed for hearing before us.
In some of these cases, a part of the considera tion has been paid and in a few others, the entire consider ation has been paid.
It has also been alleged that the possession of the land was transferred to the purchaser pursuant to the agreements of sale referred to.
In some of these cases, lands belonging to the owners have been given on lease to tenants who are in possession thereof as les sees.
In order to appreciate the controversy arising before us, it is necessary to bear in mind the relevant provisions of the said Act.
Before the said Act was enacted, there was in force in Andhra Pradesh an Act entitled Andhra Pradesh (Ceiling on Agricultural Holdings) Act, 1961 which provided for the imposition of a ceiling on holdings of agricultural land.
After that Act had been in force for some time, the Central Committee on Land Reforms made certain recommenda tions regarding the fixation of ceiling on agricultural holdings and in line with this proposed policy, the said Act was enacted in 1973 to bring about comprehensive legislation for the imposition of ceiling on agricultural holdings in the State of Andhra Pradesh and with a view to replace the aforesaid Act of 1961 as well as Andhra Pradesh Agricultural Lands (Prohibition of Alienation Act, 1972).
The object of the legislation was to take over the lands in excess of the ceiling prescribed and to distribute the same among landless and other deserving persons to subserve the common good.
The said Act was included in the Ninth Schedule to the Constitu tion at Item 67 by the Constitution 34th (Amendment) Act and was protected under Article 31 A.
The object of the said Act was agrarian reform.
Under sub section (c) of section 3 of the said Act 'ceiling area ' is defined as under: "3(c): 'ceiling area ' means the extent of land specified in section 4 or section 4 A to be ceiling area.
" It may be mentioned here that the agricultural land was classified into wet land, dry land and so on and appropriate areas were fixed as ceiling in respect of such lands taking into account the nature and yield capacity of the lands in question.
Section 3(i) runs as follows: 224 "3(i): 'holding ' means the entire land held by a person (i) as an owner; (ii) as a limited owner; (iii) as an usufructuary mortgagee; (iv) as a tenant; (v) who is in possession by virtue of a mortgage by condi tional sale or through part performance of a contract for the sale of land or otherwise; or in one or more of such capacities; and the expression 'to hold land ' shall be construed accordingly; Explanation: Where the same land is held by one person in one capacity and by another person in any other capacity, such land shall be included in the holding of both such persons.
" Section 3(m) provides that "notified date" means the date notified under sub section (3) of section 1 on which the said Act came into force.
It may be mentioned that the notified date in respect of the said Act is 1.1.1975.
Very briefly stated, under section 4, the ceiling area in the case of a family unit consisting of not more than five members was prescribed as one standard holding.
Where the family consisted of more than five members, there was, broadly speaking, a proportionate increase in the ceiling area.
Under section 5, the standard holding is fixed taking into account the classification of the land according to the nature of the land.
Sub section (1) of section 7 runs as follows: "7(1).
Special provision in respect of certain transfers, etc.
already made: Where on or after the 24th January, 1971 but before the notified date, any person has transferred whether by way of sale, gift, usufructuary mortgage, exchange, settlement, surrender or in any other manner whatsoever, any land held by him or created a trust of any land held by him, then the burden of proving that such transfer or creation of trust has not been effected in anticipation of, and with a view to avoiding or defeating the objects of any law relating to a reduction in the ceiling on agricultural holdings, shall be on 225 such person, and where he has not so proved, such transfer or creation of trust, shall be disregarded for the purpose of the computation of the ceiling area of such person.
" Very briefly stated, sub section (2) of section 7 pro vides inter alia that any alienation made.
by way of sale, lease for a period exceeding six years, gift, exchange, usufructuary mortgage or otherwise as set out in the said sub section on or after 2nd May, 1972 and before the noti fied date in contravention of the Andhra Pradesh Agricultur al Land (Prohibition of Alienation) Act, 1972 shall be null and void.
The other sub sections also provide that in the various other circumstances set out therein alienations made will be disregarded for purposes of fixation of ceiling.
Section 8 provides, in brief, that every person whose holding on the notified date together with any land trans ferred by him on or after 24th January, 1971 exceeds the specified limits, shall within 30 days from the notified date, namely 1.1.
1975 or such extended period as the Gov ernment may notify in that behalf furnish a declaration in respect of his holding to the competent Tribunal.
Section 9 deals with determination of the ceiling area by the Tribunal constituted under Section 6.
Section 10 deals with the surrender of lands in certain cases.
Sub section (5) of the said section provides that it shall be open to the Tribunal to refuse to accept the surrender of any land as contemplated under sub section (1) or deemed surrender of land as contemplated under sub section (4) of the said section in the circumstances set out in sub section (5).
Section 11 deals with the vesting of surrendered lands.
Section 12 deals with revision and vesting of lands surrendered.
The opening part of that section provides that where any land is surrendered or deemed to have been surren dered under the said Act by any usufructuary mortgagee or a tenant, the possession of such land shall, subject to such rules, as may be prescribed, revert to the owner.
Sub sec tion (4) of section 12 provides that where any land is surrendered or is deemed to have been surrendered under the said Act by any person in possession by virtue of a mortgage by conditional sale or through a part performance of con tract for sale or otherwise the possession of such land shall subject to such rules as may be prescribed, revert to the owner.
Sub section (5 A) make an analogous provision in connection with lands surrendered by limited owners and provides that such surrendered lands shall revert to the person having a vested interest in the remainder.
226 Section 13 makes special provision for the exclusion from the holding of the owner of land belonging to him held by a protected tenant where such land or part thereof stands transferred to the protected tenant under Section 38A of the Andhra Pradesh (Telengana Area) Tenancy and Agricultural Land Act, 1950.
Before going into the merits of the contentions urged and considering the proper interpretation to be given to the relevant sections of the said Act, we cannot lose sight of the fact that the said Act is a piece of agrarian legisla tion enacted with a view to achieve a more equitable distri bution of lands for common good and with a view to subserve the objectives enshrined in Article 39 of the Constitution, being one of the Directive Principles embodied in the Con stitution.
Provisions of such a legislation have to be interpreted liberally and with a view to furthering the object of the legislation and not with a view to defeat the same in a strict and constricted manner in which a taxing law, for instance, might be interpreted.
The main submission of learned counsel for the appel lants is that the expression 'holding ' has been defined in sub section (i) of Section 3 of the said Act, the definition section set out earlier, as meaning the entire land held by a person (emphasis supplied) and that the use of the said word "held" in the definition indicates that the person who is supposed to hold the land, must necessarily be the person in possession of the said land; and hence where, in part performance of an agreement for sale or under a lease, the purchaser or lessee has been put in possession of any land, the owner of the said land cannot any longer be regarded as holding the said land and it cannot be said that the said land is held by him.
It was submitted by learned counsel that in view of this context although the Explanation to sub section (i) of section 3 is very widely worded, its meaning cannot be so extended as to cover a case where the owner of the land is no longer in possession of the land and has parted with the possession thereof under an agreement creating a right, legal or equitable, in the land concerned.
We find it difficult to accept this contention.
Clauses (i) to (v) of subsection (i) of section 3 set out the various capacities in which a person can be said to "hold" land for the purposes of the said Act and among these capacities are "as a usufructuary mortgagee, as a tenant and as one who is in possession by virtue of a mortgage by conditional sale or through part performance of a contract of sale".
The very language of sub section (i) of section 3 indicates that land can be held as contemplated in the said sub section by persons in a number of capacities.
The Explanation in plain language states that the same land can be held by 227 one person in one capacity and by another person in a dif ferent capacity and provides that such land shall be includ ed in the holdings of both such persons.
The Explanation thus clearly contemplates that the same land can be held as contemplated under sub section (i) by one person as the owner and by another person as his lessee or as a person to whom the owner has delivered possession of the land in part performance of an agreement to sell.
On a plain reading of the language used in the Explanation, we find it that it is not possible to accept the submission that only where the land is in possession of a person can that land be regarded as held by him.
Apart from what we have pointed out earlier we find that the question which arises before us in this appeal is al ready covered by the decision of this Court in State of Andhra Pradesh vs Mohd. Ashrafuddin, ; The facts of the case were that out of the total holding of his land the respondent transferred some land to another person under two unregistered sale deeds pursuant to an agreement for sale and gifted.away some land to his son.
In the return submitted by him under the said Act the respondent did not include in his holding the area transferred under the unreg istered sale deeds or the land gifted by him which was in the possession of the purchaser and donee respectively.
The Land Reforms Tribunal ignoring the two transfers computed his holding at 1.7692 standard holding and called upon him to surrender land equivalent to 0.7692 standard holding.
In revision, the High Court held that the land transferred under the two sale deeds could not be included in the hold ing of the respondent for ascertaining the ceiling area.
In coming to this conclusion, the High Court gave the benefit of section 53A of the Transfer of Property Act to the person in possession of the plot pursuant to the contract for sale and treated the land as a part of his holding.
On appeal to this court, a Division Bench comprising three learned Judges of this Court reversed the decision of the High Court and held that the High Court was in error in holding that the land in the possession of the transferee cannot be taken to be a part of the holding of the respondent.
It was held by this Court that the expression "held" connotes both owner ship as well as possession.
In the context of the definition it is not possible to interpret the term "holding" only in the sense of possession.
The Explanation to the definition of the term "holding" clearly contemplates that the same land can be the holding of two different persons holding the land in different capacities, (See page 486).
The Court went on to state that: "It is by now well settled that a person in possession pursuant to a contract for sale does not get title to the land 228 unless there is a valid document of title in his favour.
In the instant case it has already been pointed out that the transferee came into possession in pursuance of an agreement for sale but no valid deed of title was executed in his favour.
Therefore, the ownership remained with the respond ent transferor.
But even in the absence of a valid deed of title the possession pursuant to an agreement of transfer cannot be said to be illegal and the transferee is entitled to remain in possession" The Court went on to observe that: "There may conceivably be cases where the same land is included in holding of two persons in different capacities and serious prejudice might be caused to one or both of them if they were asked to surrender the excess area.
To safe guard the interest of the owners in such a case the legisla ture has made a provision in section 12(4) and (5) of the Act.
Even so there might be cases where some prejudice might be caused to some tenure holders.
" The Court further observed that: "But if the definition of the term 'holding ' is couched in clear and unambiguous language the court has to accept it as it stands.
So construed the same land can be a part of the holding of various persons holding it in different capaci ties.
When the terms of the definition are clear and unam biguous there is no question of taking extraneous aid for construing it.
" The correctness of this decision has been upheld by this court in Begulla Bapi Raju etc.
vs State of Andhra Pradesh etc.
etc., 1 at p. 7 17.
In that case one of the contentions urged on behalf of the petition ers was that land transferred by the petitioners under various transfer deeds to the outsiders and who came in possession also could not be included in the holding of the petitioners.
This argument was negatived by a Bench compris ing three learned Judges of this Court, which followed the decision of this Court in Mohd. Ashrafuddin 's case (supra), and did not accept the plea that the decision in that case required reconsideration.
The question raised for our determination in this appeal is 229 directly covered against the appellant by the decisions of this Court in two cases just referred to by us.
In these circumstances, even assuming that there is another equally plausible view regarding the construction and the legal effect of section 3(i) of the said Act read with Explana tion, that would not necessarily justify our reconsidering the question which has already been decided by this Court, although the decision was rendered by a Bench comprising only three learned Judges of this Court.
In our opinion, unless we find that the decisions in the aforesaid cases are erroneous, it would not be proper on our part to reconsider the same.
Apart from this, as we have pointed out earlier, in our view, considering the clear language of section 3(i) of the said Act read with Explanation to that section, the view taken in Mohd. Ashrafuddin 's case (supra) is, with respect, the correct view, and we are inclined to take the same view on the construction and legal effect of that provision.
Learned counsel for the appellant sought to place reli ance on the decision of a Division Bench of the Andhra Pradesh High Court in The Authorised Officer (LR), Vijayawa da vs Kalyanam China Venkata Narasayya, [1978] 1 A.P. Law Journal 98.
In that case a Division Bench of the Andhra Pradesh High Court took the view that, if the owner of the land has put the transferee in possession of the land in part performance of a contract for sale, such land can be included only in the holding of the transferee and cannot simultaneously be computed in the holding of the transferor as well, for that land is not "held" by him as an "owner".
It could be included in the holding of the transferor only as and when the transferee surrenders that land and that land reverts to the transferor as provided under section 12 of the said Act.
The Division Bench also took the view that the expression "holding" and the expression "held by a person" occurring in section 3(i) of the said Act must be construed as taking in the idea of actual possession and not merely any right, title or interest in the land devoid of actual possession.
In our view, this decision cannot be regarded as laying d,own good law and must be treated as overruled by the decisions of this Court in Mohd. Ashrafud din 's case (supra) and Begulla Bapi Raju 's case (supra).
We cannot lose sight of the fact that the said Act is a piece of agrarian reform legislation passed with a view to effec tively fix a ceiling on agricultural holdings and to achieve equitable distribution of surplus land among the landless and the other deserving persons.
The plain language of section 3(i) read with Explanation supports the view taken by this Court in Mohd. Ashrafuddin 's case (supra).
1t is true that the Division Bench of the Andhra Pradesh High Court in the aforesaid judgment has given certain examples 230 where the interpretation which has been given in Mohd. Ashrafuddin 's case (supra), might lead to some hardship.
That, however, in our opinion, cannot justify restricting the effect of the plain language of the relevant provisions in the manner done by the Division Bench of the Andhra Pradesh High Court.
The Explanation to section 3(i) was incorporated in the said Act because the legislature took the view that, but for such a drastic provision, it would not be possible to effectively implement the provisions of the said Act regarding the acquisition of surplus land and distribution of the surplus land to the landless and the other deserving persons.
It is a notorious fact that there were a large number of cases where agreements for sale or documents for lease in respect of excess lands were executed by owners of lands in excess Of the ceiling area with a view to defeat the provisions of the said Act.
In fact, a perusal of the facts in the cases before us generally lends support to the existence of such a situation.
In these circum stances, if the legislature has used language in section 3(i) and the Explanation thereto which, on a plain reading, shows that in case of land covered under an agreement for sale or an agreement of lease, even though the purchaser or the lessee might be in possession of the land, it would be included in the holdings of both of the purchaser as well as the owner or the lessee and the owner, we see no reason to cut down the plain meaning of the language employed in that provision, merely because that it might possibly result in hardship in few cases.
Moreover we find that, to some ex tent, the legislature has tried to mitigate this hardship by providing that, if the purchaser under the agreement of sale or the lessee has in his holding land in excess of the ceiling area, such excess would revert to the owner of the land.
If the interpretation sought to be put by learned counsel for the appellants, which finds support from the aforementioned decision of the Andhra Pradesh High Court, were correct, we fail to see why such a provision as afore stated for reversion of excess land to the owner should have been made.
It was contended by learned counsel for the appellants that if the construction placed on the said provisions by the judgment of the Division Bench of the Andhra Pradesh High Court in the aforesaid judgment was accepted, it is not as if the object of the said legislation would be defeated because where an agreement for sale or agreement of lease cannot be shown to be bona fide, the land would be included in the holding of the owner.
This circumstance.
however.
is of a little avail.
Where such agreements for sale or of lease are executed in writing and possession is handed over to the purchaser or the lessee, it would be very difficult to show that the transaction was not bona fide although the agreement might well have been executed really with a 231 view to defeat the provisions of the said Act.
We cannot lose sight of the fact that section 3(i) and the Explanation only deals with cases where the transfer of ownership is not complete and the owner does not part completely with his legal interest in the land, so that on the termination of the agreement for sale or agreement of lease without any document being registered, the land would fully revert to the owner.
Moreover, in many cases, it was found that the owner of the land himself continued to cultivate the land claiming that he was doing so on behalf of his son who was the lessee or the purchaser under an agreement.
In these circumstances, we fail to see any reason to cut down the plain meaning of the provisions of section 3(i) and the Explanation thereto.
It was submitted by learned counsel for the appellants that the definition of the word 'holding ' contained in sub section (i) of section 3 was an exhaustive definition and that definition contained in the main section could not be interpreted in the light of the Explanation thereto.
It was submitted by him that the meaning of the term 'holding ' and 'held ' in sub section (i) of section 3 could not be governed by the Explanation.
In support of the contention, reliance was placed on a decision of this Court in Burmah Shell Oil Storage and Distributing Co. of India Ltd. & Anr.
vs The Commercial Tax Officer and Others, at pp.
914 917.
In our opinion, this decision is hardly of any assistance in the matter before us.
It is well settled that the provisions in an Act have to be read harmoniously and in the light of the context in which they occur.
In our opin ion, there can be no quarrel with the reliance being placed on the Explanation in order to understand the meaning of the term "holding" and "held" used in sub section (i) of section 3 of the said Act.
Although some other decisions have been referred to us, we do not think any useful purpose would be served by discussing the same in view of what we have ob served earlier, nor would it serve any purpose to refer to the various examples of ownership set out in the American Jurisprudence to which our attention was drawn.
In the result, in our opinion, there is no merit in the appeal and the same must fail and is dismissed.
Looking to the facts and circumstances of the case, we, however, direct that there will be no order as to costs of the appeal.
The other connected Civil Appeals and Special Leave Petitions have all been directed to be tagged with the aforesaid Civil Appeal disposed of by us as they involve the same points as raised in the said 232 Civil Appeal.
Following our decision, the said Civil Appeals and the Special Leave Petitions are dismissed but with no order as to costs.
In view of the dismissal of all the Appeals and Special Leave Petitions, the Civil Miscellaneous Petitions therein do not survive and all are dismissed with no order as to costs.
Interim orders, if any, are vacated.
Appeals and P.S. S Petitions dismissed.
| IN-Abs | Sub section (i) of section 3 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 defines the expression "holding" as meaning the entire land held by a person as an owner, a limited owner, usufructuary mortga gee, a tenant and as one who is in possession by virtue of a mortgage by conditional sale or through part performance of a contract of sale.
The Explanation thereto states that where the same land is held by one person in one capacity and by another person in any other capacity such land shall be included in the holding of both such persons.
The appellants/petitioners had alienated agricultural lands under agreements of sale and the possession of these lands was delivered in part performance of the said agree ments but no conveyance of the said lands had been executed till the relevant date.
A question arose whether such land could be excluded from the holding of the owner vendor within the meaning of the Act.
The Land Reforms Appellate Tribunal found that the vendees alone were in possession and enjoyment of the respective lands and, therefore, the appel lants could not be said to be holding the said lands.
The High Court held that the lands covered by the agreements of sale have to be included in the holdings of the appellants as well.
In these appeals and special leave petitions filed by them it was contended that use of the word 'held ' in the definition in section 3(i) indicates that the person who is supposed to hold the land must necessarily be the person in possession of the said land and hence where, in part per formance of an agreement of sale or under a lease, the purchaser or lessee has been put in possession of any land, the owner of the said land cannot any longer be regarded as holding the same, and that although the 221 Explanation to sub s.(i) of s.3 was very widely worded, its meaning could not be so extended as to cover a case where the owner of the land had parted with the possession thereof under an agreement creating a right, legal or equitable, in the land concerned.
Dismissing the appeals and the special leave petitions, the Court, HELD: 1.
The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 is a piece of agrarian legislation enacted with a view to achieve a more equitable distribution of land for common good and with a view to subserve the objectives enshrined in Article 39 of the Constitution, being one of the Directive Principles embodied in the Constitution.
Provisions of such a legislation have to be interpreted liberally and with a view to furthering the object of the legislation.
[226B C] 2.1 The very language of sub s.(i) of s.3 indicates that a person can 'hold ' land for the purposes of the Act as an owner, as a limited owner, as a usufructuary mortgagee, as a tenant and as one who is in possession by virtue of a mort gage by conditional sale or through part performance of a contract of sale.
The Explanation thereto in plain language states that the same land can be held by one person in one capacity and by another person in a different capacity and provides that such land shall be included in the holdings of both such persons.
The Explanation thus clearly contemplates that the same land can be "held" as contemplated under sub section (i) by one person as the owner and by another person as his lessee or as a person to whom the owner has delivered possession of the land in part performance of an agreement to sell.
It cannot, ,therefore, be said that only where the land is in possession of a person can that land be regarded as held by him.
1226G 227B] 2.2 The Explanation to section 3(i) was incorporated in the Andhra Pradesh Land Reforms Act because the legislature took the view that, but for such a drastic provision, it would not be possible to effectively implement the provisions of the said Act regarding the acquisition and distribution of the surplus land to the landless and other deserving per sons.
If the legislature has used language in section 3(i) and the Explanation thereto which on a plain reading shows that in case of land covered under an agreement for sale or an agreement of lease, even though the purchaser or the lessee might be in possession of the land, it would be included in the holdings of both of the purchaser as well.as the owner or the lessee and the owner, there is no reason to cut down the plain meaning of the language employed in that provision [230B, C D] 222 State of Andhra Pradesh vs Mohd. Ashrafuddin, ; applied; Begulla Bapi Raju etc.
vs State of Andhra Pradesh etc.
; , referred to.
Burmah Shell oil Storage and Distributing Co. of India Ltd. & Anr.
vs The Commercial Tax Officer & Ors., , distinguished.
The Authorised Officer (LR), Vijayawada vs Kalyanam China Venkata Narasayya, [1978] 1 A.P. Law Journal 98 over ruled.
|
ivil Appeal No. 1659 of 1990.
From the Judgment and Order dated 31.12.
1987 of the Andhra Pradesh Administrative Tribunal, Hyderabad, in Repre sentation Petition No. 3339 of 1987.
K. Madhava Reddy, T.V.S.N. Chari, Ms. Sunita Rao and Ms. Manjula Gupta for the Appellants.
H.S. Guru Raja Rao, Vimal Dave and B. Rajeshwar Rao for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special leave granted.
The respondent in this appeal K. Ratnagiri was at the material 235 time Circle Inspector of Police attached to Sanjeeva Reddy Nagar Police Station, Hyderabad.
In that police station one U. Narasimha died in Police lock up.
Pending prosecution with regard to that offence, the Director General of Police made an order keeping the respondent under suspension.
The order reads: "Shri K. Ratnagiri, Circle Inspector of Police, Sanjiva Reddy Nagar P.S. Hyderabad is placed under suspension with immediate effect in public interest until further orders pending prosecution against him in the case of death of U. Narasimha in Police lock up".
The respondent appealed to the Andhra Pradesh Adminis trative Tribunal.
The Tribunal has set aside the suspension order holding that the respondent shall be deemed to be in service from the date of issue of suspension order.
The Tribunal, however, has reserved liberty to the Government to transfer him to any other Police Station.
It has been held that the order of suspension becomes invalid after the period of six months since the Government did not make a fresh order extending the period of suspension.
It has been further stated that the Director General has no power to keep the respondent under suspension pending investigation of the case against him.
Both these conditions are rested solely on the scope of Rule 13(1) of the A.P. Civil Service (CCA) Rules, 1963.
For immediate reference we may set out the Rule hereunder: 13(1) A member of service may be placed under suspension from service pending investigation or enquiry into grave 'charges, where such suspension is necessary in the public interest.
Provided that where a member of a service has been suspended by an authority other than the Government and the investiga tion has not been completed and the action proposed to be taken in regard to him has not been completed within a period of six months of the date of suspension, the fact shall be reported to the Government, for such orders as they may deem fit.
13.2 to 13.4 xxx xxx xxx 13(5) An order of suspension made or deemed to have been made under this rule may, at any time, be revoked by 236 the authority which made or is deemed to have been made the order or by any authority to which that authority is subor dinate." Rule 13(1) provides power to keep an officer under suspen sion from service pending investigation or enquiry into grave charges, where such suspension is necessary in the public interest.
Proviso thereunder requires the authority who made the order of suspension to report to the Government where the investigation into the charges and the action proposed to be taken against the officer has not been com pleted within the period of six months from the date of suspension.
Upon receipt of the report, the Government may make such orders as they deem fit having regard to the circumstances or development in the case.
Proviso thus imposes only an obligation on the authority to report to the Government, but it does not limit the period of suspension.
It does not state that the suspension order comes to an end by the end of six months.
It may be noted that the suspen sion order is not an interim suspension.
Nor the Rule 13(1) limits its operation only for six months.
Rule 13(5) pro vides that the order of suspension may, at any time, be revoked by the authority who made or is deemed to have been made the order or by any authority to which that authority is subordinate.
That apparently suggests that the order of suspension once made will continue to operate till it is revoked by an appropriate order.
Therefore, there appears to be no justification to contend that the order of suspension would not last beyond six months.
It has been passed by the competent authority who shall report to the Government if the action is not completed within six months.
The Govern ment may review the case and make further or other order but the order of suspension will continue to operate till it is rescinded by an appropriate authority.
Similar was the view expressed by this Court in Civil Appeal No. 1064 of 1990 in Government of A.P.v.
V. Sivaraman, disposed of on 12 January 1990 to which one of us was a party (K. Jagannatha Shetty).
There it was observed: "Where the rules provide for suspending a Civil servant and require thereof to report the matter to the Government giving out reasons for not completing the investigation or enquiry within six months, it would be for the Government to review the case but it does not mean that the suspension beyond six months becomes automatically invalid or non est.
The only duty enjoined by such a rule is that the officer 237 who made the order of suspension must make a report to the Government and it would be for the government to review the facts and circumstances of the case to make a proper order.
It is open to the Government to make an order revoking the order of suspension or further continuing the suspension.
The Order of suspension however, continues until it is revoked in accordance with the law.
" It was also observed: "That the order of suspension will continue till it is revoked, though it is necessary to review the case once in six months in the light of the instruction 18 contained in Appendix VI of the APCS (CCA) Rules, 1963 and the circular of the Chief Secretary dated February 13, 1989.
" The opposite view taken by the tribunal in the instant case therefore, cannot be sustained.
This brings us to the second conclusion reached by the Tribunal to invalidate the order of suspension.
Precisely, it is also rested on the statutory framework of Rule 13(I) coupled with the terms of the order by which the respondent was kept under suspension.
The Tribunal has observed that Rule 13(1) empowers the authority to make an order of sus pension pending investigation or enquiry into charges, but not pending prosecution with regard to the charges.
It seems to us that the Tribunal has taken a hypertech nical view of the matter.
The factual background of the case may now be shortly stated: On 10 July 1986, U. Narasimha died in the police custody of Sanjeeva Reddy Nagar Police Station where the respondent was then working as a Circle Inspector of Police.
Next day morning the infuriated mob attacked the Police Station and there was similar attack at the Bodabanda Outpost in whose limits Narasimha was resid ing.
On the same day, a First Information Report was issued registering the offence of murder but without mentioning the name of any accused.
The accused could not be named since there was then no authentic information as to how U. Nara simha died and who were responsible for his unnatural death.
In order to clear the mist surrounding the incident, on 19 July 1986 the State Government constituted a Commission of Inquiry under Section 3 of the Commission of Inquiry Act, 1952 (Central Act 60 of 1952).
Shri A.D.V. Reddy, retired Judge of the High Court of Andhra Pradesh was constituted as a Single Member 238 of the Commission of Inquiry.
The Commission was asked to find out the circumstances leading to the lock up death of U. Narasimha and to identify the person, if any, responsible for the incident.
The Commission was also required to point out lapses on the part of any authority or person or per sons, in connection with that incident.
On 29 November 1986 the Commission submitted its report indicating certain police officials including the respondent.
It was inter alia observed that the respondent and other police officials have mercilessly beaten and tortured U. Narasimha and that has resulted in his lock up death.
It has been further observed that the officials were also responsible for certain other offences like illegal detention of the deceased, disrobing of Smt.
Chandrakala, the wife of the deceased, house tres pass, misappropriation etc.
The Government after examining the report, has accepted it and decided to initiate prosecu tion against the officers.
The Director General of Police was asked to take immediate action in that regard.
There then the Director General of Police made the order keeping the respondent under suspension pending prosecution against him.
The Rule 13(1) empowers the authority to keep the respondent under suspension pending investigation or enquiry into the criminal charges where such suspension is necessary in the public interest.
When the first information report is issued, the investigation commences and indeed it has com menced when the respondent was kept under suspension.
The order of suspension cannot, therefore, be said to be beyond the scope of Rule 13(1) merely because it has used the word 'prosecution ' instead of investigation into the charges against the respondent.
A wrong wording in the order does not take away the power if it is otherwise available.
The tribunal seems to have ignored this well accepted principle.
In stating this conclusion, we do not of course express any opinion about the need to make a fresh order of suspen sion.
We however make it clear that the original order of suspension need not be given effect to since the respondent has already been reinstated into service and transferred to some other station.
The appeal is accordingly allowed setting aside the order of the Tribunal.
N.P.V. Appeal allowed.
| IN-Abs | The first appellant made an order under Rule 13(1) of the A.P. Civil Service (CCA) Rules, 1963 keeping the re spondent, a Police Inspector, under suspension pending prosecution against him in the case of death of a person in lock up in the Police Station to which the respondent was attached.
The respondent challenged the order before the State Administrative Tribunal.
The Tribunal set aside the suspension order, holding that the order became invalid after six months since the Government had not made a fresh order extending the period of suspension, and that the first appellant had no power to suspend the respondent pending prosecution against him.
Hence the appeal, by Special Leave.
Allowing the appeal, this Court, HELD: 1.1 Rule 13(1) of the A.P. Civil Service (CCA) Rules, 1963 provides power tO keep an officer under suspen sion from service pending investigation or enquiry into grave charges, where such suspension is necessary in the public interest.
Proviso thereunder requires the authority who made the order of suspension to report to the Government where the investigation into the charges and the action proposed to be taken against the officer has not been com pleted within the period of six months from the date of suspension.
Upon receipt of the report, the Government may make such orders as they deem fit having regard to the circumstances or development in the case.
Proviso thus imposes only an obligation on the authority to report to the Government, but it does not limit the period of suspension.
It does not state that the suspension order comes to an end by the end of six months.
The suspension order is not an interim suspension.
Nor Rule 13(1) limits its operation only for six months.
The order of suspension once made will continue 234 till it is revoked by an appropriate order under Rule 13(5).
[236B D] Government of A.P.v.
Sivaraman, Civil Appeal No. 1064 of 1990, decided on January 12, 1990, referred to.
1.2 It is a well accepted principle that a wrong wording in the order does not take away the power if it is otherwise available.
[238E] Rule 13(1) empowers the authority to keep the respondent under suspension pending investigation or enquiry into the criminal charges.
When the First Information Report was issued registering the offence of murder, names of the accused could not be mentioned since there was no authentic information as to how the death occurred and who were responsible for it.
However, after the Commission of Inquiry submitted its report, indicting certain police officials including the respondent, the State Government decided to initiate prosecution against the officers and asked the first appellant to take immediate action in that regard.
Thus, the first appellant made the order keeping the re spondent under suspension pending prosecution against him.
Merely because the word 'prosecution ' has been used instead of 'investigation ', the order of suspension cannot be said to be beyond the scope of Rule 13(1).
The investigation commenced when the First Information Report was issued, and indeed it has commenced when the respondent was kept under suspension.
[237G H; 238B, C D]
|
Appeal No. 301 of 1958.
Appeal by special leave from the judgment and order dated February 21, 1958, of the Madhya Pradesh High Court at Jabalpur in Letters Patent Appeal No. 22 of 1958, against the order dated February 20, 1958, of the said High Court in Misc.
Petition No. 266 of 1957.
M.K. Nambiyar, section N. Andley, J. B. Dadachanji and Rameshwar Nath, for the appellants.
M. Adhikari, Advocate General, Madhya Pradesh and 1.
N. Shroff, for the respondents.
1443 1958.
September 30.
The following Judgments were delivered: DAS C.J.
There are two appellants in this appeal.
The second appellant is the Municipal Committee of Dhamtari constituted under the C. P. and Berar Municipalities Act, 1922 (Act 11 of 1922) and the first appellant is its President having been elected as such on July 10, 1956.
He assumed charge of his office as President on July 27, 1956.
It may be mentioned that he was returned as a Congress candidate but has since been expelled from that party for having contested the last general election as an independent candidate against the Congress candidate.
It appears that there are two factions in the Municipal Committee.
The first appellant alleges that one Dhurmal Daga, a member of the committee belonging to the Congress party was on August 7, 1956, deflected importing within the municipal limits certain cloth without paying the octroi duty.
Dhurmal Daga, on the other hand, alleged that the first appellant was guilty of grave mismanagement of the affairs of the Municipal Committee and went on hunger strike for securing the appointment of a committee to enquire into the misconduct of the first appellant.
Copies of the leaflets containing the demands and charges which are said to have been widely distributed are annexures I and 11 to the present petition.
It appears that several persons and firms also preferred charges against the first appellant, the President of the Municipal Committee.
The Collector, Raipur, personally intervened and persuaded the said Dhurmal Daga to abandon the fast on an assurance that he would look into the matter.
The Collector deputed one Shri N. R. Rana the Additional Deputy Collector to enquire into the complaints of maladministration of the affairs of the Municipal Committee.
By a Memorandum No. K/J N. P. Dhamtari dated August 24, 1956, the said N. R. Rana called upon the first appellant as tile President of the second appellant to give detailed explanation of each complaint, a list of which was enclosed therewith.
A copy of that memorandum along with its 22 enclosures 1444 is annexed to the petition and marked 111.
Annexures IV and V to the petition are copies of the detailed report on the objections and the reply to the charges made against the Municipal Committee submitted from the office of the Municipal Committee by the first appellant as the President of the Municipal Committee.
The Additional Deputy Collector thereafter held the enquiry.
The High Court states that it had " gone through the materials on which the State Government based its action on enquiry into the charges levelled against the Municipal Committee and that the records of the enquiry showed thaton some occasions the petitioner was present duringthe enquiry ".
Thereis no suggestion that the appellants wanted an opportunity to adduce any evidence or were prevented from doing so or that they were in any way hampered in their defence.
Presumably the Additional Deputy Collector had made a report which in due course must have been forwarded to the State Government.
On November 18, 1957, a notification was published in the Official Gazette whereby the State Government, in exercise of the powers conferred on it by section 53 A of the C. P. & Berar Municipalities Act, 1922, appointed one Shri B. P. Jain, the second respondent before us, as the Executive Officer of the Municipal Committee, Dhamtari, for a period of 18 months with certain powers as therein mentioned.
A copy of that notification has been annexed to the petition and marked VIII but as the major part of the arguments can vassed before us turns on the contents of that notification the same is reproduced below in extenso: " Dated, Bhopal, the 18th November, 1957, No. 9262/11538 U XVIII Whereas it appears to the State Government that the Municipal Committee, Dhamtari, has proved itself incompetent to perform the duties imposed on it by or under the Central Provinces and Berar Municipalities Act, 1922 (11 of 1922), inasmuch as it (a)granted grain and building advances to the employees without prior sanction and no efforts were made for their recovery, (b) showed carelessness in cases of embezzlement 1445 of the employees and did not report such cases to Government, (c)failed to control the President who issued orders in cases in which he had no authority (d)spent thousands of rupees on sanitation and other works although there was no provision in the budget, (e)allowed unconcerned persons to interfere in its working, (f)showed partiality in the appointments and dismissals of the employees, further such appointments and dismissals were made against rules, (g)delayed the constitution of the committee and the framing of budget, (h) misused the trucks of the municipality, (i) failed to recover the lease money, (j) shown partiality in the issue of transit passes to certain traders, further excess octroi duty was charged on certain articles and in certain cases where octroi duty is not leviable it was levied just to harass the people, (k)distributed municipal manure to certain persons without any charge, similarly distributed the manure free of cost and used the truck of the municipality for this purpose, (1)failed to control its president who spent the money of the Municipal Committee without any authority, (m)spent huge amount on the maintenance of the roads and drainage but their condition has remained unsatisfactory, (n)failed to give.
copies of the documents as allowed under rules, also failed to allow its members to inspect the records as is permissible under rules, (o)failed to invite tenders of purchase of articles, and whereas, the State Government considers that a general improvement in the administration of the Municipality is likely to be secured by the appointment of a servant of the Government as Executive Officer of the Committee.
Now, therefore, in exercise of the powers conferred by section 53 A of the Central Provinces and Berar 1446 Municipalities Act, 1922 (11 of 1922), the State Government are pleased to appoint Shri B. P. Jain, Deputy Collector, as executive Officer of the Municipal Committee, Dhamtari, for a period of eighteen months from the date of his taking overcharge and with reference to sub section (3) thereof are further pleased to direct that the Executive Officer shall exercise and perform the following powers and duties of the Committee to the exclusion of the Committee, President, Vice President or Secretary, under the provisions of the Central Provinces and Berar Municipalities Act, 1922 (11 of 1922), namely: Chapter 111.
Appointment of Officers and servants Sections 25, 26 and 28.
Chapter IV.
Procedure in Committee meeting Section 31.
Chapter V. Property, contract and liabilities Sections 37 to 45.
Chapter VI.
Duties of Committee Sections 50 and 51.
Chapter VIII.
The municipal fund whole.
Chapter IX.
Imposition, assessment and collection of taxes whole.
Chapter X. Municipal Budgets and accounts whole.
Chapter XI.
Powers to regulate streets and buildings Sections 90 to 94, 96, 98, 99, 103 and 104.
Chapter XII.
Powers to prevent disease and public nuisance Sections 117, 118(1), 119 and 132.
Chapter XVIII.
Offences, practice and procedure Sections 218 223.
Chapter XIX.
Special provisions for recovery of taxes whole.
The Executive officer shall exercise general supervising powers in respect of all matters covered by the Central Provinces and Berar Municipalities Act, 1922 (11 of 1922).
In Hindi (By order of the Governor of Madhya Pradesh) section section Joshi, Deputy Secretary." 1447 On December 21, 1957, the two appellants before us presented before the Madhya Pradesh High Court the writ petition out of which the present appeal has arisen and on January 11, 1958, obtained an order staying the operation of the order of appointment of the Executive Officer.
The writ petition was dismissed on February 20, 1958.
There was a Letters Patent Appeal which was dismissed in limine on February 21, 1958.
The application for certificate under articles 132 and 133 was refused on March 21, 1958.
The present appellants applied for and on April 1, 1958, obtained from this Court special leave to appeal from the judgment of the Madhya Pradesh High Court.
The interim stay order made by this Court was eventually vacated on May 13, 1958.
The appeal has now come up before us for final disposal.
Shri M. K. Nambiar, appearing in support of this appeal, urged three points, namely (i)that though the Notification purports to have been made in exercise of the power,,; conferred on the State Government by section 53 A, in substance and in reality it has been made under section 57 of the Act; (ii)that if the Notification is held to be one made under section 57 it is ultra vires and bad since the statutory requirements of affording reasonable opportunity to explain has not been complied with; (iii)that even if the impugned Notification be held to come within section 53 A it is still ultra vires since before promulgating it the State Government has committed a breach of the rules of natural justice in not giving any opportunity to the appellants to defend themselves.
There was a charge of mala fide made against the State Government founded on the fact that the first appellant 's leaving the Congress party had resulted in ill will towards the first appellant of that party which was the ruling party in the State Government, but as that charge has not been pressed before us nothing further need be said about it.
I now proceed to deal with the three points formulated above by learned counsel for the appellants.
184 1448 Re.
(i) and (ii): These two points are correlated and may be conveniedtly dealt with together.
The argument in support of them is developed in two ways.
In the first place it is said that the grounds set forth in the impugned notification clearly indicate that in substance and in reality it has been issued rather under section 57 of the Act than under section 53 A. In order to appreciate this argument it is necessary to set out the two sections of the C. P. and Berar Municipalities Act, 1922 in extenso: " 53 A. (1) If a committee is not competent to perform the duties imposed on it or undertaken by it by or under this Act or any other enactment for the time being in force and the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the executive officer of the committee, the State Government may, by an order stating the reasons therefor published in the Gazette, appoint such servant as the executive officer of the committee for such period not exceeding eighteen months as may be specified in such order.
(2)Any executive officer appointed under subsection (1) shall be deemed to be an officer lent to the committee by Government under sub section (3) of section 25.
(3)When under subsection (1) an executive officer is appointed for any committee, the State Government shall determine from time to time which powers, duties and functions of the committee, president, vice president or secretary under this Act or any rule or byelaw made thereunder shall be exercised and performed by such officer, in addition to, or to the exclusion of, their exercise and performance by the said committee, president, vice president or secretary.
(4) The secretary of the committee shall be subordinate to the executive officer.
(5) The executive officer shall have the right to attend all meetings of the committee and any joint committee or sub committee and to take part in the discussion so as to make an explanation in regard to 1449 the subject under discusion, but shall not move, second, or vote on any resolution or other motion. " " 57.
(1) If a committee is not competent to perform, or persistently makes default in the performance of, the duties imposed on it or undertaken by it under this Act or any other enactment for the time being in force, or exceeds or abuses its powers to a grave extent, the State Government may, by an order stating the reasons therefor published in the Official Gazette, dissolve such committee and may order a fresh election to take place.
(2)If after fresh election the new committee continues to be incompetent to perform, or to make default in the performance of, such duties or exceeds or abuses its powers to a grave extent, the State Government may, by an order stating the reasons therefor published in the Official Gazette, declare the committee to be incompetent or in default, or to have exceeded or abused its powers, as the case may be, and supersede it for a period to be specified in the order.
(3)If a committee is so dissolved or superseded, the following consequences shall ensue : (a)all members of the committee shall, as from the date of the order, vacate their offices as such members; (b)all powers and duties of the committee may, until the committee is reconstituted, be exercised and performed by such person or persons as the State (Government may appoint in that behalf; (c) all property vested in it shall until the commitee is reconstituted vest in the State Government.
(4)On the expiration of the period of supersession specified in the order, the committee shall be reconsti tuted, and the persons who vacated their offices under sub section (3), clause (a), shall not, by reason solely of such supersession be deemed disqualified for being members.
(5) No order under sub section (1) or subsection (2) shall be passed until reasonable opportunity has been given to the committee to furnish an explanation.
(6) Any person or persons appointed by the State 1450 Government to exercise and perform the powers and duties of a dissolved or superseded committee may receive payment, if the State Government so directs, for his or their services from the municipal fund.
" Learned counsel for the appellants points out that action may be taken under section 53 A " if a committee is not competent to perform the duties imposed on it . . . and the State Government considers that a general improvement in the administration of the municipality is likely to be secured Whereas under section 57 action can be taken not only " if a committee is not competent to perform or persistently makes default in the performance of the duties imposed on it or but also if the committee exceeds or abuses its powers to a grave extent It is pointed out that in case of incompetency action can be taken either under section 53 A or section 57 but in case of abuse of power action can be taken only under section 57.
Reference is then made to the grounds enumerated in the notification itself and it is argued that except perhaps grounds a, b, c and g which may be indicative of incompetency, the other grounds, which are, by far, greater in number, obviously constitute abuse of powers and from this circumstance the conclusion is sought to be drawn that in substance and in reality the impugned notification must have been made under section 57 and that that being so the notification cannot be sustained because of the non compliance with the provisions of sub section
(5) of section 57 which expressly lay down that no order tinder sub section
(1) or (2) shall be passed until reasonable opportunity has been given to the committee to furnish an explanation.
I am not persuaded to uphold this argument.
In the first place it has to be remembered that, the sections under consideration only confer certain powers on the State Government but that the latter is not bound to take any action under either of them.
In the next place it should be noted that the two sections differ materially in their scope and effect.
Under section 53 A the State Government may only appoint a servant of the Government as the Executive Officer of the committee and may determine, from time to time, 1451 which powers and duties and functions of the committee, its president, vice president or secretary shall be exercised and performed by such officer and indicate whether they should be exercised and performed in addition to, or to the exclusion of, their exercise and performance by the said committee, president, vice president or secretary.
The wording of section 53 A makes it quite clear that the action that may be taken thereunder is to be effective for a temporary duration not exceeding 18 months and the purpose of taking such action is to ensure the proper performance and discharge of only certain powers, duties and functions under the Act.
The section does not, in terms, affect, either legally or factually, the existence of the committee, its president, vice president or the secretary.
Section 57, however, authorises the State Government, in the circumstances mentioned in the opening part of that section, to dissolve the committee itself and order a fresh election to take place so that the committee as a legal entity ceases to exist and all the sitting members of the committee become functi officio.
If after such fresh election the same situation prevails, then that section further authorises the State Government to declare the committee to be incompetent or in default or to have exceeded or abused its power as the case may be and to supersede it for such period (not limited by the section) as may be specified in the order.
The effect of an order made under section 57 is, therefore, extremely drastic and puts an end to the very existence of the committee itself and, in view of the grave nature of the consequences that will ensue, the legislature presumably thought that some protection should be given to the committee before such a drastic action was taken and accordingly it provided, by sub section
(5) of that section, that no order should be passed until reasonable opportunity had been given to the committee to furnish an explanation a provision which clearly indicates that action under section 57 can only be taken after bearing and considering all the explanations furnished by or on behalf of the committee.
The legislature did not think fit to provide a similar safeguard in section 53A presumably because 1452 the order under the last mentioned section was of a temporary duration, was not very drastic and did not threaten the very existence of the committee.
A cursory reading of the two sections will also indicate that the conditions precedent to the exercise of the powers under both sections overlap to some extent, namely, that action can be taken under both if the committee "is not competent to perform the duties imposed on it. .
To the extent that the requirements of the two sections overlap the State Government has the option of taking steps under one section or the other according to its own assessment of the exigencies of the situation.
The position, therefore, is that if a committee is not competent to perform the duties imposed on it the State Government has to make up its mind as to whether it should take any action all and, if it thinks that action should be taken, then it has further to decide for itself as to which of the two sections it would act under.
If the State Government considers that the incompetency does not run to a grave extent and the exigencies of the situation may be adequately met by appointing an Executive Officer for a short period not exceeding 18 months with certain powers to be exercised by him, either in addition to or in exclusion of their exercise by the committee, the president, vice president or the secretary, the State Government may properly take action under section 53 A.
On the other hand if the State Government considers, having regard to all the circumstances of the case, that the incompetency is much too grave to permit the committee, its president, vice president or the secretary to function at all, it may take action under section 57 and dissolve the committee and direct fresh election to take place.
In other words incompetency on the part of the committee gives to the State Government an option to apply one of two reme dies under the Act, if, that is to say, it considers it necessary to take action at all.
What, then, is the position here ? Certain charges had been made in writing against the committee and its president which were forwarded to the president with a request to submit explanations in detail.
The 1453 president, acting in his official capacity, gave detailed explanations in writing and sent the same officially from the office of the municipal committee to the Additional Deputy Collector who was deputed by the Collector to hold the enquiry.
The Additional Deputy Collector held the enquiry during which the president appeared in person on several days and came to certain findings and presumably made his report which in due course must have reached the ;State Government.
The State Government apparently accepted such of those findings as have been set out in the notification it self Even according to learned counsel for the appellants some of those findings amount only to incompetency and the rest, he contends, amount to abuse of power.
I need not pause to Consider whether the abuse of power thus found was of a grave nature so as to fall within section 57 as such or was of a minor character so as to be evidence of mere incompetency Taking the position to be as contended by learned counsel for the appellants the position was that, as a result of the enquiry, the State Government found two things against, the appellant committee, namely, (i) that it was guilty of incompetency and (ii) that it was also guilty of certain abuses of power.
I have already stated that the State Government was not obliged to take any action at all either under section 53 A or under section 57.
If the State Government considered that it was necessary to take action, it was entirely for the State Government to consider whether it would take action for incompetency or for abuse of power.
In the present case the State Government might have thought that the abuse of power so found was not of a very grave nature but evidenced only incompetency.
Surely a committee which abused its power might also have been reasonably regarded as incompetent to perform the duties imposed on it That apart, supposing the committee was guilty of incompetency as well as of some abuses, what was there to prevent the State Government, as a matter of policy, to take action for incompetency under section 53 A ? The mere inclusion of the findings of abuse of power in the catalogue of the Committee 's 1454 misdeeds does not obliterate the findings on incompetency.
I see nothing wrong in the State Government telling the committee: " You have been guilty of incompetency as well as of abuse of power; but I shall not, just at this moment, take drastic action of ' dissolving you outright, but shall be content to take action and appoint an Executive officer for 18 months and confer some power on him under section 53 A".
In my judgment the State Government was well within its tights, in exercise of its option, to take action, under section 53 A as it has in terms purported to do.
To say that because some of the findings amount to abuse of power the State Government must act under section 57 is to deprive it of its discretion which the Act undoubtedly confers on it.
In my view the fact that the impugned notification records, apart from the findings of incompetency, certain findings of abuse of power, does not lead to the conclusion, as contended for the appellants, that the State Government had taken action under section 57 and not under section 53 A although, in terms, it says it acted under the last mentioned section.
Learned counsel for the appellants in support of his contention that the impugned notification was really made under section 57 of the Act, refers us to the, powers and duties conferred on the executive Officer thereby appointed to be exercised and performed by him to the exclusion of the committee, its president, vicepresident, or the secretary.
His argument is that although the municipal committee is not ostensibly dissolved, it is in effect and in reality so dissolved, for the substance of the powers of the committee, its president, vice president or the secretary has been taken away from them leaving only a semblance of power which is nothing but mere husk and the conclusion urged by learned counsel is that the impugned notification must be regarded as having been made under section 57.
In the first place, section 57 does not contemplate the appointment of any executive Officer or the conferment of any power on him, while such appointment and conferment of power is directly contemplated by section 53 A.
In the second place the legal 1455 existence of the municipal committee and the status of its members and its president, vice president or the secretary have not been impaired at all.
In the eye of the law the municipal committee still exists and along with it the members of the committee, the president, vice president and the secretary still hold their respective offices.
These features clearly militate against the suggestion that action has been taken under section 57.
Learned counsel says that we must look beyond mere form and get to the substance of the matter.
There can be no doubt that most of the important powers have been taken away from the committee, its president, vice president and the secretary, but that may well be due to the degree of gravity of the incompetency found or inferred from the other findings.
Further, a cursory perusal of the Act and of the notification will show that various other powers and duties have not been taken away from the committee or conferred on the Executive Officer.
Thus the powers of the committee under sections 128, 130, 131, 133 to 141 and 144, 145 arid 147 to 149 are still vested in and are exercisable by the committee.
Likewise the powers under sections 120, 121, 122, 123 to 127, 129, 150, 152 to 160 to 162, 163, 163A and 168 are still vested in and exercisable by the president.
These powers that are still left with the committee or the president can hardly or with propriety be described as mere husks.
It should not be overlooked that the suggestion that the real power has been taken away leaving only a semblance of it, is really ail argument in aid of a charge of mala fides, but, as here in before stated, the charge of mala fides or fraud on the part of the State Government has not been persisted in or pressed before us.
In my judgment, therefore, there is no warrant for contending that the impugned notification, judged by its eftect, must be regarded as having been made under section 57 of the Act.
In this view of the matter the argument of invalidity of the action founded on non compliance with the requirements of sub section
(5) of section 57 does not arise for consideration at all.
I85 1456 Re.
(iii): In the writ application, out of which this appeal arises, the principal prayer of the appellants is for a writ in the nature of certiorari for quashing the order passed by the State Government on November 18, 1957.
Tile next prayer which is for a writ of mandamus restraining the respondents from giving effect to the impugned order is clearly conse quential on or ancillary to the main prayer.
The last prayer is in the nature of the usual prayer for further or other reliefs.
Therefore the present petition is essentially one for the issue of a writ of certiorari.
The writ of certiorari is a well known ancient high prerogative writ that used to be issued by the Courts of the King 's Bench to correct the errors of the inferior Courts strictly so called.
Gradually the scope of these writs came to be enlarged so as to enable the Superior Courts to exercise control over various bodies which were not, strictly speaking, Courts at all but which were, by statute, vested with powers and duties that resembles those that were vested in the ordinary inferior Courts.
The law is now well settled that a writ of certiorari will lie to control such a statutory body if it purports to act without jurisdiction or in excess of it or in violation of the principles of natural justice, or commits any error apparent on the face of the records, provided that, on a true construction of the statute creating such body, it can be said to be a quasi judicial body entrusted with quasi judicial functions.
It is equally ",well settled that certiorari will not lie to correct the errors of a statutory body which is entrusted with purely administrative functions.
It is, therefore, necessary to ascertain the true nature of the functions entrusted to and exercised by the State Government under section 53 A of the Act.
In Province of Bombay vs Kusaldas section Advani this Court has discussed at considerable length the nature of the two kinds of act, judicial and administrative, and has laid down certain tests for ascertaining whether the act of a statutory body is a quasijudicial actor an administrative act.
It will, therefore, (1) ; 1457 suffice to refer to the celebrated definition of a quasi judicial body given by Atkin L. J. as he then was, in Rex vs Electricity Commissioners and which now holds the field.
It runs as follows " Whenever any body of persons having legal authority to determine questions affecting rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King 's Beneh Division exercised in these writs.
" This definition was accepted as correct in Rex vs London Count?/ Council (2 ) and many subsequent cases both in England and in this country.
It will be noticed that this definition insists on three requisites each of which must be fulfilled in order that the act of the body may be said to be quasi judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially.
Since a writ of certiorari can be issued only to correct the errors of a court or a quasi judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statute is a quasi judicial act or an administrative act is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition in the definition given by Atkin L. J. Therefore in considering whether in taking action under section 53 A the State Government is to be regarded as functioning as a quasi judicial body or a mere administrative body it has to be ascertained whether the statute has expressly or impliedly imposed upon the State Government a duty to act judicially.
Relying on paragraphs 114 and 115 of Halsbury 's Laws of England, 3rd Edition, Volume 11, at pages 5558 and citing the case of R. vs Manchester Legal Aid Committee (1), learned counsel for the appellants contends that where a statute requires a decision to be arrived at purely from the point of view of policy or (1) (3) [1952] 2 (2) 413.
1458 expediency the authority is under no duty to act judicially.
He urges that where, on the other hand, the order has to be passed on evidence either under an express provision of the statute or by implication and determination of particular facts on which its jurisdiction to exercise its power depends or if there is a proposal and an opposition the authority is under a duty to act judicially.
As stated in paragraph 115 of Halsbury 's Laws of England, Volume 1 1, at page 57, the duty to act judicially may arise in widely differing circumstances which it would be impossible to attempt to define exbaustively.
The question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular statute with the assistance of the general principles laid down in the judicial decisions.
The principles deducible from the various judicial decisions considered by this Court in the Province of Bombay vs K. section Advani (1) at page 725 were thus formulated, namely: " (i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasijudicial act; and (ii)that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi judicial act provided the authority is required by the statute to act judicially.
" It is clear that in the present case there is no question of any contest between two contending parties which the State Government is, under section 53 A, to decide and, (1)[1950] S.C.R. 621.
1459 therefore, there is no " lis " in the sense in which that word is understood generally, and the principle referred to under the first heading has no application.
We have, therefore, to consider whether the case comes within the principle enunciated under the second head, namely, whether the C. P. and Berar Municipalities Act, 1922, requires the State Government to act judicially when taking action under section 53 A. Learned counsel for the appellant draws our attention to the language in which section 53 A is couched.
He concedes that the ultimate order under that section is purely discretionary, that is to say the State Government is not obliged to take any action tinder the section.
It may make an order Tender the section or it may not according as it thinks fit.
But in case the State Government chooses to act under the section, it can only do so if the conditions therein laid down are fulfilled.
A cursory reading of section 53 A will show that there are two prerequisites to be satisfied before the State Government can take action under section 53 A, namely, (1) that the municipal committee is not competent to perform the duties imposed on it and (2) that the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the Executive Officer of the committee.
When both these conditions are fulfilled, then and then only may the State Government take action and make an order under section 53 A. Of the two conditions the second one, by the very language in which it is expressed, is left entirely a matter for the State Government to consider, for it depends entirely on the view of its own duty and responsibility that the State Government may take on a consideration of the situation arising before it.
In other words, the statute has left that matter to the subjective determination of the State Government.
The first requisite, however, is an objective fact, namely, whether the committee is or is not competent to perform the duties imposed on it.
The determination of that fact, it is pointed out, has not been left to the subjective determination by 1460 the State Government.
Learned counsel for the appellants urges that if it were intended to leave the determination of this fact of incompetency also to the subjective opinion of the State Government, the section would have been framed otherwise.
It would have said something like this: " If the State Government considers that a committee is not competent to perform the duties and that the general improvement in the administration of the municipalities is likely to be secured by This the Legislature has not done and has, thus, clearly evinced an intention not to leave it to the ipse dixit of State Government.
Section 53 A, it is pointed out, differs materially in this respect from section 3 of the Bombay Land Requisition Ordinance (V of 1947) which was considered by this Court in Kusaldas Advani 's casc (1).
That section of the Bombay ordinance opened with the words: " If in the opinion of the Provincial Government which were taken as indicative of the Legislature 's intention to leave the determination of the existence of all the conditions precedent entirely to the subjective opinion of the Provincial Government so as to make the action a purely administrative one.
The argument is that the first requirement is the finding of a fact which may be called a jurisdictional fact, so that the power under section 53 A can only be exercised when that jurisdictional fact is established to exist.
The determination of the existence of that jurisdictional fact, it is contended, is not left to the subjective opinion of the State Government and that although the ultimate act is an administrative one the State Government must at the preliminary stage of determining the jurisdictional fact act judicially and determine it objectively, that is to say, in a quasi judicialay.
It is assumed that whenever there has to be a determination of a fact which affects the rights of the parties, the decision must be a quasijudicial decision, so as to be liable to be corrected by a writ of certiorari.
In Advani 's case (1) Kania C. J. with A hom Patanjali Sastri J. agreed, said at page 632 : " The respondent 's argument that whenever there (1) ; 1461 is a determination of a fact which affects the rights of parties, the decision is quasi judicial, does not appear to be sound." Further down the learned Chief Justice said determined by an objective test and when that decision affects rights of someone, the decision or act is quasi judicial.
This last statement overlooks the aspect that every decision of the executive generally is a decision of fact and in most cases affects the rights of someone or the other.
Because an executive authority has to determine certain objective facts as a preliminary step in the discharge of an executive function, it does not follow that it must determine those facts judicially.
When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari.
" To the like effect is the following observation of Fazl Ali J. in the same case at page 642: " The mere fact that an executive authority has to decide something does not make the decision judicial.
It is the manner in which the decision has to be arrived at which makes the difference, and the real test is: Is there any duty to decide judicially ? As I have already said, there is nothing in the Ordinance to show that the Provincial Government has to decide the existence of a public purpose judicially or quasi judicially.
" Dealing with the essential characteristics of a quasi judicial act as opposed to an administrative act, I said at page 719: features.
Thus a person entrusted to do an administrative act has often to determine questions of fact to enable him to exercise his power.
He has to consider facts and circumstances and to weigh pros and cons in his mind before he makes up his mind to exercise his power just as a person exercising a judicial or 1462 quasi judicial function has to do.
Both have to act in good faith.
A good and valid administrative or executive act binds the subject and affects his rights or imposes liability on him just as effectively as a quasijudicial act does.
The exercise of an administrative or executive act may well be and is frequently made dependent by the Legislature upon a condition or contingency which may involve a question of fact, but the question of fulfilment of which may, nevertheless, be left to the subjective opinion or satisfaction of the executive authority, as was done in the several Ordinances, regulations and enactments considered and construed in the several cases referred to above.
The first two items of the definition given by Atkin L. J. may be equally applicable to an administrative act.
The real test which distinguishes a quasi judicial act from an administrative act is the third item in Atkin L. J. 's definition, namely, the duty to act judicially.
" I found support for my opinion on the following passage occurring in the judgment of Lord Hewart C. J. in B. vs Legislative Committee of the Church Assembly (1): " In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be super added to that characteristic the further characteristic that the body has the duty to act judicially.
" The above passage was quoted with approval by Lord Radcliffe in delivering the judgment of the Privy Council in Nakkuda Ali 's case I now proceed to apply the principles discussed above to the facts of the present case.
The simple fact that the incompetency of the committee goes to the root of the jurisdiction of the State Government to exercise its power under section 53 A does not require that that fact must be determined judicially.
The sole question is, does the statute require the State Government to act judicially.
There need not be any express provision that the State Government must act judicially.
It will be sufficient if this duty may be (1) , 415.
(2) 1463 implied from the provisions of the statute.
The mere fact that a question of fact has to be determined as a preliminary condition before action can be taken under the statute by itself does not carry that implication.
There must be some indication in the statute as to the manner or mode in which the preliminary fact is to be determined.
I find nothing in section 53 A which in terms imposes any duty on the State Government to act judicially.
No form of procedure is laid down or even referred to from which such a duty could be inferred.
On the contrary, one finds a signi ficant omission of any provision like that embodied in sub section (5) of section 57 which requires that no order under that section shall be passed until reasonable opportunity has been given to the committee to furnish an explanation.
It is also material to note that whereas an order under section 57 is of a permanent character the one to be made under section 53 A is to be of a limited duration, i.e., for such period not exceeding IS months as may be specified in such order.
Further, section 53 A contemplates swift action and a judicial hearing may easily frustrate the very purpose contemplated by section 53 A, for a judicial act will be subject to the powers of superintendence of the superior courts and the operation of the order under section 53 A may be postponed, as it has been done in this very case, by taking, the matter from court to court until it is set at rest by this Court.
In this connection reference may also be made to section 25 A of the Act which authorises the State Government to require the committee to appoint, inter alia, a Chief Executive Officer.
If such committee fails to comply with the requisition within the period specified, the State Government may, under sub section
(3), if it thinks fit, appoint such officer and fix his pay and allowance.
Sub section (4) authorises the State Government to require the committee to delegate to the officer so appointed such powers, duties and functions of the committee, its president, vice president or the secretary under this Act or any rule or bye law made thereunder as may be specified in such requisition and if the committee fails to comply with such requisition within a reasonable time, the State Government 186 1464 may determine the powers, duties and functions which shall be exercised and performed by such officer in addition to or to the exclusion of their exercise or performance by committee, its president, vice president or secretary.
Nobody will say that the State Government must exercise the powers under section 25 A after holding any judicial enquiry.
The only difference in the language of section 25 A and section 53 A both of which were inserted in the Act in 1947 is that action can be taken under section 53 A only when the committee is incompetent to perform the duties imposed on it a fact the determination of which is not in so many words left to the subjective opinion of the State Government, whereas action can be taken under section 25 A on the satisfaction of the State Government as to certain facts which is, in terms, left to the subjective determination of the State Government.
If, as I have said, the determination of a jurisdictional fact is not by itself sufficient to indicate that, it has to be done judicially, there is nothing else in section 53 A or in any other section of the Act which will lead to the conclusion that the State Government must act judicially.
The only other thing strongly relied on by learned counsel for the appellants is that the State Government may exercise its power under section 53 A " by an order stating reasons therefor published in the Gazette ".
The requirement that the State Government must give reasons for the order it makes does not necessarily require it to record a judgment judicially arrived at.
The legislature might well have thought that public policy required that the State Government entrusted with large administrative power should record its reasons for exercising the same so as to allay any misgivings that may arise in the mind of the public.
In my judgment, the action taken by the State Government under section 53 A is not a judicial or quasi judicial act but is an administrative act.
Learned counsel for the appellants relied on the case of Capel vs Child (1).
That decision clearly went upon the construction of the statute that came up for consideration.
The fact that action could be taken under that statute on affidavits (1) 2 Cr. & Jr, 558; 37 R. R. 761.
1465 was construed as a clear indication that the Bishop had to arrive at a decision as to the negligence of the Vicar on hearing evidence adduced before it by affidavit which led to the next conclusion that the Vicar must be given an opportunity of being heard and of adducing evidence in his own defence.
From this circumstance it was inferred that even when the Bishop acted on his knowledge of fact he must also proceed, judicially, for the two modes of procedure were treated on the same footing by the section itself.
As I have said, there is nothing in section 53 A or any other sec tion which may lead us to infer a duty to proceed judicially as was done in that case.
On the contrary there are indications leading to a different conclusion.
To say that action to be taken under section 53 A is an administrative action is not to say that the State Government has not to observe the ordinary rules of fair play.
Reference to the observation made by Fortesque J. in Dr. Bentley 's case about God asking Adam and Eve whether they had eaten the forbidden fruit appearing in the judgment of Byles J. in Cooper vs The Wandsworth Board of Works (1) is apposite.
The decision in the last mentioned case clearly establishes that in some cases it may be necessary to give an opportunity to a party to have his say before at) administrative action is taken against him.
But that is quite different from the well ordered procedure involving notice and opportunity of hearing necessary to be followed before a quasi judicial action, open to correction by a superior court by means of a writ, of certiorari, can be taken.
The difference lies in the manner and mode of the two procedures.
For the breach of the rules of fair play in taking administrative action a writ of certiorari will not lie.
I have already recounted the events and proceedings that preceded the actual passing of the order under section 53 A.
If the action taken tinder that section is to be regarded as an administrative action, as I hold it should be, then I have no doubt that the appellants have had more than fair play.
It is said that the State Government did not hold any enquiry before (1) ; ; 1466 making the order and that, therefore, it can not be said that the appellants had an opportunity to defend themselves against an order of this kind.
I do not consider that there is any substance in this contention.
If the State Government wanted to hold any enquiry it would do so through some of its officers.
Who would be more appropriate and competent to hold the enquiry except the officers on the spot ? The Additional Deputy Collector is obviously the person to whom the duty of enquiry could properly be entrusted.
All the charges levelled against the appellants were forwarded to them, and they submitted explanation.
The first appellant, who is the President, personally attended many of the sittings.
There is no suggestion that they had been prevented from adducing evidence in their own defence, The enquiry was held into what had been alleged against their conduct.
It was surely not a purposeless enquiry.
As a result of the enquiry certain findings were arrived at which were accepted by the State Government and an order was made under section 53 A.
I do not see what grievance the appellants can possibly have.
In my judgment there has been no remissness on the part of the State Government.
For reasons stated above I would dismiss this appeal.
BHAGWATI J. .I also agree that the appeal should be dismissed with costs but would like to add a few words of my own.
I have had the benefit of reading the judgments prepared by my Lord the Chief Justice, Kapur J. and Subba Rao J.
I agree with the reasoning and the conclusions reached in those judgments in regard to points Nos.
(i) & (ii), viz., (i)that though the Notification purports to have been made in exercise of the powers conferred on the State Government by section 53 A, in substance and in reality it has been made under section 57 of the Act; and, (ii)that if the Notification is held to be one made under section 57 it is ultra vires and bad since the statutory requirement of affording reasonable opportunity to explain has not been complied with.
1467 In regard to point No. (iii), viz., (iii)that even if the impugned Notification be held to come within section 53 A it is still ultra vires since before promulgating it the State Government has committed a breach of the rules of natural justice in not giving any opportunity to the appellants to defend themselves, however, there is a difference of opinion between my Lord the Chief Justice and Kapur J. on the one hand, and Subba Rao J. on the other, as to the character of the act performed by the State Government while arriving at the conclusion that the Committee is not competent to perform the duties imposed on it or undertaken by it.
Whereas the former are of the view that in arriving at such conclusion the State Government performs only an administrative function, the latter is of the view that the fact whether the committee is not competent to perform the duties imposed on it or undertaken by it is a jurisdictional fact and in arriving at that conclusion the State Government performs a quasi judicial function.
In my opinion, the determination of the question whether the State Government performs an administrative or a quasi judicial function in the matter of arriving at such conclusion is immaterial for the purposes of this appeal, inasmuch as an inquiry had been instituted by the State Government in the matter of the charges levelled against the appellants and full opportunity had been given to them to defend themselves.
I need not add anything in this regard to what has been said by my Lord the Chief Justice in the judgment just delivered by him.
I only wish to say that the circumstances adverted to therein amply demonstrate that the appellants had notice of the charges which had been levelled against them and had rendered full explanation in regard to the same, and, in the matter of the inquiry in regard to those charges the principles of natural justice had been complied with and the conclusion reached by the State Government in the matter of the incompetence of the committee was unassailable.
That being so, I would prefer not to express any opinion on the vexed question as to whether the act 1468 performed by the State Government is quasi judicial or administrative in character.
The result, however, is the same and I agree with the order proposed dismissing the appeal with costs.
S.K. DAS J. I agree generally with the conclusions reached by my Lord the Chief Justice and the reasons on which those conclusions are founded.
But I wish to add a few words with regard to the third question, namely, if in making the impugned notification, the State Government violated the principles of natural justice.
The answer to that question depends on whether on a true construction of the relevant statute, the State Government performed an administrative function or what has been called a quasi judicial function in making the impugned notification.
I am of the view that the action taken by the State Government under section 53 A of the Act is in its true nature an administrative act.
It is said that where there is ' a duty to act judicially ', the function is quasijudicial: that however does not help us very much in understanding the distinction between an administrative function and a quasi judicial function.
Where the statute clearly indicates that the function is judicial, there is little difficulty.
The difficulty arises in cases where the point taken is that by necessary implication the statute requires an administrative body or executive authority to act judicially.
It is indeed Generally correct to say that where an administrative body or authority is under a duty to act judicially, its function is judicial or quasi judicial.
But it is, to some extent, a tautology to say that the function is judicial or quasi judicial if it is to be done judicially.
To get to the bottom of the distinction, we must go a little deeper into the content of the expression 'duty to act judicially '.
As has been repeated so often, the question may arise in widely differing circumstances and a precise, clear cut or exhaustive definition of the expression is not possible.
But in decisions dealing with the question several tests have been laid down; for example 1469 (i) whether there is a lis inter partes (ii) whether there is a claim (or proposition) and an opposition; (iii)whether the decision is to be founded on the taking of evidence or on affidavits; (iv)whether the decision is actuated in whole or in part by questions of policy or expediency, and if so, whether in arriving at the decision, the statutory body has to consider proposals and objections and evidence; and (v)whether in arriving at its decision, the statutory body has only to consider policy and expediency and at no stage has before it any form of lis.
The last two tests were discussed and considered in R. vs Manchester Legal Aid Committee (1).
It is fairly clear to me that tests (i) to (iv) are inappropriate in the present case by reason of the provisions in section 53 A ,is contrasted with section 57 and other sections of the Act.
The test which is fulfilled in the present case is test (v), and that makes the function under section 53 A a purely administrative function in spite of the requirement of an initial determination of a jurisdictional fact and the recording of reasons for the decision.
I am content to rest my decision on the aforesaid ground, as I am not satisfied that the enquiry held by the Deputy Collector was a proper enquiry if it be held that section 53 A entrusts a quasi judicial function to the State Government and therefore requires compliance with the principles of natural justice.
That enquiry was for a different purpose altogether, the charges were not the same, and in my view the Municipal Committee had no real opportunity of meeting the charges on which the State Government ultimately took action.
I prefer, therefore, to base my decision on the third question on the short ground that the function which the State Government exercised under section 53 A was administrative in nature and it is settled law that such action is not amenable to a writ of certiorari.
On the first two questions I am in entire agreement (1)[1952] 2 Q.B. 4I3.
1470 with my Lord the Chief Justice and have nothing useful to add.
KAPUR J.
This appeal pursuant to special leave of this Court is directed against the judgment and order of the Madhya Pradesh High Court.
The appellants are the Municipal Committee of Dhamtari and its President Radheshyam Khare who are challenging the order of the State Government of Madhya Pradesh appointing an Executive Officer of the Municipal Committee under section 53 A of the C. P. & Berar Municipalities Act (Act 11 of 1922) to be termed in this judgment, the Act.
The facts leading to this appeal are that one Dhurmal Daga who was a member of the Dhamtari Municipal Committee (appellant No. 2) was found importing cotton into the municipal area without paying octroi duty.
He then went on hunger strike and also distributed pamphlets making allegations against both the appellants.
At this stage the Collector of Raipur district personally intervened and persuaded Dhurmal Daga to break his fast on an assurance that he (the Collector) would look into his allegations.
In pursuance of that assurance Mr. Rana, Deputy Collector held an enquiry and called the explanation of tile Municipal Committee and its President and submitted his report on November 22, 1956, which was forwarded to the State Government on April 24, 1957.
The State Government thereupon took action under section 53 A of the Act and by a notification dated November 18, 1957, appointed a Deputy Collector B. P. Jain respondent No. 3 as Executive Officer of the Dhamtari Municipal Committee for a period of 18 months on the ground that the Municipal Committee was incompetent in the performance of its duties under the Act.
The relevant part of the notification was as follows: " Whereas it appears to the State Government that the Municipal Committee, Dhamtari, has proved itself incompetent to perform the duties imposed on it by or under the Central Provinces and Berar Municipalities Act, 1922 (11 of 1922), inasmuch as it (a) granted grain and building advances to the I 1471 employees without prior sanction and no efforts were made for their recovery, (b)showed carelessness in cases of embezzlements of the employees and did not report such cases to Government, (c)failed to control the President who issued orders in cases in which he had no authority, (d)spent thousands of rupees on sanitation and other works although there was no provision in the budget, (e)allowed unconcerned persons to interfere in its working, (f)showed partiality in the appointment and dismissals of the employees, further such appointments and dismissals were made against rules, (g)delayed the constitution of the committee and the framing of budget, (h) misused the trucks of the municipality, (i) failed to recover the lease money, (j) shown partiality in the issue of transit passes to certain traders, further excess octroi duty was charged on certain articles and in certain cases where octroi duty is not leviable it was levied just to harass the people, (k)distributed municipal manure to certain persons without any charge, similarly distributed the manure free of cost and used the truck of the municipality for this purpose, (1)failed to control its president who spent the money of the municipal Committee without any authority, (m)spent huge amount on the maintenance of the roads and drainage but their condition has remained unsatisfactory, (n)failed to give copies of the documents as allowed under rules, also failed to allow its members to inspect the records as is permissible under rules, (o) failed to invite tenders of purchase of articles.
" This order of the State Government was challenged under article 226 in the Madhya Pradesh High Court on the allegation that the order passed by the State Government constituted 187 1472 " a flagrant abuse of the powers conferred under section 53 A of the Municipalities Act.
The charges enumerated in the notification were never framed.
The State Government did not serve any notice on the Municipal Committee or its President to show cause against the charges nor were they afforded any opportunity to have their say in the matter.
" The appellants submitted that the finding about the incompetency of the committee was vitiated because no enquiry was held and there was no evidence in support thereof and the order was void and inoperative because (1)" there is non observance of the mandatory provisions.
The power has not been exercised within the limits prescribed.
(2) there is no determination of the basic facts.
(3) there is a violation of the rules of natural justice.
(4) the action is mala fide.
" The respondents denied the allegations and submitted that the State Government made the order under section 53 A of the Act on the report of Mr. Rana, Deputy Collector who held an enquiry into the allegations made against the appellant under the orders of the Collector of Raipur; that proper notice was given to the Secretary of the Municipal Committee which filed its Written Statement through its President appellant No. 1 who appeared personally during the proceedings of the enquiry, but no opportunity for " leading any evidence" was demanded by the appellant nor was it denied.
They also pleaded that no formal enquiry was required under the law and that the Court could not go into the sufficiency or otherwise of the reasons for taking action " and the same will not be enquired into by the Court objectively.
" A learned Single Judge of the High Court dismissed the petition holding that whatever be the position under section 57, under section 53 A no explanation was required to be called from the municipal committee and the State Government was authorised under the law to act promptly.
The High Court negatived the allegation that the State Government had proceeded against 1473 the Municipal Committee, appellant No. 2, at the instance of Dhurmal Daga.
The learned Judge said: " I have gone through the material on which the State Government based its action on enquiry into the charges levelled against the municipal committee and find that there were several other complaints besides those made by Dhurmal Daga.
The record of the enquiry shows that on some occasions the petitioner was present during the enquiry.
I am satisfied that the invocation of the power of this Court under article 226 of the Constitution is not open to the present petitioner ".
A Letters Patent appeal against this judgment was dismissed on February 21, 1958.
The appellants have come in appeal to this Court by special leave and have raised four points before us: (1)That the notification though it purports to be under section 53 A of the Act is really under section 57 which is shown by the grounds given in the notification, the powers vested in the Executive Officer and by the effect of the order ; (2)and if it is a notification under section 57 it is ultra vires because the statutory requirements of the section had not been complied with; (3) even if the notification be held to be under s.53 A of the Act it was still null and void and inoperative as it violated the principles of natural justice and (4)that the order made was mala fide inasmuch as it had been passed with an ulterior object of taking away the control of the municipality from the lndependent Party which was in a majority and that this was in accordance with the policy adopted by the State Government of superseding or suspending municipalities which were not controlled by the Congress Party.
As further proof of the mala fides of Res pondent No. 1, the State Government, it was alleged that Radheshyam Khare appellant No. 1 was expelled from the Congress Part for six years in about March 1957 because he stood as an Independent 1474 candidate for election to the Lower House of Parliament in the 1957 elections.
The allegation of mala fides was not seriously pressed nor is there any material to sustain it.
In order to decide the other questions raised in this appeal it is necessary to examine the scheme of the Act and its provisions relating to the powers of the State Government in regard to municipal committees.
Chapter I of the Act makes provisions for the constitution of municipalities.
Section 4 empowers the State Government to signify by notification it, , intention to declare a local area to be a municipality, to alter its limits or to withdraw the whole of it from a municipality.
Section 5 gives the right to the inhabitants of such local area to file objections against anything contained in the notification within a period of 6 weeks and after consideration of such objections if any, the State Government can confirm, vary or reverse its notification under section 4.
Sections 6 to 8 deal with consequential orders on inclusion and exclusion of local areas: Section 9 authorises the State Government to give such powers to a municipality as in its opinion it is suited for.
It provides: " If the circumstances of any municipality are such that, in the opinion of the State Government, any provision of this Act is unsuited thereto, the State Government may, by notification: (a)withdraw the operation of that provision from the municipality; (b)apply that provision to the Municipality in a modified form to be specified in such notification ; (c)make any additional provision for the municipality in respect of the matter mentioned in the provision which has been withdrawn from, or applied in a modified form to, the municipality." Chapter II deals with the membership of committees and chapter III with Subordinate Agencies.
Under this chapter fall Sub Committees, Presidents and other officers of Municipal Committees.
Section 25 A which deals with the appointment of a Chief Executive Officer, Health Officer or Supervisor is as under: 1475 (1)" The State Government may, if in its opinion the appointment of (a)a Chief Executive Officer is necessary for general improvement in the administration of the municipality. . . and it is satisfied that the state of the municipal fund justifies expenditure on such appointment, require the committee to appoint any such officer.
(2)A requisition under sub section (1) shall state the period within which the committee shall comply therewith.
(3)If the committee fails to comply with the requisition within the stated period, the State Government may, if it thinks fit, appoint such officer at the cost of the committee and fix his pay and allowances, the rate of his contribution to the provident fund or to.
his pension and other conditions of service.
(4)The State Government may require the committee to delegate to the Chief Executive Officer . . . appointed under this section such powers, duties and functions of the committee, president, vicepresident, or secretary under this Act or any rule or bye law made thereunder as may be specified in such requisition, and if the committee fails to comply with such requisition within a reasonable time, the State Government may determine which powers, duties and functions shall be exercised and performed by such officer in addition to, or to the exclusion of, their exercise and performance by the committee, president, vice president or secretary.
(5)The secretary of the committee shall be subordinate to the Chief Executive Officer.
(6)The provisions of subsection (5) of section 53 A shall apply to the Chief Executive Officer or Health Officer or Supervisor appointed under this section ".
Chapter IV deals with the procedure to be followed in Committee Meetings, chapter V with property, contracts and liabilities and chapter VI with duties of committees.
Chapter VIII is headed " Control ".
It prescribes the authorities which have the power to control the acts of committees and also lays down the 1476 extent of such control and the method of its exercise.
Section 52 gives to the Deputy Commissioner the power to examine the proceedings of committees or subcommittees.
Section 53 empowers a Deputy Commissioner to suspend the execution of any order or resolution of a committee or a subcommittee and prescribes the circumstances in which this power can be exercised.
Then comes section 53 A which empowers the appointment of an Executive Officer by the State Government.
Section 54 provides that in the case of emergency the.
State Government, on the receipt of the report under section 52 or otherwise may require a municipality to execute any work or perform any act which in its opinion is necessary for the service of the public.
Under section 55 the State Government if satisfied after receiving a report under section 52 or after enquiry if any that a municipal committee has made default in performing its duties may appoint " some person to perform " the duty and can direct the municipal committee to pay reasonable remuneration to the person so appointed.
If default is made in any such payment the State Government can under section 56 direct a person having custody of municipal funds to make such payment.
Section 57 empowers the State Government to dissolve and/or to supersede the municipal committee.
Section 58 gives to the State Government the power of revision and an overall control over the actions of officers acting or taking any action under the Act.
But it cannot reverse any order unless notice is given to the parties interested and they are allowed to appear and be heard.
Section 58 A authorises the State Government to enforce its orders.
Section 58 B gives to the State Government the power of review of orders passed by itself and Commissioners and Deputy Commissioners have similar powers of reviewing their own orders provided that no order shall be varied unless notice is given to the parties interested to appear and be heard in support of the order.
Under section 59 certain officers appointed by general or special orders of the State Government are entitled to attend any meeting of the committee and address 1477 it on any matter affecting the work of their departments.
Section 60 provides for the settlement of disputes between the committees and other local bodies.
As sections 53 A and 57 are the subject matter of controversy in this case it is necessary to quote them in full : Section 53 A " (1) If a committee is not competent to perform the duties imposed on it or undertaken by it by or under this Act or any other enactment for the time being in force and the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the executive officer of the Committee, the State Government may, by an order stating the reasons therefor published in the Gazette, appoint such servant as the executive officer of the committee for such period not exceeding eighteen months as may be specified in such order.
(2)Any executive officer appointed under subsection (1) shall be deemed to be an officer lent to the committee by Government under sub section (3) of section 25.
(3)When under subsection (1) an executive officer is appointed for any committee, the State Government shall determine from time to time which powers, duties and functions of the committee, president, vice president or secretary under this Act or any rule or bye law made thereunder shall be exercised and performed by such officer, in addition to, or to the exclusion of, their exercise and performance by the said committee.
president, vice president or secretary.
(4)The Secretary of the committee shall be subordinate to the executive officer.
(5)The executive officer shall have the right to attendall meetings of the committee and any joint committeeand to take part in the discussion so as to make an explanation in regard to the subject under discussion, but shall not move, second, or vote on any resolution or other motion ".
Section 57 which gives power to the Government 1478 to dissolve or supersede the municipality is as follows: " (1) If a committee is not competent to perform, or persistently makes default in the performance of, the duties imposed on it or undertaken by it under this Act or any other enactment for the time being in force, or exceeds or abuses its powers to a grave extent, the State Government may, by an order stating the reasons therefor published in the Official Gazette, dissolve such committee and may order a fresh election to take place.
(2)If after fresh elections the new committee continues to be incompetent to perform, or to make default in the performance of, such duties or exceeds or abuse.
,; its powers to a grave extent, the State Government may, by an order stating the reasons therefor published in the Official Gazette, declare the committee to be incompetent or in default, or to have exceeded or abused its powers, as the case may be, and supersede it for a period to be specified in the order.
(3)If a committee is so dissolved or superseded, the following consequences shall ensue: (a)all members of the committee shall, as from the date of the order, vacate their offices as such members; (b)all powers and duties of the committee may, until the committee is reconstituted, be exercised and performed by such person or persons as the State Government may appoint in that behalf; (c)all property vested in it shall until the committee is reconstituted vest in the State Government.
(4)On the expiration of the period of supersession specified in the order, the committee shall be reconsti tuted, and the persons who vacated their offices under subsection (3), clause (a), shall not, by reason solely of such supersession be deemed disqualified for being members.
(5)No order under subsection (1) or subsection (2) shall be passed.
until reasonable opportunity has been given to the committee to furnish an explanation.
(6) Any person or persons appointed by the State 1479 Government to exercise and perform the powers and duties of a dissolved or superseded committee may receive payment, if the state Government so directs for his or their services from the municipal fund.
" A review of all these provisions shows that under the Act the municipalities are not independent corporations exercising powers unregulated by Governmental control.
They confer regulatory authority on the State Government to keep control over municipalities, the extent of control and the mode of its exercise being dependent on circumstances and expediency varying with the exigencies of every case.
The Statute leaves the discretion to the State Government to choose the action to be taken and the provision under which it is to be taken.
Wherever the legislature intended an enquiry to be held before taking any action provision is made for it and wherever it intended a person to be allowed to appear and be heard it has specifically provided for it.
Generally speaking excepting where all order is to be reversed qua a particular person, there is no provision for a hearing.
The nature and extent of regulatory powers of the State Government and the mode of their exercise are matters of policy and expediency and indicate the taking of administrative action by the State Government and not the exercise of any judicial power and would therefore be excluded from judicial review.
Counsel for the appellants firstly submitted that although the State Government has purported to act under section 53 A, in fact and in reality the order falls under section 57 and because the provisions of sub section (5) have not been complied with, the order of the State Government is illegal, null and void.
A comparison of the two sections 53 A and 57 shows the difference in the powers exercisable by the State Government under the two sections and the consequences that result therefrom.
Under section 53 A all that the State Government does is to appoint for a period of not more than eighteen months an Executive Officer who exercises such powers under the Act as are men tioned in the order which may be in addition to or to 188 1480 the exclusion of their exercise by the municipality, etc., a power also exercisable under section 25 A or to a limited degree under section 9.
Under section 57 the municipal committee itself is dissolved and may be superseded in which case its members cease to exist and vacate their offices and the powers and duties of the municipal committee then become vested in the person or persons appointed for the purpose by the State Government and its property also vests in the State Government.
These consequences do not follow an order Under section 53 A.
But it is submitted that in reality the result is the same because of the powers which under the notification have been given to the Executive Officer and what is left with the Committee is only "husk".
If this were so then whenever any action is taken whether under section 9 of the Act or under section 25 A in conceivable cases it would amount to supersession of the municipal committee and would therefore fall under section 57 which argurment was neither submitted nor is tenable.
According to the language of the two sections, 53 A and 57 of the Act the two classes of actions contemplated are quite different and different consequences follow; one should not be confused with the other.
The contention that the action taken under section 53 A is colourable and the matter really falls under section 57 is an allegation of mala fides which has not been made out.
If the statute gives to the state Government powers under its various provisions and the State Government chooses in its discretion to use one rather than the other it is beyond the power of any court to contest that discretion unless a case of abuse is made out (per Lord Halsbury L. C. in the West minster Corporation vs London and North Western Railway Co. (1)).
And it cannot on that ground alone be held to be a mala fide act.
A great deal of stress was laid by the appellants ' counsel on the withdrawal of the powers of the municipality and particularly under section 31 and it was contended that the Committee would not be able to hold its monthly meetings as required under that section.
It is difficult to interpret the notification in this manner, (1)[1905] A.C. 426.
1481 because ,so interpreted it would mean that the Executive Officer alone will meet for the transaction of business at least once a month which would amount to an absurdity.
The reference in the notification must be to sub section (2) of section 31 which deals with the power of the President, etc., to call a meeting suo motu or on the requisition of a fifth of the members.
Similarly the mention of Chapter V in the notification cannot vest the property of the committee in the Executive Officer.
The notification deals with powers and duties and not with the vesting of property.
It may however be mentioned that even where no Executive Officer is appointed by the State Government it can direct that any property vested in the municipality shall cease to be so vested and it can make such orders as it thinks fit regarding the disposal and management of such property (section 38).
No doubt the powers under section 39, which deals with the management of public institutions, powers and duties of the municipality, are taken away and are vested in the Executive Officer but these powers in any case are subject to rules made by Government and these rules are always subject to change by the State Government.
The powers of the municipal committee under section 40 to request the State Government for acquisition under the Land Acquisition Act have also been withdrawn.
Section 41 deals with transfers of municipal property to the Government and section 42 with power of the municipality to transfer municipal property but under that section the control of the State is not excluded even when there is no Executive Officer.
Section 44 deals with the ' 'Making of contracts and the other sections in that chapter do not deal with the powers and duties.
of a municipal committee excepting section 49.
Chapter VI prescribes the duties of a municipal committee and some of those also have been vested in the Executive Officer.
There is no doubt that some very important powers have by the notification been taken away from the municipal committee and have been vested in the Executive Officer but that is a far step from saying that the committee has thereby been suspended.
This exercise of its functions by the State Government is of 1482 no different quality leading to different results than what would have happened had action been taken under section 25 A or under B. 9 of the Act.
It cannot there.
fore be, said under the circumstances of this case that the action of the State Government is cobweb varnish or that it is merely a colourable order or a device to avoid the requirements of sub section
5 of a. 57.
, It was then contended that the notification enumerates acts of the municipality some of which axe instances of mismanagement and others of abuse of power.
It cannot be said that the allegations in regard to the spending of money without a provision in the budget or showing partiality in the matter of appointment and dismissal or in the matter of issuing of transport passes or distribution of municipal manure or the charge of spending huge amounts on maintenance of roads and drainage without improving their condition are nothing short of gross mismanagement or abuse of power and cannot fall under the charge of incompetency in the performance of duties or in the exercise of powers by the municipality.
Assuming that they can only be instances of abuse, there is nothing wrong in the State Government enumerating all the misdeeds and wrongs done by the committee and then saying that it prefers to take action under section 53 A as it has done and not under section 57.
If the acts and omissions are instances of abuse the State Government could if it thought fit, take action under section 57.
If having two courses open to it the State Government took the lesser of the two actions, its discretion cannot be questioned, in the absence of proof of bad faith.
It cannot therefore be said that the State Government has only pretended to act under section 53 A but in reality it was acting under section 57 of the Act.
It was lastly contended that the State Government when it acts under section 53 A has a duty to act judicially and the rules of natural justice required that ]the appellants should have been given an opportunity to show cause against action being taken under that section.
As said above under section 9 of the Act the State Government has, on the ground of unsuitability, the power to withdraw from the municipality any of the 1483 powers conferred under the Act either wholly or partially and under section 25 A it has the power of appointing a Chief Executive Officer if it is necessary for the general improvement in the administration of the municipality and exactly the same consequences would follow as they do when an Executive Officer is appointed.
under section 53 A.
There are also sections 52, 53, 54, 55 and 56 which place regulatory control in certain Government agencies.
If action taken under those provisions is an exercise of executive functions of the State Government can it be said that the exercise of similar power under section 53 A and for similar object i.e. improving the general administration in case of incompetency of the municipality will change an administrative decision into a judicial or quasijudicial decision ? The real test to distinguish between a quasi judicial and an administrative act of ail authority is based on the duty 'of that authority having power to determine a question ' to act judicially.
Lord Hewart, C. J. in R. vs Legislative Committee of the Church Assembly (1) said: In order that a body may satisfy the required test it is not enough that it should have legal authority to determine question affecting the rights of subjects; there must be superadded to that Characteristic the further characteristic that the body has the duty to act judicially ".
And thus the authority taking a decision should not merely determine a question it should also be under a duty to act judicially.
It is that essential characteristic which the State Government lacks in the present case.
When it considers something likely to result from its action it is merely taking executive action and not determining a question or acting judicially.
This dictum of Lord Hewart was quoted with approval by Das J. (as he then was) in Kusaldas Advani 's case (2).
He said, " Therefore, in considering whether a particular statutory authority is a quasi judicial body or a mere administrative body it has to be ascertained whether, the statutory authority has the duty to act judicially".
There is no indication (1) , 415.
(2) ; , 720.
1484 in the statute itself that the State Government has a duty to act judicially when it appoints an Executive Officer under section 53 A. nor has any procedure been prescribed as to the manner in which the power under this section is to be exercised by the State Government which may give an indication as to nature of the decision, taken.
The municipal committee is a creation of the Act and therefore it has all the powers and is subject to all the controls under the Act which are to be exercised as provided there under.
The Act gives different modes of regulatory control to the State Government and the powers of the State Government extend from revision of the actions, orders and resolutions of the municipal committee to the exclusion of local areas from its jurisdiction, taking away powers given under the Act, the appointment of Executive Officers, suspension and supersession of municipalities.
In certain sections e. g. section 57 dealing with this regulatory control the statute requires that the explanation of the committee be called for before a particular action is taken by the State Government and in others no such requirement is prescribed.
That is a clear indication of the intention of the legislature that an opportunity was to be given in one case and not in the other.
In other words a kind of quasijudicial approach was intended in one case and administrative in the other.
The Privy Council in Nakkuda Ali 's case (1) (a case under a Ceylon Regulation) said : " But, that apart, no procedure is laid down by the regulation for securing that the license holder is to have notice of the Controller 's intention to revoke the license, or that there must be any enquiry, public or private, before the Controller acts ".
In Advani 's case (2) Fazl Ali J. examining the ditty of authorities to act judicially said at p. 641 : There are no express words in section 3 or any other section, to impose such a duty (to determine judicially); nor is there anything to compel us to hold that such a duty is implied (1) ,78.
(2) ; 1485 The learned judge took into consideration the fact that certain sections specifically provided an enquiry and others did not, and observed: " the fact remains that there is nothing in the Ordinance to suggest that the public purpose is to be determined in a judicial way ".
Therefore where in a statute like the present one some sections prescribe the calling for the explanation of the municipality before any action is taken by the State Government and others do not, it is an indication of the intention of the legislature to exclude the application of principles of audi alteram partem in the latter case.
The section (section 53 A) has to be read as one whole and not in compartments.
The relevant words are: " If the committee is not competent to perform the duties imposed upon it and the State considers that a general improvement in the administration of the municipality is likely to be secured by " The latter portion i. e. " the State Government considers is likely to be secured " indicates a purely subjective determination and taking a policy decision.
The use of the words " considers " and " is likely relate to a subjective and not an objective process.
" To consider " means to think, to contemplate mentally, to regard and " likely " means probably; such as might well happen; apparently suitable for.
These words cannot have any reference to objectivity but suggest subjectiveness.
The opening words of the section " If the committee is not competent cannot be read separately from the latter part.
When under section 53 A the State Government appoints an Executive Officer which act it considers likely to im.
prove the general administration of the municipality it does not take two decisions, one objective as to the incompetency of the administration of the municipality and the other subjective as to the action likely to improve the administration.
The decision is only one.
The State Government is the sole judge of both matters, namely, of the incompetency and the remedy needed.
Both are parts of one integrated whole a decision taken in the exercise of the administrative 1486 functions of the State Government and admits of no element of judicial process.
(Vide The Province of ,Bombay vs Kusaldas Advani (1) (per Kania C.J. at p. 633 635) and per Das J. (as he then was) at p. 703).
The State Government must necessarily be the sole judge of the state of incompetency of the municipality otherwise it would not be able to take its administrative decision as to the action which it should take and which it considers is likely to improve the administration.
Both the decisions as to the incompetency of the municipality and the exercise of the executive function as to the action to be ' taken thereon are matters of like character i. e. administrative matters.
(Kusaldas Advani 's case at p. 633).
If that were not so then on the question of incompetency the State Government procedure will be analogous to a judicial process subject to review of Courts and the action it will take will be an administrative decision not subject to judicial review which will not only lead to inconvenience but to confusion.
The Privy Council pointed out in Venkatarao vs Secretary of State (2) that " inconvenience is not a final consideration in a matter of construction, but it is at least worthy of consideration, and it can hardly be doubted that the suggested procedure of control by the Courts over Government in the most detailed work of managing its services would cause not merely inconvenience but confusion ".
The very fact that an order under section 53 A is in the nature of an emergency action to protect the interests of the rate payer and has a limited duration not exceeding 18 months also negatives the order being founded on an objective determination as to the incompetency of the committee.
Such a construction will defeat the very purpose of a., 53 A. Further action under section 57 is of a permanent nature and has accordingly been expressly made subject to an explanation by the municipal committee.
The absence of such a provision from section 53 A clearly shows that the legislature did not intend that there should be an elaborate hearing but intended that the State should under section 53 A take a swift administrative decision.
The (1) ; (2) (1936) L.R. 64 I.A. 55.
1487 correct position, as indicated above, is that the decision of the State Government as to incompetency and the decision as to the action to be taken were really one decision, one integrated whole a subjective decision of the State Government that it considered that by the appointment of an executive officer a general improvement in the hitherto general administration was likely to be secured.
Merely because the fact of incompetency is a preliminary step to the exercise of an administrative function by the State Government, under & 53 A it is not necessary that the fact is to be determined judicially.
Where the exercise of the administrative functions of an Executive authority like the State Government are subject to a decision as to the existence of a fact, there is no duty cast on the State Government to act judicially.
Both the decision as to the fact and as to the action to be taken are really one and not two decisions, the determination being for the purpose of taking an appropriate administrative decision.
As has been said above it is one integrated whole and cannot be separated into parts with different legal qualities.
This was the view of Kania C. J. in the Province of Bombay vs Kusaldas Advani (1) where it was observed at p. 633: " Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially.
When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a power conferred on it, the determination of the objective fact and the exercise of the executive power based thereon are alike matters of an administrative character Fazl Ali J. in that case said at p. 642: For prompt action the executive authorities have often to take quick decisions and it will be going too far to say that in doing so they are discharging any judicial or quasi judicial functions.
The word I decision ' in common parlance is more or less a natural (3) ; 1488 expression and it can be used with reference to purely executive as well as judicial orders.
The mere fact that an executive authority has to decide something does not make the decision judicial.
It is the manner in which the decision has to be arrived at which makes the difference, and the Teal test is: Is there any duty to act judicially ? The language of sub section (1) of section 63 A indicates that the question whether the State Government considers that the action taken under the section i. e., the appointment of an Executive Officer is likely to secure an improvement in the general administration of the municipality is one of expediency, opinion and policy, matters which are peculiarly for the State Government to decide and of which, always assuming that it is acting bona fide, it is the sole judge.
No objective test is possible.
Therefore the use of these words "considers " and " is likely " negatives any objective approach or judicial or quasi judicial process.
The State Government is not essentially a judicial or a quasi judicial body but its essential function is administrative.
The various provisions of the Act show that it takes its decisions as to the mode and extent of control of municipalities in pursuance of its opinion and policy and on grounds of expediency.
In arriving at its decision it at no stage has any form of lis or quasi lis before it nor can it be said that there are two parties before it.
The Municipal Committee and itself cannot be termed quasi litigants or parties to a proposition and opposition.
It is not bound to take action under section 53 A or any other section of the Act.
It has to consider the question from the point of view of policy and expediency and the exigencies of the case which shows that it is not under a duty at any stage to act judicially to determine a question.
This further supports the view that a correct interpretation of the words " considers " and Is is likely to be secured " indicates a subjective decision and these words make the order of the State Government administrative and not judicial or quasi judicial.
The argument that the order is quasi judicial because it affects the rights of I the Municipal 1489 Committee is vacuous because all that the order complained of does is that it restricts the exercise of certain powers by the municipal committee and vests some powers in another authority contemplated by the statute.
Besides every decision of the Executive generally affects the rights of one citizen or another.
In Advani 's case (1) Kania C. J. said at page 632: ". . it is broadly stated that when the fact has to be determined by an objective test and when that decision affects rights of some one, the decision or act is quasi judicial.
This last statement overlooks the aspect that every decision of the executive generally is a decision of fact and in most cases affects the rights of some one or the other.
" But it was contended that in its order the State Government has to state reasons for taking action under section 53 A.
In a democratic system of government there is always the other party, the electors and citizens, who must know why the State Government takes one particular action rather than another.
Besides the mere requirement of giving reasons would not change what was an administrative body into a judicial body or an administrative decision into a judicial or quasi judicial determination.
The following passage from Halsbury 's Laws of England, Vol.
II, p. 56 (3rd Edition) aptly states the law and may usefully be quoted: " If, on the other hand, an administrative body in arriving at its decision has before it at no stage any form Of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any time to act judicially ".
See also R. vs Manchester Legal Aid Committee In B. Johnson & Co. (Builders) Ltd. vs Minister of Health (3) it was also held that the Minister was entitled to inform his mind by informal machinery of an enquiry and merely because in order to inform his mind the enquiry had to be held it could not be said that the Minister was not performing his administrative (1) ; (2) (3) (I947) 2 A.E.R. 395.
1490 function.
At p. 405 Cohen L. J. went further and said: " His duty as regards information received by him in his executive capacity is to use that information fairly and impartially.
This may involve that he should give an opportunity to the authority or to the objector, as the case may be, of dealing with some allegation in a communication he has received before the quasi lis started, but, if he fails to do so, he is responsible only to Parliament for the discharge of his executive duties, and cannot be made responsible in these courts.
" Appellants ' counsel relied on some English cases, the first of which was Cooper vs Wandsworth Board of Works (1) where Byles J. said at p. 420: ". although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.
" This view is not in accord with the modern exposition of the law in Nakkuda Ali 's case (2) or Franklin 's case (3).
Lord Shaw in Arlidge '3 case (4 ) rejected the concept of natural justice in the following language : ". . in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far it is resorted to for other purposes, it is vacuous." In R. vs Manchester Legal Aid Committee (5) the court observed : " The true view, as it seems to us, is that, the duty to act judicially may arise in widely different circumstances which it would be impossible, and, indeed, inadvisable, to attempt to define exhaustively.
Where the decision is that of a court then, unless, as in the case, for instance, of Justices granting excise licences, it is acting in a purely ministerial capacity, it is clearly under a duty to act judicially.
When, on the (1) [1863]14 C.B. (N.S.) 180; ; , 420. 2,0.7 (2) ,78.
(4) ,138.
(3) ; (5) [I952] 2 Q.B. 413, 431.
other hand, the decision is that of an administrative body and is actuated in whole or in part by questions of policy, the duty to act judicially may arise in the course of arriving at that decision.
" But at page 431 it was said: " If, on the other hand, an administrative body in arriving at its decision at no stage I has before it any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at, any stage to act judicially.
" That was a case of a debtor who applied for and obtained a certificate of legal aid under the Legal Aid and Advice Act, 1949, in connection with his claim for damages against a company but was thereafter adjudicated bankrupt and at his instance the certificate was cancelled as his claim vested in the trustee in bankruptcy.
The trustee then applied for and obtained a certificate of legal aid.
The National Assistance Board and the local Committee considered only the financial circumstances of the bankrupt and not of the trustee whose disposable income was in excess of the lowest limit entitling a certificate of legal aid.
The debtor company applied for an order of certiorari to quash the certificate alleging that the Committee had exceeded its jurisdiction.
Under the Legal Aid (General) Regulation, 1950, reg.
4(1), it was a condition precedent to the grant of a certificate that there should have been a determination by the National Assistance Board of the disposable income of the trustee who was personally liable vis a vis his opponent.
It was held that the Board having legal authority to determine questions affecting rights of subjects had a duty to act judicially and that it had exceeded its jurisdiction.
The case has some distinguishing features, wanting in the case before us.
The statute there prescribed the limit of income of applicant for a certificate of legal aid and the regulations required the determination by the National Assistance Board of the disposable income and disposable capital of such applicant which was a condition precedent to the 1492 grant of the certificate.
Clearly without such deter mination the grant of the certificate was not within the jurisdiction of the Board and therefore the Board had to determine a question and was required to act judicially within the rule laid down in the majority judgment in Kusaldas Advani 's case (1).
The Board under that statute was bound to give aid, if certain conditions were fulfilled and was quite unconcerned with questions of policy.
" They have to decide the matter solely on the facts of a particular case, solely on the evidence before them and apart from any extraneous considerations.
In other words, they must act judicially, not judiciously." In Capel vs Child (2) the words " Whenever it shall appear to the satisfaction of the Bishop " were held to imply a duty to act judicially and therefore the principles of natural justice applied.
This rule is inconsistent with the decision of the Privy Council in Nakkuda Ali 's case (3) or the decision of the House of Lords in Franklin 's case (4) or the interpretation placed upon the word " satisfied " in some of the later English cases, Robinson vs Minister of Town and Country Planning (5) and B. Johnson & Co. (Builders) Ltd. vs Minister of Health (6).
This Court in Kusaldas Advani 's case (1) also held this word to indicate a subjective approach.
See also Wijeysekra vs Festing (7) where the words of the Statute were " whenever it shall appear to the Governor See also R. vs Metropolitan Police Commissioner (8) where also the words were " if he is so satisfied and it was held that these words did not imply " a judge or a quasi judge ".
The decision in these cases laying down the rule of application of natural justice must be confined to their own facts and the language of the particular statute they interpreted.
No general rule can be deduced therefrom nor can they be applied to other statutes and other circumstances.
The case before us is not one where no enquiry has (1) ; , 720.
(2) [1832] 2 Cr. & Jr. 558; 37 R.R. 761.
(3) [1951] A.C66,78.(4) ; (5) (7) 1493 been hold.
There was an enquiry against the appellants in regard to specific allegations made against them and after hearing them a report was made by a Deputy Collector which was forwarded to the State Government before it took action.
One Dhurmal Daga made a number of allegations Annexures I and II and those allegations were supported by others like Dear & Co., Poonam Chand Somraj, Dhamtari Traders and Shilaram and the affidavit of the State Government in the High Court shows that the notice was issued to both the appellants to reply to the allega appellant No. 1 appeared before a long explanation denyDhurmal Daga and others.
It was after this that the Enquiry Officer made his report which was sent to the State Government and it took action which it considered apposite and that is the action complained of But it was submitted that no notice was given to the appellants as to the nature of the complaint against them and the various charges which have been enumerated in the notification were never specifically brought to their notice and they were not called upon to show cause why action should not be taken under section 53 A.
In the first place the word,% of the section as explained above do not contemplate any such notice and the argument based on the opening words of the section that the municipality was guilty of incompetence was an objective fact cannot be accepted.
It cannot be said in this case that in point of fact the appellants did not know what the complaint against them was or that they had no opportunity of giving their explanation in regard to the charges.
All the acts which are enumerated in the notification are contained in the various allegations which were made against the appellants by Dburmal and others.
The appellants put a long explanation giving their version of the facts contained in the complaint and the Enquiry Officer sent his report after hearing the appellants and on the consideration of this report the State Government passed its order under section 53 A.
The High Court after going through 1494 the record of the enquiry was satisfied as to the propriety and legality of the enquiry and that portion of its judgment has been quoted above.
Then it was submitted that the enquiry by Mr. Rana was unautborised by the State Government and was no substitute for the enquiry required by the statute.
But the statute has prescribed no procedure for enquiries under section 53 A even if it were to be said that the section contemplates an enquiry.
And it is no defect affecting the final decision of the State Government whether the enquiry originates in the manner it did or the State Government ordered it.
In these circumstances the third point raised by the appellants cannot be sustained and the submission of the appellants is without substance.
The appeal therefore fails and is dismissed with costs throughout.
SUBBA RAO J. I have had the advantage of reading the judgment prepared by my Lord, the Chief Justice and my learned brother, Kapur J.
I regret my inability to agree with them in their views on the follwing two questions: (1) Whether under section 53 A of the C. P. & Berar Municipalities Act (Act II of 1922), hereinafter called the Act, the Government performs a judicial act; and (2) whether in fact the Government complied with the principles of natural justice in making the, Order dated November 8, 1956, under section 53 A of the Act.
As the facts have been fully narrated by my Lord, the Chief Justice, it would suffice if the facts relevant to the aforesaid questions are briefly stated here.
The second appellant is the Municipal Committee, Dhamtari, and the first appellant is its President.
He was elected as President on July 10, 1956, and took charge of his office on July 27, 1956.
On August 8,1956, one Dhurmal Daga went on a hunger strike for the redress of his grievances against the appellants.
The Collector, Raipur, intervened and persuaded him to break his fast and ordered an inquiry into the charge of maladministration.
The Deputy Collector, who made the inquiry, gave notice of the said inquiry to the Secretary to the Committee and the first appellant 1495 filed a written reply on September 7, 1956, and personally appeared at the inquiry.
Presumably, the result of the inquiry was forwarded to the Government.
On November 18, 1957, the Government issued an Order, A under a. 53 A of the Act, enumerating fifteen charges involving acts of nonfeasance, misfeasance, gross negligence and fraud, and stating that, by reason of the said act,%, it appeared to the Government that the Committee had proved itself incompetent to perform the duties imposed on it by or under the said Act.
The order further proceeded to state that the Government considered that a general improvement in the administration of the Municipality was likely to be secured by appointing a servant of the Government as the Executive Officer of the Committee.
The said Order also appointed Shri B. P. Jain as Executive Officer and entrusted to him most of the important powers and duties of the Committee and the President.
Before the drastic action was taken, no opportunity was given either to the President or to, the Committee to explain their conduct in regard to any one of the charges.
The previous inquiry made by the Deputy Collector was to attempt to persuade Dhurmal Daga to give up his fast and that inquiry by the Deputy Collector could not, in any sense of the term, be regarded as an inquiry for taking action under section 53 A of the Act.
Records also do not disclose whether that inquiry related to the same charges which were the foundation for the Government taking action under the Act.
1, therefore, proceed on the footing that the Government acted under section 53 A of the Act without giving any opportunity to the appellants to explain their conduct in regard to the grave charges levelled against them, on the basis of which they were held to be incompetent Within the meaning of section 53 A of the Act.
The material part of section 53 A reads: " If a committee is not competent to perform the duties imposed on it or undertaken by it by or under this Act or any, other enactment for the time being in force and the State Government considers that a general improvement in the administration of the 190 1496 municipality is likely to be secured by the appointment of a servant of the Government as the executive officer of the committee, the State Government may, by an other Order stating the reasons therefor published in the Gazette, appoint such servant as the executive officer of the committee for such period not exceeding eighteen months as may be specified in such order.
" The learned Advocate General, appearing for the State, contended broadly that under this section the Government performs only an administrative act by appointing an Executive Officer for a short period and therefore no opportunity need be given to the affected parties before action is taken thereunder.
Mr. M. K. Nambiar, counsel for the appellants, argued that under this section the Government is empowered to deprive the Municipal Committee, duly elected, under the Act, of its powers, though for eighteen months, on the basis of its incompetency and it is against all principles of natural justice to stigmatize such a body as incompetent without giving it an opportunity to explain its conduct.
He would say that whether the Committee is competent or not is an objective and jurisdictional fact to be decided judicially by the State Government and, therefore, the act of the Government is a judicial act, which can only be discharged by following the principles of natural justice.
Before considering the validity of the arguments based upon the provisions of the section, it would be convenient at this stage to notice briefly the distinction between a judicial and an administrative act and the criteria laid down by decisions for ascertaining whether a particular act is a judicial act or an administrative one.
The said criteria have been laid down with clarity by Lord Justice Atkin in Rex vs The, Electricity Commissioners (1), elaborated by Lord Justice Scrutton in Rex vs London County Council (2) and authoritatively restated in Province of Bombay vs Kusaldas section Advani (3).
The aforesaid decisions lay down the following conditions to be complied with: (1) The body of persons must have legal authority; (2) the authority should (1) (2) (3) ; 1497 be given to determine questions affecting the rights of subjects; and (3) they should have a duty to act judicially.
So far there is no dispute.
The question raised in this case is what do the words " a duty to act judicially " mean.
If the statute in express terms says that the decision should be arrived at judicially, then it is an obvious case.
If it does not expressly say so, can the intention of the Legislature be gathered or implied from the terms of the statute ? If it can be so gathered, what are the guiding factors for implying such a duty on the part of a tribunal or authority ? In this context a brief discussion of some of the 'relevant cases will be helpful.
This Court, as I have already stated, restated the law laying down the criteria for ascertaining whether an act is a judicial act or not in Kusaldas 's case (1).
There the question was whether the Provincial Government was acting judicially in making the order of requisition under a. 3 of the Bombay Land Requisition Ordinance (Bom.
Ordinance V of 1947).
The material part of the section under discussion read as follows: " If in the opinion of the Provincial Government it is necessary or expedient to do so, the Provincial Government may, by order in writing requisition any land for any public purpose.
" To ascertain the nature of the act of the Government under that section, this Court reviewed the law on the subject and held, by a majority, that on a proper construction of section 3 of the Ordinance, the decision of the Bombay Government that the property was required for a public purpose was not a judicial or a quasijudicial decision but an administrative act and the Bombay High Court had, therefore, no jurisdiction to issue a writ of Certiorari in respect of the order of requisition.
Das J. as he then was, after considering the law on the subject summarized the principles at page 725 thus: " (i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and (1) [I950] S.C.R. 621.
1498 to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasijudicial act provided the authority is required by the statute to act judicially.
" The propositions so stated appear to me to be unexceptional.
But the further difficulty is whether the duty to act judicially should be expressly so stated in the statute or whether it can be gathered or implied from the provisions of the statute.
I do not think that Das J. as he then was,, meant to lay down as a condition that the duty to act judicially should be expressly stated in the statute, for rarely any statute would describe the character of disposal of a particular proceeding.
If it was intended to insist upon an express condition in the statute, the learned Judge would not have scrutinized the provisions of the Ordinance to ascertain whether the order thereunder was intended to be a judicial act or not.
A useful discussion bringing out in bold relief the difference between a judicial and an administrative act is found in R. vs Manchester Legal Aid Committee (1).
There a debtor applied to a local aid committee, set up under the Legal Aid and Advice Act, 1949, for a certificate for legal aid to pursue a claim for alleged breach of contract against a limited company.
As he was adjudicated insolvent, the certificate was revoked and on application made by his trustee, it was granted to him again.
One of the questions raised was whether the legal aid committee in issuing the certificate was acting judicially and therefore subject to an order of certiorari.
The court held that the said body was under a duty to act (1) [I952] 2 Q.B. 413.
1499 judicially.
Parker J. delivering the judgment of the Court, summarized the law on the subject at page 428 thus: " The true view, as it seems to us, is that the duty to act judicially may arise in widely different circumstances which it would be impossible, and, indeed, inadvisable, to attempt to define exhaustively.
Where ' the decision is that of a Court, then, unless, as in the case, for instance, of justices granting excise licences, it is acting in a purely ministerial capacity, it is clearly under a duty to act judicially.
When, on the other hand, the decision is that of an administrative body and is actuated in whole or in part by questions of policy, the duty to act judicially may arise in the course of arriving at that decision.
Thus, if, in order to arrive at the decision, the body concerned had to consider proposals and objections and consider evidence, then there is the duty to act judicially in the course of that inquiry. .
Further, an administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of and are not in accordance with the practice of a court of law. . . .
If, on the other hand, an administrative body in arriving at its decision at no stage has before it any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any stage to act judicially.
" On the basis of the aforesaid principles, the learned Judge held that the local committee, though an administrative body, was acting judicially in issuing the certificates as in ascertaining the facts for issuing the certificate it was quite unconcerned with any question of policy.
I respectfully agree with the principles enunciated by the learned Judge and they are not in any way inconsistent with the principles laid down by this Court.
The law has been neatly summarised in Halsbury 's Laws of England, Third Edition, Volume 11, at pages 55 and 56 and it is as follows: 1500 " It is not necessary; that it should be a court: 'an administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of, and are not in accordance with the practice of, a court of law.
It is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition.
A body may be under a duty, however, to act judicially (and subject to control by means of these orders) although there is no form of lis inter partes before it; it is enough that it should have to determine a question solely on the facts of the particular case, solely on the evidence before it, apart from questions of policy or any other extraneous considerations." " Moreover an administrative body, whose decision is actuated in whole or in part by questions of policy, may be under a duty to act judicially in the course of arriving at that decision. . . .
If, on the other hand, an administrative body in arriving at its decision has before it at no stage any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any time to act judicially.
" It is not necessary to multiply citations.
The concept of a ,judicial act", has been conceived and developed by the English Judges with a view to keep the administrative tribunals and authorities within bounds.
Unless the said concept is broadly and liberally interpreted, the object itself will be defeated, that is, the power of judicial review will become innocuous and ineffective.
The comprehensive phraseology of article 226 of the Constitution supports rather than negatives the liberal interpretation of that concept.
The argument that the Court shall not obstruct the smooth working of the administrative machinery does not.
appeal to me, for the simple reason that the exercise of the power of judicial review or, to be more precise, the existence of such power in courts for hardly one act in thousands come before courts eliminates arbitrary action and enables the 1501 administrative machinery to function without bias or discrimination.
With this background, the principles, as I apprehend them, may be concisely stated thus: Every act of an administrative authority is not an administrative or ministerial act.
The provisions of a statute may enjoin on an administrative authority to act administratively or to act judicially or to act in part administratively and in part judicially.
If policy and expediency are the guiding factors in part or in whole throughout the entire process culminating in the final decision,, it is an obvious case of administrative act.
On the other hand, if the statute expressly imposes a duty on the administrative body to act judicially, it is again a clear case of a judicial act.
Between the two there are many acts, the determination of whose character creates difficult problems for the court.
There may be cases where at one stage of the process the said body may have to act judicially and at another stage ministerially.
The rule can be broadly stated thus: The duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute.
It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute.
In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inexorable rule of guidance.
In the present case, section 53 A of the Act itself provides the necessary criteria to answer the question.
Before the Government can take action under the section, three preliminary conditions for the exercise of the power are laid down: (1) The Committee is not competent to perform the duties imposed on it; (2) the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government; (3) an order stating the reasons therefor.
The first condition depends upon the determination of 1502 an objective fact, namely, whether the committee is competent to perform the duties imposed upon it.
It is a jurisdictional fact that confers jurisdiction on the Government to take further action.
The determination of this fact is not left to the subjective satisfaction of the Government.
Indeed, the different phraseology used in regard to the second condition, namely, " the State Government considers ", brings out in bold relief the distinction between the two; while in the former an objective fact has to be determined, in the latter the fact is left to the subjective satisfaction of the Government.
If the facts covered by both the conditions are left to the subjective satisfaction of the Government, the phraseology would have been different and the clause would have run thus: ".If the Government considers that, the committee is not competent to perform the duties imposed on it or under taken by it by or under this Act or any other enactment for the time being in force and that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the Executive Officer of the Committee. .
To accept the argument of the Counsel for the respondents will be to rewrite the section in the above manner which is not permissible.
There is also a good reason and a justification for the difference in the phraseology used in the section.
The municipality is an elected corporate body and is entrusted with responsible statutory functions.
While it may be necessary, in public interest, to deprive the committee of some powers for a short period when it is proved to be demonstrably incompetent, such a body cannot easily be relegated to a subordinate position on the mere will and pleasure of the Government.
The section reconciles the public good and the committee 's rights and prestige, by conditioning the exercise of the power of the Government to depend upon the objective determination of the jurisdictional fact.
Whatever ambiguity there may be in the section, it is dispelled by the third condition, namely, that which enjoins on the Government to give reasons.
What is the object of the Legislature in imposing the said condition, if 1503 the matter is left to the subjective satisfaction of the Government ? The concept of subjective satisfaction of the Government does not involve any attempt to satisfy the mind or appeal to the good sense of another.
The working of the mind need not be disclosed and the validity of the section need not depend upon any objective standard.
The condition to pass a speaking order is destructive of any idea of invulnerability, for the said condition implies that the order should satisfy the mind of a reasonable man.
It is contended that a comparative study of the provisions of sections 53 A and 57 shows that the Government has to give notice before taking action under section 57, whereas no such duty is cast upon it under section 53 A and that would indicate the intention of the Legislature that the Government is not expected to act judicially under section 53 A. There.
is some force in this contention, buy that is not decisive of the question to be decided in this case.
If the provisions of a particular section necessarily imply a duty to act judicially, the mere fact that there is no express provision to issue a notice to the affected parties cannot convert a judicial act into an administrative one.
Nor does the argument that the order of appointment of an Executive Officer is only for a temporary period indicate the administrative character of the act.
The finding of incompetency carries a stigma with it and what is more derogatory to the reputation of the members of the committee than to be stigmatized as incompetent to discharge their statutory duties ? Would it be reasonable to assume that public men in a democratic country are allowed to be condemned unheard ? What is material is not the period of the tenure of the executive officer, but the ground for the appointment of the officer, namely, the incompetency of the committee.
Shortly stated, the position is this: The committee is comprised of elected representatives of the respective constituencies; they are presumably competent men in whom the electorate has confidence.
The Government has to arrive at the finding of their incompetency on the basis of objective facts to be ascertained and to 191 1504 give reasons for its finding.
It is against all canons of natural justice that a tribunal should arrive at a finding of far reaching consequence without giving an opportunity to explain to the persons who would be affected by such a finding.
For the aforesaid reasons, I have no doubt that the section imposes a duty on the Government to act judicially in ascertaining the objective and jurisdictional fact, namely, whether the committee is incompetent.
It is a necessary condition of such a duty to give an opportunity to the committee to explain the grave charges levelled against it.
Admittedly, no such opportunity was given to the committee and I cannot agree with the learned Advocate General that the inquiry by the Deputy Collector at an earlier stage for a different purpose had in effect given an opportunity to the committee.
It is not known what were the charges for which that inquiry was held.
The record discloses that the inquiry was held by a subordinate officer there is nothing on record to show that the Government authorised either the Collector or the Deputy Collector to make the inquiry in connection with the fast of Dhurmal Daga.
In my view, the inquiry cannot presumably take the place of reasonable opportunity to be given by the Government for the proposed action under section 53 A of the Act.
In the result, it follows that the Order of the High Court should be set aside and that of the Government appointing the Executive Officer quashed.
I do it accordingly.
ORDER PER CURIAM: This appeal is dismissed with costs, in this court and the courts below.
Appeal dismissed.
| IN-Abs | The main point for decision in this appeal by the Municipal Committee of Dhamtari and its President was, whether in appointing an Executive Officer in exercise of its powers under section 53A of the C. P. and Berar Municipalities Act, 1922, the State Government acted in a judicial capacity or in an administrative one Complaints having been made against the appellants, the additional Deputy Collector was directed to hold an enquiry and on his report the State Government, by a notification under that section, appointed an Executive Officer of the Municipal Committee for 18 months with specified powers and duties.
The appellants were given notice of the said enquiry, filed objections 1441 and the President was personally present on some occasions during the enquiry.
The notification charged the appellants with incompetency as well as abuse of power.
Against that notification the appellants moved the High Court under article 226, of the Constitution for a writ of certiorari quashing the same, but their application was rejected by the judge sitting singly.
An appeal under the Letters Patent against his decision was summarily dismissed.
It was contended before this Court on behalf of the appellants that, (1) although the notification purported to be one under section 53A of the Act, it was in effect and reality one under section 57 Of the Act, that (2) it was, therefore, incumbent on the Government under section 57(5) of the Act to afford the appellants an opportunity to furnish explanation and that (3) even if the notification was one under section 53A of the Act, the Government was bound by the rules of natural justice to give the appellants an opportunity to defend themselves.
Held (per curiam), that sections 53A and 57 of the C. P. and Berar Municipalities Act, 1922, differed materially in their scope and effect, but it was not obligatory under either of them for the Government to take any action at all.
Although a finding of incompetency of the Municipal Committee was a condition precedent to action under both the sections, the Government was free to choose its remedy as the occasion demanded and it could not be contended that because a notification made under section 53A of the Act, along with a finding of incompetency, contained some instances of abuse of power as well, it must be held to have been made under section 57 of the Act.
Nor could the vesting of power in the Executive Officer by the notification, however substantial in character, be said, in effect and reality, to amount to a dissolution of the Municipal Committee under section 57 Of the Act.
Per Das C. T. and Kapur J.
The real test whether the State Government functioned in a quasi judicial capacity or in an administrative capacity in exercising its powers under section 53A of the Act was whether the statute required it to act judicially either expressly or by implication.
The Act contained no express provision to that effect, nor could the determination of the fact of incompetency as a condition precedent to any action under that section, by itself, carry such an implication.
In making the notification under section 53A of the Act, therefore, the Government functioned in an administrative capacity and not in a quasi judicial one.
Even so, by the enquiry held, the State Government afforded the appellants ample opportunity to defend themselves and there could hardly be any ground for complaint.
Province Of Bombay vs Kusaldas section Advani, [1950] S.C.R. 621, Rex vs Electricity Commissioners, , Rex vs London County Council, , R. vs Legislative Committee Of the Church Assembly, (1928) 1 K.B. 411 and Nakkuda Ali 's Case, , referred to.
1442 Per Bhagwati J.
Since the enquiry held in this case fully satisfied the requirements of natural justice, it was unnecessary to determine for the purpose of this case whether the State r Government in acting under section 53A of the Act did so in a quasi judicial capacity or in an administrative one.
Per section K. Das J.
If the question was one of compliance with the rules of natural justice, the enquiry held in the present case could hardly be said to have complied with such rules; but since the State Government in acting under section 53A of the Act had only to consider policy and expediency and did at no stage have any form of lis before it, its action thereunder was purley of an administrative character not amenable to a writ of certiorari.
Manchester Legal Aid Committee, , applied.
Per Subba Rao J. On a proper appreciation of the criteria laid down by section 53A of the Act itself, there could be no doubt that it imposed a duty on the State Government to act judicially in ascertaining the fact of the incompetency of the Municipal Committee to perform its duties.
It is clear that the determination of such a jurisdictional fact could not have been left to the subjective satisfaction of the Government but was intended to be arrived at objectively and, therefore, it was incumbent upon the Government to give a reasonable opportunity to the appellants to explain the charge levelled against them.
Such enquiry as was held in the instant case could hardly take the place of reasonable opportunity to be given by the Government for the proposed action under section 53A of the Act.
Rex vs The Electricity Commissioners, (1924) i K. B. 171, Province of Bombay vs Kusaldas section Advani, ; and R. vs Manchester Legal Aid Committee, , referred to.
|
Civil Appeal No. 167274(NT) of 1990.
From the Judgment and Order dated 10.6.1988 of the Karnataka High Court in W.P. Nos. 14255 to 14257 of 1983.
B. Sen, H. Raghvendra Rao and Vineet Kumar for the Appellant.
P.R. Ramasesh for the Respondent.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
Special leave granted.
The appellant is a registered dealer under the Karnataka Sales Tax Act (hereinafter called 'the Act ').
The appellant (hereinafter referred to 'the assessee ') purchases iron scrap from dealers inside and outside the State of Karnataka for the purpose of manufacturing iron ingots, steel rounds and tot steel.
These manufactured goods were 254 sold mostly within the State.
In respect of the Assessment Years 1972 73 to 1974 75, accepting the contentions of the assessee that the goods sold were manufactured out of tax suffered iron scrap, the Commercial Tax Officer exempted the sales turn over of the manufactured goods.
The Deputy Com missioner of Commercial Taxes in exercise of his powers under section 21 of the Act restricted the exemptions but otherwise confirmed the assessment order by his order dated 11.5.
The respondent Commissioner of Commercial Taxes, Bangalore initiated proceedings under section 22(A) of the Act for revising the order of the Deputy Commissioner on the ground that the assessee had been allowed exemption in respect of the turn over of manufactured goods without verifying as to whether the inputs iron scrap nag suffered taxes and that Explanation II to Schedule IV of the Act was applicable or not.
The appellant filed the writ petition praying for the issue of a writ certiorari to quash the show cause notice issued by the respondent under section 22(A) of the Act challenging the constitutional validity of section 5(4) of the Act in so far as it pertains to item 2 of Sched ule IV to the Act read with Explanation II thereof in re spect of its application for the period prior to 1.4.
1978 as violative of Article 304(a) of the Constitution.
It may be pointed out at this stage that in Mangalore Metal House vs State of Karnataka, [1986] 63 STC 482 the High Court upheld the Explanation II to Schedule IV of the Act which is differently worded in its application for the period subse quent to 1.4.1978.
It may also be mentioned that the High Court had confined itself only to the challenge of the constitutional validity of the provision and left open the other question on merits including the validity of the notices to be agitated after exhausting the appellant 's remedy before the Sales Tax authorities.
The High Court was of the view that the provision pro viding for not levying tax, if at an earlier stage tax has been paid, is only in the nature of exemption and the exemp tion arises only on proof that the tax has been paid at an earlier stage on the goods out of which the goods in ques tion were manufactured, that there is nexus between the finished goods and the raw material used for manufacturing the same that it is not correct to state that the tax is not payable on the finished goods manufactured out of local raw material but the discrimination if at all would arise only in the quantum of tax payable, for the tax on finished goods will be definitely higher than on the raw material.
The High Court was of the further view that there is no discrimina tion in the rate of tax between the imported items and the local items of finished goods of iron steel as such and that the variation in the quantum of tax is on account of the scheme of taxation working diffe 255 rently on different dealers, those who import raw material and manufacture and those who locally purchase and manufac ture and hence such an effect is only indirect result and not having direct or immediate impact.
In that view the High Court dismissed the writ petition and gave liberty to the appellant to file objections before the Commissioner of Commercial Taxes for dealing with questions on merits.
This appeal has been filed against the said judgment of the High Court.
The main point that was urged in this appeal was that section 5(4) of the Act in so far as it pertains to item 2 in the IV Schedule read with the Explanation II is violative of Article 304(a) of the Constitution as under that provi sion the sale of finished goods manufactured out of imported raw material is taxed but the sale of finished goods manu factured out of locally purchased raw material is not taxed and that amounts to hostile discrimination in the rate of tax or quantum of tax.
Section 5(4) of the Act is the charging section in respect of declared goods and the relevant portion reads as follows: "(4) Notwithstanding anything contained in sub section (1) (or section 5 B or section 5 C) a tax under this Act shall be levied in respect of the sale or purchase of any of the declared goods mentioned in column (2) of the Fourth Sched ule at the rate and only at the point specified in the corresponding entries of columns (4) and (3) of the said Schedule on the dealer liable to tax under this Act on his taxable turnover of sales or purchases in each year relating to such goods: Provided that where tax has been paid in respect of the sale or purchase of any of the declared goods under this sub section and such goods are subsequently sold in the course of inter state trade or commerce, and tax has been paid under the (Central Act 74 of 1956) in respect of the sale of such goods in the course of inter state trade or commerce, the tax paid under this Act shall be reimbursed to the person making such sale in the course of inter state trade or commerce in such manner and subject to such condition as may be prescribed.
Provided further that in respect of the sale of cereals 256 mentioned in serial number 9 of the Fourth Schedule, made by any person to a procurement agent appointed by the Govern ment of Karnataka or to any sub agent of such procurement agent in pursuance of the Karnataka Rice Procurement (Levy) Order, 1981 or any other foodgrains.
procurement (Levy) Order of the Government of Karnataka for the time being in force, such sale shall not be deemed to be, but the subse quent sale by the said procurement agent or sub agent shah be and shah be deemed to be the point at which the tax under this Act shah be levied.
Provided also that where tax has been paid under this sub section on the purchase of paddy and such paddy is either subsequently sold to or is hulled and the resultant rice is sold to a procurement agent appointed by the Govern ment of Karnataka or to any sub agent of such procurement agent in pursuance of the Karnataka Rice Procurement (Levy) Order, 1984 or any other Foodgrains Procurement (Levy) Order of the Government of Karnataka for the time being in force, the tax paid under this Act on the purchase of such paddy shah be reimbursed to the person making such sale to such procurement agent or his sub agent, as the case may be, in such manner and subject to such conditions as may be pre scribed.
" The IV Schedule to the Act contains a list of declared goods specifying the point of levy and the rate of tax.
Item 2 of this Schedule relates to iron steel since the interpretation of this item is in question the relevant portion of item 2 may be extracted and reads as follows: "FOURTH SCHEDULE S1.
Description of the goods Point of Rate of No. levy tax 1. 2.
(i) pig iron and cast iron including Sale by the first ingot moulds, bottom plates, iron or earliest succes scrap, cast iron scrap runner sive dealer in the scrap and iron skull scrap.
state, liable to tax under this Act.
257 (ii) steelsemis (ingots, slabs, blooms and billets of all qualifies, shapes and sizes).
(iii) skelp bars, tin bars, sheet bars, hoebars and sleeper bars.
(iv) Steel bars (rounds, rods, squares 4 percent fiats, octagons and hexagons, plain and ribbed or twisted, in coil form as well as straight lengths).
(v) Steel structurals (angles, joists, channels tees, sheet piling sections or any other rolled sections) (vi) sheets, hoops, strips and skelp, both black and galva nised, hot and cold robed, plain and corrugated, in all qualifies, in straight lengths and in coil from as rolled and in revitted condition.
(vii) plates both plain and cheque red in qualities.
(viii) discs, rings forgings and steel 3 percent castings.
(ix) tool, alloy and special steels of any of the above categories.
(x) steel melting scrap in all forms including steel skulls, turnings and borings.
(xi) steel tubes, both welded and seamless of all diameters and lengths, including tube fittings.
(xii) tin plates, both not dipped and electrolytic and tin free plates.
258 (xiii) fish plate bars, beating plate bars, crossing sleeper bars, fish plates, bearing plates, crossing sleepers and pressed steel sleepers, railsheavy and light crane rails.
(xiv) wheels, tyres axles and wheel sets.
(xv) wire rods and wires rolled, drawn, galvanised, alumi nised, tinned or coated such as by Copper.
(xvi) defectives, rejects, cuttings or end pieces of any of the above categories.
By Karnataka act 13 of 1982 Explanation II was added to item 2 of the IV Schedule with retrospective effect from 1.10. 1957 and to be effective tilt 31.3.
1978 and that Explana tion reads as follows: "Explanation 11: Where tax has been paid in respect of the sale or purchase of: (i) iron scrap, cast iron scrap, runner scrap and iron skull scrap referred to in entry (i) of serial number 2 or in respect of steel melting scrap in all forms including steel skull turnings and borings referred to in entry (x) of serial number 2 and out of the said scrap, steel semis (ingots, slabs, blooms and billets of all qualities, shapes and sizes) referred to.
m ' entry (ii) of serial number 2 are manufactured and sold; or (ii) steel semis (ingots, slabs, blooms and billets of all qualities, shapes and sizes) referred to in entry (ii) of serial number 2 and out of the said steel semis any re rolled products of iron and steel referred to in anyone or more of the entries at (iii), (v), (vii) and (xv) serial No. 2 are manufactured and sold, no tax shall be leviable on the sale of the said steel semis or the re rolled products as the case may be.
Provided that the dealer claiming exemption of tax under this explanation furnished before the assessing au thority concerned proof of levy and payment of tax by 259 the previous or earliest of successive dealers on the said scrap or steel semis used in the manufacture of the steel semis re rolled products, as the case may be.
Provided further that in respect of the said steel semis or the said re rolled products of iron and steel, no amount was collected by the dealer from his customers by way of tax or purporting to be by way of tax." As already stated the appellant purchases iron scrap both from local registered dealers and also from the dealers outside the State of Karnataka and manufactures ingots and sells the same mostly within the State of Karnataka.
The constitutional validity of the above said provision is challenged on the ground that while the appellant 's sale of ingots manufactured out of locally purchased scrap will not be subjected to tax, the appellant 's sale of ingots manufac tured out of scrap purchased from outside the State of Karnataka would be subjected to tax.
In the Firm A.T.B. Mehtab Majid and Co. vs State of Madras and Anr., [1963] (Suppl.) 2 SCR 435 this Court con sidered the constitutional validity of Rule 16 of the Madras General Sales Tax Rules.
Rule 16 of the Rules which was impugned in the case read as follows: "16.(1) In the case of untanned hides and/or skins the tax under section 3(1) shall be levied from the dealer who is the last purchaser in the State not exempt from taxation under section 3(3) on the amount for which they are brought by him.
(2)(i) In the case of hides or skins which have been tanned outside the State the tax under section 3(1) shall be levied from the dealer who in the State is the first dealer in such hides or skins not exempt from taxation under section 3(3) on the amount for which they are sold by him.
(ii) In the case of tanned hides or skins which have been tanned within the State, the tax under section 3(1) shall be levied from a person who is the first dealer in such hides or skins not exempt from taxation under section 3(3) on the amount for which they are sold by him: Provided that, if he proves that the tax has already 260 been levied under sub rule (1) on the untanned hides and skins out of which the tanned hides and skins had been produced, he shall not be so liable.
(3) The burden of proving that a transaction is not liable to taxation under this rule shall be on the dealer.
" It was contended for the petitioner in that case that the effect of this rule was that tanned hides or skins imported from outside the State and sold within the State are subject to a higher rate of tax than the tax imposed on hides or skins tanned and sold within the State, inasmuch as sales tax on the imported hides or skins tanned outside the State is on their sale price while the tax on hides or skins tanned within the State, though ostensibly on their sale price, is, in view of the proviso to Clause (ii) of sub rule (2) of rule 16, really on the sale price of these hides or skins when they are purchased in the raw condition and which is substantially less than the sale price of tanned hides or skins.
It was further contended for similar reasons, hides or skins imported from outside the State after purchase in their raw condition and then tanned inside the State are also subject to higher taxation that hides or skins pur chased in the raw condition in the State and tanned within the State, as the tax on the former is on the sale price of the tanned hides or skins and on the latter is on the sale price of the raw hides or skins.
Such a discriminatory taxation was said to offend the provisions of Article 304(a) of the Constitution.
This Court pointed out that if the dealer has purchased the raw hide or skin in the State, he does not pay tax on the sale price of the tanned hides or skins.
He pays on the purchase price of untanned hides or skins, only.
If on the other hand, dealer purchases raw hides or skins from outside the State and tans them within the State, he will be liable to pay sales tax on the sale price of the tanned hides or skins.
He will have to pay more for tax even though the hides and skins are tanned within the State, merely on account of his having imported the hides and skins from outside and having not paid any tax under subrule (1).
This is one of the reasons on which this Court held that rule 16(2) discriminated against the imported hides or skins which had been purchased or tanned outside the State and that therefore they contravene the provisions of Article 304(a) of *,he Constitution.
The next ground on which this Court invalidated the Rule was that mere circumstance Of a tax having been paid on the sale of such hides or skins in the raw condition did not justify their forming goods of a different kind from the tanned hides or skins which had been imported 261 from outside.
At the time of sale of those hides or skins in the tanned state, there was no difference between them as goods and the hides or skins tanned outside the State as goods.
The similarity contemplated by Article 304(a) is in the nature of the quality and kind of the good and not with respect to whether they were subject of a tax already or not.
On the ground that the decision of this Court in A.T.B. Mehtab 's case (supra) will result in claims for refund of tax being preferred by dealers in hides and skins already assessed under the impugned Rule thereby resulting in huge loss of revenue and will also result in administrative complications, the Madras General Sales Tax (Special Provi sions) Act, 1963 was made.
That Act provides that: "(1) Notwithstanding anything contained in Madras General Sales Tax Act, 1939 (Madras Act IX of 1939) (hereinafter referred to as the said Act), or in the rules made thereun der (hereinafter referred to as the said rules), during the period commencing on the 1st April, 1955 and ending on the 31st March, 1959, in respect of sale of dressed hides and skins (which were not subjected to tax under the said Act as raw hides and skins), the tax under the said Act shall be levied from the dealer who in the State is the first seller in such hides and skins not exempt from taxation under sub section (3) of section 3 of the said Act at the rate of two per cent of the amount for which such hides and skins were last purchased in the untanned condition.
" This was challenged in this Court by way of petition under Article 32 of the Constitution in A. Majee Abdul Shakoor and Company vs State of Madras, 17 on the ground that the persons who had purchased raw hides and skins in the State of Madras in the relevant period paid sales tax at 3 pies per rupee and paid no further tax with those hides after being tanned were not sold whereas the petitioners having purchased raw hides and skins from out side the State did not at the time paid tax at that rate on the purchase price of the raw hides and skins but were not now liable under the impugned provision to pay tax at the rate of 2 per cent of the amount for which such hides and skins were last purchased in untanned condition.
Thus the contention was that the petitioners would pay a higher tax than what was paid by the seller of dressed hide and skins purchased in the State in raw condition and then tanned and sold and that, therefore, the impugned provisions set out above discriminate against imported untanned hides 262 and skins.
Accepting this contention after referring to the decision in A.T.B. Mehtab 's case (supra) this Court ob served: "In the earlier case, discrimination was brought about on account of sale price of the tanned hides and skins to be higher than the sale price of untanned hides and skins, though the rate of tax was the same, while in the present case, the discrimination does not arise on account of dif ference of the price on which the tax is levied as the tax on the tanned hides and ' skins is levied on the amount for which those hides and skins were last purchased in the untanned condition, but on account of the fact that the rate of tax on the sale of tanned hides and skins is higher than that on the sale of untamed hides and skins.
The rate of tax on the sale of tanned hides and skins is 2 per cent on the purchase price of those hides and skins in the untanned condition while the rate of tax on the sale of raw hides and skins in the State during 1955 to 1957 is 3 pies per ,rupee.
The difference in tax works out to 7/16 paise of a rupee, i.e., a little less than 1/2 naye paise per rupee.
Such a discrimination would affect the taxation upto the 1st of August 1957 when the rate of tax on the sale of raw hides and skins was raised to 2 per cent of the sale price.
" Prima facie the ratio of these two decisions applies to the facts of the present case.
However, it was contended by the learned counsel for the Revenue before the High Court that this Court has struck a new or different note in the cases of State of Madras vs N.K. Nataraja Mudaliar, ; ; Rattan.
Lal & Co. vs Assessing Authority, ; and Associated Tanners vs Commercial Tax Officer Vizianagaram, and Others, [19861 62 STC 1 and this argument was accepted and the impugned provisions were held valid by the High Court in the decision under appeal.
The point that was raised in the State of Madras vs N.K. Nataraja Mudaliar (supra), was that Section 8(2)(2A) and (5) of the Central Sales Tax which permitted levy of tax on inter State sale at varying rates in different States were invalid.
In order to understand the exact ratio of the judgment which was noticed in the judgment itself, we have to note the development of the law relating to imposition of tax on interState sale.
In exercise of the powers conferred under Entry 58 List 11 of the Seventh Schedule in Government of India Act and the corresponding Entry 54 of List 2 of the Seventh Schedule to the Constitution 263 which enable the State to legislature on taxes on the sale or purchase of goods other than newspaper various States enacted sales tax laws for the respective States acting on the principle of territorial nexus and picked out one or more ingredients constituting a sale and made it or them the basis of imposing liability for sales tax.
This led to the imposition of multiple taxation on a single inter State transaction by different States, each State relying upon some territorial nexus between the State and the sale.
The constitutional validity of these provisions were questioned on the basis of the restriction placed on the legislative power under the Constitution.
In the State of Bombay vs United Motors (India) Ltd.; , this Court held that importing State is competent to levy tax on transac tions of sale in the course of inter State sale or commerce on persons who are resident outside the territory, provided that the goods were delivered in the importing State for the purpose of consumption therein.
Thus the delivery for con sumption within the State was considered to be a point at which the tax can be levied on inter State sale.
But this decision made the dealer carrying on business in the export ing State amenable to the sales tax law of the importing State.
The question was again considered by this Court in Bengal Immunity Company Ltd. vs State of Bihar, This Court held in that case that a sale or purchase in the course of inter State sale, trade or commerce could not be taxed by any State until by law it was provided otherwise by Parliament.
This led to the amendment of the Constitution by the Constitution (Sixth Amendment) Act, 1956.
By that amendment Article 286 was amended.
Entry 92A was added to the Union List and Entry 54 was also suitably amended.
The Parliament then enacted the .
In respect of the certain transactions which were held by the assessing authorities as inter State sales the assessee moved the High Court of Madras under Article 226 seeking a writ of certiorari quashing the order of assessment on the ground that the provisions of the which permitted levy of tax at varying rates in different States on similar inter State transactions and thereby resulting in inequality in burden of tax, affected and impeded inter State trade, commerce and intercourse which are prohibited under Article 301 and 303(1) of the Constitu tion.
The tax under the Central Sales Tax is payable by the seller.
The State from which the movement of goods commences in the course of inter State sale collects the tax as agent of the Central Government but section 9(4) provides that the tax collected under the Act in any State on behalf of the Government of India are to be assigned to that State.
The scheme of the has been neatly summa rised if we 264 may say so with respect, in State of Madras vs
N.K. Nataraja Mudaliar (supra) and no apology, is needed to quote that passage in extenso, which reads as follows: "The scheme of the Act was first to devise definitions of 'inter State sales ' and 'sales outside the State ', and then to declare inter State sales subject to tax, and to 'set up machinery for levying and collecting tax on those sales.
Transactions in goods which were made subject to tax in the course of inter State trade or commerce were classified into three broad categories (1) transactions falling within section 8(1) i.e. all sales to Government, and sales to a registered dealer other than the Government of goods referred to in sub s (3) of section 8(2) transactions falling within section 8(2)(a) i.e., sales in respect of declared goods; and (3) transac tions falling within section 8(2)(b) i.e. sales not falling within (1) in respect of goods other than declared goods.
Sales of goods in category (1) were declared liable at the relevant time to pay a tax of two per cent, on the turnover.
On sales of declared goods tax was to be calculated at the rate applicable to the sale or purchase of such goods inside the appropriate State.
But by section 15 the tax payable under a State law in respect of any sale or purchase of declared goods inside the State was not to exceed two per cent of the sale or purchase price thereof, and was not leviable at more than one stage.
On turnover from sale of goods not falling within categories (1) & (2) the rate was seven per cent, or the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever was higher.
But by sub section
(2A) of section 2 it was provided that notwithstanding anything contained in sub section
(1) or sub section
(2), if under the sales tax law of the appropriate State the sale or purchase, as the case may be, of any goods by a dealer is exempt from tax generally or is subject to tax generally at a rate which is lower than two per cent.
the tax payable under the Act on the turnover insofar as the turnover or any part therefore relates to the sale of such goods shall be nil, or as the case may be shall be calculated at the lower rate.
There is a slight inconsistency between section 8(2) and section 8(2A).
if the rate of tax under the State law is less than two per cent by virtue of section 8(2A), even in respect of turnover falling within section 8(2)(b), the rate of tax will not exceed the State rate; if the State rate exceeds two per cent, tax at the rate of seven 265 per cent or of the State, whichever is higher, shall pre vail.
But that has no beating on the question under discus sion.
" The main contention in Nataraja Mudaliar 's case was that the liability to pay tax on inter State transaction depend ing upon the rate of tax prevailing in the exporting State, hampers trade and commerce by giving or authorising the giving of preference to one State over another or by making or authorising the making of discrimination between one State and another violating the provisions of Articles 30 1 and 303(1) of the Constitution.
After noting the decisions that every imposition of tax does not amount to restriction or impediment of the free flow of trade or commence but that levy which directly and immediately impede or hampering the free flow of trade or commerce only will fail within the provisions imposed by Articles 301, this Court considered the question whether tax imposed under sub sections (2)(2A) and (5) of section 8 of the on inter State sales do no amount to law giving or authorising the giving of any preference to one State over the other on the ground of varying rates of tax prevailing in different States.
It was argued in that case that the rates of tax on the sale of the same or similar commodity by different States by itself was discriminatory since it authorised the placing of unequal burden on inter State trade or commerce affecting its free flow between the States.
It was further contended that since the rates of tax prevailing in differ ent States on transactions of sale were not uniform the impugned provisions affected the free movement or flow of goods in inter State trade.
Rejecting this contention this Court held that: "The flow of trade does not necessarily depend upon the rates of sales tax: it depends upon a variety of factors, such as the source of supply, place of consumption.
exist ence of trade channels, the rates of freight, trading facil ities, availability of efficient .transport and other facil ities for carrying on trade.
Instances can easily be imag ined of cases in which notwithstanding the lower rate of tax in a particular part of the country goods may be purchased from another part where a higher rate of tax prevails.
Supposing in a particular State in respect of a particular commodity, the rate of tax is 2% but if the benefit of that low rate is offset by the freight which a merchant in anoth er State may have to pay for carrying that commodity over a long distance, the merchant would be willing to purchase the goods from a nearer State, even though the rate of tax in that State may be higher.
Existence of long standing busi ness 266 relations, availability of communications, credit facilities and a host of other factors natural and business enter into the maintenance of trade relations and the free flow of trade cannot necessarily be deemed to have been obstructed merely because in a particular State the rate of tax on sales is higher than the rates prevailing in other States." and that "by authorising the State from which the movement of goods commences to levy on transactions of sale Central Sales Tax at rates prevailing in the State subject to the limitations already set out, in our judgment no discrimination can be deemed to be practiced.
" As may be seen from the above discussion the decision in Nataraja Mudaliar 's case (supra) related to a levy of sales tax on interState sale under the by a State in which the movement of goods commenced subject to certain exceptions and limitations.
If the rate of tax on inter State sale was the same as that for inter State sale no discrimination can be said to arise.
After referring to the decisions in Nataraja Mudaliar 's case (supra) and Hajee Abdul Shakoor 's case (supra) and distinguishing the same this Court further observed: "In the two cases the differential treatment violated article 304(a) of the Constitution, which authorises the Legislature of a State notwithstanding anything in articles 30 1 and 303 by law to "impose on goods imported from other States or the Union territories any tax to which similar goods manufac tured or produced in that State are subject, so however, as not to discriminate between goods so imported and goods so manufactured or produced.".
Imposition of differential rates of tax by the same State on goods manufactured or produced in the State and similar goods imported in the State is prohibited by that clause.
But where the taxing State is not imposing rates of tax on imported goods different from rates of tax on goods manufactured or produced, article 304(a) has no application.
Article 303 prohibits the making of law which gives, or authorises the giving of, any preference to one State over another, or makes, or authorises the making of, and dis 267 crimination between one State and another.
Prevalence of different rates of sales tax in the State which have been adopted by the for the purpose of levy of tax under that Act is, as already mentioned, not, deter minative of the giving of preference or making a discrimina tion.
" What is relevant is that A.T.B. Mehtab 's case (supra) and Hajee Abdul Shakoor 's case (supra) are concerned with hides and skins tanned inside the State but by reason of the raw material having suffered the tax, the goods tanned out such raw material was exempted from tax which in effect means not taxable goods or the tax is nil.
That is how the discrimination arose in those two cases.
We may also mention that Nataraja Mudaliar 's case (supra) did not dissent from the ratio of the judgment in Mehtab Majid & Co 's case (supra) or Hajee Adbul Shakoor 's case (supra).
In Rattan Lal & Co. & Anr.
vs The Assessing Authority & Anr.
(supra) the discrimination pleaded was that in fixing the stage of tax for declared goods section 5(3) of the Act made a discrimination between imported goods and local goods.
That provision reads as follows: "(3) Notwithstanding anything contained in this Act (a) in respect of declared goods tax shall be levied at one stage and that stage shall be (i) in the case of goods liable to sales tax, the stage of sale of such goods by the last dealer liable to pay tax under this Act; (ii) in the case of goods liable to purchase tax, the stage of purchase of such goods by the last dealer liable to pay tax under this Act; The argument was that there is a discrimination between the first purchase in the case of imported goods and last sale in the case of local goods.
Since the imported goods might be more expensive by reason of freight etc.
or inter mediary sales having taken place, it was said, that the burden of tax will be heavier and, therefore, this will offend against the equality clause under Article 304 of the Constitution.
Overruling this objection this Court held: 268 "The rate of tax is same in every case.
In State of Madras vs N.K Nataraja Mudaliar, [1969] 1 SCR, this Court stated that the essence of articles 30 1 and 303 is to enable the State by a law "to impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in the State and subject, so, however as not to discriminate between goods so imported and goods so manufactured or produced.
" It was pointed out by this Court that "imposition of differential rates of tax by the same State on goods manufactured or produced in the State and similar goods imported in the State is prohibited by that clause.
But where the taxing State is not imposing rates of tax on imported goods different from rates of tax on goods manufactured or produced, article 304 has no application.
Here also the tax is at the same rate and there fore the tax cannot be said to be higher in the case of imported goods.
It may be that when the rate is applied the resulting tax is somewhat higher but that does not offend against the equality contemplated by article 304.
That is the consequence of ad valorem tax being levied at a particular rate.
So long as the rate is the same article 304 is satisfied.
Even in the case of local manufactures if their cost of production varies, the net tax collected will be more or less in some cases but that does not create any inequality because inequality is not the result of the tax but results from the cost of production of the goods or the cost of their importation.
This ground, therefore, has also no substance.
In Associated Tannerse vs Commercial Tax Officer Vizi anagaram & Ors.
(supra) the facts were these.
The assessee was a tanner who had a tannery at Vizianagaram and was at the material time a dealer under the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter called the 'State Act ') as well as the (hereinafter called the 'Central Act ').
The assessee purchased raw hides and skins in the State of Andhra Pradesh and tanned the same.
He was selling mostly the tanned hides and skins in the course of inter State trade.
The assessing officer assessed the assessee 's interState sales under the Central Act.
The assessee filed a writ petition in the High Court questioning the constitutional validity of item 9(b) of Schedule III of the Andhra Pradesh General Sales Tax Act as unconstitutional and void and for a further declaration that no tax could be 269 levied or was leviable under the on inter State sales of tanned hides which had already suffered tax at the untanned stage.
Thus the question for considera tion was whether tanned hides and skins which has already suffered tax at the untanned stage when sold in inter State sale was liable for levy of tax under the Central Act.
This was raised in this form because tanned hides and skins which were not subjected to tax as untanned hides and skins alone was liable for the levy under items 9(b) of Schedule III of the State Act.
The High Court dismissed the writ petition relying on the Nataraja Mudaliar case (supra) and Rattan Lal & Co. case (supra).
The assessee preferred an appeal by special leave.
This Court was of the view that the point involved in the case was no longer res integra and it is covered by the decision in Nataraja Mudaliar case and held since "the rate of tax was the same, both for the goods brought from outside as well as local goods and it cannot be said that the taxation did directly and immediately restrict or hamper the free flow of trade, commerce, or intercourse and it offended Article 304 (a).
" But it is pertinent to point out the further passages appearing in the judgment which actually show the ratio of the judgment.
The learned Judges observed: "It further appears to us that there is another aspect.
The levy by the State Act is in consonance with the scheme of the Central Act.
By sub section (2) of section 8 of the Central Act, the tax payable by any dealer on his turnover in so far as the turnover or any part thereof relates to the sale of goods in the course of inter State trade or commerce not falling under sub section (1), shall be at the rate specified in sub section (2) of section 8." and this Court further observed: "The effect of an imposition of tax might work differently upon different dealers, namely, those who use imported tanned goods and those who purchase these locally and tan these locally and then sell in the course of inter State sales.
But that effect cannot be said to be arising direct ly, or as an immediate effect of the imposition of the tax.
Therefore there cannot be any question of violation of article 304(a) of the Constitution.
There is another aspect of the matter.
The imposition in this case was in implementation of the Central Act and it was submitted on behalf of the respondent that there was 270 no prohibition under article 304 of the Constitution on the Parliament for imposition of any law.
The embargo that was placed by article 304 of the Constitution was on the Legis lature of a State.
Sub article (a) of article 304 of the Constitution reads as follows: "304.
Restrictions on trade, commerce and intercourse among States.
Notwithstanding anything in article 30 1 or article 303, the Legislature of a State may by law (a) impose on goods imported from other States or the Union Territories any tax to which similar goods manufactured or produced in that State was subject, so, however, as not to discriminate between goods so imported and goods so manufac tured or produced.
" Therefore the prohibition was not on the Parlia ment.
But in the view we have taken on the first aspect of the matter and in view of the decisions of this Court in the cases of State of Madras vs
N.K. Nataraja Mudaliar, [1968] 22 STC 376 (SC); ; and Rattan Lal & Co. vs Assessing Authority, [1970] 25 STC 136 (SC): ; , it is not necessary for us to discuss this aspect any further. ' ' It may be seen from these passages cited that the ratio of the decision as in the case of Nataraja Mudaliar, case (supra) was that in the case of inter State sale the levy of tax is under the Central Sales Tax only though for the purposes of rates of tax that rate which is applicable to local sales is adopted subject to the maximum mentioned in section 8(2) of the Central Act and these decisions have no application to a case where the discrimination pleaded with reference to a provision in State law imposing taxes with reference to local as well as in respect of the imported goods.
As we have already noticed the States have no legis lative power to tax inter State sales and it is only the Parliament that could make law.
The Central Act is the law relating to tax on inter State sales made by Parliament.
The State from which the movement of goods commences in the course of inter State sale collects the tax as agent of the Central Government.
On sale of declared goods tax was to be levied and collected at the rate applicable to the sale or purchase of such goods inside the appropriate State subject to the maximum prescribed under section 15 and the restric tion relating to 271 taxing it at single point.
This is also further subjected to the rates prevailing for local sales.
It is with respect to these provisions, in the three decisions in Nataraja Mudali ar case, Rattan Lal & Co. case and Associated Tanner case this Court held that so long the rates applicable are in accordance with section 8 no discrimination would arise and none of the provisions of part XIII of the Constitution could be said to have been offended.
But the case on hand is not one arising out of Central Act.
The tax was levied under the State Act in respect of steel semis.
The State Act exempted steel semis which have been manufactured out of iron scrap which have suffered tax but not the other catego ries where the scrap had not suffered tax at that stage.
This is directly covered by the decision in A.T.B. Mehtab 's case (supra) and that decision has not been dissented in Nataraja Mudaliar case (supra) or Rattan Lal & Co 's case (supra).
The decision in A.T.B. Mehtab 's case (supra) is by a Constitution Bench and had not been dissented so far in any case.
The ratio of the judgment being fully applicable, the judgment of the High Court under appeal is not accept able.
We accordingly hold that the provision which is impugned in this case is ultra vires and accordingly set aside the judgment of the High Court and allow the writ petition filed by the assessee in the High Court.
There will be no order as to costs.
T.N.A. Appeals allowed.
| IN-Abs | The appellant, a registered dealer under the Karnataka Sales Tax Act, 1957, was purchasing iron scraps from dealers inside and outside the State of Karnataka for the purpose of manufacturing iron ingots, steel rounds and for steel.
He filed a writ petition in the High Court challenging the Constitutional validity of Section 5(4) of the Act in so far as it pertains to item 2 of Schedule IV to the Act read with Explanation II thereof in respect of its application prior to 1.4.78 as violative of Article 304(a) of the Constitution on the ground that it discriminates in respect of sale of steel ingots manufactured out of raw material purchased from outside the State which was subject to tax while sale of similar goods manufactured out of locally purchased raw material was not subjected to tax.
The High Court dismissed the writ petition upholding the constitutional validity of the impugned provisions.
Hence this appeal by special leave.
Setting aside the judgment of the High Court and allow ing the appeal, this Court, 253 HELD: 1.
The similarity contemplated by Article 304(a) is in the nature of the quality and kind of the goods and not with respect to whether they were subject to a tax already or not.
[262A] 2.
Section 5(4) of the Act in so far it pertains to item 2 of Schedule IV to the Act read with Explanation II thereof in respect of its application for the period prior to 1.4.1978 is violative of Article 304(a) of the Constitution.
[255C D; 272D] Firm A.T.B. Mehtab Majid and Co. vs State of Madras andAnr., [1963] Suppl.
2 SCR 435 and A. Hajee Abdul Skakoor and Co. vs State of Madras, ; , followed.
State of Madras vs
N.K. Nataraja Mudaliar, [19681 3 SCR 829; Rattan Lal & Co. vs Assessing Authority, ; and Associated Tanners vs Commercial Tax Officer, Vizi anagaram and Ors., [1986] 62 STC 1, explained.
Mangalore Metal House vs State of Karnataka, [1986] 63 STC 482; State of Bombay vs United Motors (India) Ltd., ; and Bengal Immunity Company Ltd. vs State of Bihar, , referred to.
|
vil Appeal Nos.
2270 73 of 1987 & 17 13/1990.
From the Judgment & Order dated the 11.8.1978 of the Karnataka High Court in Writ Petition No. 4609/76, 4610/76 & 4611 of 1976.
P.P. Rao and S.R. Bhatt for the Appellants.
M. Veerappa for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
Special leave granted.
These appeals are directed against the judgment of a Division Bench of the High Court of Karnataka dated August 11, 1978 dismissing the appellants ' writ petition under Article 226 of the Constitution of India challenging validi ty of the revised select list prepared by the Karnataka Public Service Commission for appointment to the posts of Tehsildars.
In the State of Karnataka recruitment to the posts of Tehsildars is regulated by the Karnataka Administrative Services (Tehsildars) Recruitment (Special) Rules 1975 (hereinafter referred to as 1975 Rules).
The Karnataka Public Service Commission (hereinafter referred to as the Commission) issued a Notification on May 23, 1975 (published on May 29, 1975) inviting applications from in service candidates for recruitment to 50 posts of Tehsildars.
Para graph 3 of the Notification specified details of the posts reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward classes including 10% of posts set apart for Ex Military Personnel.
According to the figures specified, therein, out of 50 posts of 243 Tehsildars, 5 posts were reserved for Ex Military Personnel, 7 posts for Schedule Castes, 1 post for Schedule Tribes and 13 posts for other Backward classes.
Paragraph 3 of the advertisement stated that in the event of non availability of sufficient number of candidates belonging to Scheduled Castes.
Scheduled Tribes and other Backward classes or Ex Military personnel, for filing to the reserved vacancies, such vacancies shall be filled up as per Rules in force.
The Notification further gave details of the written and viva voce examinations.
Para 14 of the Notification stated that the provisions of 1975 Rules and Rules 7 to 14 of the Karna taka Recruitment of Gazetted Probationers (Class I and II posts Appointment by Competitive Examination) Rules 1966 (hereinafter referred to as 1966 Rules), shall mutatis mutandis apply to the conduct of the competitive examination and the provisions of the Karnataka State Civil Services (General Recruitment) Rules 1957 (hereinafter referred to as 1957 Rules) shall apply in respect of matters for which no provision is made in the Rules.
Pursuant to the advertisement, the appellants who were in service of the State Government applied for their selection and appointment to the posts of Tehsildars.
After the written examination and viva voce test the Commission finalised the list of successful candidates and published the same in the Karnata ka Gazette dated March 18, 1976.
The Commission also noti fied in additional list of successful candidates for ap pointment to the posts of Tehsildars in accordance with 1975 Rules, which included the names of the appellants.
In pre paring the select list and making reservation to the various categories, the Commission followed the directions and the procedure as contained in the Government Order dated 6th September 1969.
The State Government refused to approve the list prepared by the Commission as in its opinion the reser vation for the Scheduled Castes, Scheduled Tribes and other Backward classes should have been made in accordance with the directions and procedure contained in the Government Order dated 9th July 1975.
The State Government by its order dated 23rd April 1976 directed the Commission to prepare a fresh list of successful candidates by making reservations in accordance with the procedure contained in the Government order dated 9th July 1975.
Pursuant to the directions of the State Government the Commission prepared the select list afresh, after making reservations in accordance with the procedure prescribed by the Government Order dated 9th July 1975, and published the same on 27th May 1976.
The appel lants ' names did not figure in the revised list of candi dates.
The appellants challenged validity of the Government Order dated 23rd April 1976 as well as the revised list prepared by the Commission and also the validity of the Government Order dated 9th July 1975, by means of writ petitions before the High Court 244 on a number of grounds.
A Division Bench of the High Court by its order dated 11th August 1978 dismissed the petitions.
Hence these appeals.
The appellants had challenged validity of the Government Order dated 9th July 1975, prescribing mode for preparing the select list by, making reservation for Scheduled Castes, Scheduled Tribes and other Backward classes, on the ground that the same was inconsistent with the statutory Rule 10 of 1966 Rules and further on the ground that the directions contained therein were violative of Articles 16(1) and 16(4) of the Constitution Of India.
The High Court rejected both the contentions holding that the directions contained in the Government Order dated 9th July 1975 were not violative of Rule 10(2) and there was no violation of Article 16 of the Constitution.
The High Court upheld the Government Order dated 23rd April 1976 directing the Commission to prepare the select list afresh in accordance with the mode pre scribed under the Government Order dated 9th July 1975.
Learned counsel for the appellants did not pursue the chal lenge relating to the validity of the Government Order dated 9th July 1975 before us instead he assailed the validity of the State Government 's Order dated 23rd April 1976 directing the Commission to prepare a revised list in accordance with the Government Order dated 9th July 1975, on the ground the Government Order was not applicable to the selection. 'Learned counsel for the appellants urged that the Commission had rightly prepared the list of successful candidates published on 18th May 1976 in accordance with the directions contained in the Government Order dated 6th September 1969 by making reservation of posts of Scheduled Castes, Scheduled Tribes and other Backward classes but the State Government wrongly refused to approve the said list.
He urged that the mode of selection and procedure for making reservation as prescribed by the Government Order dated 9th July 1975 was not applicable to the selection as advertise ment had been issued in May 1975, and the process of selec tion had already commenced prior to the issue of the Govern ment Order dated 9th July 1975.
The revised list of success ful candidates prepared by the Commission pursuant to the Government 's directions dated 23rd April 1976 was illegal and contrary to the Rules.
Learned counsel for the respond ents submitted that the Government Order dated 9th July 1975 prescribed mode of selection and it also prescribed proce dure for making reservations for Scheduled Castes, Scheduled Tribes and other Backward classes in supersession of the earlier Government Order including the Government Order dated 6th September 1969 therefore the Commission was 245 found to follow the procedure as prescribed in the aforesaid order in preparing the select list.
Since the list of suc cessful candidates had not been prepared in accordance with the Government Order dated 9th July 1975 the State Govern ment was justified in insisting upon the Commission to prepare the list afresh in accordance with the directions contained in the aforesaid Government Order.
The question which requires determination is, which of the two Government Orders, namely, 6th September 1969 and 9th July 1975, the Commission was required to be followed in preparing the select list for appointment to the posts of Tehsildars as both the Government Orders contained direc tions for making reservations in preparing the select list.
In order to determine the question, it would be necessary to refer to the directions contained in the two Government Orders.
There is no dispute that the recruitment of in service candidates for the 50 posts of Tehsildars in dis pute, was regulated by the 1975 Rules framed under Article 309 of the Constitution as published in the Gazette on 20th March 1975.
Rule 5 laid down that the provisions of Rules 7 to 14 of 1966 Rules shall mutatis mutandis apply to conduct of competitive examination and the provisions of Karnataka State Civil Services (General Recruitment) Rules 1957 shall apply in respect of matters for which no provi sion is made in the Rules.
The aforesaid Rules do not pre scribe any procedure for preparation of select list or for making reservations but in view of Rule 5 the provisions of other Rules are made applicable.
Rule 10 of the Karnataka Rules 1966 which provides for reservations for Scheduled Castes, Scheduled Tribes and other Backward classes was applicable in view of Rule 5 of 1975 Rules.
Rule 10 of 1966 Rules is as under: "10.
Reservation for Scheduled Castes, Scheduled Tribes and other backward classes (1) There shall be reservation of vacancies for candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes to the extent provided for by the Government by any general or special orders.
(2) In filling the vacancies to reserved, candi dates who are members of the Scheduled Castes and Scheduled Tribes and other Backward Classes shall be considered for appointment in the order of merit in which their names appear in the list of successful candidates irrespective of their relative rank as compared with other candidates and to services according to the reservation made for them in such services.
246 (3) If a sufficient number of candidates who are members of the Scheduled Castes, Scheduled Tribes and other backward classes are not available for filling up the vacan cies reserved for them, such vacancies shall be filled up by the appointment of other candidates in the list.
" Pursuant to Clause (1) of Rule 10 of the State Government has been providing for reservation of vacancies in favour of candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward classes by means of executive orders issued from time to time.
The Government Order dated 6th September 1969, was issued under Rule 10(1) which provided that reservations for appointment to post in the State Civil Service shall continue to be made in favour of Scheduled Tribes, Scheduled Castes and other Backward classes to the extent of 3%, 15% and 30% respectively, where the posts are filled up by direct recruitment.
Para 5 of the Government Order directed that the Commission and other recruiting authorities shall follow the procedure prescribed in Annex ure 2 to the Government Order in making reservations and preparing list of selected candidates.
There is no dispute that the Commission had prepared the select list which was published on 18th March 1976 in accordance with the proce dure laid down in Annexure 2 to the Government Order dated 6th September 1969.
During the pendency of selection, the State Government issued the order dated 9th July 1975 revising the extent of reservation and also prescribing a different mode of selec tion.
Para 4 of that Government Order laid down that while making appointment to the State Civil Services, reservation in favour of Scheduled Castes, Scheduled Tribes, Backward Tribes and other Backward classes shall be made to the extent of 15%, 3%, 3% and 28% respectively, in case of direct recruitment.
Para 6 of the Order further directed that in case of direct recruitment where the selection is made by the Public Service Commission or any other recruit ing authority, the procedure as prescribed in Annexure 2 to the Order shall be followed in preparing the list of select ed candidates.
Annexure "to the Order prescribed mode of selection, which is quite different than that contained in Annexure 2 to the Government Order dated 6th September 1969.
It is not necessary to go into the details of the two modes as there is no dispute that the Commission had followed the procedure as prescribed under Annexure .? to the Government.
Order dated 6th September 1969 and the list, so prepared was not approved by the State Government as it was of the opin ion that the Commission should have followed the mode of selection as contained in Annexure 2 to the Government Order dated 247 9th July 1975 in preparing the select list.
It appears that the Commission insisted before the State Government that in view of Para II of the Government Order dated 9th July 1975 reservations made in favour of Scheduled Castes, Scheduled Tribes and other Backward classes already notified before the issue of Government Order dated 9th July 1975 remain unchanged therefore the provisions of the Gov ernment Order dated 6th September 1969 had to be followed both in regard to reservations and the mode of selection.
The State Government by its Order dated 23rd April 1976 refused to accept the Commission 's plea and it directed the Commission to prepare a revised list in accordance with the provisions of Government Order dated 9th July 1975.
The State Government while rejecting the Commission 's plea and issuing the aforesaid direction made observations as under: "Para 11 of the G.O. dated 9th July 1975 supersedes a11 the previous Government Orders cited in the preamble to that order, including the G.O. dated 6th September 1969.
The same para states that the order, came into force with immediate effect, but makes only one exception i.e. in the matter of reservations already made in the cases of posts and serv ices, for which advertisement had been issued prior to the coming into force of the G.O. dated 9th July 1975.
This means that except in the matter of reservations made in posts for which applications had already been called for, in all other matters the provisions of the G.O. dated 9th July 1975 would apply.
The words are clear that the intention is also clearly spelt out.
Hence so far as the mode of selec tion is concerned, the one prescribed in Annexure II to the G.O. dated 9th July 1975 will have to be followed in respect of all selections made after that date either a literal construction or a harmonious construction of the various clauses of the G.O. dated 9th July 1975 leads to the above conclusion.
For these reasons the Commission 's view that in respect of posts already advertised prior to the issue of the Government Order dated 9th July 1975, the mode of selec tion prescribed in the earlier Government Orders and to be followed is not acceptable to Government.
" In our opinion the State Government 's view was contrary to the directions contained in para 11 of its Order dated 9th July 1975, which is as under: 248 1.
This Government Order supersedes the Government Order cited in the preamble and shall come into force with immediate effect, subject to the provision that the reserva tion already made for any category of posts or service and advertised before the issue of this Government Order shall remain unchanged and shall be deemed to have been validly made.
All official memoranda, Circulars and instructions issued in pursuance of the Government Orders superseded by this Government Order shall also be deemed to have been superseded if such instructions are contrary to the provi sions of this Government Order." (emphasis supplied).
Indisputably the aforesaid Government Order superseded all earlier Government Orders on the subject including the Government Order dated 6th September 1969 but while super seding those orders provision was made in para 11 to save the selection which was pending.
Para 11 clearly stated that though earlier Government Orders laying down percentage of reservation required to be made in favour of Scheduled Castes, Scheduled Tribes and other Backward classes includ ing the mode of selection in preparing the select list, stood superseded, but it saved the reservations made for any category of post or service in respect of which advertise ment had already been issued before the issue of the Govern ment Order dated 9th July 1975.
This follows from the ex pression "reservations already made for any category of posts or service and advertised before the issue of this Government Order shall be deemed to have been validly made".
These directions stipulated that where reservations were already made and advertisement had been issued, and the selection was pending on 9th July 1975, the same shall remain unaffected and the selection shall be made in accord ance with the earlier Government Orders, and the same shall be treated to have been made validly.
Para 11 is in the nature of a saving clause, its object and purpose, was to save the selections in respect of which proceedings had already been initiated by issuing advertisement.
In view of the Government 's own directions, as contained in para 11 of its Order the amended mode of selection was not applicable therefore the Commission rightly followed the mode of the selection prescribed under the Government Order dated 6th September 1969 as admittedly the said Order was in force prior to 9th July 1975.
The State Government 's interpretation of para 11 of its Order dated 9th July 1975 was incorrect and wrong.
It failed to appreciate that in the instant case reservations.
had already been made and 249 notified under the advertisement published on 18th May 1975.
Therefore the conditions precedent contemplated in para 11 were fully satisfied.
In this view the selection made by the commission by following the reservations and the mode of selection as prescribed under the provisions of the Govern ment Order dated 6th September 1969 were deemed to have been made validly in accordance with the provisions of para 11 of the Government Order.
It is relevant to point out that the Government Orders dated 6th September 1969 and 9th July 1975 both had been issued by the Government in exercise of its statutory power under Rule 10 of 1975 Rules, making provi sions for reservations and prescribing mode of selection.
A Government Order issued in exercise of statutory powers acquires statutory force, therefore, the provisions con tained in the aforesaid Government Orders including the provisions of para 11 of the Government Order dated 9th July 1975 also acquired statutory character.
Though para 11 superseded earlier Government Orders but it expressly saved the pending selections where reservations were already made and advertisement had been issued.
Para 11 being statutory in nature was binding on the Government and the Government had no authority to direct the Commission by means of Admin istrative Order to revise the Select List in accordance with the amended mode of selection as prescribed under the Gov ernment 's Order dated 9th July 1975.
In our opinion the State Government was bound to give full effect to the provi sions of Para 11 of the Government Order dated 9th July 1975 and therefore directions contained in its order dated 23rd April 1976 were illegal.
There is yet another aspect of the question.
Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders.
Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selections in accordance with the terms and conditions contained in the advertisement, unless the adver tisement itself indicates a contrary intention.
Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertise ment, however he has no absolute right in the matter.
If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules.
Whether the Rules have 238 retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent.
The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selec tion must be regulated in accordance with the Rules and orders which were in force on the date of advertisement.
Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders.
Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms con tained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement.
He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature.
In B.N. Nagarajan & Ors.
vs State of Mysore & Ors.
, , the dispute related to the validity of appointment of Assistant Engineers.
The Public Service Commission invited applications by issuing Notifications for appointment to the post of Assistant Engineers in October 1958, May 1959 and April 1960.
The Commission made selec tion, interviewed the candidates and sent the select list to the Government in October/November 1960.
But before the appointment could be made the Mysore Public Works, Engineer ing Department Services (Recruitment) Rules 1960 came into force which prescribed different provisions than those prescribed in the earlier Notifications in pursuance whereof the Public Service Commission had made the selections.
The validity of the appointment made by the Government on the basis of the selection made by the Commission was chal lenged.
The High Court quashed the selection and appoint ments made in pursuance thereof.
On appeal before this Court, validity of the appointment were assailed on the ground that since the appointments had been made after the amendment of the Rules the appointments should have been made in accordance with the amended Rules.
A Constitution Bench of this Court rejected the contention holding that since the whole procedure of issuing advertisement, holding interviews and recommending the names having been followed in accordance with the then existing Rules prior to the enforcement of the amended Rules the appointments made on the basis of the recommendation made by the Public Service Commission could not be rendered invalid.
250 In Y.V. Rangaiah
J. Sreenivasa Rao, similar Question arose relating to recruitment by promotion.
The question was whether promotion should be made in accord ance with the Rules, in force on the date the vacancies occurred or in accordance with the amended Rules.
The Court observed as under: "The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules.
It is admitted by counsel for both the parties that henceforth promotion to the post of Sub Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewise basis and, therefore, there was no question of challenging the new rules.
But the question is of filling the vacancies that occurred prior to the amended rules.
We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
" The same view was taken in P. Ganeshwar Rao & Ors.
vs State of Andhra Pradesh & Ors., [1988] Supp.
SCC 740.
Similar view was taken in A.A. Calton vs Director of Education & Ors., [ 1983] 3SCC 33.
It is a well accepted principle of construc tion that a statutory rule or Government Order is prospec tive in nature unless it is expressly or by necessary impli cation made to have retrospective effect.
Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government Orders and any amendment of the rules or the Government Order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amend ed rules or the amended Government orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections.
See P. Mahendra & Ors.
vs State of Karnataka & Ors.
, [1989] 4 Judgment Today SC 459.
In the instant case, para 11 of the Government Order dated 9th July 1975 made the Government 's intention clear that the revised directions which were contained in that Government Order would not apply to the selections in re spect of which advertisement had already been issued, there fore the mode of selection as contained in Annexure 2 to the Government Order dated 9th July 1975 was not applicable to the selection for filling the 50 posts of Tehsildars pending before the Public Service Commission.
We are, therefore, of the opinion that the 251 select list including the additional list as prepared by the commission and published in March 1976 was legal and valid and though Government wrongly refused to approve the same.
The State Government 's Order dated 23rd April 1976 directing the Commission to prepare fresh list in accordance with the mode of selection as contained in Annexure 2 to the Govern ment Order dated 9th July 1975 was illegal consequently the select list prepared afresh by the Commission pursuant to the directions of the State Government is not sustainable in law.
Since the additional list prepared by the Commission contained the names of the appellants, they were entitled to appointment to posts of Tehsildars.
We accordingly allow the appeals set aside the order of the High Court and direct the State Government to appoint the appellants to the posts of Tehsildars, on the basis of additional list published by the Commission on 18th March 1976.
During the pendency of the writ petition before the High Court, appointments were made to the posts of Tehsildars on the basis of the revised list prepared by the Commission in accordance with the directions of the State Government dated 23rd April 1976.
Pursuant to the interim direction of the High Court the appointment orders contained a specific term that the appointments would be subject to the result of the writ petition filed by the appellants.
Since the appellants have succeeded, the respondents ' appointment is liable to be set aside.
The respondents have been working for a period of about 14 years, it would cause great hardship to them if their appointment is quashed, and they are directed to vacate the office which they have been holding during all these years.
At the same time the appellants have been wrongly denied their right to the posts of Tehsildars.
Having regard to these facts and circumstances, we are of the opinion that it would be expedient in the interest of justice not to interfere with the respondents ' appointment but at the same time steps should be taken to enforce the appellants ' right to the posts of Tehsildars.
In this view, we direct the State Government to appoint the appellants on the posts of Tehsildars with retrospective effect, but if no vacancies are available the State Government will create supernumerary posts of Tehsildars for appointing the appel lants against those posts.
We further direct that for pur pose of seniority the appellants should be placed below the last candidate appointed in 1976, but they will not be entitled to any back wages.
The appellants will be entitled to promotion if otherwise found suitable.
In the circumstances of the ,case, parties shall bear their own costs.
S.B. Appeals allowed.
| IN-Abs | The Karnataka Public Service Commission issued a notifi cation on 23rd May 1975 inviting applications from in serv ice candidates for recruitment to 50 posts of Tehsildars.
In para 14 of the notification it was stated that provisions of 1975 Rules, and Rules 7 to 14 of the Karnataka Recruitment of Gazetted Probationers (Class I & 11 posts Appointment by Competitive Examination) Rules, 1966 shall mutatis mutandis apply to the conduct of the competitive Examination and the provisions of the Karnataka State Civil Services (General Recruitment) Rules, 1957 shall apply in respect of matters for which no provision is made in the Rules.
In preparing the select list and making reservations to the various categories, the Commission followed the direc tions and the procedure as contained in Government Order dated 6th September 1969.
The State Government refused to approve the list and directed the Commission on 23.4.76 to prepare the list afresh following the Government Order dated 7th July 1975.
The Commission thereupon prepared the list afresh as per Government Order of 7th July 1975.
In the revised list, the appellants names did not figure.
The appellants challenged the validity of the Government Order dated 23rd April 1976 as well as the revised list and the validity of the Government Order dated 9th July 1975 by means of writ petitions before the High Court on a number of grounds.
The appellants contended that the Government Order dated 7th July 1975 prescribing mode of preparing the select list by making reservations for various categories was inconsistent with the statutory Rule 10 of 1966 Rules, and further the directions contained therein were violative of Articles 16(1) and 16(4) of the Constitution of India.
240 The High Court rejected both the contentions holding that the directions contained in Government Order of 9th July 1975 were not violative of Rule 10(2) and there was no violation of Article 16 of the Constitution.
The High Court also upheld the Government Order dated 23.4.76 directing the Commission to prepare the select list afresh in accordance with the mode prescribed vide Government Order of 9th July 1975.
In this Court, the appellants did not pursue their challenge to the validity of the Government Order dated 9.7.75 but they assailed the validity of Government Order dated 23.4.76 wherein the Government directed the Commission to prepare a revised list in accordance with the Government Order dated 9.7.75 on the ground that the Government Order was not applicable to the pending selection.
The appellants also urged that the mode of selection and procedure for making reservations as prescribed by Govern ment Order of 9th July 1975 was not applicable to the selec tion as advertisement had been issued in May 1975 and the process of selection had already commenced prior to the issue of Government Order dated 9th July 1975, and that the revised list of successful candidates prepared by the com mission as per Government directions of 23.4.76 was illegal and contrary to the Rules.
On behalf of the Respondents it was submitted that the list of successful candidates had been prepared in accord ance with Government Order dated 9th July 1975, the State Government was justified in insisting upon the Commission to prepare the list afresh in accordance with the directions contained in the aforesaid order.
Allowing the Appeals and setting aside the Order of the High Court, HELD: (1) Where advertisement is issued inviting appli cations for direct recruitment to a category of posts and the advertisement expressly states that selection shall be made in accordance with the existing rules or Government Orders and if it further indicated the extent of reserva tions in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders if any.
(2) Whether the Rules have retrospective effect or not primarily depends upon the language of the Rules and its construction to ascertain the legislative intent.
241 (3) Indisputably the Government Order of 9th July 1975 superseded all earlier Government Orders including that of 6th September 1969 but in para II it saved the selection which was pending i.e. it saved the reservations already made for any category of post or service in respect of which advertisement had already been issued before the issue of Government Order dated 9th July 1975.
Para II was in the nature of a saving clause, and the Commission rightly fol lowed the mode of selection prescribed under the Government Order in force prior to Government Order of 9th July 1975.
The State Government was bound to give full effect to the provisions of para II of Government Order dated 9th July 1975.
therefore directions contained in its order dated 23.4.76 were illegal [248C E; 249E] 4.
Another aspect of the instant case is that where advertisement is issued for direct recruitment to a category of posts expressly stating that selection shall be made in accordance with the existing rules or Government Orders and also indicates the extent of reservations in favour of various categories, the selection of candidates must be made in accordance with these rules and Government Order.
The candidates who applied for selection in pursuance of the advertisement, acquired vested right for being considered for selection in accordance with the terms and conditions of the advertisement.
[249E G] 5.
In case the recruitment Rules are amended retrospec tively during the pendency of the selection then selection has to be made in accordance with the amended rules.
Whether rules have retrospective effect or not primarily depends upon the language of the Rules and its construction to ascertain the legislative intent, either by express provi sion or by necessary implication.
If the amended Rules are not retrospective in nature the selection must be regulated in accordance with the existing Rules and orders in force at the time of advertisement.
[249H; 250A B] (6) It is a well accepted principle of construction that Statutory Rule or Government Order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect.
[251 D] (7) In the instant case, para II of the Government Order dated 9th July 1975 made the Governments intention clear that the revised directions which are contained in the said Government Order would not apply to the selection in respect of which advertisement had already been issued.
Therefore the mode of selection as contained in Annexure to the Gov ernment Order dated 9th July 1975 was not applicable to the selection for filling 50 posts of Tehsildars pending before the Public Service Commission.
[251G H] 242 8.
Having regard to the facts the circumstances of the case.
it would be expedient in the interest of justice not to interfere with the respondents ' appointment but the State Government is directed to appoint I the appellants on the posts of Tehsildars with retrospective effect.
If no vacan cies are available the State Government is directed to create supernumerary posts of Tehsildars for appointing the appellants against those posts.
For purposes, of seniority the appellants should be placed below the last candidate appointed in 1976 but they will not be entitled to any back wages.
[252F G]
|
it Petition No. 1147 of 1988.
(Under Article 32 of the Constitution of India) WITH Civil Appeal No. 1782 of 1990.
330 From the Judgment and Order dated 5.6.1987 of the Punjab and Haryana High Court in C.W.P. No. 13 13 of 1986 R. Venkataramani, Mahabir Singh, M.S. Ganesh and C.M. Nayar for the Appearing Parties.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
The petitioners are law graduates.
They state that they belong to scheduled castes and sched uled tribes segments of the community.
They are seeking enforcement of the right to equality of opportunity in the matter of appointment to posts in the subordinate judiciary in the State of Haryana.
The State of Haryana has reserved 20% of the posts in the Haryana Civil Service (Judicial Branch) for the scheduled castes and scheduled tribes.
It is the case of petitioners that though 20% of the posts in the Haryana Civil Service (Judicial Branch) have been reserved for scheduled castes and scheduled tribes, the strength of the appointments made since 1969 onwards reveals that hardly 8% of the total posts i.e., 40 to 45% only of the cadre strength have been allotted to the scheduled castes and scheduled tribes.
The petitioners contend that in other States of India different percentages of marks have been prescribed for scheduled castes, scheduled tribes and gener al candidates for determining their suitability and/or eligibility for appointment.
But in Haryana, they contend, minimum marks have been prescribed as 55% for all categories of candidates, namely, scheduled castes, scheduled tribes and general candidates.
In this connection, it may be appropriate to refer to the fact that under the Punjab Civil Services (Judicial Branch) Rules framed in exercise of powers conferred by Article 234 read with proviso to Article 309 of the Consti tution of India, rules have been framed and are prevalent.
Part 'C ' of the rules deals with the rules and instructions for the examination of the candidates for admission to the judicial branch of the Haryana Civil Service.
Part 'C ' of the said rules was brought into force by the Haryana Adapta tion Laws (State and concurrent subjects) Order, 1968.
Rules 7 and 8 of the said rules, inter alia, provides as follows: "7.
No candidate shall be called for the viva voce test unless he obtains at least 45% of marks in the aggregate in all the written papers and 33% marks in the language paper, Hindi (in Devanagri script).
331 8.
No candidate shall be considered to have qualified in the examination unless he obtains at least 55 per cent marks in the aggregate of all papers including the viva voce test.
" It is the case of the petitioners that fixation of the ,standard of marks which the petitioners describe as high standard, has resulted in denial of opportunity to the scheduled castes and ' scheduled tribes thus amounting to denial of equality of opportunity in the jobs which, the petitioners contend, the State otherwise sought to achieve and ought to achieve in favour of scheduled castes and scheduled tribes.
We are of the opinion that equality of opportunity should be striven for and ensured in public employment.
Steps should be taken to see where unequals are competing, conditions must be created by relaxation or otherwise so that unequals compete in terms of equality with others in respect of jobs and employments of the State.
Our Constitu tion so enjoins it.
Article 38 of the Constitution read with Articles 14, 15 and 16 so mandates it.
In order, therefore, to give those who are unequals, and it is accepted that scheduled castes and scheduled tribes for reasons historical or otherwise, are unequal with the general members of the community in respect of ability and qualification for public employment.
Hence, in order to make the unequals compete on conditions of equality certain relaxations and other factors ensuring equality are imperative.
Those groups or segments of society which are by reasons of history or otherwise unable to compete in terms of absolute equality with the members of other communities or groups in the society, should be ensured and assured chances of competing in terms of equality.
They must be helped to compete equally but it is important to emphasise that equality of opportunity is sought to be achieved for the public services or employment.
The efficacy and efficiency of that service is of prime consideration. ' Equality must be there for all to compete for the public services.
Public services and public employ ment do not exist for providing jobs in terms of equality or otherwise to all.
Only public services and public employment must serve public purpose and nothing that hampers or im pairs the efficiency or efficacy of public services cannot and should not be permitted in ensuring conditions of con stitutional equality.
These should be done objectively, rationally and reasonably.
As is often said, it may be that need to ensure equality for scheduled castes and scheduled tribes should not be surrendered on the facile and value based perception of efficiency.
Yet efficiency must be ensured.
Real equality must be accorded.
332 As mentioned hereinbefore, the contention of the peti tioners is that 55% marks in aggregate in all papers includ ing viva voce test constitute rather a high standard for qualification and eligibility.
They contend that for most of the scheduled caste and scheduled tribe aspirants for the job it is difficult to achieve that standard.
It is said that in other parts of this vast land of ours the standard is not as high as that.
Sri Venkatramani, advocate for the petitioners, contended that in other States on an all India basis such a high standard of marks is not envisaged.
Sri Mahabir Singh, learned advocate appearing for the State of Haryana and Sri C.M. Nayar, learned advocate for the Public Service Commission contend that it must be presumed that the minimum percentage desirable for the purpose of efficiency has been prescribed.
It was further submitted by Sri Nayar that in respect of candidates other than scheduled castes and scheduled tribes, normally those obtaining far higher than 55% marks become eligible for consideration.
That may or may not be so but what is required is that we must ensure efficiency in administration.
We must, therefore, objective ly, rationally and by a conscious process conscious in the sense by application of mind to the relevant factors arrive at a percentage which should be considered to be a minimum one in order to ensure the efficiency of the administration.
We are conscious that high efficiency is required because the recruitment is in the judicial branch, that is to say, for prospective judicial officers who will be in charge of administration of justice in the country.
But at the same time, if possible, in order to ensure that there is equality of opportunity, a percentage should be fixed which without, in any way, compromising with the efficiency required for the job which will be attainable by backward communities, that is to say, scheduled castes and scheduled tribes.
Unless such a percentage is fixed on the aforesaid basis and a percentage is fixed for qualification which would normally be unattainable by the scheduled castes and scheduled tribes determined on an objective basis, it would not be possible to ensure equality of opportunity.
Both S/Sri Mahabir Singh and Nayar have urged that the minimum must be presumed to have been so fixed in the Haryana Service.
However, that fact is not apparent and there is nothing on record to indicate that this percentage was fixed deliberately on an analysis and careful examination and determination on the lines and the principles indicated above.
In that view of the matter, in our opinion, in the interest of justice and our constitutional mandates and in the light of the efficiency of the services and with a view to create a sense of justice, it is necessary for the Gov ernment concerned to consider this question as 333 to what should be the minimum percentage of marks necessary for the administration.
We direct that the Government will make a conscious decision objectively before the next selec tions for the post in Haryana Judicial Service take place, and determine a minimum percentage of marks consistent with efficiency and the need for ensuring equality of opportunity to scheduled castes and scheduled tribes.
It was also contended by Sri Venkataramani that some of the candidates belonging to the scheduled castes and sched uled tribes have become overaged, therefore, the Government should also consider whether further relaxation in age in favour of scheduled castes and scheduled tribes can be made; and if so, to what extent without hampering efficiency of the administration.
This should also be considered before the next selections for appointment to the post are made.
In the aforesaid light, special leave is granted in civil appeal No. 15,000/88 and the judgment and order of the High Court of Punjab & Haryana, dated 5th June, 1987 are modified to the extent indicated above.
The writ petition and the appeals are disposed of accordingly without any order as to costs.
P.S.S. Petition disposed of.
| IN-Abs | Rule 8 of the Punjab Civil Services (Judicial Branch Rules, 1951, as adapted by the State of Haryana, lays down that no candidate shall be considered to have qualified in the examination unless he obtains at least 55% marks in the aggregate of all papers, including the viva voce test.
The petitioners assailed the said provision on the ground that fixation of 55% marks has resulted in denial of equality of opportunity to the scheduled castes and sched uled tribes segments of the community vis a vis general candidates for determining their suitability and/or eligi bility for appointment in the judicial branch of the Haryana Civil Services in the absence of lower percentage having been prescribed for them as in other States.
Disposing of the writ petition and the appeal, the Court, HELD: 1.
Public services and public employment do not exist for providing jobs in terms of equality or otherwise to all.
Only public services and public employment must serve public purpose and nothing that hampers or impairs the efficiency or efficacy of public services should be permit ted in ensuring conditions of constitutional equality.
These should be done objectively, rationally and reasonably.
329 2.
Scheduled castes and scheduled tribes for reasons historical or otherwise, are unequal with the general mem bers of the community in respect of ability and qualifica tion for public employment.
They are unable to compete in terms of absolute equality with the members of other commu nities or groups in the society.
Hence, in order to make them compete on conditions of equality with others in re spect of jobs and employments of the State certain relaxa tions and other factors ensuring equality are imperative.
Our Constitution so enjoins it.
Article 38 of the Constitu tion read with Article 14, 15 and 16 so mandates it.
[332D E; C] 3.
In the instant case, high efficiency is required because the recruitment is in the judicial branch, that is to say, for prospective judicial officers who will be in charge of administration of justice in the country.
But at the same time, if possible, in order to ensure that there is equality of opportunity, a percentage should be fixed which without, in any way, compromising with the efficiency re quired for the job which will be attainable by backward communities, that is to say, scheduled castes and scheduled tribes.
Unless such a percentage is fixed on the aforesaid basis and a percentage is fixed for qualification which would normally be unattainable by the scheduled castes and scheduled tribes determined on an objective basis, it would not be possible to ensure equality of opportunity.
[333D F] 4.1 The Government is directed to make a conscious decision objectively before the next selections take place, and determine a minimum percentage of marks consistent with efficiency and the need for ensuring equality of opportunity to scheduled castes and scheduled tribes.
[334B] 4.2 The Government should also consider whether further relaxation in age in favour of scheduled castes and sched uled tribes can be made; and if so, to what extent without hampering efficiency of the administration.
This should also be considered before the next selections for appointment to the post are made.
[334C]
|
Appeal No. 891 of 1988.
From the Judgment and Order dated 30.7.1987 of the Orissa High Court in O.J .C.
No. 162 1 of 1987.
Govind Das and J.R. Das for the Appellant.
P.N. Misra, A.K. Jha and P.K. Jena for the Respondents.
The following Judgments of the Court were delivered SAWANT, J. This is an appeal by special leave against the order dated 30th July, 1987 of the High Court of Orissa.
The appellant passed his M.A. examination in July 1981 securing in the aggregate 364 marks out of 900 marks, i.e., more than 40 per cent of the total marks.
In 1983, he secured admission in Ganjam Law College for three year Law Course.
There is no dispute that at the time he took admis sion, he had submitted his marks sheet along with his M.A. degree certificate.
The appellant completed his first year course known as the "Pre Law Course" and in 1984 was promot ed to the second year course known as the "Intermediate Law Course".
In 1985, he appeared for the Pre Law and Inter Law examinations held by the Berhampur University to which the Ganjam Law College is affiliated.
He gave the said examina tion and in the same year he was admitted to the Final Law course in the same College.
It appears that although he was admitted to the Final Law classes, his results for the Pre Law and Inter Law examinations were not declared.
The appellant made represen tations to the Bar Council 275 of India and the Administrator of the Berhampur University, on February 12, 1986.
On October 30, 1986, the University replied that since the appellant had secured less than 39.5 per cent marks in his M.A. degree examination, he was not eligible for admission to the Law Course.
On November 11, 1986, the appellant made a representation pointing out that he had secured more than 40 per cent marks in the said examination and, therefore, he was entitled to be admitted to the Law course.
On November 14, 1986, the Chairman of the Board of Studies also wrote to the Deputy Registrar of the University pointing out that the Board of Studies in its meeting held on October 29, 1986 had recommended that those students who had passed their M.A. examination and had secured more than 40 per cent of the total marks should be considered eligible for admission to the Law course even though they had secured less than 20 per cent marks in any one of the papers in the said examinations.
In spite of this, the University did not take any step to announce the appellant 's results.
Hence, the appel lant approached the Orissa High Court by a writ petition on May 11, 1987 challenging the non declaration of his results and the University 's refusal to permit the appellant to appear in the Final Law examination.
The writ petition was dismissed by the High Court by the impugned order of July 30, 1987.
Against the said decision the present appeal was filed.
By an interim order of March 15, 1988.
the appellant was permitted to continue his Final Law course and to appear in the examination of the said course.
It was also directed that the results of the examinations in which the appellant had appeared should be declared in due course.
On these facts, the question that falls for consider ation is whether the appellant was eligible to be admitted to the Law course.
The University has objected to the appel lant 's admission on the ground that the University Regula tion 1 in Chapter VIII relating to the Bachelor of Laws Examination (Three Year Course) read with Regulation 10 in Chapter V of the University Regulations relating to the Master 's Degree Examination requires that if the student has secured less than 25 per cent marks in any of the papers for M.A. examination, he should have on the aggregate more than 39.5 per cent marks in the said examination.
Admittedly, the appellant has obtained in the aggregate 364 marks out of 900 marks, i.e., more than 40 per cent marks, but in one paper in Group II, he has secured only 13 marks out of 100 which were less than 25 per cent.
It is, therefore, the Universi ty 's contention that in view of the said Regulations, he was not qualified to be admitted to the Law course and since he was admitted wrongly, he 276 was not entitled to appear for the examination and, there fore, for the declaration of his results in the said exami nation.
Regulation 1 of Chapter VIII which lays down qualifi cation for admission to the Law course is as follows: "1.
Any registered candidate may be admitted to the degree of Bachelor of Laws, if (a) he passes the examination for the degree of Bachelor of Arts, Bachelor of Science, Bache lor of Commerce, Bachelor of Oriental Learning, Bachelor of Medicine and Bachelor of Surgery, Bachelor of Science (Engineering), Bachelor of Science (Agriculture), Bachelor of Veterinary Science and Animal Husbandary, B. Pharma or any other examination recognised by the Bar Council of India and the Academic Council as equivalent thereto securing 40% or more than 39.5% of marks in the aggregate of such exami nation or any other higher degree examination passed after graduation.
Provided that relaxation to the extent of 5% of marks in the qualifying examination be allowed to the Sched uled Caste and Scheduled Tribe candidates.
Provided further that in case of physically or the paedically handicapped candidates, relaxation upto 5% of marks in the qualifying examination may be given on produc tion of a certificate of.disability from any Government Medical Officer to the satisfaction of the authority con cerned .
The first paragraph of Regulation 1 on which reliance is placed by the University shows that the requirement of 40 per cent or more than 39.5 per cent marks in the aggregate, is meant only for graduates such as of Bachelors of Arts etc.
That requirement does not apply to those candidates who pass any higher degree examination after graduation.
There fore, on a plain reading of the said paragraph, a postgradu ate student like the appellant who has passed his M.A. examination is not required to satisfy further that in the said post graduate examination he has secured 40 per cent or more than 39.5 per cent marks in the aggregate.
It is enough if he has passed his post graduate examination.
277 7.
What is further, Regulation 10 in Chapter V of the Regulations which prescribes marks for passing M.A., M.Com.
and M.Sc.
examinations states that the minimum marks re quired for a student to pass the said examinations is 36 per cent in the aggregate of all the theory papers taken togeth er in case of M.A. and M.Com.
examinations, and in the case of M.Sc.
examination, 36 per cent in the aggregate of all the theory papers taken together and 40 percent in the aggregate of all the practical papers taken together.
I am not concerned here with the marks of M.Sc.
examination.
The proviso to the said Regulation 10, further states that no minimum pass marks shall be required in any paper.
But if in any paper a candidate obtains less than 25 per cent of marks, those marks shall not be included in the aggregate.
In other words, in the case of the appellant, who has ob tained 364 marks out of 900 on the aggregate, his 13 marks in one of the papers being less than 25 per cent have to be excluded.
His aggregate marks, therefore, come to 35 1 out of 900 marks according to this Regulation.
They are admit tedly more than 36 per cent as required by the said Regula tion for passing the M.A. examination.
I may reproduce the said Regulation here: "10.
The minimum marks that a candidate shall obtain to have passed shall be thirty six per cent in the aggregate of all the theory papers taken together in the case of M.A./ M.Com.
and in the case of M.Sc.
thirty six per cent in the aggre gate of all the theory papers taken together and forty per cent in the aggregate of all the practical papers taken together.
Provided further that no minimum pass marks shall be required in any paper but if in any paper a candidate obtains less than twenty five per cent of marks then these shall not be included in the aggregate.
Even though, therefore, for admission to the Law course there is no requirement of any particular marks for post graduate students like the appellant, and the appellant is entitled to be admitted under Regulation 1 in Chapter VIII of the said Regulations quoted earlier, the appellant satisfies the other qualification as well, viz., he has passed the M.A. examination with 36 per cent in the aggre gate deducting 13 marks in one of the papers and is, there fore, duly qualified to be admitted to the Law course.
Mr. Misra appearing for the respondents, however, conten 278 ded firstly that the qualifying marks for admission as per Regulation 1 of Chapter VIII even for post graduate students was 40 per cent or more than 39.5 per cent and since the appellant admittedly did not secure more than 39.5 per cent marks after deducting from the aggregate 13 marks secured in one of the papers, he was not eligible for being admitted to the Law course.
I have pointed out herein after that the plain reading of the said Regulation shows that the qualify ing marks laid down there do not apply to the post gradu ates.
They apply only to graduates.
As far as the post graduates are concerned, it is enough that they have passed their examination.
Secondly, he has also obtained the marks as required by the said Regulation 10 of Chapter V which is applicable to the appellant, viz., 39 per cent when the minimum marks laid down by the said Regulation is only 36 per cent.
Mr. Misra then relied upon the prospectus of the Ganjam Law College which had laid down as follows: "1. . . . 2. . . . 3.
Eligibility for admission.
(1) Pre law class.
(a) An aggregate of 40 per cent and above, in the B .A., B.Sc, B.Com, or any other university Degree of Higher Uni versity examination recognised by Berhampur University . . ".
and contended that even if a candidate has a higher degree than B .A., B.Sc., B.Com., he has to have an aggregate of 40 per cent minimum marks.
As I read the said prospectus, I find that it is on par with the qualification for admission given in University Regulation 1 in Chapter VIII quoted above.
The aggregate of 40 per cent and above marks is required only for graduates and there is no requirement of any percentage of marks prescribed for the post graduates.
Resolution No. 123/1984 of the Bar Council of India passed on October 30, 1984 and which is Annexure 'K ' to the re spondent University 's counteraffidavit also shows that for admission to three year Law course the qualification of minimum of 39.5 per cent marks is meant only for graduates.
That Resolution does not speak of the requirement of marks for examination at post graduate level.
I am also of the view that this distinction between graduates and post gradu ates made in the 279 matter of the qualifying marks is as it ought to be, since graduates and post graduates cannot be treated equally.
A post graduate student has a minimum of two years more of academic pursuit to his credit than the graduate before he seeks admission to the Law course.
Obviously, therefore, they cannot be treated equally, and that is what the Univer sity and the Bar Council of India have rightly done.
It is the interpretation placed by the University on its own Regulations and the Resolution of the Bar Council of India which is at fault and not the Regulations or the Resolution.
This is apart from the fact that I find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his marks sheet along with the application for admission.
The Law College had admitted him.
He had pursued his studies for two years.
The University had also granted him the admission card for the Pre Law and Intermediate Law examinations.
He was per mitted to appear in the said examinations.
He was also admitted to the Final year of the course.
It is only at the stage of the declaration of his results of the Pre Law and Inter Law examinations that the University raised the objec tion to his so called ineligibility to be admitted to the Law course.
The University is, therefore, clearly estopped from refusing to declare the results of the appellant 's examination or from preventing him from pursuing his final year course.
For all these reasons, I am of the view that the University is not justified in refusing to declare the appellant 's results of the PreLaw and Intermediate Law examinations.
The appeal, therefore, succeeds.
The respond ent University is directed to declare the said results as well as the result of the Final examination if the appellant has appeared for the same.
The appeal is allowed according ly.
In the circumstances of the case, there will be no order as to costs.
SHARMA, J.: 12.
I agree that the appeal should be allowed as indi cated by my learned Brother.
The learned counsel for the appellant contended that the respondent University having issued the admit card and permitted the appellant to appear at parts I and II of Law Examination, should not have later refused to publish his result.
If there was any irregularity in the admission of the appellant for the Law course, the University authorities ought to have scrutinised the position before permitting 280 him to take the examination.
It was pointed out that in identical circumstances the same High Court had earlier in the same year allowed the case of another candidate in O.J.C. No. 2619 of 1986 by a judgment, which also was by a Division Bench.
Mr. P.N. Misra, the learned counsel for the respond ent, contended that the University had informed the Colleges about the necessary condition for admission to the Law course which, it appears, was not respected by the College.
When the applications by the candidates for sitting at the examination were forwarded by the College, the University asked the Principal to send the marks of the candidates for the purpose of verification.
but the Principal did not comply.
The letters Annexures 'F ' and 'G ' to the counter affidavit have been relied upon for the purpose.
The learned counsel pointed out that instead, the Principal sent a letter Annexure '1 ' stating that the marks list would be sent in a few days for "your kind reference and verifica tion" which was never sent.
The Principal wrongly assured the University authorities that he had verified the position and that all the candidates were eligible.
In these circum stances, the argument is.
that the appellant cannot take advantage of the fact that the University allowed him to appear at the examination.
1 am afraid, the stand of the respondent cannot be accepted as correct.
From the letters of the University it is clear that it was not depending upon the opinion of the Principal and had decided to verify the situation for itself.
In that situation it cannot punish the student for the negligence of the Principal or the Universi ty authorities.
It is important to appreciate that the appellant cannot be accused of making any false statement or suppressing any relevant fact before anybody.
He had pro duced his marks sheet before the College authority with his application for admission, and cannot be accused of any fraud or misrepresentation.
The interpretation of the rule on the basis of which the University asserts that the appel lant was not eligible for admission is challenged by the appellant and is not accepted by the College and my learned Brother accepts the construction suggested by him as cor rect.
In such a situation even assuming the construction of the rule as attempted by the University as correct, the Principal cannot be condemned for recommending the candida ture of the appellant for the examination in question.
It was the bounden duty of the University to have scrutinised the matter thoroughly before permitting the appellant to appear at the examination and not having done so it cannot refuse to publish his results.
Before parting I would like to impress upon the University authorities to frame the rules in such clear terms that it may not 281 require great skill for understanding them.
It is a serious matter if a student who acts upon one interpretation of a rule and spends a considerable period of his youth, is later threatened by a possible alternative construction, which may cost him several years of his life.
In order to achieve clarity, it does not matter, if the rule, instead of being concise, is elaborate and lengthy.
Y. Lal Appeal allowed.
| IN-Abs | After passing his M.A. examination securing more than 40 per cent marks (364 out of 900), the appellant secured admission in 1983 to three years law course in Ganjam Law College.
Along with his form seeking admission he had sub mitted the mark sheet with his M.A. degree certificate.
He completed his first year course 'Pre Law course ' in 1984 and was promoted to the "Intermediate Law course".
In 1985, he appeared for the 'pre law ' and 'inter law ' examinations.
He gave the said examination and in the same year was admitted to the Final Law course.
However his results for the Pre Law and Intermediate Law course were not declared by the Univer sity on the ground that in view of the Regulations of the University, he was not qualified to be admitted to the law course.
His admission being improper, he was not eligible to sit at the examinations aforesaid.
The appellant made repre sentations to the Bar Council of India and the Administrator of the University but to no avail.
When his representations and even the communication from the Chairman of the Board of Studies to the University did not yield the desired result, the appellant approached the Orissa High Court by means of writ petition on 11.5.87 challenging the non declaration of his results and the University 's refusal to permit the appellant to appear in the final examination.
The writ petition having been dismissed by the High Court, he has filed this appeal by special leave.
The question that falls for determination by this Court is whether the appellant was eligible to be admitted to Law Course.
Allowing the appeal, this Court, HELD: (Per Sawant, J.) The requirement of 40 per cent marks in the aggregate, is meant 273 only for graduates such as of Bachelor of articles etc.
That requirement does not apply to those candidates who pass any higher degree examination after graduation.
For admission to the Law Course there is no requirement of any particular marks for post graduate students like the appellant, and the appellant is entitled to be admitted under Reg. 1 in Chapter VIII of the said Regulations.
The appellant satisfies the other qualification as well, viz., he has passed the M.A. examination with 36 per cent marks in the aggregate deduct ing 13 marks in one of the papers and is therefore, duly qualified to be admitted to the Law course.
[277G; 278F G] Resolution No. 123/1984 of the Bar Council of India does not speak of the requirement of marks for examination at post graduate level.
[279G] The distinction between graduates and post graduates made in the matter of the qualifying marks is as it ought to be, since graduates and post graduates cannot be treated equally.
The appellant while securing his admission in the Law College had admittedly submitted his marks sheet along with the application for admission.
The Law College had admitted him.
He had pursued his studies for two years.
The Universi ty had also granted him the admission card for the Pre law and Intermediate Law examinations.
He was permitted to appear in 'the said examinations.
He was also admitted to the Final year of the course.
It is only at the stage of the declaration of his results of the Pre law and Inter law examinations that the University raised the objection to his so called ineligibility to be admitted to the Law course.
The University is therefore clearly estopped from refusing to declare the results of the appellant 's examination or from preventing him from pursuing his final year course.
[280C E] (Per Sharma, J. ) From the letters of the University it is clear that it was not depending upon the opinion of the Principal and had decided to verify the situation for itself.
In that situa tion it cannot punish the student for the negligence of the Principal or the University authorities.
It is important to appreciate that the appellant cannot be accused of making any false statement or suppressing any relevant fact before anybody.
He had produced his marks sheet before the College authority with his application for admission, and cannot be accused of any fraud or misrepresentation.
[281D F] 274 Assuming the construction of the rule as contended by the University is correct, the Principal cannot be condemned for recommending the candidature of the appellant for the examination in question.
It was the bounden duty of the University to have scrutinised the matter thoroughly before permitting the appellant to appear at the examination and not having done so, it cannot refuse to publish his results.
[281F G] It is impressed upon the University authorities to frame the rules in such clear terms that it may not require great skill for understanding them.
In order to achieve clarity, it does not matter, if the rule, instead of being concise, is elaborate and lengthy.
[281H; 282A]
|
enunciated in various decisions of foreign courts is not applicable in the Indian context.
In India, as the Constitution was enacted or was framed, after having the experience of various countries in the world, the concept of fundamental rights and rights like life, liberty, procedure established by law and various legislative functions which were divided between the States and the 640 Union, left no scope for any power except which could be derived from any provision in the Constitution coupled with an Entry in one of the three Lists which would indicate that the power vested in either the State or the Centre.
Apart from it, the scheme of our Constitution is that there are no residuary powers which vest in the State and scheme of our Constitution also reveals that in case of any conflicts it is the Centre which prevails and not the State and, there fore, applying the doctrine of police powers will only mean to do violence to the scheme of the Constitution.
In fact, under our Constitution no powers could be conceived for which there is no provision in any one of the entries in the three Lists or which could not be justified under any spe cific Article of the Constitution.
Thus, even under the concept of the doctrine of police powers, the levies imposed by the State on alcohol or alcoholic liquors cannot be justified.
[689E, G H, 690A C] & ORIGINAL JURISDICTION: Writ Petition No. 182 of 1980 Etc.
(Under Article 32 of the Constitution of India).
F.S. Nariman, M.H. Baig, A.B. Divan, Rajinder Sacher, L.M. Singhvi, R.N. Banerjee, K.J. John, Harish N. Salve, S.C. Sharma, S.S. Shroff, Mrs. P. Shroff, Ms. section Sharma, J.B. Dadachanji, A.P. Hathi, section Ganesh, section Sukumaran, D.N. Misra, Mrs. A.K. Verma, Sandip I. Thakore, R.F. Nariman, P.H. Parekh, Shishir Sharma, Poppat, Ms. Shalini Soni, Sunita Sharma, M.L. Lahoty, Shiv Prasad Sharma, Himanshu Shekhar, D.D. Gupta, Ms. M. Gupta, A.T.M. Sampath, Mrs. Swaran Mahajan, Ms. Anuradha Mahajan, K.K. Mohan, Laxmi Kant Pandey, R.B. Mehrotra, K.C. Dua, K.R. Nagaraja, P.D. Sharma, V. Balachandran, O.P. Sharma, A.K. Sangal, Anil Kumar, D. Goburdhan, K.D. Prasad and Mrs. Naresh Bakshi for the Peti tioners.
K. Parasaran, Attorney General, C. Shivalha, G. Rath, V.M. Tamaskar, Altar Ahmed, N.N. Gooptu, Dinesh Chandra Swami, A.S. Bobde, K. Alagiri Swamy, V.Venkataramaniah, Inder Singh, Advocate Generals, R.N. Trivedi, Additional Adv.
Genl., Yogeshwar Prasad, S.K. Dholakia, P.S. Poti, A.K. Ganguli, Satish Chandra, R.B. Datar, G.L. Sanghi, P.R. Ramasesh, R.K. Mehta, S.K. Bhattacharya, H.K. Purl.
Probir Chowdhary, N.K. Sharma, M.N. Shroff, Ashok K. Srivastava, R.S. Rana, A.S. Bhasme, A.M. Khanwilkar, Sunil Gupta, T.T. Kunhikanan, V. Krishnamurthy, P. Venugopal, T.V.S.N. Chari, D.R.K. Reddy, Jagan M. Rao, Ms. A. Subhashini, 641 A. Subba Rao, K.C. Dua, Satish K. Agnihotri, Ashok Singh, Indra Makwana, Ms. Amrita Sanghi and N.K. Sharma for the Respondents The following Judgments of the Court were delivered: SABYASACHI MUKHARJI, J.
These writ petitions, civil appeals and review petitions relate to the right of the States to levy vend fee or duties in respect of industrial alcohol under different legislations in different States.
We will first deal with writ petition No. 182/80.
In Writ Petition No. 182/80 (Synthetics & Chemicals Ltd. vs State of U.P. & Ors.), we are concerned with the notification dated 31st May, 1979, substituting new rule 17(2) for old rule 17(2) and providing for a vend fee of Rs. 1.10 per bulk liter for all issues from distillery but in case of FL 39 Licence (like the petitioner in this case), the vend fee would be so charged that the amount of this fee and purchase tax together does not exceed 25 paise per bulk litre; Then there are three review petitions, namely, Review Petition Nos. 202 04/80 (Synthetics & Chemicals Ltd. vs State of U.P. ) and Review Petition No. 17 of 1980 (Kesar Sugar Works Ltd. vs State of U.P.).
These are directed against the judgment and order of this Court dated 19th December, 1979 in State of U.P., etc.
vs Synthetics & Chemicals Ltd. & Ors.
; , re agitating the challenge to sections 24A & 24B of the U.P. Excise Act, 1910 as amended in 1972 and 1976 declaring exclusive privilege of the Government for manufacture and sale of foreign liquor as defined (which includes denatured spirit and industrial alcohol).
Then there is Writ Petitions Nos.
3163 64 of 1982 (All India Alcohol Based Industries Development Association vs State of Maharashtra, ) which challenges the amendment to section 49 of the Bombay Prohibition Act, 1949 treating exclusive privilege for State in liquor trade and imposing a transport fee of Rs. 1.15 per bulk litre.
There is Writ Petition No. 4501/78 (Chemicals & Plastics India Ltd. vs State of Tamil Nadu), Writ Petition No. 2580/82 (Kolhapur Sugar Mills and Anr.
vs S.R. Hegde & Anr. ), which challenge the Bombay Prohibition Act, 1949 as amended from time to time along with Ordinance No. 15 of 1981 which amended the Bombay Prohibition Act, 1945 and section 49 added by reason of which the State was granted exclusive privilege of import ing, exporting, transporting, manufacturing, bottling, selling, buying, processing, or using any intoxicant.
There after, the Bombay Rectified Spirit (Transport in Bond) Rules, 1951 were amended and transport fee was increased from the rate of 17 paise to the rate of Rs. 1.25 paise.
Thereafter, the Bombay Rectified Spirit (Transport in Bond) Amendment Rules, 1982 were amended and the transport fee was reduced from Rs. 1.25 per litre to 0.40 paise per litre.
Then there is Writ Peri 642 tion No. 1892/73 (Hindustan Polymers Ltd. vs State of A.P.) which seeks a declaration that alcohol plant of the peti tioner company is not covered by the A.P. Excise Act, 1968, A.P. Distillery Rules, 1970 and A.P. Rectified Spirit Rules, 1971 and further to declare that the alcohol plant of the company is not a 'distillery ' within the meaning of the said expression under the A.P. Distillery Rules and therefore, the Distillery Rules have no application thereto.
It seeks also an order to restrain from interfering with and/or regulating and controlling the production, distribution, movement and supply of alcohol from the alcohol plant of the company and also a writ of prohibition with the appropriate directions.
Civil Appeal No. 4384/84 also challenges the A.P. Excise Act, 1968 and A.P. Distillery Rules.
Similar is the position in C.As.
466 67 of 1980 which challenge the Tamil Nadu Prohibition Act.
The main question that falls for consideration in these matters is whether the vend fee in respect of the industrial alcohol under different legislations and rules in different States is valid.
The question is.
is the vend fee and impost leviable or extractable by the States under different Acts.
The question mainly involved in all these matters is a common question of law but we will have to deal with diverse factual situations as well as the particular provisions of the various Acts.
The questions with which we are mainly concerned are the following: (i) whether the power to levy excise duty in case of industrial alcohol was with the State legislature or the Central legisla ture? (ii) what is the scope and ambit of entry 8 of list II of the Seventh Schedule of the Constitution? (iii) whether, the State government has exclusive right or privilege of manufacturing, selling, distributing, etc.
of alcohols in cluding industrial alcohol.
In this connec tion, the extent, scope and ambit of such right or privilege has also to be examined.
It is necessary to bear in mind that in the last four to five decades there has been a tremendous change in the industrial horizon of this country.
During the initial stages of the Constitution, the only well known industrial sectors in India were iron and steel, textiles, jute and cement.
The rest of the production was raw materials geared to feed and supply the industrial base of the foreign power.
After independence, an Industrial Policy Resolution was adopted to achieve 643 rapid industrialisation in a big way.
In the last few dec ades, there has been a great transformation and tremendous upsurge not only in industry and commerce, but also in sophisticated technology and industries.
The chemical, fertilizer, plastic and engineering industries are only some of the fields in industrial development.
In this background, the views expressed previously relating to 'intoxicating liquor ' and 'alcoholic liquor for human consumption ' have to be borne in mind.
It is, in this connection, also necessary to refer to Article 47 of the Constitution.
The said Article which deals with the duty of the State to raise the level of nutrition and the standard of living and to improve public health, enjoins that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
We were invited on behalf of the petitioners by Mr. Nariman, Mr. Divan, Mr. Banerjee, Mr. Baig and others that though this direction and this commit ment to improvement of the standard of living must be kept in view but it must be borne in mind that this improvement can be achieved primarily by industrialisation involving increased production and employment and giving priority to the core sectors.
Entry 52 of list I of the Seventh Schedule to the Constitution deals with "industries", the control of which by the Union is declared by Parliament by law to be expedient in the public interest.
It is the contention of the petitioners and appellants that the Industries (Develop ment & Regulation) Act, 1951 (hereinafter called the 'IDR Act ') was enacted with a view to developing and controlling various important industries.
Section 2 of the IDR Act declares that it is expedient in the public interest that Union should take under its control the industries specified in the First Schedule.
The cases in this bunch are in re spect of industries which are not concerned with potable alcohol for the purpose of human consumption.
These are predominantly and primarily concerned with using ethyl alcohol (rectified spirit) as an industrial raw material.
This industrial alcohol is required as an input for further manufacture of downstream products.
For this purpose, some of the industries have their captive plants.
Reference in this connection may be made and our attention was drawn to the report of the Alcohol Committee, 1956.
This Report indicates that (a) that industrial alcohol is an input and should be available at reasonable price.
(b) there should be uniform railway freight.
644 (c) larger capacities of molasses etc.
,should be available, and (d) uniform taxation policies are essential for the development of these indus tries.
In order to appreciate the controversy in these matters, it is, therefore, necessary to keep these objectives in mind.
In these matters, this Court is concerned with the taxing power of the States to impose and levy excise duty on industrial alcohol and/or imposts as vend fees.
This has been, and as has been noticed hereinbefore, claimed as a part of the exclusive privilege of the States to impose a levy as a consideration or price for manufacturing of and/or dealing with industrial alcohol.
It is essential that there should be uniformity in the industry so that these are free from the vagaries and arbitrary and differential treatment meted out from State to State and even in the same State from time to time.
Arbitrary and excessive imposts under the so called privilege are a great disincentive for development of industries in the public interest and for industrial development in general and can render units unviable and sick.
In the above background, it is necessary to refer to certain facts and as such it would be appropriate to refer to the facts and contentions in writ petition No. 182/80, i.e. Synthetics & Chemicals Ltd. vs State of U.P., which is under article 32 of the Constitution, filed by M/s. Synthetics & Chemicals Ltd. a registered Company in Bombay, and one Mr. A.K. Roy, Director and shareholder of the said company.
The respondent therein is the State of Uttar Pradesh and the Excise Commissioner, Uttar Pradesh.
In the said writ petition, a notification of the State of Uttar Pradesh, being No. 4840E/XIII 330/79, dated Lucknow May 31, 1979 was made in exercise of the power under sub section (1) of section 40 of the U.P. Excise Act, 1910 (hereinaf ter referred to as 'the U.P. Act ') read with clause (d) of sub section (2) of the said section.
However, in order to appreciate the position, we should bear in mind the history of the legislative powers and different lists in the 7th Schedule, regarding impost in respect of industrial alcohol.
It appears that local legis latures of Uttar Pradesh had enacted the United Provinces Act, 1910 being Act IV of 1910, and it received the assent of the Governor on 18th December, 1909 and of the Governor General on 14th February, 1910.
Before 1920 there was as such no distinct dis 645 tribution of legislative subjects between the Central Legis lature and the State Legislatures.
It appears that the local legislatures enacted with the assent of the Governor Gener al, Excise Acts imposing duties and regulating production, supply and distribution of alcoholic liquors including denatured spirits and methylated spirits.
These were done under the Indian Councils Act, 1861 and the Indian Councils Act, 1909.
The provisions of the Indian Council Act, 1861 were initially applicable only to the Presidencies of Fort St. George and Bombay, but were later made applicable to other provinces by virtue of the Indian Councils Act, 1892 and 1909.
Section 43 of the Indian Councils Act, 1861 enjoined that it shall not be lawful for the Governor in Council of either of the Presidencies, except with the sanction of the Governor General, previously communicated to him, to make regulations or take into consideration any law or regulation for any of the purposes mentioned therein and one of the purposes, inter alia, mentioned was, anything affecting the public debt of India or the Customs Duties, or any other tax or duty then in force and imposed by the authority of the Govt.
of India for the general purposes of such Government.
The Government of India Act, 1915 was amended from time to time with a view to consolidate and amend the enactment relating to the Govt.
of India.
The Governor General in Council with the sanction of the Secretary of State in Council made Devolution Rules.
Rule 3(1) thereof provided for distinguishing the functions of the local governments and local legislatures of governors ' provinces and of the province of Burma from the functions of the Governor General in Council.
It was provided that any matter which is includ ed in the list of provincial subjects set out in Part II of Schedule I of the said Act shall, to the extent of such inclusion, be excluded from any central subject of which, but for such inclusion, it would form part.
Part II of the Government of India Act, 1915 provided that any matter which is included in the provincial subjects set out in Part II of Schedule I shall, to the extent of such inclusion be exclud ed from any central subject of which, but for such inclu sion, it would form part.
Part II dealt with provincial subjects.
Item 16 of Part II provided as under: "Excise, that is to say, the control of pro duction, manufacture, possession, transport, purchase, and sale of alcoholic liquor and intoxicating drugs, and the levying of excise duties and licence fees on or in relation to such articles, but excluding, in the case of opium, control of cultivation, manufacture and sale for export.
" 646 It appears that the Govt.
of U.P. levied a vend fee on denatured spirit for the first time @ 8 annas per bulk gallon, vide notification dated January 18, 1937 under section 40(2) of the U.P. Excise Act, 1910.
It was levied as a duty.
By this notification Rule 17(2) was added which enjoined that in case of issues from a distillery a vend fee of annas 8 per bulk gallon shall be payable in advance before the spirit is issued.
The fee was not made chargeable in case of issues to hospitals, dispensaries and other charitable and educational institutions upto a quantity allowed to be issued by the Excise authorities, and also on the issues for export out of the provinces.
Thereafter, on 1st April, 1937 the Govt.
of India Act, 1935 came into effect.
The federal legislative list in the 7th Schedule to the said Act contained entry 45 which in cluded duties of excise on tobacco and other goods manufac tured or produced in India except alcoholic liquors for human consumption.
The provincial legislative List being List II of the 7th Schedule.
contained entry 31 on intoxi cating liquors and narcotic drugs, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs, but subject, as respects opium, to certain provi sions.
It also included entry 40 which was on duties of excise including, inter alia, all these items and alcoholic liquors, opium, Indian hemp and medicinal and toilet prepa rations containing alcohol.
It was contended on behalf of M/s Synthetic Chemicals Ltd. that the duties previously levied by the local legisla tures continued in force by virtue of section 143(2) of the Govt.
of India Act, 1935 only if these were levied before 31st January, 1935, and that only these duties were to be so continued until provisions to the contrary were made by the Federal Legislature.
The Constituent Assembly which derived from the people all power and authority, was convened.
On 15th August, 1947 the British Parliament passed the Indian Independence Act, 1947 making provisions for the setting up in India of two independent dominions.
Under section 6(1) of the said Act, the legislature of each of the new dominions was to have full powers to make laws for that dominion including laws having extra territorial operations.
Under section 8(2) read with section 9(1) of the Indian Independence Act, 1947 the Governor General adopted the provisions of the Govt.
of India Act, 1935.
It appears that on 3rd April, 1948 the Constituent Assembly acting as the Dominion Legislature passed the which received the assent of Governor General on the same day.
By this Act, the Central 647 Government took under its control the Power Alcohol Indus try.
This was in pursuance of the declaration made by the Dominion Legislature under entry 34 of List I of the 7th Schedule to the Government of India Act, 1935.
The entry was: "Development of Industries where development under Dominion control is declared by Dominion Law to be expedient in public interest". "Power Alcohol" was defined as meaning Ethyle Alcohol containing not less than 95.5% by volume of Ethanol measured at 60 degree F, corresponding to 74.4 over proof strength.
It may be mentioned that Rectified Spirit is Ethyl Alcohol or Ethanol with 96% alcohol v/v.
ON dehydration, Ethyl Alcohol with 99.5% volume of Ethanol is produced.
It was suggested that take over by the Dominion of the potable liquor industry was precluded by virtue of entries 29 & 31 of list II read with entry 34 of list I of the Govt.
of India Act, 1935.
It may be mentioned that the word 'indus tries ' is the analogous provision in the State list under the Constitution of India, 1950, hence, the meaning given to it in that list, must be applied.
According to the petition ers/appellants, the expression 'industries ' has been given a restricted meaning so as not to entrench on the State 's power with respect to other industries specifically assigned to the State under other entries in the State list.
See Calcutta Gas Co., [1962] Suppl 3 SCR 1.
By virtue of the Constitution of India which came into effect from 26th January, 1950 the powers of legislation in respect of alcohol were distributed between list I and list II of the 7th Schedule to the Constitution.
Duties of excise on tobacco and other goods manufactured or produced in India except, inter alia, alcoholic liquors for human consumption, and opium, Indian hemp and other narcotic drugs and narcot ics, but including medicinal and toilet preparations con taining alcohol or any such substance were given to Parlia ment under entry 84, list 1.
But duties of excise on goods manufactured or produced in the State and countervailing duties at the similar rates, inter alia, alcoholic liquors, the State was given power by entry 51 of list II to legis late.
By entry 8 of list II, States were given power to legislate on liquors, that is to say production, manufac ture, processing, transport, purchase and sale thereof.
On or about 8th May, 1952 the Parliament enacted the Industries (Development & Regulation) Act, 1951.
Chapter IIIB of the said Act contains section 18G whereby the Central Govt.
was empowered for securing equitable distribution and availability at fair prices of any article or 648 class of articles relatable to any scheduled industry to provide for regulating the supply and distribution thereof, and trade and commerce therein by a notified order.
The notified order was also to provide for controlling the prices at which such article or class of articles could be bought or sold.
The said Act was amended in 1956.
Item 26 was inserted in the First Schedule to the said Act and empowered the Central Govt.
to control the Fermentation Industries including alcohol industries.
Item 26 was as follows: "26.
Fermentation Industries.
(1) Alcohol (2) Other products of Fermentation Industries." The Govt.
of India issued licences for the manufacture of alcohol based industries.
It is asserted by M/s Synthetics & Chemicals Ltd. that one Tulsidas Kilachand, who had promoted the said Company, was invited by the U.P. Govt.
to set up a synthetic rubber factory in the State of Uttar Pradesh.
It is stated that the Govt.
of Uttar Pradesh assured the said Tulsidas Kilachand of the supplies of alcohol necessary for the factory upto 20 million gallons, on payment only of Rs.7.50 kilo litre as administrative charges.
It is the case of M/s Synthetics & Chemicals that there was no assertion or claim or privilege on behalf of the State Govt.
in respect or ' denatured spirit nor was the said company or its promoters informed that there might be a charge of rental or consideration for parting with any such privilege.
On 30th December, 1960 the Govt.
of U.P. issued a noti fication under section 4(2) of the U.P. Excise Act, 1910 by which all "rectified, perfumed, medicated and denatured spirits wherever made" was included under the definition of 'foreign liqour '.
Thereafter, the said notification was embodied in Rule 12 of the U.P. Excise Rules.
On or about 28th November, 1952 the Power Alcohol Au thority and Excise Commissioner of U.P. issued an order for allotment of alcohol to M/s Synthetics & Chemicals Ltd. and also provided a condition that "the denatured alcohol meant for supply to M/s Synthetics & Chemicals Ltd. is exempted from payment of vend fee".
Paragraph 2 of the said order provided that M/s Synthetics & Chemicals Ltd. shall pay an administrative charge at the rate of Rs.7.50 per kilo litre of 649 denatued alcohol.
The denatured alcohol meant for supply to M/s Synthetics & Chemicals Ltd. was exempted from payment of vend fee.
It was stipulated that alcohol shall be denatured with 5% Ethyl Ether or 0.2% crotonaldehyde at distilleries.
It appears that in May, 1963 M/s Synthetics & Chemicals Ltd. established a factory in Bareilly.
Industrial alcohol is said to be one of the basic raw materials for the manu facture of synthetic rubber.
Accordingly, the Govt.
of U .P. on or about 30th July, 1963 issued a notification excluding from the levy of vend fee the alcohol issued to industries engaged in the manufacture of synthetic rubber on terms and conditions the State Government might determine.
Rule 17(2) was accordingly modified.
On or about 3rd November, 1972 the Govt.
of U.P. issued a notification (being U.P. Excise Third Amendment Rules, 1972) substituting a new rule 17(2) which is now embodied in para 680(2) of the U.P. Excise Manual at p. 20 1.
In the new rule, vend fee @ Rs. 1.10 per bulk litre was imposed on denatured spirit without examining industries engaged in the manufacture of synthetic rubber.
Supplies to the hospitals of certain quantity, and exports out of the State were exempted.
In December, 1972 when a demand was raised for payment of the vend fee, it was asserted on behalf of M/s Synthetic & Chemicals that they had to close down their factory, and filed a writ petition, No. 8069 of 1972 in the Allahabad High Court challenging the validity of the notification dated 30th November, 1972 whereby vend fee on denatured spirit was introduced for the first time.
The Division Bench of the Allahabad High Court vide judgment dated 24th March, 1973 struck down the said notification holding that the vend fee could not be justified either as a tax or fee or as excise duty.
Relying on the decision of this Court in the case of Nashirwar etc.
vs The State of M.P.; , and stating the same in the Preamble to the Act, the U.P. Legislature passed Act No. 5 of 1976 being U.P. Excise Amendment (Re enactment and Validation) Act, 1976 inter alia, introducing sections 24A and 24B in the U.P. Excise Act, 1910 and making other amendments with retrospective effect.
Sections 24A and 24B are as follows: "24 A. (1) Subject to the provisions of Sec tion 31, the Excise Commissioner may grant to any person a licence or licence for the exclu sive or other privilege: 650 (a) of manufacturing or of supply by whole sale, or of both; or (b) of manufacturing or of supplying by whole sale, or both and selling by retail; or (c) of selling by wholesale (to wholesale or retail vendors); or (d) of selling by retail at shops (for con sumption 'off ' the premises only); any foreign liquor in any locality.
(2) The grant of licence or licences under clause (d) of sub section (1) in relation to any locality shall be without prejudice to the grant of licences for the retail sale of foreign liquor in the same locality in hotels and restaurants for consumption in their premises.
(3) Where more licences than one are proposed to be granted under clause (d) of sub section (1) in relation to any locality for the same period advance intimation of the proposal shall be given to the prospective applicants for every such licence.
(4) The provisions of section 25, and proviso to section 39 shall apply in relation to grant of a licence for an exclusive or other privi lege under this section as they apply in respect of the grant of a licence for an exclusive privilege under section 24.
24 B. For the removal of doubts, it is hereby declared: (a) that the State Govt.
has an exclusive right or privilege of manufacture and sale of country liquor and foreign liquor; (b) that the amount described as licence fee in clause (c) of section 41 is in its essence the rental or consideration for the grant of such right or privilege by the State Govern ment; 651 (c) that the Excise Commissioner as the head of the Excise Department of the State shall be deemed while determining or realising such fee, to act for and on behalf of the State Government.
" It is stated that in May, 1976 the State of U.P. filed an appeal against the decision of the Allahabad High Court in writ petition No. 8069/72; and that between 1976 and 1978, relying on the judgment of the Allahabad High Court certain wholesale dealers in denatured spirit filed writ petitions in the High Court of Allahabad claiming refund of vend fee already paid by them.
These writ petitions were heard and allowed by the learned Single Judge of the Allaha bad High Court.
Against the judgment of the Single Judge, special appeals to a Division Bench were preferred by the State of U.P. and all were allowed on 6th October, 1978, relying upon sections 24A and 24B of the said Act.
In 1976, the State Government issued the U.P. Licence for the possession of Denatured Spirit and Special Denatured Spirit Rules, 1976 requiring a licence for possession of denatured spirit and specially denatured spirit for indus trial purposes. "Special Denatured Spirit" was defined as "Spirit rendered unfit for human consumption".
Licences for possession of denatured spirit including Specially Denatured Spirit for industrial purposes were to be of 3 kinds, ac cording to the parties.
(1) Form F.L. 39 for use in industries in which alcohol is destroyed or converted chemically in the process into other product and the product does not contain alcohol, such as Ether, Styrene, Butadiene, Acetone, Polythene etc.
(2) Form F.L. 40 for use in industries in which alcohol is used only as a solvent or processing agent and the product does not contain alcohol, which is generally recovered for re use, such as Cellulose and its derivatives, Pectin etc.
(3) Form F.L. 41 for use in industries in which alcohol is used directly or alcohol is used as solvent or vehicle and ap pears in the final produce to some extent such as Lacquers, Varnishes, Polishes, Adhesives and antifreezers etc.
The Allahabad High Court in W.P. No. 8096 of 1972, referred to hereinbefore, held that the State did not have the legislative competence to impose a tax under entry 8 of list II of the Seventh Schedule to the Constitution follow ing the decision of Sheopat Rai & Ors.
vs State of U.P. [1972] All L.J. 1000.
The High Court held that the power of 652 regulation does not carry with it the power of taxation and thus vend fee could not be justified.
The High Court also held that the levy could not be justified as a fee as there was no quid pro quo.
It appears that in view of the judgment of the High Court, a telegram was issued to the distilleries by the Excise Commissioner that vend fee should not be charged from the petitioner.
Instead the State Government resorted to imposition of sales tax.
It may be mentioned herein that this decision of the Allahabd High Court was set aside by this Court by a Bench of two judges in State of U.P vs Synthetics & Chemicals, (supra).
In view of the fact that review petition in respect of the same is pending, it may be necessary to refer to the said decision.
This Court held that the levy of vend fee is for parting with the exclusive right of the State with regard to intoxicating liquors and for conferring a right on the licensees to sell such liquors.
A conspectus of the decisions of this Court, according to the said decision, establishes: (i) that there is no fundamental right of a citizen to carry on trade or to do business in liquor be cause under its police power, the State can enforce public morality, prohibit trade in noxious or dangerous goods; (ii) the State has power to enforce an absolute prohibition on manufacture or sale of intoxicating liquors pursuant to Article 47 of the Constitution; and (iii) the history of excise jaws in the country shows that the State has the exclusive right or privilege to manufacture or sell liquors.
Reference was made to the decision of this Court in the State of Bombay & Anr.
vs F.N. Balsara, 1195 1] SCR 682.
This Court further held that the term "intoxicating liquor" is not confined to potable liquor alone but would include all liquors which contain alcohol.
The term "liquor", ac cording to the said decision, used in Abkari Acts not only covers alcoholic liquor which is generally used for beverage purposes and which produces intoxication but would also include liquids containing alcohols.
It was further held that the power to regulate the notified industries is not exclusively within the jurisdiction of Parliament as entry 33 in the Concurrent List enables a law to be made regarding production, supply and distribution of products of notified industries.
The exclusive power of the State to provide for manufacture, distribution, sale and possession of intoxicat ing liquors is vested in the State.
The power of the State Government to levy a fee for parting with its exclusive right regarding intoxicating liquors has been recognised as could be seen from the various State Acts regulating the manufacture, sale, etc.
of intoxicating liquors.
It was further held that the term "foreign liquor" cannot be given a restricted meaning because the word consumption cannot be confined to consumption of beverages only.
When liquor is 653 put to any use such as manufacture of other articles.
the liquor is all the same consumed.
The State is empowered to declare what shall be deemed to be country liquor or foreign liquor.
"Foreign liquor" is defined as meaning all recti fied, perfumed, medicated and denatured spirit wherever made.
Therefore, this Court in that case held that the plea that the Excise Commissioner had no right to accept payment in consideration for the grant of licence for the exclusive privilege for selling in wholesale or retail, foreign liquor which includes denatured spirit cannot be accepted.
It was further held that the definition of "alcohol" includes both ordinary as well as specially denatured spirit.
The special ly denatured spirit for industrial purposes is different from denatured spirit only because of the difference in the quantity and quality of the denaturants.
Specially denatured spirit and ordinary denatured spirit are classified accord ing to their use and denaturants used.
Therefore, the con tention that specially denatured spirit for industrial purposes is different from the ordinary denatured spirit has no force, according to the said decision.
Reference was made to the decisions of this Court in Har Shankar & Ors. etc.
vs The Dy.
Excise & Taxation Commissioner & Ors., ; In this connection, it may be necessary to refer to the observations of this Court in Hat Shankar & Ors. 's case (supra), where Chandrachud, J. (as the learned Chief Justice then was) stated: "In our opinion, the true position governing dealings in intoxicants is as stated and reflected in the Constitution Bench decision of this Court in the State of Bombay & Anr.
vs F.N. Balsara; , , Cooverjee B. Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer and Ors., , State of Assam vs A.M. Kidwai, Commis sioner of Hills Division and Appeals, Shil long, [1957] SCR 295, Nagendra Nath Bora and Anr.
vs The Commissioner of Hills Division and Appeals, Assam and Ors.
, ; , Amar Chandra Chakraborty vs Collector of Excise, Govt.
of Tripura & Ors., and State of Bombay vs R.M.D. Chamarbaugwala, ; as interpreted in State of Orissa & Ors.
vs Harinarayan Jaiswal and Ors., ; and Nashirwar etc.
vs State of Madhya Pradesh and Ors.
Civil Appeals Nos. 1711 1721 and 1723 of 1974 decided on November 27, 1974.
There is no fundamental right to do trade or business in intoxicants.
The State under its regulatory powers, has the right to prohibit absolutely every form 654 of activity in relation to intoxicants its manufacture, storage, export, import, sale and possession." Though most of the cases dealt with the right of the State Government as regards auction of country liquor, in Balsara 's case, Nashirwar 's case and Har Shankar 's case, this Court was concerned with the right of the State Govern ment over foreign liquor.
After considering all the deci sions of five Constitutional Benches, Chandrachud, J. summed up the position at page 274 of the Report in Har Shankar 's case (supra) as follows: "These unanimous decisions of five Constitu tional Benches uniformly emphasised after a careful consideration of the problem involved that the State has the power to prohibit trades which are injurious to the health and welfare of the public is inherent in the nature of liquor business, that no person has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilised communities.
" Review Petition has been moved by Synthetics & Chemicals Ltd. which was purchaser or user and not manufacturer or dealer.
It is contended that the Synthetics & Chemicals Ltd. were never manufacturers of denatured spirit and they were and have been purchasers of denatured spirit.
It is contend ed that this Court in Synthetics & Chemicals Ltd. 's case (supra) had proceeded on the basis that State 's privilege is with respect to manufacture or sale of foreign liquor or denatured spirit.
It is contended that they were not liable to pay the vend fee.
The judgment aforesaid had not dealt with that submission and, therefore, it was claimed that there was an error and that this judgment should be reviewed.
It was contended that the fee charged is not a vend fee but fee in respect of licence for possession of denatured spirit.
It was contended that the judgment had not held that the pur chasers are liable to pay vend fee.
The State 's appeal should have been dismissed and the petitioner 's appeal should have been allowed, it was pleaded in the review petition.
There was an error, it was contended.
It may be at the outset made clear that in these mat ters, we will dispose of the contention whether vend fee is leviable in respect of industrial alcohol.
If it is so leviable, who should actually pay or from 655 whom the same should be realised, would not be the subject matter of this adjudication.
Whether the manufacturer or the purchaser or the user should pay them, must be decided in separate appropriate proceedings, if necessary.
In order to complete the narration of events, however, it may be mentioned that Ordinance No. 6 of 1973 was promul gated by the Government of U.P. purporting to amend the U.P. General Sales Tax Act, 1948 so as to authorise the State Govt.
to impose sales tax on alcohol at the rate upto Rs.2 per litre.
By the said notification, the first schedule to the Act was amended and the new entry read as follows: "Spirits and spirituous liquors of all kinds including the rectified spirit, methyl alcohol and absolute alcohol but excluding denatured spirit and country liquor.
" Ordinance 9 of 1974 being the Uttar Pradesh Sales of Motor Spirit & Diesel Oil Taxation (Amendment) Ordinance 1974 was promulgated by the Government of U.P. By virtue of the amendment, the definition of alcohol in section 2 was amended as follows: "(aaa) Alcohol means ethyl alcohol not being alcoholic liquor for human consumption and includes rectified spirit, absolute alcohol.
" Notification was issued thereafter by the Government of U.P. in exercise of power under section 3(1) of the U.P. Sales of Motor Spirit and Diesel Oil Taxation Act 1939.
Several other notifications were issued.
This Ordinance was struck down by the division bench and the Government was made liable to refund.
Writ Petition was filed by Synthetics & Chemicals Ltd. Thereafter, no appeal was filed by the State Government.
The other facts are not relevant for the present controversy.
There was an application challenging the purchase tax.
The State of U.P. filed an appeal against the judgment and order dated 24th March, 1973 of the divi sion bench of the Allahabad High Court in Writ Petition No. 8069/72 striking down the vend fee notification.
The appeal was numbered as Civil Appeal No. 1130(NCL)/76.
After the sales tax levy was struck down the government proposed a purchase tax.
Aggrieved by the aforesaid Act, writ petition was filed, and the hearing of the petition had been stayed by the order of this Court.
Meanwhile, certain wholesale dealers in denatured spirit filed writ petitions in the High Court of Judicature at Allahabad, claiming refund of the vend fee paid by them.
Against the judgment of the High 656 Court of Allahabad dated 6th October, 1978, appeals were admitted being Civil Appeal Nos. 2191 98/78.
All these have been disposed of by the bench of two learned Judges of this Court, as mentioned hereinbefore.
It appears that Kesar Sugar Works Ltd. filed writ petition challenging the validi ty both of licence fee and vend fee on the ground that the fees charged have all the characteristics of a duty of excise which is beyond the legislative competence of the State and that the alcohol industry is covered by the IDR Act.
Writ Petition Nos. 4663 4664 of 1978 were also disposed of by the judgment of this Court in Synthetics & Chemicals Ltd. (supra).
Notification was issued thereafter by the Government of U.P. in 1979 in exercise of powers under section 40, sub section (1) of the U.P. Excise Act of 1910, read with clause (d) of sub section (2) of the said section, amending the U.P. Excise (Amendment) Rules 1979.
By virtue of this amendment, rule 17 was substituted and in the case of FL 39 licence, vend fee, was to be so charged that the amount of vend fee and purchase together did not exceed 25 paise per bulk litre.
It is not necessary to set out in detail the exact provisions.
Another notification was is sued.
It was challenged in the High Court.
It was kept pending.
The other matter herein is writ petition No. 3 163 64/82 (All India Alcohol Based Industries Development Association vs State of Maharashtra) which challenges the amendment to section 49 of the Bombay Prohibition Act, 1949.
It may be rele vant to refer to the said section as amended in 1981.
The section is titled "Exclusive privilege of Government to import etc., intoxicants and fees levied include rent or consideration for grant of such privileges to persons con cerned.
" In this connection, it is significant to refer to the Statement of Objects for the amendment.
The section is as follows: "49.
Notwithstanding anything contained in this Act, the State Government shall have the exclusive right or privilege of importing, exporting, transporting, manufacturing, bot tling, selling, buying, possessing or using any intoxicant, hemp or toddy, and whenever under this Act or any licence, permit, pass, thereunder any fees are levied and collected for any licence, permit, pass, authorisation or other permission given to any person for any such purpose, such fees shall be deemed to include the rent or consideration for the grant of such right or privilege to that person by or on behalf of the State Govern ment.
" The power was contained in the Prohibition Act, 1949 which was 657 an Act to amend and consolidate the law relating to the promotion and enforcement of and carrying into effect the policy of prohibition and also the Abkari law in the State of Bombay.
It may be mentioned that the Bombay PrOhibition Act, 1940 was brought into force on 25th May, 1949.
Then there was the ' Bombay Rectified Spirit (Transport inBond) Rules, 1951 brought into force.
On 23rd October, 1981 the amendment was made introducing section 49.
The provision of the Andhra Pradesh Act was challenged by impugning the allotment of alcohol under the Andhra Pradesh Excise Act No. XVII of 1968.
The Andhra Pradesh Act receive, the assent of the President on 26th August, 1968.
This was an Act to consolidate and amend the law relating to production, manufacture, possession, transport, purchase and sale of intoxicating liquors and drugs, the levy of duties of excise and countervailing duties of alcoholic liquor for human consumption and opium, Indian hemp and other narcotic drugs and narcotics and to provide for matters connected therewith in the State of Andhra Pradesh.
Writ Petition No. 1892/73 Hindustan Polymers Ltd. vs State of Andhra Pradesh challenges the Andhra Pradesh Dis tillery Rules, 1970 and Andhra Pradesh Rectified Spirit Rules, 1971.
The Tamil Nadu Prohibition Act is also chal lenged in C.A. Nos. 466 67/80 as well as writ petition No. 4501/78.
In all these the point is similar and we have heard learned counsel and respective Advocate Generals.
Appearing for the petitioners S/Shri Nariman, Diwan, Baig and Banerjee and others have made their submissions.
We have also heard Mr. Trivedi, learned Additional Advocate General of U.P., Mr. Yogeshwar Prasad, Dr. Singhvi, Mr. Sanghi, learned Advocate Generals of Andhra Pradesh and other States.
We had also the advantage of the submissions made by learned Attor ney General on behalf of Union of India.
It was submitted in the statement on behalf of Union of India that the legislative competence of the State enactment in the various States will have to be determined by refer ence to following entries in list I of the 7th Schedule entries 7, 52, 59, 84, 96, 97 & entries in list II, being 8, 24, 26, 27, 51 52, 54, 56, 62 and entries in list III 19 & 33.
It was urged that there is a dichotomy between entry 84 list I and entry 51 of list II but this would not control the interpretation of other entries.
There is no such dichotomy in entry 8.
It has also been stated on behalf of the Union of India that while opium was in entry 19 of list III and entry 59 of list I of the 7th Schedule, it means that Parliament will have power with regard to opium.
But the power to levy excise duty on 658 opium is given to the State, similarly medicinal and toilet preparations which contained alcohol and are fit for human consumption, the power to levy excise duty is given to Parliament and not to the State legislature.
Entry 8 of list Il similarly is not subject to entry 52 of list I for the reason that the aspect with regard to .subject matters of these two entries are different, it was submitted.
The aspect in list I entry 52 is industry while that in entry 8 of list II is intoxicating liquor.
Entry 8 is, therefore, to be read on its own terms.
The power to levy taxes is to be read from the entry relating to taxes and not from the general entry.
Exception in entry 50 of list II where tax on mineral rights is subject to any limitation imposed by Parliament relating to mineral development, and this power of Parliament is in general entry i.e. entry 54 of list I. According to Union of India, none of the taxing entries in list II is controlled by entry 52 of list I. Union of India stated that 'industry ' is a topic of legislation.
Certain entries are left to Parliament and certain others are left to State Legislatures.
Identifying of entries is by refer ence to a declaration under entry 7 of list I and entry 52 of list I. The aspect of legislation with regard to subject matter of entries will be topic 'industry '.
On the other hand, the subject matter of legislation under entry 8 of list II will be topic 'intoxicating liquors '.
Therefore, there is no conflict according to the Union of India.
The only question which has to be determined is whether intoxicating liquor in entry 8 in list II is confined to potable liquor or includes all liquors.
According to the Union of India, in view of the difference of language in entry 8 and entry 51 of list II, it is reasonably possible to take the view that intoxicating liquors include both liquors.
It was submitted by the Union of India that there are no grounds for overruling Balsara 's case (supra) decided in 1951 after 38 years particularly when it has been fol lowed and applied in later decisions.
In that case it upheld the power of the States to completely prohibit, manufacture, sell etc.
of potable liquor, it struck down the provisions of the Bombay Act in so far as it imposed restrictions on medicinal and toilet preparations as violative of article 19(1)(f) of the Constitution.
It is stated that this deci sion had proceeded on the basis that there could not be a complete prohibition in regard to medicinal preparations containing alcohol.
Hence, it was submitted that so far as alcohol not fit for human consumption is concerned, it cannot be held that trade in such an article cannot be considered to be a noxious trade.
It will be a noxious trade only where it is produced or manufactured for purposes of human consumption.
It was submitted that in Indian Mica & Micanite Industries Ltd. vs State of Bihar & Ors., this Court was dealing with denatured spirit and had held that the Bihar 659 Orissa Excise Act, insofar as it related to denatured spir it, was regulating trade and business in public interest; and that entry 8 of list II comprehends all liquors contain ing alcohol.
The State 's privilege to completely prohibit or farm out liquor containing alcohol for human consumption does not comprehend, according to the Union of India, a similar right of a State with regard to other intoxicating liquids containing alcohol.
According to the Union of India, to so prohibit or collect fee for farming out, would be unconstitutional under article 19(1)(g) of the Constitution on the same principle on which the provisions of the Bombay Act were struck down in Balsara 's case.
It was further stated on behalf of Union of India that Parliament has legislative competence with regard to power alcohol providing for levy of central excise duty.
See the Central Excises & Salt Act, 1944, Schedule I, item 6; Motor Spirit.
Similarly, Parlia ment has legislated the Central Excise Tariff Act, 1985 tariff item No. 22.04.
The said item reads: "Ethyl alcohol, of any grade (including such alcohol when denatured or otherwise treated), which either by itself or in admixture with any other substance, is suitable for being used as fuel for spark ignition engines.
" It was stated that under article 277 of the Constitution, any taxes, duties, cesses or fees which immediately before the commencement of the Constitution, were being lawfully levied by the Govt.
of any State or municipality or other local authority or body for the purpose of the State, munic ipality, district or other local area may, notwithstanding that these taxes, duties, casses or fees are mentioned in the Union list, continue to be levied and to be applied for the same purpose until provisions to the contrary are made by Parliament by law.
According to the Union of India, there was a similar provision in the Govt.
of India Act, 1935 (See section 143(2)).
Reference was made to the decision in Town Municipal Committee, Amraoti vs Ramachandra Vasudeo Chimote & Anr., ; Learned Attorney General drew our attention to the fact that Parliament has exclusive power to levy duties of excise on goods manufactured or produced in India including medici nal and toilet preparations containing alcohol for opium or Indian hemp or other narcotic drugs.
But Parliament has no legislative competence to levy excise duty on (a) alcoholic liquor for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics (entry 84 of list II).
The State Legislature has legislative competence to levy excise duty on the following goods manufactured or produced in the State 660 and countervailing duties on similar goods manufactured in India (a) alcoholic liquor for human consumption; (b) opium, Indian hemp and narcotics.
But learned Attorney General emphasised that State Legislature has no power to levy excise duty on medicinal and toilet preparations which contain alcohol or opium or Indian hemp and other narcotic drugs in such medicinal and toilet preparations.
Under entry 51 of list II State Legislature, it was submitted by him, had no power to levy excise duty on industrial alcohol as the latter is not fit for human consumption.
State Legisla ture has power to levy taxes on entry of goods in local areas for consumption, use or sale therein.
This will in clude taxes on entry of all alcohol.
See entry 52 of list II.
The State Legislature has further power to levy taxes on goods carried by road or by inland water.
The goods therein will include both alcohol fit for human consumption as well as alcohol not fit for human consumption.
See entry 56 of list II of the 7th Schedule.
State legislature will have to levy taxes on possession of alcoholic liquors fit for human consumption because these are luxuries.
But alcohol not fit for human consumption are not luxuries and as such the State Legislatures, according to learned Attorney General, will have no power to levy taxes on such alcohol.
Parliament will have power to levy on all alcohol taxes not covered by any other entries in lists I and II.
See list I entry 97.
The State Legislature will have power to levy fee in respect of all alcohol.
See entry 66 read with entry 6 of list II.
State Legislature has power to legislate on the topic 'intoxicating liquors ' under entry 8 of list 1I.
It being a general entry, will not comprehend a power of taxa tion but will comprehend a power to levy fee read with entry 66.
According to the learned Attorney General, with regard to industries, the control of which by the Union is declared by Parliament by law to be expedient in public interest, Parliament will have exclusive legislative competence.
See entry 52 of list I.
This power includes the power to declare by Parliament that control by the Union of industries relat ing to all types of alcohol is expedient in public interest.
Once Parliament makes such a declaration, the State Legisla ture will be denuded of its power under list II, entry 24 on the aspect 'industry ' with respect to all subject matters.
The power to collect the lump sum amount by way of auction by any right or otherwise conferring the right to sell alcohol is neither a power to levy tax nor a power to levy fee but it will fail within the legislative competence of the State Legislature under entry 8.
But this power will extend only, according to learned Attorney General, to alcohol for human consumption.
He said that there can be complete prohibition with regard to manufacture and sale of alcohol fit for human consumption because there is no funda mental 661 right to carry on business in alcohol even for human con sumption.
And that this power to completely prohibit exists in the State as recognised by article 47 of the Constitution.
The State can, therefore, collect an amount called vend fee, shop rent etc.
for conferring on a citizen the right to manufacture and sell alcoholic liquors if it is for human consumption.
This power cannot extend to industrial alcohol or alcohol contained in the medicinal or toilet prepara tions.
According to the learned Attorney General, there is no power to levy such rent or fee with regard to industrial alcohol because (a) industrial alcohol and alcoholic liquor for medicinal and toilet preparations cannot be completely prohibited; (b) as there is a right to carry on business in industrial alcohol any prohibition on manufacture of indus trial alcohol would be violative of article 19(1)(g) of the Constitution.
Accordingly, in.
absence of a power to com pletely prohibit there will be no power to collect sums for conferring rights to manufacture or sell except the levy of taxes and fee.
On behalf of the State of U.P. both the learned Addi tional 'Advocate General Mr. Trivedi as well as Mr. Yogesh war Prasad made exhaustive submissions and submitted that in order to appreciate the controversy it is necessary to realise that the real problem arises from the fact that the denaturants can be converted into renaturants in the illicit process.
According to the counsel appearing in support of the levy, one bottle of spirit of Rs. 1.50 on renaturing yields a profit of Rs.25 to 30 at least.
In this connection, reference was made to the report of Baweja Committee.
It was further emphasised that the victims are the weaker section and the sufferers are the "wailing workers, weeping wives and crying children '?, not only when the earning member dies, but in their lifetime too, the alcohol consumes, snatches their two morsels, their health, nutrition and standard of living.
Reference was made to the observations of this Court in P.N. Kaushal etc.
vs Union of India; , where Mr. Justice Krishna 1yet referred to the utterances of George Bernard Shaw that drinking is the chloroform that enables the poor to endure the painful operation of living.
It was submitted on behalf of the State that the vend fee on denatured alcohol or Denatured Spirit or what is known as industrial alcohol has been challenged on mainly two grounds, namely, (a) States lack legislative competence and (b) after the enactment of the IDR Act, 1961 the States power is completely lost.
The contention of the State was that there is no dichotomy between Ethyl Alcohol to be used for beverages and to be used for industrial purposes.
In any case, the levy is on manufacture, according to Mr. Yogeshwar Prasad and Mr. 662 Trivedi, learned Additional Advocate General of U.P., of the ethyl alcohol; use is different, and the collection at a later stage.
The levy was stipulated jointly or severally both under entries 8 of list II, entry 51 of list II, entry 33 of list III and what is described as police powers regu latory and other incidental charges, according to them.
It was submitted that levy was justified being a regulatory power under Article 19(6), 19(6)(ii).
It was further urged that State has a monopoly in alcohol trade; and that article 31C grants immunity to the challenge under Articles 13, 14 & 19 of the Constitution.
It was submitted that quid pro quo was not necessary and even if it was necessary, the require ments were met.
Under article 298 trading powers of the Stare must be recognised, it was submitted, coupled with century old monopoly of the State in alcohol.
It was submitted that vend fee is a pre Constitution levy.
The U.P. Excise Act, 1910 and the vend fee levied thereunder were pre Constitution Act/levy by a competent authority and will not cease to continue after the enforce ment of the Constitution, merely because the authority lost its legislative competence over the subject matter.
It was submitted that the levy was a pre Constitution levy, so saved under article 277 of the Constitution.
According to the State of U.P., the law continued under article 277 and is not a law either under article 246 nor under article 254 of the Consti tution, so outside the purview of the Central Act.
At the outset, it may be noted that in view of the subsequent amendment and the additions to the levies it cannot, in our opinion, be with legitimate force contended that the levies which are sought to be impugned in the present litigation are pre Constitutional levies.
So, these submissions on behalf of the State do not require any seri ous consideration.
It was further submitted that the Union of India has no power to effect the levy as levy was pre Constitutional law and further as the expression 'alcoholic liquor for human consumption ' in list I and the residuary entry 97 of list I of the 7th Schedule, will not operate as against its own legislative intent.
It was further urged that the IDR Act, 1951 does not preclude or eclipse the legislative powers of the State.
This Act on its own terms, does not apply to the levy; these operate on different tracks, according to the counsel for the State.
It was further urged that review was not maintainable.
Reference was made to the distillation process and detailed submissions were made before us ex plaining the same.
663 It was submitted that sugarcane is raw material of sugar and manufacture of sugar molasses is the waste product.
Molasses when mixed with yeast fermentation starts and alcohol is produced.
10 12% strength of alcohol is toxic to yeast, hence, fermentation stops.
According to the State of U.P., so fermented alcohol has maximum 12% strength of alcohol, the products being beer, cider, champangine, and liquor etc.
For higher strength (above 12%) distillation of fermented alcohol is necessary.
By distillation process firstly 96% strength of alcohol is produced.
It is known as ethyl alcohol or rectified alcohol.
Counsel for the State of U.P. submitted that this ethyl alcohol is potable and used both for beverage and industrial purposes; and that it is at this stage of manufacture that the charge of levy is made.
It has to be stated in view of the language used in the specific provisions the levy is not on the manufacture of alcohol as such, therefore, in our opinion, these levies cannot in essence be sustained as duty of excise.
It was contended on behalf of the State that rectified alcohol is diverted to different warehouses for being used as beverages (country liquor, foreign liquor) and industrial liquor.
it was submitted that this potable alcohol can be used for industrial purposes, but for public welfare, a lower levy is charged and to prevent its misuse denaturants are added and for denaturing in public interest, the State has to incur expenses, cost of denaturants, process and regulation etc.
However, this submission, by itself, does not help the controversy herein in essence.
No attempt had been made on behalf of the State to indicate that the levy has any element of quid pro quo or certain element which can possibly have some correlation with the expenses incurred in that connection.
It was submitted that ethyl alcohol is diluted to the requisite concentration for the concerned beverage and subjected to other processes like reduction, blending and flavouring etc.
and ethyl alcohol is further distilled for higher concentration 99.4% power alcohol and 100% absolute alcohol.
It was submitted that no alcohol as such is fit for human consumption.
It was contended that the effect is ultimate consumption, whether delayed or instanta neous.
The effect of alcohol is fatal, it was stated, may be spread out on long span or instant depending upon the concentration, dose and the person drinking it.
Sleeping pills are illustrative, overdose puts the man to eternal sleep.
It is in this background that we were reminded that the State being a welfare State, would be guilty in levying a lower levy on the alcohol.
It is the duty of the State for being a welfare State to denature by incurring extra cost and effort.
The industry does not need the denaturing.
664 Our attention was drawn to various observations of Krishna Iyer, J. in P.N. Kaushal 's case (supra).
There is indeed great deal of attempt made by some for wrong utilisa tion of alcohol and thereby endangering the community and people at large but the need to protect the community from the evil effects of drinking does not by itself empower the State to levy duty or impost of fee not warranted by the Constitution nor sanctioned by the specific provisions of the Constitution and the laws.
It was submitted that indus trial alcohol and denatured spirit are intoxicating liquor and or alcoholic liquor for human consumption.
These submis sions were supported by reference to the Dictionary meaning, Organic Chemistry, the definition in U.P. Excise Act, 1910 and various case laws.
It is used as being consumed by humanity.
The industry needs potable alcohol and the dena turants are not required by it rather some of them are avoided, according to the State of U.P.
In particular indus try they hamper the manufacture of the final product.
Dena tured spirit or industrial alcohol is basically potable alcohol; it is denatured in public interest to prevent its use as potable alcohol, according to the State of U.P.
This alcohol cannot be treated differently from other alcohols only because some denaturants are added in public interest and welfare.
It was submitted that the State has legislative competence to impose the levy since the impugned levy is both on its language and in pith and substance legislation failing under, according to the State of U.P., entry 8 list II intoxicating liquor, entry 51, list II alcoholic liquor for human consumption.
Counsel for the State emphasised the significant omission of the expression "fit for".
What is required is intoxicating liquor and/or alcoholic liquor for human consumption, according to counsel for the State of U.P. Entry 33 list Ill trade and commerce in, and the production, supply and distribution of the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in public interest, and imported goods of the same kind as such products.
Under its police powers the State has to regulate health, morality, welfare of society and incidental pauper ism and crime it was submitted.
It was further submitted by the State that the State has exclusive right to deal in liquor.
This power according to the counsel for the State, is reserved by and/or derived under articles 19(6) and 19(6)(ii) of the Constitution.
For parting with that right a charge is levied.
It was empha sised that in a series of decisions some of which have been referred to hereinbefore, it has been ruled that the charge is neither a fee nor a tax and termed it as privilege.
The levy is on the manufacture, possession of alcohol.
The rate of levy differs on its use, accord 665 ing to the State of U.P.
The impost is also stipulated under the trading powers of the State under article 298 and it was contended that the petitioners and/or appellants were bound by the terms of their licence.
It was submitted that the Parliament has no power to legislate on industrial alcohol, since industrial alcohol was also alcoholic liquor for human consumption.
Entry 84 in list I expressly excludes alcoholic liquor for human consumption; and due to express exclusion of alcoholic liquor for human consumption from list I, the residuary entry 97 in list I will not operate as against its own legislative interest.
These submissions have been made on the assumption that industrial liquor or ethyl alcohol is for human consumption.
It is important to emphasise that the expression of a Constitution must be understood in its common and normal sense.
Industrial alcohol as it is, is incapable of being consumed by a normal human being.
The expression 'consumption ' must also be understood in the sense of direct physical intake by human beings in this context.
It is true that utilisation in some form or the other is consumption for the benefit of human beings if industrial alcohol is utilised for production of rubber, tyres used.
The utilisation of those tyres in the vehicle of man cannot in the context in which the expression has been used in the Constitution, be understood to mean that the alcohol has been for human consumption.
We have no doubt that the framers of the Constitution when they used the expression 'alcoholic liquor for human consumption ' they meant at that time and still the expres sion means that liquor which as it is consumable in the sense capable of being taken by human beings as such as beverage of drinks.
Hence, the expression under entry 84, list I must be understood in that light.
We were taken through various dictionary and other meanings and also invited to the process of manufacture of alcohol in order to induce us to accept the position that Denatured Spirit can also be by appropriate cultivation or application or admix ture with water or with others, be transformed into 'alco holic liquor for human consumption ' and as such transforma tion would not entail any process of manufacture as such.
There will not be any organic or fundamental change in this transformation, we were told.
We are, however, unable to enter into this examination.
Constitutional provisions specially dealing with the delimitation of powers in a federal polity must be understood in a broad commonsense point of view as understood by common people for whom the Constitution is made.
In terminology, as understood by the framers of the Constitution, and also as viewed at the relevant time of its interpretation, it is not possible to proceed otherwise, Alcoholic or intoxicating liquors must be understood as these are, not what these are capable of or able 666 to become.
It is also not possible to accept the submission that vend fee in U.P. is a pre Constitution imposition and would not be subject to article 245 of the Constitution.
The present extent of imposition of vend fee is not a pre Con stitution imposition, as we noticed from the change of rate from time to time.
On behalf of the State of Maharashtra Mr. Dholakia submitted that the first issue is whether entry 8 in list II of the 7th Schedule of the Constitution, covers alcohol unfit for human consumption.
The second issue, according to him, is, whether assuming that the entry does not include alcohol unfit for human consumption, its scope in that respect is curtailed because of item 26 of the Schedule to the IDR Act, 1951.
The third issue, according to him, is, whether having regard to entry 51 in list II, the State can (a) impose regulations by creating economic disincentives for consumption of drinkable alcohol and (b) prevention of misuse of non drinkable alcohol for consumption.
On behalf of the State both Mr. Trivedi and Mr. Yogesh war Prasad contended that regulatory power of the State was there and in order to regulate it was possible to impose certain disincentives in the form of fees or levies.
Imposi tion of these imposts as part of regulatory process is permissible, it was submitted.
Our attention was drawn to the various decisions where by virtue of "Police Power" in respect of alcohol the State has imposed such impositions.
Though one would not be justified in adverting to any police power, it is possible to conceive sovereign power and on that sovereign power to have the power of regulation to impose such conditions so as to ensure that the regulations are obeyed and complied with.
We would not like, however, to embark upon any theory of police power because the Indian Constitution does not recognise police power as such.
But we must recognise the exercise of sovereign power which gives the State sufficient authority to enact any law subject to the limitations of the Constitution to discharge its func tions.
Hence, the Indian Constitution as a sovereign State has power to legislate on all branches except to the limita tion as to the division of powers between the Centre and the States and also subject to the fundamental rights guaranteed under the Constitution.
The Indian State, between the Centre and the States, has sovereign power.
The sovereign power is plenary and inherent in every sovereign State to do all things which promote the health, peace, morals, education and good order of the people.
Sovereignty is difficult to define.
This power of sovereignty is, however, subject to Constitutional limitations.
This power, according to some constitutional authorities, is to the public what necessity is to the individual.
Right to tax or levy 667 imposts must be in accordance with the provisions of the Constitution.
It was contended that the question, necessarily arises as to whether these regulations under the Bombay Prohibition Act, 1949 are intended as measures of revenue or as measures to advance the cause of prohibition.
Mr Dholakia invited us to the phrase "intoxicating liquor" which has been the subject matter of interpretation by the Federal Court, this Court and the United States Supreme Court.
It has been held that the expression is of widest import and must be given liberal interpretation.
According to him, this Court in Balsara 's case (supra) held that even toilet articles con taining alcohol as such would be intoxicating liquors.
Mr. Dholakia suggests that United States Supreme Court has expressly held that "Denatured Spirit" is intoxicating liquor because of necessity to prevent its misuse.
It was further contended that the I.D.R. Act, was made by the Parliament and it is traceable to entry 52, list I. This entry enables the Union Legislature to legislate in respect or ' an industry the control of which is declared by Parlia ment to be expedient in public interest.
Entry 52, according to him, speaks of control of an industry in its establish ment.
Ordinarily, States have the authority to allow or not to allow any industry to be established under entry 24 of list I1.
This power is not taken away by the I.D.R. Act.
According to Mr. Dholakia, if industry is allowed to be established by law within the policy of the State then its control thereafter would vest with the State.
Ordinarily, a citizen has fundamental right to establish an industry and only reasonable restrictions can be placed on these.
Howev er, the case of intoxicating liquor is different.
By virtue of article 47 of the Constitution the State may impose absolute prohibition in respect of intoxicating liquor.
In such a case, the State is authorised to deny a citizen the right to establish an industry in intoxicating liquor.
No person can claim that he is entitled to establish an industry for manufacturing whisky in any particular State.
The true test, according to Mr. Dholakia, is to ascertain if there was no I.D.R. Act to which entry of the State List, various regula tions in respect of "alcohol industry" would be traced.
It was submitted that the regulations would have to be traced to entry 24 of list 11 and not to entry 8.
It was submitted that in case of alcohol ordinarily used for human consump tion, the extent of regulation may go to the extent of complete prohibition.
It may go to a lesser extent of par tial prohibition.
It may assume a variety of forms including one of imposing economic disincentives.
If the price of drinkable alcohol becomes higher and higher, the person given to drinking might think it better to give it up, according to Mr. Dholakia.
The price fixation is a valid method in regulation of consumption, and if the above analy sis is fully 668 valid for drinkable alcohol, it is equally valid for the non drinkable alcohol for the following reasons, according to Mr. Dholakia: the major difference in non drinkable alcohol and drinkable one is that the former is often the legitimate activity while in the latter no such claim can be made.
The distinction is important for the purpose of deter mining the extent of regulations but it is of no assistance for deciding the nature of the regulation.
It is true, he says, that a State may not be entitled to prohibit the business of non drinkable alcohol but the State can impose regulation by which it can make nondrinkable alcohol more expensive to ensure that it is not available cheaply to a would be bootlegger.
Mr. Dholakia invites us to hold that Denatured Spirit is made by addition of malodorous or nox ious substance to alcohol in order to make it unfit for human consumption.
Denaturing is not done for making such alcohol fit for machine; it is done for the purpose of ensuring that such alcohol is avoided by would be drinkers.
Even so, lacking the easy availability of drinkable alcohol, those given to drinking would make an attempt to drink denatured spirit after distillation.
Such process of distil lation is what the bootleggers undertake.
The process is a simple one, according to Mr. Dholakia.
We need not detain ourselves in examining the process as suggested by him.
He insisted that the dividing line between relative importance of prohibition and industry should be left to each individual State because the conditions in all States are not identical.
He suggested that Gujarat attaches great importance to the cause of prohibition.
There are historical and social factors responsible for this policy.
According to Mr. Dholakia, the Govt.
of that State is prepared to sacri fice revenue running into hundreds of crores of rupees but the same may not be true of a State like Punjab.
According to him, the historical and social conditions there are quite different.
The power of the State Govt.
with regard to potable liquor was sustained in the dissenting judgment of Justice Hidayatullah in the case of M/s Guruswamy & Co. etc.
vs State of Mysore & Ors., 1t was, howev er, suggested that levies in the instant case are not duties of excise as understood in the said decision.
For these reasons, Mr. Dholakia submitted that the Bombay Prohibition Act cannot be challenged.
According to him, the relevant section of the said Act and the Denatured Spirit Rules, 1959 have to impose and advance the cause of prohibition while at the same time assuring a reasonable availability of Dena tured Spirit and Rectified Spirit at reasonable prices.
Learned Advocate General of the State of Andhra Pradesh has 669 also submitted in support of the imposition made under the A.P. Excise Act.
He has referred us to the relevant defini tions and sections contending that the Act falls within the legislative competence of the Andhra Pradesh State Legisla ture by virtue of entries 8 and 51 of list II and entry 33 of list III of the 7th Schedule.
He contended that the levy of excise duty falls within entry 51 of list II of the 7th Schedule to the Constitution inasmuch as the Andhra Pradesh Act received the assent of the President and is a later enactment than the I.D.R. Act.
The provisions of the Andhra Pradesh Act, according to him, will prevail over any earlier Central Law under article 254 of the Constitution.
The said Central legislation is enacted under entry 52 of list I. Learned Advocate General also insisted that there is no fundamental right in the business of liquor; and that Recti fied Spirit is nothing but alcohol which can be diluted and rendered fit for human consumption by additions of certain substances.
It can also be utilised for industrial purposes as raw material for manufacturing other products.
This multifarious user does not bring about any change in the essential character of alcohol after distillation.
In re spect of these legislations, learned Advocate General sub mitted that even if such an assumption were to be regarded as conceivable, State legislation has the predominant effect prevailing over the Central Legislature in respect of the State of A.P. in view of the assent by the President and the enactment being later in point of time in accordance with article 254 of the Constitution of India.
It was submitted that the dichotomy attempted to be drawn in entry 84 of list I of the 7th Schedule to the Constitution, on the basis of the development of the concept of industrial alcohol and the inapplicability of the concept of potable liquor to the industry of alcohol is not valid.
There is no question of fundamental right to trade in dan gerous or hazardous alcohol.
It was submitted that it is consistent with wider interpretation of alcoholic liquor based on pre existing legislative history.
It was further submitted that the test of potability of liquor is in no way rendered invalid in relation to industrial alcohol as it still permits of conversion to potability by addition of flavours and dilution.
When two interpretations are possi ble, it was submitted that the choice must fall on that interpretation which validates existing State legislations designed to raise revenues and rejection of the other inter pretation which is destructive of the scheme of distribution of powers.
According to him, the words 'alcoholic liquor ' in lists I & II of the 7th Schedule to the Constitution must be interpreted so as to mean and take within its sweep alcohol as first obtained in the process of or as a product of fermentation industry.
At this stage, it is capable of 670 being rendered potable.
The fact that it may be rendered unfit for human consumption, does not render the substance any less liable for taxation.
Learned Advocates General for the States of Gujarat and Kerala have also made their submissions, and referred to several decisions and the concept of police power, and contended that imposition of a fee would be the most effec tive method of regulating intoxicating liquor other than alcohol.
According to the Advocate General of Kerala, that would be justified as the reasonable measure in regard to intoxicating liquor.
According to him, it has been accepted by courts all along that the 'police power ' of the State enables regulations to be made regarding manufacture, trans port, possession and sale of intoxicating liquor.
Such police power could be exercised as to impose reasonable restrictions as to effectuate the power.
He referred to the observations of this Court in Cooverjee B. Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer & Ors., ; which quoted the passage from Crowley vs Christensen, [1890] 34 Lawyers ' Edn. 620.
Reference was also made to Hari Shankar 's case (supra) where this Court quoted Vol.
38 of the American Jurisprudence where it was stated that the higher the fee is imposed for a licence, better is the regulation.
Reliance was also placed on P.N. Kaushal 's case (supra).
It was contended that it has been accepted by this Court that the police power is exercisable for regulation of an activity of a legislature within the permissible field or impost as regulatory measure.
It may be valid though it may neither be fee nor a tax in the limited sense of the term.
See the observations of this Court in Southern Pharmaceuticals & Chemicals, Trichur & Ors. etc.
vs State of Kerala & Ors. etc.
; , at 537.
Re garding regulatory measures in connection with medicinal preparations containing alcohol it was observed by this Court that the impugned provisions had to be enacted to ensure that the Rectified Spirit is not misused under the pretext of being used for toilet and medicinal preparations containing alcohol.
Such a regulation is a necessary concom itant of the police power of the State to regulate such trade or business which is inherently dangerous to public health.
The American doctrine of police power is not perhaps applicable as such in India, but powers of the sovereignty to regulate as part of the power of the competent legisla ture to effectuate its aim are there.
It is true that in the State of West Bengal vs Subodh Gopal Bose & Ors., [1954] V SCR 587 at 601 604 and Kameshwar Prasad & Ors.
v The State of Bihar & Anr.
, ; the concept of 671 poliCe power was accepted as such, but this doctrine was not accepted in India as an independent power but was recognised as part of the power of the State to legislate with respect to the matters enumerated in the State and Concurrent Lists, subject to Constitutional limitations.
It was stated that the American jurisprudence of police power as distinguished from specific legislative power is not recognised in our Constitution and is, therefore, contrary to the scheme of the Constitution.
In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution makers and the importing of expression like 'police power ', which is a term of variable and indefinite connotation, can only make the task of interpretation more difficult.
It was contended that in enacting a law with respect to intoxicating liquor as part of the legislative power measures of social control and regulation of private rights are permissible and as such may even amount to prohi bition.
We are of the opinion that we need not detain ourselves on the question whether the States have police power or not.
We must accept the position that the States have the power to regulate the use of alcohol and that power must include power to make provisions to prevent and/or check industrial alcohol being used as intoxicating or drinkable alcohol.
The question is whether in the garb of regulations a legislation which is in pith and substance, as we look upon the instant legislation, fee or levy which has no connection with the cost or expenses administering the regulation, can be im posed purely as regulatory measure.
Judged by the pith and substance of the impugned legislation, we are definitely of the opinion that these levies cannot be treated as part of regulatory measures.
In this view of the matter we do not detain ourselves with examining the numerous American deci sions to which our attention was drawn by learned counsel very elaborately and thoroughly.
We recognise power of the State to regulate though perhaps not as emanation of police power, but as an expres sion of the sovereign power of the State.
But that power has its limitations.
We have noted the submissions made to this effect by the learned Advocates General of different States, including the State of Gujarat.
Some of the interveners have also made the submissions.
We have considered the submis sions made by M/s. Kantilal & Co. as interveners in respect of the Constitutional validity of the Bombay Prohibition Act as amended by the Bombay Prohibition (Gujarat Amendment) Act, 1978.
We have also the advantage of the submissions made on behalf of Advocate General of Madhya Pradesh by Mr. R.B. Datar.
He submit 672 ted that the substance of the case put forward by the peti tioners and/or appellants, is that the vend fee in respect of industrial alcohol is not a fee for any services ren dered, it is a compulsory exaction of money.
The answer to the question posed lies not in the labels used, according to Mr. Datar for describing the commodity in question.
It lies in the examination of the chemical reality of the substance.
He says that no process of interpretation can alter the law of chemistry or the chemical structure of the substance described in common parlance as industrial alcohol or pota ble alcohol, or alcohol for human consumption.
He referred us to Organic Chemistry and other books but, as mentioned before, the meanings must be found but in the conditions as these are.
On behalf of State of U.P. Mr. Trivedi, learned Addi tional Advocate General further submitted that entry 52 of list I is an exceptional entry.
It not only prescribes the field of legislation but also enables and empowers the Parliament to make laws to the exclusion of the State.
According to him, being exclusionary in nature unlike en tries merely delineating fields of legislation, entry 52 has to be strictly and, therefore, narrowly construed.
The other question that has to be judged, according to him, is that whenever the Constitution intended the Parliament to assume legislative competence in respect of the entire field, a declaration of an unqualified nature is provided for, unlike a qualified provision like entry 52 of list I. The words 'control ' and 'regulation ' are at times, held to be inter changeable or used synonymously, their use in the various entries either singly or jointly, indicates that they are sought to convey a different sense.
The word 'control ' has in the context, a narrower meaning, excluding details of regulatory nature by the State.
According to him, comparing entries 7, 23, 24, 27, 62, 64 & 67 of list I with entry 52, would demonstrate that under entry 52 it is not the entire field which is sought to be covered but only the control of industries; and that the absence of inclusion of qualifying, words like 'the control of which ' cannot be brushed aside.
By referring to the several decisions, he contended that in view of the declaration made in section 2 of the I.D.R. Act and the provisions made therein the entire field was not occu pied and the vend fee or other impost by the State Legisla tures were not infringing in the field treaded by the Cen tral Legislature.
Before we deal with the contentions of the petitioners/appellants, it is necessary to reiterate the principles by which these questions will have to be judged.
It is well to remember that the meaning of the expressions used 673 in the Constitution must be found from the language used.
We should interpret the words of the Constitution on the same principle of interpretation as one applies to an ordinary law but these very principles of interpretation compel one to take into account the nature and scope of the Act which requires interpretation.
A Constitution is the mechanism under which laws are to be made and not merely an Act which declares what the law is to be.
It is also well settled that a Constitution must not be construed in any narrow or pedan tic sense and that construction which is most beneficial to the widest possible amplitude of its power, must be adopted.
An exclusionary clause in any of the entries should be strictly and, therefore, narrowly construed.
No entry should, however, be so read as not to rob it of entire content.
A broad and liberal spirit should, therefore, inspire those whose duty it is to interpret the Constitu tion, and the courts are not free to stretch or to pervert the language of an enactment in the interest of any legal or constitutional theory.
Constitutional adjudication is not strengthened by such an attempt but it must seek to declare the law but it must not try to give meaning on the theory of what the law should be, but it must so look upon a Constitu tion that it is a living and organic thing and must adapt itself to the changing situations and pattern in which it has to be interpreted.
It has also to be borne in mind that where division of powers and jurisdiction in a federal Constitution is the scheme, it is desirable to read the Constitution in harmonious way.
It is also necessary that in deciding whether any particular enactment is within the purview of one Legislature or the other, it is the pith and substance of the legislation in question that has to be looked into.
It is well settled that the various entries in the three lists of the Indian Constitution are not powers but fields of legislation.
The power to legislate is given by article 246 and other Articles of the Constitution.
The three lists of the 7th Schedule to the Constitution are legislative heads or fields of legislation.
These demarcate the area over which the appropriate legislatures can oper ate.
It is well settled that widest amplitude should be given to the language of the entries in three lists but some of these entries in different fists or in the same list may override and sometimes may appear to be in direct conflict with each other, then and then only comes the duty of the court to find the true intent and purpose and to examine the particular Legislation in question.
Each general word would be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it.
In interpreting an entry it would not be reasonable to import any limitation by comparing or contrasting that entry with any other in the same list.
It has to be interpreted as the Constitution must be interpreted as an organic document in the light of the experience 674 gathered.
In the Constitutional scheme of division of powers under the legislative lists, there are separate entries pertaining to taxation and other laws.
The aforesaid princi ples are fairly well settled by various decisions of this Court and other courts.
Some of these decisions have been referred to in the decision of this Court in civil appeal No. 62(N)/ 70 The India Cement Ltd. etc.
vs The State of Tamil Nadu etc.
, The Balsara 's case (supra) was in the context of the business of potable alcohol.
Problems arose with regard to auctions, vends, licences and the business of manufacturing, selling, etc.
of potable alcohol.
Until the case of Synthet ics & Chemicals (supra), which is under challange here, all other cases since then have dealt with potable alcohol.
The only case which has dealt with alcohol used for industrial purposes was the case of Indian Mica and Micanite Industries Ltd. vs State of Bihar & Ors., (supra).
The Constitution of India, it has to be borne in mind, like most other Constitu tions, is an organic document.
It should be interpreted in the light of the experience.
It has to be flexible and dynamic so that it adapts itself to the changing conditions and accommodates itself in a pragmatic way to the goals of national development and the industrialisation of the coun try.
This Court should, therefore, endeavour to interpret the entries and the powers in the Constitution in such a way that it helps to the attainment of indisputed national goals, as permitted by the Constitution.
As mentioned here inbefore, the relevant entries in the Seventh Schedule to the Constitution demarcate legislative fields and are close ly linked and supplement one another.
In this connection, reference may be made to entry 84 of fist I which deals with the duties of excise on tobacco and other goods manufactured or produced in India except, inter alia, alcoholic liquors for human consumption.
Similarly, entry 51, fist II is the counterpart of entry 84 of fist I so far as the State List is concerned.
It authorises the State to impose duties of excise on alcoholic liquors for human consumption and opium, etc.
manufactured or produced in the State and the counter vailing duties at the same or lower rates on similar goods produced or manufactured elsewhere in India.
It is clear that all duties of excise save and except the items specifi cally excepted in entry 84 of list 1 are generally within the taxing power of the Central Legislature.
The State Legislature has power, though limited it is, in imposing duties of excise.
That power is circumscribed under entry 51 of list II of the Seventh Schedule to the Constitution.
As we have noted hereinbefore, the correct principles of harmo nious interpretation of legislative entries have been laid down in several cases.
We have mentioned hereinbefore some of the decisions as noted in the decision of this Court in India Cement (supra).
In M.P.V. Sundarara 675 mier & Co. vs State of A.P., ; at pages 1480 82, this Court has laid down that (i) legislative entries are to be fiber ally construed.
But when a topic is governed by two entries, then they have to be recon ciled.
It cannot be that one entry is to be fiberally construed and the other entry is not to be liberally construed.
(ii) under the Constitutional scheme of division of powers under legislative lists, there are separate entries pertaining to taxation and other laws.
A tax cannot be levied under a general entry.
(iii) a Constitution is an organic document and has to be so treated and con strued.
(iv) if there is a conflict between the entries, the first principle is to reconcile them.
But the Union power will prevail by virtue of Article 246(1) & (3).
The words "notwithstanding" and "subject to" are impor tant and give primacy to the central legisla tive power.
In the Central Provinces and Berar Sales of Motor Spirit and LubriCants Taxation Act, 1938, at 37 38, the Federal Court had emphasised that Constitution of a Government is a living and organic thing which of all in struments has the greatest claim to be so construed as to make it live.
In Indian Mica & Micanite India vs State of Bihar, (supra), a bench of five Hon 'ble Judges stated as under: "Under the 1935 Act as under our present Constitution, the power to levy duties on alcoholic liquor fit for human consumption was allocated to the provincial legislature where as the power to levy duty on alcoholic liquor not fit for human consumption was allocated to the central legislature.
" In the aforesaid case, an impost was sought to be placed on denatured spirit which was used in the manufacture of micanite.
It was held that the impost could not be justified as a tax, under the taxing power and therefore, an enquiry was ordered to find out whether it was justified as a fee.
In Adhyaksha Mathur Babu 's Sakti Oushadhalaya Dacca (P) 676 Ltd. and Ors.
vs Union of India, , at pages 966, 969, 975, 976 of the report, it was observed by this Court that only the Central Government has the power to tax liquids containing liquor which was an ayurvedic medicine even though such medicines were capable of being used as intoxicating things.
In M/s Guruswamy & Co. etc.
vs State of Mysore & Ors., at pages 549, 556, 557, 564, 571,572 of the report, it was held that it is clear that imposts which were not in the nature of excise duty were held to be ultra vires entry 51 of list II of the Seventh Schedule to the Constitution.
In State of Mysore vs S.D. Cawasji & Co. & Ors., ; at pp. 804, 805 and 806 of the report, this Court rejected the contention that under entry 8 of list II of the Seventh Scheduly to the Constitution the State was competent to legislate for levy of cess in respect of "intoxicating liquor" that is to say, the production, manufacture, transport, purchase and sale of intoxicating liquors.
Legislative power normally includes all incidental and subsidiary powers, but the power to tax is neither incidental nor subsidiary to the power to legis late on a matter or topic.
Reference was made to M.P.V. Sundararamier 's case (supra).
Entries in lists I and II, dealing with certain specific topics, it was held, do not grant power to levy tax on transactions relating to those topics.
Power to tax must be derived from a specific taxing entry.
Tax could not, therefore, be levied, it was held on intoxicating liquors relying upon entry 8 of list II of the 7th Schedule.
It was further held that the taxing power in respect of alcoholic liquors for human consumption is, therefore, circumscribed and it might only be levied as excise duty, that is a duty levied on the production and manufacture of alcoholic liquors.
Reliance was placed on R.C. I all vs Union of India, [1962] Supp. 3 SCR 436.
In Om Prakash vs Giriraj Kishore, ; at pages 158 and 163 of the report, Venkataramiah J., as the learned Chief Justice then was, held that no tax can be levied in the guise of a fee.
It was held at p. 158 of the report as follows: "As observed in M.P.V. Sundararamier & Co. vs The State of Andhra Pradesh & Anr., ; , in list II of the Seventh Schedule to the Constitution Entries 1 to 44 form one group mentioning the subjects on which the States can legislate and entries 45 to 63 in that list form another group dealing with taxes that may be levied by States.
Entry 64 refers to offences against laws with respect to any of the matters in List II and Entry 65 refers to jurisdiction of Courts.
Entry 66 empowers the State to levy 677 fees in respect of any of the matters in List I1.
Unless the cess in question can be brought under any of the Entries from 45 to 63 it cannot be levied as a tax at all.
" It was further observed at p. 163 of the report as follows: "It is constitutionally by impermissible for any State Government to collect any amount which is not strictly of the nature of a fee in the guise of a fee.
If in the guise of a fee the legislation imposes a tax it is for the Court on scrutiny of the scheme of the levy to determine its real character.
If on a true analysis of the provisions levying the amount, the Court comes to the conclusion that it is, in fact, in the nature of a tax and not a fee, its validity can be justified only by bringing it under any one of the entries in list II of the Seventh Schedule to the Consti tution under which the State can levy a tax.
" It has to be borne in mind that by common standards ethyl alcohol (which has 95%) is an industrial alcohol and is not fit for human consumption.
The petitioner and the appellants were manufacturing ethyl alcohol (95%) (also known as rectified spirit) which is an industrial alcohol.
ISI specification has divided ethyl alcohol (as known in the trade) into several kinds of alcohol.
Beverage and industri al alcohols are clearly and differently treated.
Rectified spirit for Industrial purposes is defined as "spirit puri fied by distillation having a strength not less than 95% of volume by ethyl alcohol".
Dictionaries and technical books would show that rectified spirit (95%) is an industrial alcohol and is not potable as such.
It appears, therefore, that industrial alcohol which is ethyl alcohol (95%) by itself is not only non potable but is highly toxic.
The range of spirit of potable alcohol is from country spirit to whisky and the Ethyl Alcohol content varies between 19 to about 43 per cent.
These standards are according to the ISI specifications.
In other words, ethyl alcohol (95%) is not alcoholic liquor for human consumption but can be used as raw material input after processing and substantial dilution in the production of Whisky, Gin, Country Liquor, etc.
In many decisions, it was held that rectified spirit is not alcohol fit for human consumption.
Reference may be made in this connection to Delhi Cloth and General Mills Co. Ltd. vs The Excise Commissioner, U.P. Allahabad and Anr.
Special Appeal No. 177 of 1970, decided on 29th March, 1973.
In this connection, it is important to bear in mind the actual provision of entry 8 of list II.
Entry 8 of list II cannot support a tax.
The above entry contains the 678 words "intoxicating liquor".
The meaning of the expression "intoxicating liquor" has been tightly interpreted by the Bombay High Court in the Balsara 's case (supra).
The deci sion of the Bombay High Court is reported in AIR 1951 Bombay 210, at p. 214.
In that light, perhaps, the observations of Fazal Ali, J. in Balsara 's case (supra) requires considera tion.
It appears that in the light of the new experience and development, it is necessary to state that "intoxicating liquor" must mean liquor which is consumable by human being as it is and as such when the word "liquor" was used by Fazal Aft, J., they did not have the awareness of full use of alcohol as industrial alcohol.
It is true that alcohol was used for industrial purposes then also, but the full potentiality of that user was not then comprehended or understood.
With the passage of time, meanings do not change but new experiences give new colour to the meaning.
In Har Shankar 's case (supra), a bench of five judges have surveyed the previous authorities.
That case dealt with the auction of the right to sell potable liquor.
The position laid down in that case was that the State had the exclusive privilege or right of manufacturing and selling liquor and it had the power to hold public auctions for granting the right or privilege to sell liquor and that traditionally intoxicating liquors were the subject matters of State monopoly and that there was no fundamental right in a citizen to carry on trade or business in liquor.
All the authorities from Coo verji Barucha 's case to Har Shankar 's case (supra) dealt with the problems or disputes arising in connection with the sale, auction, licensing or use of potable liquor.
Only in two cases the question of industrial alcohol had come up for consideration before this Court.
One is the present decision which is under challenge and the other is the decision in Indian Mica & Micanite Industries 's case (supra).
In the latter case, in spite of the earlier judg ments including Bharucha 's case, denatured spirit required for the manufacture of micanite was not regarded as being within the exclusive privilege of the State.
It appears that in that decision at p. 321 of the report, it was specifical ly held that the power of taxation with regard to alcoholic liquor not fit for human consumption, was within the legis lative competence of central legislature.
The impost by the State was held to be justifiable only if it was a fee there by impliedly and clearly denying any consideration or price for any privilege.
For the first time, in the Synthetics & Chemicals Ltd. 's case (supra), the concept of exclusive privilege was introduced into the area of industrial alcohol not fit for human consumption.
Balsara 's case (supra) deal with the question of reasonable restr 679 iction on medicinal and toilet preparations.
In fact, it can safely be said that it impliedly and sub silentio clearly held that medicinal and toilet preparations would not fall within the exclusive privilege of the State.
If they did there was no question of striking down of section 12 (c) & (d) and section 13(b) of the Bombay Prohibition Act, 1949 as unreasonable under Article 19(1)(f) of the Constitution because total prohibition of the same would be permissible.
In K.K. Narula 's case ; , it was held that there was right to do business even in potable liquor.
It is not necessary to say whether it is good law or not.
But this must be held that the reasoning therein would apply with greater force to industrial alcohol.
Article 47 of the Constitution imposes upon the State the duty to endeavour to bring about prohibition of the consumption except for medicinal purpose of intoxicating drinks and products which are injurious to health.
If the meaning of the expression "intoxicating liquor" is taken in the wide sense adopted in Balsara 's case, it would lead to an anamolous result.
Does Article 47 oblige the State to prohibit .even such industries as are licensed under the IDR Act but which manufacture industrial alcohol? This was never intended by the above judgments or the Constitution.
It appears to us that the decision in the Synthetics & Chemi cals Ltd. 's case (supra) was not correct on this aspect.
Reference in this connection may be made to the decision in Inspector of Taxes vs Australian Mutual Provident Socie ty, [1959] 3 All England Law Report 245, at p. 256 of the report, Lord Denning in his dissenting judgment observed as follows: "My Lords, I ask myself: What authority is to be given in these circumstances to the deci sion of this House in 1947? Is it to be fol lowed from step to step regardless of conse quences? Are we to hold that the tax under r. 3 is a tax on the profits of the business for all purposes, including the purposes of the Double Taxation Agreement, which this House never had in mind at all? I think not.
The doctrine of precedent does not compel your Lordships to follow the wrong path until you fall over the edge of the cliff.
As soon as you find that you are going in the wrong direction, you must at least be permitted to strike off in the right direction, even if you are not allowed to retrace your steps.
And that is that I would ask your Lordships to do.
I would invite your Lordships to say that the decision of this House in 680 1947 has no application to the meaning of the word "profits" in the Double Taxation Agree ment." Justice Jackson in his dissent in the case of Common wealth of Massachusetts Et A.I vs USA, 92 Lawyers, Edition p. 968 also upheld the right to set right what was said wrongly in the past.
It was submitted that the activity in potable liquor which was regarded safe and exclusive right of the state in the earlier judgments dealing with the potable liquor were sought to be justifiable under the police power of the State, i.e., the power to preserve public health, morals, etc.
This reasoning can never apply to industrial alcohol manufactured by industries which are to be developed in the public interest and which are being encouraged by the State.
In a situation of this nature, it is essential to strike a balance and in striking the balance, it is difficult to find any justification for any theory of any exclusive fight of a State to deal with industrial alcohol.
Restriction valid under one circumstance may become invalid in changing cir cumstances.
Reference may be made to the observations of Justice Brandeis in Nashiville, Chattangooga & St. Louis Railway vs Herbert section Waiters, 79 Lawyers Edition 949.
See also Leo Nebbia vs People of the State of New York, 78 Lawyers ' Edn. 940 at p. 941.
Similar is the effect of the approach of this Court in Motor General Traders & Anr.
vs State of Andhra Pradesh & Ors. etc.
; , It is not necessary for us here to say anything on the imposts on potable alcohol as commonly understood.
These are justified by the lists of our legislature practised in this country see the observations of Hidayatullah J. as the Chief Justice then was, in M/s Guruswamy vs State of My sore, at p. 573 574 and other decisions mentioned hereinbefore.
In that view of the matter, it appears to us that the relevant provisions of the U.P. Act, A.P. Act, Tamil Nadu Act, Bombay Prohibition Act, as mentioned hereinbefore, are unconstitutional in so far as these purport to levy a tax or charges imposts upon industrial alcohol, namely alcohol used and usable for industrial purposes.
Having regard to the principles of interpretation and the Constitutional provisions, in the light of the language used and having considered the impost and the composition of industrial alcohol, and the legislative practice of this country, we are of the opinion that the impost in question cannot be justified as State imposts as these have 681 been done.
We have examined the different provisions.
These are not merely regulatory.
These are much more than that.
These seek to levy imposition in their pith and substance not as incidental or as merely disincentives but as attempts to raise revenue for States ' purposes.
There is no taxing provision permitting these in the lists in the field of industrial alcohol for the State to legislate.
Furthermore, in view of the occupation of the field by the IDR Act, it was not possible to levy this impost.
After 1956 amendment to the IDR Act bringing alcohol industries (under fermentation industries) as item 26 of the First Schedule to IDR Act the control of this industry has vested exclusively in the Union.
Thereafter, licences to manufacture both potable and nonpotable alcohol is vested in the Central Government.
Distilleries are manufacturing alcohol under the Central Licences under IDR Act.
No privi lege for manufacture even ii one existed, has been trans ferred to the distilleries by the State.
The State cannot itself manufacture industrial alcohol without the permission of the Central Government.
The States cannot claim to pass a right which these do not possess.
Nor can the States claim exclusive right to produce and manufacture industrial alco hol which are manufactured under the grant of licence from the Central Government.
Industrial alcohol cannot upon coming into existence under such grant be amenable to States ' claim of exclusive possession of privilege.
The State can neither rely on entry 8 of list I1 nor entry 33 of list III as a basis for such a claim.
The State cannot claim that under entry 33 of list III, it can regulate industrial alcohol as a product of the scheduled industry, because the Union, under section 18G of the IDR Act, has evinced clear intention to occupy the whole field.
Even otherwise sections like section 24A and 24B of the U.P. Act do not constitute any regulation in respect of the industrial alcohol as product of the scheduled industry On the contrary, these purport to deal with the so called transfer of privilege regarding manufacturing and sale.
This power, admittedly, has been exercised by the State purporting to act under entry 8 of list II and not under entry 33 of list III.
The position with regard to the control of alcohol industry has undergone material and significant change after the amendment of 1956 to the IDR Act.
After the amendment, the State is left with only the following powers to legis late in respect of alcohol: (a) it may pass any legislation in the nature of prohibition 682 of potable liquor referable to entry 6o of list II and regulating powers.
(b) it may lay down regulations to ensure that non potable alcohol is not divert ed and misused as a substitute for potable alcohol.
(c) the state may charge excise duty on potable alcohol and sales tax under entry 52 of list II.
However, sales tax cannot be charged on industrial alcohol in the present case, because under the Ethyl Alcohol (Price Control) Orders, sales tax cannot be charged by the state on industrial alcohol.
(d) however, in case State is rendering any service, as distinct from its claim of so called grant of privilege, it may charge fees based on quid pro quo.
See in this con nection, the observations of India Mica 's case (supra).
On an analysis of the various Abkari Acts and Excise Acts, it appears that various Provinces/States reserve to themselves in their respective States the right to transfer exclusive or other privileges only in respect of manufacture and sale of alcohol and not in respect of possession and use.
Not all but some of States have provided such reservation in their favour.
The price charged as a con sideration for the grant of exclusive and other privileges was generally regarded as an excise duty.
In other words, excise duty and price for privileges were regarded as one and the same thing.
So called privilege was re served by the State mostly in respect of country liquor and not foreign liquor which included denatured spirit.
On an analysis of the aforesaid decisions and practice, we are clearly of the opinion that in respect of industrial alcohol the States are not authorised to impose the impost they have purported to do.
In that view of the matter, the contentions of the petitioners must succeed and such imposi tions and imposts must go as being invalid in law so far as industrial alcohol is concerned.
We make it clear that this will not affect any impost so far as potable alcohol as commonly understood is concerned.
It will also not affect any imposition of levy on industrial alcohol fee where there are circumstances to establish that there was quid pro quo for the fee sought to be imposed.
This will not affect any regulating measure as such.
We must, however, observe that these imposts and levies have 683 been imposed by virtue of the decision of this Court in Synthetics & Chemicals Ltd. 's case (supra).
The States as well as the petitioners and manufacturers have adjusted their rights and their position on that basis except in the case of State of Tamil Nadu.
In that view of the matter, it would be necessary to state that these provisions are de clared to be illegal prospectively.
In other words, the respondents states are restrained from enforcing the said levy any further but the respondents will not be liable for any refund and the tax already collected and paid will not be refunded.
We prospectively declare these imposts to be illegal and invalid, but do not affect any realisations already made.
The writ petitions and the appeals are dis posed of accordingly.
The review petitions, accordingly, succeed though strictly no grounds as such have been made out but in the view we have taken, the decision in the Synthetics & Chemicals Ltd. 's (supra) cannot be upheld.
In the view we have taken also, it is not necessary to decide or to adjudicate if the levy is valid as to who would be liable, that is to say, the manufacturer or the producer or the dealer.
With regard to writ petition No. 405 1/78 (Chemicals & Plastics India Ltd. vs State of Tamil Nadu), certain orders were passed by this Court on 1st November, 1978, 1st Septem ber, 1986, 1st October, 1986 and 10th October, 1986.
It is stated that the present demand of the Central Excise Depart ment from 1st March, 1986 on alcohol manufactured by the company in their captive distillery is over Rs.4 crores.
This Court by its order dated 1st October, 1986 as confirmed on the 16th October, 1986 had permitted the State Government to collect the levy on alcohol manufactured in company 's captive distillery subject to adjustment of equities and restrained the central excise authorities from collecting any excise duty on such alcohol.
It is, therefore, necessary to declare that in future no further realisation will be made in respect of this by the State Government from the petitioners.
So far as the past realisations made are con cerned, we direct that this application for that part of the direction, should in accordance with our decision herein be placed before a division bench for disposal upon notice both to the State Government and the Central Government.
In the facts and the circumstances of the case, the parties will bear and pay their own costs.
OZA, J.
While I agree with my learned brother Hon.
Mukharji, J. as regards the conclusions but I would like to add the following reasons.
In these matters the main question that arise for considera tion is 684 about the validity of the levies made by the respondent States on Alcohol which is utilised by the industries for manufacturing the products where Alcohol is the raw materi al.
Some of these industries themselves manufacture Alcohol as they have their own distilleries and from their distill eries through pipelines it goes to their industrial units where this is used as a raw material whereas some are indus tries which purchase Alcohol or denatured spirit on being allotted by the Government.
It is alleged that in addition to excise duty levied by the Central Government, excise duty and various levies in various names like vend fee, transport fee and others numbering about eight levies are imposed by the State Government.
The main contention on behalf of the industries is that the State Legislature has no authority in view of Entry 84 of List I read with Entry 51 of List II to impose such levies.
This being Alcohol which does not fall within the ambit of "Alcoholic liquors for human consump tion".
It is only the Centre which has the authority under Entry 84 of List I to tax.
Entry 51 of List II authorises the State Legislature to impose a tax on "Alcoholic liquors for human consumption.
" It is further contended that Entry 8 in List II which talks of intoxicating liquors only authorises the State Legislature to enact laws to regulate but does not empower the State Legislature to impose any levy and the various levies which have been imposed by the State Legislature on industrial alcohol and even Mithylated spirit could not be brought within the ambit of regulatory duties for purposes of regulation only and therefore could not be justified under Item 8 of List II.
It was also contended that the State ultimately falls back on the consideration for parting with the privilege to sell alcoholic liquors which has been the basis of series of decisions of this Court based on English and American deci sions but according to the learned counsel for the petition ers this doctrine of privilege and consideration for sale of privilege also could be available to the State only in respect of alcohol or alcoholic liquors which are for human consumption.
According to the learned counsel by merely widening the definition of intoxicating liquors in respec tive excise laws enacted by the State the ambit of authority of taxation could not be enlarged by the State Legislature when in List II Item 51 the words used are Alcoholic liquors for human consumption.
Entry 84 in List I reads: "84.
Duties of excise on tobacco and other goods manufactured or produced in India ex cept 685 (a) alcoholic liquors for human consumption.
(b) opium, Indian hemp and other narcotic drugs and narcotics, but including medicinal and toilet prepara tions containing alcohol or any substance included in sub paragraph (b) of this entry.
" Entry 51 in List 11 reads: "51.
Duties of excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or pro duced elsewhere in India: (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet prepa rations containing alcohol or any substance included in sub paragraph (b) of this entry.
" A comparison of the language of these two entries clear ly demonstrates that the powers of taxation on alcoholic liquors have been based on the way in which they are used as admittedly alcoholic liquor is a very wide term and may include variety of types of alcoholic liquors but our Con stitution makers distributed them into two heads: (a) for human consumption (b) other than for human consumption Alcoholic liquors which are for human consumption were put in Entry 51 List II authorising the State Legislature to levy tax on them whereas alcoholic liquors other than for human consumption have been left to the Central Legislature under Entry 84 for levy of duty of exise.
This scheme of these two entries in List I and II is clear enough to indi cate the line of demarcation for purposes of taxation of alcoholic liquors.
What has been excluded in Entry 84 has specifically been put within the authority of the State for purposes of taxation.
686 Entry 8 in List 2 reads: "8.
Intoxicating liquors, that is to say, the production, manufacture, possession, trans port, purchase and sale of intoxicating liq uors.
" This Entry talks of intoxicating liquors and further on refers to production, manufacture, possession, transport, purchase and sale of these liquors.
It appears that the State has levied some kind of duties in various names at each of these stages used in this Entry i.e. production, manufacture, possession, transport, purchase and sale.
But from the scheme of entries in the three lists it is clear that taxing entries have been specifically enacted confer ring powers of taxation whereas other entries pertain to the authority of the Legislature to enact laws for purposes of regulation.
If we compare Entry 8 in List II with entry 51 it is clear that when Entry 51 authorises the State Legisla ture to levy tax and duties on alcoholic liquors falling in Entry 51, Entry 8 confers authority on the State Legislature to enact laws for regulation.
Similarly are Entries in List I. As regards regulation or regulatory fees it was contended that Entry 52 in List I empowers the Parliament to declare the industries which the Union proposes to control in public interest under Industries Development and Regulation Act.
Entry 52 List I reads as under: "52.
Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.
" Such a declaration is made by the Parliament and this industry i.e. industry based on fermentation and alcohol has been declared to be an industry under that Act and therefore is directly under the control of the Centre and therefore even in respect of regulation the authority of the State Legislature in Entry 8 List II could only be subject to the Industries Development and Regulation Act or Rules made by the Centre.
Under these circumstances therefore it is clear that the State Legislature had no authority to levy duty or tax on alcohol which is not for human consumption as that could only be levied by the Centre.
The main emphasis it appears is that this duty on alco hol and alcoholic liquors is a substantial revenue of State and it appears that it 687 was this obsession which was reflected and demonstrated when this concept of consideration for parting with privilege was invented by our courts on the basis of some judgments from United States based on some judgments from England and it is on this basis that all through the States have been justify ing their respective levies and duties on alcohol and alco holic beverages and overcome the test of reasonableness, double taxation and of limitation as it being a considera tion for transfer of privilege it could be anything and no limits could be placed thereupon.
The main edifice of the argument on behalf of the State is that the State has the sole privilege to deal with in Alcohol and alcoholic substances.
This, according to the arguments, is equally applicable to alcohol for human con sumption and also for denatured spirit or other categories of alcoholic liquors which though may be described as not for human consumption but are potential substances which easily could be converted as intoxicating liquors fit for human consumption.
It is on this basis that the learned counsel appearing for the States and the Advocate General of the States drew our attention to various extracts of the text books on organic chemistry as it was contended that there are so many types of alcohol known in the organic chemistry of which ethyl alcohol is one which is used as a beverage when dilut ed upto a particular percentage and also is used for indus trial purposes in high concentration or sometimes denatured.
The main theme of the argument was that ethyl alcohol which is a product of distillation after fermentation is extracted in various concentrations and can also be extracted in a very high concentration above 90 percent which generally is termed as rectified spirit.
It is not in dispute that this high concentration of ethyl alcohol is a raw material for various industries.
Sometimes it is supplied after being mixed by Mithylated alcohol or being denatured by other processes only to safeguard against its use for conversion into alcoholic beverages for human consumption.
As it is well known that when the ethyl alcohol is diluted by water and its percentage is brought to 40 or 45 or below then it become fit for human consumption and it was therefore argued that various duties for purposes of regulation are imposed by the State itself to prevent the conversion of rectified spirit or mithylated alcohol to be diverted from industrial to portable use.
The basis of the privilege doctrine appears to be that alcoholic drinks or intoxicating drinks are expected to be injurious to health and therefore the trade in these commod ities is described as obnoxious and 688 therefore a citizen has no fundamental right under Article 19(1)(g) of the Constitution and therefore the trade in alcoholic drinks which is expected to be injurious to health and obnoxious is the privilege of the State alone and the State can part with this privilege on receipt of the consid eration.
This basis of the privilege doctrine has to be examined in the context of our Constitution especially Article 21 and Article 47.
The concept of royal privilege has been derived histori cally from England as Great Britain continues to be a Monar chy with democracy.
The Head of the State is the Crown.
It was on these bases that what has not been provided for was supposed to be the privilege of the Crown but under Indian Constitution the Head of the State and the three function aries of the State, the Executive, the Legislature and the Judiciary have their powers defined under the Constitution.
There is nothing like privilege vested in any one of the functionaries of the State and in the background of this basic feature of our Constitution the doctrine of privilege is difficult to reconcile with.
If we examine this privilege of trading in commodities injurious to health and dangerous to life in the context of Article 21 and Article 47 of our Constitution.
Article 21 of the Constitution reads: "21.
Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law." This Article casts a duty on the State to protect the life of every citizen except as is provided under Article 21.
If we compare this duty of the State with the scheme of privi lege which means that the State has a privilege to endanger human life (the life of a citizen) such a privilege runs contrary to Article 21.
Another significant article of our Constitution is Article 47.
It reads as under: "47.
Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
" This Article appears in the Chapter of Directive Principles of State 689 Policy.
Inclusion of this Article in this Chapter clearly goes to show that it is the duty of the State to do what has been enacted in Article 47 and in fact this Article starts with the phrase "Duty of the State" and the duty is to improve public health and it is further provided that this duty to improve public health will be discharged by the State by endeavouring to bring about prohibition.
It sounds contradictory for a State which is duty bound to protect human life, which is duty bound to improve public health and for that purpose is expected to move towards prohibition claims that it has the privilege of manufacture and sale of alcoholic beverages.
which are expected to be dangerous to human life and injurious to human health, transferring this privilege of selling this privilege on consideration to earn huge revenue without thinking that this trade in liquor ultimately results in degradation of human life even endan gering human life and is nothing but moving contrary to the duty cast under Articles 21 and 47 and ideal of prohibition enshrined in Article 47.
In view of articles 21 and 47 with all respect to the learned Judges who so far accepted the privilege doctrine it is not possible to accept any privi lege of the State having the right to trade in goods obnox ious and injurious to health.
The other stand of States to justify these levies is based on the doctrine of police powers.
The doctrine of police powers enunciated in number of decisions of the American Courts and which has been the subject matter of discussion by various authors in texts on jurisprudence as referred to in Indian context under our Constitution does not appear to be applicable.
In the Constitution of U.S.A. basic factor which must be kept in mind is: that various States after getting independence from their European Mas ters came together to form a Federal State and therefore what was not conceded to the Federal State i.e. the residu ary powers vested in the State and as it was not conceded to the Federal Government that this residuary power of mainte nance of law and order peace so essential for the develop ment in a civilised society was evolved as a doctrine of police powers vested in the State.
In India as the Constitu tion was enacted or was framed after having the experience of various countries in the World, the concept of fundamen tal rights and rights like life, liberty, procedure estab lished by law and various legislative functions which were divided between the States and the Union left no scope for any power except which could be derived from any provision in the Constitution coupled with an Entry in one of the three Lists which would indicate the power vested in either the State or the Centre.
Apart from it the scheme of our Constitution is that there are no residuary powers which vest in the State and the scheme of our Constitution also reveals that in case of 690 any conflicts it is the Centre which prevails and not the State and therefore trying to apply the doctrine of police powers which has been conceived of in the American decisions which the Government of a State in the United States and to apply it to a State under Indian Constitution, will only mean to do violence to the scheme of our Constitution.
What police powers have been enunciated under the American Con stitution clearly will fall within the ambit of Articles 19, 21, 22 and respective entries in the Schedule of the Consti tution.
In fact, under our Constitution no powers could be conceived for which there is no provision in any one of the entries in the three Lists or which could not be justified under any specific Article of the Constitution.
Thus even this concept of the doctrine of police powers could not be of any help to justify the levies imposed by the State on alcohol or alcoholic liquors.
These questions about the privilege and the doctrine of police powers in fact would be material to be considered when the question about the various levies imposed by the State in respect of alcoholic beverages is considered and so far as the present cases are concerned which pertain to only alcoholic liquors which are not for human consumption i.e. which are meant for industrial use.
The only question will be as to whether the State could justify the respective levies under any of the entries in List II.
The main theme of the argument on behalf of the States has been that they have imposed levies because the alcohol which is not for human consumption is a commodity which could be easily converted into alcoholic liquors for human consumption and therefore the levies have been imposed assuming that it is for human consumption or in other words the contention has been that these levies have been imposed in order to prevent the conversion of alcoholic liquors which are not for human consumption to those which are for human consumption.
A contention therefore was suggested that these levies could be justified as regulatory fees although it was frankly conceded that although the revenue earned out of it is substantial and may not be justifiable as fees but have been imposed and it was therefore that the main theme on behalf of the respondents has been based on the doctrine of the privilege of the State to trade in these commodities as that trade is considered to be obnoxious and injurious to public health.
In our opinion, therefore as far as the present case is concerned the State in exercise of powers under Entry 8 of List II and by appropriate law regulate and that regulation could be to prevent the conversion of alcoholic liquors for industrial use to one for human 691 consumption and for purpose of regulation, the regulatory fees only could be justified.
In fact, the regulation should be the main purpose, the fee or earning out of it has to be incidental and that is why the learned counsel appearing for the State attempted to use this terminiology by saying that the purpose is regulation, the earnings are incidental but frankly conceded that in fact the earnings are substantial.
In fact in some of the excise laws in the States they have even used terminiology relying on the doctrine of privilege and parting with privilege but in my opinion it is not necessary for us to go into those questions in greater detail as we are not here concerned with the trade in alco holic liquors meant for human consumption and therefore in view of clear demarcation of authority under various items in the three Lists, Entry 8 List II could not be invoked to justify the levies which have been imposed by the State in respect of alcoholic liquors which are not meant of human consumption.
N.P.V. Petitions & Appeals allowed.
| IN-Abs | Writ Petitions/Civil appeals challenging the notifica tion dated 31st May, 1979 which substituted a new rule 17(2) of U.P. Excise Rules and provided for a vend fee, the amend ment to section 49 of the Bombay Prohibition Act, 1949 treating exclusive privilege for State in liquor trade and imposing a transport fee, the Bombay Prohibition Act, 1949 as amended from time to time along with ordinance No. 15 of 1981 amending the Bombay Prohibition Act, 1949 and Section 49 added by reason of which the State was granted exclusive privilege of importing, exporting, transporting, manufactur ing, bottling, selling, buying, processing or using any intoxicant; and seeking a declaration that alcohol plant of the petitioner company was not covered by the A.P. Excise Act, 1968. 'A.P. Distillery Rules, 1970, and A.P. Rectified Spirit Rules.
1971 and that alcohol plant of the company was not a 'distillery ' within the meaning of the said expression under the A.P. Distillery Rules and, therefore, the Distill ery Rules had no application thereto and seeking an order to restrain from interfering with and/or regulating and con trolling production, distribution, movement and supply of alcohol from the plant of the company and the Tamil Nadu Prohibition Act, were filed in this Court.
Review Petitions against the judgment and order of this Court dated 19th December, 1979 in State of U.P. etc.
vs Synthetics and Chemicals Ltd. and Ors.
; , re agitating challenge 625 to sections 24A and 24B of the U.P. Excise Act, 1910 as amended in 1972 and 1976, declaring exclusive privilege of the Government for manufacture and sale of foreign liquor as defined, which included denatured spirit and industrial alcohol, were also filed.
The petitioners/appellants contended that the levies made by the respondent States on alcohol, which was utilised as raw material by the industries for manufacturing the products were invalid.
Some of three industries 'themselves manufactured alcohol as they had their own distillaries ' and from where it passed through pipelines to their industrial units, where this was used as a raw material, whereas some purchased alcohol or denatured spirit on being allotted by the Government.
It was alleged that, in addition to excise duty levied by the Central Government, excise duty and various levies in various names like vend lee, transport fee and others numbering about eight levies were imposed by the State Government.
It was also contended that the State Legislature had no authority, in view of Entry 84 of List I read with Entry 51 of List I1 to impose such levies; this being alcohol which did not within the ambit of alcoholic liquors for human consumption.
It is only the centre which had the authority to tax under Entry 84, and that Entry 8 In List II only authorised the State Legislature to enact laws to regulate but did not empower it to impose any levy and the various levies which hod been imposed by the State Legislature on industrial alcohol and even methylated spirit could not be brought within the ambit of regulatory duties for purposes of regulation only, and, therefore, could not be justified under Entry 8 of List H, that doctrine of privilege and consideration for sale of privilege could be available to the State only in respect of alcohol or alco holic liquors which were for human consumption.
that by merely widening the definition of intoxicating liquors in respective excise laws enacted by the States, the ambit of authority of taxation could not be enlarged by the State Legislature when in List II Entry 51 the words used were alcoholic liquors for human consumption.
It was further contended that though the direction and commitment to im provement of the standards of living contained in Article 47 of the Constitution must be kept in view, this improvement could be achieved primarily by industrialisation involving increased production and employment and giving priority to the core sectors, that the Industries (Development & Regula tion) Act, 1951 was enacted with a view to developing and controlling various important industries and that the peti tioners/appellants were predominantly and primarily con cerned with using ethyl alcohol (rectified spirit) as an industrial raw material and this industrial alcohol is required as an input for further manufacture of downstream products.
626 It was submitted on behalf of Union of India that the legislative competence of the State enactments in the var ious States would have to be determined by reference to Entries 7, 52, 59, 84, 96 and 97 of List I and Entries 8, 24, 26, 27, 51, 52, 54, 56, 62 of List II and Entries 19 and 33 of List III, that then was a dichotomy between Entry 84 of List I and Entry 52 of List II, but this would not con trol the interpretation of other entries and that there was no such dichotomy in Entry 8 of List II, that the power to levy taxes had to be read from entry relating to the taxes and not from general entry, that none of the taxing entries in List II was controlled by Entry 52 of List I, that State 's privilege to completely prohibit or farm out liquor containing alcohol for consumption did not comprehend a similar right of the State with regard to other intoxicating liquids containing alcohol and to so prohibit or collect fee for farming out, would be unconstitutional under Article 19(1)(g) of the Constitution, that under Entry 51 of List II, State Legislature had no power to levy excise duty on industrial alcohol, as it was not fit for human consumption, and though the State could collect an amount called vend fee, shop rent, etc.
for conferring on a citizen the right to manufacture and sell alcoholic liquors if it is for human consumption, this power did not extend to industrial alcohol or alcohol contained in the medicinal or toilet prepara tions; On behalf of the respondent States; it was contended that: (a) Entry 52 of List I was an exceptional entry, which not only prescribed the field of legislation but also ena bled and empowered the Parliament to make laws to the exclu sion of the State and that, being exclusionary in nature unlike entries merely delineating fields of legislation, this entry had to be strictly and, therefore, narrowly construed; (b) whenever the Constitution intended the Parliament to assume legislative competence in respect of the entire field, a declaration of an unqualified nature was provided for unlike qualified provi sion like Entry 52 of List 1, (c) the words 'control ' and 'regulation ' were, at times, held to he interchangeable or used synonymously, but their use in the various entries either singly or jointly, indi cated that they were sought to convey a different sense and the word 'control ' had in the context, a narrower meaning, excluding details of regulatory nature by the State; (d) comparing Entries 7, 23, 24, 27, 62, 64 and 67 of List I with Entry 52, would demonstrate that under entry 52, it was not the entire 627 field which was sought to be covered but only the control of industries; and that the absence of inclusion of qualifying words like 'the control of which ' could not be brushed aside; (e) in view of the declaration made in Section 2 of the I.D.R. Act, 1951 and the provisions made therein, the entire field was not occupied and the vend fee or other impost by the State legislatures were not infringing in the field treaded by the Central Legislature; the Act did not preclude or eclipse the legislative powers of the State; the Act also did not apply on its own terms to the levy; these operated on different tracks; (f) the Parliament had no power to legislate on indus trial alcohol, since industrial alcohol was also alcoholic liquor for human consumption and Entry 84 in List I express ly excluded this category and, therefore, the residuary Entry 97 of List I would not operate as against its own legislative intent; (g) the State had legislative competence to impose the levy since it was, both on its language and in pith and substance, legislation failing under Entry 8 List II, intox icating liquor, and Entry 51 List II, alcoholic liquor for human consumption, and what was required was intoxicating liquor and/or alcoholic liquor for human consumption; (h) that the State had exclusive right to deal in liq uor, and this power was reserved by and/or derived under, Article 19(6) and 19(6)(ii) of the Constitution, for parting which a charge was levied, and in a series of decisions it had been ruled that the charge was neither a fee nor a tax and was termed as privilege; (i) there was no dichotomy between Ethyl Alcohol, to be used for beverages and for industrial purposes, and in any case the levy was on manufacture of the Ethyl Alcohol, and the dichotomy attempted to be drawn in Entry 84 of List I on the basis of the development of the concept of industrial alcohol and the inapplicability of the concept of potable liquor to the industry of alcohol was not valid.
(j) the levy was consistent with wider interpretation of alcoholic liquor based on pre existing legislative history; (k) when two interpretations were possible, the choice must fall on that interpretation which validated existing State legislations designed to raise revenues and rejection of the other interpretation 628 which was destructive of the scheme of distribution of powers; (1) the words 'alcoholic liquor ' in Lists I & II of the 7th Schedule to the Constitution must be interpretated so as to mean and take within its sweep alcohol as first obtained in the process of or as a product of fermentation industry at which stage, it was capable of being rendered potable, and the fact that it may be rendered unfit for human con sumption, did not render the substance any less liable for taxation; (m) imposition of a fee would be the most effective method of regulating intoxicating liquor other than alcohol and could be justified as the reasonable measure in regard to intoxicating liquor as it is the duty of the State, being a welfare State, to denature by incurring extra cost and effort; quid pro quo was not necessary and, even if it was necessary, the requirements were met; and the price fixation was 'a valid method in regulation of consumption; (n) under its police powers, the State had to regulate health, morality, welfare of society and incidental pauper ism and crime; (o) in enacting a law with respect to intoxication liquor as part of the legislative power, measures of social control and regulation of private rights were permissible and as such may even amount to prohibition; (p) it has been accepted by Courts all along that the 'police power ' of the State enabled regulations to be made regarding manufacture, transport, possession and sale of intoxicating liquor; and such police power could be exer cised as to impose reasonable restrictions as to effectuate the power; (q) trade in alcoholic drinks or intoxicating drinks, being obnoxious and injurious to health, a citizen had no fundamental right under Article 19(1)(g) of the Constitution and it Is the privilege of the State alone and it can part with this privilege on receipt of a consideration; (r) the levy was stipulated jointly or severally, both under ' Entries 8 of List II, Entry 51 of List II, Entry 33 of List III and what was described as police powers regula tory and other incidental charges, and the levy was justi fied, being a regulatory power under Article 19(6), and 19(6)(ii); the State had.
a monopoly in alcohol trade and Article 31C 629 granted immunity to the challenge under Articles 13, 14 and 19 of the Constitution, and under Article 298, trading power of the State must be recognised, coupled with century old monopoly of the State in alcohol; and (t) the vend fee was a pre constitutional levy, and so saved under Article 277 of the Constitution: it was not a law either under Article 246 or Article 254 and was, there fore, outside the purview of the Central Act.
On the questions: (i) whether the vend fee in respect of the industrial alcohol under different legislations and rules in different States was valid; (ii) whether the power to levy excise duty m case of industrial alcohol was with the State legislature or the Central legislature; (iii) what was the scope and ambit of Entry 8 List Ii of the Seventh schedule of the Constitution; and (iv) whether, the State Government had exclusive right or privilege of manufactur ing, selling, distributing, etc.
of alcohols including industrial alcohol, and what was the extent, scope and ambit of such right of privilege, Allowing the Writ Petitions, Civil Appeals and Review Petitions, this Court, HELD: Majority: (E.S. Venkataramiah, C.J.I, Sabyasachi Mukharji, Ranganath Misra, B.C. Ray, K.N. Singh and section Natarajan, JJ.) Per Sabyasachi Mukharji, J. 1.1 The relevant provisions of the U.P Excise Act, 1910, A.P. Excise Act, 1968, Tamil Nadu Act, and Bombay Prohibi tion Act, 1949 are unconstitutional insofar as these purport to levy a tax or charge imposts upon industrial alcohol, namely, alcohol used and usable for industrial purposes.
[680G H] 1.2 Having regard to the principles of interpretation and the Constitutional provisions, in the light of the language used and, having considered the impost and the composition of industrial alcohol, and the legislative practice of this country.
the imposts in question cannot be justified as State imposts.
[680G H] 1.3 The different provisions, in question are not merely regulatory, but are much more than that.
These seek to levy imposition in their pith and substance, not as incidental or as merely disincentives, 630 but as attempts to raise revenue for States ' purposes.
There is no taxing provision permitting these in the lists in the field of industrial alcohol for the State to legislate.
Furthermore, in view of the occupation of the field by the Industrial Development and Regulation Act, it was not possi ble to levy this impost.
Besides, in view of the language used in the specific provision the levy is not on the manu facture of alcohol as such.
Therefore, these levies cannot in essence be sustained as duty of excise, [681A B] 2.1 The meaning of the expressions used in the Constitu tion must be found from the language used.
The words of the Constitution should be interpreted on the same principle of interpretation as one applies to an ordinary law but these very principles of interpretation compel one to take into account the nature and scope of the Act which requires interpretation.
[672H, 673A] 2.2 A Constitution is the mechanism under which laws are to be made and not merely an Act which declares what the law is to be.
[673B] 2.3 It is also well settled that a Constitution must not be construed in any narrow or pedantic sense and that con struction which is most beneficial to the widest possible amplitude of its power, must be adopted.
An exclusionary clause in any of the entries should be strictly and, there fore, narrowly construed.
No entry should, however, be so read as not to rob it of entire content.
A broad and liberal spirit should, therefore, inspire those whose duty it is to interpret the Constitution, and the Courts are not free to stretch or to pervert the language of an enactment in the interest of any legal or constitutional theory.
Constitu tional adjudication is not strengthened by such an attempt but it must seek to declare the law.
It must not try to give meaning on the theory of what the law should be, but must so look upon a Constitution that it is a living and organic thing and must adapt itself to the changing situations and pattern in which it has to be interpreted.
Where division of powers and jurisdiction in a federal Constitution is the scheme, it is desirable to read the Constitution in harmoni ous way.
Further, in deciding whether any particular enact ment is within the purview of one Legislature or the other, it is the pith and substance of the legislation in question that has to be looked into.
[673B E] 3.1 It is well settled that the various entries in the three lists of the Indian Constitution are not powers but fields of legislation.
The power to legislate is given by Article 246 and other Articles of the Constitution.
The three lists of the 7th Schedule to the Constitution are legislative heads or fields of legislation.
These demarcate the area over 631 which the appropriate legislatures can operate.
[673F] 3.2 It is also well settled that widest amplitude should be given to the language of the three entries but some of these entries in different lists or in the same list may over ride and sometimes may appear to be in direct conflict, with each other, then and then comes the duty of the Court to find the true intent and purpose and to examine the particular legislature in question.
Each general word should be held to extend to all anciliary or subsidiary matters which can fairly and reasonably be comprehended in it.
[673F G] 3.3 In interpreting an entry it would not be reasonable to import any limitation by comparing or contrasting that entry with any other in the same list.
It has to be inter preted that the Constitution must be interpreted as the organic document in the light of the experience gathered.
[673H] 3.4 In the Constitutional scheme of division of power under the legislative lists, there are separate entries pertaining to taxation and other laws.
[674A] The relevant entries in the Seventh Schedule to the Constitution demarcate legislative fields and are closely linked and supplement one another.
[674E] The Constitution of India like most other Constitutions is an organic document.
It should be interpreted in the light of the experience.
It has to be flexible and dynamic so that it adapts itself to the changing conditions and accommodates itself in a pragmatic way to the goals of national development and the industrialisation of the coun try.
This Court should, therefore, endeavour to interpret the entries and the powers in the Constitution in such a way that it helps to the attainment of undisputed national goals, as permitted by the Constitution.
[674C D] M.P.V. Sundararamier & Co. vs State of A.P., ; at pages 1480 82, relied on.
The India Cement Ltd. etc.
vs The State of Tamil Nadu etc., and Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 at 37 38, referred to.
4.1 The expression of a Constitution must be understood in its common and normal sense.
Industrial alcohol as it ISI, is incapable of 632 being consumed by a normal human being.
The expression 'consumption ' must also be understood in the sense of direct physical intake by human beings in this context.
No doubt, utilisation in some form or the other is consumption for the benefit of the human beings, if industrial alcohol is uti lised for production of rubber, tyres used.
But the utilisa tion of those tyres in the vehicle of man cannot in the context in which the expression has been used in the Consti tution, be understood to mean that the alcohol has been used for human consumption.
[665C D] 4.2 The expression 'alcoholic liquor for human consump tion ' was meant and still means that liquor which, as it is, is consumable in the sense capable of being taken by human beings as such as beverage of drinks.
Hence, the expression under Entry 84 List I must be understood in the light.
[665E] 4.3 Constitutional provisions specially dealing with delimitation of powers in a federal polity must be under stood in a broad commonsense point of view as understood by common people for whom the Constitution is made.
In termi nology, as understood by the framers of the Constitution and as also viewed at the relevant time of its intepretation it is not possible to proceed otherwise.
Alcoholic or intoxi cating liquors must be understood as these are, what these are capable of or able to become.
[665G H] 5.1 By common standards ethyl alcohol (which has 95%) is an industrial alcohol and is not fit for human consumption.
The petitioners and the appellants were manufacturing ethyl alcohol (95%) (also known as rectified spirit) which is an industrial alcohol.
ISI specification has divided ethyl alcohol (as known in the trade) into several kinds of alco hol.
Beverage and industrial alcohols are clearly and dif ferently treated.
Rectified spirit for industrial purposes is defined as "spirit purified by distillation having a strength not less than 95% of volume by ethyl alcohol".
Dictionaries and technical books would show that rectified spirit (95%) is an industrial alcohol and is not potable as such.
Therefore, industrial alcohol which is ethyl alcohol (95%) by itself is not only non potable but is highly toxic.
The range of spirits of potable alcohol is from country spirit to whisky and the Ethyl Alcohol content varies be tween 19 to about 43 per cent.
These standards are according to the ISI specifications.
Therefore, ethyl alcohol (95%) is not alcoholic liquors for human consumption but can be used as raw material input after processing and substantial dilution in the production of whisky, Gin, Country Liquor, etc.
[677D G] 633 Delhi Cloth and General Mills Co. Ltd. vs The Excise Commissioner, U.P. Allahabad and Anr., Special Appeal No. 177 of 1970, decided on 29.3.1973, referred to.
6.1 Entry 8 of List I which contains the words "intoxi cating liquor ' ' cannot support a tax.
The meaning of this expression has been rightly interpreted by the High Court in Balsara ' s case.
Hence, the observations of this Court in Balsara 's case require consideration.
[677H, 675A B] 6.2 In the light of the new experience and development, "intoxicating liquor" must mean liquor which is consumable by human being as it is.
When the word "liquor" was used by this Court, it did not have the awareness of full use of alcohol as industrial alcohol.
It is true that alcohol was used for industrial purposes then also, but the full poten tiality of that user was not then comprehended or under stood.
With the passage of time, meanings do not change but new experience give new colour to the meaning.
[675B C] F.N. Balsara vs State of Bombay, AIR 1951 Born 210 & 214, approved.
State of Bombay & Anr.
vs F.N. Balsara, ; Har Shankar & Ors. etc.
vs The Dy.
Excise & Taxation Commissioner & Ors., ; ; Adhyaksha Mathur Babu 's Sakti Oushadhalaya Dacca (P) Ltd. vs Union of India, ; M/s Guruswamy & Co. etc.
vs State of Mysore & Ors.
, ; State of Mysore vs S.D. Cawasji & Co. & Ors., ; ; R.C. Jallv.
Union of India, [1962] Suppl 3 S.C.R. 436; Om Prakash vs Giriraj 'Kishore; , ; Inspector of Taxes vs Australian Mutual Provident Society, [1959] 3 All England Law Report 245 and Commonwealth of Massachusetts Et AI vs USA, 92 Lawyers, Edition p. 968, referred to.
6.3 Article 47 of the Constitution imposes upon the State the duty to endeavour to bring about prohibition of the consumption except for medicinal purpose of intoxicating drinks and products which are injurious to health.
If the meaning of the expression "intoxicating liquor" is taken in the wide sense adopted in Balsara 's case, it would lead to an anamolous result and would oblige the State to prohibit even such industries as are licensed under the IDR Act but which manufacture industrial alcohol.
This was never intend ed by the Constitution or judgments of this Court.
There fore, the decision in the Synthetics & Chemicals Ltd. 's case was not correct on this aspect.
[679C D] State of U.P., etc.
vs Synthetics & Chemicals Ltd. & Ors.
etc., 634 ; and State of Bombay & Anr.
vs F.N. Balsara, , overruled.
K.K. Narula vs State of J & K, ; , referred to.
The Indian Constitution does not recognise police power as such.
But, the exercise of sovereign power, which gives the State sufficient authority to enact any law, subject to the limitations of the Constitution to discharge its functions must be recognised.
The Indian Constitution as a sovereign State has power to legislate on all branches except to the limitation as to the division of powers be tween the Centre and the States, and also subject to the fundamental rights guaranteed under the Constitution.
The Indian State, between the Centre and the States, has sover eign power.
The sovereign power is plenary and inherent in every sovereign State to do all things which promote the peace, morals, education and good order of the people.
Sovereignty is difficult to define.
This power of sovereign ty is, however, subject to Constitutional limitations.
[666F H] 8.1 In interpreting the provisions of the Constitution, one should go by the plain words used by the Constitution makers.
Importing of expression like 'police power ', which is a term of variable and indefinite connotation, can only make the task of interpretation more difficult.
[671B] State of West Bengal vs Subodh Gopal & Ors., at 601 604 and Kameshwar Prasad & Ors.
vs The State of Bihar & Anr., ; , referred to.
8.2 The power of the State to regulate, though not as emanation of police power, but as an expression of the sovereign power of the State is recognised, but that power has its limitations.
[671G] 8.3 Whether the States have the police power or not, they have the power to regulate the use of alcohol, and that power must include power to make provisions to prevent and/or check industrial alcohol, being used as intoxicating or drinkable alcohol.
However, the question is whether, in the garb of regulations, a legislation which is in pith and substance, fee or levy which has no connection with the cost or expenses administering the regulation, could be imposed purely as regulatory measure.
[671D E] In the instant case, judged by the pith and substance of the legisla 635 tion in question, these levies cannot be treated as part of regulatory measures.[671E] 9.1 The activity in potable liquor, which was regarded as a safe and exclusive right of the State earlier, cannot be justified under the police power of the State, i.e., the power to preserve public health, morals, etc.
This reasoning can never apply to industrial alcohol manufactured by indus tries which are to be developed in the public interest, and which are being encouraged by the State.
In such a situa tion, it is essential to strike a balance, and while doing so, it is difficult to find any justification for any exclu sive right of a State to deal with industrial alcohol.
Restriction valid under one circumstance may become invalid in changing circumstances.
[680C D] Nashville, Chattangooga & St. Louis Railway vs Herbert section Walters, 79 Lawyers ' Edition 949; Leo Nebbia vs People of the State of New York, 78 Lawyers ' Edn.
940 at p. 941 and Motor General Traders & Anr.
vs State of Andhra Pradesh 9.2 Arbitrary and excessive imposts under the so called privilege of the States are a great disincentive for devel opment of industries in the public interest and for indus trial development in general and can render units unviable and sick.
It is essential that there should be uniformity in the industry so that these are free from the vagaries and arbitrary and differential treatment meted out from State to State and even in the same State from time to time.
[644C D] 9.3 Right to tax or levy must be in accordance with the provisions of the Constitution.
It is clear that all duties of excise, save and except the items specifically excepted in entry 84 of List 1, are generally within the taxing power of the Central Legislature.
The State Legislature has power, though limited in imposing duties of excise.
That power is circumscribed under Entry 51 of List II of the 7th Schedule to the Constitution.
[666H, 667A, 674G] 10.
In view of the subsequent amendments and additions to the levies, the levies in question are not pre Constitu tional levies.
[662E] 11.1 After 1956 amendment to the Industries (Develop ment and Regulation) Act, 1951 bringing alcohol industries (under fermentation industries)as item 26 of the First Schedule to the Act, the control of this industry has vested exclusively in the Union.
Thereafter, licences to 636 manufacture both potable and non potable alcohol is vested in the Central Government.
Distilleries are manufacturing alcohol under the Central Licences under IDR Act.
No privi lege for manufacture even if one existed, has :been trans ferred to the distilleries by the State.
The State cannot itself manufacture industrial alcohol without.the permission of the Central Government.
The States cannot claim to pass a right which these do not possess.
Nor can these States claim exclusive right to produce and manufacture industrial alco hol which are manufactured under the grant of licence from the Central Government.
Industrial alcohol cannot upon coming into existence under such grant be amenable to States ' claim of exclusive possession of privilege.
The State can neither rely on Entry 8 of List II nor Entry 33 of list III as a basis for such a claim.
It cannot claim that under Entry 33 of List III, it can regulate industrial alcohol as a product of the scheduled ,industry, because the Union, under section 18 G of the IDR Act, has evinced clear intention to occupy tile whole field.
Even otherwise, sec tions like Section 24A and 24B of the U.P. Act do not con stitute any regulation in respect of the industrial alcohol as product of the scheduled industry.
On the contrary, these purport to deal with the so called transfer of privilege regarding manufacturing and sale.
This power, admittedly, has been exercised by the State purporting to act under Entry 8 of list II and not under Entry 33 of list III.
[681C F] 11.2 The position with regard to control of alcohol industry has, therefore, undergone material and significant change and the State is left with only powers to pass any legislation in the nature of prohibition of potable liquor referable to Entry 6 of list II and regulating powers, lay down regulations to ensure that non potable alcohol is not diverted and misused as a substitute for potable alcohol, and charge excise duty on potable alcohol and sales tax under Entry 52 of list II; however, sales tax cannot be charged on industrial alcohol in the present case, because under the Ethyl Alcohol (Price Control) Orders, sales tax cannot be charged by the State on industrial alcohol; and in case State is rendering any service, as distinct from its claim of so called grant of privilege, it may charge fees based on quidpro quo.
[681G H, 682A C] Indian Mica and Micanite Industries vs State of Bihar, , relied on.
12.1 On an analysis of the various Abkari Acts and Excise Acts, it is clear that various provinces/States reserve to themselves in their respective States the right to transfer exclusive or other privileges only in respect of manufacture and sale of alcohol and not in respect of 637 possession and use.
Not all but some of States have provided such reservation in their favour.
The price charged as a consideration for the grant of exclusive and other privi leges was generally regarded as an excise duty.
In other words, excise duty and price for privileges were regarded as one and the same thing.
So called privilege was reserved by the State mostly in respect of country liquor and not for eign liquor which included denatured spirit.
[682D E] 12.2 On an analysis of various decisions and practice, it is clear that is respect of industrial alcohol the States are not authorised to impose the impost they have purported to do.
Hence, such impositions and impost must go as being invalid.
However, this would not affect any impost so far as potable alcohol as commonly understood is concerned.
It will also not affect any impositions of levy on industrial alco hol fee, where there are circumstances to establish that there was quid pro quo for the fee sought to be imposed.
This will also not affect any regulating measure as such.
[682F G] The provisions are, therefore, declared to be illegal and invalid prospectively.
The Respondent States are re strained from enforcing the said levy any further but they will not be liable for any refund and the tax already col lected and paid will not be refunded.
[683B] In respect of Tamil Nadu, no further realisations will be made in future by the State Government from the petition ers.
Regarding past realisations, the application for that part of the direction should be placed before a Division Bench, for disposal upon notice both to the State and the Central Governments.
[683F] Calcutta Gas Co. (Proprietory) Ltd. vs The State of West Bengal .
and Ors., [1962] Suppl.
3 SCR 1; Nashirwar etc.
vs The State of M.P.; , ; SheopatRai & Ors.
vs State of U. P., [1972] All.
L.J. 1000; Indian Mica & Mican ite Industries Ltd. vs State of Bihar & Ors., [1971] Suppl.
SCR 319; Town Municipal Committee, Amraoti vs Ramachandra Vasudeo Chimote & Anr., ; ; P.N. Kaushal etc.
vs Union of India; , ; M/s Guruswamy & Co. etc.
vs State of Mysore & Ors., ; Coo verjee B. Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer & Ors., [19541 SCR 873; Crowley vs Christensen, [1890] 34 Lawyers ' Edn. 620 and Southern Phar maceuticals & Chemicals Trichur & Ors.
vs State of Kerala & Ors. etc.
; , at 537, referred to.
638 Per Oza, J. (Concurring) 13.1 The State Legislature had no authority to levy duty or tax on alcohol which is not for human consumption as that could only be levied by the Centre.
[686G] 13.2 A comparison of the language of Entries 84 of List I and 51 of List II clearly demonstrates that the powers of taxation on alcoholic liquors have been based on the way in which they are used.
Admittedly, alcoholic liquor is a very wide term and may include variety of types of alcoholic liquors, but our Constitution makers have distributed them into heads, namely, (a) for human consumption, and (b) other than for human consumption.
Alcoholic liquors which are for human consumption were put in Entry 51 List II authorising the State Legislature to levy tax on them whereas alcoholic liquors other than for human consumption have been left to the Central Legislature under Entry 84 for levy of duty of excise.
This scheme of these two entries in List I and II is clear enough to indicate the line of demarcation for pur poses of taxation of alcoholic liquors.
What has been ex cluded in Entry 84 has specifically been put within the authority of the State for purposes of taxation.
[685E H] 13.3 From the scheme of entries in the three lists, it is clear that taxing entries have been specifically enacted conferring powers of taxation, whereas other entries pertain to the authority of the Legislature to enact laws for pur poses of regulation.
If Entry 8 in List II is compared with Entry 51 it is clear that while Entry 51 authorises the State Legislature to levy tax and duties on alcoholic liq uors failing under this entry, Entry 8 confers authority on the State Legislature to enact laws for regulation.
Similar ly are Entries in List I.
But since a declaration has been made by the Parliament under Entry 52, List I, declaring the industry based on fermentation and alcohol to be an industry under the Industrial (Development and Regulation) Act, 1951, and placing it directly under the control of the Centre, even in respect of regulation, the authority of the State Legislature in Entry 8, List II could only be subject to the Act or rules made by the Centre.
Therefore, in view of clear demarcation of authority under various items in the three Lists, Entry 8 List II could not be invoked to justify the levies which have been imposed by the State in respect of alcoholic liquors which are not meant for human consumption.
[686C D, F G] The State, in exercise of powers under Entry 8 of List II and by appropriate law may, however, regulate and that regulation could be to 639 prevent the conversion of alcoholic liquors for industrial use to one for human consumption and for the purpose of regulation, the regulatory fees only could be justified.
In fact, the regulation should be the main purpose, the fee or earning out of it has to be incidental.
[690H, 691A] 14.1 There is nothing like privilege vested in any one of the functionaries of the State.
In the background of this basic feature of our Constitution, the doctrine of privilege is difficult to reconcile with when this privilege of trad ing in commodities injurious to health and dangerous to life is examined especially in the context of Article 21 and Article 47 of our Constitution.
[688C D] 14.2 Article 21 castes a duty on the State to protect the life of every citizen except as is provided under the Article.
If this duty of the State is compared with the scheme of privilege, it means that the State has a privilege to endanger human life (the life of a citizen).
Such a privilege runs contrary to Article 21 [688F] 14.3 Article 47 appears in the Chapter of Directive Principles of State Policy.
Inclusion of this Article in this Chapter clearly goes to show that it is the duty of the State to do what has been provided in this Article.
It has provided that it is the duty of the State to improve public health and this duty will be discharged by endeavouring to bring about prohibition.
It, therefore, sounds contradictory for a State, which is duty bound to protect human life, to claim that it has the privilege of manufacture and sale of alcoholic beverages which are expected to be dangerous to human life and injurious to human health and transferring this privilege of selling this privilege on consideration to earn huge revenue without thinking that this trade in liquor ultimately results in degradation of human life even endan gering human life and is nothing but moving contrary to the duty cast under Articles 21 and 47 and ideal of prohibition enshrined in Article 47.
[688H, 689A C] Therefore, in view of Articles 21 and 47, the State cannot claim the privilege of having the right to trade in goods obnoxious and injurious to health.
[689D]
|
vil Appeal Nos.
1755 56 of 1990.
From the Judgment and Order dated 9.2.1989 of the Cal cutta High Court in Matter No. 3737 of 1987.
Dr. Shankar Ghosh, C.S. Vaidyanathan, S.R. Setia, K.V. Vis 285 wanathan and A.K. Sil for the Appellants.
S.K. Kapoor, P.K. Pillai D.K. Sinha, Mrs. R. Paul and H.K. Puri for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
Leave granted.
These appeals arise as a sequel to certain directions of this Court in the famous Sanchaita case.
The Sanchaita Investment Company was a firm which was controlled and run, primarily, by three persons Samonu Prasad Mukherjee, Bihari al Murarka, and Swapan Kumar Guha.
It had been able, by dint of a tremendous advertisement campaign, to collect deposits amounting to several crores of rupees from thousands of depositors spread all over India by holding out attractive terms of interest.
The firm initially prospered and its deposits steeply mounted to astronomical figures.
The firm, however, began to acquire, or deal in, movable and immovable properties in various cities of India in the names, not only of the firm, but of relatives and benamidars of various persons who were in management its affairs.
A sizeable portion of the firm 's funds being thus tied up or siphoned away from its coffers for the private benefit of the indi viduals running it, the firm eventually began making de faults in its obligations to the depositors.
The depositors, thereupon, approached the High Court and eventually the matters came up to this Court in W.P. Nos. 638 and 755 800 of 1983.
With a view to safeguard the interests of the depositors, arrange for a return to them of as much of their deposits as possible and ensure that the properties of the firm were duly identified and the full and due benefit of the funds diverted from its coffers was restored to the firm, this Court, by its order dated 4.5.83, appointed a retired District Judge as a Commissioner to take charge of all the assets, documents and papers of the firm and of its agents, sub agents, transferees and benamidars.
Directions were given to the Commissioner to look into the claims of depositers and to devise a scheme whereby persons who had deposited sums not exceeding Rs.25,000 could be repaid expeditiously.
By a subsequent order dated 27.9.83, certain directions were given to enable the Commissioner to 286 gather in all the assets of the firm.
It is necessary to quote a portion of this order.
It read: "The Commissioner may attach such assets and properties which, in his prima facie opinion, are of the ownership of the firm Sanchaita Investments, or of the ownership of any of its partners.
Such assets and properties may be put to sale by the Commissioner if no objection is received to the attachment thereof within one month of the date of attach ment.
All objections received to the attachment of such assets or properties will be forwarded by the Commissioner to the Prothonotary of the High Court of Calcutta.
We re quest the learned Chief Justice of the Calcutta High Court to nominate a Division Bench of the High Court for the purpose of jurisdiction upon such objections.
The Division Bench will dispose of the objections on merits after hearing all interested parties.
" Reference must also be made to another order of this Court dated 23.9.85 in C.M.P. No. 38589/85.
By this order, this Court directed: "After heating counsel for the parties we consider it neces sary to empower the Commissioner, Sanchaita Investment, to remove all unauthorised persons and trespassers from posses sion of the property proposed to be sold by the Commissioner under the orders of this Court and to hand over vacant possession to the rightful purchasers.
The Commissioner is authorised to take the assistance of the police for the purpose of obtaining possession and handing it over to the rightful purchasers.
" In pursuance of these directions, the Commissioner attached a large number of properties situate all over the country which, he had reason to believe, were properties which belonged to the firm though acquired in the names of others.
When the properties were so attached and sought to be sold, objections were lodged by persons claiming title or possession of the property in their own right and these objections were adjudicated upon by the designated Division Bench of the Calcutta High Court.
287 One of the properties that were thus attached by the Commissioner was house No. 52/1/1B, Surendra Nath Banerjee Road, Calcutta 14.
(There is a slight discrepancy in the door number of this property as appearing in various docu ments but that is not material for our purposes).
This property stood on land of the small extent of about 800 sq.
and comprised of five rooms in the ground floor (three in front and two at the back), a first floor and a second floor but, being business premises in a busy commercial locality, is of considerable value today.
The Commissioner found that this property had been acquired in the name of Mahamaya Devi, an aunt of Sambhu Prasad Mukherjee, for Rs.85,000 on 4.10.1977.
Apparently the Commissioner was of the opinion that the property was really that of the firm acquired in the name of Mahamaya Devi.
He, therefore, at tached this property by a public notice taken out, inter alia, in "The Statesman" dated 27.5.84 to the following effect: "The Public are hereby informed that in exercise of the authority and power vested in me under the order of the Hon 'ble Supreme Court of India passed and made on 4.5.83 and 27.9.83 . . , I had attached or I had taken possession of or I am hereby taking possession of (as the case may be) the following properties (specified in the schedule below) including flats, lands, cars, launch, business, shares in companies and partnership firms and house properties.
The persons in which names these properties stand are hereby warned that they shall not lease out, assign, sell, mort gage, transfer or otherwise encumber or deal with them until further orders from me.
Anybody dealing with such properties would do so at his own risk or responsibility.
" It appears that there were also other similar notices issued by the Commissioner.
In response to one of these notices, Smt.
Mahamaya Devi put forward her claim to the ownership of the property but her claim was rejected by the Division Bench of the Calcutta High Court on 29.3.
1985 in Case No. 23 of 1984.
Sri Kapur, learned counsel for the respondents states that a petition for special leave to appeal to this Court preferred by her was also rejected sometime in 1985.
This is not contradicted by the petition ers.
We may, therefore, proceed, for the purposes of this case, on the footing that, though standing in the name of Mahamaya Devi, the property in question belongs to the firm Sanchaita.
288 Subsequently the property was brought to sale by the Commissioner.
Sealed tenders were invited for the purchase of the properties specified in the schedule, by a notice published in "The Statesman" on 7.3.86, on an "as is where is basis".
The notice specifically mentions that the posses sion of only three of the six items mentioned in the notice was with the Commissioner and the property presently in question was not one of them.
Asit Kumar Mandal and two others (the respondents before us, hereinafter compendiously referred to as 'the Mandais ') offered, on 22.5.86, to purchase the property for Rs. 1,26,000 in lump sum subject to negotiations in the matter.
They undertook to deposit 25% of the price on the acceptance of the offer and the balance "at the time of giving us the physical possession of the said premises".
After a discussion with the Commissioner, they deposited Rs.31,500 on 11.6.1986 and stated in their letter of the same date to the Commissioner: "We shall deposit the balance amount as and when called upon to do so.
Thereafter, you will hand over to us the posses sion of the said premises free from illegal trespassers".
On 12.6.86, the Commissioner accepted the offer of the Mandais subject to the following conditions, namely: "(a) That the proposed sale in your favour under the condi tions mentioned herein below is approved by our advisory Board.
(b) That I/4th (i.e. Rs. 31,500) of the total consideration money is at once paid by you to the Commissioner, Sanchaita Investments, through bank draft or pay order.
(c) That the balance of the consideration money is paid within 30th June, 1986.
(d) That in default of payment of the consideration money as stated above, the earnest money (Rs.31,500) to be paid by you through bank draft or Pay Order as mentioned above shall stand forfeited.
289 (e) That the aforesaid sale is made on "as is where is basis".
(f) That on payment of the full consideration money as above within the date fixed you may take steps for obtaining possession of the said entire premises and the Commissioner will help you for the said purpose.
" The Mandais, thereafter, paid Rs.31,500 on 27.6.86 and Rs. 63,000 on 18.7.86 and wrote to the Commissioner as follows: "Please sent us the draft sale certificate in respect of the above property for our approval on behalf of our clients and arrange immediately to give our clients vacant possession of the property as agreed upon.
Please inform us if any objection was received by you in respect of the property pursuant to your advertisement in the Statesman dated March 7, 1986.
" The Commissioner referred the purchasers to his lawyer in regard to the preparation of the sale certificate and a certificate of sale deed was eventually issued in favour of the Mandais on 10.4.1987.
The certificate referred to the orders of the Supreme Court, the satisfaction of the Commis sioner, the fact of attachment and the absence of any objec tions from Mahamaya Devi and conveyed the property to the Mandals.
Having thus purchased the property, the Mandais request ed the Commissioner to give them vacant possession of the property but there was no response.
Thereupon, on 17.9.
1987, the Mandais moved an application (being Matter No. 3737/87) before the High Court praying that they may be given vacant possession of the property.
It appears that, in the meantime, they had come to know that the premises were occupied by the following parties: Name of person Portion occupied 1.
Paul Brothers '(Textile Division) One room on Ground Floor 290 2.
Paul Brothers (Watch Repairing One room on Ground Floor Division) 3.
Paul Brothers (Electronics do Division) 4.
Dulal Dutta and Panchanan Dutta do 5.
G. Dey do 6.
Phani Bhusan Ghosh First Floor 7.
Hari Narayan Gupta Second Floor These persons were made respondents to the application and, alleging that they were all trespassers in occupation of the property, a prayer was made that they should be directed to hand over vacant possession of the property to the appli cants.
This prayer has been granted by the Division Bench of the High Court and, hence, these two petitions for leave to appeal, one by the three Paul Bros. and the other by three of the other four "objectors".
We have heard these petitions at great length.
We grant leave in both S.L.Ps. and proceed to dispose of the appeals.
The petitioners claim that they are bona fide tenants in the property.
Except for petitioner H.N. Gupta who was inducted as a tenant by Mahamava Devi, the others claim that they have been tenants even under the predecessors in inter est of Mahamaya Devi.
They clam, therefore, that they can be evicted only in accordance with due procedure prescribed by law after full contest and opportunity to lead evidence and cannot be thrown out in summary proceedings like the present one just as if they were persons in unauthorised possession of the property or as if they were mere trespassers.
On the other hand, for the Mandais it is contended that once it is held that Mahamaya Devi was a benamidar for Sanchaita, the Commissioner is entitled to take possession of the property, removing all present occupants including tenants therein and selling the property at the maximum possible price free of all encumbrances so that the proceeds may be made available to the innumerable depositors who had been denuded of their lifetime savings by the undesirable and fraudulent activi ties of the persons in charge of the firm.
A pernicious evil, it is said, warrants 291 a drastic remedy and hence this Court, having regard to the large scale involvements of the firm.
considered it neces sary to arm the Commissioner with wide powers so that he may be able to gather in all the real assets of the firm without delay or obstruction for the benefit of the defrauded inves tors.
The Mandais have, it is said, having regard to the terms of the orders passed by this Court and by the Calcutta High Court, purchased the property in the belief that they would not only get a perfect title but also speedy posses sion of the property.
If bona fide purchasers are to be obstructed like this by all manner of claims, real or imagi nary, it is argued, the properties of the firm can only be sold for a song and the entire object and purpose of the various directions of this Court would be frustrated.
It is, therefore, contended that, even if the appellants are really tenants in the property as claimed, their claims will have to yield to the paramount public interest of the Sanchaita investors.
We are unable to accept this contention of the Mandais.
It is not maintainable either in principle or on the terms of the directions given by this Court.
To take up the latter first, there is nothing in the terms of the orders of this Court or of the notices of attachment or sale or of any other orders of the Calcutta High Court that vests an abso lute title in the auction purchasers of the property free from all encumbrances.
The order of the Court dated 27.9.83 only authorised the Commissioner to attach properties which he believed to belong to Sanchaita and provided for any objections to the attachment being heard by the designated Division Bench of the High Court.
The attachment and sale of the property presently in question were effected in pursu ance of this order.
Any sale, transfer, encumbrance or alienation subsequent to the attachment could, no doubt, be impugned but the attachment did not have the legal effect of invalidating earlier interests of others subsisting in the property.
In fact also, the sale was on an "as is, where is basis" i.e. without prejudice to the claims of other persons in whose favour bona fide encumbrances or interests may have been created earlier qua the property.
There appears to be some force in the contention of the claimants that the price paid by the appellant is not adequate to reflect the market value of the property situated in an important commercial locality in Calcutta at the present day if sold free from all encumbrances but we shall leave this contention out of account as there is no material before us on this aspect.
The order of 23.9.85, no doubt, goes a step further but it only empowers the Commissioner to remove all unauthorised persons and trespassers.
The reference to vacant possession in the order has to be restricted only to 292 cases where the property is in the possession of such unau thorised persons or trespassers and cannot be read so as to empower the Commissioner to evict forcibly, or seek the orders of the Court to evict summarily, persons who are in lawful possession of the property.
We should also like to point out that, in fact also, the Mandais got no better right on the terms of the auction and the correspondence that followed.
Though the Mandais referred in their letters to vacant possession of the property, the sale was only on an "as is, where is" basis and the Commissioner at no time offered or assured the Mandais that they would get such vacant possession.
He only offered to help them in the process to the extent permissible in law.
He has made this position explicit in the letters written by him.
Sri Kapur, for the Mandais, placed considerable reliance on the common order of the Calcutta High Court dated 25.3.86 in Amar Mondal vs Commissioner, (Matter No. 122 of 1986) and Jagdish Chand Aggarwala vs Commissioner, (Matter No. 146 of 1985) to contend that the Mandais are entitled to get vacant possession of the property.
In that case, Amar Mondal who was the auction purchaser of an item of property (which we shall call 'Property A ') at a sale by the Commissioner sought to be put into possession by evicting the respondents 2 to 5 "who are unauthorised occupants" and Jagdish Chand Aggarwala, whose highest bid at an auction for an item of property (which we shall call 'Property B ') by the Commis sioner could not be proceeded with because of an injunction obtained by respondents Nos. 6 & 7, sought the orders of the Court "for completing the sale and giving delivery of pos session by evicting the respondents".
So far as Property A is concerned, the Court found, for reasons which need not be repeated here, that they were "unauthorised occupants" and not"bona fide tenants in occupation" and were, hence liable to be evicted.
Likewise, in respect of Property B, the Court concluded that the claims or ' tenancy put forward by re spondents 6 & 7 "were frivolous".
These were, therefore, not cases where tenants were held liable to be evicted and the order does not help the Mandais to the extent claimed.
Sri Kapur, however, relies strongly on two sets of observations in this order.
the first reference by him is to an observation that any person claiming to have any interest in the property should file his claim within 30 days of the attachment and that any claim made beyond this period would be barred by limitation and hence cannot be considered.
The second reference is to an observation that the Court is 293 entitled to adjudicate ' upon all claims, even those of persons who claim to have any bona fide intermediate inter ests in the properties attached by the Commissioner.
The Court observed: "In our opinion, therefore, once an attachment is effected by the Commissioner on the authority of his powers vested in him by the Supreme Court, not only persons claim ing right, title and interest independent of Sanchaita Investments but also claiming any bona fide intermediate interest created by Sanchaita Investments in favour of the claimant should put forward to claim of objection.
It was not the intention of the Supreme Court that there should be proliferation of litigation, result whereof would be that the insignificant part of the depositors ' money which should be realised by the Commissioner would be wasted in litiga tion.
This position has been made clear by the Supreme Court when the Supreme Court by a recent order upheld the view of the Bombay High Court that a claim of tenancy in respect of a property attached by the Commissioner must be lodged with this Special Bench and not before any ordinary Civil Court.
The attachment made by the Commissioner cannot be equated with an attachment made by a Civil Court either prior to judgment or in execution since there what is attached is the right, title and interest of either the defendant on the judgment debtor.
In the present case, however, on the Scheme framed by the Supreme Court what is being attached is the property itself so that any body having any lawful claim in whatever interest held by him, must put forward his claim before the Commissioner so that it can be adjudicated once for all in a proceeding before this Special Bench and thus avoid wasting litigation.
We do not accept for a moment that this court 's jurisdiction is limited to adjudication of all claims preferred as against the attachment made by the Commissioner.
The scope of our power must be determined with reference to the intention of the Supreme Court referred to herein.
Such power in our opinion covers adjudication of all sorts of claims or objections for the Commissioner 's .at tachment and sales of assets belonging to the beneficial ownership of Sanchaita Investment preferred or brought forward at any stage and also to make all inci 294 dental and consequential orders as we may find necessary to assist the Commissioner in collecting the assets having regard to the resistance faced by him from persons putting forward any claim of his own.
In that view we hold that our power covers a case like the present one where even after the objection has been overruled by this Court, others have come forward to resist the Commissioner from effecting sale by putting forward a claim of tenancy.
Such a claim in our opinion, is really an objection to the attachment when we consider it on its substance, that comes well within the scope of our jurisdiction.
It matters little whether such jurisdiction is invoked by the Commissioner or the claimant or the proposed purchaser." He submitted, on the strength of these passages, that the claims in the present case are liable to be dismissed (a) on the ground that they are time barred and (b) even if the claimants are found to be bona fide tenants in the property.
We are unable to agree.
While, no doubt, this Court had indicated that claims and objections to attachments should be filed within a period of thirty days, that period cannot be read as if were a rigid rule of limitation prescribed by law.
The order also only says that, if objections are not put forward within a month, the property may be sold and does not preclude objections being filed after the, sale.
Indeed, the Division Bench did not rest its conclusion on this ground and proceeded to consider the objections on merits.
We are also unable to read into the order any con clusion of the Division Bench that even bona .fide tenants are liable to be evicted from the property.
If that had been so, the Bench need not have gone into a detailed considera tion of the merits of the claim of tenancy put forward by the contesting respondents in that case.
All that the Bench observed in the passage extracted above was that all claim ants to the properties subjected to attachment by the Com missioner, whether as owners or as intermediate interest holders (like tenants) or otherwise, have to put forward their claims for adjudication by the Division Bench.
The Bench did not proceed to hold, as suggested by Sri Kapur, that the auction purchasers are entitled to get vacant possession of the property free from all encumbrances and that even bona .fide tenants can be directed to be summarily evicted from the property in pursuance of the 295 orders of this Court.
We are unable to see in this order any observation that could legitimately have induced the Mandais to believe that they would be entitled to evict even lawful tenants from the property by purchasing it at the auction sale.
In principle also, this contention is not well founded.
The object of the directions given by this Court was to cut short the proliferation of litigation and to ensure that the Commissioner is able to gather in expeditiously the assets of Sanchaita which were dissipated or siphoned off by the persons in charge of the firm.
Thus, if the firm 's moneys had been utilised to purchase properties in the name of various individuals benami such property had to be taken back by the Commissioner from such benamidars.
Also, where the said benamidars or other persons put up frivolous claims to the property or its possession without the semblance of any legal title to its ownership or possession, such claims could and should be rejected by the Court.
But this princi ple cannot apply to bona fide interests of others in the property.
For instance, suppose Sanchaita 's moneys had been advanced on the mortgage of an item of immovable property, all that the Commissioner would be entitled, legally and equitably, would be to call in the mortgage moneys (princi pal and interest) and not the entire property itself.
An auction purchaser of such a property cannot get anything higher than the interest Sanchaita itself could have claimed in respect of the property.
Likewise, if Sanchiata 's moneys had been invested in a property which had been bona fide let out to tenants, Sanchaita would have paid only the value of the property so encumbered and its rights in the property can only be subject to those tenancy rights.
Sanchaita could not have a right in respect of the property superior to that which its vendor had.
Similar would be the position where Sanchaita or its benamidars had, after acquiring a property, created a bona fide tenancy or other encumbrance in respect of that property, in respect of independant outsiders who acquire such interest for consideration.
To say that San chaita, through the Commissioner, would be entitled to vacant possession even from such tenants, or free from such encumbrances, would result in its being able to realise a larger interest in the property than it acquired.
Not only this, the result of any such conclusion would ensure the benefit of, not Sanchaita, but of the auction purchaser of the property.
Having bid for and acquired the right, title and interest of Sanchaita in the property, he would be enable to get vacant possession which Sanchiata, even if it had continued to be active and properous, could not have got except by due process of law.
296 We have, therefore, no doubt that this Court, by its orders dated 4.5.83 and 27.9.83 intended only that the firm, or the auction purchasers at the sales effected by the Commission ers, should be able to clear the property of trespassers and unauthorised persons and not that even bona fide tenants could be got evicted straight away in pursuance thereof.
Normally, even trespassers and unauthorised persons cannot be thrown out except by recourse to legal proceedings but, having regard to the large scale dealings, the special circumstances and the desperate situation, this Court made an exception and made it possible for the Commissioner to get false and frivolous claimants out of the way by a quick procedure but nothing more.
We are, therefore, of opinion that if the Court, on a consideration of the materials placed by the claimants or objectors, comes to the conclu sion that they are not mere stooges or false claimants but have a bona fide fight to possession as against Sanchaita, it cannot direct their eviction but should leave it to the auction purchaser to initiate such eviction proceedings in the normal course and in accordance with law, as may be available to him against the claimants/objectors.
Sri Kapur laid considerable stress on the aspect that, unless vacant possession can be had, no one will purchase any property at the auction sales conducted by the Commis sioner as no one would like to face further litigation to secure possession of the property.
He submitted that the object which the Court had in mind was to effectuate sales of Sanchaita properties by assuring vacant possession with a view to secure maximum price therefore and to ensure expedi tious return to the Sanchaita investors of as much of their deposits as possible and that this object would be totally frustrated if people were encouraged to put in hurdles in the way which will depreciate the value of the property.
This contention proceeds, only partially, on a correct basis.
It is true that there should be a quick and expedi tious realisation of the properties that really belong to Sanchaita.
That is why the Court empowered the Commissioner to attach and sell properties that, in his opinion, really belong to Sanchaita though ostensibly held in the names of others and also devised a quick and summary method for adjudication upon claims and removal of obstructions.
But this order cannot be availed of to ride rough shod over the rights and interests of others in the properties which have been created bona fide.
Third parties who have acquired real interests in the property, either independent of, or even through, Sanchaita cannot be called upon to give up their rights.
To do so would be to do more than merely realise what 297 rightfully belongs to Sanchaitas; it would amount to confer ring on Sanchaita a better title than it had, in fact, acquired.
The depositors or investors in Sanchaita cannot claim any such rights.
It is, therefore, difficult to accept the ground urged by Sri Kapoor as entitling the Mandais to an interest that can ignore or override all manner of rights and interests in the auctioned properties.
For the above reasons, we are unable to accept the plea that the Mandais are entitled to get vacant possession of the premises, irrespective of the nature of the interests the claimants had therein and that, on this ground alone, we should uphold the order of the Division Bench.
We shall, therefore, proceed to consider how far the claim of each one of the appellants before us to continue in possession of the property, unless and until evicted in due course by process of law, is maintainable.
Though the High Court has set out in extenso the details of the claims put forward by the various claimants, we consider it necessary to set out, in some detail, the evi dence put forward by the claimants as the principal com plaint of every one of the claimants is that a considerable volume of evidence adduced by him has been summarily brushed aside by the Division Bench.
We shall, therefore, proceed to do this: 1.
PAUL BROTHERS The petitioners in SLP 3258/59 have described themselves as "Paul Brothers".
A complete paper book containing copies of a number of documents has been placed before us to sub stantiate their claim that they have been tenants in the premises since a very long time.
These are: "(1) A letter addressed by one Ramakrishna Paul to Dilip Kumar Paul and Mihir Kumar Paul, Landlords, seeking permis sion to make some alterations in the Radio and Electrical shop and a reply thereto dated 8.4.75 by Dilip and a similar reply to Amar Nath Paul (Paul Brothers) in respect of the watch repairing shop; 298 (2) A letter intimating "Amar Nath Paul (Paul Bros.), Re pairing Shop" that Satyanarayan Paul had died on 10.8.66 and that the four signatories Ashok Paul, Dilip Kumar Paul, Mihir Kumar Paul and Mrs. Suchitra Kundu had succeeded as landlords entitled to the rents thereafter; (3)(a) A stamped deed of partnership dated 14.6.61 drawn up by B.M. Motilal Advocate, between Amar Nath Paul, Robindra Nath Paul.
Abani Bhushan Paul, Arun Kumar Paul, Kiron Chan dra Paul and Gopal Chandra Paul (all sons of Mohni Mohan Paul) sharing profits equally.
The firm is said to have started business in Watch Repairing and Tailoring w.e.f. 14.4.61 at the suit premises under the name and style of Paul Bros. and is said to have been registered with the Registrar of Firms.
(b) Three stamped deeds of partnership drawn by B.M. Motilal (Advocate) and dated 25.4.75 have also been produced.
The first of these, of Paul Brothers (Watch Division), Amar Nath Paul, RobindraNath Paul, shows Abani Bhushan Paul and Rama Kishore Paul (sons of Mohni Mohan Paul) as having started and been carrying on business as watch dealers and repairers since 15.4.74 in the premises sharing profits equally with out a formal deed till then.
The second is of Paul Brothers (Radio and Electrical Division) in which Kiron Chandra Paul, Amiya Kumar Paul, Samir Kumar Paul, Amar Nath Paul (sons of Mohni Mohan Paul) and Shyama Ran jan Paul (son of Lalit Mohan Paul) are partners with Amar Nath having a 10% share and the others 22.5% share each.
The deed recites that the above partnership started a business in radio and electri cals on 15.4.74 at the suit premises as well as at 1951, Mahatma Gandhi Road, Calcutta without a formal deed having been drawn up till that date.
The third deed is between Arun Kumar Paul, Benoy Kumar Paul, Gopal Chandra Paul and Amar Nath Paul (all sons of Mohni Mohan Paul) in respect of Paul Brothers Tailoring Division with Amar Nath Paul having a 10% share and the others 30% each.
This deed also recites that the business had started earlier with effect 299 from 15.4.74 but that no formal deed had been drawn up till then.
(c) A deed of partnership dated 8.5.
1980, also on stamp paper and witnessed by B.M. Motilal, is between Kiran Chan dra Paul, Amiya Kumar Paul, Samir Kumar Paul (sons of Mohni Mohan Paul) and Promotho Nath Paul (son of Lalit Mohan Paul).
By this deed Shama Ranjan and Amar Nath retire from Paul Brothers Radio and Electricals w.e.f. 13.4.80 leaving the remaining four to share the profits equally.
(4) More than 225 rent receipts in favour of "Amar Nath Paul", "Amar Nath Paul and others", or "Amar Nath Paul (Paul Brothers)" have been produced.
They are spread over the period from 1962 to November 1987 (except October 1965 to March 1968).
They are signed by S.N. Pal between May 1962 and September 1965, by Ashok Paul between April 1968 and October 1971, by Dilip and Mihir between October 1971 and September 1977 and by Mahamaya Devi from October 1977 onwards.
Rent receipts from April 1962 to September 1987 in favour of "Amar Nath Paul", "Amar Nath Paul (Paul Bros.) Watch Makers Shop" have been produced.
Also copies of rent receipts in favour of "Ramkrishna Paul", "Ramakrishna Paul and others" in respect of one shop room in the north west corner covering the period from March 1974 onwards signed by Dilip and Mihir and Mahamaya Devi are also produced.
(5) Rent receipts and a deposit receipt showing that a third shop situated in the north west corner of the ground floor, previously occupied by one Tarak Nath Roy, was taken over by the Paul Bros. at a rent of Rs.75 p.m. in December 1973 after purchasing the assets of the earlier tenant for Rs.200.
(6) Three electricity bills of October '69, January '75 and 300 May '88 in respect of the premises issued in the name of one D.P. Paul, claimed to be an uncle of the Pauls and Electric ity bills in the name of Paul Bros Radio Division of April '80 and April '88 have also been produced.
(7) Three telephone bills of 1969, 1973 and 1977 in the name of Paul Brothers (and three electricity bills of March '74, March '77 and February '88 in the name of Tarak Nath Roy) have been produced.
(8) Receipts dated 2.5.61, 10.5.62, 7.5.63, 25.3.72 and 28.12.87 by the Corporation of Calcutta being fees in re spect of the Tailoring Shop in the premises for the years 1961 62, 1962 63, 1963 64, 1971 72 and 1987 88 in favour of Paul Bros. (Partners Sri Arun Kumar Paul and others).
Corpo ration Receipts ( 18 in number) for trade licence fees in respect of radio and watch business carried on in the prem ises covering the years 1962 63 to 1987 88 (except 1984 85, 1981 82, 1980 81, 1975 76, 1972 73 and 1971 72) in the name of Paul Bros. are produced.
These describe the partners of the firm differently as "Amiya Paul and others", "Arun Kumar Paul and others" and "Amar Nath Paul and others" 7 fee receipts for trade licences issued to the watch division of Paul Bros. covering the years 1987 88, 1986 87, 1985 86, 1983 84, 1982 83, 1981 82, 1980 81, 1979 80, 1978 79, 1977 78, 1976 77, 1975 76 and 1974 75 describe the partners as "Rabindra Nath Paul and others".
There are also fee receipts in respect of licence fees for the years 1961 62, 1971 72, 1972 73, 1987 88 in respect of the watch repairing shop in the name of "Paul Bros. (Amar Nath Paul & Others)".
(9) A letter dated 17.7.70 addressed by the Government of West Bengal to the Accountant General, copy endorsed to M/s Paul Brothers at the address of the suit premises and other correspondence between 1970 and 1973 with the tailoring division of the said firm at the same address.
Copies of two letters addressed to the radio and watches 301 shop of Paul Bros. at this address between July 1965 have also been produced.
(10) Challans for payment of self assessment tax of Rs. 190 for assessment year 1976 77 by Paul Brothers (Tailoring Division) on 12.8.76 from this address.
Also produced are certificates from the Income Tax Department that the three Paul Bros. at the above address are being assessed to income tax since assessment year 1975 76/1976 77.
(11) Orders u/s 158 and demand notices u/s 156 of the In come tax Act in respect of assessment years 1969 70, 1968 69, 1967 68 have been produced, the former of which evi dences the constitution of Paul Bros. A declaration have been filed before a Presidency Magistrate, Calcutta, on 26.8.65 by some of the Pauls referred to above to the effect that they are the partners in the firm from 14.4.61 and that they have filed income tax returns for three years.
The declaration also states: "2.
That we have been carrying on business as tailors, watch repairers and sellers of cut piece cloth and watches from 1st day of Baisakh, 1368 B.S. and also we have started radio manufacturing/sales/service department from second year of our business i.e. 1369 B .S.
We have no other business save and except those mentioned in this paragraph, this is true to our knowledge".
(12) Documents showing the registration of the following firms with the Registrar of Firms: Date Firm 10.1.74 Paul Bros. (Watch) Division) 10.6.74 Paul Bros (Radio and Electrical Division) 20.9.61 Paul Bros. 302 (13) A central excise licence dated 20.1.1965 and a postal department licence of 24.8.62 in respect of the radio and electrical shop in the name of Paul Bros. with Shri Kitart Chandra Paul as a partner.
(14) Several letters, notices, receipts etc.
from the In cometax Department and Central Excise Department as well as correspondence from the Life Insurance Corporation of India and premium receipts have been produced but these are not of much help except to show that they were addressed to Paul Bros. or Arun Kumar Paul or Rabindra Kumar Paul or Amar Nath Paul or A.K. Paul or Amarendra Nath Paul and others or Abani Bhushan Paul or Kiran Chandra Paul, or Gopal Chandra Paul at the suit premises.
(15) Extracts from the assessment registers of the Corpora tion of Calcutta for two years.
The first of these shows the name of the owner as Avamoyee Paul and that of the occupier as Taraknath Roy and others.
Endorsements thereon show the calculation of the annual value on the basis of the follow ing rents: Rs. p.m. "I Tarak Nath Roy 25.00 Panchanan Dutta 25.00 (Watch Shop) 41.00 (Tailoring Shop) 44.00 7.50 7.50 II Phani Bhusan Ghose 45.00 III Owner 45.00 240.00" The second of these documents shows the name of the owner as "Estate of Avamoyee Paul C/o Shri Mihir Paul 303 and Brothers" but this is struck off and replaced by "Smt.
Mahamaya Devi (In the premises)".
Against the column "occu pants" the name of Taraknath Roy and others is replaced by "Smt.
Mahamaya Devi and others".
This extract also contains, what apparently are later, endorsements of details as fol lows: "R.S. (Road Side) Shops Rent p.m.
I Ramakrishna Paul says 75 (Goldsmith) (Radio Amarnath Paul " 48 (Tailoring) Paul Bros. " 48 (Goldsmith Panchanan " 44 Dutta (Dulal Dutta) 2.
DULAL CHANDRA DUTTA The tenancy in respect of a backside shop on the ground floor is claimed as having belonged initially to two per sons, Panchanan and Dulal Dutta.
Of these, Panchanan Dutta appears to have died in 1981 and it is only Dulal Dutta who is the claimant now.
He states that the property belonged to Satya Narain Paul then to Dilip Kumar Paul and Mihir Kumar Paul and then to Mahamaya Devi.
In the case of this claimant there is no direct evidence of tenancy in the form of a rent deed or rental agreement.
About 51 rent receipts have been produced but all these receipts purport to have been issued only by Mahamaya Devi.
No receipts have been produced for any earlier period though the claimant says he has been tenant of the property since 1973; it is stated that the rent receipts issued in the joint names by Dilip Kumar Paul and Mihir Kumar Paul are missing from his custody.
The High Court has said that there are several inconsistencies, defects and errors in the receipts that had been produced and, though a number of other documents have been placed before us here, none of these receipts or copies thereof have been produced.
According to the claimant 's affidavit filed before the High Court, he started his work as a gold smith in the premises in 1973, the tenancy of which stood in the name of one Panchanan Dutta and that he also contributed rents to 304 Panchanan Dutta "who used to pay the rents in his name to the owner of the premises".
No receipts in the joint names of Panchanan Dutta and the claimant have been produced.
The extracts from the records of the Corporation referred to earlier show Panchanan Dutta as the occupant and the claim ant 's name does not figure therein.
The claim of tenancy is, however, sought to be established by the following docu ments: (a) A certificate of the Gold Control Authority of 1976 recognising the claimant as a goldsmith with his place of business and residence at 6, Doctor 's Lane, Calcutta subse quently shifted to the suit premises w.e.f. 4.11.81; (b) A certificate from the Bangia Swarna Silpi Smithi dated 12.8.75 showing the claimant 's place of work at the suit premises and a letter of 13.11.1987 from the Samithi stating that the claimant has been maintaining a Khata under the Gold Control Act from 1976; (c) A petition for remand by the police dated 18.9.75 in connection with a criminal case showing the claimant 's address at the suit premises; (d) A search list of 23.9.75 on complaint No. 657 u/s 380 I.P.C. showing that certain items were seized from Dulal Dutta 's shop in the suit premises; and a petition from the prosecution seeking impleadment of Dulal Dutta of the suit premises as a co accused in connection with the above case; (e) A letter from the Police of a complaint from the Corpo ration against the claimant for not having obtained a trade licence for 1979 80 in time and a municipal licence fee receipt dated 19.12.80 in respect of the year 1978 79 issued by the Corporation of Calcutta in favour of the claimant and Panchanan Dutta; (f) A summons issued by the Corporation to the claimant on 305 6.2.81 showing his address as at the suit premises; and (g) A letter dated 10.6.81 by the claimant to the Superin tendent, Central Excise asking for a change of address from Doctor 's Lane to the suit premises.
(h) An extract got in 1988 from the assessment book of the Corporation which shows Smt.
Mahamaya Devi as the owner and Shri Phani Bhusan Ghose, Shri Amarnath Paul and Shri Dulal Dutta as the occupants.
This purports to be the entry with effect from 3/66 67 to 4/88.
PHANI BHUSAN GHOSH Phani Bhusan Ghosh, who claims tenancy in respect of the first floor of the suit premises comprising of three bed rooms and one sitting room besides other conveniences.
Ghosh is a retired Government servant.
He claims to have been inducted as a tenant in 1948 by Satyanarayan Paul at a monthly rent of Rs.75 p.m.
According to him, on the death of Satyanarayan, his son Ashok Paul used to grant rent re ceipts; thereafter, consequent on a partition among the heirs of Satyanarayan, Dilip Kumar Paul and Mihir Kumar Paul used to issue the receipts until, in October 1977, they sold the suit premises to Mahamaya Devi.
Though it iS not clear whether there was any original tenancy agreement in 1948 and no rent receipts of that time have been produced, the claim ant relied on the following documents in support of the plea of tenancy: (a) A photo copy of a certified copy of the plaint in Eject ment Suit No. 1095/61 filed by Satyanarayan Paul against the claimant for eviction and khas possession which recites that the claimant was a tenant of Satyanarayan in respect of the premises; (Incidentally, the schedule to this deed refers to Taraknath Roy, Panchanan Dutta, Dulal K. Dey and Amarnath Paul (Paul Bros.) as the tenants on the ground floor).
(b) An undated letter from Dilip Kumar Paul and Mihir Kumar 306 Paul informing the claimant of the sale of the Premises to Mahamaya Devi and a letter dated 9.10.77 from Prabir Kar, an Advocate on behalf of Mahamaya Devi asking claimant to attorn to Mahamaya Devi as she had purchased the property from the two Pauls; (d) Three receipts issued by Ashok Paul in 1969, three issued by Dilip and Mihir in 1971, 1976 and 1977 and two issued by Mahamaya Devi for July ' 78 and September ' 87; (e) A certificate dated 4.1.
1988 from the Geological Survey of India stating that the address of the claimant had been recorded on 20.3.52 in its official records as being at the suit premises.
HARI NARA YAN GUPTA This person claims tenancy in the second floor.
One feature that distinguishes this claimant from others is that he claims to have been a tenant in the property under Maha maya Devi since 1982.
The plea of Gupta is that he became a tenant of the flat on the second floor under Mahamaya Devi on a rent of Rs.350 p.m. vide an agreement dated 7.1.1982 and that he had been regularly paying the rent to her ever since upto September 1987.
The agreement produced is an unregistered agreement.
There are only two rent receipts dated January 1983 and September 1987 produced in support of the claim.
The photostat copies of the extract from the records of the Corporation which have been referred to earlier show the occupants as Mahamaya Devi and then one Harindra Nath Chakraborty.
H.N. Gupta claims to be running a tea stall on S.P. Banerjee Road and to have taken this premises on rent.
We shall now consider the claims of each of these claim ants individually, starting with Hari Narayan Gupta.
Hari Narayan Gupta: Sri Kapur contended that since it has now been finally decided 307 that Mahamaya Devi never really owned the premises herself, she could not have validly created a tenancy in favour of Gupta.
We do not think this conclusion necessarily follows.
It is true that the finding that Mahamaya Devi was only a benamidar for Sanchaita has become final but it does not follow that any tenancy created by her is invalid, unless it can be shown that, in creating such interest, she acted in breach of trust and contrary to the interest of Sanchaita.
If she had put Gupta in possession of the property as her stooge or, if Gupta had taken the property from her on rent collusively or with full knowledge that the property really belonged to Sanchaitas the position would be different but if Gupta is an independent third party with no such notice or intention and had been inducted by her as a tenant bona fide, all the Sanchaita can claim is that she should account to firm for the rents derived by her from the property in the past and that the firm or the Commissioner or the auc tion purchaser should be entitled to the rents from the property as from the date of its attachment by the Commis sioner.
Examining the facts and the evidence from the perspec tive, it does seem that Gupta has not been able to adduce any evidence to satisfactorily establish that he was a bona fide tenant under Mahamaya Devi.
It is difficult to believe that this tea stall owner took the suit premises on a rent of Rs.350 from Mahamaya Devi.
There is no consistent or satisfactory evidence of such tenancy.
We are inclined to agree with the conclusion of the High Court that Gupta was not a bona fide tenant in the property as claimed and that he is liable to evicted from the premises.
Dulal Dutta: Turning next to the case of Dulal Dutta, we have gone through the documents placed before us carefully and are constrained to observe that this claimant has also not been able to establish his bona fide tenancy of the premises.
The original trade licence shows that the claimant had started his business at No. 6, Doctor 's Lane and that this was got changed to the address presently in question only in 1981 but, according to him, he had started working at the suit premises even in 1973.
The police remand papers and corpora tion notices no doubt indicate that the claimant was found at this address in 1975 and 1978 308 79 but these papers are not sufficient to establish the claimant 's plea of tenancy.
Admittedly, even according to him.
Panchanan Dutta was originally the tenant of the prem ises and the claimant seems to have had some working ar rangement with him, Panchanan Dutta is said to have died sometime in 1981 and the change of address for excise pur poses seems to show that the claimant moved into the prem ises wholly thereafter.
But the question is not whether the claimant was in occupation of the premises but whether he was a bona fide tenant therein.
As to this, there is no proof or evidence except the few odd rent receipts purport edly issued by Mahamaya Devi the genuineness of which has not been accepted by the High Court.
It was argued that even if Dulal Dutta is treated as a sub tenant or as being in adverse possession, the landlords ' right to evict him would be time barred.
But neither of these stands was taken by Dulal Dutta and his adverse possession, even if claimed, could not have started before 1981 and so no question of time bar could arise.
In the circumstances, we are con strained to uphold the findings of the Division Bench in respect of the portion of the suit premises occupied by Dulal Dutta. 3.
Phani Bhusan Ghose: We next turn to the case of Phani Bhusan Ghose.
On behalf of the Mandals, it is submitted that the pieces of evidence relied on by the claimant amount to nothing.
Sri Kapur submits that, as per the extracts from the Corporation records filed in the case, one Avamoyee Paul was the owner of the premises in 1948 and there is nothing to show that either Satyanarayan Paul or his legal heirs were ever the owners of the property.
The partition deed has not been produced.
The rent receipts produced contain lacunae, errors and inconsistencies.
The genuineness of the receipts and the letters produced is not accepted.
Advocate Prabir Kar, who is alleged to have sent the attornment notice, is alleged to be a reputed agent of Sanchaitas.
So far as the plaint of 1961 is concerned, he points out, there is no explanation given as to what made the claimant obtain a certified copy of the plaint in 1972 and there is also no evidence as to the outcome of the suit.
The records of the Geological Survey had not been summoned and it is also curious that the claimant has produced a certificate of 1988 to show the claimant 's address in 1952 but not his recent or present address as recorded therein.
We are of opinion that these objections cannot be sustained.
309 Leaving aside the rent receipts and other correspondence the authenticity of which cannot be taken for granted, there is enough evidence to sustain the claim of the applicant.
The certified copy of the plaint shows that Ghosh was tenant of the first floor under Satya Narayan Paul who claimed to be the owner of the premises.
It does not show that he was tenant since 1948 but read, with the certificate of the Geological Survey of India, it does show that Ghosh was the tenant between 1952 and 1961 in the premises.
No foundation has been laid and no material has been adduced to show that the copy of the plaint is not genuine or cannot be acted upon or that there was no such suit in 1961 between the parties as alleged.
What happened to the suit or what de fence was raised by Ghosh to the suit is irrelevant in the absence of any suggestion, or any material to indicate, that Ghosh had been in fact evicted in pursuance of the order passed in the suit by the date of the present proceedings.
There is also no information placed before us as to the persons who were the legal representatives of Avomoyee Paul or that Dilip and Mihir did not at all because the owners of the property.
On the other hand, the extract from the Corpo ration records at the relevant time, shows the owner of the premises to be: "Estate of Avamoyee Paul c/o Sri Mihir Paul and Bros." This indicates a connection of Mihir Paul with the premises and the sale deed of 1977, the genuineness of which is not.
and cannot be, in dispute (for that, verily, is the basis of the title of Sanchaita to the property in question) shows that she purchased it from Mihir and Dilip.
It is, of course, theoretically possible that Ghosh had been evicted from the premises by Satyanarayan and that the receipts produced from Dilip and Mihir as well as the letters of authority produced are not genuine.
But this is a far reach ing assumption and it cannot be presumed that all these are got up documents, in the absence of some foundation or material for the suggestion.
In our opinion, the claimant has let in sufficient material to show that he was a tenant in the premises long before Mahamaya Devi entered into the picture.
Paul Brothers: Now turning to the case of Paul Brothers, our narration above shows that there was a mass of evidence adduced by the parties in 310 support of their tenancy in the premises since long.
The grievance of these and indeed also the other claimants has been that the High Court has failed to apply its mind to the evidence produced in support of each of the claimants.
It is submitted that an analysis of the judgment of the High Court (which runs to 52 pages) will show that the High Court, after setting out the preliminary facts, the contents of the affidavits, counter affidavits and rejoinder affidavits and the contentions of the respective counsel in great detail, has disposed of the entire case with the following observa tions appearing on the last page of the judgment: "On the basis of the intrinsic evidence and when the 'Corpo ration ' records, produced on behalf of the Respondents, being incompatible with the rent receipts, their inherent inconsistencies do not appear to us to be trust worthy, it would appear that the submissions of Mrs. Paul, regarding the character and quality of rent receipts as produced now, were of substance and we also feel that the story of tenan cies were subsequently sought to be established for the purpose of avoiding the effect of the auction sale and that too, not in a bona fide manner.
We are of the confirmed opinion that in terms of the determinations of the Hon 'ble Supreme Court of India, as followed earlier by a Special Division Bench of this court in Jagadish Agarwalla 's case (supra), this court is not so powerless to make orders in terms of the prayers as made in the petition and that too in the facts of the present case and as such, we allow this application and direct the Respondent Commissioner, to take such steps, so that, forthwith vacant possession of the said premises is handed over to the petitioners i.e. the purchas ers in the auction sale.
We also have it on record that if necessary, the Respondent Commissioner would also be enti tled to take appropriate Police help and assistance in having Respondent Nos. 2 8 removed from their claimed occu pation of the said premises or to break open any padlock which is there or which has been put in now.
" It is submitted that the High Court does not discuss why and in what respects the Corporation records are inconsistent with the rent 311 receipts, what the inherent detects and inconsistencies were in the rent receipts produced and why the story of tenancies is considered to be an after thought.
There is also no reason given for the rejection of the innumerable other pieces of evidence produced by the claimants.
On the other hand, the complaint of Sri Kapur has been that the claimants Paul Brothers, in particular had been placing documents before the Courts in driblets.
Most of these were in the nature of Xerox copies with no guarantee of their authenticity.
He points out that the entire collec tion of receipts, purporting to be from Satyanarayan Paul, Ashok Paul and Dilip and Mihir not to speak of Mahamaya Devi could easily have been written up for the purposes of the case.
In his submission, they have indeed been so writ ten up at one or more sittings and these are revealed by the inconsistencies and discrepancies, some of which have been pointed out before the High Court by Mandal 's counsel and referred in the judgment.
It is unfair, argues Sri Kapur, to say that the Division Bench has not applied to the facts of the individual cases.
These having been fully brought out in the earlier parts of the judgment with special reference to the defects pointed out and criticisms made by the counsel for Mandals, the High Court did not consider it necessary to repeat the same again m the concluding part of the judgment.
He says that the Division Bench had occasion to deal with similar claims in regard to various other properties and has assessed the entire evidence in the light of its experience regarding the various devices employed to put forward osten sible third parties as obstructors.
The criticism that the judgment, High Court 's reasoning is brief and cryptic, he submits, is based on a total misconception and should be rejected.
Sri Kapur then drew our attention to the ' infirmities in the case put forward by the claimants, both procedural and substantive.
He says that it is only in this Court, for the first time, and that too, after this Court called upon them to do so, that the Paul Brothers have attempted to put forward a chronological version of the history of tenancy of the three shops allegedly taken on rent by them.
Earlier, they merely produced a few receipts and correspondence in the name of Paul Brothers a convenient label enabling them to explain away documents of different dates in the names of different persons who were all "Pauls" and to create a confusion between Avamoyee Paul (shown originally in the municipal records), Satyanarayan Paul and his 312 alleged relatives Dilip and Mihir, and the different Pauls who were alleged to be partners in Paul Brothers on differ ent dates.
Also, many documents (such as the income tax and customs department notices, assessment and certificates) have been produced in this Court and were not produced ' before the High Court.
Per contra, certain documents (such as the first affidavit dated 14.11.87, the 1974 partnership deeds and a letter dated 5.4.75 from Ram Krishan Paul to the landlords) produced before the High Court have been deliber ately suppressed from this Court.
Sri Kapur submits that the most crucial circumstances in the present case is that the objections of Mahamaya Devi to the attachment and sale of the property did not contain even the whisper of a sugges tion that there were not one or two but as many as seven tenants in the property.
If this had been a fact, he says, she would not have failed to say so emphatically in her objections.
Sri Kapur points out that the basic case of all the claimants is that the premises originally belonged to one Satyanarayan Paul, that on his death five persons inher ited the property, that on partition among them the property came to Dilip and Mihir (mentioned, perhaps wrongly, as Dulal Chandra Paul in the affidavit of 14.11.
1987) who conveyed the property to Mahamaya Devi.
The whole edifice crumbles, he points out, as even according to the municipal extracts produced by the claimants, neither Satyanarayan Paul nor Dilip and Mihir have been ever recorded as the owners of the property.
The version of undated attornment letters, partition and Prabir Kar 's letter was not attempted to be proved by producing even an affidavit from Dilip or Mihir or Prabir Kar.
Even an affidavit from Mahamaya Devi is conspicuous by its absence.
Above all, says Sri Kapur, the case of the claimants regarding the constitution and nature of business of Paul Bros. and the evidence in support there of as put forward at various stages bristles with inaccura cies and inconsistencies which justify its rejection.
These were pointed out before the High Court in detail and have been set out in the judgment.
Some of these are as follows: The business has sometimes been described as one business (SLP and affidavit of 2.11.88,) and sometimes (affidavit of 14.11.87) as separate businesses with separate partners and separate deeds of partnership.
The date of commencement of each of these businesses have been set out differently in the different affidavits and go back to 1958, 1959, 1962, and 1973.
These do not talks with the partner ship deeds of 1974 which shows the businesses as having started only on 15.4.74 which in 313 turn, is belied by the production of a deed of 1961.
The names of the partners are also not given consistently.
While Ramakrishna Paul is a partner of the radio and tailoring firms as per the affidavit of 2.7.88, he is not one as per the affidavit of 14.11.87.
So also K.C. Paul is a partner of the tailoring firm according 'to 1988 affidavit but is not, according to the earlier one; (2) In the affidavit dated 14.11.87, the claimants had stated that they had been able to locate, after great effort, a few municipal trade licences and produced eight of them.
But late, r, with the second affidavit, they produced a few more.
How this has been done has not been explained; (3) It is not explained how the electricity bills stand in the name of Taraknath Roy and D.P. Paul and how the electricity bill in the name of Paul Brothers dated 13.3.80 shows an electricity connection having been obtained for the premises only on that date though the claimants were said to have been running the business there since 1973; (4) The telephone bills again are not helpful.
They contain the name of one M.S. Paul for which no explanation has been given.
One of the bills shows the installation of telephone in the premises even in 1958 though according to the claimants the business in the premises started earliest, only in 1959.
Also the bills give the number of the premises as No. 52/1/1 and not 52/1/1B; (5) The rent receipts have been produced in driblets six with the affidavit of 1987 and 44 with the affidavit of July 1988 while with the SLP only 17 rent receipts have been annexed.
Some of the receipts date back earlier than 1974 though according to the partnership deeds, the business of the firms commenced only in April 1974.
The rent receipts bear almost continuous serial numbers.
There are several discrepancies: for example, a receipt dated 6.8.77 bears No. 59 whereas one dated 10.6.77 bears No. 60 and there are two rent receipts for July 1977.
The rent receipts in favour of Paul Bros. (Electricals) are in the 314 name of R.K. Paul who is not a partner therein according to the deed and who is referred to in the Corporation records as a goldsmith.
There is no rent receipt from Avamoyee Paul or her estate and Satyanarayan Paul, Ashok Paul, Dilip Paul or Mihir Paul are not recorded as owners.
There is not a single affidavit by any of the signatories to the receipts vouching for their genuineness; (6i There is no effort by these three or the other claimants to pay the rents, after the attachment of the premises, either to the Commissioner or to the Mandals.
Their case that they did not know about the attachments was false; (7) There is no difference between the case of the claimants in the cases of Amar Mandal and Jagdish Prasad Agarwalla and that of the various claimants herein.
We have carefully considered the contentions of the parties.
It is true that, some of the grounds of criticism of the evidence produced by the claimants are valid.
A certain amount of difficulty has been caused by the uncer tainty as the nature of the proceedings conducted by the High Court in pursuance of the order of this Court.
It appears that the Court has produced to consider the issues in a summary manner on the basis of the affidavits of the claimants and on prima facie consideration of the documents formally as well as informally produced in support thereof.
The enquiry has been somewhat analogous to the procedure which used to be adopted in disposing of petitions by ob structors under the Code of Civil Procedure, 1908, '(before its amendment in 1976) which concluded in a tentative find ing leaving it open to the parties to file a suit and estab lish their right to possession.
On the other hand, if these are taken to be in the nature of proceedings for the execu tion of a decree under the amended code, there will have to be a more detailed trial with full opportunity to parties to lead evidence and to examine and cross examine witnesses, as a finding reached in these proceedings would be final and conclusive.
In the present case, the application has been disposed of somewhat summarily and informally.
At one stage, therefore, we were inclined to think that the matter, so far as the Pauls are concerned, should be remanded to the High Court for fresh disposal.
But, on further consideration, we have come to the 315 conclusion that there is sufficient material placed on record by the claimants to show that Paul Bros. have been in the premises as tenants since long and that no such remand is necessary.
Taking all the documents collectively, it is difficult to say that one could reasonably arrive at the conclusion that the Pauls were trespassers or unauthorised occupants.
The Mandals have done nothing positive to estab lish this but to barely deny the genuineness of the various documents put forward on behalf of the claimants.
One direct piece of evidence is the extract from the municipal records.
It was suggested that the photostats produced could not be relied upon and that the entries therein could have been reproduced by some process of super imposition.
However, it has been found that, apart from the photostat copies, the original records were summoned certi fied extracts produced by the representative of the Corpora tion have been taken on record.
These extracts which relate to the relevant period show the Paul Bros. as tenants in the three shops.
It is true that the estate of Avamoyee Paul has been shown as the landlords but the entry contains a refer ence to Mihir Paul and, admittedly, Mahamaya Devi purchased the property from Dilip and Mihir.
Letters calling for attornment and rent receipts galore have been produced.
Though one cannot eschew the possibility of these being got up documents, some foundation must be laid by the Mandals to reject them other than a mere assertion that they are not genuine.
The discrepancies suggested are few and minor and do not warrant the summary rejection of the large number of receipts.
The electricity bills, phone bills, tax department correspondence likewise prima facie support the claim of the appellants.
The mistakes pointed out in the telephone and electricity bills are insignificant.
The bills are made out ' not in the name of M.S. Paul but M/s Paul Brothers and D.P. Paul is said to be an uncle of the Pauls.
These, together with the partnership deeds and municipal licences and corre spondence the genuineness of which cannot be rejected straightaway, support the claim.
No doubt there is a slight discrepancy in that the 1961 deed is not referred to in the 1974 deeds but this cannot entail the rejection of the 1961 deed.
We do not wish to elaborate on every one of the other points made by the counsel for the Mandals.
It is true that Mahamaya Devi did not refer to them in her objections but she was concerned about saving "her" property from attach ment and sale as that of Sanchaitas and the issue about her having let out the property was irrelevant for the decision of her objections.
We are satisfied that even in the face of the evidence produced 316 before the High Court (which has been supplemented in some respects before us) it is difficult to treat the Paul Bros. as trespassers or unauthorised occupants in the property.
In the result, the appeals of Paul Brothers and Phani Bhusan Ghose are allowed while those of Hari Narayan Gupta and Dulal Chandra Dutta are rejected.
We, however, make no order as to costs.
S.B. Petition allowed.
| IN-Abs | These appeals arose as a sequel to certain directions of this Court in the famous Sanchaita Investment Company case, which by dint of tremendous advertisement campaign collected deposits amounting to several crores of rupees from thou sands of depositors spread all over India.
The firm pros pered and thereafter tied up and siphoned away a sizeable portion of its funds from its coffers for the benefit of the management personnel by acquiring movable and immovable properties in the names of the firm, relatives and benami dars.
Then they started making defaults in its obligations to the depositors.
The depositors approached the High Court and eventually the matter came up to this Court in 1983.
With a view to safeguard the interests of the depositors and ensure that the properties of the firm be duly identified and full and due benefit of the funds be diverted to its coffers, this Court by its order appointed a Commissioner to take charge of all the assets, documents, papers of the firm, agents, sub agents, transferees and benamidars.
Further to enable the Commissioner to gather all the assets of the firm, he was given powers to attach all assets and properties which in his prima facie opinion are of the ownership of the firm or any of its partners.
Such assets were to be put to sale if no objections are received there to within one month from the date of attachment.
All objections thus received in respect of such properties were to be forwarded to the Prothonotary of Calcutta High Court, and a Division Bench of the High Court was to dispose of the objections on merits.
By a further order dated 23rd September, 1985 this Court empowered the Commissioner to remove all unauthorised 283 persons or trespassers from possession of the property proposed to be sold, and the Commissioner to hand over vacant possession to the rightful purchasers.
One of the properties thus attached by the Commissioner by a public notice was house N. 52/1/1B Surendra Nath Baner jee Road, Calcutta.
It was subsequently brought to sale on "as is and where is basis".
Asit Kumar Mandal and two others purchased this property and requested the Commissioner to give them vacant possession.
Since the sale was on "as is and where is basis", the Mandais moved an application before the High Court Division Bench praying for the vacant posses sion of the said property and the same was granted.
Hence the appellants i.e. Paul Bros and Others, moved two Special Leave Petitions in this Court and claimed that they were bona fide tenants in the property even under the predecessors in interest of Mahamaya Devi in whose name the property was purchased by Sanchaita firm and therefore could be evicted only in accordance with due process of law after full contest, and could not be thrown out in summary pro ceedings just as if they were persons in unauthorised pos session of the property, or as if they were mere trespass ers.
On the other hand the Mandais contended that in terms of the orders of this Court, and of the Calcutta Division Bench they purchased the property only on the basis that they would get a perfect title and speedy possession.
Allowing the Special Leave Petitions, this Court, HELl): That the contention of the Mandais is not main tainable either in principle or on the terms of the direc tions of this Court.
The attachment and sale in pursuance of this Court 's order of the present property in question did not have the legal effect of invalidating any interests created or subsisting in the property by sale, transfer encumbrance or alienation prior to the attachment.
Even the sale was on "as is and where is basis".
The Courts order of 27th September, 1983 only empowered the Commissioner to remove all unauthorised persons and trespassers but persons who are in lawful possession of the 284 property could not be evicted forcibly or summarily.
The said order could not be interpreted to mean that the pur chasers would be entitled to vacant possession through the commissioner even by evicting bona fide tenants or other encumbrancer or independent out siders who had acquired interest for consideration in the property.
The object of the directions was to cut short the proliferation of litiga tion and to gather in expeditiously the assets of Sanchaita.
[292D E; 295H; 296B] Having regard to the large scale dealings, the special circumstances and the desperate situation, the Court made an exception and made it possible for the Commissioner to get false and frivolous claimants out of the way by a quick procedure because even normally the trespassers and unautho rised persons cannot be thrown out except by recourse to legal proceedings.
So this order could not be availed of to ride rough shod over the rights and interests of others in the properties which had been created bona fide.
Even third parties who have acquired real interests in the property either independent of, or even through Sanchaita could not be called upon to give up their rights which would mean to do more than merely realise what rightfully belongs to Sanchaita that is by conferring a better title than it had in fact acquired while purchasing those properties, [297B, G] So in the instant case, considering the materials and evidence and the records placed before the Court by the claimants/objectors, to prove that they are not stooges or false claimants but have bona fide right to possession, it was held that the auction purchaser could not evict Paul Brothers and Phani Bhushan Ghose except eviction proceedings in the normal course and in accordance with law as may be available to them against the claimants/objectors.
The claim 's of the other appellant was rejected.
[297C D]
|
tition No. 13636/83 & 11760 66/84.
(Under Article 32 of the Constitution of India).
G. Ramaswamy, A.K. Ganguli, M.K. Ramamurthy, Kapil Sibal, R.K. Garg, section Srinivasan, D.K. Garg, Ms. A. Subha shini, B. Parthasarthi, C.V. Subba Rao, M.A. Krishnamurthy, V. Shekhar, H.S. Mann, Ms. Chandan Krishnamurthy and Ms. Kamini Jaiswal for the appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are applications under Article 32 of the Constitution.
Petitioner No. 1 in the first Writ Petition is the 341 National Union of All India Radio Staff Artists; petitioner No. 2 is an Announcer of the All India Radio and happens to be the General Secretary of the Union; petitioners No. 3 to 8 are an instrumentalist, a few news readers, announcers and the like.
The petitioners in the other writ petitions are seven in number consisting of six announcers and a tanpura player connected with the All India Radio.
According to the petitioners, the prevailing practice in All India Radio used to be to offer appointments to various people as Staff Artists at the first instance ordinarily for an initial term of three months and on completion of appropriate formalities appointments used to be offered for a term of three years on contract basis at a minimum monthly fee.
After the expiry of the initial period of two years out of the three years period of working which was considered as a period of proba tion contractual engagement up to the age of 55 years was being made available.
On selection, as alleged by the peti tioners Staff Artists used to be appointed to various posi tions like Announcer, News Readers, Conductor, Music Com pere, Instrumentalists, Producer and Script Writer in the All India Radio or Producer, Production Assistant, Script Writer, Translator and General Assistant in Doordarshan.
In May, 1982 the respondent Union of India bifurcated the Staff Artists into two categories like: (1) Staff Artists to be treated as artists; and (2) Staff Artists to be treated as Government Servants.
This decision was conveyed in a letter dated 3.5.82 and opportunity to exercise option to everyone by the end of December, 1983 for final allocation to the two categories was provided.
The letter stipulated that those of the Staff Artists who did not opt were to continue under the existing terms and conditions.
The first writ petition was filed on 12th December, 1983, challenging the Government 's order of 3.5.82 (Annexure 3) and for a direction to the respondents to treat the Staff Artists at par with regular Government servants and to restrain the respondents from enforcing their direction for exercise of option.
The other group of writ petitions was filed on 19th of March, 1984, the challenge therein was also to the same Government letter, and petitioners asked for a direction to the respondents to treat the Staff Artists as Government servants entitled to pensionary benefits.
A return was made to the rule in the first writ petition by filing an 342 affidavit by the Under Secretary, Ministry of Information and Broadcasting.
The respondents maintained that the Staff Artists did not form one homogeneous group and job require ments of the Staff Artists were different from post to post.
It was suggested that the Staff Artists could be convenient ly divided into two groups, namely, those who are appearing or performing before the micro phone and the others who are managing production and connected jobs.
It was also pointed out that all Staff Artists did not have the same terms as to remuneration.
It was suggested that the terms and conditions governing the Staff Artists after their transformation into Government servants became different.
In the interests of quality of broadcasting services, it was claimed, periodical assessments became indispensable and inevitable.
The affida vit further stated that the scheme which was enclosed to the letter marked Annexure 3 contained a scheme which had been evolved after due deliberations and there was no prejudice to the Artists if the scheme was allowed to become opera tive.
On the 25th of April, 1988, with special reference to the first writ petition and a connected civil appeal which is not before us at this stage, the Director General of All India Radio sent the following communication to the respond ent 's lawyer with a request that the same may be placed before the Court.
The letter stated: "Under the directions of Hon 'ble Court, the Government have further examined the aspects of the scheme for artist cate gory to safeguard the rights of the Staff Artists from any arbitrary factors in respect of discharge of duties under their contract of service renewable after satisfactory performance of their services.
After careful examination, the Government have now set up three types of committees to protect the rights of the staff artist from any arbitrary factors which are as under: A. Since the renewal of contract is automatic if the records are satisfactory, it would be best to leave it to the Sta tion Director or the Head of the Office concerned to review the contract after verification of the records.
In case, the records are not satisfactory, the question of renewal of contract may be considered by a Review Commit tee/Representation Committee as under: B(i) Review Committee (Both for AIR/Doordarshan) 343 (i) Station Director Chairman (ii) Two outside Assessors Members who have expertise in the field to which the Artists belong.
B(ii) Representation Committee (Both for AIR/Doordarshan) (i) Director General Chairman Addl.
Director General (Programme) (ii) Deputy Director Member General (Administration) (iii) Representatives of Member the Ministry of Information and Broadcasting.
I am to request that a Government Counsel may please be briefed accordingly to place the facts before the Honourable Court in the hearing today, i.e., dated 25th April, 88 at 2 P.M." On the basis of what transpired in Court after referring to the said letter, this Court on that date made the following order: "In Civil Appeal No. 384 of 1977 Union of India vs
M.A. Chowdhary, AIR 1987 Supreme Court 1526 we have declared that all the Staff Artists of All India Radio are holding civil posts under the Government and they are governed by Article 311(2) of the Constitution of India.
In view of the above decision it is no longer necessary to make any further declaration in these petitions that the Staff Artists are Government servants.
The Circular dated 3rd May 1982 beating No. 45011/26/80/B(A) issued by the Ministry of Information and Broadcasting, Government of India proceeded on the assumption that the Staff Artists who had entered the service of the All India Radio/Doordarshan under the contracts were not Government servants and that only those Staff Artists specifically mentioned in that Circular could become and be treated as Government 344 Servants provided they satisfied the conditions mentioned therein.
In view of the decision referred to above it has now become necessary for the Government to review the entire question covered by the Circular dated 3rd May, 1982.
We, therefore, direct the Government of India to review the entire situation and to prepare a fresh scheme in accordance with law having regard to the nature of duties performed by each category of Staff Artists.
While preparing such a scheme the Government may also keep in view the cases of Staff Artists who have already exercised their option as provided by the circular dated 3rd May, 1982.
Such scheme shall be prepared on or before 31.7.1988.
After the scheme is prepared a copy of it shall be made available to all the parties to this case.
The parties aggrieved may file objec tions before this Court within August 15, 1988.
This case shall come up for directions on 5th September, 1988.
" In terms of the direction given on the 25th of April, 1988, a draft scheme framed by the Government has been produced before the Court along with an accompanying affidavit.
Paragraph 2 of the said scheme states: "In pursuance of the above mentioned orders, those Staff Artists who opted for becoming 'Government Servants ' and were found fit by duly constituted Screening Committee were treated as Government Servants with effect from 6.3. 1982.
Such Staff Artists were made entitled to the same pensionary benefits as are applicable to Government Servants.
They were, however, not entitled to any special benefits avail able to them as Staff Artists.
Likewise, Staff Artists in the 'Artists ' category.
who opted for being treated as 'Artists ' and come over to the new terms and conditions were treated as 'Artists ' with effect from 6.3.1982.
" Paragraph 3 provides: "The following categories of Staff Artists/Artists in All India Radio/Doordarshan are, however, still to be treated as Government Servants: 345 (i) Staff Artists who opted for 'being declared as 'Government Servants ' but were not found fit by the Screen ing Committee; (ii) Staff Artists who opted for being treated as 'Artists ' category and were declared as 'Artists ' after screening by the Screening Committee '; (iii) Staff Artists who opted for being treated as 'Artists ' but were not found fit by the Screening Committee for being treated as 'Artists ' and (iv) Staff Artists who did not opt for being treat ed as 'Government Servants ' or for being treated as 'Art ists '.
The scheme further indicates: "4.
The Government has reconsidered the entire Scheme in the light of the judgment of the Hon 'ble Supreme Court delivered on 25.4.1988 in Writ Petitions Nos.
13636 of 1983 and 11760 66 of 1984 in National Union of All India Radio and Others .v.
Union of India.
In partial modification of this Ministry 's letter No. 45001/26/80 B(A) dated 3.5.1982 and No. 45011/26/80 B(A) dated 26.8.1983, it has been decided as under: (i) All Staff Artists/Artists working in All India Radio and Doordarshan (except foreign nationals) will be deemed as Government Servants holding civil posts on pre scribed Central Government scales of pay.
(ii) All such Staff Artists/Artists working in All India Radio and Doordarshan will be entitled to pensionary and other benefits on the same terms and conditions as are applicable to other Government Servants holding civil posts.
They will be governed by all rules and regulations and general instructions issued by Government from time to time like FR and SR, GFR, CCS (CCA) Rules, CCS (Conduct) Rules and Pension Rules etc.
All facilities/ benefits avail able to regular Central Government employees will be auto matically applicable to them also on the same terms and conditions as are applicable to regular Central Government servants.
However, any special bene 346 fit/concession available to such Staff Artists/Artists of AIR and Doordarshan, in so far these are not in accordance with rules and regulations and general instructions applica ble to Central Government servants, will be withdrawn from the date of issue of these orders.
(iii) The date of retirement on superannuation in respect of such Staff Artists/Artists of All India Radio and Doordarshan deemed as Government Servants will be the same as applicable to holders of civil posts in Central Govern ment.
(iv) The contribution of such Staff Artists/Art ists working in AIR and Doordarshan made to Contributory Provident Fund (CPF) along with interest thereon will be transferred to their General Provident Fund (GPF).
The Staff Artists/Artists working in AIR and Doordarshan deemed as Government Servants will continue to be in their existing categories and grades with regular pay scales.
The future recruitment to each grade will be made according to the Recruitment Rules as per procedures prescribed for recruitment to different posts.
The posts held by the Staff Artists/Artists working in All India Radio and Doordarshan will stand converted into civil posts from the date of issue of these orders.
" The order made by this Court on 25th of April, 1988, was not a final judgment and this Court had directed the Union of India to review the entire situation and to prepare a fresh scheme in accordance with law having regard to the nature of duties performed by each of the categories of Staff Artists.
Obviously, the intention of the Court while making the order dated 25th April, 1988, was to have the scheme placed before the Court for consideration.
Though the scheme has been styled as a draft scheme, its contents indicate that it has been implemented.
The main objection of the petitioners against the present scheme is the stipulation therein that the Staff Artists will be taken as Government servants from the date of the order.
According to them, the Allahabad High Court had in its decision dated 12th of July, 1974, given a declaration that all the Staff Artists were Government servants and the said decision was affirmed by this Court in a judgment dated May 7, 1987, reported in ; Union of 347 India vs M.A. Chowdhary.
It is the contention of the peti tioners that the benefit of conversion or declaration should be effective from 12.7.1974 and those who were in employment then as Staff Artists should be considered as Government from this date and others who joined after 12.7.74 should be conferred the status of Government servants from the date of joining.
There is also a claim by the petitioners to pension for those who have retired after 12.7.1974 and prior to the present scheme.
It is the further contention of the peti tioners that while formulating the present scheme the Court 's direction of 25th of April, 1988, has not been strictly kept in view.
Reliance has been placed on this Court 's order dated 3rd April, 1984, where it was indicated that failure of Staff Artists to exercise the option should not prejudice their right in any manner and either a fresh opportunity to exercise the option should be given or even in the absence of option the same benefits should be given.
Some of the objections which have been raised and are no ticed above seem to be germane and require consideration.
This Court 's order of 25th April, 1988, requiring a fresh scheme to be formulated obviously meant that the exercise of option in terms of the order dated 3rd May, 1982, was not taken to be the final date for exercise of option.
Opportu nity to exercise fresh option should have been given or perhaps the new scheme could have accepted the position that unless one wanted to be not absorbed he should have been deemed to be accepting absorption.
As in the changed setting the class of Staff Artists was really intended to be done away with in due course, such a deeming base should have been accepted for convenient implementation.
One class of Staff Artists engaged under contracts wants such status to continue.
Otherwise stated, they do not want the contractual base to be changed into employment.
While dealing with the Artists as a class it is neces sary that their special status be borne in mind.
It is a class of people who are indeed specially privileged either by natural gift or by their own culturing of the article This category of people cannot be equated with ordinary Govern ment servants for every purpose.
The All India Radio and the Doordarshan in their normal functioning would to a consider able extent depend upon qualitative and efficient artists in order to make their programmes reach the desired level.
The scheme necessarily contemplates a transitional period.
The age old practice of the job of the Staff Artists being contractual (whether short or long) is being given up and contractual employment is being substituted by status based Government service.
If there are really efficient Artists of different 348 classifications who do not want to be branded as Government servants, there is no immediate justification for discontin uing and disturbing them in toto.
The transitional period could be elongated to accommodate the appropriate category of Artists not willing to be absorbed as Government serv ants.
Of late, Government themselves are having a re look at the matter.
It is their stipulation that All India Radio and Doordarshan should be made into autonomous corporations and for that purpose legislation is in the process.
What is in contemplation is contrary to what is in the scheme.
This means that the matter is still in a fluid stage.
It is, therefore, appropriate that either a deeming position should have been accepted in the scheme as indicated above or a fresh opportunity for exercise of option should have been provided.
Again, the demand of the above group of artists should have also been considered.
The question of deeming the employees as Government servants from the date of the Allahabad High Court 's judg ment is another issue which requires examination.
Connected with it would be the question of entitlement to pension.
We are of the view that these are aspects which should first be initially examined by a Committee to be set up by the Gov ernment and after a definite view is taken it would be open to the petitioners to approach the appropriate Court to redress the remaining grievances, if any.
The matter is such that administrative scrutiny instead of judicial determina tion would be more helpful.
We, therefore, refrain from expressing any final view.
We reiterate that the order dated 25th of April, 1988, intended a draft scheme to be drawn up for consideration of the Court.
The scheme as produced in the Court along with the accompanying affidavit has also been described as a draft scheme.
The objections raised by the petitioners to the said scheme are available on the record.
We direct that in the appropriate Ministry a High Power Committee be set up for examination of the objections with reference to the terms of the scheme and the final decision be taken by the Government within six months.
The views expressed in the present decision be taken into ac count while dealing with the objections for purposes of finalising the scheme.
Liberty is given to the aggrieved parties when final decision is taken by Government to move the Court.
These writ petitions are disposed of with these directions.
No costs.
Y. Lal Petition disposed of.
| IN-Abs | Staff Artists of All India Radio/Doordarshan, after complying with the initial requirements, used to be appoint ed to various positions like Announcer, News Readers, Con ductor, Music Compere, Instrumentalists, Producer and Script Writer etc., on contract basis upto the age of 55 years.
In May 1982, Union of India bifurcated the Staff Artists into two categories like (i) Staff Artists to be treated as artists and (ii) Staff Artists to be treated as Government Servants.
These two sets of writ petitions have been filed by the Staff artists challenging the said Government deci sion conveyed through circular dated 3.5.1982 and calling upon the staff to exercise option by the end of December, 1983 for final allocation to the two categories aforesaid.
In the first writ petition direction is sought to the re spondents to treat the Staff Artists at par with regular government servants and to restrain the respondents from enforcing their direction in regard to their exercise of option and in the other writ petition, the petitioners have asked for a direction to treat the staff artists as govern ment servants entitled to pensionary benefits.
The Court by its order dated 25.4.1988, on perusal of the letter together with the scheme, Sent by the Director General of All India Radio and following its earlier deci sion in Civil Appeal No 384 of 1977 Union of India vs
M.A. Chowdhary; , declared that all the staff artists of All India Radio are holding civil posts under the Government, and they are governed by Article 311(2) of the Constitution and accordingly inter alia directed the Govern ment of India to review the entire situation and to prepare a fresh scheme in accordance with law having regard to the nature of duties performed by each category of staff artists and further directed the case to come up for directions on 5.9.1988.
Thereafter the Government of India formulated a scheme in compliance with the courts order and submitted it to the Court.
340 Disposing of the writ petitions with directions, this Court, HELD: While dealing with the Artists as a class it is necessary that their special status be borne in mind.
It is a class of people who are indeed specially privileged either by natural gift or by their own culturing of the article This category of people cannot be equated with ordinary Govern ment servants for every purpose.
[348F] The All India Radio and the Doordarshan in their normal functioning would to a considerable extent depend upon qualitative and efficient artists in order to make their programmes reach the desired level.
[348G] The age old practice of the job of the staff artists being contractual (whether short or long) is being given up and contractual employment is being substituted by status based Government service.
If there are really efficient Artists of different classifications who do not want to be branded as Government servants, there is no immediate justi fication for discontinuing and disturbing them in toto.
[348H; 349A] Administrative scrutiny instead of judicial determina tion would be more helpful.
The Court therefore directed that in the appropriate Ministry a High Power Committee be set up for examination of the objections with reference to the terms of the scheme and the final decision be taken by the Government within six months.
The views expressed in the present decision be taken into account while dealing with the objections for purpose of finalising the scheme.
[349E; F G]
|
ivil Appeal No. 698 of 1980.
From the Judgment dated the 2.5.1979 of the Kerala High Court in M.F.A. 346 of 1978.
M.M. Abdul Khader, Darshan Singh and Praveen Kumar for the Appellant.
P.S. Poti, P.K. Pillai (N.P.), T.T. Kunnhikannan and Ms. Malini Poduval for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
This appeal by leave from a Full Bench judgment of the Kerala High Court raises a short question of construction of the plain words of a term 'private forest ' as defined in a statutory enactment called "The Kerala Private Forest (Vesting and Assignment) Act, 197 1 (called shortly "The Vesting Act").
The High Court has decided the question in favour of the State and against the appellant.
The judgment of the High Court has since been reported in AIR 1980 Kerala 137.
The view expressed by the High Court has been subsequently affirmed by another Full Bench in State of Kerala vs Malayalam Plantation Ltd., AIR 1981 Kerala 1 and reiterated by a larger Bench of five Judges in State of Kerala vs
K.C. Moosa Haji & Ors., , Losing the construction argument, the appellant has appealed to this Court.
The facts of the case are immaterial for the purpose of this judgment, save to state in the barest outline that the appellant is the Rayon Silk Manufacturing Company registered in the State of Madhya Pradesh.
One of its industrial under takings is located in Bilakootam, Mavoor in Kozhikode Dis trict, Kerala State.
This establishment pro 405 duces Rayon Grade Pulp, using Bamboo Eucalyptus and other species of wood as basic raw material.
It has a large euca lyptus plantation coveting thousands of acres, maintained as captive raw material for use in the factory.
The State says that as a consequence of the Vesting Act, the eucalyptus 8plantation being a private forest and not excluded there from is vested in the State with no fight, title and inter est subsisting with the company.
The claim of the company, however, is that the term 'private forest ' as defined under the Vesting Act, excludes the eucalyptus plantation. 'Private forest ' has been defined in the Vesting Act as well as under the Kerala Land Reforms Act (Act 1 of 1964) as amended by Amendment Act 35 of 1969 ("The KLR Act").
Since counsel for the appellant largely depends upon the judicial construction of the definition of 'private forest ' in the KLR Act, it is necessary that we should set out hereunder both the definitions placed alongside with each other: THE KERALA PRIVATE FORESTS THE KERALA LAND REFORMS (VESTING AND ASSIGNMENT) ACT (ACT 1 OF 1964) AS ACT, 1971 AMENDED BY THE KERALA LAND REFORMS (AMENDME NT ACT 35/1969) (Act 26 of 1971) (AS AMENDED BY ACT 5 OF 2.
Definitions.
In this 1978) Act unless the context otherwise requires 2.
Definitions: In this Act (47) 'private forest ' unless the context otherwise means a forest which is requires not owned by the Govern ment but does not inclu de (f) 'private forest ' means (1) in relation to the Mala (i) areas which are waste bar district referred to in and are not enclaves sub section (2) of Section within wooded areas; 5 of the (ii) areas which are gardens or nilams; (Central Act 37 of 1956) (i) any land to which the (iii) areas which are Madras Preservation of Pri planted with tea, coffee, vate Forests Act, 1949 (Madras cocoa, rubber, cardomom Act XXVIII of 1949) applied or cinnamon; and immediately (iv) other areas which are culti 406 before the appointed day excluding vated with (A) Lands which are gardens or pepper, arecanut coco nilams as defined in the Kerala nut, cashew or other Land Reforms Act, 1963 (1 of fruit bearing trees or 1964) are cultivated with any other agricultural crop;.
(B) Lands which are used princi pally for the cultivation of tea, coffee, cocoa, rubber, cardomom, or cinnamom and lands used for any purpose ancillary to the cultiva tion of such crops or for the pre paration of the smae for the market.
Explanation Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops; (C) lands which are principally cultivated with cashew or other fruit bearing trees or are princi pally cultivated with any other agricultural crop; (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings; (ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, inclu ding waste lands which are encla ves within wooded areas.
407 (2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas.
Explanation: For the purposes of this clause, a lane shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;" We may first examine the scope of the definition of 'private forest ' under Section 2(47) of the KLR Act.
It means a forest which is not owned by the Government, excluding thereby four kinds of areas specified under sub clauses (i) to (iv).
The latter part of sub clause (iv) contains the words" . .
Other areas cultivated with any other agricultural crop".
The terms 'agriculture ' and 'agricultural crop ' have wider as well as narrower connotation.
The wider concept covers both the primary or basic as well as the subsequent operations.
It takes within its fold among other things, the products of the land which have some utility either for consumption or for trade and commerce including forest products such as timber, sal and piyasal trees, casuarina plantations, tendu leaves, horranuts etc.
(See: Commis sioner of Income Tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy, ; at 156.
Of course there must be present all throughout the basic idea that there must be cultiva tion of land in the sense of tilling of the lands, sowing of the seeds, planting and similar work done in the land.
The forest growth or spontaneous growth of any product, plants or trees, however, would be outside the characteristic of agricultural products or operations.
In Malankara Rubber and Produce Co. vs State of Kerala & Ors., ; , this Court while examining the scheme of KLR Act with particular reference to Chapter III therein observed that 'lands under eucalyptus or teak which are the result of agricultural operations normally would be agricultural lands, but not lands which are covered by eucalyptus or teak growing spontaneously as in a jungle or a forest. ' This is the wider concept of agricultural crop, perhaps attributed to the latter part of sub clause (iv) of the definition under Section 2(47) of the KLR Act.
The latter part of sub clause (iv) of Section 2(47) of the KLR 408 Act, counsel for the appellant contended, is practically the same as the second limb of sub clause (C) of Section 2(f)(1)(i) of the Vesting Act.
It was claimed that since eucalyptus plantation is covered by the expression 'any other agricultural crop ' in Section 2(47) sub clause (iv) of the KLR Act, Section 2(f)(1)(i) sub clause (C) of the Vest ing Act with similar words must also carry the same meaning.
It was emphasised that the KLR Act and the Vesting Act constitute a Code of agrarian reform and they are cognate legislations with the Vesting Act as supplementary to the KLR Act.
The expression 'any other agricultural crop ' used in both the enactments while defining 'private forest ' must therefore, receive the same meaning as otherwise, it would lead to anomalies.
This is the line of argument for the appellant.
This whole line of arguments with respect, is hard to accept.
As Felix Frankfurter, J. said: "Legislation is a form of literary composition.
But construction is not an abstract process equally valid for every composition, not even for every composition whose meaning must be judicially ascertained.
The nature of the composition demands awareness of certain presuppositions .
And so, the significance of an enactment, its antecedents as well .,as .its later history, its relation to other enactments, all may be rele vant to the construction of words for one purpose and in one setting but not for another.
Some words are confined to their history; some are starting points for history. 'Words are intellectual and moral currency.
They come from the legislative mint with some intrinsic meaning.
Sometimes it remains unchanged.
Like currency, words sometimes appreciate or depreciate in value".
The learned Judge further stated: "Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government.
That aim, that policy is not drawn, like nitrogen, out of the air; it is evinced in the language of the statute, as read in the light of other external manifestations of purpose.
That is what the Judge must seek and effectuate.
" (See: Courts, Judges and Politics by Walter F. Murphy: 'Some Reflections of the Reading of Statutes ' by Felix Frankfurter).
Judicial interpretation given to the words defined in one statute does not afford a guide to construction of the same words in another statute unless the Statutes are pari materia legislations.
In the present case, the aim and object of the two legislations are not similar in the first place.
Secondly, the definition of 'private forest ' in the KLR Act is not just the same as the definition of 'private forest ' in the Vesting Act.
Indeed, there is a vast differ ence in between the two.
The object of the Vesting Act was to provide for the Vesting in the Government 409 of private forest in the State of Kerala for the assignment thereof to the agriculturists and agricultural labourers for cultivation.
The preamble of the Act provides that such agricultural lands should be so utilised as to increase the agricultural production in the State and to promote the welfare of the agricultural population in the State.
Two separate definitions have been provided in the Vesting Act; the first is applicable to the Malabar district where the Madras Preservation of Private Forests Act, 1949 ( 'The MPPF Act ') applied immediately before the appointed day; the second concerned is in relation to the remaining areas in the State of Kerala.
The definition of 'private forest ' as is applicable to the Malabar district is not general in terms but limited to the areas and lands to which the MPPF Act applied and exempts therefrom lands described under sub clauses (A) to (D).
This significant reference to MPPF Act in the definition of 'priVate forest ' in the Vesting Act makes all the difference in the case.
The MPPF Act was a special enactment.
It was enacted by the erstwhile Madras State to preserve the private forests in the district of Malabar and erstwhile South Kannara District.
The Scheme of that Act has been explained by several decisions of the Kerala High Court and that scheme appears to be that if the land is shown to be private forest on the date on which the MPPF Act,came into force, it would continue to be a forest, even if there was subsequent replantation.
(See: State of Kerala vs Anglo American D.T.T. Co., and State of Kerala vs K.C. Moosa Haji, (supra) (FB) AIR at 154 155.) It is not in dispute that the lands involved in this appeal were all forests as defined in the MPPF Act, 1949 and continued to be so when the Vesting Act came into force in 1971.
In Malankara case (supra), this Court was not con cerned with the lands covered by the MPPF Act, and denuded thereafter of forest growth and cultivated with fresh re plantation.
Therefore, it seems inappropriate to transplant the meaning accorded to 'private forest ' from the KLR Act to the Vesting Act.
That wide concept cannot fit into the new legal source.
In State of Kerala vs Gwalior Rayon Sm.
(Wvg.) Co. Ltd.; , 1, this Court while upholding the constitutional validity of the Vesting Act has observed that the Forest Lands in the State of Kerala has attained a peculiar character owing to the geography and climate and the evidence available showed that the vast areas of these forests are still capable of supporting a large agricultural plantations.
That much is clear from the following observa tions (at 683): "It is therefore, manifest that when the legislature stated in 410 the preamble that the private forests are agricultural lands, they merely wanted to convey that they are lands which by and large could be prudently and profitably ex ploited for agricultural purposes.
" There is thus a judicial recognition of the distinction between private forest in Travancore Cochin area in Kerala State and the private forest in Malabar district.
This distinction by itself is sufficient to dispel the anomalies suggested by counsel for the appellant.
Look at the definition.
Sub clause (A) refers to gardens or nilams as defined in the KLR Act. 'Garden ' means lands used principally for growing coconut trees, arecanut trees or pepper vines or any two or more of the same. 'Nilam ' means lands adapted for the cultivation of paddy.
Sub clause (B) deals with what may be called plantation crops, cultiva tion of which in the general sense would be cultivation of agricultural crops.
Such agricultural crops are by name specified.
Lands used for any purpose ancillary to such cultivation or for preparation of the same for the market are also included thereunder.
Next follows sub clause (C).
It first refers to lands which are principally cultivated with cashew or other fruit bearing trees.
It thus refers to only the fruit beating trees.
It next refers to 'lands which are principally cultivated with any other agricultural crop.
If the legislature had intended to use the term 'agricultur al crop ' in a wide sense so as to take within its fold all species of trees fruit beating or otherwise, it would be unnecessary to have the first limb denoting only the cashew or other fruit beating trees.
It may be significant to note that the Legislature in each sub clause (A) to (C) has used the words to identify the different categories of crops or trees.
The words used in every sub clause too have "associa tions, echoes and overtones".
While construing such words, judges must, as Felix Frankfurter, J., said "retain the associations, hear the echoes and capture the overtones" (supra p. 414).
When so examined and construed, we do not discover any indication that the words in sub clause (C) "any other agricultural crop" are quite wide enough to comprehend all species of trees including eucalyptus planta tions.
It is said, indeed rightly, that in seeking legislative intention, judges not only listen to the voice of the legis lature but also listen attentatively to what the legislature does not say.
Let us compare the wordings in Section 3 with those of sub clause (C).
Under Section 3 sub section (1), private forests vest in Government.
Sub clause (2) however, excludes from such vesting lands within the ceiling limits 411 applicable to an owner if they are under his personal culti vation.
Cultivation for this purpose "includes cultivation of trees or plants of any species".
The explanation to sub section (2) makes this aspect beyond doubt.
The lands used for the cultivation of any kind of tree, fruit bearing or yielding only timber or pulp are not vested under Section 3 sub section (2).
The legislature has thus excluded from vesting under Section 3 sub section (2) the trees of every variety.
But while providing for exclusion under sub clause (C), the legislature could not have again thought of trees or plants of all kinds.
It seems to have considered only fruit bearing trees and not of other species.
If the inten tion was otherwise, the sub clause(C) would have been in a different language.
In our view as a matter of pure construction untram melled by authority, the words used in the latter part of sub clause (C) could not take within its fold all varieties of trees and it could exclude only fruit bearing trees.
This is also the conclusion of the High Court not only in the impugned judgment under appeal but also in the subse quent two decisions; Malayalam Plantation Limited and K.C. Maosa Haji cases (supra).
In the result the appeal fails and is dismissed.
In the circumstances of the case, however, we make no order as to costs.
T.N.A. Appeal dis missed.
| IN-Abs | The appellant company was maintaining a large eucalyptus plantation for captive consumption in its production of Rayon Grade Pulp.
The State of Kerala claimed that as a consequence of the Kerala Private Forests (Vesting and Assignment) Act, 1971, the eucalyptus plantation being a 'private forest ' stood transferred to and vested in it.
The company resisted the State 's claim on the ground that the term 'private forest ' excludes the eucalyptus plantation.
The High Court decided the question in favour of the State and against the appellant.
402 In the appeal to this Court, it was contended on behalf of the appellant that since the eucalyptus plantation was covered by the expression 'any other agricultural crop ' in section 2(47)(iv) of the Kerala Land Reforms Act, 1963 the similar expression used in section 2(f)(1)(i)(C) of the Vesting Act, 1971 must also carry the same meaning.
Dismissing the appeal, this Court.
HELD: 1.
Judicial interpretation given to the words defined in one statute does not afford a guide to construc tion of the same words in another statute unless the stat utes are pari materia legislations.
[408G] 1.1 The definition of 'private forest ' in the Kerala Land Reforms Act is not just the same as the definition of 'private forest ' in the Vesting Act.
Indeed, there is a vast difference between the two.
Two separate definitions have been provided in the Vesting Act; the first is applicable to the Malabar district where the Madras Preservation of Pri vate Forests Act, 1949 applied immediately before the ap pointed day; the second concerned is in relation to the remaining areas in the State of Kerala.
The definition of 'private forest ' as is applicable to the Malabar district is not general in terms but limited to the areas and lands to which the Madras Preservation of Private Forests Act ap plied, and exempts there from lands described under sub clauses (A) to (D).
This significant reference to this Act in the definition of 'private forest ' in the Vesting Act makes all the difference in the case.
The scheme of this Act appears to be that if the land is shown to be private forest on the date on which the Act came into force, it would continue to be a forest, even if there was subsequent re plantation.
[408H; 409A D] 1.2 The lands involved in this appeal were all forests as defined in the Madras Preservation of Private Forests Act and continued to be so when the Vesting Act came into force.
Therefore, it seems inappropriate to transplant the meaning accorded to 'private forest ' from the Kerala Land Reforms Act to the Vesting Act.
[409E F] State of Kerala vs Anglo American D.T.T. Co., and State of Kerala vs
K.C. Moosa Haji, A.I.R. referred to.
Malankara Rubber and Produce Co. vs State of Kerala & Ors.
, ; , Held inapplicable.
403 State of Kerala vs Gwalior Rayon Silk Mfg.
(Wvg.) Co. Ltd.; , , referred to.
The term 'agriculture ' and 'agricultural crop ' have wider as well as narrower connotation.
The wider concept covers both the primary or basic as well as the subsequent operations.
It takes within its fold among other things, the products of the land which have some utility either for consumption or for trade and commerce including forest products such as timber, sal and piyasal, trees, casuarina plantations, tendu leaves, coconuts etc.
Of course there must be present all throughout the basic idea that there must be cultivation of the land in the sense of tilling of the lands, sowing of the seeds, planting and similar work done in the land.
The forest growth or spontaneous growth of any product, plants or trees, however, would be outside the characteristic of agricultural products or operations.
[407D F] Commissioner of 1.
T. West Bengal vs Raja Benoy Kumar Sahas Roy, ; , referred to.
2.1 Under Section 3(1), private forests vest in Govern ment.
Subsection (2) however, excludes from such vesting lands within the ceiling limits applicable to an owner if they are under his personal cultivation.
Cultivation for this purpose 'includes cultivation of trees or plants of any species '.
The explanation to sub section (2) makes this aspect beyond doubt.
The lands used for the cultivation of any kind of tree, fruit bearing or yielding only timber or pulp are not vested under section 3 sub section (2).
The legislature has thus excluded from vesting under section 3 sub section (2) the trees of every variety.
But while pro viding for exclusion under sub clause (C) of section 2(f)(1)(i), the legislature could not have again thought of trees or plants of all kinds.
It seems to have considered only fruit bearing trees and not of other species.
Sub clause (C) refers to lands which are principally cultivated with cashew or other fruit bearing trees.
It next refers to lands which are principally cultivated with any other agri cultural crop.
If the legislature had intended to ' use the term 'agricultural crop ' in a wide sense so as to take within its fold all species of trees fruit bearing or other wise, it would be unnecessary to have the first limb denot ing only the cashew or other fruit bearing trees.
Therefore, there is no indication that the words 'any other agricultur al crop ' in sub clause (C) are quite wide enough to compre hend all species of trees including eucalyptus plantations.
These words exclude only fruit bearing trees.
[410H; 41 1A D] State of Kerala vs Amalgamated Malabar Estates, A.I.R. 1980 404 Ker. 137; State of Kerala vs Malayalam Plantation Ltd., A.I.R. 1981 Ker. 1 and State of Kerala vs
K.C. Moosa Haji & Ors., A.I.R. , approved.
In seeking legislative intention, judges not only listen to the voice of the legislature but also listen atten tively to what the legislature does not say.
[410G H]
|
vil Appeals Nos.
4885 91 of 1989.
From the Judgment and Order dated 21.9.
1989 & 6.10.1989 of the Punjab & Haryana High Court in C.W.P. No. 11218/89 and 12519, 12520, 12521, 12593, 12868 & 12463 of 1989.
P.H. Parekh, Manoj Swarup and J.P. Pathak for the Appellant.
Krishan Kumar and Mehta Dave & Co. for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
These appeals are directed against two Orders of the Punjab & Haryana High Court by which the High Court has directed the appellant Institute to admit respondent students 1 to 8B to its B .E. course irrespective of their merits.
The relevant admitted facts are that on May 24 and 25, 1989, respondent No. 9 Punjab University held a Com bined Entrance Test (C.E.T.) for admission to B.E. course (Session 1989 90) conducted by 4 different institutes in cluding the appellant Institute.
On June 26, 1989, the University declared the merit list of students who appeared in C.E.T. June 30, 1989 was the last date fixed for submit ting applications by students to individual institutes.
The students were given choice of the institutions and they were required to state their choice in order of preference.
The representatives from the 4 institutes met together at Chand igarh from 24th to 27th July 1989 to finalise the admissions tO the 4 institutes.
The meeting of the representatives of the 4 institutes was necessary to ensure that the students were given the institutes of their choice in the order of merit, subject, of course, to the students applying to the particular institutes and that the student did not get admission at more than one institute at a time.
The Commit tee of representatives interviewed the students and awarded them the institutes of their choice in the order of their respective merits.
Accordingly, the appellant Institute drew up its merit list of candidates.
Interviews were held in the respective institutes including the appellant Institute for filling up the reserved seats other than those 397 reserved for Scheduled Castes and Scheduled Tribes and also for filling up seats in general category which fell vacant subsequentIy as a result of the students leaving the appel lant Institute.
On August 14, 1989, a second round of inter views was held in all the institutes including the appel lant Institute for filling seats which fell vacant as a result of the students leaving the appellant Institute subsequently.
Incidentally, this was also the last date of admission to B.E. course as was notified in the prospectus of the appellant Institute.
However, the last date was extended to 25th August, 1989 by an advertisement in the newspaper, namely, Tribune published on August 19, 1989 wherein it was clearly mentioned that the admission to the course will be closed on August 25, 1989.
The advertisement was repeated in another newspaper, namely, the Times of India on August 20, 1989.
The appellantInstitute closed the admissions at 5.00 p.m. on August 25, 1989.
On this day, the position of the appellant Institute was that the last stu dent who was admitted to the B .E.
Course was at serial number 1127 in the merit list prepared by the University as per the results of the C.E.T 3.
On August 30, 1989, respondents 1 to 4 filed a Writ Petition No. 112 18/89 before the Punjab & Haryana High Court for a direction to the appellant Institute to extend its last date of admission and to admit them to the B.E. course in the appellant Institute alleging that six seats were lying vacant in the Institute.
In the meanwhile, as usual, the first test of the B.E. course was held by the appellant Institute after six weeks of the commencement of the course.
On September 19, 1989, the appellant Institute filed its written statement to the writ petition objecting to the maintainability of the petition against the appellant Institute as it was not a State within the meaning of Article 12 of the Constitution of India.
It was also pointed out in the written statement that since the past experience showed that some students left the Institute as soon as they got admission in the other institutes, the appellant Institute had admitted 10 additional students to the B.E. course.
The total seats available in the B.E. course in the appellant Institute were 180 and students at numbers 181 190 were admitted to meet this contingency.
It was also pointed out in the written statement that the last date of admission to the course was fixed by the appellant Institute taking into account the said past experience as well as to put a seal of finality on the process of admission which would otherwise continue indefinitely.
On September 20, 1989, the appellant Institute also filed a short affidavit in the writ petition stating therein that the admissions to the B.E. course had closed on 25th August, 1989 and no student had been 398 admitted thereafter.
It was also pointed out that regular classes had begun, and the first terminal examination had been held from 4th September, 1989 to 9th September, 1989 which carried weightage of about 30% marks.
Hence, the students admitted at the belated stage would not be able to cover up lecture attendance and no seat in excess of the total seats could be filled up.
On September 21, 1989, the High Court allowed the writ petition by proceeding on the assumption that more than half a dozen seats were lying vacant with the appellant Institute.
The High Court held that belated admissions were something that the students seeking such admissions would worry about rather than the appellant Institute.
The appel lant Institute was also directed to grant admissions to respondents 1 to 4 in the B.E. course forthwith.
As pointed out by the appellant Institute, on that day the factual position with regard to seats in the course was that out of 190 students who were granted admission, 12 students had left leaving a total strength of 178 students.
Since the last date for admission was August 25, 1989, 178 students had continued in the course with regular instructions and tests one of which was already held as stated earlier be tween 4th and 9th September, 1989, six weeks after the commencement of the course.
A further batch of Writ Petitions, namely, Writ Petitions Nos.
125 19, 12520, 1252 1, 12593, 12868, 12463 all of 1989 filed by respondents 5 to 8B respectively were allowed by the High Court on October 6, 1989 directing the appellant Institute to admit the respective respondents to the said course.
It also further appears that three other similar writ petitions filed by other students seeking admission to the course in the appellant Institute are pending before the High Court for preliminary hearing.
The appellant Institute further points out that the second test of the said course was scheduled to be held from 23rd to 28th October, 1989.
It is not disputed before us that whereas the last student admitted on merit in the appellant Institute was at serial number 1127 in the merit list prepared by the Univer sity as per the Combined Entrance Test, the respondent students were at the serial numbers in the said merit list, as follows: respondent No. 1 (1145), No. 2 (1147), No. 3 (116 1), No. 4 (1277), No. 5 (1259), No. 6 (1112), No. 7 (1266), No. 8 (1218), No. 8A (1189) and No. 8B (1245).
Thus it will be seen that except for respondent No. 6 who had not earlier applied for being admitted to the appellant Insti tute and had opted for some other Institute, all the re spondents had secured lower numbers in the merit list.
399 What is further, the students who were at a higher serial number of merit list were still waiting for admission to the appellant Institute, when the High Court directed the appel lant Institute to admit the respondent students.
What is more, even in their writ petitions before the High Court the respondent students had claimed no further relief than that they should be directed to be admitted to the appellantIn stitute according to their merit.
The relief claimed in Writ Petition No. 112 18/89 may be reproduced here by way of illustration: "this Hon 'ble Court may please to issue a Writ of Mandamus directing the respondents to extend the date of admission and to admit the petitioners in the B.E. course as per their merits;".
(emphasis supplied) The High Court further not only ignored the fact which was specifically pointed out in the appellant Institute 's affi davit in reply before it, that there were no seats available in the appellant Institute whose capacity was only 180 seats but also the fact that there were more meritorious students than the respondents as per the C.E.T. who could not secure admission and who were waiting to be admitted to the appel lant Institute.
The respondent students could get admission to the appellant Institute only if their comparative merits ordained it and not otherwise.
They could claim no merit over other meritorious students merely because they had approached the Court for securing admission.
There was further nothing wrong in the appellant Institute admitting 10 more students in the circumstances pointed out above.
The Institute has a capacity of only 180 students.
To meet the contingency of the students leaving it soon after admission they had admitted, as they do every year, 10 more students.
As it turned out, 12 of the students left leaving 178 students on the roll, with only 2 vacan cies.
The High Court could have directed only two students to be admitted and that too on merit.
Admittedly, there were more meritorious students than the respondents, waiting in queue.
The High Court thus travelled beyond its jurisdiction and not only directed more students than the Institute could absorb but also students who were less meritorious, to be admitted.
No reasons whatsoever have been given by the High Court for exercising its extraordinary writ jurisdiction so peremptorily which has resulted in injustice both to the appellantInstitute as well as to the students who stood higher in merit than almost all the respondent students except respondent No. 6.
We refrain from making any further comments on the impugned order.
400 8.
Since the respondent students stand already admitted, and the more meritorious students cannot now avail of the seats given to the respondents due to lapse of time, we do not propose to interfere with their pursuit of the course.
It is for this reason that we are dismissing the appeals.
In the circumstances, the appeals stand dismissed, but with no order as to costs.
G.N. Appeals dismissed.
| IN-Abs | For admission to B.E. Course (1989 90 Session) in the appellant Institute and 3 other institutes, there was a Combined Entrance Test held by the Punjab University.
The results were declared, and students allotted to the respec tive institutes of their choice.
The appellantInstitute drew up merit list of candidates allotted to it and gave admis sions in that order.
To fill up the vacant seats as a result of some students leaving the Institute, the appellant Institute held inter views on 14.8.1989, which incidentally was the last date for admission to B.E. Course.
However, the last date was extend ed up to 25.5.1989.
When admission was closed on that day, the last student admitted was at section No. 1127 in the merit list prepared by the University.
Respondents 1 to 4 filed a writ petition before the High Court on 30.8.1989, alleging that six seats were vacant and the appellantInstitute be directed to admit them.
The High Court on 21.9.1989 allowed the writ petition on the assump tion that six seats were vacant, whereas only 2 seats were available, according to the appellantInstitute.
Respondents 5 to 8B also approached the High Court by way of writ petitions and the High Court directed the appel lant Institute to admit the six Respondents also in the B.E. Course.
Further, three other similar writ petitions were pending before the High Court.
395 Against the above said orders of the High Court, the appellantInstitute has preferred these appeals contending that the last candidate admitted was at section No. 1127 in the merit list and admittedly all the Respondents except Re spondent No. 6 were less meritorious, while candidates with higher merits were still waiting for admission.
It was contended that while there were only 2 vacant seats, the High Court has directed the appellant Institute to admit as many as ten candidates, that too long after the course started and the First Terminal Exams were over.
Dismissing the appeals, this Court, HELD: 1.1 The High Court not only ignored the fact which was specifically pointed out in the appellant Institute 's affidavit that there were no seats available in the appel lant Institute whose capacity was only 180 seats, but also the fact that there were more meritorious students than the Respondents as per the Combined Entrance Test, who could not secure admission and who were waiting to he admitted to the appellant Institute.
The Respondent students could get admission to the appellant Institute only if theft compara tive merits ordained it and not otherwise.
They could claim no merit over other meritorious students merely because they had approached the Court for securing admission.
In fact, in their writ petitions before the High Court, the respondent students had claimed no further relief than that they should be directed to be admitted according to their merit.
[399B E] 1.2 There was nothing wrong in the appellant Institute admitting 10 more students in B.E. Course.
The Institute has a capacity of only 180 students.
To meet the contingency of the students leaving it soon after admission the appellant Institute had admitted 10 more students as has been done every year.
As it turned out, 12 of the students left leav ing 178 students on the roll, with only 2 vacancies.
The High Court could have directed only two students to be admitted and that too on merit.
Admittedly, there were more meritorious students than the respondents, waiting in queue.
The High Court thus travelled beyond its jurisdiction and not only directed more students than the Institute could absorb but also students who were less meritorious to he admitted.
No reasons whatsoever have been given by the High Court for exercising its extraordinary writ jurisdiction so peremptorily which has resulted in injustice both to the appellant Institute as well as to the students who stood higher in merit than almost all the respondentstudents except Respondent No. 6.[399E H] 396 2.
Since, however, the respondent students stand already admitted, and the more meritorious students cannot now avail of the seats given to the respondents due to lapse of time, their pursuit of the course is not interfered with.
[400A]
|
Appeal No. 401 of 1956.
Appeal by special leave from the judgment and order dated March 8, 1956, of the Travancore Cochin High Court at Ernakulam in I.T.R. No. 24 of 1954.
A. V. Viswanatha Sastri, section R. Ganapathy Iyer, J. B. Dadachanji and G. Gopalakrishna, for the appellant.
K. N. Rajagopala Sastri, R. H. Dhebar and D. Gupta, for the respondent.
October 7.
The Judgment of the Court was delivered by SARKAR J.
The appellant who was a Superintendent of Police in the service of the former Travancore State, retired sometime in 1940.
After retirement he was spending his time in studying Vedanta philosophy and expounding the same to such persons as were keen on understanding it.
He soon gathered about him a number of disciples, one of whom was J. H. Levy of London, U.K. Levy along with others used to receive instructions in Vedanta from the appellant.
He used to come to Travancore from England at regular intervals and stay there for a few months at a time and attend the discourses given by the appellant and so had the benefit of his teachings on Vedanta.
Levy had an account in Lloyd 's Bank at Bombay.
On December 13, 1941, Levy transferred the entire balance standing to his credit in this account amounting to Rs. 2,41,103 11 3, to the credit of an account which he got the appellant to open in his name in the 135 same bank.
Thereafter, from time to time Levy put in further sums into the appellant 's aforesaid account in Lloyds Bank, Bombay.
It appears that the payments so made up to August 19, 1951, amounted to about Rs. 4,50,000/ .
From time to time the appellant got moneys transferred from his account at the Lloyd 's Bank, Bombay, to his account in a bank at Trivandrum in Travancore.
This appeal arises out of orders for assessment to income tax passed against the appellant for the assessment years 1122, 1123 and 1124, all according to the Malayalam era.
The respective accounting periods according to the Gregorian calendar were from August 17, 1945, to August 16, 1946, August 17, 1946, to August 16, 1947, and August 17, 1947, to August 16, 1948.
It appears that during these periods Levy bad deposited in the appellant 's account at Lloyd 's Bank in Bombay the following respective sums: Rs. 13,304/ , Rs. 29,948/ and Rs. 19,983/ .
During the same periods the appellant had obtained transfers of the following respective sums from his Bombay account to his Trivandrum account: Rs. 81,200/ , Rs. 47,000/ and Rs. 37,251/ .
The Income tax Officer, Trivandrum, assessed the appellant to tax on the latter amounts as foreign income, i.e., income arising in India, and brought into Travancore State in the relevant periods.
We are not concerned in this case with the assessment made on other income of the appellant.
Tile appellant appealed from these assessment orders to the Appellate Assistant Commissioner who consolidated them into one appeal.
The Appellate Assistant Commissioner dismissed the appeal and confirmed the orders of the Income tax Officer.
The appellant then went up in appeal to the Appellate Tribunal but that appeal also failed.
The appellant thereafter obtained an order from the Tribunal referring the following Questions to the High Court of Travancore Cochin for decision: (i) Whether the aforesaid receipts from John H. Levy constitute income taxable under the Travancore Income tax Act, 1121 ? and 136 (ii) Whether there are materials for the Tribunal to hold that the deposits into the assessee 's bank.
account in Bombay by John H. Levy from 1941 as aforesaid represented income that accrued to the assessee outside Travancore State ? " The High Court answered the first question in the affirmative.
It however answered the second question in favour of the appellant, holding that he was carrying on a vocation or occupation in that State and the income derived therefrom should be considered as having arisen in Travancore, and that therefore the appellant was liable to be taxed not on the amounts which he brought into Travancore but on the amounts which had been paid to the credit of his account at Bombay by Levy during the relevant periods.
The appellant has now come up to this Court in appeal by special leave against the answer given by the High Court to the first question.
We are not concerned in this appeal with the answer given to the second question as it had been decided in favour of the appellant and there has been no appeal against it by the revenue authorities.
We do not think that the case presents any difficulty.
It has to be decided on the terms of the Travancore Income tax Act, 1121 (Malayalam Era), but as the provisions of that Act are, for.
the present purpose, identical with those of the Indian Income tax Act, 1922 , it would be more convenient to refer to the provisions of the latter.
Mr. Sastri, appearing for the appellant, has stated that the case involves really two points.
First, was the appellant carrying on a vocation ? And secondly, if he was, can the amounts with which we are concerned, be said to be profits or gains of the vocation ? We agree with his view of the case and proceed to discuss these points.
The first question is, whether the appellant was carrying on a vocation.
Under section 10 of the Income tax Act, 1922, tax is payable by an assessee in respect of the profit or gains of any profession or vocation carried on by him.
The facts found are that the appellant was studying Vedanta philosophy himself and 137 imparting the knowledge acquired by him as a result of his studies to such as cared to come and imbibe it.
There is no evidence to show, that the appellant had made it a condition that he would impart such knowledge only to those who were prepared to pay for it.
We have therefore to proceed on the basis that the appellant was teaching his, disciples Vedanta without any motive or, intention of making a profit out of such activity.
We find no difficulty in thinking that teaching is a vocation if not a, profession.
It is plainly so and it is not necessary to discuss the various meanings of the word. 'vocation ' for the purpose or to cite authorities to support this view.
Nor do we find any reason why, if teaching is a vocation, teaching of Vedanta is not.
It is just as much teaching, and therefore, a vocation, as any other teaching.
It is said that in teaching Vedanta the appellant was only practicing religion.
We are unable to see why teaching of Vedanta as a matter of religion is not carrying, on of a vocation.
In any case the question does not really arise, for, Whether the appellant was, in teaching Vedanta, practicing religion, is of course a finding of fact.
It may be that Vedanta could be taught as a practice of religion but it could of course also be taught as any other philo sophy or school of thought.
The statement of case in this.
case does not contain any finding that in teaching Vedanta the appellant was practicing religion.
It is said that in order that an activity may be called a vocation for the purposes of the Act, it has to be shown that it was an organised activity and that it was indulged in with a motive of making profit ; that as the appellant 's activity in teaching Vedanta was neither organised nor performed with a view to making profit, he could not be said to.
be carrying on a vocation.
It is said that as the word 'vocation ' has been used along with the words 'business and profession ' and the object of a business and a profession is to make a profit, only such activities can be included in the word 'vocation ' the object of which likewise is to make a profit.
We think that these contentions 18 138 lack substance.
We do not appreciate the significance of saying that in order to become a vocation an activity must be organised.
If by that a continuous, or as was said, a systematic activity, is meant, we have to point out that it is well known that a single act may amount to the carrying on of a business or profession.
It is unnecessary to discuss this question further as we find no want of system or continuity in the activity of the appellant.
He had gathered a large number of disciples around him and was instructing them in Vedanta regularly.
Levy came all the way from England at regular intervals to obtain such instructions.
All this clearly indicates Organisation and system.
Again, it is well established that it is not the motive of the person doing an act which decides whether the act done by him is the carrying on of a business, profession or vocation.
If any business, profession or vocation in fact produces an income, that is taxable income and none the less because it was carried on without the motive of producing any income.
This, we believe, is too well established on the authorities now to be questioned.
It was decided as early as 1888 in the case of the Commissioner of Inland Revenue vs Incorporated Council of Law Reporting(1) and followed ever since, that " it is not essential to the carrying on of a trade that the people carrying it on should make a profit, nor is it even necessary to the carrying on of the trade that the people carrying it on should desire or wish to make a profit".
If that were not so, a person carrying on what otherwise would be a business, may say that he did not carry on a business because it was not his intention to make any income out of it.
That would, of course, be absurd.
The question is, whether the activity has actually produced an income and it matters not whether that activity is called by the name of business, profession, vocation or by any other name or with what intention it was carried on.
The observation of Rowlatt, J., in Stedeford vs Beloe (2) to which we were referred by Mr. Sastri, that there could be no tax on pension granted to a retired (1) (1888)3 Tax Cas. 105, 113.
(2) 139 headmaster as "there is no background of business in it ", was clearly not intended to lay down that without a profit motive there could be no business, profession or vocation.
The pension could be taxed only if it had arisen out of the office and the only point decided was that it had not so arisen as the headmaster held no office, having retired earlier, at the date the pension had been granted: see the same case in the House of Lords(1).
We think therefore that the teaching of Vedanta by the appellant in this case can properly be called the carrying on of a vocation by him.
Then the other point to be decided is, whether the payments made by Levy were income received by the appellant from his vocation of teaching Vedanta.
A very large number of authorities, both Indian and English, have been pressed upon us in tile course of the argument.
These cases illustrate the application of the well settled principle that in the case of a voluntary payment, no tax can be levied on it if it bad been made for reasons purely personal to the donee and unconnected with his office or vocation while it will be taxable if it was made because of the office or vocation of the donee.
We do not consider it profitable to discuss them in this case.
Also it seems to us that the present case is too plain to require any authority.
The only point is, whether the moneys were received by the appellant by virtue of his vocation.
Mr. Sastri contended that the facts showed that the payments were purely personal gifts.
He drew our attention to the affidavit of Levy where it is stated " all sums of money paid into his account by me have been gifts to mark my esteem and affection for him and for no other reason".
But Levy also there said, " I have had the benefit of his teachings on Vedanta ".
It is important to remember however that the point is not what the donor thought he was doing but why the donee received it.
So Collins M. R. in Herbert vs McQuade referring to Inland Revenue vs Strong said at p. 649: " Now that judgment,.
whether or not the (1) (2) (3) 140 particular facts justified it, is certainly an affirmation of a principle of law that a payment may be liable to income tax although it is voluntary on the part of the persons who made it, and that the test is whether, from the standpoint of the person who receives it, it accrues to him in virtue of his office ; if it does, it does not matter whether it was voluntary or whether it was compulsory on the part of the persons who paid it.
That seems to me to be the test; and if we once get to this that the money has come to or accrued to, a person by virtue of his office it seems to me that the liability to income tax is not negatived merely by reason of the fact that there was no legal obligation on the part of the persons who contributed the money to pay it.
" It is well established that in cases of this kind the real question is, as Rowlatt J. put it in Reed vs Seymour (1), " But is it in the nature of a personal gift or is it a remuneration?", an observation which was quoted with approval by Viscount Cave, L. C. when the case went up to the House of Lords with the addition " If the latter, it is subject to the tax ; if the former, it is not ": see Seymour vs Reed (2).
We find it impossible to hold in this case that the payments to the appellant had not been made in consideration of the teaching imparted by him.
Levy admitted that he had received benefit from the teaching of the appellant.
It is plain to us that it was because of the teaching that the gift had been made.
It is true that Levy said that he made the gifts to mark his esteem and affection for the appellant.
But such emotions and therefore the gifts, were clearly the result of the teaching imparted by the appellant.
Mr. Sastri contends that that may be so, but we have no right to follow the successive causes and as a result thereof link the gift with the teaching.
An argument of this kind seems to have been advanced in Blakiston vs Cooper (3) and dealt with by Lord Ashbourne in the following words: "It was suggested that the offerings, were made as personal gifts to the Vicar as marks of esteem and (1) (2) (3) (1909) A.C. 104.
141 respect.
Such reasons no doubt played their part in obtaining and increasing the amount of the offerings, but I cannot doubt that they were given to the vicar as vicar.
and that they formed part of the profits accruing by reason of his office.
" We have no doubt in this case that the imparting of the teaching was the causa causans of the making of the gift; it was not merely a causa sine qua non.
The payments were repeated and came with the same regularity as Levy 's visits to the appellant for receiving instructions in Vedanta.
We do not feel impressed by Mr. Sastri 's contention that the first payment of Rs. 2,41,103 11 3 was too large a sum to be paid as consideration.
In any case we are not concerned in this case with that payment.
We are concerned with payments which are of much smaller amounts and as to which it has not been said that they were too large to be a consideration for the teaching.
And one must not forget, that these are cases of voluntary payments and the question of the appraisement of the value of the teaching received in terms of money is not very material.
If the first payment was too big to have been paid for the teaching received, it was too big to; have been given purely by way of gift.
In the view that we take, namely, that the payments with which we are concerned, were income, arising from the vocation of the appellants a teacher of Vedanta, no question of exemption under section 4(3)(vii) of the Act arises.
In order that a payment may be, exempted under that section, it has to be shown that it did not arise from the exercise of a vocation.
In the result, we have come to the conclusion that this appeal fails and it is dismissed with costs in this Court.
Appeal dismissed.
| IN-Abs | The assessee was teaching his disciples Vedanta philosophy without any motive or intention of making a profit out of such activity.
One of his disciples made gifts of money to him on several occasions.
It was contended by the assessee that he was not liable to tax on the amounts received as he was not carrying on any vocation and as the receipts were not profits or gains.
Held that, in teaching Vedanta the assessee was carrying on a vocation.
It is not necessary for an activity to be a vocation 134 that it should be an organised activity or that it should be practiced with a motive for making profit.
Commissioner of Inland Revenue vs Incorporated Council of Law Reporting, , 113, followed.
Held, further, that the payments made by the disciple, were income received by the assessee from his vocation.
In the case of a voluntary payment, no tax can be levied on it if it had been made for reasons purely personal to the donee and unconnected with his office or vocation but it will be taxable if it was made because of the office or the vocation of the donee.
The question is not what the donor thought he was doing but why the donee received it.
In the present case it is plain that it was because of the teaching that the gift had been made.
|
ON: S.L.P. (Criminal) No. 2485 of 1989.
From the Judgment and Order dated 12.12.1989 of the Delhi High Court in C.W.P. 589 of 1989.
Harjinder Singh and R.N. Joshi for the Petitioner.
Soli J. Sorabjee, P.K. Goswamy, Udai Lalit, C.V.S. Rao, P. Parmeshwaran and Sushma Suri for the Respondents.
The Judgment of the Court was delivered by REDDY, J.
This is a petition under Article 136 of the Constitution of India against the judgment and order of the High Court of Delhi dismissing the writ petition filed on behalf of the detenu challenging the detention.
Notice was given and after hearing counsel for both the parties at length the matter is being disposed of at the admission stage.
The detenu was detained under Section 3(1) of the Con servation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as 'the Act ') by an order dated 13.7.89.
On 7.6.89 Officers of Directorate of Revenue Intelligence, New Delhi intercepted a Maruti Car in which one Mahesh Kumar Chauhan and three others were present but no recovery was effected on the spot.
But later on the Car was thoroughly rummaged in presence of two independent witnesses and the occupants of the car and 206 foreign marked gold biscuits of ten tolas each were recovered from the cavities of the car meant for fitting speakers in the rear portion of the car.
The occupants did not give any explanation for the possession of gold biscuits.
On personal search of Mahesh, a slip was recovered which contained a telephone number and Mahesh Kumar in his statement admitted that he was to hand over the smuggled goods to one Vijay Kumar.
The premises of these two peoples were searched and a receipt of token tax in respect of the car was recovered.
Mahesh Kumar admitted that he was visiting Dubai frequently to bring con 320 sumer goods and gold ornaments for being sold in the local market.
One Avtar Singh who was engaged in smuggling of foreign gold biscuits, agreed to sell the gold biscuits to Mahesh Kumar on commission.
He also gave some more details about Avtar Singh.
Similarly Vijay Kumar also made a state ment.
From these statements it is also revealed that peti tioner herein Sanjeev Kumar Aggarwal had made arrangements for selling the gold biscuits.
The residential premises of the petitioner was searched and he was taken into custody.
The officers of the Directorate of Revenue Intelligence questioned the petitioner and he gave a statement.
On the basis of this material the detaining authority passed an order of detention on 13.7.89 and the same was served on 24.7.89.
The grounds were also served in time.
The learned counsel submitted that there is a total non application of mind by the detaining authority inasmuch as he was failed to note that the detenu was in jail and that there is no possibility of his being released and the failure on the part of the detaining authority to consider the same renders the detention invalid.
It is true that the petitioner was in judicial custody in connection with crimi nal proceedings.
An application was filed in the court of A.C.M.M. Delhi for extending the remand and the remand was granted upto 6.7.89.
However, two detenus who figured as co accused in that criminal proceedings were also in the judicial custody and on their behalf an application for bail was filed.
As mentioned in the grounds of detention the detaining authority has noted these circumstances.
In para graph No. 16 it is mentioned that: 'I am aware that all of you are under judicial custody and possibility of your release on bail in near future cannot be ruled out.
Also nothing prevents Mahesh Kumar Chauhan, Vijay Kumar Dharne and you from moving bail application and get ting release on bail." Then in paragraph No. 24 it is mentioned thus: "From the foregoing facts and circumstances and statements recorded in this connection as disclosed herein above, it is evident that you have engaged yourself in abetting the smuggling of goods unless prevented you will continue to do so in similar manner or otherwise in future when released on bail.
" The further submission of the learned counsel is that the petitioner 321 alongwith two others were in judicial custody and they were further remanded upto 20.7.1989 and no bail application was filed or pending as on the date of passing orders of deten tion.
Therefore it must necessarily be inferred that there is no awareness on the detaining authority of this aspect.
Reliance is placed on some of the decisions of Supreme Court of India in this context.
In Abdul Razak Abdul Wahab Sheikh vs
S.N. Sinha, Commis sioner of Police, Ahmadabad and Anr., ; it is held that there must be awareness in the mind of the detain ing authority that the detenu is in custody at the time of service of order of detention and that cogent and relevant material and fresh facts have been disclosed necessitating making of an order of detention.
In the course of the judg ment it is noted that the detaining authority also was not aware that application for bail filed on behalf of the detenu was rejected by the designated court and therefore, there was no application of mind.
In Binod Singh vs District Magistrate, Dhanbad, 16 it is laid down "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.
In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail.
There is no indica tion 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." In Vijay Kumar vs State of Jammu and Kashmir, ; 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.
But in the case before us the detaining authority has noted in the grounds that the petitioner alongwith other two coaccused have been remanded to judicial custody and the bail applica tion was filed on behalf of the other two detenues and there is every likelihood of the petitioner also being released on bail and as such the possibility cannot be ruled out.
The other material relied upon by the detaining authority in apprehending that the detenus are likely to be released on bail is that their remand to the judicial custody was upto 20.7.89 and that the other two co accused have also filed bail applications and they were pending and that this mate rial is sufficient to indicate that petitioner also may file bail application and is likely to be released on bail.
322 We have carefully examined the material relied upon by the detaining authority in this regard and we are of the opinion that it cannot be said that there was no awareness in the mind of the detaining authority about the detenu being in custody and that if he is released on bail he is likely to indulge in the prejudicial activities.
At this juncture we may also notice another decision of the Supreme Court.
In Ramakrishna Rawat vs District Magistrate, Jabal pur, , the detention order was upheld since 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 in respect of the detenu that he was in custody.
The learned counsel, however, submitted that in case the bail application is filed, the same can be opposed or even if enlarged the same can be questioned in a higher court and that a mere bald statement that the person would repeat his criminal activities after release would not be enough.
In Smt.
Shashi Aggarwal vs State of U.P. and Ors.
, ; it is observed: "The possibility of the court granting 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 detenu, if enlarged on bail, would act prejudicially to the interest of public order.
" This is a case of detention on the ground of likelihood of disruption of public order by the detenu.
The detention order shows that the order had been made only on the sole ground that the detenu was trying to come out on bail.
Learned counsel also relied upon the decision in Ramesh Yadav vs District Magistrate, Etah & Ors., wherein it is observed: "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 National Security Act should not ordi narily be passed.
If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised.
" 323 But as already held in the instant case the detaining au thority was not only aware that the detenu was in jail but also noted the circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to engage himself in the smuggling of goods.
There fore the detention was not ordered on the mere ground that he is likely to be released on bail but on the ground that the detaining authority was satisfied that the detenu was likely to indulge in the same activities if released on bail.
At this stage it is useful to refer to another impor tant decision rendered by the Constitution Bench in Ramesh war Shaw vs District Magistrate, Burdwan, ; , wherein the detention order was served while the detenu was in custody.
The detenu was in jail by virtue of a remand order.
The Constitution Bench considered the effect of the detenU 's subsisting ' detention and it was indicated that the detenu 's subsisting detention did not by itself invalidate the detention order but facts and circumstances justifying the order of preventive deten tion notwithstanding his custody were necessary to sustain such an order.
It is observed in the said case that: "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 detention a few days before the person is likely to be released.
The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person atter his release is necessary . " It was further observed that: "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 m jail, will always have to be determined in the circumstances of each case.
" The principles laid down by the Constitution Bench are followed in a number of subsequent decisions.
In Alijan Mian vs District Magistrate, Dhanbad, [1983] 4 SCC 301 the detention order was upheld even though the detenu was in jail custody on the date of passing of the detention order because the 324 detention order showed that the detaining authority was alive to the fact yet it was satisfied that if the detenu was enlarged on bail, which was quite likely, he could create problems of public order.
In N. Meera Rani vs Government of Tamil Nadu & Anr., [ 18 all these earlier cases have been referred to extensively and the conclusions are deduced as follows: "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 the public order etc.
ordinarily it is not needed when the detenu is already in custody; the de taining 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 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 pint 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.
" In one of the latest judgments of this Court in Shri Dhar mendra Suganchand Chelawat etc.
vs Union of India and Ors.
JT , once again all the authoritative pro nouncements including that of the Constitution Bench in Rameshwar Shaw 's case are referred to and the Bench which consisted of three Judges observed thus: "The decisions referred to above led to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justi fying such detention despite the fact that the detenu is already in detention.
The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent materi al before the detaining authority on the basis of which it may be 325 satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
" It could thus be seen that no decision of this Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances.
Therefore the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail.
We have already, in the instant case, referred to the grounds and the various cir cumstances noted by the detaining authority and we are satisfied that the detention order cannot be quashed on this ground.
Learned counsel, however, strongly relied on Smt.
Shashi Aggarwal 's case and Ramesh Yadav 's case and contended that in the instant case also the bail application could be opposed if moved or if enlarged the same can be questioned in a higher court and on that ground the detention order should be held to be invalid.
In N. Meera Rani 's case a Bench of three Judges noted the above observations in Smt.
Shashi Aggarwal 's case and Ramesh Yadav 's case and it is said that they were made on the facts of those particular cases and the Bench also observed thus:.
"A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw case.
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 are made.
None of the observations made in any subsequent case can be construed at variance with the principle indicated in Ra meshwar Shaw case for the obvious reason that all subsequent decisions were by benches comprised of lesser number of judges.
We have dealt with this matter at some length be cause 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.
" 326 AS a matter of fact, in Shri Dharmendra Suganchand Chela wat 's, case there is a reference to Smt.
Shashi Aggarwal 's, case and Ramesh Yadav 's, case and a Bench of three Judges following the decision of the Constitution Bench in Ramesh war Shaw 's Case, laid down the above principles which we have already referred to.
Therefore we see no force in the submission.
The next submission of the learned counsel is that the detaining authority has not applied his mind properly in rejecting the representation made by the detenu.
It is submitted that in Annexure X 3, an application sent by Vijay Kumar, the co detenu, it is clearly mentioned that his statement was recorded under torture and duress.
Likewise in Annexure X 4, a petition filed in the Court of A.C.M.M.
New Delhi, it is complained that the statement was recorded under torture and duress.
According to the learned counsel, this petition as well as the medical reports of the Doctors who examined Vijay Kumar have not been referred to and considered by the authority while rejecting the representa tion.
Reliance is also placed on a judgment of the Delhi High Court in Sat Pal Manchanda vs
M.L. Wadhawan and Ors., (Criminal Writ No. 333 of 1986) decided on 30.10.86.
In that case it is held that all the relevant material should be taken into consideration by the detaining authority while disposing of the representation.
But in the instant case the circumstances are different.
As a matter of fact, it is referred in paragraph 15 of the grounds that a telegram dated 8.6.89 was received in the Ministry of Finance alleg ing that the detenu was picked up by the DRI officers and that the allegations made therein were found false and baseless.
In paragraph 17, it is also mentioned that the detenu alongwith his accomplices retracted from their state ment dated 8.6.89.
It can therefore be seen that the detain ing authority has considered the allegations that the detenu was manhandled etc.
At any rate, the detaining authority has clearly noted that the detenu has retracted from the alleged statement, therefore it can not be said that there is non application of mind in this regard, namely, in considering the representation.
The same principle applies to the Advi sory Board also.
According to the submissions of the learned counsel, these documents were not placed before the Advisory Board in its meeting on 18.9.89.
Whatever statement was made by the petitioners on 22.6.89 prior to the detention and the grounds clearly disclose that there was retraction.
It must also be noted in this context that in the grounds in para graph 10 also it is mentioned that a telegram was received on 9.6.89) alleging about the wrongful arrest and extraction of the statements and the detaining authority has also taken note of the allegations made against the DRI officers which were round to 327 be false and baseless.
The same material was there before the Advisory Board.
Therefore there is no force in this submission.
It is lastly submitted that there was 11 days delay in serving the detention order.
It is true that the order of detention was passed on 13.7.89, but the same was served on 24.7.89.
According to the learned counsel, there is a viola tion of Section 3(3) of the Act.
The said provision lays down that for the purpose of Article 22(5) of the Constitu tion, the order should be served as soon as possible but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
Learned counsel for the State submitted that firstly the point of delay was not taken up in the special leave petition, there fore he had no opportunity to counter the same.
However, from the record he submitted that it took quite sometime for translating the documents to Hindi and Gurumukhi.
We have seen the documents filed before us and we are satisfied that there are valid and sufficient reasons for delay in serving the detention order.
Thus, we find no merit in anyone of the submissions.
The petition is, therefore, dismissed.
N.V.K. Petition dismissed.
| IN-Abs | The petitioner was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act by an order dated 13.7.1989.
The facts lead ing to his arrest and detention are: On 7.7.1989 officers of Directorate of Revenue Intelli gence New Delhi intercepted a Maruti Car in which one Mahesh Kumar Chauhan and three others were present.
On search of the car no recovery was made on the spot, but later on when the car was thoroughly rummaged in presence of two independ ent witnesses and the occupants of the car, 206 foreign marked gold biscuits of ten tolas each were recovered from the cavities of the car meant for fitting speakers in the rear portion of the car.
The occupants did not give any explanation for the possession of the.
said gold biscuits.
However on personal search of Mahesh, a slip was recovered which contained a telephone number and Mahesh Kumar in his statement admitted that he was to hand over the smuggled goods to one Vijay Kumar.
Mahesh Kumar admitted that he was visiting Dubai frequently to bring consumer goods and orna ments for being sold in the local market.
According to him one Avtar Singh who was engaged in smuggling of foreign gold biscuits, agreed to sell the gold biscuits to Mahesh Kumar on commission.
He also gave some details about Avtar Singh.
Similarly Vijay Kumar also made a statement.
From these statements it is also revealed that petitioner Sanjeev Kumar Aggarwal had made arrangements for selling the gold bis cuits.
the residential premises of the petitioner was searched and he was taken into custody.
The petitioner made a statement before the officers of the Directorate or Reve nue Intelligence.
On the basis of the material the detaining authority passed an order of detention on 13.7.1989 which was served on the petitioner on 24.7.1989.
The grounds of detention were also served on the petitioner in time.
318 The petitioner challenged his detention by means of a writ petition before the Delhi High Court, and having re mained unsuccessful, he filed this petition for Special Leave to Appeal against the order of the Delhi High Court dismissing his writ petition.
Before this Court two main points have been urged viz., (i) that there is a total non application of mind by the detaining authority inasmuch as he has failed to note that the petitioner was in jail, and that there was no possibili ty of his being released, and the failure to consider this aspect on the part of the detaining authority renders his detention invalid; and (ii) that the detaining authority has not applied his mind properly in .rejecting his representa tion and that there was delay in serving the detention order on him.
Dismissing the petition, this Court, HELD: Whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.
No decision of this Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances.
[326B] Section 3(3) of the Act lays down that for the purpose of Article 22(5) of the Constitution the order should be served as soon as possible but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
[320B] In the instant case from the record it was submitted that it took quite sometime for translating the documents to Hindi and Gurmukhi, and the Court is satisfied that there are valid and sufficient reasons for delay in serving the detention order.
[327C D] Abdul Razak Abdul Wahab Sheikh vs
S.N. Sinha, Commisioner of Police, Ahmedabad & Anr., ; ; Binod Singh vs District Magistrate, Dhanbad, ; ; Vijay Kumar vs State of Jammu & Kashmir, ; ; Ramakrishna Rawat vs District Magistrate, Jabalpur, ; Smt.
Shashi Aggarwal vs State of U.P. & Ors., ; ; Ramesh Yadav vs District Magistrate, Etah & Ors.
, ; Rameshwar Shaw vs District Magistrate Burdwan, ; ; Alijan 319 Mian vs District Magistrate, Dhanbad, [1983] 4 S.C.C. 301; N. Meera Rani vs Government of Tamil Nadu & Anr., ; Shri Dharmendra Suganchand Chelawat etc.
vs Union of India & Ors., J.T. Sat Pal Man chanda vs
M.L. Wadhawan & Ors., Crl.
Writ No. 333 of 1986, decided by Delhi High Court on 30.10.1986.
|
vil Appeal Nos.
4008 09 of 1985.
From the Judgment and Order dated 26.9.1983 of the Patna High Court in C.W.J.C. No. 1634 of 1977.
WITH C.M.P. Nos.
5513 14 and 19577 78 of 1988.
375 Shanti Bhushan and P.D. Sharma for the Appellants.
Tapesh Chandra Ray, D.P Mukherjee, R.P. Singh and S.N. Jha for the Respondents.
M.P. Jha for the Intervener. ' The Judgment of the Court was delivered by KULDIP SINGH, J.
The question for our consideration in these appeals is whether by an executive order the Bihar State Government can merge the cadre of District Engineers which is a part of "Rural Engineering Organisation" with the cadre of Executive Engineers governed by statutory rules called the Bihar Engineering Service Rules, 1939 (hereinaf ter called the 1939 Rules).
Necessary facts to determine the above question are as under: The cadre of District Engineers was created by the erstwhile District Boards in the State of Bihar.
The re cruitment and conditions of service of the said cadre were governed by the Government District Engineers Service Rules, 1957 (hereinafter called the 1957 Rules) which were framed under the Bihar and Orissa Local Self Government Act, 1885 (hereinafter called the Act).
Apart from the District Engi neers, a Rural Engineering Cell of the Public Works Depart ment was also functioning in 'the rural areas.
Bihar Govern ment by an order dated February 9, 1965, integrated the two into one organisation called "Rural Engineering Organisa tion" (hereinafter called REO).
The REO was an entirely new department headed by a Chief Engineer with the powers of Inspector of Local Works under the Act.
Two posts of Superintendent Engineers, 19 posts of District Engineers and number of other subordinate posts were created under the Chief Engineer.
In the new set up the cadre of District Engineers created under the 1957 Rules became almost extinct and assumed a new shape under the REO.
On the other hand, the cadre of Executive Engineers in Bihar Public Works Department was governed by the 1939 Rules.
Rule thereof is as under: "4.
Sources of recruitment Recruitment to the service shall be made 376 (i) by direct recruitment, and (ii) by promotion from the Bihar Engineering Service, Class II . . " The Bihar Government by a Memorandum dated February 18, 1977, decided to merge the cadre of District Engineers belonging to the REO with the cadre of Executive Engineers of the Public Works Department.
The operative part of the order is as under: "Therefore, in the public interest, the Government has decided that the cadre of the District Engineers be merged with the equivalent/parallel cadre of Executive Engineers of Public Works Department.
" Vinay Kumar Verma and others, who were working as As sistant Engineers in the Bihar Engineering Service, Class II, challenged the above mentioned merger order before the Patna High Court on the following grounds: (i) Under the 1939 Rules Assistant Engineers are eligible for promotion to the posts of Executive Engineers.
By merg ing the cadres, the chances of promotion of the Assistant Engineers are likely to be adversely affected and as such merger order is arbitrary and is liable to be quashed.
(ii) That the District Engineers ' service was constituted under the 1957 Rules flamed by the State Government in exercise of the powers under Sections 36(a) to 36(f) of the Act.
The cadre of Executive Engineers in the Public Works Department was created by the 1939 Rules.
The two cadres having been created under their respective statutory rules, the same cannot be merged by an executive order.
The compo sition of cadres created by the statutory rules cannot be changed by an executive order.
(iii) Under Rule 4(i) and 4(ii) of the 1939 Rules, recruit ment to the cadre of Executive Engineers can only be by direct recruitment and by way of promotion.
The merger of the District Engineers cadre with the Executive Engineers is thus contrary to the 1939 Rules and as such cannot be sus tained.
The High Court found that the chances of promotion of the 377 Assistant Engineers were in no way adversely affected by the merger as the District Engineers came to the cadre of Execu tive Engineers along with their posts.
The High Court fur ther held that the Assistant Engineers who were in the lower cadre could not challenge the merger specially when the same did not affect their rights in any manner.
On the other two points the High Court relied on Rule 56 of the Bihar Service Code, 1952 which is in the following terms: "56(a) The State Government may transfer a Government serv ant from one post to another . . " The High Court held that the Government has the power under the above quoted rule to transfer a Government servant from one cadre to another.
According to High Court even though the merger is not explicitly under rule 56(a) but since the power is there the District Engineers be deemed to have been transferred to the Public Works Department in terms of the said Rule.
The High Court dismissed the writ petitions of the Assistant Engineers.
This is how these two appeals by way of special leave are before us.
Mr. Shanti Bhushan, learned Senior Advocate, appearing for the appellants has reiterated the above mentioned three points in his arguments before us.
We agree with the High Court that the appellants, who were Assistant Engineers in Bihar Engineering Service, Class 11, were not affected adversely by the impugned order in any manner.
The District Engineers were merged in the cadre of the Executive Engineers along with the permanent posts which they were holding on the date of merger.
The cadre of the Executive Engineers was thus enlarged with the result that more vacancies would become available in future to be filled by way of promotion from the cadre of Assistant Engineers.
The merger would thus operate to their advantage rather than disadvantage.
The second point as projected by Mr. Shanti Bhushan does not arise in the facts and circumstances of the present case.
It is no doubt correct that initially the cadre of the District Engineers was constituted by the 1957 Rules which were framed under the 1885 Act, but by the time the impugned order was issued in the year 1977, it was operating 378 as an entirely different cadre created in the year 1965 as a part of REO.
The REO, which was new department, consisted of a Chief Engineer, two Superintending Engineers, 19 posts of District Engineers, number of Assistant Engineers and Over seers.
The District Engineers were no longer a provincia lised cadre under the District Boards as created by the 1957 Rules but was a new cadre operating under the REO.
We are, therefore, of the view that the cadre of District Engineers under the REO was created by the State Government by an executive order and as such the State Government could further merge the same with any other cadre by an executive fiat.
The third limb of the argument based on Rule 4(i) and 4(ii) of the 1939 Rules may now be examined.
It is not disputed that the District Engineers were equivalent in rank to the Executive Engineers.
The pay scales were also identi cal.
The two equivalent and parallel cadres were operating in two different fields.
To achieve administrative efficien cy the State Government wanted to merge these cadres.
The Executive Engineers were governed by the 1939 Rules which are statutory, whereas the District Engineers created by Government order dated February 9, 1965 did not have any statutory flame work.
The statutory cadre of Executive Engineers has not been interfered with.
It is operating under the 1939 Rules.
The District Engineers are being merged with Executive Engineers and not the vice versa.
Rule 4(i) and 4(ii) of the 1939 Rules do not come into picture at all.
It is not a question of appointment of an individual to the service.
A group of persons similarly situated is sought to be brought into the service.
The State Government can always increase the number of posts in the cadre of Execu tive Engineers.
What is being done by the impugned order is that the incumbents of the posts are also being brought into the cadre along with the posts.
The conditions of service of the existing members of service are not being altered or affected to their prejudice in any manner.
In fact none of the Executive Engineers has challenged the impugned order.
After merger the District Engineers would also be governed by the 1939 Rules.
The impugned order being a policy deci sion is in a way supplemental to the Rules and does not go contrary to any of the provisions of the Rules.
We therefore see no force in the arguments of Shri Shanti Bhushan.
The view which we have taken to uphold the impugned order, we 379 do not wish to express any opinion on the applicability and interpretation of Rule 56 of the Bihar Service Code, 1952 on which the High Court has relied.
The appeals fail and are dismissed with no order as to costs.
The Civil Miscellaneous Petition Nos.
55 13 14 of 1988 and 19577 78 of 1988 are also dismissed as having become infructuous.
P.S.S. Appeals dismissed.
| IN-Abs | Rule 4 of the Bihar Engineering Service Rules, 1939 provided for recruitment to the cadre of Executive Engineers in the Bihar Public Works Department by (i) direct recruit ment, and (ii) promotion from Class II Service.
The State Government by a memorandum dated February 18, 1977 merged with the cadre of Executive Engineers of the Public Works Department, the cadre of District Engineers functioning under the Rural Engineering Organisation.
The latter cadre was constituted by the State in 1965 by integration of the Rural Engineering Ceil of the Public Works Department and the cadre of District Engineers created by the erstwhile District Boards under the Government District Engineers Service Rules, 1957 framed under sections 36(a) to 36(1) of the Bihar and Orissa Local Self Government Act, 1885.
The appellants Assistant Engineers assailed the said merger before the High Court on the ground that it adversely affected their chances of promotion, that the District Engineers ' Service was constituted under the 1957 Rules framed under the 1885 Act whereas the cadre of Executive Engineers in the Public Works Department was created by the 1939 Rules, and, as such the two cadres having been created under their respective statutory rules the same could not be merged by an executive order, and that since under rule 4(i) and 4(ii) of the 1939 Rules recruitment to the cadre of Executive Engineers could only be by direct recruitment and by way of promotion, the merger of District Engineers ' cadre with the Executive Engineers was contrary to the 1939 Rules.
The High Court negatived their contentions.
Dismissing the appeal, the Court, HELD: 1.
The appellants, who were Assistant Engineers in the Bihar Engineering Service, Class II were not affected adversely by the merger in any manner.
The District Engi neers were merged in the 374 cadre of the Executive Engineers along with the permanent posts which they were holding on the date of merger.
The cadre of the Executive Engineers was thus enlarged with the result that more vacancies would become available in future to be filled by way of promotion from the cadre of Assistant Engineers.
The merger would thus operate to their advantage rather than disadvantage.
[378E F] 2.
The provincialised cadre of District Engineers under the District Boards was constituted by the 1957 Rules but in the year 1977 when merger took place the District Engineers constituted an entirely different cadre which was created in the year 1965 as a part of Rural Engineering Organisation.
It did not have any statutory frame work.
Since the cadre of District Engineers under the Rural Engineering Organisation was created by the State Government by an executive order the State Government could further merge the same with any other cadre by an executive fiat.
The Executive Engineers were governed by the 1939 Rules which are statutory.
Their statutory character has not been interfered with.
The Dis trict Engineers were being merged with Executive Engineers and not the vice versa.
[378H, 379B,379D] 3.
Rule 4(i) and 4(ii) of the 1939 Rules do not come into picture at all.
It was not a question of appointment of an individual to the Service.
A group of persons similarly situated in respect of rank and pay scale was sought to be brought into the Service along with their posts.
The State Government could always increase the number of posts in the cadre of Executive Engineers.
The conditions of service of the existing members of Service are not being altered or affected to their prejudice in any manner.
[379E F] 4.
The merger order being a policy decision is in a way supplemental to the Rules and does not go contrary to any of the provisions of the Rules.
[379F G]
|
ivil Appeal No. 1778 of 1990.
From the Judgment and Order dated 5.7.1988 of the Bombay High Court in Contempt Petition No. 106 of 1987.
P. Chidambaram, Ms. Raian Karanjawala, Mrs. Manish Karanjawala and Mrs. Meenakshi Arora for the Appellant.
K.S. Cooper, K. Parasaran, Anil B. Divan, A.S. Bhasme, P.H. Parekh, Sunil Dogra, Gopal Subramaniam, Ms. Indu Malho tra for the Respondents.
383 The Judgment of the Court was delivered by KANIA, J.
Leave granted.
The appeal is taken up for final hearing.
Counsel heard.
The short facts necessary for the disposal of the appeal are as follows: The appellant is the owner of a Bungalow known as "Villa Hormazd" at 8 A, Carmichel Road, Bombay.
The suit premises, comprising two floors of the said bungalow, were leased to Mayer Mills Ltd. under a lease deed dated April 16, 1948 for a period of three years from November 1, 1947.
At that time, the bungalow belonged to the father of the appellant.
On the death of the father of the appellant in 1949, the appellant became the landlady of the said bungalow.
Respondent No. 1, B .R.
Cotton Mills.
Ltd., is the successor in interest of Mayer Mills Ltd. and at the relevant time was in possession of the suit premises as a tenant.
Respondent No. 2 is the Chairman of respondent No. 1 and the other respondents are some of the Directors of respondent No. 1.
The appellant filed a suit being R.A.E. No. 763/ 6563 of 1966 in the Small Causes Court at Bombay for eviction of respondent No. 1 from the suit premises and for possession on the ground of rea sonable and bona fide requirement.
During the pendency of this suit, another suit for eviction was also filed by the appellant against respondent No. 1 for eviction on the ground of default in the payment of rent for a period of more than six months.
The Trial Court by its judgment dated September 13, 1975 decreed the aforesaid eviction suit R.A.E. No. 763/6563 of 1966 (hereinafter referred to as "the said suit") but the other suit for eviction filed by the appellant was dismissed in view of the eviction decree passed in the said suit.
Respondents nos.
1 and 2 filed an appeal against the decree for eviction but the said appeal was dismissed.
In February, 1986, the husband of the appel lant died and after that the appellant is the landlady of the said bungalow.
On the other hand, the appeal of the appellant against the dismissal of her other suit, for eviction on the ground of default in payment of rent was allowed and that suit was also decreed against respondent No. 1.
The respondent then filed a writ petition in the High Court at Bombay challenging the decrees for eviction passed by the Court of Small Causes as aforestated.
On February 27, 1987, respondent No. 2 filed a suit in the Court of Small Causes for a declaration that he was the lawful sub tenant of the suit premises and was not bound by the decrees of eviction passed in respect of the suit premises against the tenant, namely, respondent No. 1.
The said Writ Petition 384 No. 1066 of 1987 filed by respondent No. 1 challenging the decrees for eviction passed against respondent No. 1 in the said suits and confirmed in appeal came up for hearing before a learned Single Judge of the Bombay High Court on March 5, 1983.
The learned Judge by his judgment and order of the same date, dismissed the said writ petition.
The relevant part of the order of the learned Judge reads as follows: "The petitioner requests for time of eight weeks to vacate the premises.
He is granted the said time subject to execut ing written undertaking that he shall not part with the possession of the suit premises or create third party inter ests in the suit premises in the meantime in any manner whatsoever. ' ' On March 11, 1987, the matter was brought up again before the learned Single Judge by learned counsel for the appellant for pointing out that respondent No. 1 had not filed the requisite undertaking as directed under the order dated 5.3.
It appears that at that stage it was point ed out to the Court by Mr. Dalvi, learned counsel for the appellant that respondent No. 2 had filed a declaratory suit in the Court of Small Causes as aforestated claiming to be the sub tenant of the suit premises.
The order of the learned Judge dated March 11, 1987 shows that the learned Judge stated that he did not wish to take any action at that time on the conduct of respondent No. 1 but, as a last chance, granted respondent No. 1 time upto March 17, 1987 for furnishing the undertaking as ordered failing which it would be deemed that the condition was not fulfilled.
Re spondent No. 3, as a Director of respondent No. 1, by his affidavit, affirmed on March 17, 1987, gave an undertaking merely stating that respondent No. 1 would not commit any act contrary to or in breach of the order dated March 5, 1987.
It was pointed out by the appellant that this under taking was not in compliance with the orders passed by the learned Single Judge.
After some correspondence, respondent No. 3, by his affidavit affirmed on March 25, 1987 filed an undertaking on behalf of respondent No. 1 inter alia stating that respondent No. 1 would not part with the possession of suit premises or create any third party interest in the suit premises in any manner whatsoever.
The undertaking did not state that respondent No. 1 had not, before the undertaking was given parted with the possession of the suit premises or created any third party interest therein.
When the matter came up on March 31, 1987 before the learned Single Judge who had given time to respondent no 1 to vacate as afore stated, it was pointed out by learned counsel for the appel lant that the undertaking was objected to as it did not state that 385 respondent No. 1 was in possession.
Thereupon Shri R.J. Joshi, learned counsel for respondent No. 1 Company, stated that the undertaking spoke for itself and when it stated that respondent "shall not part with possession" it meant that respondent No. 1 company was in possession.
In view of this, the learned Judge did not give any further clarifica tion.
Respondent No. 1 preferred a special leave petition to this court against the judgment of the learned Judge dis missing the said writ petition but the said special leave petition was dismissed.
Thereafter the suit filed by re spondent No. 2 in the Court of Small Causes for a declara tion that he was the lawful sub tenant of the suit premises was dismissed but he preferred an appeal against the said decision and in that appeal obtained an interim injunction restraining the appellant from interfering with his posses sion of the suit premises.
In view of this, the decree for eviction could not be executed.
Thereafter in June 1987, the appellant filed Contempt Petition No. 106 of 1987 in the Bombay High Court setting out the facts and praying that the respondents should be punished under the provisions of the .
It has been inter alia alleged in the contempt petition by the appellant that in spite of the said undertaking, respondent No. 2 had filed a suit, being suit no.2911 of 1987 in the City Civil Court at Bombay claiming a declaration that the decree for possession was a nullity and for an injunction restraining the appellant from executing the decree and obtained an ad interim injunction a few days after the summary dismissal of the special leave petitions filed by the respondents in this Court as afore stated.
The said suit was thereafter dismissed for non prosecution but, in the meantime, respondent No. 2 filed the suit in the Court of Small Causes for a declaration that he was the lawful sub tenant of the premises as aforestated.
It was submitted by the appellant in the contempt petition that the said undertaking given by respondent No. 1 clearly implied that on the date of the undertaking, respondent No. 1 was in possession of the suit premises and in order to defeat the decree for possession, respondent No. 1 had set up its Chairman, respondent No. 2, to file the aforesaid suit in the Court of Small Causes claiming sub tenancy.
It was further submitted by the appellant that although re spondent No. 1 continued to be in possession of the suit premises it had set up respondent No. 2 to file the suit on the ground that he was in possession of the suit premises as a sub tenant in his own right and continued to be in posses sion thereof.
The learned Judge before whom the said con tempt petition came up for hearing took the view that in the order of the learned Single Judge dated March 5, 1987, he was unable to read any direction to file an undertaking to give possession.
He took the view that the aforesaid under taking given on behalf of respondent No. 1, that it would not with possession or create any third party interest in the suit premises, did not imply that respondent No. 1 was in actual physical possession of the suit premises and that the fact that respondent No. 2 was claiming an independent title in himself as a sub tenant by virtue of a Resolution of respondent No. 1 was not sufficient to hold that respondent No. 1 or the other respondents were guilty of contempt.
He took the view that there was no undertaking by respondent No. 1 to deliver possession of the suit premises and on the basis of these conclusions, he rejected the contempt peti tion.
At the same time the learned Judge did observe that respondent No. 1 may have indulged in sharp practices but held that it was not guilty of contempt.
The present appeal is directed against this order.
It was submitted by Mr. Chidambaram, learned counsel for the appellant that respondent No. 1 and respondent No. 2 were guilty of contempt and the learned Single Judge was in error when he took the view that no contempt was established in the matter against the respondents.
It was submitted by learned counsel that on 5th March, 1987 when the writ peti tion preferred by respondent No. 1 was summarily rejected by Justice Puranik of the Bombay High Court, learned counsel for respondent No. 1, on instructions, made an application to the learned Judge to grant respondent No. 1 time for eight weeks to vacate the suit premises.
This time was granted subject to respondent No. 1 executing an undertaking that he would not part with the possession of the premises or create third party interests therein as set out earlier.
After delaying the matter for some time, respondent No. 3 filed on March 25, 1987, an affidavit, as a director of respondent No. 1 wherein he set out inter alia that respond ent No. 1 agreed to give an undertaking as set out earlier as respondent No. 1 was desirous of approaching the Supreme Court to challenge the order of the learned Judge dismissing the writ petition.
It was submitted by Mr. Chidambaram that this undertaking clearly implied that respondent No. 1 was in possession of the premises and was in a position to hand over the vacant and peaceful possession of the suit premises after eight weeks, if the special leave petitions preferred by respondent No. 1 were dismissed or no interim relief was obtained thereunder.
This undertaking was taken note of by Justice Puranik when the case reached before him on March 31, 1987.
It appears that an objection was taken to the language of the said undertaking on the ground that it did not state that respondent No. 1 was in possession of the suit premises and thereupon, Mr. R.J. Joshi, learned counsel for respondent No. 1, stated that the undertaking spoke for itself and that when it stated that respondent No. 1 shall not part with the possession of the suit premises it 387 meant that respondent No. 1 was in possession of the prem ises.
It was submitted that this statement must have been made after taking proper instructions and that, by instruct ing its counsel to make the statement, respondent No. 1 had clearly attempted to mislead the Court and the appellant.
It was urged that, m any event, this undertaking clearly im plied that if no interim order was obtained by respondent No. 1 from this Court, respondent No. 1 would hand over the possession of the premises to the appellant.
This assurance/undertaking was false to the knowledge of the appellant, as by that time, respondent No. 2 had already filed a suit in the Court of Small Causes claiming sub tenancy from respondent No. 1 and had obtained an interim ex parte injunction restraining the appellant from executing the decree in her favour.
It was submitted that the record discloses that respondent Nos. 1 and 2 were acting in collu sion with a view to defeat the decree obtained by the appel lant and to prevent the execution of the decree.
It was contended on behalf of the appellant that the resolution of respondent No. 1 under which respondent No. 2 was claiming sub tenancy was fabricated and antedated.
It was, on the other hand, contended by Mr. Cooper, learned counsel for respondent No. 1 that no contempt was made out by the appellant in the matter.
He vehemently argued that the case for taking action in contempt, set up by the appellant, was one of civil contempt.
Under the provisions of sub clause (b) of section 2 of the , in order to establish civil contempt, the alleged contemner must be proved to be guilty of wilful disobedience to any judgment, decree direction, order writ or other process of a Court or wilful breach of an undertak ing given to a court.
He drew our attention to the statement contained in Halsbury 's Laws of England, Volume 9 IVth Edition, at para 66 (page 40) that the court will only punish as a contempt a breach of injunction if satisfied that the terms of the injunction are clear and unambiguous, that the defendant has proper.
notice of the terms and that breach of the injunction has been proved beyond reasonable doubt.
It was further submitted by him that there is no such thing in law as an implied contempt.
Learned counsel urged that, in the present case, there was no mandatory injunction or order given by the court to the effect that respondent No. 1 must vacate the premises after eight weeks from 5th March when the undertaking was agreed to be given.
It was submitted that even if a view was taken that, in these circumstances, respondent No. 1 must be held to have given an undertaking to give possession of the said suit premises to the appellant after the said period of eight weeks, there was no wilful breach on the part of respondent No. 1 in not complying with that undertaking as 388 it was respondent No. 2 who was claiming to be in possession of the said premises in his independent right as a lawful sub tenant and it was he who had obtained an interim injunc tion from the Small Causes Court.
It was urged by learned counsel that so far as respondent No. 2 was concerned he had not given any personal undertaking to the court.
It was submitted by learned counsel for all the respondents that before a court could take any action for contempt it must be strictly established that the contempt had been proved beyond reasonable doubt as an action for contempt was in the nature of a criminal proceeding.
Mr. Cooper drew our attention to the decision of this Court in The Aligarh Municipal Board & Ors.
vs Ekka Tonga Mazdoor Union and Others, [1970] 3 SCC p. 98 wherein it has been held that "In order to bring home a charge of contempt of Court for disobeying orders of Courts those who assert that the alleged contemners had knowledge of the order must prove that fact beyond reasonable doubt.
In case of doubt, however, benefit ought to go to the person charged." He further relied upon the decision of this Court in Babu Ram Gupta vs Sudhir Bhasin & Anr., [1979] 3 SCR p. 685 wherein a Bench of two learned Judges of this Court held that "it is not open to the Court to assume an implied undertaking when there is none on the record.
" We now propose to examine the facts appearing on the record in the light of the aforesaid submissions and deci sions.
What we do find on the record is that when the writ petitions filed by respondent No. 1 in the High Court were dismissed by Puranik, J. by his order dated 5th March, 1987, learned counsel for respondent No. 1 applied for time for eight weeks to vacate the premises and the learned Judge gave the said time to respondent No. 1 to vacate the prem ises subject to its filing a written undertaking that it would not part with the possession of the suit premises or create third party interest in the suit premises.
It may be that time to vacate was applied for as respondent No. 1 desired to file an appeal to the Supreme Court.
The fact, however, remains that, if the claim of respondent No. 2 is correct, on that day he was already a lawful sub tenant of the suit premises and occupying the same.
Respondent No. 2 was none other than the Chairman of respondent No. 1 compa ny.
It is, therefore, inconceivable that respondent No. 1 could have been unaware of the claim of respondent No. 2.
It is, therefore, apparent that respondent No. 1 clearly tried to mislead the court when it gave instructions through its officers to learned counsel appearing for respondent No. 1 to apply for time to vacate the premises and remained silent when time was given on the condition that a written under taking as aforestated would be filed, suppressing from the 389 court the fact that respondent No. 2 claimed to be the sub tenant of the said premises and we have no doubt that re spondent No. 2 must have been a party to this course of action.
After some hesitation, the written undertaking was filed as aforestated which clearly implied that respondent No. 1 was in possession of the suit premises and in a posi tion to hand over possession of the suit premises to the appellant after the period of eight weeks expired.
Respond ents Nos. 1 and 2 knew fully well that this was not possible unless respondent No. 2 gave up his claim which he had no intention of doing.
Further, on March 31, 1987 learned counsel for respondent No. 1 appeared in court and stated that the undertaking spoke for itself and when it stated that respondent No. 1 would not part with the possession of the premises it meant that respondent No. 1 was in fact in possession thereof.
As we have already pointed out respond ent No. 2 was and continued to be the Chairman of respondent No. 1; his nephew, Prem Kumar Gupta, who was residing in the said premises in 1973, according to the evidence given by him in the Court of Small Causes, was a Director of respond ent no,. 1 company.
After all, respondent No. 1 is a company and it can have no knowledge or intention other than .the knowledge and intention of the people who control it.
We have no doubt at all that it was respondent No. 2 who, along with some of his family members, was in full charge of the affairs of respondent No. 1 company.
In these circumstances, it appears clear to us that all the actions taken by the legal advisors and counsel of respondent No. 1 including, in particular, the giving of the aforesaid undertaking as well as the clarification given by learned counsel regarding the meaning of that undertaking as aforestated were with the fullest knowledge and consent of respondent No. 2.
It is impossible to maintain this dichotomy, for the purposes of the contempt petition, between respondent No. 1 and respond ent No. 2.
Respondent No. 2 knew fully well when he autho rised the giving of the undertaking on behalf of respondent No. 1 or consented to its being given that respondent No. 1 was in no position to hand over possession of the suit premises in execution of the decree because respondent No. 2 claimed to be in possession of the said premises and claimed subtenancy rights in the same and had no intention whatsoev er of giving up the claim.
In fact, the entire course of conduct adopted on behalf of respondent No. 1 was only with one aim in view and that was to frustrate or to at least delay indefinitely the execution of the decree which the appellant had obtained after the lapse of many years and after such sustained and lengthy legal proceedings which must have caused the appellant considerable expenses and anguish.
It is significant that till Mr. R.J. Joshi, the learned counsel, who gave the clarification in respect of the said undertaking was alive, no contention was ever 390 raised that the clarification was given by him without taking instructions or that respondent No. 1 or respondent No. 2 were not aware of the same.
It was only after the sudden demise of the learned counsel that this contention was first raised by respondent No. 1.
This conduct speaks volumes for the dishonest attitude adopted by respondents nos.
1 and 2.
Raising this contention after the death of Mr. R.J. Joshi can only be regarded as one more of the tricks which respondents nos.
1 and 2 have played throughout the case in order to defeat and delay the execution of the decree for possession against respondent No. 1.
In the circumstances set out earlier, although the learned Judge of the High Court might have felt constrained by what he considered to be the limits of his jurisdiction in a contempt proceeding, we feel that our hands are not so tied and, where there is patent dishonesty on the part of respondents Nos. 1 and 2 writ large on the face of the record, the law does not require that we should sit back with folded hands and fail to take any action in the matter.
We find that under clause (1) of Article 142 of the Constitution, it is provided that this court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it and any decree so passed or order so made shall be enforced throughout the territory of India in the manner set out therein.
In the circumstances which we have already set out earlier, we are of the view that re spondent No. 1 is guilty of misconduct amounting to contempt and must be held to have committed contempt by giving the said undertaking and instructing its counsel to give the clarification of the meaning of the said undertaking as aforestated knowing fully well that it was not in possession of the suit premises and was not in a position to give possession of the suit premises to the appellant in execu tion of the decree in favour of the appellant or otherwise.
It is significant that the claim of sub tenancy set up by respondent No. 2 is pursuant to an alleged resolution of respondent No. 1.
We have also no doubt that respondent No. 2 was a party to this breach of the undertaking being com mitted and, in fact, it was he at whose instance respondent No. 1 committed the breach of the undertaking as aforestat ed.
We are, of course, quite conscious of the fact that the proceedings in the contempt are quasi criminal in nature, that the law of contempt has to be strictly interpreted and that the requirements of that law must be strictly complied with before any person can be committed for contempt.
Howev er, as we have pointed out, respondent No. 1 gave an under taking based on an implication or assumption which was false to its knowledge and to the knowledge of respondent 391 No. 2.
Respondent No. 2 was equally instrumental in the giving of this undertaking.
This implication or assumption was made explicit by the clarification given by the learned counsel for respondent No. 1 as set out earlier.
Respondent No. 2 was equally responsible for instructing counsel to give this clarification which was false to the knowledge of both, respondents Nos. 1 and 2.
Both respondent No. 1 and respondent No. 2 have tried to deceive the Court and the appellant.
In view of this, we fail to see how it can be said that they are not guilty of contempt.
Even assuming that a view were to be taken that no contempt has been technically established against respondents Nos 1 and 2 (with which view we do not agree), we cannot allow the matter to rest there and fail to take any action and, in particular, we cannot allow respondents Nos. 1 and 2 to thwart the execution of the decree in this manner at this stage and continue to remain in possession of the suit premises.
We find some support for the course of action which we are taking from the decision of this Court in Noorali Babul Thanewala vs Sh.
K.M.M. Shetty and others, J.T. where, on facts which bear some similarity to the facts of this case, a Division Bench of this Court held that "it is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt.
" At the same time, we are conscious of the fact that we cannot altogether foreclose the claim set up by respondent No. 2 in the declaratory suit filed by him in the Court of Small Causes to establish that he is a sub tenant of the suit premises and entitled to the protection of the Bombay Rents, Hotel Lodging House Rates (Control) Act, 1947.
However, we are firmly of the view that by reason of any interim order obtained in that suit and till that claim is finally established, the appellant can no longer be deprived of the possession of the said premises pursuant to the decree for eviction obtained by her.
All the necessary parties to that suit are before us and have had and adequate opportunity to be heard.
In these circumstances, we allow the appeal and set aside the impugned order passed by the High Court and pass in its place the following order: The Court Receiver, High Court of Bombay who has already been appointed by our order dated January 25, 1990 shall take possession of the suit premises from the present agent and shall appoint the appellant as his agent in respect of the suit premises and hand over possession to the appellant of the suit premises on such terms and conditions as the Court Receiver may think fit but with the limitation 392 that the royalty for use and occupation of the suit premises shall be limited to the actual outgoings plus a sum of Rs.200 per month in order to meet unforeseen contingencies.
This order shall be complied with within a period of eight weeks from a copy of this order being served on the Court Receiver.
It is clarified that the possession of the prem ises will be taken from whoever might be in possession thereof and, if the Court Receiver finds any difficulty in obtaining possession, he shall take the necessary assistance from the police authorities.
It is further clarified that this order shall supersede any interim orders which might have been passed by the Court of Small Causes or the Bombay City Civil Court or any other Court excepting this Court.
In the event of respondent No. 2 being able to finally estab lish his right to the sub tenancy of the suit premises as claimed by him in the declaratory suit in the Court of Small Causes, it shall be open to him to apply for vacation or variation of this order as he may be advised.
Respondents Nos. 1 and 2 to pay the appellant the costs of this appeal fixed at Rs.20,000 the liability for the payment of the said aggregate amount being joint and several as between respond ents Nos. 1 and 2.
As far as respondent No. 3 is concerned, we do not propose to take any action against him.
N.P.V. Appeal allowed.
| IN-Abs | The appellant landlord obtained a decree of eviction of respondent No. 1 company from the suit premises.
Aggrieved, respondent No. 1 filed a Writ Petition before the High Court.
Dismissing the Petition, the High Court granted eight weeks ' time to respondent No. 1 for vacating the suit prem ises, subject to the filing of an undertaking that it will not part with the possession of, or create third party interest in, the suit premises in any manner whatsoever.
After some correspondence respondent No. 3, by an affidavit, filed the required undertaking on behalf of respondent No. 1 but without mentioning that the respondent No. 1 had not already parted with possession of the suit premises or created any third party interest therein.
Later, counsel for respondent No. 1 clarified that when the undertaking stated that respondent No. I would not part with possession it meant that respondent No. 1 was in possession.
But, in the meantime, respondent No. 2 Chairman of respondent No. 1 Company filed a suit claiming a declaration that he was the lawful sub tenant and the decree for possession was a nulli ty and obtained an injunction, thus preventing the appellant from executing the decree.
Thereupon, the appellant filed a petition for contempt before the High Court praying that the respondents should be punished under the provisions of the Contempt of Courts Act, 1972.
The High Court rejected the petition.
381 In the appeal before this Court, it was contended on behalf of the landlord appellant that the High Court was in error in holding that no contempt was established against the respondents, that the undertaking clearly implied that respondent No. 1 was in possession of the premises and was in a position to hand over vacant and peaceful possession of the same after eight weeks, which was also made clear from the clarification given by counsel for respondent No. 1 that this assurance/undertaking was false, as by that time re spondent No. 2, had already filed a suit claiming sub tenan cy from respondent, that the record disclosed that respond ents No. 1 and 2, were acting in collusion with a view to defeat the decree obtained by the appellant and to prevent the execution of the decree and that the resolution of the respondent No. 1 under which respondent No. 2 was claiming sub tenancy was fabricated and antedated.
It was submitted on behalf of the respondent that before a Court could take any action for contempt, it must be strictly established that the contempt had been proved beyond reasonable doubt, as an action for contempt was in the nature of a criminal proceeding.
Allowing the appeal, this Court, HELD: .
I The Proceedings in the contempt are quasi criminal in nature, and law of contempt has to be strictly interpreted, and the requirements of that law must be strictly complied with before any person can be committed for contempt.
However, where there is patent dishonesty writ large on the face of the record, the law does not require that this Court should sit back with folded hands and fail to take any action in the matter.
In exercise of its juris diction under clause (1) of Article 142 of the Constitution, this Court may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it.
[391G H; C D] 1.2 In the instant case, respondent No. 1 gave an under taking based on an implication or assumption which was false in its knowledge and to the knowledge of respondent No 2.
Respondent No. 2 was equally instrumental in the giving of this undertaking.
This implication or assumption was made explicit by the clarification given by the counsel for respondent No. 1.
Respondent No. 2 was equally responsible for instructing counsel to give this clarification which was false to the knowledge of both, respondents Nos. 1 and 2.
Both respondent No. 1 and respondent No. 2 have tried to deceive the Court and the appellant.
In view of this, it cannot be said that they are not guilty of contempt.
382 Respondent No. 1 is guilty of misconduct amounting to con tempt and must be held to have committed contempt by giving the undertaking and instructing its counsel to give the clarification of the meaning of the undertaking knowing fully well that it was not in possession of the suit prem ises, and was not in a position to give possession of the suit premises, to the appellant in execution of the decree in favour of the appellant or otherwise.
There is no doubt that respondent No. 2 was a party to this breach of the undertaking being committed and, in fact, it was at his instance that respondent No. 1 committed the breach of the undertaking.
[391H, 392A B, 391E F] 1.3 Respondents No. 1 and 2 cannot be allowed to thwart the execution of the decree and continue to remain in pos session of the suit premises.
No doubt, the claim set up by respondent No. 2 in the declaratory suit filed by him to establish that he is a sub tenant of the suit premises and entitled to protection of the Bombay Rents, Hotel and Lodg ing House Rates (Control) Act, 1947 cannot be foreclosed.
However, by reason of any interim order obtained in that suit, the appellant can no longer be deprived of the posses sion of the said premises pursuant to the decree obtained by her, till the claim in the declaratory suit is established.
[392C, E] 1.4 The Court Receiver.
High Court, who has already been appointed should appoint the appellant as his agent in place of the existing agent, and hand over possession of the suit premises to her on such terms and conditions as he may think fit.
It would be open to respondent No. 2 to apply for vacation or variation of the order, in the event of his being able to establish his right to sub tenancy.
[392G, 393C] Noorali Babul Thanewala vs Sh.
K.M.M. Shetty and Ors.
, J.T. , relied on.
|
ivil Appeal No. 915 of 1987.
From the Judgment and Order dated 18.10.1985 of the Andhra Pradesh Administrative Tribunal, Hyderabad in R.P. No. 786 of 1984.
A.S. Nambiar and T.V.S.N. Chari with him for the Appellants.
Respondent In person.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the judgment and 368 order of the Andhra Pradesh Administrative Tribunal, Hydera bad dated October 18, 1985 declaring Rule 5 of the Andhra Pradesh Public Employment (Recording and alteration of date of birth) Rules 1984 (hereinafter referred to as '1984 Rules ') void and directing the appellants to consider the respondent 's application for alteration of his date of birth in the service records in accordance with the extracts from birth register maintained under the .
The respondent was appointed, as Audit Clerk in the Department of Examiner of Accounts, Local Fund Accounts, through a competitive examination held in the year 1956.
After his selection and appointment he commenced his train ing with effect from 12.11.
On completion of his training he was posted as Audit Clerk on 26.1.
Subse quently, he was promoted to the post of District Inspector of LoCal fund Accounts.
At the time of his joining service 9.3.
1932 was recorded as his date of birth in the service book on the basis of S.S.L.C. Certificate.
He made an appli cation on 5.1. 1962 for alteration of his date of birth as entered in his service book, on the ground that his date of birth as recorded in his service book was apparently wrong and incorrect in view of his eider brothers ' date of birth, who was also in Government service, recorded as 2.9. 1931.
The respondent urged that the entry with regard to his date of birth in the service book should be altered and the date 9.3.
1932 should be substituted by 27.8.
1933 which accord ing to him was the correct date of his birth.
The authori ties advised the respondent to submit a revised application in terms of the instructions contained in the Government Order No. 1263 dated 6.5.
The respondent thereupon submitted a revised application on 24.9.
1964 for alteration of his date of birth, that application was forwarded to the Head Master of the School in which the respondent had last studied for verification.
After obtaining the views of all 'authorities including the Head Master of the School, the respondent 's case was placed before the Director of Treas uries and Accounts, the Head of Department for necessary orders.
The Director of Treasuries and Accounts after con sidering all relevant documents relied upon by the respond ent, and also the comments of officers, rejected the re spondent 's prayer for alteration of his date of birth by his Order No. 699 18/1209/Admn/66 7 dated 5.1.1968 on the ground that the correctness of respondent 's eider brother 's date of birth was not established.
The respondent did not take any further action in the matter for alteration of his date of birth between 1968 to 1983.
On 10.4.
1983 the Governor of Andhra Pradesh promulgated 369 Andhra Pradesh Public Employment (Regulation of Conditions of Service) Ordinance No. 5 of 1983 providing for declara tion and alteration of date of birth of State .Government employees.
The Ordinance laid down that every Government employee should make a declaration regarding his date of birth within one month of joining service and on the receipt of such declaration the appropriate authority was required to make necessary enquiries determining the date of birth of the employee.
It further provided that if no such declara tion was made by the employee the Head of the Office, should determine the date of birth of the employee in accordance with the records as may be available to him after giving opportunity to the employee within six months from the date on which the employee joins service.
The Ordinance further provided that the provisions contained therein will not apply to those who failed to apply for the alteration of date of birth in accordance with law applicable to them prior to the commencement of the Ordinance or if such an application had been made and rejected.
Thus the Ordinance clearly laid down that the opportunity for correction of date of birth as provided by the Ordinance shall not ensure to the benefit of the employees whose entry relating to date of birth may have become final and binding under the law in force prior to the commencement of the Ordinance.
The Ordi nance was replaced by Andhra Pradesh Public Employment (Recording and alteration of date of birth) Rules 1984 framed under the Proviso to article 309 of the Constitution.
Thereupon the respondent made yet another attempt by making application on 27.1.1984 for the alteration of his date of birth, placing reliance on the extracts of entry in the register of births and deaths.
The Director of Local Fund Audit rejected his application by his order dated 28.3.1984 on the ground that the application had been made beyond the period prescribed for the purpose.
The respondent filed a petition before the Andhra Pradesh Tribunal challenging the rejection of his application and also the constitutional validity of Rules 4 and 5 of the 1984 Rules.
The Tribunal held that the respondent 's application for alteration of his date of birth was wrongly rejected by the Director of Local Fund Audit on the ground of limitation.
The Tribunal held that the Head of Department should have forwarded the respondent 's application to the State Govern ment for passing appropriate order as he had no authority to reject the same.
The Tribunal further held that Rule 5 of the 1984 Rules was void as it was repugnant to Section 9 of the .
On these findings the Tribunal directed the appellants to consider the respondent 's application again for the altera tion of his date of birth on the basis of 370 the extracts of the entry in the births and deaths register.
Aggrieved the appellants have preferred this appeal by special leave.
Learned counsel for the appellants urged that since the respondent 's application for making alteration of his date of birth as recorded in service book had been rejected in 1968, he was not entitled to maintain any fresh application for the alteration of his date of birth.
He further submit ted that there was no question of repugnancy between Rule 5 and Section 9 of the Births, Deaths and Marriages Registra tion Act, 1886 and the Tribunal committed error in striking down the aforesaid Rule 5.
The respondent appeared in person before this Court, he submitted his written submissions.
According to the respondent the Director of Local Fund Audit had no authority in law to reject his application for the alteration of his date of birth as the State Government was the competent authority under the rules to deal with the matter.
Even after enforcement of the 1984 Rules the re spondent 's application for alteration of his date of birth could validly be considered only by the State Government.
The question which arises for consideration is whether the alteration of respondent 's date of birth was permissible after the enforcement of the 1984 Rules.
The 1984 Rules apply to all persons appointed to Public Services and posts in connection with the affairs of the State.
These Rules prescribe conditions of service of State employees, having statutory force, being framed under the legislative power conferred on the Governor under the Proviso to Article 309 of the Constitution.
Rules 4 and 5 are as under: "4.
No Government employee, in service before the commence ment of these rules (a) whose date of birth has been recorded in the service register in accordance with the rules applicable to him; or (b) whose entry relating to date of birth became final and binding under the rules in force prior to the commencement of these rules.
shall be entitled to claim alteration of his date of birth.
The case in which Government employees have already applied for alteration of their date of birth and which are pending on the date of commencement of these rules.
shall 371 be dealt with on the basis of recorded age in school and college records at the time of entry into service.
" The object underlying Rule 4 is to avoid repeated appli cations by a Government employee for the correction of his date of birth and with that end in view it provides that a Government servant whose date of birth may have been record ed in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules, he will not be entitled for alteration of his date of birth.
Rule 4 laid down a salutory principle to prohibit reopening of the question of correction of date of birth which may have become final prior to the enforcement of 1984 Rules.
Since the question of alteration of the respondent 's date of birth had been made on the basis of the School Certificate and his application for alteration had already been rejected in 1968, he was not entitled to claim alteration of his date of birth after the enforcement of 1984 Rules.
It was not open to the respondent to claim alteration of his date of birth, even on the basis of extracts of the entry contained in births and deaths register maintained under the as the question of correction of his date of birth had already been finally decided in 1968.
As regards validity of Rule 5 is concerned, the view taken by the Tribunal is wholly misconceived.
Rule 5 lays down that where application of a Government employee for alteration of his date of birth was pending on the date of the commencement of 1984 Rules the same will be dealt with on the basis of date of birth recorded in the School and College records at the time of the entry of the employee into service.
In substance Rule 5 lays down that the pending applications of the employees for alteration of their date of birth shall be decided on the basis of the age as record ed in the School and College records.
Thus if on the date of entry into service the date of birth of an employee was recorded in his service book on the basis of his age as recorded in the School and College Certificate in that event the date so recorded shall be treated to be correct date of birth.
However, if the date of birth recorded in the service book at the time of the entry of an employee is not based on School or College records the Rule 5 does not operate as a bar to consideration of other relevant materials in deter mining the date of birth of the employee.
In the instant case as already noted the respondent 's date of birth had been recorded in his service book on the basis of his S.S.L.C. Certificate, at the time of his entry into service, therefore, that entry had become final and he was not enti tled to reopen the correctness of that entry on the basis of extract of birth 372 register.
Moreover, since the respondent 's application for alteration of his date of birth had already been decided prior to enforcement of Rule 5 he was not entitled to main tain application for any alteration of his date of birth.
In either case respondent was not entitled to claim alteration of his date of birth, his application was rightly rejected although on different grounds.
The Tribunal 's view that Rule 5 was repugnant to Section 9 of is wholly misconceived.
Under Article 245 read with Entry 41, List II of VIIth Schedule, which relates to State Public Services, the State has exclusive power to legislate in respect of State Public Services.
Proviso to Article 309 also confers exclusive power on the Governor and the State Legislature to frame rules laying down the terms and condi tions of the State employees, such rules may regulate the entry of date of birth of an employee its alteration, cor rection and all other allied matters.
The is a central law which is referable to Union List.
Section 9 of the Act merely lays down that copies of entries of the registers relating to births and deaths maintained under the Act shall be admissi ble in evidence for the purpose of proving the births and deaths.
It merely relates to admissibility of documents, it does not seek to regulate conditions of service of a State employee.
There is, therefore, no question of repugnancy between Rule 5 and Section 9.
It is well .settled that question of repugnancy can not arise if the State makes law in exercise of its legislative powers in respect of an entry specified in List II of VIIth Schedule, even though it may incidentally trench upon a law made by the Union in respect of a matter referable to an entry in Union List of the VIIth Schedule.
Rule 5 and Section 9 of the Act operate in differ ent areas and there is no question of conflict in the two provisions.
We are informed that a Full Bench of the Andhra Pradesh Administrative Tribunal has taken similar view in Lingerker Vaidyanath vs Government of Andhra Pradesh and Anr., (Andhra Pradesh Administrative Tribunal 's Judgment dated 2.9. 1987) in holding that Rule 5 is neither repugnant to Section 9 of the aforesaid Act nor void.
In this view the Tribunal 's order dated October 18, 1985 is not sustainable in law.
In the result we allow the appeal and set aside the order of the Andhra Pradesh Administrative Tribunal.
There will be no order as to costs.
T.N.A. Appeal allowed.
| IN-Abs | The respondent joined service in the Department of Examiner of Accounts, Local Fund and in the service book his date of birth was recorded on the basis of S.S.L.C. Certifi cate.
He made an application for alteration of his date of birth but the Head of Department rejected his prayer by an order dated 5.1.1968.
After the coming into force of the Andhra Pradesh Public Employment (Recording and alteration of date of birth) Rules, 1984, he made another application for alteration of his date of birth which was also rejected by the Head of Department on the ground of limitation.
The respondent filed a petition before the Andhra Pra desh Administrative Tribunal challenging the order rejecting his application and also the Constitutional validity of Rules 4 and 5 of the 1984 Rules.
The tribunal by its order dated 18th October, 1985 directed the appellants to consider the respondent 's appli cation for the alteration of his date of birth on the basis of the extracts of the entry in the births and deaths regis ter, holding that the respondent 's application was wrongly rejected by the Head of Department on the ground of limita tion; and (ii) Rule 5 of the 1984 Rules was void as it was repugnant to Section 9 of the 366 .
In the appeal it was contended on behalf of the State that (i) since the respondent 's application for alteration of his date of birth had been rejected in 1968 he was not entitled to maintain any fresh application; and (ii) there was no repugnancy between Rule 5 of 1984 Rules and section 9 of the 1886 Act.
Allowing the appeal and setting aside the order of the Tribunal, the Court, HELD: 1.
Rule 4 of the Andhra Pradesh Public Employment (Recording and alteration of date of birth) Rules, 1984 lays down a salutory principle prohibiting re opening of the question of correction of date of birth which may have become final prior to the enforcement of 1984 Rules.
Since the question of alteration of the respondent 's date of birth had been made on the basis of the School Certificate and his application for alteration had already been rejected in 1968, he was not entitled to claim alteration of his date of birth after the enforcement of 1984 Rules.
It was not open to the respondent to claim alteration of his date of birth, even on the basis of extracts of the entry contained in births and deaths register maintained under the as the question of correction of his date of birth had already been finally decided in 1968.
[372C D] 2.
Rule 5 lays down that where application of a Govern ment employee for alteration of his date of birth was pend ing on the date of the commencement of the 1984 Rules the same will be dealt with on the basis of date of birth re corded in the School and College records at the time of the entry of the employee in service.
Thus if on the date of entry in service the date of birth of an employee was re corded in his service book on the basis of his age as re corded in the School and College Certificate, in that event the date so recorded shall be treated to be correct date of birth.
However, if the date of birth recorded in the service book at the time of entry of the employee is not based on School or College records, Rule 5 does not operate as a bar against consideration of other relevant materials in deter mining the date of birth of the employee, [372F G] In the instant case the respondent 's date of birth had been recorded in his service book on the basis of his S.S.L.C. Certificate, at the time of his entry into service therefore, that entry had become final and he was not enti tled to reopen the correctness of that entry on the 367 basis of extract of birth register.
Moreover, since the respondent 's application for alteration of his date of birth had already been decided prior to enforcement of Rule 5 he was not entitled to maintain application for any alteration of his date of birth.
In either case the respondent was not entitled to claim alteration of his date of birth, his application was rightly rejected although on different grounds, [372H; 373A B] 3.
The question of repugnancy cannot arise if the State makes law in exercise of its legislative powers in respect of an entry specified in List II of VIIth Schedule, even though it may incidentally trench upon a law made by the Union in respect of a matter referable to an entry in Union List of the VIIth Schedule.
[373E] 3.1 The is a central law which is referable to Union List.
Section 9 of the Act merely lays down that copies of entries of the registers relating to births and deaths maintained under the Act will be admissible in evidence for the purpose of proving the births and deaths.
It merely relates to admissibility of documents, it does not seek to regulate conditions of service of a State employee.
Rule 5 and Sec tion 9 of the Act operate in different areas and there is no question of conflict in the two provisions.
There is, there fore, no question of repugnancy between Rule 5 and Section 9.
The Tribunal 's view that Rule 5 was repugnant to Section 9 of is wholly misconceived and its order dated October 18, 1985 is not sustainable in law.
[373D E; G] Lingerker Vaidyanath vs Government of Andhra Pradesh and Anr., Andhra Pradesh Administrative Tribunal 's Judgment dated 2.9.1987, approved.
|
ivil Appeal No. 1147 of 1990.
From the Judgment and Order dated 22.9.
1989 of the A.P. Administrative Tribunal; Hyderabad in Representation Peti tion No. 3843 of 1989.
T.V.S.N. Chari, Mrs. B. Sunita Rao and Ms. Manjula Gupta for the Appellants.
K. Madhava Reddy, D.R.K. Reddy, Vimal Dave, B. Rajeshwar Rao and Mudu Vijai for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
This is an appeal by the A.P. Public Service Commission against the decision of the A.P. Administrative Tribunal dated September 22, 1989.
The appeal raises a question as to the scope of Rule 5 of the A.P. Police Service Rules, 1966.
The facts are not in dispute and may be stated as fol lows: The Public Service Commission issued an Advertisement/Notification No. 18/1983 inviting applications for selection in a Combined Competitive Examination to be held in November, 1983 at Anantapur, Guntur, Hyderabad, Kakinada, Tirupathi, Visakhapatnam and Warangal Centres for recruitment to the posts included in Grade I Services.
The 465 Notification was published in the Gazette dated August 25, 1983.
The post of Deputy Superintendent of Police was one of the posts for which applications were invited.
The respond ent applied to that post as well as to other posts.
The minimum age prescribed for selection to the post of Deputy Superintendent of Police was 21 years as on July 1, 1983, as against 18 years for other posts.
The respondent did not complete 21 years as on July 1, 1983.
He was short by 19 days and his case, therefore, was not considered for ap pointment to post of Deputy Superintendent of Police.
He was, however, considered to other posts since it was a combined selection for Grade I Services.
In 1984, the Public Service Commission conducted prelim inary examination for the eligible candidates.
In 1985, final examination was conducted.
In 1986, the candidates were called for interview.
On 27 March 1987, the list of selected candidates was prepared for appointment to differ ent categories of posts.
The respondent was selected as Deputy Registrar of Co operative Societies.
On 15 April 1989 i.e. about two years after the selec tion, the respondent approached the Andhra Pradesh Adminis trative Tribunal contending inter alia that the date 'for attaining the minimum age prescribed under the Notification was contrary to Rule 5 of the A.P. Police Service Rules, 1966.
He claimed that such date ought to be the date of preparation of the list of selected candidates and not any date anterior to it.
He accordingly sought a direction to the Public Service Commission to select him to the post of Deputy SUperintendent of Police since he had satisfied the required minimum age of 21 years as on the date of the select list.
The Tribunal has accepted that contention and issued a direction to the State Government to create an additional post as a special case and appoint the respondent as Deputy Superintendent of Police, if necessary by reducing the number of posts for recruitment for the next year.
The decision of the Tribunal has been challenged in this appeal by the Public Service Commission since the view expressed therein is likely to affect the appointment of a large number of candidates.
There is no dispute that the eligibility of a candidate as to age for appointment as Deputy Superintendent of Police should be determined according to Rule 5 of the A.P. Police Service Rules.
It is, therefore, necessary to look first at that Rule.
Rule 5 so far as is relevant provides: 466 "Rule 5.
Qualifications (A) No person shall be eligible for appointment as a Deputy Superintendent of Police, Category 2 by direct recruitment unless he (i) has completed the age of 21 years and had not completed the age of 26 years on the first day of July of the year in which the selection is made.
XXX XXX XXX The Rule prescribes the minimum as well as the maximum age for appointment as Deputy Superintendent of Police.
Minimum age is 21 years.
The candidate must have completed 21 years on the first day of July of the year in which the selection is made.
He should not have also completed 26 years as on that day.
The Tribunal while construing this Rule has observed: "According to the procedure the process of selection begins with the issue of the advertisement and culminates in for warding the list to the appointing authority.
The essence of the process lies in the preparation of the list.
A selection can be said to have been done only when the list is pre pared.
In this view the eligibility of the candidates as to age has to be determined at this stage.
" If the word 'selection ' is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified.
But round phrases cannot give square answers.
Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to.
The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment.
Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment.
Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps.
When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date.
If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are 467 eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs.
The date to attain the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications.
It would be, therefore, unreasonable to con strue the word selection only as the factum of preparation of the select list.
Nothing so bad would have been intended by the Rule making authority.
The appeal therefore, is allowed setting aside the order of the Tribunal.
In the circumstances of the case, however, we make no order as to costs.
P.S.S. Appeal allowed.
| IN-Abs | Rule 5 of the A.P. Police Service Rules, 1966 makes a person ineligible for appointment as Deputy Superintendent of Police unless he has completed the age of 21 years on the first day of July of the year in which the selection is made.
The appellant Service Commission notified on August 25, 1983 a combined examination for Grade I Services of the State, to be held in November, 1983 wherein the minimum age prescribed for selection to the post of Deputy Superintend ent of Police was 21 years as on July 1, 1983 as against 18 years for other posts.
The respondent who was 19 days short of 21 years as on July 1, 1983 was not considered for appointment to the post of Deputy Superintendent of Police.
He was, however, select ed as Deputy Registrar of Cooperative Societies.
He filed a petition before the State Administrative Tribunal seeking a direction to the appellant to select him to the post of Deputy Superintendent of Police, contending that the date for attaining the minimum age prescribed under the notifica tion was contrary to Rule 5 of the Police Service Rules in as much as it ought to be the date of preparation of the list of selected candidates and not any date anterior to it.
The Tribunal accepted that contention.
Allowing the appeal by the Service Commission, the Court, HELD: The word 'selection ' occurring in Rule 5 of the A.P. Police Service Rules, 1966 cannot be construed only as the factum of preparation of the select list.
[467B] The process of selection which begins with the issuance of 464 advertisement and continues through scrutiny of applica tions, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce, ends with preparation of the select list for appointment.
Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps.
When such were the different steps in the process of selection, the minimum or maximum age for suit ability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date.
If the final stage of selection is delayed, and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs.
The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications.
[466F 467A]
|
tion (Civil) No. 7995 of 1981.
(Under Article 32 of the Constitution of India).
Krishnamani and M.K.D. Namboodary for the Petitioner.
N.C. Sikri and Mrs. Madhu Sikri for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The petitioner retired from the post of teacher in the Air Force Central School, New Delhi (herein after called the 'School ') on her attaining the age of 58 years.
The School is a society registered under the Socie ties Registration Act, 1960.
In this petition under Article 32 of the Constitution of India she claims that under the Delhi Education Code read with the Delhi Education Act, 1973 (hereinafter called the 'Act ') and the Delhi Education Rules, 1973 (hereinafter called the 'Rules ') the age of superannuation for the 414 teachers who joined service before the coming into force of the Act is 60 years and as such the management of the school acted arbitrarily in depriving her of two years of service and consequential benefits.
The petitioner was initially appointed for a period of five years.
On completion of the said period in 1961 the contract was renewed for a further period of five years.
Thereafter she continued in service of the school on regular basis till the impugned retirement dated October 31,1981.
The petitioner has averred that prior to coming into force of the Act the conditions of service of the teachers of the school provided 60 years as the age of superannua tion.
The respondents have, however, denied the same and have stated that the school management was following the practice of retiring the teachers on attaining the age of 58 years with some exceptions where extensions were given upto the age of 60 years.
The management has not produced any rules, bye laws or instructions to show that the age of superannuation of the school teachers was 58 years.
With a view to provide uniformity and security of serv ice to the teachers of recognised schools, the Delhi Admin istration laid down model conditions of service including age of superannuation for the teachers/employees of the said schools and published the same as a code called the Delhi Education Code.
It came into force with effect from February 15, 1965.
Section 208 of the Code is as under: "Section 208.
The normal age of retirement of an employee of an aided school (including the head of the School) shall be the date on which he attains the age of 60.
But an employee may be retired any time between the age of 55 & 60 years on grounds of inefficiency, incompetence, or physical unfitness after he has been given a reasonable opportunity to show cause against the proposed retirement and after his representation, if any, has been duly consid ered." Section 8(1) of the Act and Rule 110 of the Rules which are relevant are as under: 8(i) "the administrator may make rules regulating the minimum qualifications for recruitment and conditions of service of employees of recognised private school.
415 Provided that neither the salary nor the right in respect of leave of absence, age of retirement and pension of an employee in the employment of an existing school at the commencement of this Act shall be varied to the disad vantage of such an employee." "Rule 110 Retirement Age: (1).Except where an existing employee is entitled to have a higher age of re tirement, every employee of a recognised private school, whether aided or not shall hold office until he attains the age of 58 years.
" The school is not receiving any aid from the Government but it is recognised by the Delhi Administration.
It is not disputed that the Act and the Rules are applicable to the teachers employed in the school and the management is legal ly bound to extend the protection of these provisions to them.
The age of superannuation provided in Rule 110 of the Rules is 58 years except in the case of existing employees who were in service on April 1, 1973 the date of coming into force of the Act and in their case the higher age of retire ment to which they were entitled has been protected.
The petitioner has specifically asserted in the petition that even though the school was not an aided school it had accepted the Delhi Education Code and made it applicable to its employees.
It is stated that the management of the school has been retiring the teachers at the age of 60 years in terms of Section 208 of the Code.
It is also mentioned that one Mr. P.R. Menon, Head of English faculty in the school retired on December 9, 1968 on attaining the age of 60 years.
She has further stated that Mr. Dhawan, Sqdrn.
Leader Lal and Mr. Sharma all joined the school as teachers before the enforcement of Delhi Education Code and have retired after coming into force of the Act and the Rules.
All of them retired at the age of 60 years whereas the petitioner was made to retire at the age of 58 years arbi trarily and discriminately.
In the counter affidavit the Chairman, Executive Committee of the school has stated as under: "The Delhi Administration formulated an Education Code by way of guidelines without any legal force as pro nounced by Hon 'ble Delhi High Court . " It is further stated: 416 "the management of the school was adhering the service conditions inclusive of age of retirement i.e. 58 years and the pay scales prescribed by the Delhi Administra tion, from time to time under Delhi Administration Act, the past practice of serving beyond the age of 58 years had been done away rather on coming into force of the Delhi Education Act as a matter of principle but for one exception of Shri B.L. Sharma the then Vice Principal who was given extension as an administrative expediency.
" Learned counsel for the petitioner has contended that prior to the coming into force of the Act and the Rules, the management was following the Delhi Education Code which provided 60 years as the age of superannuation and as such under rule 110 of the Rules the petitioner has a statutory right to continue upto the age of 60 years.
Mr. N .C.
Sikri, learned counsel appearing for the management, however, contends that the school is being run by a private manage ment, there is no Government control in the management of the school and no aid of any kind is being given to the school.
According to him, the management of the school is neither State nor an authority under Article 12 of the Constitution of India and as such no writ petition against the respondent management is maintainable.
On merits he contends that Delhi Education Code has no force of law and as such the petitioner has no enforceable right much less under Article 32 of the Constitution of India.
The Executive Committee which manages the school is headed by Air Force Officer Incharge Administration, Air Force Headquarters, New Delhi and consist of all high rank ing Air Force officers of the rank of Sqdrn.
Leader to Air Marshal.
The said membership is in their official capacity which indicates complete control over the school by the Air Force.
It is, however, not necessary to decide in this case as to whether or not the school is a State or an authority under Article 12 of the Constitution of India.
The recognised private schools in Delhi whether aided or otherwise are governed by the provisions of the Act and the Rules.
The respondent management is under a statutory obli gation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the school.
When an au thority is required to act in a particular manner under a statute it has no option but to follow the statute.
The authority cannot defy the statute on the pretext that it is neither a State nor an "authority" under Article 12 of the Constitution of India.
417 It is not necessary and we do not propose to go into the question in this case as to whether the petition is main tainable under Article 32 of the Constitution, because this petition has been pending in this Court since 1981.
The petitioner 's claim is just.
It will, therefore, be a traves ty of justice to send her to any other forum at this stage.
In any case the petitioner seeks to enforce her statutory right under Section 8 of the Act read with Rule 110 of the Rules with a further contention that she has been discrimi nated in the matter of superannuation so much so that other teachers similarly situated were retired at the age of 60 years whereas the petitioner has been singled out and re tired at the age of 58 years.
The respondent management has not produced any Rules or bye laws either framed by the management itself or otherwise to show that there was any uniform provision for retirement of teachers at the age of 58 years.
The averments of the petitioner that Section 208 of the Delhi Education Code was being followed and the teachers were superannuated at the age of 60 years have not been specifically denied.
Rather these averments have been tacitly admitted.
Even otherwise every institution must frame and follow a uniform rule for superannuating its employees.
The age of superannuation cannot be left to the whims of the employer to enable him to retire different employees at different ages.
In the absence of any regulation, Bye laws or policy decision by the re spondent management regarding the age of superannuation, we accept the contention of the petitioner that prior to the coming into force of the Act and the Rules the management was following the Delhi Education Code which provided 60 years as the age of superannuation for the school teachers.
In that view of the matter under Rule 110 of the Rules, the petitioner being an existing employee was entitled to be retired at the age of 60 years.
The writ petition is, therefore, allowed and the order of the respondents retiring the petitioner at the age of 58 years is quashed.
She having already attained the age of 60 years we direct the respondents to pay the petitioner salary and allowances for the period of two years.
We further direct that all the post retirement benefits to which the petitioner is entitled be redetermined assuming the peti tioner to have retired at the age of 60 years.
The arrears of salary and allowances be paid to the petitioner within three months from today.
The respondent being an educational institution we direct the parties to bear their own costs.
P.S.S Petition allowed.
| IN-Abs | The normal age of retirement of an employee of an aided school prescribed under section 208 of the Delhi Education Code, 1965 was 60 years.
The proviso to section 8(1) of the Delhi Education Act, 1973, prohibited the administrator from varying the conditions of service of an employee of an existing school at the commencement of that Act to his disadvantage While fixing the retirement age of employees of recognised private schools at 58 years sub rule (1) of rule 110 of the Delhi Education Rules, 1973 protected the entitlement of existing employees to higher age of retire ment.
The petitioner teacher, who had joined service before the coming into force of the Act, assailed her retirement on attaining the age of 58 years on the ground that under section 8 of the Act read with rule 110 of the Rules she had a statu tory right to continue upto the age of 60 years in terms of section 208 of the Code and that the management had acted arbi trarily and discriminately in depriving her of two years of service and consequential benefits.
For the respondents it was contended that the management of the school was neither a State nor an authority under Article 12 of the Constitu tion and as such no writ petition against the respondent management was maintainable, and that the Education Code had no force of law and as such the petitioner had no enforce able right much less under Article 32 of the Constitution.
Allowing the writ petition, the Court, HELD: 1.
The petitioner 's claim is just.
She was enti tled to be ,retired at the age of 60 years.
[417A, E] 413 2.
Prior to the coming into force of the Act and the Rules the management was following the Delhi Education Code which provided 60 years as the age of superannuation for the school teachers.
The age of superannuation provided in Rule 110 of the Rules is 58 years except in the case of existing employees who were in service on April 1, 1973, the date of coming into force of the Act, and in their case the higher age of retirement to which they were entitled has been protected.
The petitioner was an existing employee of the respondent management.
[417E, 415D] 3.
The respondent management was under a statutory obligation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the school.
When an authority is required to act in a particular manner under a statute it has no option but to follow the statute.
The authority cannot defy the statute on the pretext that it is neither a State nor an "authority" under Article 12 of the Constitution of India.
[416G H] 4.
The petitioner having already attained the age of 60 years the respondents are directed to pay her salary and allowances for the period of two years.
The post retirement benefits to which she is entitled be redetermined assuming her to have retired at the age of 60 years.
The arrears of salary and allowances be paid to her within three months.
[417F G]
|
: Criminal Appeal Nos. 365 of 1986 and 245 of 1990.
From the Judgment and Order dated 21.12.
1984 of the Punjab and Haryana High Court in Crl.
Writ Petition No. 399 of 1983 and 25 1 of 1983.
Mahabir Singh (N.P.) and Dalveer Bhandari for the Appel lants.
A.K. Goel for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
Leave granted in Special Leave Petition (Criminal) No. 1158 of 1985.
The State of Haryana has preferred these two appeals against the Judgment and Order of the Punjab & Haryana High Court dated 21.12.
1984 in Writ Petition Nos.
399/83 and 25 1/83 respectively passing similar orders directing the State Government to consider the cases of the respondents for premature release.
The facts which lie in a very narrow compass may be stated thus: The respondents were convicted under Section 302 of the Indian Penal Code and sentenced to death by the Additional Sessions Judge, Karnal which sentence inflicted on each of them was subsequently commuted to life imprisonment on mercy petitions.
It seems that the State Government issued various execu tive instructions from time to time either altering or amending the existing instructions by fresh executive in structions specifying the minimum period of actual detention to be undergone by a convict sentenced to life imprisonment before his case for premature release could be considered by the State Government.
To appreciate the case of the respec tive parties it would be apposite to make reference to the relevant instructions.
At the outset, the instructions contained in paragraph 5 16 B of Punjab Jail Manual which are in the nature of executive instructions by way of guid ance may be referred to which instructions are based on a Government of India resolution No. 159 167 dated 6th 434 September, 1905.
The aforesaid paragraph reads thus: "516 B(a) With the exception of females and who were under 20 years of age at the time of commission of offence, the cases of every convicted prisoner sentenced to: (i) imprisonment for life . . . . . . . . (iv) . . . . . . . . (a) who has undergone a period of detention in jail amount ing together with remission earned to 14 years, shall be submitted through the Inspector General of Prisons, Punjab for the orders of the State Government".
The substance of the above paragraph is that the case of a male lifer who was above 20 years of age at the time of commission of offence sentenced to life imprisonment and who has undergone detention in jail amounting together with remission earned to 14 years, should be submitted to the State Government for consideration of his premature release.
It further appears in the year 1971, the State Government after a considerable deliberation took a policy decision and issued instructions through its Memorandum No. 133 11 6J J 71/ 39656 dated 10th of November, 1971 providing that a period of actual sentence of 8 1/2 years in the case of adult life convicts and 6 years in the case of female con victs as well those male convicts below 20 years of age at the time of commission of offence should be regarded as the qualifying period of consideration for premature release.
This memorandum was clarified that all cases of prisoners should be sent for consideration of their premature release in the light of the said policy decision with effect from 2nd November, 1971.
Thereafter, in January 1976 the question of releasing prematurely life convicts whose death sentence has been committed was again considered by the State Government and it took a policy decision that cases of such life convicts should be considered for premature release only after com pletion of 14 years of actual imprisonment and in that behalf Memorandum No. 403 6JJ 76/3456 dated 30th January 1976 containing the necessary instructions was issued by the State Government.
It is culled out from the impugned judg ment of the High Court in Criminal Appeal No. 365 of 1986 (arising out of Writ Petition 435 No. 399/83) that the State Government with a view to libera lise the policy of premature release of prisoners decided that such cases might be reviewed by a State Level Committee comprising of four members inclusive of Minister for Prisons and directed the concerned Superintendent of Jail to submit cases of life convicts two months before they completed 81/2 years substantive sentence and sentence of 14/10 years including remission along with his comments to the Inspector General of Prisons, Haryana who thereupon would put up all cases along with his recommendations for consideration before the Committee and further directed the Inspector General of Prisons to submit a copy of the decision taken by the said Committee along with the roll of each prisoner to Government within one week.
Be that as it may, the Parliament introduced Section 433(A) by the code of Criminal Procedure (Amendment) Act, 1978 (45 of 78) with effect from 18.12.1978.
According to Section 433(A) that a person who has been sentenced to death and whose death sentence has been commuted into one of imprisonment for life and persons who have been sentenced to imprisonment for life for an offence for which death is one of the punishments provided by law should undergo actual imprisonment of 14 years in jail.
We are referring to Sec tion 433(A) in this judgment only for a limited purpose of showing that after the introduction of this section, the life convicts failing within the purview of Section 433(A) has to undergo the mandatory minimum 14 years of actual imprisonment.
It may be mentioned at this juncture that no one has got a vested fight to claim premature release on the ground that he has suffered the minimum actual imprisonment as prescribed under Section 433(A) because a sentence of 'imprisonment for life ' is incarceration until death, that is, for the remaining period of convicted person 's actual life vide Kishori Lal vs Emperor, AIR 1945 Privy Council 64; Gopal Vinayak Godse vs The State of Maharashtra and Others, ; ; Maru Ram Etc.
vs Union of India & Anr.
, ; ; Kartar Singh and Others vs State of Haryana, ; and Sadhu Singh vs State of Punjab, ; There is no question of releasing such a lifer early in the absence of an order of commutation under Section 55 IPC by the appropriate Government which term is defined under Section 55(A) IPC or under Section 433(b) of Criminal Proce dure Code of 1973 by the appropriate Government or on a clemency order in exercise of power under Article 72 or 16 1 of the Constitution of India.
Incidentally, it may be stated that Section 54 empowers the appropriate Government to commute the sentence of death for any other punishment provided by the Indian Penal Code.
436 Section 432 of the Criminal Procedure Code gives the power to the appropriate Government either to suspend or to remit the sentences.
The meaning of the expression 'appro priate Government ' occurring in Section 432 and 433 is given under sub section 7 of Section 432.
The Constitution Bench of this Court in Maru Ram Etc.
vs Union of India & Anr.
, ; after thoroughly examining the intendment of Section 433(A) con cluded by formulating its various findings one of which is as follows: "We declare that section 433A, in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect.
To put the position beyond doubt, we direct that the mandatory minimum of 14 years ' actual imprisonment will not operate against those whose cases were decided by the trial court before the 18th December 1978 (directly or ratro actively, as explained in the judgment) when section 433(A) came into force.
All 'lifers ' whose conviction by the Court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if Government makes an order to that effect." ' Now, coming to the facts of case on hand, admittedly the conviction of the respondents was recorded early to the introduction of Section 433(A) and, therefore, as per the ratio laid down in Maru Rarn 's case (ibid), these two re spondents are entitled for consideration of release by the appropriate Government as per the prevailing rules or execu tive instructions.
After the judgment dated 11.11.1980 in Maru Ram 's case, a number of life convicts filed batch of writ petitions in Writ Petition Nos.
1252 64 etc.
captioned Sant Ram etc.
vs Union of India & Ors. etc.
, and those writ petitions were disposed of by an order of this Court dated December 10, 1980.
Ram Diya, the respondent in Criminal Appeal No. 365 of 1986 was one of the petitioners in the connected batch of Writ Petition Nos.
1532 1539 of 1980.
The common order passed in all those petitions reads thus: "All of these Writ Petitions except Writ Petition Nos. 1477 and 1478 of 1980 shall stand disposed of in accordance with the judgment of this Court dated November 11, 1980 in 437 Maru Ram Etc.
vs Union of India & Anr., W.P. No. 865/79 etc.
All persons who were released on bail shall sur render to their sentence and the respective State Govern ments will pass appropriate orders in each individual case or generally in any group or class of cases in the light of the judgment aforesaid within six months from today.
If in particular cases, orders of release have been passed prior to the introduction of Section 433(A), Criminal Proce dure Code, the accused need not surrender to their bail.
" From the impugned judgment of the High Court, it is seen that the respondent (Ram Saran) also filed a Criminal Writ Petition seeking direction to the State Government to con sider his case for premature release and the same was dis posed of by an order dated December 10, 1980 in accordance with the decision in Maru Ram 's case, and that Ram Saran who is said to have undergone 16 years 1 month and 28 days of imprisonment including 5 years 8 months and 27 days remis sions as on July 21, 1982 was released on bail.
It appears the Government have issued letter No. 43/15783 JJ(2) dated February 27, 1984 clarifying the earli er instructions dated November 28, 1977 and reiterating their inapplicability to life convicts whose death sentence has been commuted to life imprisonment on their mercy peti tions and further stating that consideration of premature release of such convicts shall continue to be considered in the light of the Government policy decision dated December 12, 1967 thereby making it obligatory for them to undergo 14 years substantive sentence.
Admittedly, the State Government did not take up the cases of the respondents for premature release within six months of the Order of the Supreme Court dated 10th December 1980 and deferred the consideration of premature release till the respondents had completed 14 years of substantive sentence.
In the written statement filed by the Inspector General of Prisons, it is averred as follows: "It is submitted that the conduct of the petitioner during his confinement in the jail was satisfactory but it is irrelevant as far as the consideration of his premature release case is concerned.
According to the Government policy his premature release case is to be considered when he has 438 undergone 14 years substantive sentence and 20 years sen tence including remission.
His jail conduct will be consid ered when he has completed 14 years substantive sentence. ' ' In Sadhu Singh 's case (ibid), it has been urged on behalf of the lifers that the State Government relying upon the executive instructions issued on 30.1.76 had erroneously made a distinction between cases of prisoners who had been sentenced to death but whose sentence on mercy petitions had been commuted to life imprisonment and cases of prisoners who had been straightaway sentenced to life imprisonment in the matter of consideration of their cases for premature release and that it is not open to the State Government to rely upon those executive instructions dated 30.1.76 for making the distinction and postponing the consideration of the cases of prisoners falling within the former category until 14 years of actual imprisonment has been suffered by them.
This argument was answered by this Court holding thus: "The second contention also must fail in view of the admit ted position that cases of prisoners who have been sentenced to death but whose sentence on mercy petitions has been commuted to life imprisonment (who constitute a distinct class) will now be governed by the 1976 instructions.
Here also the view of the Punjab High Court in the case of Mehar Singh (supra) that the 1976 instructions issued on 30th of January 1976 will not be applicable to cases of prisoners convicted earlier to that date is not tenable.
Clearly existing cases of life convicts falling within that category will be governed by those instructions.
" So far as these cases are concerned, premature release of the respondents has to be considered in view of the directions given by this Court in the Order dated December 10, 1980 in the batch of writ petitions which instructions admittedly have not been complied with merely on the ground that the respondents have not completed 14 years of actual imprisonment since these respondents constitute a distinct class in that they have been initially sentenced to death which has been commuted on their mercy petitions.
This argument is not available to the appellant because the respondents ' premature release is required to be considered as per the directions of this Court vide Order dated 10.12.1980.
Hence it has become obligatory for the State to consider the cases of premature release of these respondents in 439 accordance with the rules or executive instructions prevail ing.and applicable to them at the relevant time i.e. between the period 10.12.1980 and 9.6.1981.
The plea of the appel lant as reflected from the written statement filed by the Inspector General of Police that the premature release of the respondents was not considered since they have not completed 14 years of substantive imprisonment is in viola tion of the directions of the Order dated 10th December 1980 of this Court and so the appellant cannot be permitted to make such a plea on the strength of the executive instruc tions overlooking and ignoring the above directions.
In the premises, we see no infirmity in the judgments of the High Court calling for interference.
For the aforementioned reasons, we uphold the impugned Judgment and Order of the High Court and dismiss these appeals as devoid of any merit.
G.N. Appeals dis missed.
| IN-Abs | Paragraph 516 B of the Punjab Jail Manual provides for premature release of prisoners, and is in the nature of executive instructions.
The State Government modified the instructions in 1971 and 1976.
The 1976 instruction was to the effect that cases of life convicts whose sentence has been commuted should be considered for premature release only after completion of 14 years of actual imprisonment.
The State Government further liberalised its policy and decided that such cases might be reviewed by a state level committee and directed that cases of life convicts who have completed 8 1/2 years substantive sentence and sentence of 14/10 years including remission be submitted to the Commit tee.
Later on the State Government clarified that the lib eralised policy would not be applicable to the life convicts whose death sentence has been commuted to life imprisonment.
In 1978, the Code of Criminal Procedure 1973 was amended introducing section 433A providing that such life convicts should undergo actual imprisonment of 14 years in jail.
This Court declared that section 433A of the Code is prospective in effect and did not operate against those cases which were decided by the trial court before 18.12.1978 (Maru Ram etc.
vs Union of India and Anr.
, ; The cases of respondents were in fact covered by the said decision.
432 They have filed writ petitions before the High Court for premature release and the High Court directed the State Government to consider their cases.
The State Government has .,preferred these appeals, by special leave, against the orders of the High Court.
Dismissing the appeals, this Court, HELD: 1.1.
No one has got a vested right to claim pre mature release on the ground that he has suffered the mini mum actual imprisonment as prescribed under section 433A Cr.
P.C. because a sentence of 'imprisonment for life ' is incarceration until death, that is, for the remaining period of convicted person 's actual life.
There is no question of releasing such a lifer early in the absence of an order of commutation under section 55 IPC by the appropriate Govern ment, or under section 433(b) of Criminal Procedure Code of 1973 by the appropriate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitu tion of India.
[435E F; G H] 1.2.
In the instant case, the conviction of the respond ents was recorded early to the introduction of section 433A and, therefore, as per the ratio laid down in Maru Ram 's case, the two respondents are entitled for consideration of release by the appropriate Government as per the prevailing rules or executive instructions.
Further, admittedly, the State Government did not take up the cases of the respond ents for premature release within six months of the order of this Court dated 10th December 1980 in Sant Ram 's case, (W.P. Nos.
1252 64/80 etc.
etc.) and deferred the considera tion of premature release till the respondents had completed 14 years of substantive sentence.
It has become obligatory for the State to consider the cases of premature release of the respondents in accordance with the rules or executive instructions prevailing and applicable to them at the rele vant time i.e. between the period 10.12.1980 and 9.6.1981.
The plea of the appellant that the premature release of the respondents was not considered since they have not completed 14 years of substantive imprisonment is in violation of the directions of the order dated 10th December, 1980 of this Court and so the appellant cannot be permitted to make such a plea on the strength of the executive instructions over looking and ignoring the above directions.
There is no infirmity in the judgments of the High Court calling for interference.
[436E F; 437F; 438H; 439A C] Kishori Lal vs Emperor, AIR 1945 P.C. 64; Gopal Vinayak Godse vs The State of Maharashtra and Others, ; ; Maru Ram etc.
vs Union of India & Anr.
, ; ; Kartar Singh and 433 Others vs State of Haryana, ; and Sadhu Singh vs State of Punjab, ; , relied on.
|
ivil Appeal No. 3677 of 1987.
From the Judgment and Order dated 4.7.1985 of the Andhra Pradesh Administrative Tribunal, Hyderabad in Representation Petition No. 578 of 1978.
WITH Civil Appeal Nos.
15 19/1986 and 124/1987.
421 P.P. Rao, G.L.Sanghi, R.K. Jain, P. Rama Reddy, P.A. Choudhary, B. Kanta Rao, Mrs. S.R. Setia, G.N. Rao, Attar Singh, K.V.G. Rama Rao, Mrs. Sharda Devi, K. Ram Kumar, C.S. Vaidyanathan, A.V.V. Nair and C. Prabhakar for the appearing parties.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The questions arising for our consider ation in these appeals are as under: (1) Can the High Court/Administrative Tribunal direct the State Government to frame or amend the existing statutory rules to alter the conditions of service of the civil serv ants in terms of the directions? (2) When there are specialised posts in a feeder cadre and also in the higher cadre, can the Government restrict the promotions from feeder cadre to the higher cadre only spe ciality wise irrespective of the seniority? The conditions of service of the Andhra Pradesh Animal Husbandry Department were initially governed by the Andhra Pradesh Animal Husbandry Service Rules, 1961 (hereinafter called 1961 Rules).
Under these Rules Veterinary Assistant Surgeons were eligible for promotion to three different categories of posts called class IV posts and Rule 6 provid ed special eligibility qualifications for those posts.
Only those Veterinary Assistant Surgeons were considered for promotion to class IV posts who fulfilled the qualifica tions/specialised training prescribed under Rule 6 of the 1961 Rules.
Some of the Veterinary Assistant Surgeons challenged the vires of Rule 6 of the 1961 Rules by way of Civil Writ Petition No. 4532 of 1971 in the Andhra Pradesh High Court.
It was alleged that at the time of recruitment all the Veterinary Assistant Surgeons possessed Bachelor Degree in Veterinary Science and the special qualifications and train ing prescribed under Rule 6 could only be acquired after joining as Veterinary Assistant Surgeon and that also at the discretion of the Government.
It was open to the Government to choose any person for the specialised training and may deny such an opportunity to another person who may be equal ly or better suited for such training.
Since the imparting of specialised qualifications/training was under the control of the Government it could pick and choose persons for the purpose and in the process making favoured persons eligible for pro 422 motion to class IV posts under the 1961 Rules.
Learned Single Judge by his judgment dated August 24, 1973 rejected the contentions of the writ petitioners in the following words: "I do not find it possible to agree with the broad conten tion that Rule 6 is ultra vires and unconstitutional for the reasons stated by the petitioners.
As stated earlier, Rule 6 merely prescribed certain qualifications for promotion to certain posts by way of experience in a particular specia lised service of undergoing training in a particular field.
It cannot be argued and in fairness to the learned counsel for the petitioners it may be stated, it was not argued, that is not permissible to prescribe such qualifications.
The main reason for contending that Rule 6 is ultra vires was not that it prescribed certain qualifications but be cause in the absence of any guiding principles the Govern ment would be enable to pick and choose persons who would be given opportunities to obtain those qualifications which would enable them to get promotion.
This circumstance cannot in my view render the rule itself ultra vires.
If the Gov ernment or the Authorities concerned posted certain employ ees in the special sections or gave them opportunity to undergo a service in a special issued section for a particu lar period or denied similar opportunity to deserving candi dates with the oblique motive of preferring one set of persons to another for the purposes of promotion, it was open to the aggrieve officer to challenge the act of the Government in each particular case.
The postings and direc tions have been made from time to time from 1962 and none of these petitioners approached this court questioning the denial of the posting as the case may be all these years." . . "1 therefore see no reason for declaring Rule 6 as ultra vires and unconstitutional.
" While holding that Rule 6 was intra vires, the learned Judge also made the following observations: "Though I have held that Rule 6 is not unconstitutional there cannot be any doubt that as this stand at present, it is left to the discretion of the authorities concerned to post any particular Veterinary Surgeon to any Special Sec tion or 423 to give him training in any advanced course.
It is not surprising that such a state of affairs should result in dis satisfaction and suspicion in the mind of the officers concerned.
Development of animal husbandry is extremely important in the interests of economy and a satisfied and contented service is a pre requisite for such development.
It is not advisable to it that a particular authority howev er high placed he may be to choose persons at his sweet will and pleasure to undergo training in a particular field or have service in a particular sections especially when such training and service would effect the chances of promotion to higher posts.
In this connected, it may be noted that in regard to the Andhra Pradesh Agricultural Service, it was realised that condition of separate section within the same service results in great injustice as several senior offi cers would be deprived of their promotion while the junior who happened to work in a specialised section get early promotion.
By G.O. dated 27.6.1972 all these sections were merged into one unit and all the posts were brought under a common set of rules.
It would be advisable to frame a simi lar rule for the Animal Husbandry Department also and see that as far as possible the area of discretion on the part of the authorities concerned is reduced if not eliminated altogether.
" The State Government amended Rule 6 of the 1961 Rules on May 10, 1976 by which the categories of Class IV posts were increased to thirteen.
The 1961 Rules were superseded by the Andhra Pradesh Animal Husbandary Service Special Rules, 1977 (hereinafter called the Special Rules) which came into force on September 24, 1977.
Rule 1 of the Special Rules provides for the constitution of the service.
Class IV posts, which were re designated as Assistant Directors, .were divided into eight categories.
Similarly,.
Veterinary Assistant Surgeons come under the heading class V and are divided into seven categories.
Rule 2 of the Special Rules provides method of promotion from class V to Class IV.
The relevant provisions of these Rules are reproduced as under: 1.
CONSTITUTION: Class IV.
Category (1) Assistant Directors of Animal Husbandry (formerly 424 District Veterinary Officers & Livestock Officers Incharge Key Villages and Regional Cattle Development Units) includ ing Superintendents, Veterinary Hospitals & Poly Clinics, Assistant Directors of Animal Husbandry, Liverfluke Control Scheme; Anti Liverfluke Control Scheme; Dairy Extension Rinderpest; Animal By Products Plant, Zoo Park, Asst.
Direc tor of Animal Husbandry (Technical in Directorate and Gazet ted Instructors in Animal Husbandry, Village Development Officers Training Centre.
Category (2) Assistant Directors of Animal Husbandry, Government Livestock Farms including Assistant Directors of Animal Husbandry Progeny Testing Unit, Feed Mixing Plant; Livestock Assistants Training Centre; Goshalas and Asst.
Director of Animal Husbandry (Farms) in Directorate.
Category (3) Lecturers, Institute of Animal Reproduction, including Asst.
Director of Animal Husbandry (Cattle Devel opment) and Centralised Semen Collection Centre.
Category (4) Assistant Directors of Animal Husbandry, Sheep Farms including Assistant Directors of Animal Husbandry (Sheep Development) and Officers of similar rank in Sheep Section.
Category (5) Assistant Directors of Animal Husbandry, Pig Breeding Station; Piggery Development Officer and Officers of similar rank in piggery section.
Category (6) Asst.
Directors of Animal Husbandry, Regional Poultry Demonstration and Research Farm and Asst.
Directors of Animal Husbandry, poultry Marketing Centres.
Category (7) Asst.
Directors of Animal Husbandry (Formerly Disease Investigation Officers and Research Officers) an Officers of similar rank in Vety.
Biological Institute, Hyderabad; Asst.
Directors of Animal Husbandry, Animal Health Centres, and Officers of similar rank in Municipal Corporation of Hyderabad such as Public Health Veterinarian.
425 Category (8) Asst.
Director of Animal Husbandry (Statis tics) Class V. Category (1) Veterinary Officers.
Category (2) Veterinary Officers (Cattle Farms) Category (3) Asst.
Lecturers, Institute of Animal Reproduc tion and Veterinary Officers, Centralised Semen Collection Centres.
Category (4) Veterinary Officers (Sheep Farms) Category (5) Veterinary Officers, Pig Breeding Stations.
Category (6) Veterinary Officers, Poultry Farms.
Category (7) Veterinary Officers in Veterinary Biological and Research Institute; Animal Health Centres, Clinical Laboratories and Municipal Corporation of Hydera bad." 2. APPOINTMENT: Class IV: Category (1) Asst.
Directors of . (i) . (ii) by promotion from among the Veteri nary included in category (I) of class V of the said service.
(iii) . .
Category (2) Asst.
Directors of . (i) . (ii) by promotion from among the Vety.
Officers inclu ded in Cat.(2) of Class V of the said Service (iii) 426 Category (3) Lecturers (i) by promotion from among the Vety.
Officers included in Cat.
(3) of Class V of the said service (iii) .
Category (4) Asst.
Directors of . (i) . (ii) by promotion from among the Vety.
Officers inclu ded in Cat.(3) of Class V of the said service (iii) .
Category (5) Asst.
Directors of . (i) . (ii) by promotion from among the Vety.
Officers inclu ded in Cat.
(5) of class V of the said service (iii) .
Category (6) Asst.
Directors of . (i) . (ii) by promotion from among the Vety.
Officers included in Cat.
(6) of class V of the said ser vice Category (7) Asst.
Directors of . (i) . (ii) by promotion from among the Vety.
Officers included in Cat (7) of class V of the said service Category (8) Asst.
Directors of . (i) . (ii) by promotion Vety.
Officers in Class V of Andhra 427 Pradesh Animal Husban dry Service (iii) .
It is obvious from the provisions of the Special Rules reproduced above that the Veterinary Assistant Surgeons who are class V are only eligible for promotion to class IV in their respective categories.
Category 1 class V is only eligible for promotion to category 1 class IV and similarly category 2 of class V is eligible for category 2 of class IV and so on.
Although there is one common seniority of class V officers but the promotion being category wise the seniority becomes irrelevant as a senior man in category 1 class V cannot be promoted to any other category in class IV except category 1 and 8.
M. Srinivasan and 44 other class V officers filed Repre sentation Petition No. 578 of 1978 before the Andhra Pradesh Administrative Tribunal seeking a direction that the Special Rules be amended or modified in terms of the observations made by the Andhra Pradesh High Court in Civil Writ Petition No. 4532 of 1971.
In other words., it was prayed that the State Government be directed to merge all the respective categories in class IV and class V of the Special Rules and promotions from class V to class IV be made on the basis of seniority alone.
The Administrative Tribunal by its judgment dated July 4, 1985 allowed the Petition and issued the directions asked for by the petitioners.
The Tribunal in its judgment posed the question to be decided in the following manner: "The question to be decided is whether the Depart ment of Animal Husbandry is justified in not following the directions of the A.P. High Court referred to above." The Tribunal then answered the question as under: "It must be observed that not to speak of direc tion, even an observation from the High Court of the land is binding on the State Government when the State Government has not chosen to set aside the said observation in the Supreme Court.
The petitioners are, therefore, entitled to the relief asked for and I find no good reasons not to grant the same.
The R.P., is accordingly allowed and once again direc tions are issued to the respondents to evolve proper and rational 428 method of determination of seniority among the Veterinary Assistant Surgeons in the matter of promotions to the next higher rank of Assistant Director of Veterinary Surgeons in the light of the one framed under G.O.Ms.
No. 1 supra. ' ' It may be mentioned that G.O. Ms. No. 1 dated 1.1.76 which was directed to be adopted and followed in the Animal Husbandry Department related to the Agriculture Department.
It was argued before the Tribunal that because of functional differences between the two departments it would not be possible to adopt the conditions of service prevalent in the Agriculture Department.
The Tribunal, however, issued the above quoted directions primarily on the ground that the State Government was bound to follow the observations of the High Court made in Civil Writ Petition No. 4532 of 1971.
The State of Andhra Pradesh has challenged the judgment of the Tribunal in Civil Appeal No. 1519 of 1986, Civil Appeal No. 124/1987 and Civil Appeal No. 3677 of 1987 have been filed by the officers who have been affected by the judgment of the Tribunal but were not parties before the Tribunal.
The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature.
The High Court was aware of its limitations under Article 226 of the Constitution of India and as such the learned Judge deliberately used the word "advisable" while making the observations.
It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the constitution.
Imagine the execu tive advising the judiciary in respect of its power of judicial review under the constitution.
We are bound to react scowlingly to any such advice.
This Court relying on Narender Chand Hem Raj & Ors.
vs Lt. Governor, Union Territory, Himachal Pradesh & Ors., ; and State of Himachal Pradesh vs A parent of a student of medical college, Simla and Ors., [1985] 3 SCC 169 held in Asif Hameed & Ors.
vs State of Jammu & Kashmir & Ors.
, [1989] Supp. 2 SCC 364, as under: "When a State action is challenged, the function of the court is to examine the action in accordance with law 429 and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action.
While doing so the court must remain within its self imposed limits.
The court sits in judgment on the action of a coordinate branch of the Government.
While exercising power of judicial review of administrative ac tion, the court is not an appellate authority.
The constitu tion does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive.
" The Special Rules have been framed under Article 309 of the Constitution of India.
The power under Article 309 of the Constitution of India to frame rules is the legislative power.
This power under the constitution has to be exercised by the President or the Governor of a State as the case may be.
The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India.
The Courts cannot usurp the functions assigned to the executive under the constitution and cannot even indirectly require the execu tive to exercise its rule making power in any manner.
The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India.
We are therefore, of the view that the High Court in Civil Writ Petition No. 4532/71 and the Administrative Tribunal in the judgment under appeal transgressed its limits in issuing the impugned directions.
We set aside the judgment of the Tribunal and dismiss the Representation Petition No. 578/78 filed by M. Srinivasan and 44 others to the extent indicated above.
Mr. C.S. Vaidyanathan, learned counsel, appearing for the respondents, however, contends that the Special Rules are arbitrary and are violative of Articles 14 and 16 of the Constitution of India.
He contends that at the time of initial recruitment to Class V the Government at its discre tion picks up persons for appointment to any of the catego ries.
According to him neither there are any statutory rules or executive instructions providing options to class V officers to join category of their choice nor in fact any such options were given at the relevant time.
He has further argued that the posts in seven categories of class V are inter transferable.
He invited our attention to the docu 430 ments on record showing transfers from one category to another.
Mr. Madhava Reddy learned counsel appearing for the State of Andhra Pradesh on the other hand has controverted the above arguments.
According to him options were not only given at the time of initial recruitment into class V serv ice but also subsequently as and when the rules were amend ed.
He categorically denied that the posts in various cate gories are interchangeable.
The learned counsel on both sides wanted us to go into the various documents in support of their respective contentions.
We do not have before us the factual matrix to appreciate the argument of Mr. Vaidya nathan that the special Rules are arbitrary.
We, however, find from the judgment under appeal that all these points were raised before the Tribunal in one form or the other but the Tribunal based its judgment on the observations of the High Court in Civil Writ Petition No. 4532/71 and did not go into any other point.
While setting aside the judgment under appeal we remit the case to the Andhra Pradesh Administrative Tribunal for decision on other points as indicated by, us or as may be raised by the parties.
The Tribunal shall give further opportunity to the parties to file additional affidavits/documents.
We request the Tribunal to decide the matter expeditiously and if possible within three months.
The appeals are disposed of in the above terms with no order as to costs.
Y. Lal Appeals allowed.
| IN-Abs | Andhra Pradesh Animal Husbandry Service Rules, 1961, governed the conditions of service of the Andhra Pradesh Animal Husbandry Department and under those Rules Veterinary Assistant Surgeons were eligible for promotion to three categories of Class IV posts.
Rule 6 of the said Rules provided special eligibility qualifications for those posts and only those Veterinary Assistant Surgeons were considered for promotion to Class IV posts who fulfilled the qualifica tions/specialised training prescribed under Rule 6 of the 1961 Rules.
Some of the Veterinary Assistant Surgeons chal lenged the vires of Rule 6 of 1961 Rules on the ground that it was violative of Article 14 of the Constitution inasmuch as it conferred arbitrary powers on the Government to pick and choose any person for the specialised training and may deny such an opportunity to another person who may be equal ly or better suited for such training, there being no guide lines prescribed for selection of persons for specialised training.
The main contention was that at the time of re cruitment all the Veterinary Assistant Surgeons possessed Bachelor Degree in Veterinary Science and the special quali fication and training prescribed under Rule 6 could only be acquired after joining as Veterinary Assistant Surgeon by only those Assistant Surgeons whom the Government selected for the purpose.
The High Court held Rule 6 of the 1961 Rules as intra vires but made certain observations advising the Animal Husbandry Department to frame a rule for the said Department and see that as far as possible the area of discretion on the part of the authorities concerned is reduced if not eliminated altogether, so far as the question of imparting specialised training as provided under Rule 6 was concerned.
Thereupon the State Government amended Rule 6 of the 1961 Rules as a result whereof the 1961 Rules were superseded by the Andhra Pradesh Animal Husbandry Service Special Rules, 1977, Rule 1 whereof pro 419 vided for the constitution of the service.
Class IV posts, which were re designated as Assistant Directors, were divid ed into eight categories and Rule 2 provided method of promotion from Class V to Class IV.
Under those Rules Veter inary Assistant Surgeons who were Class V were only eligible for promotion to Class IV in their respective categories.
That is to say category I Class V was only eligible for promotion to category I Class IV and similarly category 2 of Class V was eligible for category 2 of Class IV and so on, and in this way common seniority of class V officers became irrelevant, promotion being category wise.
Being dissatis fied some officers belonging to Class IV filed Representa tion Petition before the Andhra Pradesh Administrative Tribunal seeking a direction that the special rules be amended or modified in terms of the observations made by the Andhra Pradesh High Court in Civil Writ No. 4532 of 1971, referred to above whereby the said High Court had declared Rule 6 of 1961 Rules as intra vires.
The contention raised by the petitioner was that promotions from Class V to Class IV be made on the basis of seniority alone irrespective of the categories contemplated by 1977 Rules.
The Tribunal by its judgment allowed the petition and issued the directions asked for by the petitioners.
The Tribunal observed that not to speak of direction, even an observation from the High Court was binding on the State Government when the State Government had not chosen to get the said observation set aside by the Supreme Court.
Accordingly the Tribunal direct ed the State to evolve a proper and rational method of determination of seniority among the Veterinary Assistant Surgeons in the matter of promotions to the next higher rank of Assistant Director of Veterinary Surgeons.
Being aggrieved, the State of Andhra Pradesh and some of the officers who have been affected by the High Court 's judgment and who were not parties before the High Court have filed these appeals.
The following questions arose for determination: (1) can the High Court/Administrative Tribunal direct the State Government to frame or amend the existing statutory Rules to alter the conditions of service of the Civil servants in terms of the directions, and (2) when there are specialized posts in a feeder cadre and also in the higher cadre, can the Government restrict the promotions from feeder cadre to the higher cadre only speciality wise irrespective of sen iority.
Allowing the Appeals and remanding the matter to the Tribunal for decision on other points: this Court, 420 HELD: The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature.
The High Court was aware of its limita tions under Article 226 of the Constitution of India and as such the learned Judge deliberately used the words 'advisa ble ' while making the observations.
It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution.
[428E F] The power under Article 309 of the Constitution of India to frame rules is legislative power.
This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be.
[429C] The High Court or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India.
The Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the execu tive to exercise its rule making power in any manner.
The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309.
[429D E] The Administrative Tribunal in the judgment under appeal transgressed its limits in issuing the impugned directions.
[429F] Narender Chand Hem Raj & Ors.
vs Lt. Governor, Union Territory, Himachal Pradesh & Ors., ; ; State of Himachal Pradesh vs A parent of a student of medical college, Simla & Ors., [1985] 3 S.C.C. 169 and Asif Hameed & Ors.
vs State of Jammu & Kashmir & Ors.
, [1989] Supp. 2 S.C.C. 364, referred to.
|
251&558of 1987.
(Under Article 32 of the Constitution of India) R.K. Jain and R.P. Gupta for the Petitioners.
Kapil Sibal, R.B. Misra, B.B. Sawhney, R.K. Mehta (N.P.) and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
The petitioners in Writ Petition No. 25 1 of 1987 are Dairy Mates whereas, those in Writ Petition No. 558 of 1987 are Junior Plant Operatives and Semi Skilled Opera tives, all working with the Delhi Milk Scheme.
The first petition is on behalf of about one thousand workers, where as, the second petition is on behalf of about 280 of work ers.
The grievance of the Dairy Mates is that although they perform the duties and functions of semi skilled work ers, they have been wrongly classified as un skilled workers and paid salary as such, as recommended by the 4th Pay Commission namely, Rs.750 940 instead of Rs.800 1 150 which is the salary recommended to the semiskilled workers.
The grievance of the Junior Plant Operatives and Semi Skilled Operatives is that they are actually ' doing the work of skilled workers, but are classified similarly as unskilled workers and paid salary as such.
Both, further, have a grievance that their counterparts in other departments, particularly in Railways, have been properly classified and are paid salary accordingly.
The petitions were resisted by the respondent Union of India by filing counter affidavits denying the conten tions of the petitioners that their work was of a semi skilled or skilled character as alleged.
In view of the disputed questions relating to the nature and functions of the workmen involved, this Court by its order of July 29, 1988 referred the matter to the Central Govt.
Industrial Tribunal cumLabour Court, New Delhi to report to the Court on what would be the appropriate pay scales admissible to the concerned workers, after looking into the record and giving an opportunity to the parties to produce before it such further material as they may desire to do.
Pursuant to the order, the Tribunal submitted its report dated October 325 28, 1988.
It appears from the report that the Tribunal had given opportunities to both the parties to make additional submissions, if any, and to file further material which they wished to do.
Pursuant to the opportunity given, the workers in both the petitions produced additional material and evidence.
The respondent Union of India, however, did not produce any further material or evidence.
On the basis of the material which was already on record, and the further material produced before it, the Tribunal made its report.
The relevant portions of the report may be reproduced here under: 3.
"There are 4 categories of workmen in the DMS viz. Dairy Mates, (DM), Junior Plant Operatives (JPO), Semi Skilled Operatives (SSO) and Skilled Operatives (SO).
The deploy ment registers of the various units read with the evidence of Shri Lajpat Rai Saxena Dairy Supervisor, conclusively prove that the var ious categories of workmen are performing similar duties and their positions are inter changeable with the result that there is no clear demarcation as to what function is to be performed by which category of workmen.
Shri Lajpat Rai Saxena has clearly stated that the nature of duties and the degree or skill of S.O., S.S.O., and J.P.Os and D.Ms is almost same and that sometimes the work done by S.S.Os is performed by S.O. and J.P.Os subject to the availability of the category of work men.
To a question by this Tribunal he replied that if an S.O. is available he will be posted as an S.O. only but when no S.O. is available, then S.S.O. is put in his place and sometimes J.P.Os and Dairy Mates may be put to work in his place.
He further stated that generally there is a shortage of S.Os and then they have to put other categories of workmen in their places.
The position is fully borne out by the various deployment registers . . " 4." . . .
The position of deployment of the various categories of workmen clearly goes to show that their duties are inter changeable without any consideration for their grades/designations.
The position obtaining on the ground clearly repells the contentions of the respondents contained in affidavit of Shri K.G. Krishnamurty that the functions of the various categories of workmen are distinct and separate.
The respondents have not been able to produce any document in support of their contention to show that the duties of the various categories of workmen as enumerated in the affidavit of Shri K.G. Krishnamurty 326 were even published or actually followed.
On the other hand, Shri Lajpat Rai Saxena has stated that since the time he joined service in the year 1972 he had not come across any roster of duties for the different categories of workers such as S.O., SSO, JPOs and Mates and no such roster had been issued after 1972.
He had heard that there was a roster of duties issued prior to his joining of service but he had not seen any such roster.
It would thus appear that if there was any such roster prior to 1972 it got into disuse and was never enforced." 5. "The nature of functions performed by various workmen shows that they require a good degree of skill.
In other words, the functions can be performed only by skilled and semi skilled workers and not by unskilled workers.
Shri Lajpat Rai Saxena has stated that there are 5 milk pasteurisers and 2 cream pasteuris ers in the plant unit of Process Section.
There are also two chillers in R.S.M. There are 13 machines in the product section.
All these machines can be operated only by skilled workers.
He further stated that the bottle filling plant is automatic and the entire working is also automatic.
They have got a separate pest control section for cleaning and sweeping.
Sweepers of Pest Control Section are not used for cleaning machines which is done only by the SO, SSOs, JPOs and Dairy Mates.
This further goes to show that even the clean ing of machines requires skill and the job cannot be performed by unskilled workers.
Even the Management of DMS recognises that the duties performed by the mates and junior plant operatives who have been clubbed with the unskilled category of peons, chowkidars etc., are much more onerous in nature and they deserve a better deal (see the letter dated 4 9 86 addressed by the Chairman D.M.S. to the Joint Secretary Ministry of Agriculture).
The first petitioners have placed on record a photo copy of the identity card issued to the mates (page 110 Vol. 1) which shows that the D. Mates were being treated as Technical Personnel for the purpose of issue of identity cards.
The job cards annexures 1 to 6 (Vol. II) further go to show that the mates have been performing skilled/semi skilled duties such as repairing of Driver seats vulcanising of punctures, other repairs of vehicles and servicing.
All these jobs could not have been done by unskilled workers.
Under the circum stances, I have no hesitation in holding that the 327 mates and junior plant operatives have 'been unfairly treated by the 4th Pay Commission by giving them lowest pay scale of unskilled category of workmen like peons, sweepers, chowkidars etc.
This category of workmen difinitely deserves to be given a higher grade than the lowest meant for unskilled category of workmen.
While it may be conceded that due to the diffuse nature of duties, the Dairy Mates and Junior Plant Operatives of DMS cannot be compared with the Gangmates in the Railways, yet the case of the Dairy Mates and Junior Plant Operatives of the DMS has intrin sic merit.
No doubt the workmen categorised as semi skilled (SSOs) at present are carrying out the functions of Skilled Operatives (SOs) frequently, yet, so are the Mates and JPOs.
However, all the workmen cannot be given the grade of SOs because the considerations of career planning and promotions etc.
have to be kept in view.
Already it is being represented that the various categories of workmen are stagnating in their respective grades for the last 20 25 years.
The same complaint will arise afterwards if all the workmen are given the grades of SO at the same time.
It also militates against the principles of sound administration because there will be double jumping of grades in some category of workmen.
It will also not be desirable to create any fresh scales of pay as it would run counter to the recommendations of the pay commission which has reduced the number of pay scales prevailing previously.
" 6. "Taking into consideration all the facts and circumstances, it is recommended that the Mates and JPOs may be given the pay scale of Rs.800 1150 and semi skilled operatives may be given the scale of Rs.825 1200.
The grades as provided by the 4th Pay Commission and those now recommended by this Tribunal will compare as under: S1.
No. Category of workmen Pay Scale Pay Scale recommended by recommended 4th Pay by this Commission Tribunal 1.
Skilled Operatives (SO) 950 1150 950 1400 2.
Semi Skilled Operatives 800 1150 825 1200 (SSO) 3.
Mates/JPOs 750 940 800 1150.
" 328 5.
While the workmen accepted the report, arguments were advanced on behalf of the respondent mainly criticising the report with regard to the pay scales recommended to the Mates deployed in Transport (Distribution Section).
It was contended that the Mates working in the said section consti tuted 60% of the total number of Mates deployed in the different units of the Scheme, and their work merely con sisted of loading and unloading of the crates.
That work by no stretch of imagination could be described as other than unskilled.
It was, therefore, wrong to give them a scale different from that admissible to the unskilled workers.
This contention ignores the admitted fact that Mates from one Unit are transferable to another at any time, and when so transferred they do the work of the Units to which they are transferred without any additional remuneration.
What is more as is stated in the report, there is no roster of duties and functions of the Mates in any Unit, and all Mates have to do the work of the Units to which they are assigned on any particular day.
The mates have thus to be versatile with the work in all the Units, both unskilled and semi skilled.
This is certainly not the case with the Sweepers, Chowkidars and Malis who are categorised as unskilled work ers.
This being the case, we do not see any merit in the contention that the Mates should be treated on par with the unskilled workers.
There was no contention raised on the report with regard to the mates working in the other Units or with regard to the Junior Plant Operatives and Semi Skilled Operatives.
In the circumstances, we accept the report and direct the respondent to pay to the workers the pay scales recom mended in the report which are as follows: A. Mates and Junior Plant Operatives Rs.800 1 150 B. Semi Skilled Operatives Rs.825 1200 8.
The above pay scales should come into effect from 1st January, 1990.
It is made clear that none of the workers i.e. Mates, Junior Plant Operatives and Semi Skilled Operatives will refuse to do any part of the work which is assigned to them at present merely because they are hereby given the above pay scales.
Writ Petitions are allowed accordingly.
The parties to bear their own costs.
R.N.J. Petitions allowed.
| IN-Abs | The firsf petition is on behalf of one thousand Dairy Mates and the other on behalf of 280 workers as Junior Plant Operatives and semiskilled Operatives.
The grievance of Dairy Mates is that although they perform the duties of semi skilled workers they have been wrongly classified as unskilled workers and paid salaries as such.
Similarly the grievance of the Junior Plant Operatives and semi skilled Operatives is that they are actually doing the work of skilled workers but are classified as unskilled workers and paid salary as such.
In view of the disputed questions relating to the nature and functions of the workmen involved, the Court referred the matter to the Central Govt.
Industrial Tribunal cum Labour Court to report to the Court as to what would be appropriate pay scales admissible to the concerned workers.
On the basis of additional material and evidence produced by the workers, the Tribunal made its report and recommended that taking into consideration all the facts and circum stances, the Mates and JPOs may be given the pay scale of Rs.800 1150, the semi skilled operatives may be given the scale of Rs.825 1200 and the skilled operatives may be given the scale of Rs.950 1400.
The Union of India criticised the pay scale recommended to the Mates contending that their work was of unskilled nature.
Accepting the report of the Tribunal while allowing the Petitions in terms of the re port, this Court, HELD: There is no roster of duties and functions of the Mates in any Unit and all Mates have to do the work of the Units to which they are assigned on any particular day.
The Mates have thus to be versatile with the work in all the Units, both unskilled and semi skilled.
This is certainly not the case with the Sweepers, Chowkidars and Malls who are categorised as unskilled workers.
This being the case, there is no merit in the contention of the Union of India that the Mates should be 324 treated on par with the unskilled workers.
[328C D]
|
No. 3 of 1990.
IN Civil Appeal No. 4131 of 1989.
478 From the Judgment and Order dated 4.9.1989 of the Cal cutta High Court in Original Order No. 241 of 1989.
Ashok Desai, Solicitor General, Amal Datta, D.K. Sinha and J.R. Das for the Petitioners.
A.K. Sen, Ms. Mridula Ray, T.U. Mehta (NP) and D.P. Mukherjee for the Respondents.
The following Order of the Court was delivered by section RATNAVEL PANDIAN, J.
This application is filed by the State of West Bengal for clarification of the two orders of this Court dated 7th September and 27th September of 1989 in SLP (Civil) No 10670/89 in the context of the order dated 4th September and order report dated 15th September of 1989 passed by a Division Bench of High Court of Calcutta in Writ Appeal Nos. 240 and 24 1 of 1989 in the Matter No. 1436 of 1988.
This case has got a chequered history, the facts of which are set out in clear terms in the judgment dated 10.7.1989 of the High Court of Calcutta vide Annexure 1 to this application.
Therefore, it is not necessary to reiter ate the entire facts, but suffice to refer a few relevant facts for the disposal of this application.
A batch of employees of the State of West Bengal belong ing to the West Bengal Civil Service (Executive) filed Writ Petition being Matter No. 1436 of 1988 under Article 226 of the Constitution of India.
Subsequently some more members of the said cadre were added as respondents on their applica tion and they also supported the Writ Petition.
The original respondents to the Writ Petition who are also in the same cadre as well the State Government which is made a party opposed the Writ Petition.
The main pleading in the Writ Petition is that there was no rule relating to determination of seniority as between promotees and direct recruits of the West Bengal Civil Service and the prayer on the above pleading is for issuance of a Writ of Mandamus directing the State Government to frame appropriate seniority rules in that behalf.
On 5.4.1988, a learned single Judge of the High Court, Ajit Kumar Sengupta, J. passed an interim order directing the State Government 479 to frame seniority rules and determine inter se seniority on the basis of the seniority rules within one month from the date of the communication of the order.
On 29.4.1988 on an application moved by the writ petitioners, the same learned Judge passed an interim order to the effect that if any seniority rules have been framed pursuant to his order dated 5.4.1988 the same would not be given effect to without the leave of the Court and without giving any notice to the writ petitioners.
On 10.6.1988 the writ petitioners moved another interim application in the Writ Petition before the same learned single Judge for setting aside the draft seniority rules.
On the same day, the learned Judge passed the interim order restraining the State Government from taking any further action on the basic of the draft rules of seniority which were in the meantime prepared in compliance with the earlier order dated 5.4.1988.
On 23.3.1989 Ajit Kumar Sengupta, J. pronounced his judgment, the operating portion of which reads thus: "The application is allowed.
The draft rules are ultra vires as I have already held in my judgment.
Following the direc tions given in my judgment, the inter se seniority will be done.
There will be a stay of the operation of the judgment and order for four weeks but the interim order granted by this Court will continue also for four weeks.
" The State Government preferred an appeal against the judg ment and order dated 23.3.1989 before a Division Bench of the High Court in Appeal No. 240/89.
The original respond ents to the Writ Petition also preferred another Appeal against that judgment in Appeal No. 241/89.
Both the appeals are with reference to Matter No. 1436/88.
In both the ap peals, stay applications were filed before the Division Bench comprised of Justice Roy and Justice Sudhangshu Sekhar Ganguly.
The said DiviSion Bench delivered its Judgment on 10.7.1989 disposing the interim applications, the relevant portion of which is as follows: "On a consideration of all the submissions made before us, we are inclined to hold, therefore that the appellant peti tioners have made out a prima facie case for staying the operation of the judgment and order passed by the learned Judge.
Since the respondents have not been able to establish that the prima facie case is in theft favour, it cannot be held that the balance of convenience and inconvenience title in their favour.
The learned Judge has restrained 480 the appellant State from filling up a number of important posts till the making of the Seniority Rules and determina tion of seniority of the respondents.
Such a stay order has been there since the filing of the original writ petition.
It is obvious that the Government has been suffering because of this embargo and it is also obvious to these officers who would have otherwise been appointed to these posts been suffering financially.
The operation of this order of in junction shall also, therefore, have to be stayed along with the operation of the judgment and decree passed by the learned Judge.
In the circumstances stated it is hereby ordered that the operation of the judgment and order dated 23rd March, 1989 passed by the Honable Mr. Justice Ajit Kumar Sengupta in the Matter No. 1436/88 together with all interim orders passed by His Lordships in the said matter are hereby stayed.
Pending the disposal of this appeal the Government will be at liberty to proceed with the finalisation of the Seniority Rules governing the members of the unified W.B.C.S.
The Government will be also at liberty to fill up all the vacan cies and award all service benefits including appointments to higher posts or higher scale which will be subject to the results of these appeals.
Since many such posts are lying vacant at present, the Court desires the Government to consider, if it will take in its consideration, the cases of the writ petitioners and the respondents Nos. 9 to 15, while filling up these posts.
" In the same order, the Division Bench after disposing this application has made the following order: "The operation of this judgment together with the order shall remain stayed for eight weeks.
" The stay of the operation of the judgment evidently has been made on the request of the aggrieved party, namely, the respondents to the appeal to enable them to approach this Court.
Aggrieved by this order, the writ petitioners who are respondents in the Appeals filed SLP No. 9920/89 challenging the judgment and order of the Division Bench dated 10.7.
1989 along with a petition for 'stay in I.A. No. 1/89 pray ing "to stay the operation of the 481 impugned Judgment and Order dated 10th July 1989 passed by the Division Bench of the Calcutta High Court in Appeal No. Nil/89 in Matter No. 1436/88 till the disposal of the S.L.P . . . " A Bench of this Court to which one of us (Ratnavel Pandian, J.) was a party after hearing the learned counsel for the petitioners and respondents to the SLP passed the following order on 29.8.1989: "As the Special Leave Petition is directed against the Interim order of the Division Bench of the High Court, we are not inclined to interfere in the matter.
The Special Leave Petition is dismissed.
We, however, request the High Court to dispose of the Writ Petition pending in the High Court as expeditiously as possible preferably within two months from today.
" It seems on 4.9.1989 Justice M.N. Roy, who was a party to the order dated 10.7.1989 expressed his inability to hear the appeals in the course of the said week in view of other matters being listed before him and released these appeals in question.
Thereafter these two appeals had been assigned to another Division Bench comprised of the learned Judges Bimal Chandra Basak and Amarava Sengupta, JJ.
This Bench on the same day i.e. on the afternoon of 4.9.
1989 itself extended the stay of eight weeks, granted by the earlier Division Bench dated 10.7.1989 till the disposal of the appeals and directed the status quo.
On being aggrieved by the order dated 4.9.1989 extending the order of stay, the original respondents in the Writ Petition filed Special Leave Petition No. 10670/89 before this Court which came up before the Bench of this Court presided over by the Hon 'ble Chief Justice along with K.N. Singh, J.
This Bench passed an interim order on the above SLP on 7.9. 1989, the operative portion of which reads thus: "In the meanwhile the order passed by this Court on 29.8.
1989 shall hold the field notwithstanding any contrary order passed by the Division Bench of the Calcutta High Court.
" This SLP was finally listed before another Bench comprised of Murari Mohan Dutt, J. and one of us (Ratnavel Pandian, J.).
This Bench passed the following order on 29.7.89 in Civil Appeal No. 4131 of 1989 482 (arising out of SLP (Civil) No. 10670/89): "Special leave is granted.
Perused the report.
After hearing the learned counsel for both the parties, we direct that in view of the order dated September 7, 1989, passed by this Court, no further order need be made on this appeal.
The appeal is disposed of as above.
There will be no order as to costs.
" The submissions made on behalf of the applicants in the present Interlocutory Application (3 of 1990) are that the ex parte order extending the stay and granting status quo as on 4th September 1989 passed by the Division Bench consist ing of Bimal Chandra Basak and Amarava Sengupta, JJ was in violation of the earlier order of this Court made on 29th August 1989 and that since the appeals though heard on a number of days are not yet disposed of, the State Government is constrained to approach this Court for necessary orders and directions/clarifications in the interest of smooth administration and eliminating stagnation and frustration among the members of West Bengal Civil Service (Executive) cadres.
According to the State Government, there are number of posts lying vacant in the cadre of Deputy Secretary and equivalent posts in different Departments of the State Government including core Departments like Revenue, Finance, Education, Milk Supplies, Hospitals, Administrative Reforms, Power etc., that the State Government is unable to fill up the same in view of the interim order of status quo passed on 4.9.1989, that the State Government is unable even to make transfers on promotion or sending officers on deputa tion to equivalent posts and that no service benefits could be awarded to those officials.
The second respondent on his behalf and on behalf of respondents 1, 3, 4 and 5 has filed a counter stating that the order of extension of stay passed by the Division Bench on 4.9.
1989 is no way inconsistent or in contravention of the order of this Court and the delay in disposal of the appeal is only on account of a dialectic tactics adopted by the applicants and the order obtained from this Court on 7th September 1989 was without any notice to and behind the back of the respondents Nos. 1 to 5 and that most of the posts (as shown in Annexure 'A ' to the counter) have understandably been filled up by the State Government during the pendency of the interim orders and that the grievance expressed by the State Govern 483 ment in filling up the posts is totally a false statement since all the posts mentioned have been filled up and that in case the extended stay order is disturbed, the respond ents would be put to immeasurable hardships.
As the two Appeals Nos. 240/89 and 24 1/89 in Matter No. 1436/ 88 are now pending before the High Court for final disposal, we, without making any detailed discussion on the issues involved, are inclined to dispose of this application by making only a clarification.
is the admitted case that the Division BenCh consisting of Justice Roy and Justice Sudhangshu Sekhar Ganguly by their order dated 10.7.
1989 stayed the operation of the order of the learned single Judge dated 23.3.
1989 in Matter No. 1436/88 and allowed the Government to fill up all the vacan cies and award all service benefits including appointments to higher posts or higher scales which will be subject to the results of the two appeals.
However, the same Bench stayed the operation of this order for a period of 8 weeks, admittedly to enable the respondents in these two appeals to approach this Court.
When the matter came up before this Court for admission in SLP No. 9920/89 with the petition (I.A. No. 1/89) to stay the operation of the order dated 10.7.89 staying the order of the single Judge of the High Court, this Court dismissed that SLP by its order dated 29.8.89 after hearing the counsel for both the parties.
The copy of the order has already been reproduced above.
This Court, observing "We are not inclined to interfere in the matter", has upheld the order of stay dated 10.7.89.
In other words the order of stay passed by the Division Bech on 10.7.89 has been upheld.
The result was on the expiry of 8 weeks period, the original order of stay dated 10.7.89 passed by the earlier Division Bench has been revived and come into operation.
The 8 weeks period from which the order dated 10.7.89 has been stayed by the Division Bench would have in the normal course expired by 9.9.89.
It seems that meanwhile, the respondents in the two appeals have ap proached another Division Bech to which the appeals have been assigned for the reasons already indicated and obtained an order of extension of stay of the operation of the judg ment of the Division Bench dated 10.7.1989.
Feeling ag grieved, the appellants in the two appeals namely, Sabyasachi Sengupta and others filed SLP No. 10670 of 1989.
This Court by its order dated 7.9.89 directed that the order passed by this Court on 29.8.89 i.e. the order passed in SLP No. 9920/89 shall hold the field notwithstanding any con trary order passed by the Division Bench of the Calcutta High Court.
The 'contrary order ' is referrable to the order passed by the second Bench of the Calcutta High Court on 4.9.1989.
Mr. Ashok Desai, the learned Solicitor General and Mr. Ashok Sen, Sr. counsel appearing for the applicants forcibly arti 484 culated that in the teeth of the order passed by this Court on 7.9.1989 observing "notwithstanding any contrary order passed by the Division Bench of the Calcutta High Court", the order of the Court dated 29.8.1989 shall hold the field, it is made clear that the order of the High Court dated 4.9.1989 has become otiose and further request that this Court, however, be pleased to clarify the position in the context of the subsequent order/report dated 15.9.1989.
Mr. D.P. Mukherji appearing on behalf of the respondents made a fervent plea that even assuming that the order dated 4.9.1989 is in infraction of the order dated 7.9.
1989, it would amount only to a technical infraction and as such there can be no justification to grant the relief asked for by the applicants in this interlocutory application and if the relief, as prayed for is granted, it would be causing substantial and grave injustice to the respondents.
On a careful analysis of the facts and circumstances of the case, we hold that the plea of Mr. Mukherji is illogical and inconceivable and does not merit consideration.
If his plea is to be accepted, then it will be only a mockery of justice because it will be tantamount to nullifying our own order which has reached its finality.
It is the settled principle of law that any order or direction pronounced by this apex Court in exercise of its jurisdiction in any matter pending before it, that order or direction is binding on all courts within the territory of India and should be implemented and executed in all its rigour.
Form the report sent by the Division Bench of the Cal cutta High Court dated 15th September 1989 it seems the latter Division Bench extended the 8 weeks stay on the grounds firstly that the order of this Court dated 29.8.1989 has not prevented the Division Bench from passing such order and secondly that the 8 weeks stay stood vacated w.e.f.
4th September 1989.
But in fact, the order of this Court dated 29.8.1989 has restored the order of the first Division Bench of the High Court dated 10.7.1989 on the expiry of 8 weeks and that the 8 weeks stay had expired only by 9.9.1989 and not on 4.9.
Be that as it may, the order of this Court dated 7.9.1989 in SLP No. 10670/89 has clarified that position to the effect that the order of this Court dated 29.8.1989 shall hold the field notwithstanding of the contrary order passed by the Division Bench of the Calcutta High Court.
The "contrary order" mentioned in the order dated 7.9.1989 refers to the order dated 4.9.
The resultant position is that this 485 Court by the order dated 7.9.1989 has rendered the order of the second Division Bench of the High Court dated 4.9.1989 inoperative and ineffective.
Subsequently, this SLP No. 10670/89 was disposed of after grant of leave.
Thus the matter now stands concluded that from 10.9.
1989 onwards the order of the first Division Bench dated 10.7.1989 has become operative and executable and the interim direction given by that order is brought back to life and resuscitated.
There fore, it is open to the State Government to act in accord ance with the order dated 10.7.1989.
With this clarifica tion, the above application is disposed of with no order as to costs.
G.N. Application dis posed of.
| IN-Abs | Some employees belonging to West Bengal Civil Service (Executive) filed a writ petition before the High Court, praying for a direction to the State Government to frame appropriate seniority rules.
The High Court passed an inter im order directing the State Government to frame seniority rules and determine the inter se seniority on that basis within one month of the order.
On an application moved by the petitioners the same Judge passed an interim order that the seniority rules framed pursuant to the Court 's order would not be given effect to without leave of the Court and without notice to the writ petitioners.
On another applica tion moved by the writ petitioners, the same Judge re strained the State Government from taking any further action on the basis of the draft rules of seniority.
Later, the Judgment was delivered allowing the writ petition, holding that the draft rules were ultra vires.
Aggrieved, the State Government preferred an appeal before a Division Bench.
The Division Bench stayed the operation of the judgment and decree passed by the Single Judge.
The Division Bench also directed that the State Government may proceed with the final assessment of the seniority rules.
Aggrieved against the said order the writ petitioners filed a Special Leave Petition which was dismissed with a request to the High Court to dispose of the pending writ petition expeditiously within two months.
The High Court extended the stay till the disposal of the appeal and directed status quo.
Against this order, the original respondents in the writ petition filed a Special Leave Petition before this Court.
This Court passed an interim order to the effect that the order passed by this Court earlier would hold the field, not with standing any contrary order passed by the High Court.
Later, granting special leave, this Court observed 377 that in view of the interim order no further order need be passed.
The present application has been filed by the State for clarification of the two orders of this Court in the context of the order dated 15.9.1989 of the High Court.
Disposing of the application, this Court.
HELD: 1.1 It is the settled principle of law that any order or direction pronounced by this apex Court in exercise of its jurisdiction in any matter pending before it, that order or direction is binding on all courts within the territory of India and should be implemented and executed in all its rigour.
[484D] 1.2 From the report sent by the Division Bench of the High Court dated 15th September, 1989 it seems the latter Division Bench extended the 8 weeks stay on the grounds firstly that the Order of this Court dated 29.8.1989 has not prevented the Division Bench from passing such order and secondly that the 8 weeks stay stood vacated w.e.f. 4th September, 1989.
But in fact, the Order of the Court dated 29.8.1989 has restored the order of the first Division Bench of the High Court dated 10.7.1989 on the expiry of 8 weeks and that the 8 weeks stay had expired only by 9.9.1989 and not on 4.9.1989.
[484E F] 1.3 It is open to the State Government to act in accord ance with the order dated 10.7.1989 of the High Court.
The Order of this Court dated 7.9.1989 in SLP No. 10670/89 has clarified the position to the effect that the Order of this Court dated 29.8.1989 shall hold the field notwithstanding the contrary order passed by the Division Bench of the High Court.
The "contrary order" mentioned in the order dated 7.9.1989 refers to the order dated 4.9.199.
The resultant position is that this Court by the order dated 7.9.1989 has rendered the order of the second Division Bench of the High Court dated 4.9.1989 inoperative and ineffective.
Subse quently, SLP No. 10670/89 was disposed of after grant of leave.
Thus the matter now stands concluded that from 10.9.1989 onwards the order of the first Division Bench dated 10.7.1989 has become operative and executable and the interim direction given by that order is brought back to life and resuscitated.
[484G H; 485A B]
|
Appeal No. 91 of 1957.
Appeal from the judgment and order dated March 29, 1956, of the Saurashtra High Court at Rajkot in Civil Reference No. I of 1955.
Shankarlal G. Bajaj and P. C. Aggarwal, for the appellant.
K. N. Rajagopala Sastri, R. H. Dhebar and D. Gupta, for the respondent.
October 9.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal arises from the assessment proceedings taken against the appellant, Rajputana Agencies Ltd., Lavanpur, for its income for the assessment year 1952 53, the accounting period being the corresponding Marwadi Year ending in October, 1951.
The appellant is a ' private limited company and it was assessed to income tax and super tax by the Income tax Officer, Morvi Circle, Morvi, on a total income of Rs. 26,385.
The appellant had declared dividend of Rs. 30,000.
The Income tax Officer held that out of the said amount of dividend, Rs. 15,159 was excess dividend.
On this basis the Income tax Officer determined the additional income tax payable by the appellant at the rate of forty four pies in a rupee on the said excess dividend.
The additional income tax payable by the appellant in that behalf was computed at Rs. 3,473 15 0.
This order was passed on November 25, 1952.
The appellant filed an appeal against this order before the Appellate Assistant Commissioner of Income tax at Rajkot.
The appellate authority determined the additional income tax payable by the appellant at Rs. 2,084 12 0 on August 29, 1953.
An appeal was preferred by the appellant against the appellate order before the Income tax Appellate Tribunal, Bombay, but the appellate tribunal confirmed the order under appeal on November 27, 1954.
The 144 appellant then moved the appellate tribunal under section 66(1) of the Income tax Act and the appellate tribunal, by its order passed on April 25, 1955, referred two questions to the High Court at Saurashtra for its opinion.
In the present appeal, we are concerned with ,the second of the said two questions.
This question as framed by the tribunal was: Whether the expression " at the rate applicable to the total income of the company " as appearing in sub cl.
(b) of el.
(ii) to the second explanation to proviso to paragraph B of Part I of the First Schedule to the Indian Finance Act, 1952, means the rate at which a company 's total income is actually assessed or the rate prescribed by the respective Finance Act without taking into consideration the rebate allowed in the respective years in accordance with the provisions of the Part ' B ' States (Taxation Concessions) Order, 1950 (hereinafter called the Order).
Section 2 of the Finance Act, 1952, provides that the provisions of section 2 of, and the First Schedule to the Finance Act, 1951, shall apply in relation to income tax and super tax for the financial year 1952 53 as they apply in relation to the income tax and super tax for the financial year 1951 52 with the modification that, in the said provisions for the figures 1950, 1951 and 1952 wherever they occur, the figures 1951, 1952 and 1953 shall be respectively substituted ; and so in the present case we are really concerned with the material provisions of the Finance Act, 1951 (herein.
after called the Act).
By its judgment delivered on March 29, 1956, the High Court answered this question against the appellant and held that the expression " at the rate applicable to the total income of the company " means the rate at which the company 's total income is actually assessed.
The appellant then applied for and obtained a certificate from the High Court under article 133(1)(c) of the Constitution read with section 66A(2) of the Income tax Act that the case is a fit one for appeal to this Court.
It is with this certificate that the present appeal has been brought to this Court; and the only point which it raises for our decision relates to the construction of the expression " at the rate applicable 145 to the total income of the company " appearing in the relevant provision of the Act.
The appellant does not dispute its liability to pay additional income tax under cl.
(ii) of the proviso to paragraph B of Part I of the First Schedule to the Act.
The dispute between the parties is in regard to the rate at which the additional income tax has to be charged.
I The appellant has paid income tax on its total income in the relevant assessment year at the rate of sixteen pies in a rupee in accordance with the computation prescribed by para.
6 of the Order; and it is urged on its behalf, that the rebate to which it is entitled under the provisions of the said Order is irrelevant in determining the rate at which the additional income tax can be computed against it.
On the other hand, the respondent contends that the additional income tax has to be computed at the rate at which the appellant 's income has been actually assessed and so the rebate granted to the appellant under the said Order must be taken into account in determining the said rate of the additional tax.
It would be relevant, at this stage, to refer to the provisions of the Order under which the appellant has admittedly obtained rebate as a company carrying on its business in Saurashtra.
By the Order, the Central Government made exemptions, reductions in the rate of tax and modifications specified in the Order in exercise of the powers conferred by section 60A of the Income tax Act.
This Order applied to Part 'B ' states which included all Part 'B ' States other than the State of Jammu and Kashmir.
Paragraph 5 of the Order deals with income of a previous year chargeable in the Part 'B ' States in 1949 50.
Sub clause (3) of paragraph 5 shows that the State assessment year 1949 50 means the assessment year which commences on any date between April 1, 1949 and December 31, 1949.
We are not concerned with the provisions of this paragraph.
Paragraph 6(iii) applies to the present case.
The effect of para.
6(1), (ii) and (iii) is that in respect of so much of the income, profits and gains included in the total income as accrue or arise in any State other 19 146 than the States of Patiala and East Punjab States Union and Travancore Cochin (i) the tax shall be computed (a) at the Indian rate of tax; and (b) at the State rate of tax in force immediately before the appointed day; (ii) where the amount of tax computed under subclause (a) of clause, (1) is less than or is equal to the amount of tax computed under sub clause (b) of clause (1) the amount of the first mentioned tax shall be the tax payable; (iii) where the amount of tax computed under subclause (a) of clause (1) exceeds the tax computed.
under sub clause (b) of clause (1), the excess shall be allowed as a rebate from the first mentioned tax and the amount of the first mentioned tax as so reduced shall be the tax payable.
Thus under el.
(iii) the amount of income tax levied against the appellant is not the amount computed at the Indian rate; it represents the difference between the amounts calculated at the Indian rate of tax and that calculated at the State rate of tax.
The excess of the first amount over the second is allowed as a rebate.
In other words, the Indian rate of tax prescribed by the relevant provisions of the Act does not by itself determine the amount of tax payable by the appellant for the relevant year.
It is well known that when different Part ' B ' States merged with the adjoining States or Provinces and were made taxable territories under the Income tax Act, the operation of the Indian rate of tax was introduced by phases and rebates on a graduated scale were allowed to the assessees under the provisions of this Order.
As we have already mentioned, it is common ground that the appellant was entitled to and has obtained rebate under sub cl.
(iii) of paragraph 6 of 'the Order, with the result that his total income has been taxed to income tax at the rate of sixteen pies in a rupee.
The point for determination is whether this rebate is relevant in determining the rate at which the additional income tax has to ' be levied against the appellant under the relevant provisions of the Act.
147 Let us now consider the relevant provisions of the Act.
Section 3 of the Income tax Act which is the charging section provides that " where any Central Act enacts that income tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year of the ' assessee ".
Thus, when levying income tax against the total income of the assessee, the rate at which the tax has to be levied is prescribed by the Act for the relevant year.
Section 2 of the Act provides that, subject to the provisions of sub sections
(3), (4) and (5), income tax shall be charged at the rates specified in Part I of the First Schedule; and sub section
(7) provides that " for the purpose of this section, and of the rates of tax imposed thereby, the expression " total income " means total income as determined for the purposes of income tax or super tax, as the case may be, in accordance with the provisions of the Act ".
So we must turn to the First Schedule to the Act to find the rate at which the appellant can be assessed.
Paragraph B of the said Schedule deals with companies and it provides that, in the case of every company, on the whole of total income the tax is leviable at the rate of four annas in the rupee.
There is a proviso to this paragraph and the clause which calls for our construction in the present appeal occurs in the explanation to el.
(ii) of this proviso.
This proviso deals with the case of a company which in respect of its profits liable to tax under the Act for the relevant year has made the prescribed arrangements for the declaration and payment within the territory of India excluding the State of Jammu and Kashmir of the dividends payable out of such profits and has deducted the super tax from the dividends in accordance with the provisions of sub section
(3D) or (3E) of section 18 of that Act; and in that connection, it provides: (1) where the total income, as reduced by seven annas in the rupee and by the amount, if any, exempt from income tax exceeds the amount of any dividends (including dividends payable at a fixed rate) declared 148 in respect of the whole or, part of the previous year for the assessment for the year ending on the 31st day of March, 1951, and no order has been made under subsection (1) of section 23A of the Income tax Act,, a rebate shall be allowed, at the rate of one anna per rupee on the amount of such excess (ii) where the amount of dividends referred to in clause (1i) above exceeds the total income as reduced by seven annas in the rupee and by the amount, if, any, exempt from income tax, there shall be charged on the total income an additional income tax equal to the sum, if any, by which the aggregate amount of income tax actually borne by such excess (hereinafter referred to as " the excess dividend ") falls short of the amount calculated at the rate of five annas per rupee on the excess dividend.
It would thus be seen that the object of the legislature in enacting this proviso is to encourage companies to plough back some of their profits into the industry not to distribute unduly large portions of their.
profits to their shareholders by declaring unreasonably high or excessive dividends.
In order to give effect to this intention the legislature has offered an inducement to the companies by giving them a certain rebate.
If a company does not distribute as dividends more than roughly nine annas of its profits which is specified as distributable, then the rebate of one anna is given to the company to the extent that the dividend paid by it was less than the distributable dividend.
If the company pays more than the distributable amount of dividend then it was not entitled to claim any rebate; but, on the contrary, it becomes liable to pay an additional income tax as provided in cl.
(ii) of the proviso.
In other words, the intention of the legislature appears to be that companies should no doubt declare reason able dividend and thereby invite the investment of capital in business; but they should not declare an excessive dividend and should plough back part of their profits into the industry.
It is with this object that the provision for rebate has been made.
It would be noticed that,, in addition to the rebate received by the appellant under the relevant provisions of the 149 Order, it would have been entitled to receive the rebate under el.
(1) of the proviso to paragraph B if the dividend declared by it had not exceeded the specified distributable amount.
In fact the dividend declared by the appellant has exceeded the said amount and the appellant has thus become liable to pay additional income tax in respect of the excess dividend under cl, (ii) of the proviso to paragraph B.
Under this clause, " the appellant shall be charged on the total income an additional income tax equal to the sum, if any, by which the aggregate amount of income tax actually borne by such excess (hereinafter referred to as " the excess dividend ") falls short of the amount calculated at the rate of five annas per rupee on the excess dividend ".
This provision raises the problem of determining the aggregate amount of income tax actually borne by the excess dividend; and it is to help the solution of this problem that an explanation has been added which says, inter alia, that " for the purposes of cl.
(ii) of the above proviso the aggre gate amount of income tax actually borne by the excess dividend shall be determined as follows: (i) the excess dividend shall be deemed to be out of the whole or such portion of the undistributed profit,% of one or more years immediately preceding the previous year as would be just sufficient to cover the amount of the excess dividend and as have not likewise been taken into account to cover an excess dividend of a preceding year; (ii) such portion of the excess dividend as is deemed to be out of the undistributed profits of each of the said years shall be deemed to have borne tax(a) if an order has been made under sub section (1) of section 23A of the Income tax Act, in respect of the undistributed profits of that year, at the rate of five annas in the rupee, and (b) in respect of any other year, at the rate applicable to the total income of the company for that year reduced by the rate at which rebate, if any, was allowed on the undistributed profits.
" Clause (1). explains what shall be deemed to be the 150 excess dividend and how it, should be ascertained.
Clause (ii) lays down how the portion of the excess dividend as is deemed to be out of the undistributed profits of each of the years mentioned in cl.
(ii) of the proviso shall be deemed to have borne tax.
clause (a) of cl.
(ii) is concerned with cases where an order has been made under section 23A (1) in respect of the undistributed profits of that year at the rate of five annas in a rupee.
We are not concerned with this clause in the present appeal.
It is sub cl.
(b) of el.
(ii) of the explanation to the proviso to paragraph B that falls for consideration in the present appeal.
The appellant 's case is that the expression " at the rate applicable to the total income " means the rate prescribed by paragraph B of the Act and not the rate at which income tax has actually and in fact been levied.
This contention has been rejected by the High Court and the appellant urges that the High Court was in error in rejecting its case.
The argument is that the words " at the rate applicable to the total income of the company " must be strictly and literally construed and reliance is placed on the principle that fiscal statutes must be strictly construed.
On the other hand, as observed by Maxwell " the tendency of modern decisions upon the whole is to narrow materially the difference between what is called a strict and beneficial construction (1) ".
Now the words " the rate applicable " may mean either the rate prescribed by paragraph B or the rate actually applied in the light of the relevant statutory provisions.
"Applicable", according to its plain grammatical meaning, means capable of being applied or appropriate; and appropriateness of the rate can be determined only after considering all the relevant statutory provisions.
In this sense it would mean the rate actually applied.
In the present case, if sub cl.
(b) is read as a whole, and all the material words used are given their plain grammatical meaning, its construction would present no serious difficulty.
When the clause refers to the rate applicable, it is necessary to remember that it refers to the rate applicable to the total income of the company for (1) Maxwell on " Interpretation of Statutes ", 10th Ed.
p. 284.
151 that year.
In other words, the clause clearly refers to the specific or definite rate which is determined to be applicable to the taxable income of the company for the specific year; and it is not the rate prescribed by the Act for the relevant year generally in reference to incomes of companies.
The result is that, for determining the aggregate amount of income tax actually borne by the excess dividend, the department must take into account the rate at which the income of the company for the specific year has in fact been applied or levied.
Besides, in construing the words "I the rate applicable " we must bear in mind the context in which they are used.
The context shows that the said words are intended to explain what should.
be taken to be " the tax actually borne ".
If the legislation had intended that the tax actually borne should in all, cases be determined merely by the application of the rate prescribed for companies in general, the explanation given by the material clause would really not have been necessary.
That is why in our opinion, the context justifies the construction which we are inclined to place on the words " the rate applicable ".
The same position is made clear by the further provision in sub cl.
(b) itself which requires that the relevant rate has to be reduced by the rate at which the rebate, if any, has been allowed on the undistributed profits; which means that, for determining the rate in sub cl.
(b), it is necessary to take into account the rebate which may have been allowed to the company under el.
(1) of the proviso to paragraph B, so that in such a case the rate applicable cannot be the rate prescribed in paragraph B of the Act; it must be the rate so prescribed reduced by the rate at which the rebate has been granted under cl.
(1) of the proviso to paragraph B.
It is thus clear that the words " rate applicable in such cases mean the rate determined after deducting from the rate prescribed by paragraph B the rate of rebate allowed by el.
(1) of the proviso to the said paragraph.
Therefore, at least in these cases, the material words mean the rate actually applied.
If that be the true position, the rate applicable must in 152 all cases mean the rate actually applied.
The same words cannot have two different meaning,% in the same clause.
Incidentally we may point out that the provision of the Act in regard to the payment of additional income tax appears to be intended to impose a penalty for distributing dividends beyond the distributable.limit mentioned by the statute.
The method prescribed for determining the amount of this additional income tax is this.
Calculate the amount at the rate of five annas per rupee on the excess dividend and deduct from the amount so determined the aggregate amount of income tax actually borne by such excess dividend; the balance is the amount of additional income tax leviable against the company.
In adopting this method, if rebate admissible under cl.
(1) of the proviso to para.
graph B has to be deducted from the rate prescribed, it is difficult to understand why a rebate granted under paragraph 6(iii) of the Order should not likewise be deducted.
We accordingly hold that the rate applicable in sub cl.
(b) of cl.
(ii) of the explanation read with cl.
(ii) of the proviso to paragraph B of Schedule I of the Act means the, rate actually applied in a given case.
On, this construction the rate at which the appellant is liable to pay the additional income tax would be the difference between the rate of five annas and the rate of sixteen pies in a rupee at which the appellant has in fact paid income tax in the relevant year.
That is to say, the additional income tax is leviable at the rate of forty four pies in a rupee.
In its judgment, the High Court of Saurashtra has referred with approval to the decision of the Bombay High Court in Elphinstone Spinning and Weaving Mills Co., Ltd. vs Commissioner of Income tax, Bombay City(1).
In this case, Chagla C. J. and Tendolkar J. have held that if a company has no taxable income at all for the assessment year 1951 52 and in that year it pays dividends out of the profits earned in the preceding year or years, additional income tax cannot be levied on the company by reason of the fact that it has paid an excess dividend within the meaning of that 153 expression in, the proviso to paragraph B of Part I of the Act.
We are not concerned with this aspect of the matter in the present appeal.
However, in dealing with the question raised before them, the learned judges have incidentally construed the relevant words " rate applicable" as meaning the rate actually applied; and their observations do support the view taken by the Saurashtra High Court in the present case.
The result is the appeal fails and is dismissed with costs.
Appeal dismissed.
| IN-Abs | The assessee, a private limited company in Saurashtra, was assessed for the assessment year 1952 53 on a total income of Rs. 26,385.
It was assessable at the rate of four annas per rupee but in view of the provisions of the Part B States (Taxation Concession) Order, 1950, it was actually assessed at the rate of sixteen pies per rupee.
The assessee had declared dividend of Rs. 30,000 out of which Rs. 15,159 was found to be excess dividend.
On this excess dividend the assessee was liable to pay additional income tax and the dispute was regarding the rate at which tax was to be computed.
Clause (ii) of the proviso to para.
B of Part.
I of the First Schedule to the Finance Act, 1951, which applied to the case, provided that the additional income tax was to be equal to the sum by which the aggregate amount of income tax actually borne by the excess amount fell short of the amount Calculated at the rate of five annas per rupee on the excess dividend.
Sub clause (b) of cl.
(ii) to the second explanation to proviso to para.
B provided that the aggregate amount of income tax actually borne by the excess dividend was to be determined at the rate applicable to the total income of the company.
The assessee contended that the words 'at the rate applicable to the total income of the company ' meant the rate prescribed by para.
8 of the Act, i.e. four annas per rupee, and not the rate as reduced by the Order at which the income tax had actually and in fact been levied and that consequently it was liable to pay additional income tax on the excess dividend at the rate of one anna per rupee only.
Held, that the expression 'rate applicable to the total income of the company ' meant the rate actually applied and that the assessee was rightly charged at the rate of forty four pies per rupee being the rate by which the rate at which the assessee was actually assessed fell short of the rate of five annas per rupee.
The clause referred to the specific or definite rate which was determined to be applicable to the taxable income of the company for that specific year and not to the rate prescribed by the Act for the relevant year generally in reference to incomes of companies.
143 Elphinstone Spinning and Weaving Mills Co. Ltd. vs Commis sioner of Income tax, Bombay City, , con sidered.
|
Civil Appeal Nos.
12 10 to 12 17 of 1980 etc.
From the Judgment and Order dated the 22nd April, 1980 of the 445 Andhra Pradesh High Court in Writ Appeal Nos.
499, 500 to 505 of 1979 and 144 of 1980.
Anil Dev Singh, G.B. Pai, K. Madhva Reddy, P.A. Choud hary, Hemant Sharma, P. ParmeshWaran, B. Parthasarthi, C.V. Subba Rao, Abbas Naqvi, R.P. Gupta, N.K. Nair, B. Kanta Rao, Chandrashekhar Panda, A.T.M. Sampath, P.N. Ramalingam, R.D. Upadhyay, Ms.S. Janani and A. Subba Rao for the appearing parties.
It may be noted that, except in C.A. 3044/89, the Union of India is the appellant.
The short common question arising in this large batch of appeals is: who is the authority competent to initiate disciplinary proceedings against the Government servants who are the parties here (hereinafter referred to, for conven ience, as 'the respondents ')? There are two sets of appeals before us, one arising out of proceedings in the Ministry of Defence, and the other in the Ministry of Railways.
The rules governing the former are the Central Civil Services (Classification, Control & Appeal) Rules (hereinafter re ferred to as "the Civil Services rules") and those governing the latter are the Railway Servants (Discipline and Appeal) Rules (hereinafter referred to as 'the Railway rules ').
S/Shri G.B. Pai, Anil Dev Singh, P.A. Choudhary, Madhava Reddy, B. Kanta Rao, A. Subba Rao, A.T.M. Sampath, R.D. Upadhyay and others have argued the matters at length and in great detail and we proceed to dispose of these appeals after considering all the aspects urged before us.
We shall take Daniel 's case (C.A. Nos.
1210 to 1217 of 1,980) as illustrative of the cases under the Civil Service Rules.
Though the employees in these and connected matters are Class III employees of Research Laboratories attached to the Ministry of Defence (shortly referred to as DRDL, DMAL, DERL and DLRL), they are serving in civil posts therein and, hence, governed by the Civil Service Rules.
They had been appointed by the Director of the Laboratory.
Disciplinary proceedings were initiated against them by the Director.
There is, therefore, no possibility of any eventual viola tion of the constitutional prohibition in Article 311(1) against a Government servant being dis 446 missed or removed from office by an authority subordinate to the appointing authority.
Still, the respondents contend that the Director is not competent to initiate disciplinary proceedings against them and that it is only the Scientific Adviser to the Government of India a higher authority that can do so.
This contention, based on the relevant provisions of the Civil Service Rules, proceeds on the following lines.
Rules 12 and 13 of the Civil Service Rules deal with this topic and read as follows: "12.
Disciplinary Authorities (1)The President may impose any of the penalties specified in rule 11 on any Government servant.
(2) Without prejudice to the provisions of sub rule (1), but subject to the provisions of sub rule (4), any of the penal ties specified in rule 11 may be imposed on (a) xx XX xx (b) a person appointed to a Central Civil post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the appointing authority or the authority specified in the Schedule in this behalf.
Authority to institute proceedings (1) The President or any other authority empowered by him by general or special order may (a) institute disciplinary proceedings against any Govern ment servant; (b) direct a disciplinary authority to institute discipli nary proceedings against any Government servant on whom that disciplinary authority is competent to impose under I these rules any of the penalties specified in rule 11.
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of 447 rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penal ties specified in clauses (v) to (ix) of rule 11 notwith standing that such disciplinary authority is not competent under these rules to impose any of the latter penalties.
" In these cases, the disciplinary proceedings have been instituted neither by the President nor by an authority directed by him to do so, nor by any other authority empow ered by him, by general or special order, to do so.
The disciplinary authority (D.A.) in the present case, there fore, has to be in terms of rule 12(2)(b), "the appointing authority or the authority specified in the schedule in this behalf".
The "authority specified in the schedule in this behalf", admittedly, is the Scientific Adviser to the Gov ernment of India.
The question next is whether the Director is the "appointing authority" in the case of the respond ents.
This matter is dealt within Rule 9(1) mad with its proviso which read thus: "9. Appointments to other Services and Posts (1) All appointments to the Central Civil Services (other than the General Central Service) Class II, Class III and Class IV, shall be made by authorities specified in this behalf in the Schedule." "Provided that in respect of Class III and Class IV civilian services, or civilian posts m the Defence services appoint ments may be made by officers empowered in this behalf by the aforesaid authorities.
" The 'appointing authority ' specified in the schedule referred to in Rule 9(1), in the case of the respondents, is, again, the Scientific Adviser to the Government of India.
But, by a notification made in exercise of the power conferred by the proviso, he had authorised the Director to make appointments to Class III and Class IV posts in his establishment and, it is common ground, the Director had appointed the respondents in exercise of that power.
In other words, there is no dispute that the Director is the "appointing authority" of the respondents not only in the sense that he was empowered to appoint them under rule 9 but also in the sense that he actually made these appointments.
Nevertheless, it is said, he is not the 'appointing authori ty ' in the case of the respondents within the meaning of rule 12(2)(b).
In support of this argument, attention is drawn to rule 2 which contains 448 the definitions of various expressions for the purposes of the rules which will be applicable in the absence of any thing to the contrary in the relevant context.
Rule 2(a) reads: "(a) 'appointing authority ' in relation to a Government servant means (i) the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the service in which the Government servant is for the time being included, or (ii) the authority empowered to make appointments to the posts which the Government servant for the time being holds, or (iii) the authority which appointed the Government servant to such Service, grade or post, as the case may be, or (iv) where the Government servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that Service or to any grade in that Service or to that post.
whichever authority is the highest authority.
" It will be noticed that this clause refers to two classes of persons: (a) the authority empowered to make appointments to the service, grade or post with which we are concerned sub clauses (i) and (ii) and (b) the authority who actually appointed the Government servant to the service, grade or post in question sub clauses (iii) and (iv).
Each of these is sub divided into two categories but we need not, for the purposes of the present cases, bother about this sub divi sion.
Stopping here, it will be seen, as pointed out al ready, that the Director falls under both the above catego ries as he is empowered to appoint the respondents by virtue of the power delegated to him under the proviso to rule 9(1) and as he has also factually appointed them.
But, it is said, the Scientific Adviser to the Government of India, notwithstanding his having delegated his power to the Direc tor under the proviso, also continues to be an authority empowered to appoint persons to the posts in question under rule 9(1) read with the schedule.
So under the 449 first category of persons indicated above as referred to in rule 2(a) there are two authorities the Scientific Adviser and the Director and under the second category we have the Director.
And, here comes the crucial point on which the respondents bank their entire case: the last few words of rule 2(a) make it clear and specific that the expression 'appointing authority ' means the highest of the authorities mentioned in sub clauses (i) to (iv).
So, it is said, the 'appointing authority ' for purposes of rule 12(2)(b), in the instant case, will be the highest of the three authorities we have referred to above, viz. the Scientific Adviser to the Government of India.
In short, it is contended that, by using the last few significant words in rule 2(a), the Civil Rules seek to ensure that, though the power to appoint persons to a particular post, grade or service may be dele gated under the proviso to rule 9(1), such delegation should not extend to the exercise of disciplinary powers.
It is the clear intention of the rule makers, it is argued, that disciplinary powers should continue to vest in the appoint ing authority mentioned in the schedule read with rule 9(1) and should not be allowed to be exercised by his delegate under the proviso.
The emphasis, it is said, is not on the person who has made, or is empowered to make, the appoint ment of the particular civil servant in question; it is on the person Who makes, or is empowered to make, appointment of persons generally to the post, grade or service to which the civil servant in question belongs.
It is, therefore, urged that though one Class III servants in the laboratory may be appointed by the Director and another by the Scien tific Adviser (who can make such appointment despite the delegation), the disciplinary authority for both and, indeed for all class III servants in the Laboratory, must be the same and cannot be different.
This interpretation of rule 2(a), it is said, is not only quite plain on the language used but has also received the approval of this Court in Dharam Der vs Union, ; Further force is sought to be lent to the argument by pointing out that the expression 'appointing authority ' is used only in rules 2, 10, 12 and 24 of, and the schedule to, the Civil Service rules and that, to refuse to give effect to the definition for purposes of rule 12 is to render the definition clause virtually otiose.
This plea was upheld by the Andhra Pradesh High Court in Danial 's case and, following it, in the other cases before us.
A similar view has been taken in the Delhi High Court in Murishwar vs Union, [1976] Service Law Cases 82 in Union vs Tarlok Singh, cited there in, and by the Calcutta High Court in Union vs Choudhury, But a contrary view has been taken by the M.P. High Court in Chaudhury vs Union, [1977] All India Services Journal 1) and by the Andhra Pradesh High Court in W.A. 793/83 and W.P. 2441/79.
450 The position in respect of ordnance factories which has to be considered in some of the cases is identical, except for the nomenclatures of the respective authorities, and does not need any separate discussion.
To turn, next, to the railway cases, we are concerned with appointees to Group C and Group D of the services, which correspond to class III and class IV of the Civil Services.
In respect of these persons, the relevant provi sions are as follows: "2(1)(a) 'Appointing Authority ', in relation to railway servant, means: (i) the authority empowered to make appointments to the service of which the railway servant is, for the time being, a member or to the grade of the Service in which the railway servant is, for the time being, included, or (ii) the authority empowered to make appointments to the post which the Railway servant, for the time being holds, or (iii) the authority which appointed the Railway servant to such Service, grade or post, as the case may be, or (iv) where the Railway servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment under the Ministry of Railways, the authority which appoint ed him to that service or to any grade in that Service or to that post whichever authority is highest authority".
"2(1)(c) 'Disciplinary Authority ' means (i) in relation to the imposition of a penalty on a Railway Servant, the authority competent, under these rules, to impose on him that penalty; (ii) in relation to rule 9 and clauses (a) and (b) of sub rule (1) of Rule 11 in the case of any Gazetted Railway servant, an authority competent to impose any of the penal ties specified in rule 6. 451 (iii) in relation to rule 9 in the case of any non gazetted Railway servant, an authority competent to impose any of the major penalties specified in rule 6; (iv) in relation to clauses (a) and (b) of sub rule (1) of Rule 11, in the case of a non gazetted Railway servant, an authority competent to impose any of the penalties specified in Rule 6".
Disciplinary authorities (1) The President may impose any of the penalties specified in Rule 6 on any Railway Servant.
(2) Without prejudice to the provisions of sub rule (1), any of the penalties specified in Rule 6 may be imposed on a Railway servant by the authorities as specified in Schedules I, II and III.
(3) The disciplinary authority in the cases of a Railway Servant officiating in a higher post, shall be determined with reference to the officiating post held by him at the time of taking action".
Authority to institute proceeding. (1) The President, or any other authority empowered by him, by general or special order, may (a) institute disciplinary proceedings against any Railway servant; (b) direct a disciplinary authority to institute discipli nary proceedings against any Railway servant on whom that disciplinary proceedings against any Railway servant on whom that disciplinary authority is competent to impose, under these rules, any of the penalties specified in rule 6.
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of Rule 6 may, subject to the provisions of clause (c) of subrule (1) of rule 2, institute disciplinary proceedings against any Railway servant for imposition of any of the penalties 452 specified in clauses (v) to (ix) of rule 6, notwithstanding that such disciplinary authority is not competent under these rules, to impose any of the latter penalties".
Schedule II referred to in rule 7(2) lays down that an order of compulsory retirement, removal or dismissal from service may be ordered, in the case of a Group C or Group D Railway servant by the appointing authority or authority equivalent in rank or any higher authority and Note 2 to the Schedule mentions that such an authority may also impose any tower penalty.
Under rule 275 of the Railway Establishment Code (Vol.
I), which deals with the recruitment, training and promotion of Group C and Group D railway servants, the authority competent to make a first appointment is the General Manager or any lower authority to whom he may dele gate the power.
The General Manager of each Railway has delegated his powers under several heads.
One set of the Schedule of Delegation of Powers by the General Manager of the Southern Railway in Establishment Matters has been set out in some detail in the order of the Central Administra tive Tribunal (CAT) in the case of Gafoor Mia and Ors.
vs Director, DMRL, , (which is one of the orders in appeal before us.) It is neither useful nor neces sary to repeat them here in extenso.
Here also, the argument is that, notwithstanding the delegation of powers of ap pointment of Group C and Group D employees to various other zonal officers, the General Manager has.
not divested him self of the power to make such appointments and continues to be the 'appointing authority '.
Being the highest among the various appointing authorities, he alone stands vested with the power to institute disciplinary proceedings and impose penalties.
It is, therefore, submitted that the disciplinary proceedings, in the cases under this batch, initiated by the Divisional Superintendent and like officers were without jurisdiction and were rightly quashed by the CAT in Gaffoor Mia 's case, already referred to, and the decisions in the other matters before us following the said decision.
This, in crux, is the argument for the respondents.
Before dealing with this argument, it will perhaps be help ful to steer clear of certain minor arguments addressed by either side: (a) Sri Kanta Rao submitted that the same view as in Gafoor Mia, had been taken by the C.A.T. in Supriya Roy 's, case and that this Court has already, on 21.9.88, dismissed S.L.P. Nos.
9956 57 of 1988 filed against the said order.
This appears to be correct but the dismissal in limine of that S.L.P. 453 cannot preclude us from considering the issue in these appeals on merits.
It is seen that, in C.A. 3963/88, an application has been filed for revocation, on this ground, of the leave granted by this Court.
We dismiss this applica tion.
(b) Much store is set, on behalf of the respondents, by the decision of this Court in Dharam Dev 's case '(supra).
It is no doubt true that the decision refers to the provisions of Rule 2(a) and applies the same to the case before it.
But the context in which the case arose was a very simple and straight forward one.
In that case, the employee in question had in fact been appointed by the Comptroller and Auditor General of India (CAG) and he was the highest authority in regard to the service in question.
All that the decision pointed out was that, in view of this and of Article 311, no authority lower in rank to the CAG was competent to take action against the appellant before the Court.
The Court had no occasion to consider the type of controversy that has arisen here and did not consider either the interaction of sub clauses (i) and (iii) of clause (a) of rule 2 or the situation as to whether there could be more than one author ity empowered to appoint persons to a post, grade or service within the meaning of sub clause (i) or (ii) of clause (a) itself.
This decision is therefore not helpful and certain ly not conclusive to solve the issue arising before us.
The same is the position in regard to the decision of this Court in Om Prakash Gupta vs Union, A.I.R. 1975 S.C. 1265 which seems to have been relied on, for the Union, before the CAT.
In that case, the appellant was a temporary Government servant not holding a specified post.
All that this Court pointed out was that, if the definition in rule 2(a) was not applicable to such a person, the word 'appointing authori ty ', understood in its plain and natural meaning would mean the authority which appointed him viz.
the Director General of the Geological Survey of India.
If, on the other hand, the terms of rule 2(a) were applicable the person empowered to appoint the appellant being one Sri Moghe and the person who appointed him being the Director General the latter, who was the higher authority, would be the 'appointing authority '.
This, again, was an instance of a simple and direct application of the rule, involving no complications as here and cannot be treated as deciding the issue before us.
(c) On behalf of the appellant, the Union of India, reliance is placed on section 16 of the .
It is argued 454 that, irrespective of the provisions in the rules, a person who makes an appointment has always an implied power of suspending or dismissing him vide: Heckett Engineering Co. vs Workmen; , There are three difficul ties in accepting this argument.
In the first place, even if the argument is valid, it confers on the factual appointing authority, in terms, only a power to suspend or dismiss and not a power to conduct disciplinary proceedings or impose the various other kinds of penalties envisaged in the rules.
To say that the latter power also comes within section 16, one would need to make a further assumption that the power to suspend or dismiss is a more comprehensive power which would include the power to impose smaller penalties too and this assumption is said to run counter to the rules which deal with the two powers separately.
Secondly, section 16 app.
lies only "unless a different intention appears".
If the con struction placed on the Civil Service Rules and the Railway rules on behalf of the respondents is correct, then the rules express a different intention and it would therefore not be possible to rest on the general principle enunciated by section 16.
The contention has, therefore, to be examined independently and section 16 cannot be an answer to it.
Thirdly, section 16 applies only where a general power of appointment is conferred under an Act or Regulation.
Here the Act or Regu lation (i.e. the Rules) envisage the power of appointment conferred by them on certain authorities being delegated.
The power conferred on the delegatees is circumscribed by the instrument of such delegation and cannot be extended beyond its ambit, as observed by the C.A.T. in Gafoor Mia 's case (supra).
section 16, therefore, does not come to the rescue of the appellants.
(d) An argument was raised at the earlier stages, that the words "whichever is the highest authority" governs only subclause (iv) of rule 2(a) of the Civil Service Rules and not the other sub clauses.
This contention cannot bear a moment 's scrutiny both because the above words occur in the Rules separately from the four sub clause but also because the terms thereof clearly envisage a determination of one who, among several authorities, is the highest.
It, there fore, clearly means that the 'authorities ' falling under the definitions in sub clauses (i) to (iv) have to be ascer tained and the highest among them taken as the disciplinary authority for purposes of rule 12(2)(b).
The above discussion narrows down the controversy before us to a very short issue: Can it be said, where the appoint ing authority under 455 rule 9(1) has delegated his powers of appointment under the proviso, that both the authorities should be treated as the "authority empowered to appoint" persons to the post, grade or service or does this expression get restricted only to the latter, i.e. the delegatee authority? If both fail under the above description within the meaning of sub clause (i), the respondent 's plea that the definition in rule 2(a) will mark out only the Scientific Adviser/General Manager would be correct.
On the other hand, if the second of the above interpretation is correct, the appellant 's stand will have to be upheld.
Learned counsel for the respondents vehemently contend that the authority specified under the schedule read with rule 9(1) does not lose his authority to appoint merely by the act of delegating his powers to a subordinate authority.
Such delegation no doubt empowers the subordinate authority to appoint but does not take away the power of appointment conferred on the authority specified in the schedule read with rule 9(1).
Before dealing with the above contention, we may make reference to certain decisions cited by counsel on the consequences of such delegation.
In Roop Chand vs State, [1963] Suppl.
1 SCR 539 the petitioner had filed an appeal from the order of the Settlement Officer to the State Gov ernment under section 21(4) of the relevant Act.
But the State Government, having delegated under section 41(1) of the Act the right to hear and dispose of the appeals made to it to the Assistant Director (Consolidation), the petitioner 's appeal was disposed of by the said Officer who allowed the same.
The Respondent thereupon sought to invoke a power conferred on the State Government under section 42 of the Act to revise the orders passed by the authorities under the Act.
On a writ petition filed before it the Supreme Court quashed the revisional order passed by the State Government on the simple logic that the order passed under section 41(1) read with section 21(4) was an order of the State Government (though, in fact, passed by a delegate) and could not be "revised" by the State Government itself under section 42.
The Andhra Pradesh High Court speaking through P.A. Choudary, J. in Daniel 's case (since reported in thought that the principle of the case was of no avail to the Union of India which appears to have contended, on the strength thereof, that "though the disciplinary action was initiated by the Director, it must be treated as having been taken by the Scientific Adviser himself because the action of the Director, being that of a delegate, must be regarded in law as that of the principal himself".
The learned Judge repelled the argument, observing: 456 "The ratio of the aforesaid case is that the action of the delegate can be treated as that of the princi pal himself.
Applying the ratio of the above case to the facts of our case, it can be said at the most that the orders of appointments made by the Director, by reason of the statutory delegation made by the Scientific Adviser under Rule 9(1), are those of the Scientific Adviser him self, on the basic that the exercise, of the power delegated to an authority may be treated as an exercise of the power by the principal himself.
Accepting the principle, we cannot agree with the contention of the learned Counsel that the Director 's exer cise of the disciplinary power against the petitioners should be treated as an exercise of disciplinary authority by the Scientific Adviser himself.
The reason is too simple.
Firstly, the statute deals, throughout its provisions, with the disciplinary power as a different and separate power from the power to appoint.
Secondly, the disciplinary power is never delegated by the Scientific Adviser to the Director either under Rule 9(1) or any other rule of the CCA Rules.
It follows, therefore, that the theory of imputation to the principal the acts of the delegate can have no application to such a situation as the one before us.
We, therefore, find that the Roop Chand 's case is of no avail to the re spondents." Though Sri Choudhary, who appeared before us for the re spondents seemed to have second thoughts about this, we are of opinion that the observations extracted above set out the correct position and that the Roop Chand decision is of no help.
An attempt has been made before us to invoke the Roop Chand principle in a different way to support the case of the employees and argue that their appointments made by the Director should be treated as appointments made by the Scientific Adviser himself and that, therefore, no discipli nary action can be initiated against them by any one other than the Scientific Adviser himself.
We do not think that this argument can be accepted.
As observed in Kishore Ku mar 's case a delegation of power does not enhance or improve the hierarchical status of the delegate.
The rule in Roop Chand as to the nature and character of the power exercised by a delegate was enunciated in a particular context.
It cannot be treated as a general principle ap plicable to all situations.
In particular, in the context of rules 2(a) and 12(2) with which we are concerned and which outline a contrast between the person who is empowered to 457 appoint and the person who actually appoints, it is impossi ble to treat the Scientific Adviser/General Manager as the person who appointed the respondents.
Reference has not been made to Daluram Pannalal Modi vs Commissioner, This was a case as to the interpretation of the scope of a delegate 's power.
section 19 of the Madhya Pradesh Sales Tax Act, 1958, empowers the Commis sioner, if he is satisfied that any sale or purchase of goods, has escaped assessment, to make a reassessment.
section 30 of the Act, however, enabled the Commissioner to "delegate any of his powers and duties under the Act" and the Commis sioner, exercising this power, delegated to the Assistant Commissioner his powers and duties to make an assessment or reassessment and to exercise all other powers under Sections 18, 19 and 20.
An assessee challenged a reassessment notice issued by an Assistant Commissioner contending that what had been delegated was only the power of reassessment but not the duty of being satisfied that there was an escapement which, according to the assessee, still remained with the Commissioner.
This argument was repelled and it was held that the requirement of being satisfied was an adjunct of the power to initiate reassessment proceedings.
That princi ple cannot apply here as it is doubtful how far, in the context of the service rules which make a clear distinction between the power to appoint and the power to take discipli nary proceedings, the latter can be said to be adjunct or ancillary to the former.
This leads us to the question whether the appointing authority specified in the schedule can exercise his power of appointment to a post, cadre or service even after he has delegated that power to a subordinate authority under the proviso.
An answer to this question in the affirmative is contended for on the strength of certain authorities which may now be considered.
In Godawari section Parulekar vs State of Maharashtra, 14 the appellant had been de tained by an order passed by the State Government under rule 30 of the Defence of India Rules.
1t was contended on behalf of the appellant, inter alia, that the State Government had earlier issued a notification delegating its powers under rule 30 to the District Magistrate and was so not competent to make the order of detention in question.
Reliance was placed for this argument on the observations of the Judicial Committee in King Emperor vs Shibnath Banerjee, 72 I.A. 241.
These observations were distinguished and the above conten tion was repelled.
It was held that by issuing the notifica tion in question, the State Government had not denuded itself of the power to act under r. 30 (vide Willis J. in 458 Huth vs Clarke, [1890] 25 QBD 39 1.
Learned counsel also referred to the decision of the Karnataka High Court in Ramachandra Rao vs State, This case does hold that a power which is delegated can be exercised both by the delegator and the delegatee, though the Supreme Court decisions cited therein as deciding this issue do not seem to help.
Halsbury 4th Edn., para 32, citing Huth vs Clarke, (supra), summarises the English Law on the subject thus: "In general, a delegation of power does not imply parting with authority.
The delegating body will retain not only the power to revoke the grant but also power to act concurrently on matters within the area of delegated authority except in so far as it may already have become bound by an act of its delegate".
However, the following passage from Wade on Administrative Law (Sixth Edition) at p. 365 would seem to indicate that the position is not quite clear and may need detailed con sideration in an appropriate case: "A statutory power to delegate will normally include a power to revoke the delegation when desired.
While the delegation subsists it may be arguable whether the delegating authority is denuded of its power or is able to exercise it concur rently with the delegate.
This question arose where under statutory authority the executive committee of a county council delegated to a sub committee its powers to make regulations for the control of rabies; but before the sub committee had done anything the executive committee, without revoking the delegation, itself issued regulations for the muzzling of dogs.
These regulations were upheld, but on inconsistent grounds, one judge holding that the executive committee had resumed its power and the other that it had never parted with them, and that 'the word "delegate" means little more than an agent.
In a later case the latter view prevailed, on the ground that 'one cannot divest oneself of one 's statutory duties '.
But the contrary was held by the Court of Appeal where a minister had formally delegated to local authorities his power to requisition houses.
By doing this he had for the time being divested himself of his powers, so that an invalid requisition by the local authori ty could not be cured by their acting in his name; and the court rejected the contention that 459 delegation was a form of agency.
The Local Government Act 1972 expressly preserves the powers of a local authority concurrently with those delegated to its commits, etc.
" We do not think it is necessary to go into this question.
In view of the decision in Godawari (supra), we shall accept the general proposition that the delegation of the power of appointment under the proviso to rule 9(1) does not neces sarily deprive the disciplinary authority specified in the main part of the rule from exercising the delegated power of appointment in any case or class of cases.
Still the basic question that remains is, whether, in the context of rule 2(a) read with rule 9(1), the reference to the authority empowered to make the appointment is to the authority mentioned in the proviso to rule 9 or to both the authorities falling under the main part 01 ' rule 9(1) as well as the proviso.
The sheet anchor of the respondent 's case is that the expression 'appointing authority ' is used in very few of the rules.
One of them is rule 12 and there can, therefore, be no valid reason to refuse to apply the definition clause in the context of those rules.
It is urged that, by holding the person specified in the schedule also to be the 'appointing authority ' as defined in rule 2(a), none of the other rules relating to appeal, revision etc.
become redundant as urged on behalf of the appellants.
We agree with the respondents that the expression 'appointing authority ' in rule 12 should have the meaning attributed to it in rule 2(a).
But what is the real and true interpreta tion of Rule 2(a)? What does that sub rule talk of when it refers to a 'person empowered to make the appointment ' in question? These words clearly constitute a reference to rule 9.
Does rule 2(a) refer then to the authority empowered by the schedule to make the appointments or the authority to whom he has delegated that power or both? We think, on a proper and harmonious reading of rule 2(a) and rule 9, that sub rule (a) of rule 2 only envisages the authority to whom the power of appointment has been delegated under rule 9 and not both the delegator and the delegate.
We have come to this conclusion for a number of reasons.
In the first place, it is clear on the plain language of rule 2(a), that it directs the ascertainment of the authorities specified, in such of clauses (i) to (iv) of the rule as may be applicable to a particular case and designates the highest of them as the 'appointing authority '.
It envisages only one authority as falling under each of these clauses and not more.
The respondent 's contention which involves interpretation of clause (i) or (ii) as contemplating more than one authority runs counter to the tenor of the rule.
Secondly, the strict ly literal meaning of rule 2(a) insisted upon by the re spondents 460 would render the rules unworkable.
For instance, under clause (i), one of the authorities to be considered is the 'authority empowered to make appointments to the service of which the government servant is for the time being a mem ber '.
The respondents belong to one of the Central Civil Services.
Though they belong to class III or class IV, there are class and class II officers as well therein.
Rule 8 declares that only the President can make appointments to Class I in the service.
If each of the clauses is read as envisaging a plurality of authorities as contended for and if clause (i) is literally interpreted, it will also include the President who is one of the authorities empowered to make appointments to the service of which the concerned employees is a member.
This will render the entire gamut of the rules unworkable.
On this interpretation, the President will be the only appointing authority under rule 2(a) in all cases, being the highest of the authorities envisaged there in.
This cannot clearly be correct.
Rule 2(a) does not contemplate any authority other than the one empowered to appoint a person belonging to the post or grade which the concerned government employee holds.
In that sense the two parts of clause (i) and clause (ii) are not to be read distributively to ascertain the authority empowered to make appointments (a) to the service (b) to the grade and (c) to the post and consider the highest of them.
One has to re strict oneself to the post or grade of the government serv ant concerned and invoke clause (i) or (ii) as the case may be.
Thirdly, the whole purpose and intent of rule 2(a) is to provide that appointing authority means either the de facto or the de jure appointing authority.
It will be appreciated that, generally speaking, only the de jure authority can make the appointment but, occasionally, a superior authority or even a subordinate authority (with his consent) could have made the appointment.
Again it is possible that the authority empowered to make the appointment at the time when relevant proceedings in contemplation may be higher or lower in rank to the authority which was empowered to make the appointment or which made the appointment at a different point of time.
The whole intent or purpose of the definition to safeguard against an infringement of article 311(1) and ensure that a person can be dealt with only by either a person competent to appoint persons of his class or the person who appointed him, whoever happens to be higher in rank.
That rule is not infringed by the interpretation placed by the appellants.
The provisions of Schedule II in the case of the Railways which specify the appointing au thority or an authority of equivalent rank or any higher authority as the disciplinary authority are also consistent with this interpretation.
Fourthly, the interpretation sought to be placed by the respondents on rule 2(a) is artificial and strained.
It amounts to saying that a person who is 461 empowered to appoint a government servant (as the Director, DERL, for example, undoubtedly is) and who has also appoint ed him will not be the appointing authority, because, theo retically, even a more superior authority could have ap pointed him despite having delegated his authority in this regard to a subordinate.
On the contrary, the interpretation urged by the Union will not adversely affect the few employ ees, if any, who may be appointed by a superior scheduled authority despite delegation of such power to a subordinate authority.
For, in such a case, the superior authority would be the person who has factually appointed such an employee and he will clearly be the 'appointing authority ' by virtue of rule 2(a).
Lastly, the interpretation sought for by the Union is consistent with practical consideration.
The ap pointing authority under the Schedule is a high ranking authority and, in an organisation like the Railways for instance, it will be virtually impossible for him to consid er each and every case of appointment of, or disciplinary action against all the Class III or Class IV employees in the organisation.
It is indeed this realisation that has rendered necessary delegation of the power of appointment and cannot be ignored, in the absence of compelling reasons, in the matter of disciplinary powers.
On behalf of the respondents, it is contended that the intention of the rules is to restrict powers of discipline from being exercised by all appointing authorities.
Central isation, it is urged, is the object.
This contention is not borne out by the table of innumerable disciplinary authori ties set out in the schedule, not to speak of those on whom factual or special powers have been conferred by the Presi dent (as was indeed done in many of these very cases later).
As against this, Sri Pai, for the appellants pointed out that if one has regard to the strength of the railway staff or the other class III or IV staff employed in various civil services, the interpretation urged on behalf of the respond ents would cast an impossible burden of work on the authori ties specified in the schedule to whom alone the respondents seek to confine the power to take disciplinary proceedings.
There is force in this contention.
It has been brought to our notice that notifications have since been issued (for example on 29th August 1979 in the case of the DERL and 2.1.87 in the case of Ordnance factories) by the President under rule 12 empowering certain authorities to exercise disciplinary powers.
We need hardly say that any disciplinary proceedings initiated by such authorities from the date when such notifications came into effect will be perfectly valid.
It has also been brought to our notice that, in some cases, (for example, C.A. Nos.
1443, 1444 and 4340/88), the CAT has 462 also gone into the merits of the cases and set aside the penalties or punishments imposed on the concerned respond ent.
We do not propose to review the finding on this aspect of the matter under Article 136.
C.A. No. 1444/88, .we are told, has also abated as the appellant has taken no steps to bring on record the legal representatives of the respondent but, in view of the Tribunal 's findings on merits, it is unnecessary to go 'into this question now.
The order of the CAT, in such cases, will therefore, stand notwithstanding our conclusion being different from that of the CAT on the main issue discussed above On the other hand, in most cases, the CAT, because of the view taken by it on the main ques tion, 'has not dealt with the merits of the proceedings.
For example, it was mentioned that in C.A. 316/81, the respond ent has been removed from service by the Deputy Director, an authority subordinate to the Director who had appointed him.
This aspect has not been considered and will have to be considered now.
Similarly, in C.A. 3044/89 filed by the employee, it is pointed out that the appellant had been appointed by the Director of Ordnance Services in 1964.
The power of appointment was delegated to Commandants in 1971 and the respondent was penalised by the Commandant, a subor dinate authority, to whom disciplinary powers were delegate by the President only in 1979.
Though this point does not appear to have been raised before the Tribunal, it goes to the root of the matter and we, therefore, think that it should be left open to be considered by the Tribunal now.
As the cases before us are many and were decided princi pally on the point of law discussed earlier, we have not touched upon the facts or merits of individual cases.
We set aside the orders of the CAT in all cases except C.A. Nos.
1443 and 4340/88 which stand dismissed as mentioned above and direct the Tribunal/High Court.
to pass fresh orders disposing of the applications filed before them in the light of our judgment.
Where disciplinary proceedings have been stayed at the stage of initiation or later because of the view taken by the Tribunal, they should now be con tinued and finished without delay in accordance with law.
The appeals are disposed of accordingly.
T.N.A. Appeals disposed of.
| IN-Abs | The respondents were holding class III civil posts in the Research Laboratories attached to the Ministry of De fence.
Under the Central Civil Services (Classification, Control and Appeal) Rules, 1965, their 'appointing authori ty ' was the Scientific Adviser.
But the appointing authori ty, the Scientific Adviser, delegated his power of appoint ment to the Director under Proviso to Rule 9(1).
Pursuant to the delegated power.
the Director appointed the respondents.
Subsequently, the Director initiated disciplinary proceed ings against the respondents.
Similarly for the respondents, in the connected appeals, belonging to Group C and D employees of the Railways the competent authority, prescribed under the Railway Establish ment Code.
to make appointments was the General Manager.
But the General Manager delegated his power of appointment to Zonal Officers/Divisional Superintendents.
Pursuant to the delegated power the Divisional Superintendents appointed the respondents.
Subsequently, disciplinary proceedings were initiated against the respondents by the Divisional Superin tendents.
The respondents challenged the disciplinary proceedings before the Central Administrative Tribunal contending that they were without jurisdiction since the Director and the Divisional Superintending were not competent to initiate the disciplinary proceedings.
The Central Administrative Tribu nal accepted the plea and quashed the proceedings.
In appeals to this Court it was contended on behalf of the respondents (i) that the Director was not competent to initiate disciplinary proceedings against them and only the Scientific Adviser, a higher authority, could do so; the expression "whichever authority is the high 442 est authority" in Rule 2(a) governs only sub clause (iv) of Rule and this expression seeks to ensure that though the power to appoint may have been delegated under the Proviso to Rule 9(1), such delegation does not extend to the exer cise of disciplinary powers; (ii) that appointments made by the Scientific Adviser should be treated as .appointments made by the Scientific Adviser himself with the result that a subordinate authority could not initiate disciplinary action against the respondent.
Also, in the connected railway cases, it was contended on behalf of the respondents that notwithstanding the delegation of powers of appointment by the General Manag er, he, being the highest amongst the various appointing authorities, was alone competent to institute disciplinary proceedings.
On behalf of the appellant, Union of India, it was contended: (i) that on a proper interpretation of the rules, the Director Zonal Officer/Divisional Superintendents were competent to initiate the proceedings and (ii) that, irre spective of the provisions in the rules, a person who makes an appointment has always an implied power of suspending or dismissing the appointee under section 16 of the .
Disposing of the appeals, this Court, HELD: 1.
The delegation of the power of appointment under the Proviso to rule 9(1) does not necessarily deprive the disciplinary authority specified in the main part of the rule from exercising the delegated power of appointment in any case or class of cases.
[459B] Godawari section Parulekar vs State of Maharashtra, ; ; followed.
Ramachandra Rao vs State, ; Hals bury 's Laws of England, 4th Edn., pare 32; Wade on Adminis trative Law, 6th Edn., P. 365, referred to.
King Emperor vs Shibnath Banerjee, 72 I.A. 241; Huth vs Clarke, , cited.
A proper and harmonious reading of rules 2(a) and rule 9 shows that sub rule (a) of rule 2 only envisages the authority to whom the power of appointment has been delegat ed under rule 9 and not both the delegator and the delega tee.
Rule 2(a) directs the ascertainment of the authorities specified, in such of clauses (i) to (iv) of the rule as may be applicable to a particular case and designates the high est of them as the 'appointing authority '.
It envisages only one authority as failing under each of these clauses and not more.
An inter pretation of clause 443 (i) or (ii) as contemplating more than one authority runs counter to the tenor of the rule.
The said rule does not contemplate any authority other than the one empowered to appoint a person belonging to the post or grade which the concerned government employees holds.
In that sense the two parts of clause (i) and clause (ii) are not to be read disjunctively to ascertain the authority empowered to make appointments (a) to the service (b) to the grade and (c) to the post and consider the highest of them.
One has to re strict oneself to the post or grade of the government serv ant concerned and invoke clause (i) or (ii) as the case may be.
[459F H; 460C D] Dharma Dey vs Union of India, ; ; Om Prakash Gupta vs Union of India, A.I.R. 1975 S.C. 1265, explained and held inapplicable.
Murishwar vs Union, ; Union vs Choud hary, ; Choudhary vs Union, , cited.
2.1 In Rule 2(a), not only do the words "whichever is the highest authority" occur in the Rules separately from the four sub clauses but the terms thereof also clearly envisage a determination of one who, among several authori ties, is the highest.
It, therefore, clearly means that the 'authorities ' falling under the definition in sub clauses (i) to (iv) have to be ascertained and the highest among them taken as the disciplinary authority for purposes of rule 12(2)(b).
[449B] 3.
The appointing authority under the Schedule is a high ranking authority and, in an organisation like the Railways for instance, it will be virtually impossible for him to consider each and every case of appointment of, or disciplinary action against, all the Class III or Class IV employees in the organisation.
It is indeed this realisation that has rendered necessary a delegation of the power of appointment and cannot be ignored, in the absence of compel ling reasons, in the matter of disciplinary powers.
[461C D] 4.
In the context of rules 2(a) and 12(2) which outline a contrast between the person who is empowered to appoint and the person who actually appoints, it is impossible to treat the Scientific Adviser/General Manager as the person who appointed the respondents.
[456H; 457A] Roop Chand vs State, [1963] Supp. 1 S.C.R. 539, held inapplicable.
444 B. Daniel & Ors.
vs Union of India, , referred to.
4.1 A delegation of power does not enhance or improve the hierarchical status of the delegate.
[456G] Krishna Kumar vs Electrical Engineer Central Railway & Ors., , referred to.
It is doubtful how far, in the context of the service rules which make a clear distinction between the power to appoint and the power to take disciplinary proceedings, the latter can be said to be adjunct or ancillary to the former.
[457D E] Daluram Pannalal Modi vs Commissioner, [1964] 2 S.C.R. 286, held inapplicable.
Section 16 of the confers on the factual appointing authority, in terms, only a power to suspend or dismiss and not a power to conduct disciplinary proceedings or impose the various other kinds of penalties envisaged in the rules.
To say that the latter power also comes within section 16, one would need to make a further assump tion that the power to suspend or dismiss is a more compre hensive power which would include the power to impose small er penalties too and this assumption is said to run counter to the rules which deal with the two powers separately.
The said section applies only "unless a different intention appears".
It applies only where a general power of appoint ment is conferred under an Act or Regulation.
Here the Act or Regulation i.e. the Rules envisage the power of appoint ment conferred by them on certain authorities being delegat ed.
The power conferred on the delegatees is circumscribed by the instrument of such delegation and cannot be extended beyond its ambit.
[454B E] Heckett Engineering Co. vs Workmen, ; ; Gafoor Mia and Ors.
vs Director, DMRL, , referred to.
The dismissal in limine of the Special Leave Petition cannot preclude the Tribunal or Court from considering the issue in the appeals on merits.[452H; 453A]
|
ivil Appeal No. 1837 of 1990.
From the Judgment and Order dated 17.1.1989 of the Patna High Court in C.W.J.C. No. 4276 of 1988, A. Sharan for the Appellants.
Pankaj Kalra and Pramod Swarup for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Delay condoned.
Special leave granted.
This appeal arises out of the decision of the Patna High Court 470 whereby it struck down the selection made for appointments in the junior teaching posts in medical colleges in the State and directed a fresh selection list to be prepared after shifting the last date for receipt of applications to 30th June, 1988.
The facts giving rise to this appeal, briefly stated, are as under.
The State of Bihar published an advertisement inviting applications for appointment to the posts of (i) Assistant Professor (clinical subject); (ii) Registrar; (iii) Assist ant Clinical Pathologist; (iv) Anesthetist; (v) Resident Medical Officer and (vi) Demonstrator (Tutor) in non clini cal subject for different Medical Colleges and Medical College Hospitals in the State of Bihar.
For the post of Assistant Professor only such officers who had worked as Resident or Registrar in Medical Hospital recognised for imparting M.B.B.S. studies by the Medical Council of India and having three years experience of such post were consid ered eligible.
The last date for receipt of the application was fixed as 31st January, 1988.
Pursuant to the said adver tisement applications were received from eligible candidates and the select list or panel was prepared for appointments to the respective posts.
The respondents and some interven ors who held appointments as junior teachers in one or the other Medical Colleges in the State questioned the validity of the State 's action of inviting applications for prepara tion of a list for appointments to the advertised posts mainly on the ground that the last date for receipt of applications fixed as 31st January, 1988 (hereinafter called 'the cut off date ') deprived them of the opportunity to compete for the posts as they did not complete the requisite experience criterion of three years by that time.
It was contended that this cut off date was arbitrarily fixed and was, therefore, violative of Article 14 of the Constitution.
The High Court took the view that the State Government had deviated from its usual practice of fixing the cut off date as 30th of June of the relevant year.
This is clear from the following observation made by the High Court: " . . advertisement in the past including one in the year 1983 (Annexure 1) always fixed 31st June as the date " . (Emphasis supplied) The use of the word 'always ' indicates that the High Court was under the impression that in the past the cut off date was always fixed as 31st June (it should be 30th June) for the preparation of the panel for appointments to the posts in question.
Elsewhere also in the judgment there are obser vations which disclose that the High Court laboured 471 under the belief that the cut off date was always fixed as 30th of June of the relevant year.
This becomes obvious from the following criticism also: "If the State is determined to achieve such a goal and is ready to make its activity predictable it is a welcome sign but such desired predictability can equally be achieved by adhering to the schedule of the past and maintaining 30th June of the years as the last date for the application.
If they had not followed any rule in the past and they propose to follow a rule in this regard in future, they can do so without causing any violation to any legal right of any incumbent by at least showing adherence to the reckoning date which until now had been the last date of the month of June of the year." (Emphasis supplied) On this line of reasoning the High Court came to the conclu sion 'that the State Govermnent had acted arbitrarily in fixing the last date fox receipt of applications as 31st January, 1988 under the advertisement published on 29th December, 1987.
The High Court while upholding the conten tion based on Article 14 further observed "we would have ignored the arbitrariness in taking 31st January of the year as the reckoning date had we not taken notice of recalci trance of the, respondents in taking no step in the years intervening the selection in the year 1983 and the present selection".
The High Court, therefore, felt satisfied that there was no rationale in departing from the past practice and selecting 31st January, 1988 as the last date.
It is felt that in all fairness 30th of June of the year would be 'the .preferable date ' for reckoning the eligibility of the candidates.
The State Government was, therefore, directed to shift the last date for receipt of the applications from 3 1st January 1988 to 30th June, 1988 and to prepare a fresh panel thereafter and make appointments to the posts in question therefrom.
The State of Bihar feeling aggrieved by this order has approached this Court by special leave.
The learned counsel for the State submitted that the decision of the High Court was based on an erroneous premise that the cut off date for eligibility purposes was 'always ' fixed as 30th of June of the relevant year in the past.
In order to dispel this assumption made by the High Court without examining the past advertisements the State Government has placed before us the advertisements issued from 1974 to 1980 which shows that different cut off dates were fixed under these different advertisements and at no time in the past between 1974 and 1980 was 30th of June fixed as the 472 relevant date.
It is true that the High Court did not have the benefit of the earlier advertisements but it is equally true that there was no material on the record of the High Court for concluding that in the past the cut off date was 'always ' fixed as 30th of June of the relevant year.
From the copies of the advertisements from 1974 to 1980 it tran spires that generally the cut off date was fixed between one to one and a half months after the date of issuance of the advertisement.
In the year 1983 for the first time the cut off date was fixed as 30th June, 1983.
On some occasions in the past the cut off date was extended, depending on the facts and circumstances obtaining at the relevant point of time.
It, therefore, becomes obvious from this documentary evidence that the factual premise on which the High Court has based its judgment is clearly erroneous.
The High Court was in error in thinking that in the past the cut off date was always fixed as 30th of June of the relevant year.
In fact except for a solitary occasion in 1983 when the cut off date was fixed as 30th June, 1983, at no other time in the past was that date fixed as the last date for receipt of the applications.
No advertisements were admittedly issued after 1983 and before the advertisement in question.
The present advertisement was published on 29th December, 1987 and the last date for receipt of applications was fixed thereunder as 3 ist January, 1988 leaving a time gap of a little over a month.
As pointed out earlier, on a perusal of the adver tisements issued from 1974 to 1980 it becomes obvious that normally the cut off date was fixed one or one and a half months after the date of advertisement.
It was, therefore, not the uniform practice of the State Government to fix the cut off date for eligibility purposes as 30th of June of the relevant year as was assumed by the High Court.
Once it is found that the High Court has based its decision on an erroneous assumption of fact, the decision cannot be allowed to stand.
It was, however, argued by the learned counsel for the respondents that the State Government should not be permit ted to introduce new facts in the form of advertisements issued from 1974 to 1980.
We do not think that such a tech nical approach would be justified for the simple reason that the assumption of fact made by the High Court is not borne out from record.
No material was placed before the High Court to justify the conclusion that 30th of June of the relevant year was 'always ' fixed as the cut off date in the past.
The High Court 's assumption of fact is, therefore, based on no evidence at all.
We have, therefore, thought it fit to permit the State Government to place material on record to justify its contention that the High Court had committed a grave error in assuming that in the past the cut off date was always fixed as 30th of June of the rele vant year.
473 It was next contended that this Court should not inter fere in exercise of its extra ordinary Jurisdiction under Article 136 of the Constitution.
In support of this conten tion reliance was placed on the observations of this Court in Municipal Board.
Pratabgarh & Anr.
vs Mahendra Singh Chawla & Ors., wherein this Court while correcting an error of law refused to interfere with the decision of the High Court directing reinstatement of the workman on the finding that the termination order was in valid.
That was, however, a case where the Court came to the conclusion that the employee was a capable hand and his services were actually needed by the appellant Municipal Board.
It was in those special circumstances that this Court while correcting the error refused to interfere with the order of reinstatement.
The decision, therefore, turned on the special facts of that case.
The appellant invited our attention to two decisions of this Court, namely, Union of India & Anr.
vs M/s. Pararnes waran Match Works & Ors., [1975]1 SCC 305 and Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitikaran Abhiyan Samiti, Varanasi vs State of U.P. & Ors.
in sup port of its contention that the High Court was in error in holding that the State had acted arbitrarily in fixing the cut off date.
In the first mentioned case by Notification No. 162 dated 21st July, 1967, which superseded the earlier notifications, provision was made that if a manufacturer gave a declaration that the total clearance from the factory will not exceed 75 million matches during a financial year, he would be entitled to a concessional rate of duty.
This Notification was amended by Notification No.205 dated 4th September, 1967, clause (b) whereof confined the concession, inter alia to factories whose total clearance of matches during the financial year 1967 68, as per declaration made by the manufacturer before 4th September, 1967, was not estimated to exceed 75 million matches.
Thus, the conces sional rate of duty could be availed of only by those who made the declaration before 4th September, 1967.
The re spondent was not a manufacturer before 4th September, 1967 as he had sought for a licence on 5th September, 1967 and was therefore, in no position to made the declaration before 4th September, 1967.
The respondent, therefore, challenged the cut off date of 4th September, 1967 as arbitrary.
Deal ing with the contention, this Court observed as under: "In the matter of granting concession or exemption from tax, the Government has a wide latitude of discretion.
1t need not give exemption or concession to everyone in order 474 that it may grant the same to some.
As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated, if, by adopting the device of fragmentation, the larger units could become the ultimate beneficiaries of the bounty.
" While pointing out that a classification could be rounded on a particular date and yet be reasonable, this Court observed that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless the circum stances show it to be capricious or whimsical.
When it is necessary for the legislature or the authorities to fix a line or a date and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or authority must be accepted unless it is shown to be capri cious or whimsical or wide off the reasonable mark.
In the second mentioned case this Court, while upholding the con stitutional validity of section 31 B of the U.P.Higher Educational Service Commission Act, 1980, answered two contentions, namely, (1) adoption of the cut off date in the said section as 3rd January, 1984 for the purposes of regu larisation of the services of ad hoc teachers appointed by the management of the affiliated colleges was arbitrary and irrational and violative of Article 14 inasmuch as equals were treated as unequals, and (ii) the Legislature could not arbitrarily adopt 3rd January, 1984 as the cut off date for regularisation of the services of ad hoc teachers merely because that was the date on which the 1983 order expired.
Agreeing with the High Court that the fixation of the date for the purposes of regularisation was not arbitrary or irrational, this Court observed that the object of section 3 I B was to regularise the services of ad hoc teachers ap pointed under the 1983 order till 3rd January, 1984.Ad hoc teachers who had been appointed prior to that date had legal sanction and therefore they constituted a distinct class.
This Court, therefore, felt that the legislature could not have adopted any other basis for purposes of regularisation and refused to interfere with the High Court 's order.
In the present case as pointed out earlier the past practice was to fix the last date for receipt of applica tions a month or one and a half months after the date of actual publication of the advertisement.
Following the past practice the State Government fixed the last date for re ceipt of applications as 31st January 1988.
Those who had . the required experience of three years by that date were, therefore, eligible to apply for the posts in question.
The respondents and some 475 of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution.
It is obvious that in fixing the last date as 31st January, 1988 the State Government had only followed the past practice and if the High Court 's attention had been invited to this fact it would perhaps have refused to inter fere since its interference is based on the erroneous belief that the past practice was to fix 30th of June of the rele vant year as the last date for receipt of applications.
Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date.
As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark.
The choice of the date for advertising the posts had to depend on several factors, e.g., the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc.
It is not the case of any one that experienced candi dates were not available in sufficient numbers on the cut off date.
Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31st January, 1988 to 30th June, 1988 is no reason for dubbing the earlier date as arbitrary or irrational.
We are, therefore, of the opinion that the High Court was clearly in error in striking down the Government 's action of fixing the last date for receipt of applications as 31st January, 1988 as arbitrary.
It was lastly contended that the State Government had given an undertaking to the High Court that 'no appointment shall be made from any previous panel and that, as decided by this Court, if the panel, which is likely to be prepared pursuant to the advertisement in question, is allowed, appointments shall be made from the same panel or if that panel is not allowed and a new panel is required to be prepared, as directed by this Court, appointments shall be made from the same panel '.
This undertaking, in our opinion, cannot preclude the State from challenging the decision of the High Court.
In the result, this appeal succeeds.
The impugned deci sion of the High Court is set aside and the Writ Petition which has given rise to this appeal will stand dismissed with no order as to costs throughout.
Y. Lal Appeal allowed.
| IN-Abs | The State of Bihar published an advertisement inviting applications for appointments to the junior teaching posts in medical colleges in the State of Bihar.
For the post of Assistant Professor.
only such officers who had worked as Resident or Registrar in Medical Hospitals recognised for imparting M.B.B.S. studies by the Medical Council of India and having three years experience of such post were consid ered eligible.
The last date for receipt of applications was fixed as 31st January 1988.
Pursuant to the said advertise ment.
applications from eligible candidates were received and a select list or panel was prepared for appointments to the respective posts.
The respondents and some other inter venors who were working then in the Medical colleges as junior teachers challenged the State action in fixing the 3 1st of January 1988 as the cut off date for receipt of applications for the advertised posts.
as they had by then not completed three years which was prescribed as the requi site experience.
It was contended by them that the cut off date was arbitrarily fixed and was therefore violative of Article 14 of the Constitution.
The High Court took the view that the State Government in fixing the 31st January 1988 as the cut off date.
had deviated from its usual practice of fixing the cut off date as 30th of June of the relevant year.
Hence this appeal by the State of Bihar by special leave.
It is contended by the State that the decision of the High Court was based on an erroneous premise that the cut off date for eligibility purposes was 'always ' fixed as 30th of June of the relevant year in the past.
Allowing the appeal, this Court.
HELD: The past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement.
Following the past practice the State 469 Government fixed the last date for receipt of applications as 31st January 1988.
These who had completed the required experience of three years by that date were.
therefore.
eligible to apply for the posts in question.
[474G H] The choice of date cannot be dubbed as arbitrary even if no particular reason is forth coming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark.
The choice of 'the date for advertising the post had to depend on several factors, e.g. the number of vacancies in different disciplines.
the need to fill up the posts.
the availability of candidates etc., [475C D] Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31st January 1988 to 30th June 1988.
is no reason for dubbing the earlier date as arbitrary or irrational.
[475D] The High Court was clearly in error in striking down the Government 's action of fixing the last date for receipt of application as 31st January 1988 as arbitrary.
[475E] Municipal Board, Pratabgarh & Anr.
vs Mahendra Singh Chawla & Ors., ; Union of India & Anr.
vs M/s. Parameswaran Match Works & Ors., ; and Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitika ran Abhiyan Samiti, Varanasi vs State of Uttar Pradesh & Ors., , referred to.
|
.L.P. (Civil) No. 8896 of 1985.
From the Judgment and Order dated 18.12.
1984 of the Madras High Court in Civil Revision Petition No. 5539 of 1983.
WITH C.M.P. No. 28592 of 1988.
488 R.F. Nariman, J.P. Pathak, M.B. Shivraj and P.H. Parekh for the Petitioner.
T.S. Krishnamurthy Iyer and Mrs. section Dikshit for the Respondent.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
We have heard both the sides and the matter is being disposed of at the admission stage.
This petition is directed against the order of a learned Single Judge of the Madras High Court confirming the order passed by the Subordinate Judge, Nilgiris.
The matter arises under the ( 'Act ' for short) and the facts that give rise to the petition are as follows: The testatrix Mary Aline Browne was the wife of Herbet Evander Browne who was the eldest son of one John Browne.
The testatrix had a daughter of the name of Zoe Enid Browne and she died on 8.10.1977.
The respondent claiming to be the beneficiary to the estate of Mary Aline Browne who died on 28.3.1972 under the terms of a will said to have been exe cuted by her on 12.3.
1962 filed an application for letters of Administration with a copy of the will annexed in the Sub Court, Nilgiris.
The same is numbered as O.S. No. 23 of 1980.
Alongwith the application the respondent also filed an affidavit of an attestor of the Will.
In that proceeding, the petitioner and her deceased husband lodged a caveat on the ground that the said Mary Aline Browne did not execute any will and the will propounded by the respondent was a fictitious and forged one, intended to disentitle Zoe Enid Browne, daughter of the testatrix from claiming interest in the estate of her mother.
The petitioner also claimed that Zoe Enid Browne executed a will dated 23.6.1975 in favour of the petitioner and that she also executed a gift deed in her favour.
The petitioner also claimed that she was a trustee of John Browne Trust and that therefore, the peti tioner has caveatable interest.
Thus they opposed the pro bate of the will.
Before the Sub Court, several documents were filed.
The respondent herein contested the caveat stating that the petitioner herein has no interest in the estate.
The learned Subordinate Judge held that the peti tioner is not in any manner related either to Mary Aline Browne or Zoe Enid Browne.
The learned Single Judge of the High Court in an elaborate order having considered the rival contentions dismissed the Civil Revision Petition holding that the 489 petitioner cannot claim to be a person who has a caveatable interest in the estate of the deceased testatrix Mary Aline Browne.
We are told that the will has subsequently been probated and the letters of Administration have been grant ed.
The learned counsel for the petitioner contended that both the courts below have erred in holding that the peti tioner has no caveatable interest.
It is submitted that the petitioner is executor and legatee of the will dated 23.6.1975 executed by Miss Zoe Enid Browne daughter of Mrs. Mary Aline Browne and that Miss Zoe has also executed a registered gift deed dated 29.3.1974 in respect of the second item of the estate and that the petitioner was also appointed a trustee of John Browne Trust on 11.6.1975 and therefore, in law the petitioner has an interest in the property which is the subject matter of the will and thus have caveatable interest.
Under Section 283 of the , the District Judge or District Delegate may, if he thinks proper, issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.
Section 284 provides for lodging caveat against grant of probate or administration.
Section 285 lays down that no proceeding shall be taken on a petition for probate or letters of administration after a caveat against the grant thereof has been entered until the notice has been given to the caveator.
Section 286 deals with the power of a District Delegate and lays down that he shall not grant probate or letters of administration in any case in which there is "contention" as to the grant, or in which it otherwise appears to him that probate or letters of administration, ought not to be granted in this Court.
Under Section 288 where there is contention or where the District Delegate thinks that probate or letters of administration should be refused, the documents shall be returned to the applicant.
In the instant case the Sub Judge comes within the meaning of the District Delegate and the necessary powers were conferred on him by a notification which is not in dispute.
According to the learned counsel the petitioner duly lodged a caveat against the grant of probate and that both the courts below have not properly appreciated the effect of such a contention and erred in striking off the petitioner 's caveat.
In Nabin Chandra Guha vs Nibaran Chandra Biswas and Ors., AIR 1932 Calcutta 734, the Division Bench held that a person who has a real interest in the estate which is or is likely to be prejudicially 490 affected or adversely affected by the will can oppose the grant of probate or letters of administration.
In Gourishan kar Chattoraj vs Smt.
Satyabati Debi, AIR 1931 Calcutta 470, it is held that the petitioner therein who was related to the deceased through a common ancestor, can be said to have interest in opposing the application for probate.
In Shanti Devi Aggarwalla vs Kusum Kumari Sarkar & Ors., , Justice Ranganath Misra, as he then was, held that the vendor legatee is entitled to enter caveat and the purchaser having stepped into the shoes of vendor is also entitled to enter the caveat.
In Narayan Sah vs Smt.
Davaki, AIR 1978 Patna 220, considering the locus standi of a person to oppose grant, it is held that any interest, however, slight and even a bare possibility of an interest is suffi cient to entitle a person to enter caveat in a probate proceeding.
Relying on these decisions the learned counsel urged that the petitioner in the instant case has substantial interest in the estate.
The learned counsel for the respond ent did not dispute the legal position.
He, however, con tended that there was absolutely no material before the Courts below to substantiate the alleged interest of the petitioner in the estate.
It is submitted that the so called will said to have been executed by Miss Zoe Enid Browne, daughter of Mrs. Mary Aline Browne has not been filed.
Likewise, the gift deed also was not filed.
Coming to the trust of John Browne it is submitted that the trust does not exist and got extinguished.
The learned counsel for the respondent further submitted that except mentioning these three aspects in a bare manner no other material was placed before the Court.
Having gone through both the orders we are reclined to agree with the learned counsel for the respond ent that the petitioner did not establish her caveatable interest.
We have perused the entire order of the trial court in this context.
Admittedly neither the original nor a copy of the will said to have been executed by Zoe Enid Browne, was filed.
Now coming to the trust, it is in the evidence of P.W. 1 that John Browne Trust has come to an end in March, 1972 and the same was not in existence.
The trial court has considered both the documentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust.
Likewise the registered gift deed or a copy of it has not been filed.
Before the learned Single Judge of the High Court also same contentions were put forward.
The learned Judge observed that from the objections filed by the caveator she desires the Court in the probate proceedings to uphold her title on the strength of a gift deed and the Trust deed.
It is observed: "Equally, the petitioner has not placed before the Court 491 the will dated 23.6.
1975 stated to have been executed by Zoe Enid Browne to establish that under the will dated 12.3.
1962 stated to have been executed by Mary Aline Browne some interest given to the petitioner under the will dated 23.6.1975 of Zoe Enid Browne, is liable to be in any manner affected or otherwise displaced, by the grant of letters of administration in respect of the will dated 12.3.1962 stated to have been executed by Mary Aline Browne." Accordingly the learned Judge held that the petitioner has not established that she has a caveatable interest justify ing her opposition to the probate proceedings for grant of letters of administration.
In this state of affairs, we are unable to agree with the learned counsel that the petitioner has caveatable interest.
Learned counsel, however, submitted that the will exe cuted by Zoe Enid Browne on 23.6.1975 in favour of the petitioner though not filed but was subsequently probated in the year 1989 and the fact that probate is granted can be taken into consideration by this Court as a subsequent happening, as the appeal before this Court, is only a re hearing or the continuation of the matter.
Reliance is placed on Section 227 of the which reads thus: "Effect of Probate Probate of a will when granted estab lishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.
" It is submitted that since the will executed by Zoe Enid Browne in favour of the petitioner is probated it must be deemed that it was existing since the death of the testatrix namely Miss. Zoe Enid Browne and that validates all interme diary acts.
According to the learned counsel, the effect of such a probate is that the petitioner 's interest in the estate gets established even on the date of entering caveat.
We are unable to see any force in this submission.
The said probate, admittedly, took place in a court in the Madras City.
We do not know whether the citations were issued to all the persons interested.
This probate also admittedly was granted when the special leave petition was pending in this Court yet the respondent had no notice about this probate proceeding.
Under these circumstances, exercising our juris diction under Article 136 we do not see that it is expedient to acknowledge this probate proceeding and re open the matter.
492 Lastly an attempt was made to show that the Sub Court has no jurisdiction but we find that there a necessary notification issued by the High Court conferring powers on the Sub Court.
We see no force in any one of these submis sions.
The learned counsel, however, lastly submitted that the petitioner inspite of having substantial interest in the estate is losing her right, to prove that the alleged will by Miss Zoe Enid Browne is not a genuine one and that it is a fictitious one.
We must point out that by granting a probate, the court is not deciding the disputes to the title.
Even with regard to a probate granted, it can be revoked as provided under Section 263 of the in any one of the cases mentioned therein.
But the learned counsel for the petitioner submits that the findings of the Sub Court and the High Court regarding the caveatable interest will come in the petitioner 's way in seeking revocation of the grant of probate.
It is needless to say that the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of grant ing of probate.
But they cannot deprive his right, if he has any, to invoke Section 263 of the and it is upto the petitioner to satisfy the Court.
With these observations, the special leave petition is dismissed.
T.N.A. Petition dismissed.
| IN-Abs | The respondent, claiming to be the beneficiary to the estate of deceased 'M ' under a will executed by her, filed an application in the Sub Court for Letters of Administra tion.
The petitioner lodged a caveat and opposed the probate of the will on the ground that the will propounded by the respondent was a fictitious one intended to disentitle 'Z ', daughter of 'M ', from claiming interest in the estate of her mother 'M '.
The petitioner based her caveatable interest on the basis of membership of the Trust, a gift deed and a will executed by 'Z ' which was subsequently probated in her favour.
The Subordinate Judge struck off the petitioner 's caveat on the ground that she has no caveatable interest.
The petitioner filed a Civil Revision Petition in the High Court and a Single Judge of the High Court confirmed the order of the Subordinate Judge.
In the special leave to this Court it was contended on behalf of the petitioner that the courts below have erred (i) in holding that she has no caveatable interest and in striking off her caveat; (ii) that Z 's will in her favour which was subsequently probated established her interest in the estate on the date of entering the caveat.
487 Dismissing the petition, this Court, HELD: 1.
By granting a probate the Court does not decide the disputes to the title.
A probate granted can be revoked under Section 263 of the .
[492C] 1.1 In the instant case the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of granting of probate.
But they cannot deprive her right to invoke section 263 of the Act.
[492D] 2.
The order of the Trial Court shows that admittedly neither the original nor a copy of the will said to have been executed by 'Z ' was filed.
Likewise the registered gift deed or a copy thereof was not filed.
It is also evi dent that the Trust has come to an end and the same was not in existence.
The Trial Court has considered both the docu mentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust.
Accordingly, it cannot be held that the petitioner has caveatable interest.
[490F G; 491C] 3.
In the instant case it is not known whether the citations were issued to all the persons interested before the grant of the probate.
The probate was also granted when the special leave petition was pending in this Court yet the respondent had no notice about this probate proceedings.
Under these circumstances it is not expedient to acknowledge this probate proceeding and re open the matter.
[491 G H] Nabin Chandra Guha vs Nibaren Chandra Biswas and Ors., AIR 1932 Cal.
734; Gourishankar Chattoraj vs Smt.
Satyabati Debi, AIR 1931 Cal.
470; Shanti Devi Aggarwala vs Kusum Kumari Sarkar & Ors., and Narayan Sah vs Smt.
Devaki, AIR 1978 Patna 220, referred to.
|
ivil Appeal Nos.
993 & 994 of 1976.
378 From the Judgment and Order dated 16.9.1974 of the Allahabad High Court in Spl.
Civil Appeal Nos. 622 & 623 of 1972.
R.K. Virmani for the Appellant.
M.V. Goswami and S.S. Khanduja for the Respondents.
The Judgment of the Court was delivered by M. FATHIMA BEEVI, J.
1.
These two appeals by special leave are filed by the Municipal Board, Bareilly, against the judgment of the Allahabad High Court quashing the Ga zette Notification dated August 27, 1969 amending the octroi schedule of the Bareilly Municipality so as to impose octroi on "mineral oil".
The respondents Bharat Oil Company and others filed writ petitions under Article 226 of the Constitution of India challenging the notification on the ground inter alia that the appellant, the Municipal Board Bareilly (hereinaf ter referred to as 'the Board ') had no authority to impose octroi on mineral oil in view of the proviso to Rule 13 1 of the octroi Rules contained in the U.P. Municipal Account Code, 1925.
This was countered by the appellant stating that the R. 13 1 was superseded by the 1963 rules which govern the imposition of octroi by the appellant Board.
The Single Judge in allowing the Writ Petitions took the view that R.131 restricted the power of the Board to impose the octroi and the subject matter of the rule is not covered by the 1963 rules.
The appeals preferred were dismissed by the Division Bench of the High Court agreeing that the bar under R. 131 'regarding the imposition of octroi duty on mineral oils continued notwithstanding the 1963 rules.
The appellant is a Municipal Board governed by the provisions of the U.P. Municipalities Act, 1916 (hereinafter referred to as 'the Act ').
Section 128 of the Act provides for imposition of taxes by a Municipal Board.
The relevant part of the said section reads as under: "128.
Taxes which may be imposed (1) Subject to any general rules or special orders or ' the State Government in this behalf, the taxes which a board may impose in the whole or any part of a municipality are (i) x x x 379 (viii) an octroi On goods or animals brought without the municipality for consump tion, use or sale therein.
Sections 13 1 to 135 of the Act contain provisions relating to the framing of proposals for the imposition of taxes by the Municipal Board, inviting objections to the said proposal, the approval of the said proposal by the State Government, the framing of rules by the State Govern ment on the basis of such proposals, under Section 296 of the Act and for the issue of a notification about the impo sition of tax from the appointed date.
Section 153 of the Act provides that assessment and collection of taxes and other matters relating to taxes may be regulated by Rules.
Section 296 empowers the State Gov ernment to make rules in respect of matters described in Section 153.
In exercise of the powers under Sections 13 1 to 135 and 296 of the Act, the Government of the United Provinces framed octroi rules which were published vide notification dated the 25th October, 1925.
The said rules are included in the Municipal Account Code (Chapter X Rules 13 1 to 23 1) published by the Government of U.P. 7.
Rule 13 1 provided that subject to the exceptions contained in the proviso octroi may be ordinarily levied on commodities included in the list set out in the said rule.
The proviso to this rule stated that octroi shall not be levied on certain articles which included mineral oil.
Rule 131 was amended vide notification dated the 2nd November, 1953 and for the words "the mineral oil" in the proviso the words "mineral oils classified as motor spirit, kerosene or diesel oil" were substituted.
Separate rules for the assessment and collection of octroi in the Bareilly Municipality were framed by the Government of U.P. in exercise of the powers conferred by Section 296 of the Act.
The draft rules were notified vide notification dated the 16th February, 1963 and published in the U.P. Gazette dated 23rd February, 1963.
The said notifi cation reads as under: "No. 89 B/XI C 129 60.
The following draft of the rules for the assessment and collection of octroi in the Bareilly Municipality, in super session of the existing octroi rules contained in the Municipal Account Code in so far as they apply to the said municipality, which the Governor of Uttar 380 Pradesh proposes to make, in exercise of the powers conferred by Section 296 of the U.P. Municipalities Act, 1916 (U.P. Act No. II of 1916), is published as required by subsection (1) of section 300 of the said Act, for the information of all concerned with a view to invite objections and suggestions in respect thereof".
Final Rules were notified vide notification dated the 7th May, 1963 and published by the Government in the U.P. Gazette dated the 11th May, 1963 as required under section 300 of the Act.
By notification dated the 24th July, 1963 published in the U.P. Gazette dated the August 3, 1963 the appellant Board imposed octroi duty on goods and animals brought within the octroi limits of Bareilly Municipality for con sumption, use and sale at the rates shown in the schedule to the said notification and subject to the exceptions con tained therein.
Item 29 of the exceptions contained in the schedule related to "mineral oils" classified as motor spirit, kerosene and diesel oil.
The said notification came into operation from November 16, 1963.
Thereafter the levy of octroi in the Bareilly Municipality was governed by 1963 rules.
The amendments were made in the octroi schedule both in the rates as well as in the exemption and as a result thereof motor spirit, kerosene and diesel oil were removed from the exemption clause and were subjected to the octroi duty @ 1 paisa per litre vide notification dated August 27, 1969.
The validity of the notification dated the 27th August, 1969 was challenged before the High Court in the Writ Petitions Nos.
1805 and 4696 of 1970 by respondents on the ground that 1925 rules take away the power from all Municipal Boards to impose octroi duty on mineral .oils and until such power is restored under a contrary notification issued under Section 128 of the Act, the Board did not have any justification to assess or collect octroi duty on miner al oils.
The impugned judgment proceeded on the basis that Rules 13 1 to 133 of the 1925 rules have been made by the State Government in exercise of the powers conferred upon it by the opening words of Section 128(1) and they are not rules under section 153 for the assessment and collection of octroi.
It was also held that the subject matter of these rules is not covered by the 1963 rules and, therefore, the 1963 rules cannot supersede R. 13 1 of the 1925 Rules.
A Full Bench of the Allahabad High Court in M/s Central Dis tillery Chemicals Works Ltd. & Another vs State of U.P. & Others, [1980] All L.J. 62 following the 381 decision of this Court in Municipality of Anand vs State of Bombay, ; overruled the impugned decision holding that the special rules which are in relation to a particular tax and a particular Municipal Board will over ride or supersede the general rules framed by State Govern ment under Section 153 read with Section 296.
The appel lant 's learned counsel relied on the Full Bench decision and maintained that the rules framed by the Board prevail over the rules contained in the Municipal Account Code and the notification is, therefore, valid.
In our view the approach made by the Full Bench of the High Court in M/s Central Distillery Chemicals Works Ltd. vs State of U.P., (supra) is correct and has to be approved.
As pointed out by this Court in Municipal Board, Hapur vs Raghuvendra Kripal and Others, ; taxes raised by a local authority are not imposed by it as a legislature but as a delegate of the legislature.
The tax is valid one if it is one of the taxes the local authority can raise and the delegate imposes it in accordance with the conditions laid down by the legislature.
The taxes that can be raised in exercise of delegated power are predetermined and procedure is prescribed by the Municipal Act.
Thus Section 128 of the U.P. Municipalities Act confers on the municipalities in the State the power to levy taxes enumer ated thereunder.
The power conferred is not absolute but is subject to any general rules or special orders of the State Government in this behalf.
Section 128(1) does not confer any independent rule making power.
The general rules re ferred to in that Section can only be the rules in the matter of such levy specified in Section 153 of the Act and framed in exercise of the power under Section 296 of the Act.
The State Government is empowered under Section 296 to make rules consistent with the Act in respect of matters described in Section 153.
Rules framed under Section 153 constitute the exclusive machinery for assessment and col lection of taxes.
The relevant part of Section 153 reads as under: "153.
Rules as to assessment, collection and other matters.
The following matters shall be regulated and governed by rules except in so far as provision therefor is made by this Act, namely: (a) the assessment, collection or composition of taxes, and, in the case of octroi or toll, the determination of octroi or toll limit; 382 (f) any other matter relating to taxes in respect of which this Act makes no provision or insufficient provision and provision, is, in the opinion of the State Government neces sary.
" In prescribing the procedure for the impositon of taxes by the board, Section 13 1 of the Act requires the board while framing the proposal to prepare a draft of the rules which it desires the State Government to make in respect of the matters referred to in Section 153 and publish the same.
When the proposals have been sanctioned the State Government makes the necessary rules in respect of the tax under Sec tion 296.
The rules referred to in Section 128(1) are rules thus framed by the State Government under Section 296 in respect of matters referred to in Section 153.
Section 300(2) expressly provides that any rule or regulation made by the State Government may be general for all municipali ties or may be special for anyone municipality as it di rects.
The Municipal Manual published by the Government contains the general rules made by the Government under the Act and general orders issued in Volume 1.
The second volume contains the Municipal Account Code.
The General Rules and orders are contained in Chapter I to XII of Part I.
The Explanation in Chapter I reads as under: "The Rules in this Manual, which are printed in pica type, together with their explana tions, illustrations and exceptions, have the force of law, having been made by the Govern ment in exercise of the powers conferred by section 296 of the Act, and, except where otherwise stated, are applicable to all munic ipalities.
The notifications in which they were published are referred to on the margins of the pages.
" Part II contains the model rules, bye laws and regulations.
Section A deals with Rules with reference to Section 153 of the Act thus: "The following model rules have been framed by the Government for the assessment and collec tion of taxes other than octroi under section 153 and 296 of the Act.
It is anticipated that they will be found generally applicable to the circum stances of the municipalities of these prov inces, and it is desirable that the model forms 383 should be adhered to unless there are special reasons justifying any divergence from them.
In forwarding proposals for the imposition of additional taxation, boards are reminded that the necessary rules for the assessment and collection of the taxes to be imposed should be forwarded at the same time as the tax proposals, and it will facilitate the disposal of such cases if any deviations from the model forms printed below are specif ically referred to in the proposals submitted.
II contains the Municipal Account Code.
Chapter X deals with octroi and provides in R. 13 1 that subject to the exceptions contained in the proviso octroi shall ordinarily be levied on commodities included in the list.
In Mool Chand vs Municipal Board, Banda, AIR 1926 All 5 17 it was held that the rules contained in the Code have as much force of law as the Act itself.
The octroi rules contained in Chapter X of the Municipal Account Code are general rules framed by the State Government in respect of matters referred to in Section 153 in exercise of power under Section 296 and refer to the levy and govern the assessment, collection etc.
The rules are general for all municipalities.
The 1963 rules are framed for the appellant board expressly superseding the general rules in so far as they apply to the appellant board.
By framing the 1963 rules the government evinced the intention to cover the field which was covered by 1925 rules in so far as the Bareilly Municipality was concerned.
The subject matter dealt within 1963 rules is the same as that dealt with in 1925 rules.
The intention to supersede the earlier rules is clearly expressed.
The rule has the force of law.
Rule 13 1 of 1925 rules has no longer any applica tion in the matter of levying octroi by the appellant board.
That rule stands repealed in so far as the appellant Board is concerned.
The rule cannot, therefore, be read as cur tailing the power under Section 128(1)(viii) of the Act to impose octroi.
Rules do not enlarge or restrict the authori ty to impose tax.
Authority is conferred by the section.
Rules are only regulating the exercise of that power.
The imposition of the tax and the regulation of its assessment and collections are totally different matters and they are clearly distinguished.
In Zaverbhai Amaidas vs The State of Bombay, [1955] 1 SCR 799 this Court reiterated the rule of construction that if a later statute deals with the same subject matter and varies the procedure the earlier statute is repealed by the later statute.
In The Municipality or Anand vs State of Bombay, [1962] 2 Supp.
SCR 366 construing section ,59 of the Bombay District Municipal Act, 1901 which is in pari materia with 384 section 128 of the U.P. Municipalites Act, this Court said the word 'impose ' in section 59 meant the actual levy of the tax after authority to levy it had been acquired by rules duly made and sanctioned and this imposition was subject to the general or special orders of the government.
The opending words of section 128 are capable of similar construction and the imposition has to be understood as the actual levy subject to the general rules and special orders contemplated under the other provisions of the Act.
The rule making power under Section 296 read with Section 300(2) of the Act enables the State Government to except anyone municipality from the operation of the general rule by express provision in that behalf.
When the identical author ity in exercise of its rule making power duly frames the rules in respect of the same matter expressly providing that the new rules shall apply to a particular municipality in supersession of the existing rules, it must be deemed that existing rules are repealed to that extent.
The 1963 rules had been framed under Section 296 of the Act in supersession of the existing rules after publication by the State Govern ment, in the Gazette as provided under Section 300 and therefor Rule 13 1 in the 1925 rules ceased to have any operation in respect of the matters dealt with therein so far as the Bareilly municipality is concerned.
In this view of the matter, we hold that the appel lant Board had authority to levy octroi on mineral oils and challenge against the impugned notification is not sustain able.
The High Court was clearly in error in quashing the same and restraining the Board from assessing and collecting the tax.
We accordingly allow the appeal and set aside the judg ment of the High Court.
In the circumstances of these cases, we, however, make no order as to costs.
| IN-Abs | The appellant is a Municipal Board governed by the provisions of the U.P. Municipalities Act, 1916.
Section 128 of the Act provides for imposition of taxes by the Board.
In exercise of the powers under Sections 131 to 135 and 296 of the Act, the Government of the United Provinces framed octroi rules.
The said rules were included in the Municipal Account Code (Chapter X rules 131 to 231).
The proviso to Rule 131 provided that octroi shall not be levied on certain articles which included mineral oil.
The rule was amended vide notification dated the 2nd November 1953 and for the words "the mineral oil" in the proviso, the words "mineral oils classified as motor spirit, kerosene or diesel oil" were substituted.
Separate rules for the assessment and collection of octroi in the Bareily Municipality were framed by the Govt.
of U.P.
The draft rules were notified vide notification dated the 16th February 1963.
Final rules were notified vide notification dated the 7th May 1963 and published in U.P. Gazette dated the 11th May 1963.
By a notification dated the 24th July 1963, published in U.P. Gazette dated the 3rd August, 1963, the appellant Board imposed octroi duty on goods and animals brought within the octroi limits of Barei ly Municipality for consumption, use and sale at the rates shown in the Schedule subject to certain exceptions men tioned therein.
The said notification came into operation from November 16, 1963 and thereafter the levy of octroi in Bareily Municipality was governed by 1963 rules.
The amend ments were made in the octroi schedule both in the rates as well as in the exemption and as a result whereof motor spirit, kerosene and diesel oil were removed from the exemp tion clause and were subjected to the octroi duty @ 1 paisa per liter vide notification dated August 27, 1969.
The respondents challenged the validity of the notification dated 377 the 27th August 1969 by means of a writ petition before the High Court on the ground that 1925 rules took away the power from all Municipal Boards to impose octroi duty on mineral oils and until such power is restored under a contrary notification issued under section 128 of the Act, the Board did not have any justification to assess or collect octroi duty on mineral ohs.
The appellant Board contended that Rule 131 was superseded by the 1963 rules which now governed the imposition of octroi by the appellant Board.
The single Judge of the High Court who heard the petition came to the conclusion that Rule 131 restricted the power of the Board to impose the octroi and the subject matter of the rule was not covered by the 1963 rules.
The appellant 's appeals preferred before the Division Bench were dismissed which took the view that the bar under Rule 131 regarding the imposition of octroi duty on mineral oils continued notwith standing the 1963 Rules.
Hence these appeals by the Munici pal Board.
Allowing the appeals, this Court, HELD: The rule making power under section 296 read with Section 300(2) of the Act enables the State Government to except any one municipality from the operation of the gener al rule by express provision in that behalf.
When the iden tical authority in exercise of its rule making power duly frames the rules in respect of the same matter expressly providing that the new rules shah apply to a particular municipality in supersession of the existing rules, it must be deemed that existing rules are repealed to that extent.
[384C D] The 1963 rules had been framed under Section 296 of the Act in supersession of the existing rules after the publica tion by the State Government, in the Gazette as provided under Section 300 and therefore rule 131 in the 1925 rules ceased to have any operation in respect of the matters dealt with therein so far as the Bareilly municipality is con cerned.
[384D] M/s Central Distillery Chemicals Works Ltd. & Anr.
vs State of U.P. & Ors., [1980] All L.J. 62, approved.
Municipality of Anand vs State of Bombay, ; ; Municipal Board, Hapur vs Raghuvendra Kripal & Ors., ; ; Mool Chand vs Municipal Board, Banda, AIR 1926 All. 517; Zaverbhai Amaidas vs The State of Bombay, [1955] 1 SCR 799 and The Municipality or Anand vs State of Bombay, [1962] 2 Supp.
SCR 366, referred to
|
ivil Appeal No. 870 of 1975.
From the Judgment and Order dated 24.1.1975 of the Bombay High Court in Special Civil Application No. 963 of 1973.
V.V. Vaze, V.N. Patil and A.S. Bhasme for the Appellant.
V.M. Tarkunde, V.N. Ganpule, Ms. Punam Kumari, Suman B. Rastogi, Ms. J. Wad and A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave is directed against the decision of the Bombay High Court on a writ petition filed by the respondent No. 1, hereinafter referred to as the respondent.
The application of the respondent for permitting construction on the land in question described as plots No. 29 and 30 in the town of Nasik was rejected by the Nasik Municipal Council, which led to the filing of the writ case.
In 1955 the respondent purchased the land in question from one Patwardhan and in 1957 obtained permission to construct a building thereon.
However, no construction was made and in March, 1962, a notification under section 4 of the Land Acquisition Act was issued for the purpose of estab lishing a Tonga Stand.
The respondent made a fresh applica tion for permission to make construction.
He was told not to do so on the ground that the land was reserved for road widening under a Town Planning Scheme which was being imple mented.
He however started construction work and when pre vented from so doing, filed a writ application in the High Court which was later withdrawn.
Subsequently he filed a suit in the civil court inter alia claiming damages.
Soon thereafter a resolution was passed by the Municipal Council on February 13, 1967 whereby a decision was taken to accord permission to the respondent as asked for.
The suit was thereafter withdrawn.
The aforesaid development came to the notice of the State Government, and the Municipal Council was asked to explain the circumstances, and a high.power Committee was appointed to examine the entire matter.
The aforesaid reso lution was thereafter rescinded by the Municipal Council, and the respondent filed a fresh application for permission to construct, which was kept in abeyance by the Council on the ground that the matter was under consideration by the Committee.
536 Another writ petition being Special Civil Application No. 993 of 1969 was thereupon filed by the respondent in the High Court in 1969.
While this case was pending, the Commit tee submitted its report and a fresh resolution was passed on 29.6.1970, a copy whereof is Ext. 'O ', inter alia, decid ing to re plan the Scheme with respect to the area in ques tion, in accordance with the recommendation of the Commit tee.
Consequently the matter was re opened and objections from the affected persons were invited and the respondent filed his objection petition.
However these facts were not placed before the High Court in Special Civil Application No. 993 of 1969 and, without taking them in consideration, the case was disposed of by the judgment contained in Ext. 'A ' dated 18.4.1972.
Without going into the merits of the matter, the High Court directed that; "The petitioner 's application to Respondent No. 1 dated July 18, 1968, for construction permission shall be disposed of by Respondent No. 1 in accordance with law".
The Municipal Council by its order dated the 21st of November, 1972 rejected the respond ent 's application on the basis of the resolution dated the 29th of June, 1970, Ext. '0 ', stating that the plots in question were required for road widening, and the Town Planning Scheme was being modified accordingly.
This order was challenged before the High Court by a writ application out of which the present appeal arises.
On behalf of the respondent it was urged before the High Court in support of the writ petition that the disputed question must be deemed to have been finally settled in his favour in view of the earlier judgment, Ext. 'A ' in S.C.A. No. 993 of 1969 which was binding on the parties by reason of rule of res judica ta.
It was contended on behalf of the State of Maharashtra and the Municipal Council that the plea of res judicata was not available mainly for the reason that no final decision was arrived at in the earlier case.
It was pointed out that tlie 1970 Resolution, Ext. 'O ', was not even brought to the notice of the court by any party, and the High Court without considering the merits of the respondent 's prayer merely directed the Municipal Council to reconsider his application dated the 18th of July, 1968 and dispose it of in accordance with law.
The High Court was not impressed by this reply and allowed the writ application on the basis of the principle of constructive res judicata.
It has been observed that it was for the State or the Municipal Council to have relied upon the 1970 Resolution and since this was not done, their answer based upon the said resolution cannot now be enter tained.
By the impugned judgment it has also been said that having regard to the circumstances in which the earlier judgment Ext. 'A ' was delivered, the same must be interpret ed as issuing a peremptory direction to accord permission for construction without further consideration of the prayer on merits.
537 4.
Mr. V.M. Tarkunde, the learned counsel for the re spondent, while supporting the above view of the High Court has contended that the resolution of 13.2.1967 was passed by way of a compromise between the parties, and acting upon the same the respondent withdrew his suit which he had earlier filed in the civil court, and, therefore, the Municipal Council cannot be permitted to wriggle out of the situation.
He also relied upon an affidavit which has been filed re cently and suggested that if the present circumstances are taken into consideration the conclusion would be that the disputed land is not required either for widening the road or for any other public purpose, and the authorities have been acting mala fide at the behest of the respondents No. 4 and 5.
So far the 1970 Resolution is concerned, it is urged that the same should be completely ignored and the Municipal Council should not be allowed to bypass the judgment of the High Court in the earlier case.
Mr. Patil, the learned counsel for the appellant, has reiterated the stand taken in the High Court that the judgment Ext. 'A ' did not decide any issue, and cannot be interpreted as a direction commanding the Municipal Council to allow the proposed construction.
He said that at the present stage it is not possible to finally decide the question as to whether the objections to the proposed scheme raised by the respondent have any substance or not.
They were invited by 1970 Resolution to place their case and to present their point of view before the Municipal Council.
It is stated on behalf of the Municipal Council that the plots in question are urgently needed for providing parking space for vehicles.
Having regard to the sequence of events in this case, we are unable to accept the contention that the Resolution dated 13.2.1967 was the result of a binding compromise between the parties.
The fact that the respondent has with drawn his suit for damages could not by itself indicate that the Municipality was bound by the said Resolution.
The Municipality was equally answerable to State Government which restrained the respondent from proceeding with the construction and appointed a high power Committee to go into the entire matter.
The Committee gave a report stating that the land in question would be needed for the proper circula tion of traffic.
Equally we find that there is no scope for application of the principles of res judicata.
We agree with the appellants that by the judgment Ext. 'A ' the High Court did not finally decide the controversy and it remained open for the Municipal Council to decide, by reconsidering and disposing of the application of the respondent in accordance with law.
Besides, the question as to whether a particular Scheme 538 framed in exercise of statutory provisions is in the public interest or not has to be determined according to the need of the time and a final decision for all times to come cannot be taken.
A particular scheme may serve the public purpose at a given point of time but due to change of cir cumstances it may become essential to modify or substitute it by another scheme.
The requirements of the community do not remain static; they indeed, go on varying with the evolving process of social life.
Accordingly, there must be creative response from the public authority, and the public scheme must be varied to meet the changing needs of the public.
At the best for the respondent, it can be assumed that in 1967 when the resolution in his favour was passed, the acquisition of the land was not so urgently essential so as to call for his dispossession.
But for that reason it cannot be held that the plots became immune from being utilised for any other public purpose for ever.
The State or a body like the Municipal Council entrusted with a public duty to look after the requirements of the community has to assess the situation from time to time and take necessary decision periodically.
We, therefore, hold that the Resolu tion dated 13.2.1967 was not binding on the Municipal Coun cil so as to disable it to take a different decision later.
So far the plea of mala fides is concerned, the High Court has not recorded any finding; and we do not find any material to support the respondent 's allegation.
For the reasons mentioned above, the impugned judg ment of the High Court is set aside and the writ petition of the respondent filed in the High Court is dismissed.
The respondent may even now avail the opportunity given by the 1970 Resolution, and press his objections promptly and in that case the Municipal Council may dispose of the same in accordance with law.
The appeal is accordingly allowed, but the parties shall bear their own costs.
P.S.S. Appeal allowed.
| IN-Abs | The respondent was permitted by the Municipal Council to construct a building on the disputed land.
Later, the site was reserved under section 4 of the Land Acquisition Act for a town planning scheme.
When the respondent was prevented from proceeding with the construction he filed a suit for dam ages.
The Municipal Council, however, by a resolution passed on February 13, 1967 decided to accord permission.
The suit was thereafter withdrawn.
The State Government appointed a high power committee to examine the entire matter.
The aforesaid resolution was rescinded by the Municipal Council.
The respondent made a fresh application in July, 1968 which was kept in abeyance.
He thereupon filed a writ peti tion before the High Court in 1969.
During the pendency of the case, the Municipal Council passed a resolution on June 29, 1970 deciding to replan the scheme with respect to the area in question in accordance with the recommendations of the high power committee.
The High Court by its judgment dated April 18, 1972 directed the Municipal Council to dispose of the application in accordance with law.
The latter, however, by its order dated November 21, 1972 rejected it on the basis of the 1970 resolution.
In the writ application challenging the said order it was contended for the respondent that the disputed question must be deemed to have been finally settled in his favour in view of the earlier judgment which was binding on the par ties by reason of rule of res judicata.
For the State it was contended that no final decision was arrived at in the earlier case.
The High Court allowed the writ application on the basis of constructive res judicata.
In the appeal by special leave it was contended for the appellants 534 that the previous judgment could not be interpreted as a direction commanding the Municipal Council to allow the proposed construction, and that the plots were urgently needed for providing parking space for vehicles.
For the respondent it was contended that the resolution of February 13, 1967 was passed by way of a compromise between the parties and acting thereupon he withdrew his suit.
it was, therefore, binding on the Municipal Council, that the 1970 resolution should be completely ignored and the Municipal Council should not be allowed to bypass the judgment of the High Court.
Allowing the appeal, this Court.
HELD: 1.
The resolution dated February 13, 1967 was not binding on the Municipal Council so as to disable it to take a different decision later.
It was not the result of a compromise between the parties.
[538D; 537E F] 2.1 At the best for the respondent, it could be assumed that when the said resolution in his favour was passed the acquisition of the land was not so urgently essential so as to call for his dispossession.
But for that reason it could not be said that the plots had become immune from being utilised for any other public purpose for ever.
[538B C] 2.2 The question as to whether a particular scheme framed in exercise of statutory provisions is in the public interest or not has to be determined according to the need of the time and a final decision for all times to come cannot be taken.
Such a scheme may serve the public purpose at a given point of time but due to change of circumstances it may become essential to modify or substitute it by anoth er scheme.
The requirements of the community do not remain static, they indeed, go on varying with the evolving process of social life.
Accordingly, the State or a body.like the Municipal Council entrusted with a public duty to look after the requirements of the community has to assess the situa tion from time to time and vary the scheme periodically to meet the changing needs of the public.
In the instant case, the high power committee appointed by the State had given a report stating that the land in question would he needed for the proper circulation of traffic.
[537H; 538; 537F G] 3.
There was no scope for application of the principle of res judicata.
By the judgment dated April 18, 1972, the High Court did not finally decide the controversy and it remained open for the Municipal Council to decide, by recon sidering and disposing of the application of the respondent in accordance with law.
[537G H] 535
|
Appeal No 498 of 1975.
438 From the Judgment and Order dated 31.7.1974 of the Madhya Pradesh High Court in Misc.
Petition No. 3 16 of 1973.
Prithvi Raj, Satish K. Agnihotri and Ashok Singh for the Appellants.
Shankar Ghosh, Vivek Gambhir and Parveen Kumar for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
This is an appeal by special leave against the judgment and order of the High Court of Madhya Pradesh at Jabalpur whereby the petition under Articles 226 and 227 of the Constitution of India preferred by Orient Paper Mills Ltd., the sole respondent herein, was allowed and sequally the order dated 15.3.1973 of the State Government declining to grant the respondent exemption from payment of electrici ty duty for the period from 16.2.1965 to 15.2.1970 and pursuant demand notices dated 20.3.1973 and 3.4.1973 were quashed.
The aggrieved State of Madhya Pradesh and its concerned Officers are the appellants challenging the same The respondent had need to go to the High Court to have an assurance dated 1.8.1961 regarding exemption from payment of electricity duty given by the State of Madhya Pradesh in its declared industrial policy observed, which may well be reproduced here at the outset: "Where power has to be generated by industri alists themselves, exemption from electricity duty shah be granted for a period of five years from the date of plant goes into produc tion.
The concession shall be applicable only to new generating sets installed during the Third Plan period.
" Factually it was not disputed before the High Court, that the case of the respondent squarely fall within the scope of the assurance reproduced above since the industrial plant of the respondent had gone into production w.e.f. 16.2.1965, the generating set put up was new, and had been installed during the Third Plan period.
To formalise the matter, the respondent had corresponded with the Government for the grant of the requisite exemption.
Since the same was rejected and demands for payment of electricity duty creat ed, the High Court was requested to issue suitable writs, directions and orders cancelling the 439 aforesaid orders and demand notices and granting exemption from payment of electricity duty in respect of electricity self generated by the respondent during the said period of five years, and also commanding the State to carry out the assurance and promises made in the said industrial policy dated 1.8.1961 extracted above and then requiring the State to issue a Notification under Section 3 B of the Madhya Pradesh Electricity Duty Act, 1949 granting exemption or exception to the respondent from payment of electricity duty and other allied consequential reliefs.
Before the High Court voluminous documentary evidence was given by the parties in support of their respective pleadings.
The High Court, on consideration of the entire material placed before it, spelled out a promissory estoppel in favour of the respondent and concluded as follows: "To conclude, we are of opinion that the petitioner is entitled to invoke the doctrine of promissory estoppel in order to claim exemption from payment of electricity duty for a period of five years from 16.2.1965 to 15.2.1970 in terms of the assurance of the State Government, dated 1.8.1961.
Of course, as indicated earlier it is not for us to issue any writ directing the State Government to grant the petitioner exemption in terms of section 3 A (vii) or Section 3 B of the M.P. Electric ity Duty (Amendment) Act, 1949.
But in view of the unambiguous and unequivocal assurance given by the State Government on 1.8.1961 we can certainly quash the order of the State Government, dated 15.3.1973 as also the demand notices, dated 20.3.1973 (Petitioner 's Annex ure 48) and dated 3.4.1973 (Petitioner 's Annexure 50) and leave the matter at that.
It would be for the Government to work out its own course of action on that basis. ' ' Mr. Prithvi Raj, learned counsel for the appellant urged that on the facts and circumstances of the case there was no occasion to invoke the doctrine of promissory estoppel.
It was asserted that though the industrial policy was published by the State Government on 1.8.1961 containing the assurance extracted above, the respondent had not in any manner acted thereon to its own prejudice, but had rather on its own been taking steps to set up a generating plant much before the industrial policy was announced and had factually set up the generating plant as per its earlier resolve.
The facts highlighted were that the 440 respondent Paper Mill, had been set up at Amlai in Vindhya Pradesh, when a Part C State under the administration of the Central Government.
It had in its application dated 3.5.
1955 to the Government indicated that about 5000 K.W. elec tricity would be required by it to run its paper plant and.
it would by itself make arrangements for obtaining the necessary generating equipment.
It appears that the State Government had at that time its oven project in view for installing a power plant.
On that basis some correspondence ensued between the respondent and the State Government with regard to its annual requirement of electricity.
That exer cise was abandoned for some reasons which are not relevant here.
Thereafter the respondent applied for import licence for the import of a production plant as also a power plant to run it.
The respondent was granted an import licence on the strength of which it started negotiation with an Ameri can supplier.
While negotiations were in process the Ameri can supplier increased the price.
It became impossible for the respondent to import the production plant and the power plant within the funds allotted to it by the World Bank and in these circumstances, the American suppliers advised the appellant to drop procurement of the power plant.
At the same time the American supplier warned the respondent that if the power plant was not purchased along with the produc tion plant, it would make the project unsound and it would not be able to fulfil its guarantees as desired by the respondent.
The respondent in these circumstances became of two minds, whether to have the power plant or not.
When it was in that state of mind, the industrial policy was an nounced by the Government on 1.8.1961.
Thereafter, on 21.8.1961, the respondent applied to the Government of India for sanction of permission to import 3.5 million dollar worth goods more than the sanctioned amount.
Finally, the respondent with the consent of the Government of India and with the aid of the World Bank was able to import the pro duction plant and the power plant and after its installation was able to go on production w.e.f. 16.2.1965.
The course of the events set out earlier were not dis puted as such by the appellants before the High Court but it was maintained as now before us, that the respondent would have on its own gone on to install the power plant even without the announcement of the industrial policy dated 1.8.1961.
Additionally, it was maintained, in the like manner, that the respondent had not acted to its prejudice on the basis of the aforesaid assurance dated 1.8.1961 and so that doctrine of promissory estoppel was not invokable.
The defence of the State thus raised was rejected by the High Court in the following words: 441 "We have already dealt with that aspect earli er and we have already held that the petition er 's action in setting up a power plant was postponed on account of certain circumstances and ultimately on the advise of the manufac turers who refused to continue the guarantee, the petitioner decided to set up its own power plant.
In the meantime, the assurance of the State Government, dated 1.8.1961 had already been given and the petitioner 's action in making a final decision to set up its own power plant can be directly connected with the State Government 's assurance dated 1.8. 1961.
No sooner the petitioner took the final deci sion in that behalf, it applied to the State Government for grant of an exemption, although that application was premature, because the petitioner 's paper mill had not started func tioning.
As such, the petitioner would cer tainly be entitled to claim exemption in terms of the assurance of the State Government dated 1.8.1961 with effect from the date the paper mill started functioning, namely, 16.2.1965 and the exemption would last for a period of five years upto 15.2. 1970.
" Whether the respondent was of one mind right from the beginning to set up a power plant, with or without the assurance of the State Government dated 1.8.1961, as assert ed by the State, is neither borne out nor is the view of the High Court arrived at from the record.
Rather, on the con trary, the view taken is that the respondent 's indecision in that regard ended and it became decisive on the announcement of the assurance dated 1.8.1961.
Such view of the High Court was a possible view to be taken on the material placed before it and the inference drawn therefrom could be that the respondent had acted on the basis of the assurance.
The effort here to re do the exercise in this regard must inevi tably fail, for this Court ordinarily does not interfere with factual findings arrived at by the High Court and this case has not been shown to us to be an exception.
In this situation, the view taken by the High Court was unexception al warranting it to be left uninterferred with.
Some attempt was made by learned counsel for the appel lant to contend that the doctrine of promissory estoppel could not be pressed into service to command the State Government under Section 3 A (vii) (before its amendment) and Section 3 B of the Madhya Pradesh Electricity Duty Act, 1949 (as amended) to issue a Notification exempting the respondent from payment of electricity duty.
The 442 answer to this argument is available in the conclusion arrived at by the High Court extracted above.
Without com manding the State Government to issue such a Notification, it has granted relief to the respondent to which there was no bar.
Accordingly, no provision of Madhya Pradesh Elec tricity Duty Act, 1949 or any other law can be said to have been transgressed.
We thus reject this argument too.
Thus for the foregoing reasons this appeal fails and is hereby dismissed.
No costs.
| IN-Abs | In its industrial policy, the State Government declared on 1.8.1961 that where power has to be generated by indus trialists themselves, exemption from electricity duty would be granted for a period of five years from the date of plant goes into production, and that the concession would be applicable only to new generating sets installed during the Third Plan period.
The Respondent indicated to the Government on 3.5.1955 that about 5000 K.W. of electricity would be required by it to run its paper plant and that it would by itself make arrangements for obtaining the necessary generating equip ment.
It also applied for import licence for the import of a production plant as also a power plant to run it.
The import licence was granted and the Respondent started negotiation with the foreign supplier.
Since the price had gone up it was rather impossible for the Respondent to import both the production plant and the power plant, and if the power plant was not purchased along with the production plant, it would make the project unsound.
Hence the Respondent was in two minds whether to have the power plant or not.
Meanwhile, the above said industrial policy was announced and the Respond ent on installation of the power plant was able to start its production w.e.f. 16.2.1965.
Thereafter to formalise the matter, the Respondent corre sponded 437 with the appellant for the grant of the requisite exemption, which was rejected, and the Respondent approached the High Court by way of a petition under Articles 226 and 227 of the Constitution of India.
The High Court held that the Peti tioner was entitled to invoke the doctrine of promissory estoppel in order to claim exemption from payment of elec tricity duty for a period of five years from 16.2.1965 in terms of the assurance of the State Government dated 1.8.1961.
Against this order of the High Court the State has come in appeal by Special Leave.
On behalf of the appellant State it was urged that there was no occasion to invoke the doctrine of promissory estop pel, since the Respondent had not in any manner acted on the assurance of the Government to its own prejudice but on its own it was taking steps to set up a generating plant much before the industrial policy was announced.
Dismissing the appeal, this Court, HELD: 1.
Whether the respondent was of one mind right from the beginning to set up a power plant, with or without the assurance of the State Government dated 1.8.1961, as asserted by the State, is neither borne out nor is the view of the High Court arrived at from the record.
On the con trary, the view taken is that the respondent 's indecision in that regard ended and it became decisive on the announcement of the assurance dated 1.8.1961.
Such view of the High Court was a possible view to be taken on the material placed before it and the inference drawn therefrom could be that the respondent had acted on the basis of the assurance.
[441E F] 2.
This Court ordinarily does not interfere with factual findings arrived at by the High Court and this case has not been shown to be an exception.
The view taken by the High Court was unexceptional warranting it to be left uninter ferred with.
[441F] 3.
Without commanding the State Government to issue such a Notification, the High Court has granted relief to the respondent to which there was no bar.
Accordingly no provi sion of Madhya Pradesh Electricity Duty Act, 1949 or any other law can be said to have been transgressed.
[442A]
|
ivil Appeal No. 1924 of 1990.
From the Judgment and Order dated 6.8.1986 of the Kerala High Court in E.S.A. No. 15 of 1979.
543 K.K. Venugopa|, M.K. Sasidharan and P.K. Pillai for the Appellants.
T.S. Krishnamoorthy Iyer, P.S. Poti, section Balakrishnan, Deepak Nargoalkar, E.M.S. Anam, R.M. Keshwani, M.K.D. Nam boodiri and Irfan Ahmed for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
Special leave granted.
The unsuccessful appellants herein have preferred this appeal against the judgment of the High Court of Kerala dated 6.8.1985 passed in E.S.A. (Execution Second Appeal) No. 15 of 1979 whereby the High Court dismissed the said appeal filed by the appellants.
The relevant facts giving rise to this appeal are necessary to be recapitulated and they are as follows: Othayath Gopalan Nambiar (since dead) and Othayath Lekshmy Amma (who is the first appellant herein) filed an Execution Application No. 556 of 1970 in Original Suit No. 817 of 1943 in the court of the Munsiff of Badagara under Section 13(B) of the Land Reforms Act, as amended by the Amending Act 35 of 1969 (hereinafter referred to as the 'Act ') for restoration of possession of the properties mentioned in the schedule of the application, which were sold in court auction for arrears of rent in pursuance of the decree made in O.S. No. 817 of 1943.1t seems that during the pendency of the proceedings before the Munsiff, Othayath Gopalan Nambiar died and thereafter the first appellant 's son claiming to be the karnavan of the tavazhi got himself impleaded as the third petitioner in the said Execution Application, who is figuring as the second appellant herein.
In order to decide the questions that arise for consid eration, certain salient and material facts may be recapitu lated.
The suit, O.S. 'No. 817 of 1943 was filed for recov ery of arrears of rent of Rs.815 for the Malayalam years 1116 to 1118, corresponding to English era 1941 to 1943.
There were 11 defendants of whom Othayath Gopalan Nambiar and the first appellant were the defendants 2 and 3.
A preliminary decree was passed on 26.5.1944 followed by the final decree on 29.11.
The decree holder assigned the decree to another member of his family, who in turn assigned it to one Kunhikannan.
The rights of Kunhikannan devolved on Respondents 2 to 4 in the Execution Application who are Respondents 4 to 6 in this appeal and who brought the 544 property to sale.
The sale took place on 26.11.
One Thekkayil Kanaran who was the first Respondent in the Execu tion Application, i.e. the third Respondent herein purchased the property in the Court auction held on 26.11.1962, which sale was confirmed on 14.8.
1964 and consequently obtained delivery of the disputed scheduled property extending to 8.70 acres of double crop wet land through court on 9.1.
1965 from the possession of the appellants.
exhibit C 3 is the delivery account and report submitted by the Amin.
The remaining extent of the property was in the possession of the sub tenants in respect of which there was resistence with which we are not concerned here.
After the delivery has been effected, Gopalan Nambiar and the first appellant herein trespassed into the suit property.
Therefore, the Court auction purchaser filed O.S. 6 of 1966 in the court of the Subordinate Judge of Badagara for recovery of possession.
The suit was decreed as per the judgment exhibit B 16 dated 27.7.1966.
exhibit B 15 is the decree.
Ex B 49 dated 25.8.1966 and exhibit B 50 dated 22.8.1966 are the respective certified copies of the delivery account submit ted by the Amin and the delivery warrant issued to Amin in O.S. No. 6 of 1966.
The auction purchaser, i.e. third re spondent in this appeal assigned portions of the property under sale deeds Exts.
A2 and A3 dated 5.12.1966 to the 5th and 6th respondents in the Execution Application, who are the first and second respondent in this appeal.
1t is stated that while the first respondent is stranger, the second respondent is none other than the wife of the fourth re spondent.
As we have pointed out earlier, this fourth re spondent is among the three respondents on whom the rights of Kunhikannan devolved.
While it is so, Act 9 of 1967 came into force.
So Gopa lan Nambiar and the first appellant filed Execution Applica tion No. 1711 of 1967 for restoration of possession under the said amended Act after making the necessary deposit.
While this E.A. was pending, Act 35 of 1969 tame into force (Kerala Land Reforms Amendment Act) repealing Act 9 of 1967.
So the appellants filed E.A. 556/70 under Section 13 B of the Act for restoration of possession with a prayer that earlier deposit made under Act 9 of 1967 be treated as a deposit under Act 35 of 1969 and also under took to pay the balance, if any, as would be found by the Court.
The third respondent (court auction purchaser) and his assignees Respondents 1 and 2 contended that the appellants have no interest in the properties and the delivery of the property had already been taken.
The appellants attacked the validity of exhibit A2 and A3 contending that the assignments in favour of Respondents 1 and 2 were made without consideration and bona fides and that auction 545 purchaser Thekkayil Kanaran, Respondent No. 3 was only a benamidar of the decree holder in the matter of the Court auction purchase.
This application (E.A. 556/70) was stoutly opposed by the respondents inter alia contending that the properties did not belong to the Tavazhi of the appellants and the appellants have no right to the suit properties and are not entitled to apply for restoration of possession.
According to the respondents, there is no valid deposit and after the delivery of the property has been effected, Gopa lan Nambiar trespassed into the properties and he was eject ed by recourse to a suit and thereafter the properties were assigned to Respondents 1 and 2 for proper consideration and bona fides and they are in possession of the properties on the strength of the said sale deeds.
The Trial Court held that the appellants were the tenants of the properties when they were dispossessed and the deposit made by the appel lants was sufficient and the Respondents 1 and 2 are not bona fide purchasers for consideration.
On the said finding it allowed E .A. 556/70 and set aside the sale.
Aggrieved by the order of the Trial Court, the Respond ents 1 and 2 filed A.S. 49/74 before the Sub Court, Badaga ra, which for deciding the appeal posed the following four points for its consideration, namely: 1.
Are the Petitioners entitled to maintain the application? 2.
Is the deposit sufficient? 3.
Are the appellants bona fide purchaser for consideration? 4.
Whether the court sale is liable to be set aside and the restoration of possession claimed allowable? If so, are the petitioners liable to pay anything by way of value of improvements? The learned Judge answered the first point "that the petitioners are competent to maintain the applica tion," and the second point holding " . . that the deposit when it was made is sufficient.
However the interest accrued till date of the present appli cation will be directed to be deposited in case the peti tioners are found entitled to restoration of possession.
" 546 Coming to the third point it has been held thus "The first respondent (third respondent in S.L.P.) had absolutely no necessity to execute any sham documents.
The fact that respondents 5 and 6 (Respondents 1 and 2 in the SLP) came into possession and exercised their rights under Exhibits A2 and A3 by payment of rent and revenue and pay ment of consideration spoken to by both the vendor and vendee are sufficient to hold that they are bona fide pur chasers for consideration.
" Under the fourth point, the relief claimed by the appellants was held to be rejected.
In the result, the order of the Trial Court was set aside and the appeal was allowed dis missing E.A. 556/70.
The learned Subordinate Judge has also expressed his opinion in his judgment that in summary proceedings under Section 13B of the Act, the plea of the appellants that the third respondent was a benamidar of the fourth respondent cannot be allowed to be raised in the light of Section 66 of the Civil Procedure Code.
On being dissatisfied with the judgment of the Subordi nate Judge, the appellants preferred E.S.A. No. 15/79.
The respondents filed their cross objections.
Though the High Court admitted the appeal on being satisfied that the appeal involves as many as 11 substantial questions of law, it disposed the appeal on a short ground that the documents and the evidence adduced by the respondents 1 and 2 (Govindan Nair and Ambrolil Ammalu) clearly show that the respondents 1 and 2 are bona fide purchasers of the properties in ques tion for consideration and the plea of benami put forth by the appellants has to be negatived.
The contentions in the cross objections were that for filing an application under Section 13(B)(1) of the Act, a deposit of the purchase money together with the interest at the rate of 6 per cent per annum in the court is a condition precedent and that the finding of the lower Appellate Court that the earlier depos it made under Act 9 of 1967 was sufficient and the interest accrued till the date of the Execution Application under Act 35 of 1969 would be directed to be deposited in case the appellants were found entitled to restoration of possession of the property is erroneous.
The High Court disposed the contentions in the main appeal observing thus: "It is not necessary for me to examine this question and finally adjudicate it, since I have upheld the decision of the 547 lower appellate Court on other grounds.
I only indicate that the respondents ' counsel thought to sustain the conclusion of the lower appellate court on other grounds as well.
" In the result, the High Court affirmed the decree of the lower Appellate Court and dismissed the second Appeal with costs.
So far as the cross objections are concerned, the High Court passed the following order: "There is no need to dispose of the cross objections on the merits.
It is ordered accordingly.
" Hence the appellants by this appeal are impunging the judg ment of the High Court.
Mr. K.K. Venugopal, Sr.
Counsel appearing on behalf of the appellants, Mr. T.S. Krishnamurthy lyer, Sr. Counsel and Mr. P.S. Poti, St. Counsel appearing on behalf of the first and second respondents respectively took us very meticulous ly and scrupulously through the judgments of all the three courts and put forth the case of their respective parties.
Having heard the learned counsel on either side for a considerable length of time, we are clearly of the view on a conspectus of the relevant Section 13(B) of the Act and on the factual matrix of the case that the result of the case would depend upon the decision of two substantial questions involved, they being (1) Whether respondents 1 and 2 are bona fide purchasers of the scheduled land in dispute for adequate consideration entitling to the benefit of the proviso to Section 13(B)(1)? (2) Whether the appellants are entitled to the benefit of subSection (1) of Section 13(B) of the Act? Before making a more detailed and searching analysis on different aspects of the case, it would be necessary for proper understanding of the issues involved to reproduce the relevant provisions of Section 13(B)(1) of the Act, on the pivotal of which both the questions revolve.
Section 13B: There is no requirement in any of the clauses 548 that an offer of readiness to comply with any order for deposit of costs must be expressed in any judgment, decree or order of court, where any holding has been sold in execu tion of any decree for arrears of rent, and the tenant has been dispossessed of the holding after the 1st day of April, 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, such sale shall stand set aside and such tenant shall be entitled to restoration of possession of the holding, subject to the provisions of this Section; Provided that nothing in this sub Section shall apply in any case where the holding has been sold to a bona fide purchas er for Consideration after the date of such dispossession and before the date of publication of the Kerala Land Re forms (Amendment) Bill, 1968 in the Gazette.
If the answer to the first question is in the affirma tive, then there is no need to consider the second question as it would be only academic.
We, therefore, shall now address ourselves in the first instance whether the concur rent finding of facts by both the Appellate Courts relating to the first question warrant interference.
Before the Trial Court whilst the appellants examined PWs 1 to 4 and filed Exhibits A 1 to A22, the respondents examined RWs 1 to 4 and marked Exhibits B. 1 to B .58.
Besides, exhibit X 1, X 2, X 3, X 5 and X 6 and C. 1 to C.4 were also exhibited.
The Respondents 4 to 6 admittedly are brothers.
Though at the initial stage, Mr. Krishnamurthy Iyer did not accept the relationship of the third Respondent with Respondents 4 to 6 on the ground of lack of evidence, subsequently no serious dispute was raised about the said relationship.
The Trial Court has proceeded on the ground that the Respondents 3 to 6 are brothers being the sons of Kunhikannan in whose favour the decree had been assigned.
However, it is admitted during the course of hearing of this appeal that the third Respondent is not a direct brother of Respondents 4 to 6, but son of the step mother of Respondents 4 to 6.
The second Respondent Ambrolil Ammalu is admittedly the wife of the fourth Respondent Krishnan.
The first Respondent Govindan Nair is a stranger.
The third Respondent, the Court auction purchaser sold the property extending 4.35 acres in favour of the first Respondent and the remaining half in favour of the second Respondent under sale deeds Exts.
A.2 and A.3 dated 549 5.12.
Consideration mentioned in each of the sale deeds Exts.
A.2 and A.3 is Rs.3,000.
Out of Rs.3,000 shown as consideration for A.2 a sum of Rs.2,500 is said to have been left with the first Respondent for payment of arrears of rent.
In exhibit A.3, it is recited that the third respondent is said to have already received Rs.2,000 on a promissory note from the second Respondent for meeting the expenses incurred by him for conducting O.S. No. 6/66.
The said sum of Rs.2,000 is stated to have been adjusted towards the consideration under exhibit A3.
The first Respondent has produced a receipt (exhibit B28) showing that out of the amount of Rs.2,500 left with him he had paid a sum of Rs. 100.
There is no other document evi dencing the discharge of the entire alleged arrears of rent out of Rs.2,400.
When the third Respondent was questioned about the promissory note on the strength of which he is stated to have borrowed a sum of Rs.2,000, he has stated that he had returned the promissory note.
This evidence as rightly pointed out by Mr. Venugopal is highly unacceptable because in usual practice whenever a debt, borrowed on a promissory note is discharged that promissory note is re turned to the borrower and never left with the lender.
Moreover, the evidence of the third Respondent is contra dicted by RW. 3, the son of the second Respondent.
According to RW.
3, when exhibit A.3 was executed, the promissory note was returned to the third Respondent.
According to Mr. Venugo pal, this contradictory version betwixt the evidence of the first Respondent and RW.
3 clearly shows that the recital regarding payment of consideration to the extent of Rs.2,000 in exhibit A.3 is not genuine and acceptable and that exhibit A.3 is not fully supported by consideration.
As per the recitals of consideration under Exhibits A.2 and A.3 the total cash consideration received by the third Respondent was only Rs. 1,500 i.e. Rs.500 from the first Respondent and Rs.1000 from the second Respondent.
It is vehemently urged on behalf of the appellants that the third Respondent after purchasing the property for Rs.815 in 1962 would not have parted with it after fighting several litigations for a cash considera tion of Rs.1,500 only.
The evidence of the third Respondent that he left a sum of Rs.2,500 with the first Respondent for discharging arrears of rent and earlier received a sum of Rs.2,000 from the second Respondent on a promissory note is not credit worthy in the absence of any supporting contempo rary documentary evidence.
His assertion that he paid the amount for the Court auction purchase in the year 1962 out of the money in his possession as well as from borrowings shows that he was a man of slender means.
When he was con fronted from whom he borrowed that amount, his answer was that he did not remember from whom and how much he borrowed.
The 550 Trial Court has rightly pointed out in paragraph 19 of its Order that the third Respondent did not leave any impression that he was conversant with the various pending litigations regarding the present property.
Mr. Venugopal drew out attention to another piece of evidence of RW3, deposing that his father was never consult ed with regard to exhibit A3 and assailed his evidence as in credible and bereft of truthfulness and trust worthiness.
Coming to the sale deed, exhibit A2 it is stated that the first Respondent is residing about 11 miles away from Palayed Amson where the property is situated.
He has no other property in Amson.
The reason given by him for purchasing this property which was already riddled with litigation is not at all convincing.
The first appellate Court while perfunctorily rejecting the reasoning of the Trial Court with regard to the consid eration part of exhibit A2 and A3 disposed of that contention in a summary manner holding: "The apparent inadequacy is no ground to think that there is no consideration . .
I don 't think that the recitals in Exhibits A2 and A3 can be overlooked for this or the other reasons stated by the learned Munsiff." Then relying on Exhibits B 17, B28, B31, B41 and B45 and other documents it concluded: "that the Respondents 1 and 2 came into possession of the properties and exercised their rights under Exhibits A2 and A3 by payment of rent and revenue and payment of considera tion spoken to by both the vendor and vendee and as such they are bona fide purchasers for consideration." The High Court accepting the reasons given by the sub Judge held thus: "Most of these documents are public records or registers kept in the respective village office and proceedings in courts.
There is no more of law in placing reliance on such documents.
The finding entered by the learned Subordinate Judge that respondents 5 and 6 are bona fide purchasers for consideration is based on substantial evidence.
It cannot be said to be arbitrary or unreasonable or perverse. ' ' 551 But both the Appellate Courts have conveniently ignored even the relationship of the parties which assumes much importance and significance in evaluating the evidence in the light of the facts and circumstances of the case for reaching a satisfactory conclusion and seem to have summari ly disposed of the case of the appellants.
The question is not the mere inadequacy of consideration as pointed by the lower appellate Court, but lack of evi dence in substantiating the recitals of both the documents.
The next contention advanced by Mr. Venugopal is that though the High Court has formulated as many as 11 substantial questions of law.
it has not dealt with any of them enumer ated as (a) to (e) and examined the question No. (f) in the proper perspective.
Further the important question No. (g) reading "rs not the admitted fact that the 6th respondent is the wife of the 2nd respondent prima facie proof that she is not a bona .fide purchaser for value" is not at all dealt with.
It may be noted in this connection that the 6th re spondent and the 2nd respondent referred to in that question are Ambrolil Ammalu (2nd respondent herein) and Krishnan (4th respondent herein).
As pointed out supra the High Court itself has expressed that it was inclined to dispose of the appeal 'on a short ground '.
The bone of contention of Mr. Krishnamurthy Iyer and Mr. Poti is that it is not open to the appellants to reagitate the matter and request this Court to disturb the concurrent finding of facts arrived at by both the appellate Courts which had rendered their findings on the proper evaluation of the evidence and there can be no justification to review or re appreciate the evidence to take a contrary view in the absence of any contemporaneous document in support of the plea of the appellants.
In addition to the above, Mr. Poti urged that the appellants have not properly and satisfacto rily discharged the onus of proof cast upon them and the concurrent findings based on voluminous documents, the copies of which are not annexed to the SLP for perusal of this Court, do not call for interference.
In reply to the above arguments, Mr. Venugopal has pointed out that none of the documents referred to in the judgments of the appellate Courts would either improve the case of the respondents or deny the claims of the appel lants.
Of the documents relied upon by the appellate Courts, exhibit B 17 and B31 are the true extracts showing payment of tax in the Village Officer Day Book.
exhibit B28 is a rent receipt dated 23.2.1969 issued by the receiver appointed in O.S. 1/64 on the file of the Sub Court (lower appellate Court).
B. 42 is a true extract 552 from the Foodgrains Cultivation Register and B.46 is a true extract from the Peringathor Village Account.
exhibit
B.41 to B.45 are the levy notices and revenue receipts for the years 1967, 1968.
1969 and 1973.
Exhibits B.55 to B.59 are copies of orders in M.C. No. 3/71.
As rightly pointed out by Mr. Venugopal, it is but natural that the receipt for the pay ment of tax, rent receipt, revenue receipt etc., are in the names of the persons in whose names the properties stand and therefore those documents cannot by themselves dispel the claim of the appellants.
Besides, urging with aH emphasis that Exhibits A2 and A3 are only sham and nominal documents, it has been incidentally urged by Mr. Venugopal that the transaction under these two sale deeds is benami in nature.
This argument was stoutly resisted by Mr. Krishnamurthy Iyer stating that in the teeth of Section 66 of the Code of Civil Procedure and in the absence of any proceedings to set aside the sale in favour of respondents 5 and 6 on the ground of fraud etc.
, the plea of benami transaction cannot be counte nanced.
He also cited the decision in Mithilesh Kutnari and Another vs Prem Behari Khare, ; But Mr. Venugopal explained his argument that he has not advanced that argument to set aside the sale deeds on the ground of benami transaction, but only for scrutinising the circum stances of the transaction in examining the validity of the sale deeds.
However, as the plea of benami transaction is not pressed into service, it need not detain us any more.
We shah now examine whether this Court would be justi fied in interfering with the concurrent finding of facts in exercise of its discretionary powers under Article 136 of the Constitution of India.
In a recent decision in Dipak Banerjee vs Lilabati Chakraborty, ; it has been observed thus: "That jurisdiction (under Article 136 of the Constitution of India) has to be exercised sparingly.
But, that cannot mean thai injustice must be perpetuated because it has been done two or three times in a case.
The burden of showing that a concurrent decision of two or more courts or tribunals is manifestly unjust lies on the appellant.
But once that burden is discharged, it is not only the right but the duty of the Supreme Court to remedy the injustice." No doubt, this discretionary power has to be exercised sparingly; Out when there are exceptional and special cir cumstances justifying the exercise of the discretionary powers and where manifest injustice or grave miscarriage of justice has resulted by overlooking or ignoring or 553 excluding material evidence resulting in unduly excessive hardships, this Court will be justified in stepping in and interfering with the concurrent finding of facts in the interest of justice and it is also the duty of this Court to remedy the injustice, so resulted.
Vide Basudev Hazra vs Meutiar Rahaman Mandal; , and Bhanu Kumar Shastri vs Mohan Lal Sukhadia and Others, at pages 385 and 386.
The present case, in our view, suffers from the infirmi ty of excluding, ignoring and overlooking the abundant materials and the evidence, which if considered in the proper perspective would have led to a conclusion contrary to the one taken by both the appellate Courts.
The relation ship of the parties inter se has been completely and conven iently ignored and excluded from consideration.
In fact, the High Court has not rendered any finding on question No. (g) which is one of the eleven substantial questions of law formulated in paragraph 3 of its judgment.
The lack of evidence in support of the recital in regard to the consid eration is completely overlooked.
Therefore, in view of the above exceptional and special circumstances appearing in this case, this Court will not be justified in refusing to exercise its discretionary powers merely on the ground that the conclusion of both the Courts is concurrent.
For the discussions made above, we are of the view that the conclusion arrived at by both the appellate Courts is only backed by assertions rather than by acceptable reason ing based on the proper evaluation of evidence and so we are unable to subscribe to the concurrent finding that the respondents 1 and 2 are bona fide purchasers of the proper ties in dispute for consideration.
On the other hand, we hold that the evidence and circumstances of the case coupled with the evidence on record do establish that the respond ents 1 and 2 are not bona fide purchasers for consideration.
In the result, we hold that the respondents 1 and 2 are not entitled to the benefit of the proviso to sub Section (1) of Section 13(B) of the Act and answer the first ques tion against the respondents and in favour of the appel lants.
We shall now pass on to the next question whether the appellants are entitled to the benefit of Section 13(B)(1) of the Act.
The Kerala Land Reforms Act of 1963 came into force on 1.4.1964.
Amended Act 9 of 1967 was a temporary enactment which 554 remained in force till 31.12.
Thereafter, Act 35 of 1969 came into force from, 1.1.1970 containing Section 13(B) which is substantially on the same terms as Section 6 of Act 9 of 1967 with a proviso superadded.
To invoke this benevo lent provision, the satisfaction of two primary conditions are sine qua non.
Those conditions are: (1) Any "holding" to which a tenant is entitled to resto ration of possession should have been sold in execution of any decree for arrears of rent.
(2) The tenant should have been dispossessed of the "holding" after the first day of April 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969.
If these two essential conditions are fulfilled, then the sale in execution of any decree for arrears of rent shall stand set aside notwithstanding anything to the con trary contained in any law or in any judgment, decree or order of court and the tenant shall be entitled to restora tion of possession of such holding, but subject to the provisions of this Section 13B.
The only bar for the resto ration of possession under this Section 13(B)(1) is the sale of the holding to a bona fide purchaser for consideration after the date of such dispossession and before the date of publication of the Kerala Land Reforms (Amendment) Bill 1968 in the Gazette.
For invoking the benefit of sub Section (1) of section 13(B) the person entitled to restoration of possession of his holding should within a period of 6 months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969 deposit the purchase money together with interest at the rate of 6 percent per annum in the court and apply to the court for setting aside the sale and for restoration of possession of his holding.
Once these legal formalities are satisfactorily complied with then the Court by holding a summary enquiry shall set aside the sale and restore the applicant to possession of his holding.
The explanation to that section says that the term 'holding ' includes a part of holding.
The expression "holding" is defined in Section 2(17) of the Act.
The language of Section 13(B) is plain, clear and unam biguous representing the real intention of the legislature as reflected not only from the clear words deployed but also from the very purpose of the vesting of rights on the dis placed tenants.
To construe the provisions of a statute especially of a benevolent provision like the one in ques tion, we have to take into consideration the dominant pur pose of the statute, the intention of the legislature and the policy underlying.
Vide 555 P. Rami Reddy & Others vs State of Andhra Pradesh & Others, ; ; Skandia Insurance Co. Ltd. vs Kokilaben Chandravadan & Others, [1987] 2 SCC 654 and M/s Doypack Systems Pvt. Ltd. vs Union of India & Others, ; Admittedly, the third respondent obtained delivery of the property in question through court on 29.1.1965 from the possession of the appellants, who were the tenants of the said property which was sold for arrears of rent and there after the appellants preferred a petition for restoration of possession of their holdings in Execution Application No. 1711/67 under Section 6 of Act 9 of 1967 after depositing the sale amount of Rs.815 and the interest of Rs.255.
Thus the appellants have satisfied the conditions for entitlement of the possession of the property.
While this proceeding was pending, Act 35 of 1969 came into force repealing Act 9 of 1967.
Therefore, the appellants filed the Execution Applica tion No. 566/70 in O.S. 817/43 praying that the present application should be treated as a proceeding in continua tion of the earlier Execution Application and the amount deposited already in the previous Execution Application should be treated as deposit for the present application with an undertaking to deposit the balance, if any.
Though it has been contended by the respondents that the appellants have failed to establish that they were tenants at the time of the dispossession, both the Trial Court as well as the first appellate Court have concurrently found that the appellants were holding the property as tenants and they were dispossessed.
Before the High Court, it was contended that at the time of dispossession of the holding, the appel lants were not tenants but only trespassers, that the dis possesion was only pursuant to the decree in O.S. No. 6/66 and that both the lower Courts have not applied their minds to these salient and vital facts.
The learned Judge of the High Court has answered this contention in the penultimate paragraph of his judgment observing thus: " This is a serious legal error.
It is not necessary for me to examine this question and finally adjudicate it, since I have upheld the decision of the lower appellate court on other grounds.
" Suffice to mention here that the High Court has not specifi cally dislodged the findings of the lower Courts that the appellants were tenants at the time of the dispossession.
However, we will deal with this question presently.
The main thrust of the argument of Mr. Krishnamurthy Iyer is 556 that the appellants are not entitled to restoration of the possession of their 'holding ' because of an intervening cause, that being, that the third respondent, got the pos session of the property which is now sought to be disturbed not in execution of the decree for arrears of rent, but by filing a suit subsequent to 'the court auction purchase.
That intervening cause is explained by the learned counsel 'stating that after the property was delivered over to the third respondent on 29.1.1965, Gopalan Nambiar (since dead) and the first appellant trespassed into the land which necessitated the third respondent to institute a suit O.S. No. 6/66 in the Sub Court of Badagara which was decreed on 27.7.
1966 as evidenced by the judgment (exhibit B16).
He con tinues to state that the third respondent, only in pursuance of the execution of this decree in O.S. 6/66 obtained pos session of the property on 23.8.
1966 and therefore Section 13(B)(1) in view of the said intervening cause cannot be availed of since the third respondent though 'got possession earlier by the auction purchase was dispossessed by the subsequent event of trespass by the appellants and got possession by instituting the suit O.S. 6/66.
One other argument of the learned ' counsel is that as the sales under Exhibits A2 and A3 are only subsequent to the decree in O.S. No. 6/66, these transactions cannot be brought into the dragnet of Section 13(B) and the said provision will have no application to the facts of the present case.
We are afraid, we cannot permit this inconceivable argument to be advanced.
Admittedly, the third respondent purchased the property in court auction sale in pursuance of the decree for arrears of rent in O.S. No. 817/43 and obtained the possession by dispossessing the tenants, namely, the appellants.
It was only thereafter there was trespass by the appellants.
There fore, the subsequent event of obtaining possession of the property in pursuance of the decree in O.S. No. 6/66 will not in any way alter the position that the appellants had been dispossessed in pursuance of the decree for arrears of rent.
The decree in O.S. No. 6/66 for obtaining possession from the trespassers does not confer any new right or title over the property in favour of the third respondent.
Mr. Venugopal countered this argument stating that this new plea should not be allowed to be raised because this plea was never taken both before the trial and the first appellate Courts.
The reply given by Mr. Krishnamurthy Iyer is that since it is a question of law, it is permissible to raise this question even at this stage.
As we have said earlier, even assuming that this plea could be raised, it has no substance in any way affecting the claim of the appellants for the reasons stated supra.
Mr. Poti after giving a brief note about the legislative history that Act 4 of 1961 was declared as void on 5.12.
1961 in respect of certain 557 provisions and that thereafter Act 1 of 1964 was enacted which came into force on 1.4.1964 repealing earlier Act 4 of 1961 advanced a hesitant argument that the application is liable to be dismissed as the entire amount has not been deposited in compliance with sub Section (2) of Section 13(B) which is a condition precedent to claim the restora tion of the possession of the property.
Admittedly the appellants filed an application in the year 1967 for resto ration of the possession of the property under Section 6 of Act.
9 of 1967 and during the pendency of that application, Act 35 of 1969 came into force.
The applicant who had al ready deposited the purchase amount together with interest has made the request to treat that application as the one in continuation of the later proceeding and undertook to pay the deficiency of the amount, if any.
The lower appellate Court in paragraph 6 of its judgment found that the deposit already made was sufficient and that the interest accrued thereafter would be directed to be deposited in case the appellants were found entitled to restoration of possession.
This finding of the first appellate Court concurring with the Trial Court has not been dislodged by the High Court.
It may not be out of place to mention that on account of cer tain divergent views expressed by Judges of the Kerala High Court on this point the question was referred to a Division Bench of that Court which drawing strength on the ratio laid down by this Court in State of Punjab vs Mohar Singh, ; observing: "The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them." and agreeing with the view expressed by Krishnamurthy Iyer, J (as he then was and who is now appearing before us for the first respondent in different capacity) in Civil Revision Petition Nos. 1090 and 109 1 of 1972 wherein this precise question came up for consideration held that the application filed under Section 6 of Act 9 of 1967 which was pending on the date of the commencement of the Act 35 of 1969 was liable to be continued and dealt with under the provisions of the earlier Act, untrammelled by the provisions of the later Act.
We approve the view taken in the above Parameswa ran Narnbudiri 's case and hold that the deposit made in the earlier application under Section 6 of Act 9 of 1967 which was pending on the date of commencement of Act 35 of 1969 was liable to be continued uneffected by the provisions of the later Act.
558 In Summation: We, for the aforementioned discussion, disagree with the findings of the High Court, set aside the impugned judgment and restore the judgment of the Trial Court holding that the sale of the 'holdings ' of the appellants was in execution of the decree in O.S. No. 817/43 for arrears of rent and the appellants who are tenants were dispossessed of the holdings after 1.4.64 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969 and the respondents 1 and 2 are not bona fide purchasers for consideration.
In view of our above conclusion the appellants are entitled to recover possession of the properties in dispute, but without preju dice to the rights, if any, of the respondents 7 to 10 who are the wife and children of Gopalan Nambiar and who have got themselves impleaded as parties to the present proceed ings.
The amount under deposit made by the appellants is permitted to be withdrawn by the respondents 1 to 3.
In the result, the appeal is allowed with costs.
S.B. Appeal al lowed.
| IN-Abs | The appellants fried an Execution Application in 1970 in the Court of Munsiff under Section 13(B) of the Land Reforms Act 1969 for the restoration of the possession of the properties which were sold in Court auction in pursuance of a decree for arrears of rent.
The decree holder and Court auction purchasers were close relatives.
The sale took place on 26.11.
1962 and was confirmed on 14.8.1964.
It is the 3rd Respondent a stranger in the present appeal who purchased the property in the Court auction and got the possession of the same on 9.1.1965 from the appellants.
The appellants trespassed into the suit property again and were ejected in 1966 pursuant to a decree in a suit.
Thereafter the 3rd Respondent i.e. the auction purchaser assigned the property in favour of Respondents No. 1 & 2 who were the close rela tives vide sale deeds dated 5.12.1966 (Exts A2 and A3).
The appellants had already filed Execution Application, for restoration of possession after making necessary deposit for the purchase money under section 6 of Act 9 of 1967.
The same was pending when Act 35 of 1969 came into force and so the appellants made an application with a prayer that the earlier deposit be treated as a deposit under section 13(B) of 1969 Act.
The Court auction purchaser i.e. 3rd Respondent and his assignees Respondents No. 1 & 2 strongly contended that appellants have no interest in the properties.
The appel lants attacked the validity of the sale deeds being made without consideration.
The trial Court held that the appel lants were tenants when they were dispossessed and also held that the deposit made by the appellants was sufficient for restoration of possession, and Respondents No. 1 & 2 are not bona fide purchasers for consideration, and hence set aside the sale.
The Respondents No. 1 & 2 made application before the sub court 540 and the court held the petitioners were competent to main tain the application and were bona fide purchasers as per records such as revenue and tax receipts plus the admission of the vendor and vendee as to the payment of consideration.
As to the deposit made by the appellants it was considered to be sufficient in case they were found entitled for resto ration of possession; set aside the Trial Court order and allowed the appeal.
The appellants therefore filed E.S.A. in the High Court and the High Court upheld that the decision and the decree of the lower Appellate Court as per evidence, and as circum stances of the case complied with public records establish ing that Respondents 1 & 2 are the bona fide purchasers for consideration.
But the first appellate court concurred with the Trial Court regarding the deposit already made to be sufficient and the interest accrued would be directed to be deposited if the appellants were found entitled to restora tion of possession.
The said finding has not been dislodged by the High Court.
Allowing the Special Leave Petition, this Court, HELD: In the instant case, two substantial questions are involved i.e. (1) whether respondents 1 & 2 are bona fide purchasers of the scheduled land in dispute for adequate consideration and thereby entitled to the benefit of the proviso inserted vide Act 35 of 1969 to sec.
13(B)(1).
[547F] (2) Whether the appellants are entitled to the benefit of subsection (1) of section 13(B) of the Act.
[547F G] As per section 13(B) where any holding has been sold in execution of any decree for arrears of rent and the tenant has been dispossessed of the holding after the 1st day of April 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act 1969, such sale shall stand set aside and such tenant shall be entitled to restoration of possession of the holding subject to the provisions of this section.
[558 B C] Provided that nothing in this sub section shah apply in any case where the holding has been sold to a bona fide purchaser for consideration after the date of such dispos session and before the date of the publication of Kerala Land Reforms (Amendment) Bill 1968 in the Gazettee.
[554D E] 541 The concurrent finding of facts by both the appellate courts that Respondents No. 1 & 2 are bona fide purchasers for consideration warrant interference because both the appellate courts have conveniently ignored and excluded from consideration even the relationship of the parties inter se i.e. the decree bolder, court auction purchaser are close relatives and have assigned the property in favour of their close relatives and a stranger This assumes much importance and significance in evaluating the evidence in the light of the facts and circumstances of the case for reaching satis factory conclusion.
The court has failed to render any finding on substantial question of Law.
The lack of recitals with regard to the consideration has also been completely ignored It seemed to have disposed of the case summarily.
[553B D] It is not merely the inadequacy of consideration as pointed out by the lower appellate court but there is lack of evidence in substantiating the recitals of the documents that Respondents No. 1 & 2 are bona fide purchasers.
The receipts for the payment of tax, rent or revenue are by themselves cannot dispel the claims of the appellants.
[545C] The conclusion arrived at by both the courts is only backed by assertions rather than by acceptable reasoning based on the proper evaluation of evidence.
So the evidence and circumstances of the case coupled with the evidence on record do establish that the Respondents 1 & 2 are not bona fide purchasers for consideration.
[553E F] Discretionary powers under Article 136 has to be exer cised sparingly but when there are exceptional and special circumstances justifying the exercise of discretionary powers and where manifest injustice or grave miscarriage of justice has resulted by overlooking or ignoring or excluding material evidence resulting in undue hardships, this Court will be justified in stepping in and interfering with the concurrent findings of facts in the interest of justice and it is also the duty of this Court to remedy the injustice so resulted.
Dipak Baneriee vs Lilabatichakraborty, ; , relied on.
[552H; 553A B] On the question whether the appellants are entitled to the benefit of section 13(B)(1) of the Act, it was held: [553G] The Kerala Land Reforms Act of 1963 came into force on 1.4.1964, Act 9 of 1967 was a temporary Act and remained in force till 31.12.1969, Act 35 of 1969 came into force from 1.1.1970 and section 13(B) is substantially on the same terms as section 6 of 1967 Act with a 542 proviso super added.
To invoke section 13(B) two conditions are sine qua non.
(1) Any holding to which a tenant is entitled to restoration of possession should have been sold in execution of any decree for arrears of rent.
(2) The tenant should have been dispossessed of the holding after 1.4.1964 and before the commencement of 1969 Act.
[553H; 554A C] Thus the tenant shall be entitled to restoration of possession under section 13(B) provided the holding is not sold to a bona fide purchaser for consideration, after the date of dispossession and before the publication of the Kerala Land Reforms (Amendment) Bill 1968 in the Gazettee.
The appellants are entitled to have the benefit of sub section (1) of section 13(B) only if they have made the deposit of the purchase money together with interest at the rate of 6% Per Annum in the Court and applied to the Court for setting aside the sale and for restoration of the hold ing.
The appellants in the instant case had already made deposit under 1967 Act and it was pending when Act 35 of 1969 came into force.
So the appellants made an application with a prayer to treat the said deposites continuation unaffected by the provisions of 1969 Act.
[554D F] The Language of section 13(B) is plain, clear and unam biguous and the very purpose of the section is to vest rights on the displaced tenants, which is the dominant purpose of the statute, which should be considered.
[554G H] P. Rami Reddy & Ors.
vs State of Andhra Pradesh & Ors.
, ; Skandia Insurance Co. Ltd. vs
Kokilaben Chandravadan & Ors., [1987] 2 SCC 654 and M/s. Doypack Systems Pvt. Ltd. vs Union of India & Ors., ; relied on.
The sale of holdings of the appellants was in execution of the decree for arrears of rent in O.S. No. 817 of 1943, and appellants are tenants who were dispossessed of the holdings after 1.4.1964 and before the commencement of 1969 Act.
They are therefore entitled to restoration of posses sion of the properties in dispute but without prejudice of the rights if any of the Respondents Nos. 7 to 10 who are the wife and children of Gopalan Nambiar.
The amount under deposit made by the appellants is permitted to be withdrawn by respondents 1 to 3.
[558B C]
|
tition (Civil) Nos.
507 and 1260 of 1989.
(Under Article 32 of the Constitution of India).
M.K. Ramamurthy, Rajinder Sachhar, Dr. Francis Julion, Ms. Aruna Mathur, A. Mariarputham, Ms. section Dikshit, section Va sudevan and Pradeep Misra for the Petitioners.
For the Respondents Nemo.
The following Order of the Court was delivered by 496 section RANGANATHAN, J. This order will dispose of a prelimi nary objection raised on behalf of the respondents that these writ petitions should be dismissed because the peti tioners have suppressed certain material facts from this Court and have also tried to abuse the process of court in the manner hereinafter appearing.
Writ Petition No. 507 of 1989 has been filed by the All India State Bank Officers ' Federation (hereinafter called 'the Federation ') through its President.
It was filed in this Court on 21st April, 89 and was supported by an affida vit of Umed Singh, President of the Federation, affirming the contents of the petition to be true to his personal knowledge.
By this writ petition the Federation seeks to impugn a new promotion policy decided upon by the State Bank of India (hereinafter called 'the Bank ').
In paragraph 9(mm) of the petition it is stated that the petitioners are ap proaching this Court in great haste as the Bank is moving with great speed and is likely to constitute Departmental Promotion Committees and declare the results of the inter views in implementation of the new promotion policy within the next two or three days.
In the affidavit of Umed Singh, referred to earlier, it has been stated in para 4 that the petitioners have not filed any other similar writ petition in this Honourable Court or any other High Court.
In the counter affidavit filed on behalf of Bank, it is stated that the statement in paragraph 4 of the petition in support of the writ petition is false.
It is pointed out that the Federation through its Deputy General Secretary had filed Writ Petition No. 5286 of 1989 in the High Court of Andhra Pradesh at Hyderabad along with an application No. 6969 of 1989, seeking stay of the promotion policy.
On 13.4.89 the Andhra Pradesh High Court admitted the writ petition but the learned judge rejected the application for interim stay observing "that he was prima facie satisfied that the selection is going on according to a fair procedure and that there is no need to stay any of the interviews or the appointment".
It is further pointed out that another petition has also been filed by the State Bank of India Officers ' Association (Karnataka) having its office at Bangalore in the Karnataka High Court, being Writ Petition No. 7848 of 1989.
It is, therefore, submitted that the petitioners have suppressed from this Court the material fact that a writ petition has already been filed by them in the Andhra Pradesh High Court and that an application for stay had been made and rejected by the said court.
A second objection to the 497 maintainability.
of the petition raised on behalf of the Bank in paragraph 3 of its counter affidavit was that since promotions had already been made they could not be disturbed "as the promoted officers have not been made parties".
It is common ground that 58 officers had been promoted w.e.f.
24th April, 89 but no steps were taken to implead these officers, who would be directly affected as a result of the prayer made in the writ petition.
To these objections, a rejoinder was filed on behalf of the petitioners, supported again by an affidavit of Umed Singh on the 23rd of October, 1989.
The two objections raised by the Bank were sought to be refuted in the follow ing manner: "1.
That the contents of para 1 are denied and it is reiter ated that the writ petition is maintainable as there is clear violation of fundamental rights guaranteed to the petitioners.
The writ petition filed in the Andhra Pradesh High Court has since been withdrawn as per the undertaking given to the Supreme Court during arguments on 24.4.89.
The deponent had no knowledge of the writ petition filed before the High Court of Andhra Pradesh, hence as soon as it came to his knowledge the same has been withdrawn.
Even otherwise the deponent understands that in the said writ petition the stay of interviews was prayed and the same was declined on representation made by the respondent bank.
It is indeed regrettable that even before Hon 'ble High Court the bank made incorrect statements.
A perusal of the order of High Court would show the same.
Regarding the question of making such employees who have been promoted as a party respondent, it is submitted that firstly it is the promotion policy which had been challenged being arbitrary, discriminatory and framed in gross violation of the prescribed procedure and provisions of law, secondly the petitioners even today do not know the names of all such 58 candidates who have been promoted favoured." (emphasis added) It may be mentioned here that Writ Petition No. 507 of 1989 came up for admission before a Bench of this Court on 26th April, 1989.
Apparently, the counsel for the State Bank of India was present and accepted notice on behalf of the bank.
The Bench passed the following order: 498 "Issue notice, Mr. S.S. Sharma, learned counsel accepts notice on behalf of the State Bank of India.
Counter affida vit shall be filed within four weeks from today.
Reply, if any, shall be filed within two weeks thereafter, the matter will be placed for final disposal on 24.10.1989 subject to overnight part heard.
The promotion if given in the meantime will be subject to the decision in the writ petition.
Mr. K.K. Venugopal, learned counsel states that the writ peti tion which has been filed before the High Court will be withdrawn." The Writ Petition came on for hearing before us on 5th April, 1990.
Sri G. Ramaswamy, counsel for the Bank, put the above objections in the forefront as preliminary objections.
After hearing him and the counsel for the petitioner, we directed the petitioner federation to file a better affida vit explaining the correct position.
In compliance with the direction given by us, another affidavit has been filed by Sri Umed Singh.
In this affidavit, again, although purport ing to "tender an unqualified apology" for the misstatement in the earlier affidavit, the deponent reiterated "that he did not know on the date of swearing of the affidavit on 21.4.89 that some other office bearer of the petitioner federation has filed such a petition".
He claims to have come to know of it only on the 23rd April, 1989 from a telephonic conversation with the Deputy Secretary and wishes to take credit for the fact that he at once informed his counsel about it who in turn brought it to the notice of the Court at the time of the preliminary hearing on 26th April, 1989.
The truth of these allegations is refuted on behalf of the Bank.
It is submitted that the counsel for the petition er did not, even at the time of hearing on 26.4.89, bring to the notice of this Court the fact that he had filed a peti tion in the Andhra Pradesh High Court.
On the other hand, it is claimed, it was the counsel for the Bank who was present and who took notice on behalf of the Bank, that brought to the notice of the Court that the petitioner had already moved the Andhra Pradesh High Court in regard to the same relief and it was only thereafter that the counsel for the petitioner made a statement that the petitioner would with drew the petition filed in the Andhra Pradesh High Court.
Even this, it is pointed out, they did not do immediately as stated in Umed Singh 's affidavit for the said petition was withdrawn only much later on 27th of July, 1989.
On behalf of the Bank it is also pointed out that the statement made in the rejoinder filed by Umed Singh, sup ported by his affidavit, 499 that the addresses of the 58 promotees was not known to the petitioner is again a total falsehood as is demonstrated by two circumstances.
In the first place, in the writ petition filed in the Karnataka High Court, the petitioner there has joined all the 58 officers as parties and an application was moved before the said High Court on 27th April, 89, seeking stay of promotion of the said respondents.
That apart, on 1st May, 89, a fortnightly bulletin issued by the State Bank of India Officers ' Association (Mumbai circle), which is admitted to be one of the associations affiliated to the petitioner Federation, carries a message of congratulations to all the 58 officers, who had been promoted w.e.f.
24th April, 89.
The names of all the 58 officers so promoted has been set out in this bulletin.
In this state of the record, learned counsel for the Bank strongly urges that we should dismiss the writ petition straightaway on the ground that the petitioner has not come to Court with clean hands.
We have heard learned counsel on both sides at length.
There is no doubt left in our minds that the petitioner has not only suppressed material facts in the petition but has also tried to abuse judicial process.
The explanation that the President of the Federation when he filed the writ in this Court on 21st April, 89, was not aware that a petition had been filed in the Andhra Pradesh High Court (repeated for a second time in the affidavit of 5th April ' 90) is, in our opinion, is totally unacceptable.
Admittedly the federa tion was considerably agitated by the new promotion policy.
The matter was considered to be very urgent and the federa tion was too keen to obtain a stay of implementation of the policy which, it feared.
the Bank might do any day.
In this situation, not even the most gullible of persons would be credulous enough to accept the explanation that the Deputy General Secretary of the Federation had not apprised the President of their failure to obtain the stay order from the Andhra Pradesh High Court.
It is totally unbelievable that between 13.4.89, when the interim application in the Andhra Pradesh High Court was rejected and 21.4.89 when the writ petition was filed, the President was not aware of what had happened in the High Court.
It is deplorable that such an explanation should have been not only put forward in the original rejoinder but should have been repeated again in the latest affidavit.
The petitioner had, in our opinion, deliberately suppressed from the petition this crucial and important fact.
As to the credit sought for having brought this fact to the notice of the Court on 25.4.89.
the circum stances suggest that perhaps they would not have brought it to the notice of the court at all had not counsel on behalf of the Bank been present.
to receive notice 500 when the matter was moved for admission on 26.4.89.
whether, as asserted by the counsel for the petitioner, the petition er considered it prudent, in view of the presence of the Bank 's counsel, to volunteer at the time of the said hearing the information that a petition had been filed in the Andhra Pradesh High Court and to offer an undertaking that it would be withdrawn or whether, as alleged in a "statement of facts" ' placed before us by Sri S.S Sharma, the learned counsel for the Bank who appeared at the hearing, even this information had to be supplied to the Court by the Bank, is a controversy into which we need not enter.
We shall proceed on the assumption that the statement made by the counsel for the petitioner is correct, but even that does not explain why a reference to the writ petition in the High Court was not made in the writ petition as it had to be made.
The statement in the affidavit of Umed Singh that no petition had been filed in any High Court was clearly and plainly false.
It is equally clear that the statement made in the rejoinder affidavit that "till today (i.e. 23rd October, 1989) the petitioner federation is not aware of the names of the promoted officers" is again an incorrect statement.
These officers had been impleaded in the interim application for the relief sought against them in the Karnataka High Court as early as 27.4.89.
That apart the federation could not have been unaware of the contents of the bulletin issued by the Mumbai circle of the SBI Officer 's Association issued on 1.5.89.
There is no doubt that the petitioner did not deliberately implead the 58 promoted officers.
Sri Sachhar, for the petitioner, sought to contend that these 58 officers may be proper parties but not necessary parties and he referred us to the judgments of this Court in The General Manager, South Central Railway, Secunderabad and Another vs A.V.R. Siddhantti and Ors., and Col. D.D. Joshi & Ors.
vs Union of India & Ors.
, [1983] 2 S.C.C. 235.
We are not here concerned with the question whether these officers were necessary or proper parties and, indeed, this issue is no longer alive as, subsequently, the peti tioner itself has undertaken to implead these 58 officers and notices have been issued to them in both the writ peti tions.
What we are concerned here with is the statement, in the rejoinder affidavit that the Federation was not aware of the names of the 58 officers till November 1989 which, in the circumstances is a clear misstatement.
Apart from misstatements in the affidavits filed before this Court, the petitioner Federation has clearly resorted to tactics which can only be described as abuse of the process of court.
The simultane 501 ous filing of writ petitions in various High Courts on the same issue though purportedly on behalf of different associ ations of the Officers of the Bank, is a practice which has to be discouraged.
Sri Sachhar and Sri Ramamurthy wished to pinpoint the necessity and importance of petitions being filed by different associations in order to discharge satis factorily their responsibilities towards their respective members.
We are not quite able to appreciate such necessity where there is no diversity but only a commonness of inter est.
All that they had to do was to join forces and demon strate their unity by filing a petition in a Single Court.
It seems the object here in filing different petitions in different Courts was a totally different and not very laud able one.
Again an attempt was made to obtain a stay in the Andhra Pradesh High Court and when that attempt failed the writ petition here was filed.
In this the petitioners were able to obtain only an order that any promotions made during the pendency of the petition would be subject to the deci sion in the writ petition.
But, having obtained this order on 26.4.89, it is curious and inexplicable that an affiliat ed association should have made an application on 27.4.89 in the Karnataka High Court praying for a stay of the promo tions.
These are only tactics that it will be indulged in by a chronic and compulsive litigant and not by a federation like the petitioner.
We have set out the facts in this case at some length and passed a detailed order because we are deeply grieved to come across such conduct on the part of an association, which claims to represent high placed officers of a premier bank of this country.
One expects such officers to fight their battles fairly and squarely and not to stoop low to gain, what can only be, temporary victories by keeping away material facts from the court.
It is common knowledge that, of late, statements are being made in petitions and affida vits recklessly and without proper verification not to speak of dishonest and deliberate misstatements.
We, therefore, take this opportunity to record our strong and emphatic disapproval of the conduct of the petitioners in this case and hope that this will be a lesson to the present petition er as well as to other litigants and that atleast in future people will act more truthfully and with a greater sense of responsibility.
The question that now remains to be considered is wheth er the petition is liable to be dismissed for this conduct of the President of the Federation.
Sri Rajendra Sachhar, appearing on behalf of the petitioners, sought to get over the Bank 's objections by addressing certain technical argu ments.
He submitted that even if Writ Petition No. 507/ 89 was liable to be dismissed for mis statement and suppression there 502 would be no reason to dismiss C.W.P. No. 1260 of 1989 which has been filed by another association of the same officers.
He also sought to contend that, since it had been brought to the notice of this Court on 26.4.89 that a petition had been filed in a High Court and that it was being withdrawn, the order passed by this Court on 26.4.89 should be taken as having condoned any mis statement or mis conduct or defects in the writ petition.
We are not inclined to accept these submissions.
However, it is not necessary to discuss this aspect further as we do not wish to penalise the various officers who may suffer as a consequence of the new policy, which they wish to challenge, for the misstatements or wrong steps taken by the Officers of the federation perhaps, in their over anxiety to get quick interim relief.
We do not wish to decline them an opportunity to put forward their grievances before the court by dismissing these writ peti tions on the preliminary objections raised by the Bank.
In fact, we should like to place on record our appreciation of the stand taken by Sri G. Ramaswamy, learned counsel for the Bank in this respect.
He fairly stated that, as he is ap pearing for a public sector undertaking, he is quite pre pared to contest the writ petitions on their merits and that his preliminary objections were primarily intended to bring to our notice the conduct of the petitioners in this case.
We are glad he did it as this was a matter which needed serious notice.
We should like to record our dis approval of the way in which the proceedings have been conducted on behalf of the Federation.
However, as mentioned above, we overrule the preliminary objections and will proceed to dispose of the writ petitions on their merits.
The Writ Petitions are adjourned, as per separate order, to 17.7.90 for further hearing.
| IN-Abs | The All India State Bank Officers ' Federation filed a Writ Petition in this Court on the 24th April, 1989 seeking to impugn a new promotion policy initiated by the State Bank of India.
The petition was supported by an affidavit of the President of the Federation affirming the contents of the petition to be true to his personal knowledge, and submit ting in paragraph 9(mm) of the petition that the petitioners were approaching this Court in great haste as the Bank was moving with great speed to implement its new promotion policy and was likely to constitute a Departmental Promotion Committee, and declare the results.
In para 4 it was submit ted that the petitioners had not filed any other similar petition either in this Court or any other High Court.
When the writ petition came up for admission before a Bench of this Court on April 26, 1989, counsel for the State Bank of India was present and accepted notice on behalf of the Bank.
The Writ Petition was contested by the Bank which sub mitted in its counter affidavit that the statement in para 4 of the petition in support of the writ petition was false, and pointed out that the Federation through its Deputy General Secretary had filed a Writ Petition in the High Court of Andhra Pradesh along with an application seeking stay of the promotion policy, and that the High Court admit ted the Writ Petition on April 13, 1989 but rejected the application for interim stay, and further pointed out that another petition had been filed by the State Bank of India Officers ' Association (Karnataka) in the Karnataka High Court.
A second objection as regards the maintainability of the 494 petition was raised in para 3 that since the promotions had already been made they could not be disturbed and that no steps were taken to implead those officers, who would be directly affected as a result of the prayer made in the writ petition.
To the aforesaid objections raised by the Bank the petitioner filed a rejoinder supported by an affidavit of the President of the Federation, submitting that the depo nent did not have any knowledge of the writ petition filed in the High Court of Andhra Pradesh, and that as soon as it came to his knowledge it was withdrawn.
and that the peti tioners did not know the names of all the 58 candidates who had been promoted favoured.
When the Writ Petition was taken up for further hearing on April 5, 1990, counsel for the Bank objected to the maintainability of the writ petition on the grounds of suppression of material facts and abuse of the process of court.
The Court directed the petitioner to file a better affidavit, and the petitioner Federation filed a better affidavit explaining the correct position and tendering an unqualified apology for the mis statements in the earlier affidavit, but still reiterated that they came to know of the writ petition in the Andhra Pradesh High Court only on April 23, 1989 and that, at the time of the preliminary hearing, it was brought to the notice of the Court by the Respondent 's counsel.
The respondent pointed out that the statements made in the rejoinder filed by the petitioners that they were not aware of the names of the promoted officers till November, 1989 was a total falsehood because; (i) the writ petition filed in the Karnataka High Court made all of them parties to the writ petition, and (ii) the names of the promoted officers were listed in the fortnightly bulletin of the State Bank Officers ' Association dated 1st May, 1989 carry ing a message of congratulations to all of them.
Disposing of the preliminary objections and adjourning the writ petition for further hearing on merits, the Court, HELD: 1.
Apart from mis statements in the affidavits filed before this Court the petitioner federation has clear ly resorted to tactics which can only be described as abuse of the process of court.
The simultaneous filing of writ petitions in various High Courts on the same issue though purportedly on behalf of different associations of the Officers of the Bank, is a practice which has to be discour aged.
[500H; 501A] 495 2.
An attempt was made to obtain a stay in the Andhra Pradesh High Court and when that attempt failed the writ petition here was filed.
In this the petitioners were able to obtain only an order that any "promotions made during the pendency of the petition would be subject to the decision in the writ petition.
But having obtained this order on April 26, 1989, it is curious and inexplicable that an affiliated association should have made an application on April 27, 1989 in the Karnataka High Court praying for a stay of the promotions.
These are only tactics that will be indulged in by a chronic and compulsive litigant and not by a Federation like the petitioner.
[501C D] 3.
One expects that officers fight their battles fairly and squarely and not stoop low to gain what can only be temporary victories by keeping away material facts from the court.
[501E] 4.
It is common knowledge that, of late, statements are being made in petitions and affidavits recklessly without proper verifications not to speak of dishonest and deliber ate misstatements.
Strong and emphatic disapproval of the conduct of the petitioners in this case is recorded in the hope that this will be a lesson to the present petitioners as well as to other litigants and that atleast in future people will act more truthfully and with a greater sense of responsibility.
[501F G] 5.
The Court does not wish to penalise the various officers who may suffer as a consequences of the new policy, which they wish to challenge, and decline them an opportuni ty to put forward their grievances before the Court, for the mis statements or wrong steps taken by the officers of the Federation in their over anxiety to get quick interim re lief.
[502B C]
|
Criminal Appeal No. 27 1 of 1990.
From the Judgment and Order dated 16.1.1989 of the Delhi High Court in Criminal Writ No. 34 of 1989.
K.V. Vishwanathan and S.R. Setia for the Appellant.
T.T. Kunhikanna, Udai Lalit and P. Parmeshwaran for the Respondents.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
Leave granted.
519 This is an appeal seeking a writ of habeas corpus.
The appellant who has been detained under Section 3(1)(i) and 3(1)(iii) of the COFEPOSA Act, 1974, has challenged the detention order.
The appellant is a native of Panakkad, Malapuram District in Kerala and had been to Jeddah after his Haj pilgrimage and from Jeddah he landed in Bombay on 15.9.87.
Then he started by a bus to go to his native place.
On 17.9.87 the Customs Officials intercepted the bus near Thiruvannoor and in the presence of panch witnesses, a search was conducted on the person of the appellant and the chappals worn by him were inspected and on their being opened up about 13 gold ingots with foreign marking were found and they were duly recovered.
Further some incriminat ing documents were also recovered.
The gold was valued at Rs.4,64,951 and it was found to be smuggled gold.
The appel lant was interrogated by the Superintendent of Customs and a statement of the appellant was recorded.
He confessed that he was introduced to a person who promised to give him remuneration provided he carries the gold to India and appellant agreed and carried these gold biscuits.
Criminal proceedings were initiated.
However, the detaining authori ty, the Home Secretary to Government of Kerala being satis fied passed the detention order dated 21.9.88 against the appellant with a view to preventing him from smuggling activities.
The grounds also were served within time and in the grounds all the above mentioned details are mentioned.
In the grounds the appellant also is informed that if he desires to make a representation to the Advisory Board, he may address it to the Chairman, Advisory Board and that he can also make a representation to the detaining authority or the Central Government.
Questioning the same the present appeal is filed.
It is submitted that the representation was made on 27.9.88 to the Central Government and it was disposed of on 2.11.88.
Therefore there was enormous delay by the Central Government in rejecting the representation and the delay amounts to violation of Article 22(5) of the Constitution of India.
The next submission is that though the alleged smug gling of gold is said to have been taken place on 17.9.87, the detention order was passed on 21.5.88 i.e. after a lapse of eight months and that too it was a solitary instance and because of the delay, the same has become stale and there is no other material to establish any nexus or live connection between the alleged date of smuggling and the date of deten tion.
The next submission is that there was delay in the execution of the detention order which was executed only on 6.8.88 though passed on 21.5.88 and that there is no allega tion that the appellant was absconding.
It is also submitted that the appellant was not given an effective opportunity to represent his case before the 520 Advisory Board inasmuch as the appellant was not permitted to be represented by an advocate or by his next friend.
In the counter affidavit it is stated that the Collector of Customs furnished proposals for the detention of the appellant on 24.3.1988 and the detention order was passed on 21.5.1988 and the appellant was detained on 6.8.1988.
The appellant made a representation to the detaining authority on 27.9.1988 and it was rejected by the State Government on 1.10.1988 and the Central Government rejected the same on 2.11.1988.
Therefore in the counter affidavit it is admitted that there is a delay of one month and five days in consid ering and rejecting the representation by the Central Gov ernment.
It can be seen that so far as the State Government namely the detaining authority is concerned, there is no delay but the submission is that the delay in disposing of the representation by the Central Government also is fatal.
Article 22(5) of the Constitution of India lays down that when any person is detained in pursuance of an order made under any law providing for preventive detention, the au thority making the order shall, as soon as may be, communi cate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
It is well settled that this Clause confers a valuable fight upon the detenu to make a representation and also mandates that the detaining authority should dispose of the same without delay.
Therefore the right under this Clause is two fold, namely that the authority making the order must communicate to the detenu the grounds on which the order has been made, as soon as the order is made and secondly that the detenu must also be afforded the earliest opportunity of making a representation against the order.
Article 22(5) itself does not say to whom the represen tation is made or who will consider the representation.
By virtue of provisions of the statute under which he has been detained, the appropriate Government is legally obliged to comply with these requirements.
It is obligatory on the appropriate Government to consider the detenu 's representa tion separate from the consideration of the detenu 's case by the Advisory Board.
But what the learned counsel submits is that the Central Government which has the power to revoke the detention order passed by the State authority, is also under legal obligation to dispose of the representation without delay.
Learned counsel relied on some of the deci sions of this Court.
In Khudiram Das vs The State of 521 West Bengal and Others, ; this Court held that one of the basic requirement of clause (5) of Article 22 is that the authority making the order must afford the detenu the earliest opportunity of making a representation against the order and this requirement will be ineffective unless there is a corresponding obligation to consider the repre sentation of the detenu as early as possible.
It may not be necessary for us to refer to all those decisions which deal with the delay caused by the appropriate Government in considering the representation inasmuch as in the instant case there is no delay in considering the representation by the State Government which is the detaining authority.
Section 11 of the COFEPOSA Act, 1974 deals with the revo cation of detention orders and under Section 11(b) the Cen tral Government may, at any time, revoke or modify an order made by the State Government.
Though strictly speaking the Central Government is not the detaining authority within the meaning of Article 22(5) yet they are under legal obligation to dispose of the representation as early as possible but the question is whether such delay by the Central Government also should be subjected to such a rigorous scrutiny as is done in the case of a delay caused by the appropriate Gov ernment.
namely the detaining authority.
In Tara Chand vs The State of Rajasthan, , this Court held that: "Once a representation is made to the Central Government, it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it.if there is inordinate delay in considering the representation that would clearly amount to violation of Article 22(5) so as to render the detention unconstitutional and void." In Shyam Ambalal Siroya vs Union of India and Ors., ; it is held that: "The power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that power.
Any petition for revocation of an order of detention should be dealt with reasonable expe dition . .
It may be permissible for the Central Govern ment to take reasonable time for disposing any revocation petition.
But it would not be justified in 522 ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Government.
It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the peti tion, declining to order for revocation." In Sabir Ahmed vs Union of India and Ors., ; dealing with the power of the revocation of the Central Government it is observed that such power is intended to be an additional check or safeguard against the improper exer cise of its power of detention by the detaining authority or the State Government and that the Central Government should consider the same with reasonable expedition and that what is reasonable expedition depends upon the circumstances of the particular case.
No hard and fast rule as to the measure of reasonable time can be laid down.
It is also observed that it certainly does not cover the delay due to negli gence, callous inaction, avoidable red tapism and unduly protracted procrastination.
In Sabir Ahmed 's case as well as in Shyam Ambalal Si roya 's case the representation made by the detenu to the Central Government has been ignored and left unattended for a period of about four months and under those circumstances it was held that there was violation of Article 22(5).
In Rama Dhondu Borade vs
V.K. Saraf, Commissioner of Police and Others, the detenu made a repre sentation to the Central Government on 26.9.1988 and the decision of the Central Government rejecting the representa tion was communicated to the appellant on 31.10.1988.
The explanation submitted by the Central Government was not accepted on the ground that it is not satisfactory.
In T.A. Abdul Rahman vs State of Kerala and Others, ; there was a delay of 72 days and it was observed that the representation of the detenu has not been given prompt and expeditious consideration and was allowed to lie without being properly attended to.
Bearing these principles in mind we shall examine wheth er the Central Government has expeditiously considered the representation or not.
We have already noted that the repre sentation was made on 27.9.88 and disposed of by the Central Government on 2.11.88, i.e. within a month and five days.
In the counter affidavit filed on behalf of the Central Govern ment it is stated that the representation dated 27.9.88 was received in the COFEPOSA Section of the Ministry of Finance on 10.10.88 and the representation was in Malayalam.
It is also 523 stated that there were some allegations regarding the non placement of certain documents and non supply of certain, documents to him.
Therefore a copy of the representation was sent to the sponsoring authority i.e. Collector of Customs, Cochin on that very day and the comments from the Collector of Customs, Cochin dated 25.10.88 were received in the COFEPOSA Section on 27.10.88 and that the Additional Secre tary examined them and with his comments, they were forward ed to the Minister of State for Revenue on 31.10.88, since 29th and 30th October, 1988 were holidays.
The Minister of State for Revenue with this comments forwarded the represen tation on the same day i.e. 31.10.88 to the Finance Minis ter.
The Finance Minister considered and rejected the repre sentation on 1.11.88 and the file was received in the Office on 2.11.88 and on the same day, a memorandum rejecting the representation was sent to the detenu.
From the explanation it can be seen that the representation was considered most expeditiously and there is no "negligence or callous inac tion or avoidable red tapism".
For these reasons we are unable to accept this contention of the learned counsel.
The next submission of the learned counsel is that the date of search was 17.9.87 and the detention order was passed on 21.5.88 after a long time and therefore there is no nexus between the alleged incident and the detention order and therefore there is no genuine satisfaction on the part of the detaining authority.
The learned counsel submits that there was no live existing connection between the incident and the detention.
In Lakshman Khatik vs The State of West Bengal, it is observed that mere delay in passing a detention order is not conclusive but the type of grounds given have to be seen and then consider whether such grounds could really weigh with an officer after such delay in coming to the conclusion that it was necessary to detain the detenu.
In Rajendrakumar Natvarlal Shah vs State of Gujarat and Others, ; it is held that the mere delay in passing the detention order is not fatal unless the court finds that the grounds are stale or illusory or that there is no real nexus between the grounds and the detention.
In Abdul Rahman 's case seizure of the gold biscuits was on 30.11.86 and the detention order was passed 11 months thereafter.
On the ground that there was no satisfactory explanation for this undue, unreasonable and unexplained delay, it was held that the delay throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority.
In the counter affidavit, in the instant case, filed on behalf of the detaining authority it is stated that the case records relating to the 524 petitioner were received at the office of the sponsoring authority on 1.2.88 and they were processed in the Office and the show cause notice under the Customs Act was issued on 9.2.88 and the proposals were sent for COFEPOSA action on 24.3.88 and they were received by the State Government on 2.4.88.
The matter was considered by the Screening Committee which met on 28.4.88 and thereafter submitted the proposals to the detaining authority.
On 2.5.88 the detaining authori ty ordered to ascertain the reasons for the delay in spon soring the case and accordingly the sponsoring authority at Cochin was addressed on 2.5.88.
He was reminded on 7.5.88 and 12.5.88.
His reply was received on 16.5.88 and thereaf ter the order was passed on 21.5.88.
In our view, the delay has been reasonably explained.
The courts have not laid down that on mere such delay the detention has to be struck down.
In Yogendra Murari vs State of U.P., , it is held that: "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 consider the circumstances in each indi vidual case to find out whether the delay has been satisfac torily explained or not.
" That apart, we are unable to agree with the learned counsel that because of this delay the necessary nexus got severed and that the grounds have become stale and illusory.
In appreciating such a contention.
the Court also has to bear in mind the nature of the prejudicial activities indulged by the detenu and the likelihood of his repeating the same.
It is this potentiality in him that has to be taken into con sideration and if the detaining authority is satisfied on the available material then on mere delay as long as it is not highly unreasonable and undue the Court should not normally strike down the detention on that ground.
In Hemla ta Kantilal Shah vs State of Maharashtra, ; it is held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person.
For these reasons we are of the view that in this case the delay by itself does not invalidate the detention but even otherwise it has been reasonably explained.
Yet another ground urged by the learned counsel is that there was delay in arresting the detenu after the detention order was passed and therefore there is no genuineness in the detention order.
In the counter affidavit it is stated that after the detention order was passed, it was sent to the Superintendent of Police, Malappuram on 23.5.88 for 525 immediate execution and they were passed on to Circle In spector, Malappuram.
On 29.6.88, it was reported that the Circle Inspector had made due enquiries but the detenu could not be apprehended.
Thereupon a special squad was deputed as per the directions of the Superintendent of Police and thereafter he was detained on 6.8.88.
It is further submit ted in the counter affidavit that the delay in execution of the order is caused due to detenu 's deliberate attempt to make himself scarce.
That apart there is no decision where a court has gone to the extent of holding that a mere delay in arresting the accused renders the detention invalid.
In the instant case, the delay, if at all, is only about 2/1/2 months and the explanation offered for the delay is reasona ble.
The learned counsel, however, relied on Abdul Rahman 's case.
In that case the detention order was passed on 7.10.87 and the detenu was arrested on 18.1.88.
The court found that there was no reasonable explanation for the delay in the counter affidavit at all.
This ground was taken into consid eration alongwith the other important grounds in quashing the detention.
In SK.
Serajul vs State of West Bengal, it is observed that: "There was delay, both at the stage of passing the order of detention and in arresting him, and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction.
But this must not be misunderstood to mean that whenever there is delay in making an order of detention or in arrest ing the detenu pursuant to the order of detention, the sub .
jective satisfaction of the detaining authority must be held to be not genuine or colourable.
Each case must depend on its own peculiar facts and circumstances.
The detaining authority may have a reasonable explanation for the and that might be sufficient to dispel the inference that its satisfaction was not genuine.
" It can therefore be seen that on the mere delay in arresting me detenu; pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine.
Each case.
depends on its own facts and circum stances.
The Court has to see whether the delay is explained reasonably.
As mentioned above, in the instant case, we are satisfied with the explanation for the delay in arresting the detenu.
Therefore this contention is also liable to be rejected.
For all the above mentioned reasons, the appeal is dismissed.
Y. Lal Appeal dismissed.
| IN-Abs | The appellant after his Haj pilgrimage had been to Jeddah and from Jeddah he landed in Bombay on 15.9.1987.
Thereafter he boarded a bus to go to his native place in Kerala.
On 17.9.1987, the Custom authorities intercepted the bus wherein the petitioner was travelling and in the presence of the panch witnesses, searched his person and the chappals worn by him.
On opening the chappals about 13 gold ingots with foreign markings were found and they were duly recovered.
The appellant confessed that he was introduced to a person who promised to give him remuneration for carrying the gold to India and that is how he brought those gold biscuits.
The detaining authority passed the detention order against the appellant on 21.9.1988, and grounds of detention were served on him within time and he was informed that if he so desired he could make a representation to the Advisory Board, and also that he could make a representation to the detaining authority or the Central Government.
The appellant challenged his detention by means of a writ petition in the High Court and the same having been dismissed, he has filed this appeal after obtaining special leave.
The appellant urged: (i) that the delay in making the detention order and the disposal of his representation by the Central Government are fatal and violative of Article 22(5) of the Constitution of India; and (ii) that the delay in arresting him pursuant to the detention order casts a doubt on the genuineness of the subjective satisfaction of the detaining authority.
Dismissing the appeal, this Court, HELD: Delay ipso facto in passing an order of detention after an 518 incident is not fatal to the detention of a person.
In this case the delay by itself does not invalidate the detention but even otherwise it has been reasonably explained.
[524G] From the explanation it can be seen that the representa tion was considered most expeditiously and there is no "negligence or callous inaction or avoidable red tapism ' '.
[523C] It can therefore be seen that on the mere delay in arresting the detenu pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine.
Each case depends on its own facts and circumstances.
The Court has to see whether the delay is explained reasonably.
In the instant case, this Court is satisfied with the explanation for the delay in arresting the detenu.
[525G H] Khudiram Das vs The State of West Bengal & Ors.
, ; ; Tara Chand vs State of Rajasthan, ; Shyam Ambalal Siroya vs Union of India & Ors., ; ; Sabir Ahmed vs Union of India & Ors., ; ; Rama Dhondu Borade vs
V.K. Saraf, Commis sioner of Police & Ors., ; T.A. Abdul Rahman vs State of Kerala & Ors.
, ; ; Lakshman Khatik vs The State of West Bengal, [1974] 4 S.C.C. 1; Rajendrakumar Natvarlal Shah vs State of Gujarat & Ors., ; ; Yogendra Murari vs State of UP.
, ; Hemlata Kantilal Shah vs State of Maharashtra, ; and SK.
Serajul vs State of West Bengal, ; , referred to.
|
Civil Appeal No. 1932 of 1990.
From the Judgment and Order dated 4.7.1989 of the Madras High Court in Writ Appeal No. 1153 of 1983.
R. Mohan and R. Ayyamperumal for the Appellant.
V. Krishnamurthy for the Respondents.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
Leave granted.
Heard both the sides.
The right to conduct arrack sale in Tamil Nadu was auctioned on 28.5.1981 for the excise year 1981 82.
Shop No. 49 in Koneripatti village in Sankari Taluk District Salem was auctioned for the excise year 1981 82.
Inrespect of the auction of this shop, the appellant was the successful bidder and the bid amount was Rs.6550 per month.
As per the terms, the appellant paid the caution deposit of Rs.1000 and a half month 's rent on the same day.
Since the bid amount was found to be inadequate there was a re auction on 11.6.1981 but there was no bidder on that day.
Therefore again on 19.6.1981 the same shop was re auctioned and one Mr. Chellamuthu was successful bidder at Rs.6575 per month but he failed to comply with certain requirements.
Therefore it was re auctioned on 27.6.81 but there were no bidders and the shop was re auctioned again on 17.8.1981 when the bid was only Rs.3000 by one Doraisamy.
The appellant was called upon by way of a communication dated 17.4.82 to pay the notional loss.
It was claimed by the department that the bid of the appellant was confirmed on 28.6.81 but the appellant refused to receive the con firmed order and consequently the shop was reauctioned for Rs.3,000 only and therefore the difference amount is recov erable from the appellant.
This impugned order was ques tioned 611 and the learned Single Judge of the High Court dismissed the writ petition.
It was observed by the learned Judge that records produced before him were perused and they show that the bid by the appellant was confirmed on 28.6.81 and the appellant can not seek any relief in the writ petition having bidden the auction under certain conditions.
In the writ appeal filed against the order of the Single Judge, the Division Bench agreed with the learned Single Judge.
It was also cOntended before the Division Bench that his bid was never confirmed validly and that auction in favour of Do raisamy alone was the valid auction.
Learned counsel for the appellant contended before us that the bid by the appellant was not accepted as per the rules and it was not confirmed by the Collector and the very fact that there was subsequent two re auctions obviously on the ground that the bid by the appellant was inadequate, itself shows that the bid was not confirmed as per the rules and therefore the question of recovery of resultant loss from the appellant does not arise.
It is also submitted that Chellamuthu who was successful bidder in the auction that was held on 19.6.81 should be held responsible for the resultant loss, if any, since he was the highest bidder because his bid was higher than that of the appellant.
To appreciate these contentions, it becomes necessary to refer to the relevant rules.
Some of the relevant rules of the Tamil Nadu Toddy and Arrack Shops (Disposals in Auction) Rules, 1981 were framed under the powers conferred by Sec tion 4 of the Tamil Nadu Prohibition Act.
Rule 3 lays down that the privilege of selling liquor by retail shall be granted to any person by auction and the period shall be one excise year.
Under Rule 5, a notice has to be given mention ing particulars as required under Rule 6.
The tenders also will be received an hour before the commencement of the auction.
Under Rule 8 every person desiring to bid in such open auction shall deposit a sum of Rs. 1,000 as earnest money and only the bidders who have deposited the earnest money deposit shall be admitted into the place of auction.
Rule 10 provides for refund of such a deposit to the unsuc cessful bidders.
Rule 12 lays down that the Sale Officer can refuse to accept the bid under any one of the conditions specified therein.
Rule 14 similarly lays down that highest of the bid shall be taken into consideration for acceptance.
As per Rule 15 every auction purchaser shall immediately after the announcement or atleast before the close of the day 's sale, deposit half a month 's rental with the Sale Officer.
If he does not do so, the earnest money deposit made by him under Rule 8 shall be forfeited to the State Government.
For the purpose of this case Rule 16 is impor tant and it is in the following terms: 612 "Deposit of advance The Sale Officer, if he accepts provi sionally the bid of an auction purchaser, shall issue a notice to the auction purchaser to pay as advance, in any case within seven days from the date of the sale, an amount equal to three months rental in addition to the earnest money deposit already made under rule 8 but inclusive of the half a month 's rental paid at the close of the sale under rule 15." (emphasis supplied) We will consider the scope of this rule in a detailed manner at a later stage.
Rule 17 lays down that the auction pur chaser shall produce a solvency certificate issued by the Tehsildar for the purpose of creating encumbrances and should also execute a mortgage deed and if does not own any properties he should deposit additional amount towards three months ' rental or should furnish bank guarantee.
Under Rule 18, the Collector should refund the deposits made by the auctionpurchaser in case he refuses to confirm the accept ance of the bid.
Rule 20 is another important rule and it is necessary that it should be fully extracted: "20.
Confirmation of sale by the Collector (1) Every bid provisionally accepted by the Sale Officer shall be subject to confirmation by the Collector and on such confirmation the orders of the Collector shall be final, unless it is revised by the Commissioner for special reasons to be re corded in writing.
The Commissioner may on appeal or revi sion or suo motu, revise any order of the Collector confirm ing a bid provisionally accepted by the Sale Officer, after issuing a show cause notice to the person affected and considering his representations, if any.
Any order of the Collector confirming the sale of a shop in favour of a person may be cancelled by the Commissioner even subse quent to the grant of a licence to him for reasons to be recorded by him and after giving an opportunity to all persons concerned.
(2) On receipt of the order of confirmation and on receipt of an application in Form No. 2 the Excise Officer shall subject to the provisions in rule 17, issue a licence in Form No. 3 under Section 17 C(2) of the Act.
(3) If the Collector considers any bid to be inadequate, he may refuse to confirm the provisional acceptance of the 613 bid, and immediately direct the resale of the shop from the point at which it was last left on such date and at such time and place as may be fixed by him.
The conditions of sale shall remain unaltered unless otherwise directed by the Collector.
Any order passed by the Collector for resale shall be given adequate publicity and shall also be notified at the Taluk Office.
(4) Any resale ordered to be made under sub rule (3) shall begin with the bid provisionally accepted by the sale offi cer at the original sale and in the name of the individual who offered it.
If at such sale a higher bid is offered and is provisionally accepted by the Sale Officer, the bid with which such sale began shall lapse.
But if no higher bid is accepted by the Sale.
Officer, the matter shall be reported to the Collector who may pass orders confirming the bid provisionally accepted at the original sale or may again direct that the sale be continued from the point at which it was left at the original sale, and the order of the Collec tor shall be final unless it is revised by the Commissioner on appeal or revision.
(5) The provision of sub rule (4) shall apply to any sale the re opening of which is directed under that sub rule.
(6) No bid which has been provisionally accepted by the Sale Officer shall be withdrawn before it lapses under subrule (4) or before orders are passed confirming or refusing to confirm it, and if the bidder commits any breach of this condition, he shall be liable to make good the difference between his bid and any lower bid which may be finally accepted," (emphasis supplied) Rule 21 lays down that on the failure of any person to make a deposit or to comply with ' any requisition or to comply with any formality like executing bond etc.
the shop may be resold under the orders of the Collector on a report from the Assistant Commissioner and the same shall be resold under this rule.
It shall be at the risk of the defaulting bidder who shall forfeit all gain, if any, that may secure by the resale in the event of a loss by resale, the default ing bidder shall be required to make good the deficiency between the total amount payable for the whole period under the terms of the original sale and by the total 614 amount payable by the successful bidder at the resale and the deposit already made by the defaulting bidder shall be forfeited.
As already mentioned it is under this last rule the action is taken against the appellant.
At this stage it would be useful to refer to some of the everments in the affidavit and the counter affidavit putting forward the rival.
The appellant in his affidavit has stated that his bid was never confirmed and that he has not received any notice and that on the other hand there was a re auction and there was a higher bid in the re auction, but the said bidder defaulted.
Therefore there was again another re auction but on that day there were no bidders but ultimately during the final re auction on 27.6.1981 the bid was only Rs.3,000 by one Doraisamy and that was confirmed.
The plea of the appellant has been that his bid was not confirmed by the Collector as required under Rule 20 and repeated re auctions would itself go to show that the bid of the appel lant was not confirmed.
In the counteraffidavit filed on behalf of the Government, it is admitted that the petitioner was the highest bidder on 28.5.1981 but the Collector or dered resale as already mentioned and one Chellamuthu was 'the highest bidder offering Rs.6575 but he failed to comply with the conditions.
It is averred that the said Chellamuthu though was the highest bidder in the said re auction but did not comply with the conditions under Rule 15 inasmuch as he failed to deposit half a month 's rental and therefore his bid was not accepted.
Therefore subsequent bids were held.
It is further averred by the Government that the bid offered by the appellant was confirmed by the Collector as per the proceedings of the Collector dated 28.6.81 but the appellant refused to receive the order of confirmation and therefore he has to make good the resultant loss.
Learned counsel for the appellant submits that Chellamu thu was the highest bidder and he should be held to be a defaulter and consequently be liable for the resultant loss.
In order to see whether the appellant 's liability in any manner continued consequently making him liable for the resultant loss, we have to examine Rules 20(3) and 20(4) carefully, in the context of the facts of this case.
As extracted above Rule 20(3) states that if the Collector considers any bid to be inadequate, he may refuse to confirm the provisional acceptance of the bid and immediately direct the resale of the shop from the point it was last left.
As per sub Rule 4 any resale ordered to be made under sub rule (3) shall begin with the bid provisionally accepted by the Sale Officer at the original sale and if at such 615 sale a higher bid is offered and is provisionally accepted by the Sale Officer, the bid with which such sale began shall lapse.
This part of the rule is very significant.
If the record shows that the bid offered by Chellamuthu has been provisionally accepted by the Sale Officer, the bid with which the sale began, i.e. the bid offered by the appellant lapses but if, on the other hand, such a bid during the re auction is not ' accepted by the Sale Officer then the subsequent steps for further reauction or for confirmation of the original bid i.e. that of the appellant would take place.
In this context it is once again necessary to note that as per the Department, bid of Chellamuthu was not even provisionally accepted.
As laid down in Rule 16 if the record shows that his bid has been provisionally accept ed by the Sale Officer then as provided under Rule 20(4) the bid of the appellant gets automatically lapsed.
For our own satisfaction we called for the record and perused the file concerning the auction.
So far as the bid made by Chellamu thu is concerned, we find a document in the record which authentically shows that his bid being highest was provi sionally accepted and announced by the Sale Officer.
This document reads as under: "Second resale of toddy/arrack shops in Sankari Taluk.
(1.7.1981 to 30.6.1982) Shop No. 49 Place: Koneripatti Name and full address of Tender amount the tenderer.
Nil Highest tender amount Rs. nil by Thiru Highest bid amount Rs.6575 by Thiru The highest of these two, that is Rs.6575 (Rupees Six Thou sand five hundred seventy five only) by Thiru Sellamuthu s/o Nachimuthu of Kumaranpalayam Village the highest bidder/tenderer is provisionally accepted and announced.
Sd/ 19/6/81 Sale officer & Sub Collector/Sankari.
" 616 As per Rule 16 when there is such provisional acceptance then the Sale, Officer issues a notice to the highest bidder to pay as advance three months rental.
But according to the respondents namely the Department, the said Chellamuthu though was the highest bidder, did not deposit half a month 's rental as required under Rule 15, therefore the question of accepting his bid did not arise even provision ally.
Consequently the highest bid of the appellant was subse quently confirmed.
Since we find a genuine doubt about the liability of the appellant, we went through the rest of the file also.
No doubt there is a note here and there to the effect that Chellamuthu did not deposit the |5 days rental on that day.
But in view of the document mentioned above it must be deemed that the Chellamuthu 's bid was accepted provisionally by the Sale Officer and by virtue of Rule 20, sub rule (4) when once the bid of Chellamuthu was accepted provisionally as the highest bid, the bid with which such sale began namely the bid of the appellant, got lapsed.
We do not want to go into the question whether under Rule 16 the provisional acceptance of the bid by the Sale Officer should necessarily be preceded by the fulfilment of the condition of deposit of half a month 's rental by the auc tion purchaser under Rule 15.
Perhaps normally it may be correct to say that the Sale Officer under Rule 16 accepts provisionally the bid after there is compliance of Rule 15; but in the instant case we are concerned with the re auction and about the liability of the original highest bidder in the light of Rule 20(4).
The document mentioned above clear ly shows that the Chellamuthu 's bid was provisionally ac cepted and therefore Sub Rule (4) of Rule 20 comes into force and consequently the bid of the appellant lapsed.
At any rate after a due consideration of the contents of the declaration issued by the Sale Officer accepting the bid of Chellamuthu provisionally, a genuine doubt arises about the liability of the appellant.
Having given our earnest consid eration, we are of the view that the bid by the appellant got lapsed by virtue of the acceptance of the bid by Chella muthu provisionally by the Sale Officer and consequently the appellant cannot be held liable for the resultant loss.
The appeal is accordingly allowed.
T.N.A. Appeal allowed.
| IN-Abs | The appellant gave the highest bid at the auction of an arrack shop but his bid was considered inadequate.
The shop was re auctioned and the bid of 'C ' was provisionally ac cepted.
'C ' failed to comply with certain requirements and the shop was again re auctioned in which the bid offered was lower than that offered by the appellant in the original sale.
The respondent sought recovery of the difference between the original sale amount and the resale amount from the appellant, under Rule 21 of the Tamil Nadu Toddy and Arrack Shops (Disposal in Auction) Rules, 1981.
The appel lant challenged the recovery by filing a writ petition in the High Court which was dismissed by a Single Judge and the decision was confirmed by a Division Bench on appeal.
In the appeal to this Court it was contended on behalf of the appellant that since his bid was not confirmed under the rules, no recovery can be made from him and that 'C ', whose bid was provisionally accepted, was liable for the notional loss.
The respondent however contended that since 'C ' failed to comply with Rule 15, his bid was not provi sionally accepted and hence he was not liable for the re sultant loss.
Allowing the appeal, this Court, HELD: 1.
Normally it may be correct to say that the sale officer under Rule 16 accepts provisionally the bid after there is compliance of Rule 15; but in the instant case, the Court is concerned with the re auction and about the liabil ity of the original highest bidder in the light of Rule 20(4).
[616D E] 610 2.
In view of the document dated 19th June, 1981 it must be held that the bid of 'C ' was accepted provisionally by the Sale Officer and by virtue of Rule 20 sub Rule (4) when once the bid of 'C ' was accepted provisionally as the high est bid, the bid with which the sale began namely the bid of the appellant, got lapsed and consequently the appellant cannot be held liable for the resultant loss.
[616C D]
|
Appeal No. 91 of 1954.
Appeal from the judgment and decree dated December 10, 1948, of the Madras High Court in Regular First Appeal No. 609 of 1946, arising out of the judgment and decree dated March 30, 1946, of the Court of the Subordinate Judge of Chicacole in Original Suit No. 1 of 1943.
A. V. Viswanatha Sastri and R. Ganapathy Iyer, for the appellant.
K. M. Rajagopala Sastri and section K. Sastri, for respondents Nos. 1, 2, 3, 5 7, 13 and 24 27.
October 6.
The Judgment of the Court was delivered by SINHA J.
The only question for determination in this appeal by the first defendant, on a certificate granted by the High Court of Madras, is whether the renewal of a lease for running a salt factory, granted by the Government in favour of the appellant and others (defendants 1 to 7), could be treated as an asset of the dissolved partnership between the contesting parties.
The trial court decided this question in favour of the contesting defendants.
On appeal by the plaintiffs and some defendants on the side of the plaintiffs, the High Court of Madras determined this controversy in favour of those appellants.
Hence, this appeal by the first defendant whose interest is identical with that of defendants 2 to 7.
The reference in this judgment to I appellant ' will, thus, include the interest of the other non appealing defendants also.
The relevant facts of this case, upon which the appeal depends, may shortly be stated as follows: The contesting parties used to carry on the business of salt manufacture in accordance with the rules laid down by the Government under the Madras Salt Act 76 (Mad. 4 of 1889) (which will, hereinafter, be referred to as the Act).
It is not permissible to manufacture salt otherwise than tinder the provisions of the Act.
The land and the factory where salt used to be manufactured by the parties, are Government property.
It appears that the first plaintiff, the father of plaintiffs 2 to 4, plaintiff 5, the first defendant and the deceased father of defendants 2 to 7, had made bids for the lease of the land and the factory, and the highest bid of the defendants aforesaid, was accepted; and in pursuance thereof, a lease for 17 years from January 1926, to December, 1942, was granted by the Government in favour of the first defendant and the father of defendants 2 to 7. 'By a deed of partnership dated March 18, 1926, the first plaintiff with a two anna share, the father of plaintiffs 2 to 4, having a similar share, and plaintiff 5 with another two anna share, on the one hand, and the first defendant, having a five anna share, and the father of defendants 2 to 7, with the remaining five anna share, entered into a partnership for running the salt factory.
The terms of the partnership will have to be discussed in detail hereinafter.
They contributed a sum of Rs. 30,000 for paying the premium for the lease and for other incidental expenses in running the factory, in proportion to the shares just indicated.
The father of defendants 2 to 7, who had a five anna share in the business, died in August, 1935, and the defendants 2 to 7 were admitted as partners in place of their father.
In accordance with the rules of the salt department, the requisite licence for the manufacture of salt, was granted to the first defendant and the father of the defendants 2 to 7, in, whose name, the lease also stood.
In or about the year 1939, differences arose between the parties, but the business continued to be carried on by the defendants 1 to 7.
In August 1941, in accordance with the changed policy of the Government, which substituted the practice of settling salt leases by renewal of the lease in favour of those lease holders whose conduct had been satisfactory in the opinion of the Department, for the old practice of settling salt leases to highest bidders, the Collector enquired from the old 77 lease holders whose record had been satisfactory from the point of view of the salt department, whether they would take renewal for a period of 25 years.
The appellant as also.
the other defendants aforesaid, their conduct having been satisfactory, were amongst those lessees who had been 2invited to make applications for the renewal of their leases.
Accordingly, they made their application in July, 1942, and a fresh lease for 25 years, was granted to them on April 15, 1943, for the period January, 1943 to December, 1967, in pursuance of the Collector 's order passed in November, 1942 (exhibit P 15(a)).
The terms of the new lease will have to be discussed later in the course of this judg ment.
As the term of the previous lease and of the licence to manufacture and sell salt which 'was the partnership business was to expire at the end of December, 1942, one of the contesting defendants, served a notice upon one of the plaintiffs to the effect that as.
the partnership was expiring at the end of the month, the partners should settle their accounts, and make arrangements for the disposal of the unsold stock of 82102 maunds of salt.
The reply to the notice was given on December 28, 1942, through an advocate, alleging inter alia that the application for the renewal of the lease for a period of 25 years had been made on behalf and with the consent of all the partners, and that, thus, the partnership business was agreed to be continued even after the expiry of the term of the previous partnership.
The answer further attributed fraud and "evil intention " to the other party.
The answer also called upon the defendants to pay a penalty of Rs. 2,500 per head, and to hand over the entire partnership lease property to the plaintiffs ' party.
Thus, the exchange of the notices aforesaid was a prelude to the institution of the suit on January 5, 1943, that is to say, even before the fresh lease had been executed by the Government in favour of the contesting defendants 1 to 7.
The suit was instituted on the footing that the original partnership continued even after December, 1942, inasmuch as the fresh lease had been obtained in pursuance of a unanimous resolution of all the partners 78 to obtain the new lease for the partnership business.
But an alternative case also was sought to be made out that even if the partnership did not continue after December, 1942, as a result of.
the acts of the defendants, the benefit of the fresh lease for 25 years should be treated as an asset of the dissolved partnership business, and should be taken into account in the process of dissolution of the partnership.
The plaint as framed contained a large number of reliefs to which, the plaintiffs claimed, they were entitled, for example, a declaration that the partnership was continuing, and that the defendants 1 to 7 had forfeited their rights in the partnership as a result of their fraudulent acts, an injunction restraining defendants 1 to 7 from carrying on the salt works independently of the partnership and on their own account, and the declaration that the renewal of the lease in the name of the defendants 1 to 7, for a further period of 25 years, was for the benefit of the partnership.
But at the trial, the plaintiffs, perhaps, realizing the weakness of their position, elected to put in a memorandum in the trial court on February 8, 1946, confining their prayers to reliefs on the basis of a dissolved partnership, and giving up other reliefs, which they claimed on the footing of the partnership still continuing.
Thus, at the trial, the reliefs claimed were confined to taking accounts between the parties of the dissolved partnership, and treating the fresh lease for 25 years, as part of the assets of the dissolved firm.
It is, therefore, not necessary to refer to the defendants ' written statement, except with reference to the plaintiffs ' claim to have the renewed lease for 25 years treated as an asset of the dissolved partnership.
The contesting defendants 1 to 7 stoutly denied that the plaintiffs ' claim in respect of the fresh lease for 25 years, was well founded.
They asserted that they only were entitled to run the business on the fresh lease and licence meant only for their benefit and not for the benefit of the dissolved partnership.
The trial court passed a preliminary decree, declaring that the partnership stood dissolved on December 31, 1942, and for taking accounts.
As regards the 79 benefit of the renewed lease for 25 years, the trial court negatived the plaintiffs ' claim that the dissolved partnership carried any firm or trade name, which(, could be said to have any tangible goodwill, and that the defendants could not be restrained from carrying on the business in their own names as they had been doing in the past.
After expressing a doubt as to whether there was any goodwill of a particular firm name, the court directed that "the Commissioner is authorized to sell the goodwill of the old firm for what it is worth by way of realization of the assets of the dissolved firm as amongst the partners.
" In effect, therefore, the trial court decided that the plaintiffs were not entitled to the benefit of the new lease.
On appeal to the High Court, the learned Chief Justice, delivering the judgment of the Division Bench, came to the conclusion that the plaintiffs ' case that the fresh lease had been obtained as a result of the resolution of the partners to carry on the business after the lapse of the specific period of the partnership which came to an end in December 1942, had not been made out.
But on the alternative plea of the plaintiffs, the Court, after an elaborate discussion of English and Indian Law on the subject, held that the plaintiffs were entitled to treat the new lease as an asset of the dissolved partnership.
The conclusion of the High Court may better be stated in its own words, as follows: "In conclusion, we hold that the new lease obtained by Defendants 1 to 7 in renewal of the old lease which formed the subject matter of the partnership, must be held by them for the benefit of the other members of the partnership, who are entitled to share in the advantage gained by Defendants 1 to 7.
As the lease itself was executed after the termination of the partnership and as it is not the case of the Appellants that any one other than defendants 1 to 7 had furnished the consideration for the new lease, the benefit of the renewal alone 'will be treated as an asset of the partnership which terminated on 31st December, 1942, and a value placed on it.
The Commissioner appointed 80 by the lower Court may, after taking such evidence as may be necessary, be directed to fix the value in the first instance.
In arriving at a value, the liability of defendants 1 to 7 to furnish capital and incur the necessary expenses for carrying on the new business with its attendant risks and also possibilities of profits, are factors to be taken into account.
" In those words, the High Court set aside the judgment and decree of the trial court, and allowed the appeal in terms which the Commissioner appointed to take accounts of the dissolved partnership, may not find it easy to implement.
In support of this appeal, the learned counsel for the appellant, has contended that the High Court has misdirected itself in construing the provisions of the Indian Trusts Act, in holding that a constructive trust had been made out in favour of the plaintiffs; that there is no absolute rule that the renewal of a lease which was the subject matter of a partnership, must always enure to the benefit of the old partners; and that the essential ingredients of section 88 of the Trusts Act, had not been made out in this case.
He also contended that the lease by itself, did not create a right to manufacture salt and to sell it, and that a licence is a necessary pre requisite to carry on the business of manufacture and sale of salt in accordance with the rules of the Department, and that it is open to the Department not to recognise any partners in the business.
In this case, it was further contended, the licence to sell salt had been granted only in 1945.
Under the English law, there may be a presumption that the renewal of a lease which formed the subject matter of a partnership, will enure for the benefit of the partners, but he contended that in the circumstances of this case, such a presumption could not arise, and even if it did, it was rebutted by the following facts.
The term of the original partnership was a fixed one, terminating with the term of the lease and of the licence to manufacture salt, which came to an end with the year 1942; the partnership deed did not contemplate that this business would be extended beyond the fixed term in the event of a fresh lease 81 being obtained from the Government.
It was highly significant that the term of the partnership to carry on the salt business was deliberately fixed as conterminous with the terms of the lease and the licence.
The plaintiffs never took any steps to obtain a renewal of the lease, nor was there any evidence that they asked the defendants to take a renewal for the benefit of all the partners.
On the other hand, when the defendants applied on their own behalf for a fresh lease for 25 years, the plaintiffs put in a petition of protest, and prayed to the Government for being included in the category of lessees in the lease to be granted for 25 years, as co lessees, but without any success.
There is no allegation in the plaint of any attempt at concealment on the part of the appellants to the effect that they were taking the lease for their own benefit.
Nor was there any evidence that the defendants had taken any advantage of their position as partners, or had utilized any funds of the partnership for obtaining the fresh lease.
Lastly, it was contended that differences having cropped up between the parties during the years 1939 to 1942, it could not be said that the plaintiffs placed such a confidence in the defendants as to place them in the position of constructive trustees within the meaning of section 88 of the Trusts Act.
On the other hand, it was contended on behalf of the respondents that the fresh lease for 25 years, was granted to the appellants as a result of the changed policy of the Government, by which they substituted the renewal to approved parties in place of the old practice of settling the terms of the lease by open competition and by holding auction sales.
The contesting defendants obtained the lease in their names because they were entered in the Government records as the original lessees, and as the original lease was admittedly for the benefit of all the partners, the new lease also must be treated as being founded on the old lease.
It was also contended that section 88 of the Trust Act, was not exhaustive, and that even if the present case did not come strictly within the terms of that 11 82 section, the rule of English law relating to constructive trusts, applied to the case, and that, therefore, the High Court was quite justified in coming to the conclusion that the lessees were in the position of trustees when they obtained the renewed lease.
The plaintiffs failed in their attempt to be included in the category of joint lessees along with those defendants because of the changed policy and the rules of the Department.
Hence, the plaintiffs were in a position of disadvantage as compared to the defendants in whose name, the original lease and the licence stood.
In view of those facts, it was further contended, the plaintiffs could not either get the lease independently for themselves, or succeed in getting their names included in the category of joint lessees.
Lastly, it was contended that in the circumstances of the present case, the presumption of law that the defendants were constructive trustees, had not been rebutted.
Before dealing with the arguments advanced on be.
half of the parties, it is convenient to set out, in brief outline, the system of working salt factories under the Act (Mad. 4 of 1889), which was enacted to " consolidate and amend the law relating to the salt revenue in the Presidency ".
Under the Act, a " salt factory " includes any place used or intended to be used for the manufacture of salt or for the storage or keeping of the same, as defined from time to time by the Collector of salt revenue.
" Licensee ", under the Act, means a person to whom a licence to manufacture salt or saltpeter, is issued, and includes any person registered as the transferee of such licence under the provisions of the Act.
Under section 8, only licensees or public servants under the Central Government, are authorized to manufacture salt.
Section 9 of the Act, authorizes the Collector of salt revenue to grant licences for the manufacture of salt in respect of specified salt works, containing such particulars and conditions as the Central Government may prescribe from time to time.
Such a licence may be for the manufacture of salt for sale to the Central Government or for general sale; and may be transferred or relinquished in accordance with the prescribed rules.
Section 12 lays down that? 83 a licensee shall be taken to be the owner of the licence and of the salt works specified therein.
It is open to the Central Board of Revenue to establish a new salt, factory, and, subject to the payment of compensation, to close any salt factory or a portion thereof, and thus, cancel or amend the licence.
A provision has also been made by section 17 for the grant of a temporary licence for the manufacture of salt in certain contingencies.
Section 25 authorizes the Collector of salt revenue to impose upon a licensee a fine according to the prescribed scale, or to suspend a licence or even to cancel a licence for want of due diligence or default by a licensee.
Section 43 contains a prohibition against the removal of salt from a salt factory otherwise than on account of the Central Government or for transport to a place of storage authorized by the Collector of salt revenue, except under a permit and upon payment of duty at the fixed rate.
The Central Government is authorized to make rules generally for carrying out the provisions of the Act, and specially for regulating certain matters set out in section 85.
Such rules, on publication in the official gazette, have the force of law, and have to be read as part of the Act.
It is common ground that elaborate rules have been laid down by the Government, for regulating the manufacture and sale of salt, so as to safeguard public revenue and to prevent the manufacture of contraband salt.
It is, thus, clear that the business of manufacture of salt, which the parties to the agreement of partnership carried on, was not an ordinary occupation, which, is free from such strict rules and regulation as have been laid down by and under the Act.
The licensee owes a special responsibility to the Government, and, therefore, the transfer or relinquishment of licences under the Act, has to be regulated according to the rules laid down by the Government.
It is true that there is no absolute prohibition against such transfer or relinquishment, but the Government through its public officers, has the determining voice in such matters.
It is in the background of the law laid down by or under the Act, that we have to discuss the rights and 84 lease.
The first lease, a draft copy of which is on the record as ex.
P 16 at pp.
101 to 105, is an indenture between the Secretary of State for India in Council as the lessor, and the first defendant and the father of defendants 2 to 7, as the lessees.
The consideration for the lease is the sum of Rs. 25,000/ .
The lease is for a period of 17 years from January 1, 1926, subject to either party having the right to determine the lease by a notice in writing at the close of the salt manufacturing season.
It provides that on the expiry of the lease or its sooner determination as aforesaid by notice on either side, the lessees shall leave the demised premises which had been leased out exclusively for the manufacture, storage and sale of salt and for the works connected therewith, without any right to erect any dwelling houses, etc.
It also provides that the lessees shall be granted a modified excise licence in Form E 1(d).
It also contains the condition that the lessees shall not, except with the written consent of the lessor, first had and obtained, assign, underlet, or part with the possession of the leased land or any portion thereof.
The lessees may take a partner or partners, who may be approved by the Collector in the business.
The lease also contains detailed provisions as to how the business of manufacture has to be carried on under the supervision of the public authorities like the Collector.
The renewed lease, exh.
D 18, dated April 15, 1943, is between His Excellency the Governor General in Council, as the lessor and the contesting defendants as the lessees, for a period of 25 years commencing from January 1, 1943.
There is no payment of any premium for the lease.
The other terms and conditions of the lease are similar to the previous one.
Though temporary licences were granted from time to time, it was only on April 17, 1945, that a " revised permanent licence " was granted, and the temporary licence granted for 1945, was cancelled.
The " co partnership deed " as it is called, which is dated March 18, 1926, is between five individuals, and provides that those five persons should enjoy the profit 85 or bear the loss thereof, according to the shares indicated above; " that as the licence in the salt stands in the names of Chennuru Appala Narasayya Chetty and Guruswamy Chetty out of us, the said individuals only shall be responsible thereto "; and that " In case the said Appala Narasayya Chetty and Guruswamy Chetty or their heirs fail to render proper accounts whenever demanded according to the aforesaid terms to the remaining three sharers or their heirs during the salt lease period of seventeen years and commit defaults or any kind of frauds, Appala Narasayya Chetty Garu and Guruswamy Chetty Garu shall pay by way of penalty to the said three sharers at the rate of Rs. 2,500/ (two thousand five hundred) per share for the year when fraud is committed, without having anything to do with the other profits and losses.
" It is, thus, clear that the partnership was for the fixed term of 17 years, ending with the period of the lease, and the parties did not, in terms, contemplate the continuance of the partnership after the expiry of that period.
Their rights and liabilities are entirely with reference to the said period of 17 years, there being no provision for the continuance of the business by the partnership after the expiry of the said term.
If there bad been a specific stipulation in the partnership deed, or even an indication that the partnership business would continue even after the expiration of the 17 years, which was the term of the partnership, different considerations may have arisen.
It could then have justly been said that the managing partner owed a duty to the other partners to obtain a renewal of the previous lease.
It is, therefore, not without significance that in para.
12 of the plaint, the plaintiffs specifically alleged that it had been unanimously resolved by the partners that a renewal of the lease should be obtained for a further period for the benefit of the partnership, and that as a matter of fact, the renewal was obtained in pursuance of that resolution and by using the goodwill of the partnership.
This specific case has failed in both the courts below, but the High Court, in disagreement with the trial court, has accepted the alternative case as made 'out, 86 in para.
17 of the plaint, that the renewal of the lease should be treated as an asset of the partnership in ,settling the accounts and dividing the assets of the dissolved partnership.
But even in para.
17, there is no specific case made out under section 88 of the Indian Trusts Act (II of 1882).
It is not alleged, in terms, that the contesting defendants filled a fiduciary character, and were, thus, bound to protect the interest.% of all the partners in obtaining the renewal of the lease, or that, in so doing, their interests were adverse to those of the other partners, and they had, this gained a pecuniary advantage to the detriment of the other partners.
Though the plaintiffs had suggested that the contesting defendants had large funds, amounting to about Rs. 90,000, of the partnership, portion of which had been set apart for Payment of premium and for other expenses incidental to the renewal of the lease, it had been found, and there cannot be the least doubt about it, that no funds of the partnership had been utilized for obtaining the new lease.
As already indicated, no premium had to be paid for the fresh lease obtained by the contesting defendants.
Though no foundation was laid in the pleadings, strictly construed, for a case tinder section 88 of the Indian Trusts Act, we have still to examine the question ' whether the High Court was right in holding that either under that section or under the general law, apart from the statutory law, the contesting defendants bad placed themselves in such a position as to render themselves accountable as constructive trustees.
Section 88 is in these terms: " 88.
Where a trustee, executor, partner, agent, director of a company, legal adviser or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, ' or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other persons and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.
" 87 The section is in two parts.
In order to bring the case within the first part, it has to be shown that the contesting defendants had a fiduciary character, and were thus, in duty bound to protect the interests of the other partners in the matter of obtaining the lease; and that they obtained the lease for themselves instead, by availing themselves of that character.
As already pointed out, it was not within the scope of the partnership in accordance with the terms of the deed, to obtain a renewal of the lease.
At the time of entering into the partnership, the parties were fully cognizant of the rules of the Department then in force, according to which a fresh lease could be granted to the highest bidder irrespective of any other con siderations as to whether any one of the bidders war, a previous lessee.
The renewal of the lease without payment of any premium, was the result of the changed policy of the Government, according to which the personal conduct of the lessees, and not the amount of premium, was the determining factor in the grant of a fresh lease.
Because the contesting defendants bad managed the factory well and to the satisfaction of the Revenue Authorities, they were able to obtain the fresh lease, and it cannot be said that they had availed themselves of their character as partners in obtaining the renewal of the lease.
The plaintiffs ' allegation that the goodwill of the firm had been utilized for obtaining the renewal, has also not been found by the courts below to be true, because the basic allegation that there was a partnership firm with a goodwill, had not been established as a fact.
In our opinion, therefore, the plaintiffs have failed to bring the case within the first part of section 88.
We shall now examine the position whether the plaintiffs have made out a case in terms of the second part of the section.
In order to do so, it bad to be shown that the contesting defendants, while obtaining renewal of the lease, had placed themselves in such a position as to render their interests adverse to those of the other partners, and had thereby obtained a pecuniary advantage, which they.
must hold for the benefit 88 of the other partners as well.
In this connection, illustrations (d) and (e) under the section, are instruc tive.
If the plaintiffs had succeeded in proving, as they had attempted to do, that any funds or any goodwill of the alleged firm name, had been utilized for obtaining the renewal of the lease, the case would have directly come under illustration (d).
illustration (e), on the face of it, does not apply, because on the findings, the defendants were not negotiating for the renewal of the lease on behalf of the entire body of partners, nor is there any allegation that they had clandestinely stipulated for themselves a benefit to the detriment of the partnership business or funds.
In this connection, it has to be noted that the suit was instituted months before the renewed lease was actually granted, and years before a permanent licence for the manufacture and sale of salt, was issued to the contesting defendants.
It has also to be noted that the grant of the lease by itself does confer on the grantee the right to manufacture and sell salt.
The lease has to be followed by a permanent licence in order to enable the grantee to carry on the business of manufacturing, storing and selling salt.
Hence, the lease by itself has no value unless it is followed by a licence to manufacture and sell salt, which was granted only on April 17, 1945, about two years and four months after the expiry of the previous lease and licence, which, as already indicated, were conterminous with the term of the partnership.
That is the reason why the High Court granted the decree in favour of the plaintiffs in terms which are rather amorphous and which do not easily lend themselves to conversion in terms of money.
This is a business in which the personal factor of the persons in charge of managing the business, is more important than anything else.
Another important matter which has a bearing on the case, has also to be adverted to.
Between the years 1939 and 1942, that is to say, during the last three years of the term of the partnership, the partners Were not on cordial terms, and there does not appear to have been much of confidence between them.
The" had already started quarreling and attributing 89 unworthy motives.
There is, therefore, hardly any room for importing the idea of such confidence amongst partners as would render the contesting(, defendants occupying a fiduciary position, apart from the fact that they were partners.
As already indicated, the partnership stood automatically terminated at the end of the year 1942.
The actual grant of the lease in question was made in April 1943, and the permanent licence to manufacture and sell salt, was granted only in 1945.
Hence, strictly speaking, when the suit was instituted in January, 1943, legally, there was no lease in existence, nor could the business of manufacture and sale of salt be effectively carried on until the grant of the permanent licence.
The plaintiffs could have a cause of action in respect of the renewed lease if their substantive case of continuing partnership had been established.
But that case having failed, it is a little difficult to appre ciate how they could claim any interest in the renewed lease as an asset of the partnership business.
The fiduciary character as between the partners had ceased on the termination of the original lease and of the partnership business.
On such a termination, there was no interest of the partners, which the contesting defendants were bound to protect.
For the same reasons, the defendants ' character as partners had ceased, and they could not, therefore, be said to have availed themselves of their character as partners in obtaining the fresh lease.
For all these reasons, it must be held that the plaintiffs have failed to bring the case strictly within the terms of section 88 of the Indian Trusts Act.
A passing reference was made by the learned counsel for the respondents to the terms of section 90 of the Trusts Act.
But it will be noticed that whereas section 88, quoted above, makes a specific reference to partners and agents, etc., section 90, in terms, applies to a tenant for life, a co owner, a mortgagee, or any other qualified owner of any property.
Section 90, therefore, in terms, could not apply to the case.
Even if it did, it does not carry the case any further in favour of the plaintiff respondents.
12 90 that even though the provisions of the Trusts Act, did not, in terms, apply to the case, the general principles of law as applied in the English courts, support the plaintiffs ' case.
In this connection, reliance was placed upon the cases of Featherstonhaugh vs Fenwick (1), Clegg vs Fishwick (2), Clements vs Hall (3), Clegg vs Edmondson (4), In re Biss, Biss vs Biss (5), Griffith vs Owen (6) .
The law in England has been summarized in Halsbury 's Laws of England, 2nd Ed., Vol. 24 (Lord Hailsham 's Edition) in article 863 at p. 450, as follows: " The renewal of a lease of the partnership property by one or more of the partners without the privity of the others enures for the benefit of all.
The rule is the same when the intention to renew is communicated to the others if the latter are prompt to assert their rights; and it is immaterial whether the term of the partnership is definite or indefinite, or whether the lessors would have refused to renew to the partners who are not privy to the renewal.
The representatives of a deceased partner may have a right to share in the profits derived from a renewal of the lease by the surviving partner.
" Most of the cases relied upon on behalf of the respondents, form the basis of the statement of the law in England, quoted above.
On a close examination of the English precedents aforesaid, it will be found that there is no absolute rule of law or equity that a renewal of a lease by one partner, must necessarily enure for the benefit of all the partners.
There is a presumption of fact, as distinguished from a presumption of law, that there is an equity in favour of the renewal of the lease enuring for the benefit of all the partners.
But such a presumption being one of fact, is rebuttable, and must, therefore, depend upon the facts and circumstances of each case.
The Indian Legislature has substantially adopted the English law quoted above, while enacting (1) ; (3) ; (5) (2) ; (4) ; (6) [1907] I. ch.
91 the rules laid down in the Indian Trusts Act, particularly, sections 88 and 90 of the Trusts Act.
In the instant case, the facts that.
the parties deliberately chose to fix the term of the partnership as conterminous with the term of the lease and licence ending with the year 1942; that they did not, in express terms, or by necessary implication, make any provision for extending the period of the partnership or for obtaining renewal of the lease and the necessary licence; that there was no averment or proof of any clandestine acts on the part of the contesting defendants in the matter of obtaining the renewal of the lease; that the plaintiffs themselves made attempts, though unsuccessful, to get themselves included in the category of grantees at the time of the renewal of the lease ; that the special nature of the business required personal efficiency and good conduct on the part of the actual managing agents; that no funds of the expiring partnership or any goodwill of the partnership was utilized for obtaining the fresh lease; that the fresh lease and licence were granted to the contesting defendants in consideration of their personal qualities of good management and good conduct; that the parties were not on the best of terms during the last few years of the partnership, and finally, that the lease and the permanent licence were actually granted after the partnership stood automatically dissolved at the end of 1942, are all facts and circumstances which point to only one conclusion, namely, that the renewal of the lease was not intended to be for the benefit of all the quondam partners.
Those facts and circumstances amply rebut any presumption of fact that the lease should enure to the benefit of all the parties.
For the reasons given above, it must be held that the judgment and decree passed by the High Court, in so far as they reverse those of the trial court, are erroneous, and must be set aside.
The appeal is, accordingly, allowed with costs throughout, which are attributable to the single issue which has been decided in this Court.
Appeal allowed.
| IN-Abs | The appellant, defendant No. 1 in the suit, from which the appeal arises, and the father of defendants 2 to 7, as the highest bidders, obtained a seventeen years ' lease of a salt factory from the Government and the license to manufacture and sell salt under the Madras Salt Act, 1889.
They entered into a partnership with the plaintiffs to carry on their business for the period of the lease.
On the death of their father, defendants 2 to 7 were admitted into the partnership.
The partnership agreement made no provision for the continuation of the partnership on expiry of the lease or for the acquisition of a fresh lease on behalf of the partnership.
The lease expired, the license came to an end and the partnership stood automatically dissolved.
The Government changed its old policy of granting leases to the highest bidders and adopted one of renewing them in favour of previous lessees in whom they had confidence.
The appellant 10 74 and defendants 2 to 7 applied for the renewal of the lease that stood in their names.
The plaintiffs also applied for a grant of it to them.
No premium was called for and none had to be paid.
The Revenue Authorities chose to renew the lease in favour of the appellant and the said defendants f or a further period of 25 years.
The plaintiffs filed the suit claiming that the renewal of the lease was an asset of the dissolved partnership.
The trial Court found against them but the High Court on appeal reversed that finding.
The suit was instituted months before the renewal of the lease and years before the renewal of the license, which alone could enable the licensee to manufacture and sell salt.
The Courts below found that the allegation of the plaintiffs that the goodwill and assets of the firm had been utilised for obtaining the renewal of the lease was unfounded, as they had failed to prove that a partnership firmatall existed.
It was also found that during the last three years of the existence of the partnership, the parties had fallen apart and lost mutual confidence.
The question for decision was whether section 88 of the Indian Trusts Act applied and the renewal of the lease in favour of the appellant and the said defendants for running the salt factory could be treated as an asset of the dissolved partnership between the contesting parties.
Held, that in order that a case might be brought within the purview of section 88 of the Indian Trusts Act, it must be shown either that (1) a person had a fiduciary character and was thus in duty bound to protect the interests of others or that (2) he had placed himself in such a position as to render his interest adverse to those of the others and had thereby obtained a pecuniary interest which he must hold for their benefit as well.
As in the instant case the fiduciary character of the partners came to an end with the termination of the original lease and of the partnership business along with it, there could no longer be any subsisting interest in a partner which another was bound to protect nor could one partner be said to have availed of his character as a partner when he obtained the fresh lease.
Section 88 of the Indian Trusts Act or the illustrations (d) or (e) thereto could, therefore, have no application, nor could section go of the Act, which in terms had no application even if applied, improve the position of the plaintiffs.
No question of a constructive trust could also arise under the general law apart from the statute.
There is no absolute rule of law or equity in England that renewal of a lease by one partner must necessarily enure to the benefit of all the partners.
There is, however, a presumption of fact that there is an equity in favour of the renewal of the lease enuring to the benefit of all the partners.
Such a presumption may be rebutted by the facts of a particular case.
The Indian law as enacted in the Indian Trusts Act, and particularly sections 88 and go of that Act, is substantially the same.
In the instant case, the facts and circumstances amply rebut that presumption.
75 Featherstonhaugh vs Fenwick, ; , Clegg vs Fishwick; , , Clements vs Hall, ; , Clegg vs Edmondson, ; , In Ye Biss, Biss vs Biss, and Griffith vs Owen, [1907] I Ch. 195, G considered.
|
ivil Appeal Nos.
188 89 of 1987.
From the Judgment and Order dated 21.11.
1986 of the Punjab & Haryana High Court in First Appeal Order Nos.
620 & 619 of 1986.
571 K.K. Jain and Pramod Dayal for the Appellant.
Meera Chhabra and Ms. Pani Chhabra for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are appeals by special leave challenging the reversing common decision of the Punjab & Haryana High Court holding the insurer liable for compensa tion under the of 1939.
The insurer repudiated its liability by maintaining that the policy had been taken after the accident and, therefore, it had no liability to meet the award of compensation against the owner.
The Tribunal accepted this stand and rejected the claim against the insurer.
In appeal, the High Court took the view relying upon certain decisions that the insurance policy obtained on the date of the accident became operative from the commencement of the date of insurance i.e. from the previous mid night and since the accident took place on the date of the policy the insurer became liable.
Apart from the judgment under appeal, we find that this view is supported by two judgments of the Madras High Court and an earlier decision of the Punjab & Haryana High Court Two Division Benches of the Madras High Court have taken the view after discussing the law at length that the policy taken during any part of the day becomes operative from the commencement of that day.
Besides these judgments a Division Bench decision of the Allahabad High Court in Jaddoo Singh & Anr.
vs Smt.
Malti Devi & Anr., AIR 1983 All. 87 supports this view on principle.
There is evidence in this case that the vehicle was insured earlier upto 31.8.
1984 and the same was available to be renewed but instead of obtaining renewal, a fresh insurance was taken from 28th of September, 1984, which is the date of the accident.
We are inclined to agree with the view indicated in these decisions that when a policy is taken on a particular date its effectiveness is from the commencement of the date and, therefore, the High Court, in our opinion, was right in holding that the insurer was liable in terms of the Act to meet the inability of the owner under the award.
As pointed out in Stroud 's judicial Dictionary 'Date ' means day, so that where a cover not providing for temporary insurance of a motor 572 car expires 15 days after date of commencement, it runs for the full 15 days after the day on which it was to commence.
" Similarly it has been stated in Stroud that "a bill of exchange, or note, is of the date expressed on its face, not the time when it is actually issued." 'To the same effect is the decision in Re F & B Warren, where it has been held that a judicial act will be referred to the first moment of the day on which it is done.
A payment made by a bankrupt in the morning of a day is, therefore, not made, within section 45 of the Bank ruptcy Act, 1914 before the date of a receiving order made later in the same day.
The ratio of these also supports the view we have taken.
The appeals fails and are dismissed.
There would, howev er, be no order for costs.
N.P.V. Appeals dis missed.
| IN-Abs | In a claim for compensation, the Motor Accident Claims Tribunal held that the insurer was not liable to meet the award of compensation against the owner of the vehicle, as the policy had been taken after the accident.
On appeal, the High Court held that the insurance policy obtained on the date of accident became operative from the commencement of the date of insurance, i.e. from the previous mid night, and since the accident took place on the date of the policy, the insurer became liable.
Dismissing the appeals by the insurer, this Court.
HELD: When a policy is taken on a particular date, its effectiveness is from the commencement of the date.
In the instant case, the insurance was taken from 28th September, 1984, which is the date of the accident.
The High Court was, therefore, right in holding that the insurer was liable in terms of the Act to meet the liability of the owner under the award.
[571F G] Jaddoo Singh & Anr.
vs Smt.
Malti Devi & Anr., AIR 1983 All. 87, approved.
In re.
F.B. Warren, , referred to.
Stroud 's Judicial Dictionary, referred to.
|
ivil Appeal No. 673 of 1986.
From the Judgment & Order dated 17.2.1986 of the Madhya Pradesh High Court in Election Petition No. 41 of 1985.
S.S. Khanduja, Y.P. Dhingra and B .K.
Satija for the Appel lant.
Mrs. J. Wad for the Respondent.
The Judgment of the Court was delivered by KASLIWAL, J.
This appeal under Section 116 A of the Representation of People Act, 1951 (in short "the Act") is directed against the Judgment of the High Court of Madhya Pradesh dated 17th February, 1986.
Election of Legislative Assembly of the State of Madhya Pradesh was held in the month of February, 1985.
One of the Constituencies was No. 14 Lahar (District Bhind).
The nomination papers were filed before 6th February, 1985 and the scrutiny was done on 7th February, 1985.
Several persons filed their nomination papers.
The nomination paper of Ramprakash was rejected by the Returning Officer in the scrutiny.
The order passed by the Returning Officer rejecting the nomination paper reads as under: "Candidate is not identified as per electoral roll.
His representative has accepted this mistake also.
Hence reject ed.
Advised for correction but did not correct.
The candi date did not correct after advising to correct mistake.
Even did not appear at the time of scrutiny to correct mistake.
Hence rejected.
See section 33(4) R.P.A." Result of the election was declared on 5th March, 1985 and Shri 506 Mathura Prasad appellant declared elected.
Ajeem Khan one of the voters of the Constituency filed an election petition under Sec. 88 of the Act challenging the election of Mathura Prasad on several grounds but it is not necessary to state all the grounds as the controversy in the present appeal centres round the wrongful rejection of the nomination paper of Ramprakash.
The ground in this regard taken in the election petition was that the nomina tion paper of Ramprakash was wrongly rejected as the defect in his nomination paper was not of a substantial character.
It was alleged that in the nomination paper filed by Rampra kash the column meant for stating the candidate 's serial number in the electoral roll was left blank.
1t was thus alleged that the said defect was not of a substantial char acter and the nomination paper should not have been rejected in view of the provisions contained in Section 36(4) of the Act.
On the other hand the case of Mathura Prasad, the elect ed candidate was that neither Ramprakash nor any other person on his behalf was present before the Returning Offi cer when the nomination paper of Ramprakash was taken up for scrutiny.
At the time of scrutiny, the Returning Officer had pointed out that voter number was not mentioned in the nomination paper and Jaiprakash (RW.3) who 'was the proposer of Ramprakash had told the Returning Officer that he would inform Ramprakash regarding the above defect.
The Returning Officer then put that nomination paper aside and took other nomination papers for scrutiny.
Jaiprakash remained present in the hail awaiting the arrival of Ramprakash.
The Return ing Officer after scrutinising all the other nomination papers again called out the name of Ramprakash.
As Rampra kash had not arrived till then, Jaiprakash left the hall after informing the Returning Officer that he would fetch Ramprakash.
Jaiprakash left the place and went in search of Ramprakash but his efforts to search Ramprakash went in vain and he did not return back before the Returning Officer.
In view of the above circumstances, the Returning Officer passed the order rejecting the nomination paper of Rampra kash under sec.
33(4) of the Act.
On the pleadings of the parties Learned Single Judge of the High Court who tried the election petition framed Issue No. 1 in this regard which reads as under: (i) Whether rejection of the nomination paper of Ramprakash by the Returning Officer was illegal, as alleged? 507 Both the parties lead evidence in support of their case.
The petitioner in support of his case regarding the above issue examined himself, Mitthookhan, Gourishanker and Pahalwan.
By the evidence of the aforementioned witnesses a story was put forward that shortly before the nomination paper of Rampra kash was taken up for scrutiny, Ramprakash had gone out for passing urine.
He had left behind Mitthookhan as his repre sentative and when the nomination paper of Ramprakash was taken up for scrutiny and the defect was pointed out, Mit thookhan after informing the Returning Officer went out for calling Ramprakash.
He alongwith Ramprakash returned back after five minutes only but the nomination paper had already been rejected by the Returning Officer.
On the contrary Mathura Prasad examined himself and Jaiprakash who was not only the proposer of Ramprakash but was also his cousin.
Jaiprakash fully supported the case of Mathura Prasad.
Learned Single Judge after analysing the evidence of both the parties arrived to the conclusion that the entire story as advanced by the election petitioner and his wit nesses was obviously a fabrication.
He further held that such story being fabricated it deserved to be rejected outright.
He further observed as under: "The versions of the respondent (R.W. 1) are corroborated not only by the returning officer Shri Hoshiyarsingh, exam ined by the petitioner himself as P.W. 1, but also by the petitioner 's cousin Jaiprakash (R.W. 3) who was also his proposer and the evidence is also consistent with the grounds of rejection stated by the returning officer in his order.
The returning officer Shri Hoshiyarsingh (P.W. 1) is an independent witness and Jaiprakash (R.W. 3), who is cousin and proposer of Ramprakash (P.W. 4), also has no reason to tell lies.
I, therefore, see no reason to disbe lieve the versions of the respondent (P.W. 1) as to what transpired when the nomination paper of Ramprakash (P.W. 4) came up for scrutiny and under which circumstances it was rejected by the returning officer".
After recording the above finding the Learned Single Judge took into consideration the fact that in the nomination paper of Ramprakash, his name, his father 's name, his postal address, the number and name of the Constituency to which nomination paper related and the 508 number of the part of the electoral roll of the same con stituency in which part his name was entered as a voter were duly and correctly filled up.
It was further observed that Exhibit P. 1 a certified copy of that part of the electoral roll showed that the total number of voters registered therein was 10 11 and the name of Ramprakash was entered therein at serial No. 735.
At the time of scrutiny, the Returning Officer must have naturally been assisted by some members of his subordinate staff.
Learned Single Judge further observed that according to the Returning Officer himself the nomination paper was put of by him in the midst of the scrutiny proceedings and it was rejected subsequently after the scrutiny of all other nomination papers was over.
There was thus ample time to locate the serial number of the candidate in the above mentioned part of the electoral roll.
The Returning Officer had admitted that no effort was made by him to locate it.
Learned Single Judge thus concluded that it was not the contention of the Returning Officer that it was not possible for him to locate the name of Ramprakash in the electoral roll and find out his serial number but in fact the Returning Officer made no effort in this regard.
Learned Single Judge distinguished a decision of this Court in Lila Krishan vs Mani Ram Godara & Ors., [1985] Suppl.
S.C.R. 1 592.
He further held that candidate 's absence was immaterial and the Returning Officer could have himself found out the electoral number of the candidate Ramprakash readily with a very little effort by referring to the elec toral roll part mentioned in the nomination paper and the same being also available with him at the time of scrutiny the electoral number could have been found out without the assistance of any of the persons mentioned in Sec.
36(1) of the Act and the defect in the nomination paper cannot be held to be of a substantial character.
Issue No. 1 was thus decided in favour of the petitioner Ajeem Khan and as a result of which the election petition was allowed and the election of Mathura Prasad was declared void.
Aggrieved against the decision of the High Court, Mathu ra Prasad the winning candidate filed the present appeal before this Court.
We have heard learned counsel for both the parties and in our view this appeal has to be allowed.
As already mentioned above the Learned Single Judge himself did not accept the story as put forward by the petitioner Ajeem Khan, rather it was held that the entire story narrated by him was a fabrication and the same de served to be rejected outright.
The Returning Officer who was an independent witness and Jaiprakash who was a proposer of Ramprakash were believed and it was held that the entire 509 circumstances under which the nomination paper of Ramprakash came up for scrutiny and was rejected were correct.
Thus a perusal of the circumstances put forward by these witnesses at the time of scrutiny and rejection of the nomination paper of Ramprakash shows that Ramprakash himself was not present and even his proposer Jaiprakash after having gone to fetch Ramprakash did not return back and ultimately the Returning Officer rejected the nomination paper of Rampra kash.
The order passed by the Returning Officer rejecting the nomination paper of Ramprakash clearly makes a mention that the candidate was not identified as per electoral roll.
His representative had accepted the mistake also and was advised for correction but did not correct the same.
The candidate did not correct after advising to correct the mistake.
It further makes a mention that the candidate even did not appear at the time of scrutiny to correct the mis take.
In the circumstances mentioned above we have no hesi tation at all in holding that the Returning Officer was perfectly justified in rejecting the nomination paper of Ramprakash.
It depends on the facts and circumstances of each case to find as to what mistake in a nomination paper can be considered a mistake of substantial nature.
It is correct that the Returning Officer should not reject a nomination paper merely on a mistake of technical or formal nature, where the identity of the candidate can be ascer tained by him on the material made available to him.
He should also give an opportunity to the candidate or his representative present at the time of scrutiny to remove the defect.
However, in case neither the candidate nor his representative be present and without removing such defect in the nomination paper the identity of the candidate cannot be ascertained, then there is no statutory duty cast on the Returning Officer to make a roving enquiry by going through the Material placed before him and to remove such defect himself.
We may also refer to some cases cited before us at the bar.
Dalip Kumar Gon vs Durga Prasad Singh, AIR 1974 SC 2343 is the case on which strong reliance has been placed by Learned counsel for Ajeem Khan.
In the above case in the column of printed nomination form meant for making a decla ration of the candidates of the Scheduled Caste/Tribe con testing for a reserve seat, Abdul Hamid contesting from general constituency had not (a) filled his specific caste in the blank meant for that purpose and further (b) he had in that column left the words 'Scheduled Castes ' unscored.
The Returning Officer rejected the nomination papers on the ground that the failure of the candidate to delete the words 'Scheduled Castes ' means that "he belongs to Scheduled Caste which is not true" and consequently, the 510 nomination papers were not filled up properly.
An electoral of the constituency filed an election petition on the ground that the nomination papers of Abdul Hamid and Khatir Ali had been improperly rejected.
Learned Single Judge of the High Court upheld the above rejection of nomination paper by the Returning Officer and held that the candidate 's filling of these enteries were on the face of it, not proper and did not comply with the requirements of law.
It was further held that this defect was not trivial or technical but of a substantial character.
On appeal before the Supreme Court the Judgment of the High Court was set aside and it was held as under: "The High Court 's view that in scoring out only the word 'Jan Jati ' (tribe) and leaving the word 'Jati ' (caste) untouched in the aforesaid column of the nomination form, Abdul Hamid had failed "to comply with the requirement of the law on the subject" 'was entirely misconceived.
It overlooked the fact that the Jamtara Constituency was a 'General ' Constituency and the seat for which the candidates wanted to contest the election was not a Reserved seat.
Section 33(2) of the Representation of the People Act, 195 1, or any other statutory provision does not enjoin upon a candidate who is contesting the election for a General Seat, and not for a Reserved Seat, to specify in his declaration his caste or tribe.
Further, the 'Returning Officer appear ing as R.W. 2, had clearly admitted that at the time of the scrutiny of the nomination papers, he was aware that Abdul Hamid was not a member of the Scheduled Caste and that he had deposited Rs.250 as security.
The omission to strike off the column in the printed nomination form relating to Sched uled Caste/Tribe did not amount to a defect in the eye of law, much less was it a defect of a substantial character, warranting rejection of the nomination papers in Amolak Chand vs Raghuveer Singh, ; 1968 SC 1203.
The nomination papers of two candidates contesting for a general constituency were rejected on a similar ground.
Holding that the rejection was improper, Ramaswami, J. Speaking for the Court stated the law on tile point thus: "The printed form 2 A is meant both for general and reserved constituencies but why it is obligatory for candidates in the reserved constituency to make a declaration in the proper 511 column that he is a member of a particular caste or tribe there is no such rule with regard to general constituency.
33(2) of the Act imposes an obligation on the candidate in the reserved constituency to make a declaration in the proper column but there is no such direction in the statute with regard to the general constituencies.
In our opinion, the mention of the caste of the candidate in the nomination form was a clear superfluity because it was not necessary for the candidate to fill in the column when he was contest ing in a general constituency.
In the light of what has been said above, we would, reverse the finding of the High Court and hold that the nomination papers of Abdul Hamid were improperly reject ed by the Returning Officer".
In the above case the facts were entirely different and it lends no assistance to the case set up by Ajeem Khan, respondent before us.
In the above case it was clearly held that Sec.
33(2) of the Act or any other Statutory provision does not enjoin upon a candidate who is contesting the election for a general seat, and not for a reserved seat, to specify in his declaration his caste or tribe.
However, the Returning Officer had clearly admitted that at the time of the scrutiny of the nomination papers, he was aware that Abdul Hamid was not a member of the Scheduled Caste and that he had deposited Rs.250 as security.
Thus it was held that the omission to strike of the column in the printed nomina tion form relating to Scheduled Castes/Tribe did not amount to a defect in the eye of law, much less it was a defect of a substantial character.
In Brij Mohan vs Sat Pal, ; one Dog Ram had filed his nomination papers for contesting election to the Haryana Legislative Assembly from Jind Constituency.
His name was proposed by Ram Pratap, an elector of the Constitu ency.
Dog Ram was registered as an elector at serial No. 177 and house number 57 in part 39 of the electoral roll of the constituency whereas his proposer Ram Pratap was registered as electoral at serial No. 313.
and house number 6 in part 39 of the same constituency.
The name and postal address of Dog Ram were correctly given in the nomination papers but the part of the electoral roll was mentioned as 57 instead of 39 by an inadvertant mistake committed by the person who filed the nomination papers.
512 Similarly in the case of the proposer the serial number of the elector and the members of the constituency were given correctly but the number of his house was wrongly entered in the column meant for the part of the electoral roll.
At the time of scrutiny no other candidate or proposer objected to the acceptance of the nomination paper of Dog Ram but the Returning Officer of his own rejected the nomination paper on the ground that particulars of the candidate and the proposer had been wrongly entered in the nomination papers.
The High Court considered the question as to whether the nomination paper of Dog Ram was improperly rejected.
On the evidence led by the parties the Single Judge found that the candidate Dog Ram and his proposer were registered as voters in the constituency and were qualified to contest the elec tion and propose the candidate respectively.
It was further found that errors in regard to electoral roll numbers of the candidates and the proposer in the electoral roll and the nomination paper do not constitute defects of a substantial character as mentioned in the Proviso to Section 33(4) of the Act.
Learned Single Judge accepted the evidence of the proposer (P.W.2) to the effect that when he and the candi date presented the nomination paper, the Returning Officer told them that it was in order and that the Returning Offi cer had tripped them into an error and if the Returning Officer had told them that there were some discrepancies in the nomination paper they would have either made corrections then and there and could have gone more fully prepared to make objections at the time of the scrutiny.
The High Court in these circumstances allowed the election petition on the ground that the nomination paper of Dog Ram was improperly rejected.
On appeal to this Court by the elected candidate it was held that the Returning Officer could not be said to have improperly rejected the nomination paper of Dog Ram.
This Court did not believe the evidence of proposer (P.W.2) which was not corroborated by the evidence of any other witness.
In the facts and circumstances of the case it was held that the Single Judge was not justified in accepting the evidence of P.W.2 and in holding that the Returning Officer was guilty of tripping the candidate and the proposer by any assertion on his part into anyone believing that there was nothing wrong in the nomination paper.
In the above case this Court observed as under: "It is not possible to say generally and in the abstract that all errors in regard to electoral rolls or nomination papers do not constitute defects of a substantial character.
They 513 would not be defects of a substantial character only if at the time of the scrutiny the Returning Officer either by himself with the materials placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer in the electoral roll.
If that is not the case, he would be commit ting a grave error by accepting the nomination paper without verifying whether the candidate is a voter in that or any other constituency of the State and whether the proposer is a voter in that constituency".
"The candidate and,the proposer are always expected to go fully prepared to meet any objection that may be raised by any candidate or even by Returning Officer himself suo motu at the time of the scrutiny and they cannot be expected to go any the less prepared merely because the Returning Offi cer had received the nomination paper without raising any objection.
It is at the time of scrutiny which is done in the presence of all concerned that the nomination papers come up for more detailed consideration at the hands of the Returning Officer against whom there is no estoppel in regard to the statutory duty of scrutiny".
In the above case this Court clearly held that the defects would not be of a substantial character only if at the time of scrutiny the Returning Officer either by himself with the materials placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer in the electoral roll.
It no where lays down that it is the statutory duty of the Returning Officer himself to cure the defect at the time of the scrutiny.
We cannot read in the above authority, as sought to be argued by the Learned counsel for the respond ent, that in the case before us even though Ramprakash or any other representative on his behalf was not present to cure the defect, still it was the duty of the Returning Officer himself to find out the correct identity of Rampra kash.
As already discussed above the learned Single Judge had himself held that the case set up by Ajeem Khan was a fabricated one and the story put forward by the winning candidate Mathura Prasad and his witnesses was correct.
From the evidence of Returning Officer it was clear that the defect in the nomi 514 nation paper of Ramprakash was brought to the notice of his proposer Jaiprakash and the nomination paper was not reject ed in the first round.
An ample opportunity was given to Jaiprakash to bring Ramprakash but he failed to turn up.
The nomination paper was then rejected after the scrutiny of all other nomination papers was over.
The Returning Officer in the above circumstances was perfectly justified in rejecting the nomination paper of Ramprakash.
Learned Single Judge wrongly distinguished the case of Lila Krishan vs Mani Ram Godara & Ors., [1985] Suppl.
1 S.C.R. 592 (supra).
In this case the .election of Lila Krishan from Fatehbad Constituen cy of Haryana Assembly was challenged on the ground that the nomination papers of two candidates being Mani Ram Chhapola and Raj Tilak had been improperly rejected by the Returning Officer.
The Proposer of Mani Ram Chhapola was one Brij Bhushan while proposer of Raj Tilak was one Upendra Kumar.
Brij Bhushan 's serial number in the electoral roll was 26 while Upender Kumar 's was 77.
In form 3A these numbers were correctly indicated but in the nomination papers the numbers had been shown as 126 and 177 respectively.
The Returning Officer rejected these nomination papers as the serial numbers of the proposers as disclosed in the nomination papers did not tally with reference to the electoral roll.
The High Court set aside the election of Lila Kishan holding that the Returning Officer acted mala fide and had either directly or indirectly been responsible for the alteration in the nomination papers, since the nomination papers when filed were in order and while they were in the custody of the Returning Officer 's establishment, interpolations have been made and on the basis thereof of nomination papers had been rejected.
Appeal filed in Lila Krishan was allowed by this Court and it was held that the conclusion of the High Court that the Returning Officer either by himself or through somebody caused the interpolation to be done was totally unwarranted.
On the basis of the above facts it was held as under: Indisputably the insistence on disclosure of the serial number in the prescribed column against the proposer is for the purpose of indentifying the proposer and ascertaining that he is competent to propose.
The scope of scrutiny is obviously to verify the contents of the nomination paper with a view to ascertaining whether the form is in order and what is required to be complied with by the election law has been duly complied with.
This Court has repeatedly held that election proceedings are strict in nature and what is 515 required to be performed in a particular manner has to be done as required or the Rules made thereunder.
That is why an exception has been made by inserting Sub section
(4) of Sec tion 36 of the Act.
Therefore, to cast the obligation of the Returning Officer to look through the entire electoral roll of a particular part with a view to finding out the identity of the proposer is not the requirement of the law.
To read that as an obligation is likely to lead a unworkable posi tion".
"In the instant case, no one was available, for instance, when the Returning Officer took up the nomination paper of Mani Ram Chhapola to indicate to the Returning Officer that his serial number in the electoral roll was 26 and not 126.
If this had been pointed out and on summary enquiry the identity of Brij Bhushan was not in dispute, there would have been end of the matter.
If the correlation has not been made and the Returning Officer has no assistance to fix up the identification it cannot be said to be a defect not of substantial character.
Moreover, it could not be statutory obligation of the Returning Officer to scrutinise the elec toral roll for finding out the identity of the proposer when the serial number turns out to be wrong.
But if interested and competent persons point out to the Returning Officer that it is a mistake, it would certainly be his obligation to look into the matter to find out whether the mistake, is inconsequential and has, therefore, either to be permitted to be corrected or to be overlooked.
When scrutiny was taken up Mani Ram Chhapola and Raj Tilak on their own showing were not present before the Returning Officer.
Similarly, the proposers, Brij Bhushan and Upender Kumar were also absent.
Though there is evidence on the side of the election peti tioners that the Assistant Returning Officer was present at the time of scrutiny, he as P.W. 4 has categorically denied that fact.
The Returning Officer, R.W. 3, has stated that the Assistant Returning Officer was not present when he took up scrutiny on the nomination papers.
There is also evidence from the side of the appellant that the Assistant Returning Officer was not present.
In the circumstances, if the nomi nation papers have been rejected for mistake in 516 the nomination papers it is the candidates themselves who have to thank their lot and no mistake can be found with the Returning Officer.
Therefore, the nomination papers were validly rejected".
Thus in the above case it was clearly laid down that to cast an obligation on the Returning Officer to look through the entire electoral roll of a particular part with a view to finding out the identity of the proposer is not the requirement of the law.
In the case before us even if it may be considered for a moment that by making some effort by the Returning Officer, the identity of Ramprakash could have been ascertained, there being no statutory duty cast on him to do so coupled with the fact that neither the candidate Ramprakash nor any representative on his behalf was ready to assist the Return ing Officer in curing the defect and in proving the correct identity of Ramprakash, it cannot be said that the Returning Officer committed any error in rejecting the nomination paper of Ramprakash.
The Returning Officer not only granted ample time but even brought the defect to the notice of Jaiprakash proposer but still the defect in the nomination paper was not removed.
In the result this appeal is allowed, the Judgment of the High Court dated 17th February, 1986 is set aside and it is held that the Returning Officer rightly rejected the nomination paper of Ramprakash.
The appellant would also be entitled to costs.
R.N.J. Appeal al lowed.
| IN-Abs | Election to the Legislative Assembly of the State of Madhya Pradesh was held in February, 1985.
For Constituency No. 14 Lahar (Distt.
Bhind) nomination papers were filed before 6th February, 1985 and scrutiny done on February 7, 1985.
During the scrutiny the nomination paper of Ramprakash who was one of the candidates was rejected by the Returning Officer.
The order rejecting the paper reads as under: "Candidate is not identified as per electoral roll.
His rep resentative has accepted this mistake also.
Hence rejected.
Advised for correction but did not correct.
The candidate did not correct after advising to correct mistake.
Even did not appear at the time of Scrutiny to correct mistake.
Hence rejected.
See Section 33(4) R.P.A." Result of the election was declared on ' 5th March, 1985 and the appellant declared elected.
The election of the appellant was challenged by the Respondent who was one of the voters of the constituency through an election petition on several grounds the main ground being the wrongful rejection of the nomination paper of Ramprakash.
On the pleadings of the parties the High Court framed issue No. 1 which reads as under: (i) Whether rejection of the nomination paper of Rampra kash by the Returning Officer was illegal, as alleged? The High Court on an analysis of the evidence came to the conclusion that the entire story advanced by the elec tion petitioner and his witnesses was a fabrication and deserved to be rejected outright.
How 504 ever after recording this finding the learned single judge of the High Court went on to hold that the candidate 's absence was immaterial and the Returning Officer could have himself found out the electoral number of the candidate Ramprakash readily with a little effort without the assist ance of any of the persons mentioned in Section 36(1) of the Act and that the defect in the nomination paper cannot be held to be of a substantial character.
Issue No. 1 was thus decided in favour of the election petitioner as a result of which the election petition was allowed and the election of the appellant declared void.
Hence this appeal by the elect ed candidate.
Allowing the appeal and setting aside the judgment of the High Court, this Court, HELD: There is no statutory duty cast on the Returning Officer to himself look through the entire electoral roll of a particular part with a view to finding out the correct identity of a candidate at the time of the scrutiny even though neither the candidate himself nor any other represen tative on his behalf was present to cure the defect.
[516B D] A perusal of the circumstances put forward by the wit nesses at the time of scrutiny and rejection of the nomina tion paper of Ramprakash shows that Ramprakash himself was not present and even his proposer Jaiprakash after having gone to fetch Ramprakash did not return back and ultimately the Returning Officer rejected the nomination paper of Ramprakash.
The order passed by the Returning Officer re jecting the nomination paper of Ramprakash clearly makes a mention that the candidate was not identified as per elec toral roll.
His representative had accepted the mistake also and was advised for correction but did not correct the same.
The candidate did not correct after advising to correct the mistake.
It further makes a mention that the candidate even did not appear at the time of scrutiny to correct the mis take.
In the circumstances mentioned above we have no hesi tation at all in holding that the Returning Officer was perfectly justified in rejecting the nomination paper of Ramprakash.
[509A C] .
It depends on the facts and circumstances of each case to find as to what mistake in a nomination paper can be considered a mistake of substantial nature.
It is correct that the Returning Officer should not reject a nomination paper merely on a mistake of technical or formal nature, where the identity of the candidate can be ascertained by him on the material made available to him.
He should also give an opportunity to the candidate or his representative present at the time of scrutiny to remove the defect.
Howev er, in case neither the candidate nor his representative be present and without removing such defect in the 505 nomination paper the identity of the candidate cannot be ascertained, then there is no statutory duty cast on the Returning Officer to make a roving enquiry by going through the material placed before him and to remove such defect himself.
[509D F] Lila Krishan vs Mani Ram Godara & Ors., [1985] Suppl.
S.C.RI 592; Dalip Kumar Gon.
vs Durga Prasad Singh, AIR 1974 SC 2343; Amolak Chand vs Raghuveer Singh, ; and Brij Mohan vs Sat Pal, ; , referred to.
|
ivil Appeal No. 1929 of 1990.
619 From the Judgment and Order dated 29.7.1988 of the Central Administrative Tribunal Madras in Transferred Appli cation No. 244 of 1987.
Ambrish Kumar for the Appellant.
Anil Dev Singh, R.B. Misra and Ms. Sushma Suri for the Respondents.
J. Special leave granted.
The workmen of the Ordinance Clothing Factory, Avadi, Madras are represented by the petitioner/appellant Union.
The workers of the factory are divided into two categories, namely, (i) day workers and (ii) piece rated workers.
The day workers are paid wages in the time scale of Rs.260 400 on the basis of their actual attendance whereas the piece rated workers are paid on actual out put or production calculated on the basis of time required for making the item by multiplying the same by the hourly rate worked out by dividing the mean of the time scale by monthly working hours e.g., Rs.330 + 195 hours = Rs.1.69 (Rs.330 being the mean of the time scale of Rs.260 400 and 195 hours being the total monthly hours).
The appellant Union contends that the daily normal working hours of the workmen are 8 during the week except on Saturdays when the working hours are 4 3/4 only.
Thus the total working hours during the week comes to 44 3/4 hours.
If the piece rated workers are required to work beyond the aforesaid normal working hours they are entitled to overtime wages under section 59 of the .
That section, in so far as is relevant, reads as under: "Section 59(1) ' Where a worker works in a factory for more than nine hours in any day or for more than fortyeight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages.
" This sub section postulates payment of extra wages at twice the ordinary rate of wages for those workers of the factory who are required to work for more than 9 hours in a day or for more than 48 hours in a week.
The appellant union filed a Writ Petition No. 2356 of 1985 in the 620 High Court of Madras praying for an appropriate writ or direction to the respondents to pay the piece rated workers extra or overtime wages at the rate prescribed by section 59(1) if the total working hours of any workman exceeded 44 3/4 hours in a week.
The appellant union contended that the piece rate system was introduced sometime in 1963 and since then the piece rate workers were paid overtime wages accordingly for work done beyond the normal working hours but the same was abruptly discontinued from 1983; so much so that they were even denied the wage at the normal rate for work done beyond 44 3/4 hours and upto 48 hours, i.e, 3 1/4 hours.
It is, however, admitted that if the workmen are required to work beyond 48 hours in a week, they are paid extra wages in accordance with section 59(1) of the Facto ries Act.
Thus the controversy is in respect of the rate at which piece rate workers should be paid wages for the work put in between 44 3/4 and 48 hours in a week.
The workers claim they are entitled to extra wages for these 3 V4 hours at double the normal rate in accordance with section 59(1) of the .
In support reliance is placed on the Ministry of Defence letter No. F. 8(5)/56/D(Civ.
II) dated 1st September, 1959 which inter alia provides that in all cases where overtime pay is admissible to civilian person nel, both under the provisions of the and Departmental Rules, the overtime pay should be calculated as under: (i) For work in excess of normal working hours and upto 9 hours on any day or 48 hours in a week, overtime will be paid at the rate prescribed in the departmental rules.
For calculation of overtime pay under this item only basic pay and Dearness allowance shall be taken into account.
(2) For work in excess of 9 hours on any day or 48 hours in a week overtime will be paid at the rates prescribed in the .
For calculating overtime pay under this item total pay including all allowances will be taken into account.
By a subsequently communication dated 13th February, 1963 the Ministry clarified that having regard to the revision of piece work rates effected in the Ordinance Factories co relating them to the monthly scales of pay sanctioned by the Ministry 's letter dated 16th January, 1954, the distinction between High Paid and Low Paid piece workers stood abolished and keeping in mind the Ministry 's letter dated 1st Septem ber, 1959, the President was pleased to sanction the follow ing methods of calculation and payment of overtime to piece rate workers: 621 (i) Piece workers under P & A Regulations Part I 1923.
(a) No overtime will be admissible for working overtime in the day shift.
But for the purposes of distribution of P.W. profits, the time wages element in respect of overtime upto 9 hours per day or 48 hours a week will be determined at the rate of P/200 per hours, where 'P ' represents the monthly basic pay and dearness pay where admissible.
(b) An extra 1/2 hour pay calculated at the hourly rate of 1/200 of the monthly basic pay or the monthly basic pay and dearness pay, where admissible, for every hour of systematic overtime worked on the night shifts in addition to their piece work earnings.
(ii) Piece workers under the For each hour of overtime in excess of 9 hours on any day or 48 hours in a week a piece worker will be 1/200 of the monthly basic pay plus 25% of basic pay plus twice all allowances.
In other words, if 'P ' represents the monthly basic pay and 'D ' stands for all allowances such as dearness allowance, house rent allowance, compensatory (city) allow ance, overtime for each hour will be P/200 + 1/4P/200 +2D/200.
This order was directed to take effect from 1st March, 1954.
Thereafter, by a corrigendum issued on 21st October, 1965, sub paragraph (1) of the Ministry 's letter of 1st September, 1959 was directed to be substituted w.e.f.
2nd July, 1965 by the following: "1.
For work in excess of normal working hours and upto 9 hours on any day or 48 hours in a week, overtime will be paid at the rate prescribed in the departmental rules.
For calculating overtime pay under this item, basic pay, dear ness allowance, special pay, personal pay, pension (to the extent taken into account for the fixation of pay) in the case of re employed pensioner and city compensatory allow ance shall be taken into account.
House Rent Allowance, conveyance allowance, traveling and daily allowances, permanent travelling allowance, clothing allowance, uniform allowance, washing allowance and children education allow ance shall not be included.
" 622 But by a Circular No. 1823/LB dated 2nd February, 1983 it was stated that orders had since been received from the Ordinance Factory Board 'to stop payment of Departmental Overtime when piece workers work beyond normal working hours and upto 9 hours a day or 48 hours a week '.
It was further clarified that they would be entitled to piece work earnings only for the period they work extra hours.
Thus the payment of departmental overtime for January, 1983 in February, 1983 was stopped.
However, with regard to workmen of the Ordi nance Factories and other industrial establishments under the Defence Ministry governed by the , it was laid down by the communication dated 11th September, 1987 that such workmen shall be entitled to overtime allowance at time rate for work done in excess of prescribed hours and upto 48 hours a week, in accordance with Ministry 's O.M. dated 25th June, 1983, but it was clarified that the time rate of wages will be calculated with reference to pay in the revised scale w.e.f.
the date the worker has been brought on the revised scale introduced from 1st January, 1986.
In the light of the above, the appellant union con tends that as the prescribed hours of work were 44 3/4 hours per week, the workmen were entitled to overtime wage or allowance for work done beyond 44 3/4 hours and upto 48 hours a week at double the ordinary rates, which has been wrongly and illegally discontinued.
The case set up by the respondents is that the workers of the petitioner/appellant union are mostly doing tailoring work, stitching uniforms, tents, parachutes, covers etc.
, in the Ordinance Clothing Factory, a Govt.
of India Undertak ing, and are paid wages on piece rate basis.
It is submitted that while fixing the piece work rate the labour involved in the production of each article is analysed in detail and the basic time is determined to which 25% incentive is added and the wage is paid on the basis of time so calculated by taking the arithmatic mean of the scale to which the worker belongs and dividing the same by the figure 195 representing the number of standard hours for a month.
Thus if a piece worker completes his job allotted to him he would earn his basic time wage plus an extra 25% as incentive.
It is fur ther stated that the payment of overtime wages for the work done beyond the normal working hours of 44 3/4 and upto 48 hours in a week is regulated by the Departmental Rules and for the period exceeding 48 hours in a week or 9 hours on a single day is regulated as per the requirements of the .
According to the respondents the Defence Ministry letter of 1st September, 1959 as amended by the corrigendum of 21st October, 1965 does not apply to piece workers but their case in regard to the grant of overtime payment is governed by 623 the Defence Ministry letter dated 13th February, 1983 as amended by the Corrigendum of 18th January, 1970.
In fact the former letters apply to day workers who are paid wages on the basis of attendance.
Thus according to the respondents piece workers are not entitled to overtime wages at double the rate for work done in excess of 44 3/4 hours upto 48 hours in a week because they are entitled to piece work profit in the form of earning which is included in their wage structure itself to compensate them for the extra working hours upto 48 hours in a week.
Yet on account of a mistake such payment was made till December, 1982 but when it came to light the same was discontinued by the Circular letter dated 2nd February, 1983.
This discontinuance was challenged in Writ Petition No. 10095/83 in the Madras High Court which was repelled by Mohan, J. by his order dated 6th December, 1983.
The appeal filed against the decision of Mohan, J. was still pending in the High Court when the proceedings giving rise to this appeal were initiated by this Union.
Lastly it is pointed out that according to the terms of section 59 of the , the question of payment of overtime at double the rate can arise any if the piece worker has worked for more than 9 hours per day or 48 hours per week and not to cases of the present type.
The respondents, therefore, pray that the present appeal is not maintainable and deserves to be dismissed.
In the rejoinder filed on behalf of the appellant union it is contended that the 25% incentive is not to compensate for overtime work beyond 44 3/4 hours and upto 48 hours in a week but is a measure to provide for rest intervals, minor mechanical breakdowns, tools sharpening or grinding or hold ups for want of raw materials, etc., to arrive at the operational time for production of an item.
The appellant, therefore, contends that the contention that the letters dated 1st September, 1959 and 12th October, 1969 applied only to the monthly rated day workers is misconceived.
This is apparent from the subsequent letter dated 13th February, 1963 as amended by the corrigendum of 18th January, 1970.
Therefore, according to the appellants, the contention that piece work profit is incorporated in the wage structure applicable to piece rated workers is not correct and clearly manifests that the discontinuance of overtime is based on a wrong understanding of the relevant orders.
In support strong reliance is placed on this Court 's decision in Union of India vs
G.H. Kokil, Lastly it is contended that the respondents were not justified in abrupt ly discontinuing the grant of overtime wages on the pretext of a so called 'mistake ' and their action in so doing is clearly high handed amounting to unfair labour practice not expected from a governmental 624 undertaking.
It is also contended that the circular letter of 2nd February, 1983 is a document of doubtful origin and can not in any case override the prior orders contained in the letters of the Ministry of Defence earlier referred to.
The appellants, therefore, contend that the impugned deci sion needs to be set aside and the overtime payments which have been unilaterally and arbitrarily discontinued re stored.
From the above resume it is clear that the controversy is limited to the question of non payment of overtime wages for work done beyond the normal hours of 44 3/4 hours and upto 48 hours in a week i.e., for 3 14 hours in a week.
There is no dispute that the workers are paid overtime wages for work done in excess of 9 hours on any day or 48 hours in any week in accordance with section 59 of the .
This section does not provide for overtime wages for work done in excess of the normal working hours and upto 48 hours.
In Kokil 's case (supra) the point for consideration was whether the employees working in the factory of the Indian Security Press, Nasik, were entitled to overtime wages under section 59 of the read with sec tion 70 of the Bombay Shops & Establishments Act, 1948, for the work done beyond the normal working hours.
According to them their normal working hours were 44 per week, they were required to work in excess thereof but they were paid over time wages for the extra hours of work at the basic rates though they were entitled to overtime wages at double the normal rate.
In that case three contentions were raised, viz., (i) since none of the respondents was a 'worker ' under section 2(1) of the , their case was not gov erned by section 59 of the said Act read with section 70 of the Bombay Shops & Establishments Act; (ii) assuming the respondents were entitled to claim the benefit of section 59 read with section 70 as aforesaid even though none of them was a worker, section 59 became inapplicable by virtue of Rule 100 made under section 64 of the ; and (iii) since none of the respondents was a 'workman ' under section 2(s) of the , the application under section 33C(2) thereof was not maintain able.
This Court, on a true interpretation of section 70 of the Bombay Shops & Establishments Act, came to the conclu sion that the non obstante clause found therein made it clear that section 59 would apply and the same non obstante caluse kept out the application of section 64 read with Rule 100.
On the third question this Court confirmed the Labour Court 's finding that the respondents were workmen under the .
In this view of the matter this Court held that the employees were entitled to overtime wages under section 59 of the . 625 Now under the Presidential order of 1st September, 1959 overtime wage was payable 'for work in excess of normal working hours and upto 9 hours on any day or 48 hours in a week ' at the rate prescribed in the departmental rules.
By the subsequent Presidential order of 13th February, 1963 the method of calculation and payment of overtime wage to piece workers was outlined.
Under these orders the day workers are allowed overtime wages for working beyond the normal working hours whereas piece workers are allowed piece work profits as may be earned by them for working beyond normal working hours and upto 48 hours in a week.
This is clear from clause (i) of the letter dated 13th February, 1963.
Even the Manual of Cost Accounting (1986) meant for Ordinance and Ordinance Equipment Factories indicates that in the case of piece workers no separate payment for overtime is permissible under the departmental rules for day shift workers but they are entitled to piece work earnings only.
That is why in the earlier Writ Petition No. 10095 of 1983 filed in the Madras High Court a contention was based on Article 14 of the Constitution that the management was guilty of discrimina tion inasmuch as day workers of day shifts were entitled to overtime wages whereas piece workers were denied the same.
The contention was turned down by Mohan, J. whose decision was challenged in appeal before the High Court which appeal has since been dismissed for default.
It is indeed surpris ing why another Writ Petition No. 2356 of 1985 was filed in the same High Court, notwithstanding the pendency of the said appeal, which writ petition on transfer to the Central Administrative Tribunal came to be disposed of by the im pugned judgment and order.
In fact it is doubtful if this second Writ Petition would have been entertained in view of the earlier decision of Mohan, J. rendered several years back soon after the discontinuance of grant of overtime by the circular letter of 2nd February, 1983 merely because a different union was espousing the cause, since the cause was identical.
The decision of this Court in Kokil 's case is clearly distinguishable on facts.
1n that case there was no dispute that if section 59 of the applied the workers were entitled to overtime wages for work done beyond the normal hours and upto 48 hours.
That would naturally depend on the relevant service rules since section 59 stric to sensu applies to cases of overtime work done beyond 9 hours a day or 48 hours a week.
In the present case the grant of overtime wages for the period in excess of the normal working hours of 44 3/4 per week and upto 48 hours is governed by the relevant departmental rules and section 59(.1) of the comes into play only if a piece worker has worked beyond 9 hours in a day or 48 hours in a week and not otherwise.
Further, piece workers are denied overtime wage for these 3 1/4 hours of work in a week 626 because this factor is taken care of in the calculation of the piece rate.
We are, therefore, of the opinion that the ratio of Kokil 's case has no application to the facts of the present case.
For the above reasons we see no merit in this appeal.
The appeal, therefore, fails and is dismissed.
No order as to costs.
Y. Lal Appeal dis missed.
| IN-Abs | The controversy that requires determination in this appeal is whether piece rated workers are entitled to over time wages for work done beyond the normal hours of 44 3/4 hours and upto 48 hours in a week, i.e. for 3 1/4 hours in a week and the rate at which they should be paid the overtime wages for those hours.
The workers of the Clothing Factory are divided into two categories viz., (i) day workers and (ii) piece rated work ers.
Whereas the day workers are paid wages in the scale of Rs.260 400, on the basis of their actual attendance the piece rated workers are paid on actual output or production calculated on the basis of time required for making the item at an hourly rate to be arrived at in accordance with the formula prescribed for the purpose.
According to the appel lants, the piece rate system was introduced sometime in 1963 and since then the piece rate workers were paid overtime wages accordingly for work done beyond the normal working hours i.e. 44 3/4 hours (8 hours per day other than Satur days when the working hours are 4 3/4 hours), but the same was abruptly stopped from 1983 so much so that they were even denied the wage at the normal rate for work done beyond normal hours and upto 48 hours.
Being dissatisfied, the appellant Union filed a writ petition in the High Court of Madras praying for a suitable direction to the respondents to pay the piece rate workers extra or overtime wages at the rate prescribed by section 59(1) of the Factories Act if the total working hours of any workman exceeded 44 3/4 hours in a week.
The learned Single Judge of the High Court by his order dated 6th December 1983, dismissed the writ petition.
An appeal was preferred by the appellant Union but whilst the said appeal was yet pending disposal by the High Court, the appellant Union filed yet another writ 618 petition in the same High Court, which was later transferred to the Central Administrative Tribunal and which has been disposed of by the Tribunal by the impugned order.
Hence this appeal by the Union after obtaining special leave.
The appeal preferred against the order of the learned single Judge of the High Court was later dismissed for default.
The workers claim that they are entitled to extra wages for these 3 1/4 hours at double the normal rate in accord ance with section 59(1) of the Factories Act whereas the Union denies such liability.
Dismissing the appeal, this Court, HELD: There is no dispute that the workers are paid overtime wages for work done in excess of 9 hours on any day or 48 hours in any week in accordance with section 59 of the Factories Act.
This section does not provide for overtime wages for work done in excess of the normal working hours and upto 48 hours.
[624C] Under the Presidential order of 1st September, 1959, overtime wage was payable for work in excess of normal working hours and upto 9 hours on any day or 48 hours in a week at the rate prescribed in the departmental rules.
By the subsequent Presidential Order of 13th February, 1963, the method of calculation and payment of overtime wage to piece workers was outlined.
Under these orders the day workers are allowed overtime wages for working beyond the normal working hours whereas piece workers are allowed piece work profits as may be earned by them for working beyond normal working hours and upto 48 hours in a week.
[625A B] In the instant case, the grant of overtime wages for the period in excess of the normal working hours of 44 3/4 per week and upto 48 hours is governed by the relevant depart mental rules and Section 59(1) of the Factories Act comes into play only if a piece worker has worked beyond 9 hours in a day or 48 hours in a week and not otherwise.
Further, piece workers are allowed piece work profits as may be earned by them for working beyond normal working hours and upto 48 hours in a week.
[625G H] Union of India vs
G.H. Kokil, , distinguished.
|
vil Appeal Nos.977 & 978 of 1988.
From the Judgment and Order dated 17.12.1987 Tribunal, Bangalore of the Karnataka Administrative in Application No. 4743 of 1986(T).
P.P. Rao, R.B. Datar, S.R. Bhat, P. Chowdhary, P.R Ramasesh and R.P. Wadhwani for the appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are appeals by special leave, the first one by Nagaraja, the main contestant, and the second by the State of Karnataka challenging the decision of the Karnataka State Administrative Tribunal by which the Tribunal accepted the claim of inter se seniority of re spondent No. 1.
In the Directorate of Youth Services of the State, there are posts of Assistant and Deputy Directors.
Appellant Nagaraja joined service under the State Government as a Lecturer on 6.9.1966 and came on deputation as Editor of 'Youth Karnataka ' from 18th of August, 1976.
While working as such Editor he was confirmed as an Assistant Director in the Youth Directorate.
On 27th of March, 1978, Nagaraja was temporarily promoted as the Deputy Director for a period of six months.
On 20th of October, 1978, an order was made promoting 697 Nagaraja regularly as Deputy Director and on 22.12.1978 his appointment was made on regular basis with effect from 27.3.
Gudodagi, respondent No. 1, was recruited directly as Deputy Director on 28.7.1978.
He joined on 7.8.1978 and was confirmed in the said post on 7.8.1980.
The draft Gradation List was published on 25.1.1983 wherein Nagaraja was shown just above Gudodagi.
Accordingly he represented against this placement by claiming seniority over Nagaraja and when that was not accepted and the final Gradation List was published on 14th of December, 1983 maintaining the position shown in the draft list, Gudodagi filed a writ petition before the Karnataka High Court which, on the constitution of the State Administrative Tribunal, was transferred to it.
The Tribunal on heating parties has held that Gudodagi was senior to Nagaraja as the promotion of 27th of March.
1978, in favour of Nagaraja was a temporary measure and after the six months expired, Nagaraja was really not con tinuing as Deputy Director.
The order of December, 1978, could not provide a regular retrospective promotion in view of the special Rules obtaining in the State.
Accordingly, the Tribunal directed re drawing up of the seniority list by showing Nagaraja below Gudodagi.
Thereupon, these two ap peals have been filed one by Nagaraja and the other by State of Karnataka.
The promotional order of 27th March, 1978, read thus: "Pending consultation with the Karnataka Public Service Commission, Shri N. Nagaraja, Assistant Director, Youth Services is temporarily promoted to officiate as Deputy Director, Youth Services in the grade Rs.900 1750 in the Department of Youth Services for a period of six months with immediate effect from the date of taking over charge of the post or until further orders, whichever is earlier." The Tribunal has found that Nagaraja had taken over charge as Deputy Director on 13th of April, 1978, and the six month period had expired on 13th of October, 1978.
His regular promotion was notified on 20th of October, 1978.
Therefore, the Tribunal has not accepted Nagaraja as Deputy Director between 13th of October and 20th of October.
To meet that situation the notification of 22nd December, 1978.
had been made, which read thus: "In continuation of Government Notification . . dated 698 27.3.1978, Sri N. Nagaraja, Assistant Director of Youth Services is regularly promoted to officiate as Deputy Direc tor of Youth Services with effect from 27th March, 1978 (i.e. date from which he was promoted to officiate against the post) . " The Tribunal has found that under Karnataka State Civil Services (Regulation of Promotion, Pay & Pension) Act, 1973, no retrospective promotion is admissible unless the situa tion comes within the various clauses of rule 2.
The in stant case, according to the Tribunal, was not covered by rule 2 and, therefore, the order of 22nd of December, 1978, giving a retrospective promotion from 27.3.1978 was not justified.
Once that notification goes, Gudodagi being a direct recruit from 7.8.1978 would be entitled to seniority.
We have analytically examined the judgment of the Tribu nal with reference to the submissions made at the Bar.
We have also seen the provisions of the 1973 Act, referred to above and see no justification to take a view different from what has been taken by the Tribunal.
From the sequence of events with reference to the dates, an impression is avail able to be formed that attempt was made to place Nagaraja above Gudodagi by making shifting orders between 27.3.1978 and 22.12.1978.
Nagaraja was Editor of Youth Karnataka even when he was confirmed as Assistant Director and the Tribunal has recorded that he never worked as Assistant Director.
Taking the broad aspects of the matter into consideration we are satisfied that the conclusion reached by the Tribunal can not be said to be wrong and, therefore, does not call for any interference.
The appeals are dismissed.
There would be no order as to costs.
N.V.K. Appeals dis missed.
| IN-Abs | The appellant joined service under the State Government as a Lecturer.
Later he was deputed to the Directorate of Youth Services as an Assistant Director and subsequently confirmed in the said post.
On 27th of March, 1978, he was temporarily promoted as Deputy Director for a period of six months, and an order was made on 20th December, 1978 ap pointing him on a regular basis with effect from 27th March, 1978.
Respondent No. 1 was recruited directly as Deputy Director on 28.7.1978, joined service on 7.8.1978 and was confirmed on 7.8.1980.
A draft Gradation List was published on 25th January, 1983 wherein the appellant was shown above respondent No. 1, and he represented against this placement by claiming sen iority over the appellant.
This was not accepted, and a final Gradation List was published on 14th September, 1983 maintaining the position shown in the draft list.
Respondent No. 1 filed a writ petition before the High Court which was transferred to the State Administrative Tribunal.
The Tribunal held that respondent No. 1 was senior to the appellant as the promotion of 27th March, 1978 in favour of the appellant was a temporarily measure and after the six months period expired, the appellant was really not continuing as Deputy Director, and that the order of 20th December, 1978 issued by the Government could not, there fore, provide a regular retrospective promotion in view of the special Rules obtaining in the State.
It therefore, directed the redrawing of the seniority list by showing the appellant below respondent No. 1.
Aggrieved by the aforesaid order of the Tribunal, the appellant as well as the State Government filed appeals to this Court.
696 Dismissing the appeals, this Court, HELD: 1.
The Tribunal has found that under Karnataka State Civil Services (Regulation of Promotion, Pay & Pen sion) Rules 1973 no retrospective promotion is admissible unless the situation comes within the various clauses of rule 2, and that the instant case was not covered by rule 2 and, therefore, the order of 22nd December, 1978 giving a retrospective promotion from 27.3.1978 was not justified.
[698B C] 2.
Attempt was made to place the appellant above re spondent No. 1 by making shifting orders between 27.3.78 and 22.12.1978.
The appellant was Editor of Youth Karnataka even when he was confirmed as Assistant Director and the Tribunal has recorded that he never worked as Assistant Director.
The conclusion reached by the Tribunal cannot be said to be wrong.
Its order, therefore, does not call for any interfer ence.
[698D E]
|
: Criminal Appeal Nos.
375 77 of 1987.
From the Judgment and Order dated 22.10.1984 in the Allahabad High Court in Crl.
A. Nos. 1925, 1808 of 1981 and Government Appeal No. 2599 of 1981.
R.K. Garg, Prith Raj, U.R. Lalit, R.L. Kohli, Shivpujan Singh, Manoj Prashad, Dalveer Bhandari, T. Sridharan (N.P.) and B.S. Chauhan for the appearing parties.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
On 29.5.
1981 at about 8 A.M. a grave rioting took place in the village of Tirro in Varanasi District.
1n the course of the said rioting two persons Mahendra Singh and Virendra Singh deceased Nos. 1 and 2 were killed and Vijay Narain Singh, P.W. 1, Uma Shankar Singh, P.W. 2 and one Kailash Singh 577 received injuries.
In respect of these offences 14 accused were tried under Sections 148 and 302 read with Sec.
149 I.P.C. Chirkut Singh, Accused No. 6 was tried for offence punishable under Section 307 I.P.C. for attempting to commit the murder of P.W. 1 and the remaining accused under Section 307 read with Sec.
149 I.P.C. for causing injuries to Uma Shankar Singh, P.W. 2 and Kailash Singh.
It is alleged that the material prosecution witnesses, deceased persons and the accused belong to the same village.
Since 1972 there have been disputes between these two rival groups.
A number of cases were also pending in the courts.
On the day of occur rence at 8 A.M.P.W. 1 went to his pumping set.
P.W. 2 Uma Shankar Singh and his relation Kailash Singh were also at the pumping set.
Deceased Nos. 1 and 2 were proceeding alongwith the rasta towards the pumping set for taking bath.
When they reached near the Khandhar (old building) of Vijay Pratap Singh Accused No. 5 Lallan Singh exhorted the other accused who were all lying in wait to kill them.
All the 14 accused emerged out of the Khandar.
Out of them Accused Nos. 1, 3, 4 and 6 (accused Nos.
are being referred to as arrayed before the trial court) were armed with guns and the rest were armed with lathis.
They advanced towards deceased Nos. 1 and 2.
Accused No. 1 fired a shot which hit deceased No. 1 and he was immediately also shot at by accused No. 3 Ranjit Singh and he fell down.
In the meanwhile Accused No. 4 Ram Briksh Singh fired at Deceased No. 2 Virendra Singh who fell down and both deceased died on the spot.
The other accused carrying lathis advanced towards P.W. 1 who ducked and escaped unhurt.
Then the lathis wielding accused assaulted P.W. 1 Vijay Narain Singh, P.W. 2 Uma Shankar Singh and Kailash Singh.
P.W. 1 managed to escape and ran away.
The trial court relying on the evidence of P.Ws. 1 and 2, who are the main eye witnesses, convicted all the 14 accused of the offences for which they were charged and the substantial sentence awarded is imprisonment for life under Section 302 I.P.C. read with Section 149 I.P.C.
The convict ed accused preferred appeals.
The State also filed appeal for enhancement of the sentence.
A Division Bench of the Allahabad High Court consisting of Justice Katju and Justice Agrawal heard the appeals.
Justice ' Katju allowed the ap peals filed by the accused and dismissed the appeal filed by the State but the other learned Judge disagreed and dis missed all the appeals concurring with the trial court.
The matter came up before a third Judge Seth, J. He took the view that only such of those accused to whom specific overt acts were attributed could be convicted and the other should be given benefit of doubt.
In that view of the matter he confirmed the convic 578 tion of Accused Nos. 1, 3, 4 and 6 and acquitted the rest of the accused.
Accused Nos. 1, 3, 4 and 6 applied for special leave which was granted by this Court and theft appeals are numbered as Criminal Appeal Nos. 375 77/87 and the State has preferred appeals against the acquittal of the other remaining 10 accused which are numbered as Criminal Appeal Nos. 372 74/87.
It is contended on behalf of the State that the occur rence has taken place in broad day light and merely because the witnesses are interested their evidence cannot be re jected and that the view taken by Justice Seth is incorrect and the view taken by the trial court as well as by Justice Agrawal has to be accepted.
On the other hand, the counsel appearing for the accused submitted that witnesses who were partisans and were highly interested have made omnibus allegations and it is highly dangerous to accept their evidence because there is every likelihood of innocent persons having been falsely implicated.
It is also their further submission that the prosecution has not come forward with the whole truth; and that the origin of the occurrence has been suppressed in as much as injuries to some of the accused persons have not been explained and consequently it must be held that occurrence did not take place in the manner alleged by the prosecution and that under these circumstances the truth from falsehood cannot be separated and therefore, none of the accused could be convicted.
Before we consider these rival contentions some of the facts which are not indispute may be noted.
There was a longstanding rivalry between the two groups.
The time and place of occurrence are not in controversy.
That the two deceased persons died of gun shots injuries also is not in dispute.
P.Ws. 1 and 2 also received injuries during the course of this occurrence.
The prosecution in support of its case examined P.Ws 1 to 11.
P.W. 7 the Doctor examined P.W. 2 at about 11.40 A.M. on the same day and found 10 injuries.
All of them were contusions and he opined that they might have been caused by a blunt object like lathi.
On the same day, he examined P.W. 1 and on his person he found four contusions which could have been caused by Lathis.
The Doctor also examined Kailash Singh, who was not examined as a witness.
and found two contusions.
P.W. 4 another Doctor who conducted postmortem on deceased No. 2 Virendra Singh found two gun shots wounds on the cranial cavity.
Injury No. 1 is an entry wound and injury No. 2 is an exist wound.
Then he conducted the autop sy on the dead body of deceased No. 1.
He found two in juries, the first one is on 579 the left nipple which is an entry wound and injury No. 2 is on the left palm.
On internal examination he found a bullet embedded and the same was recovered.
P.W. 5 is the Investi gating Officer.
After registration of the crime he undertook the investigation, went to the scene of occurrence, held the inquest of the two dead bodies and recorded the statement of the witnesses.
He also found two live cartridges one of 16 bore and another of 12 bore.
P.W. 3 is another eye witness.
He deposed that Accused Nos. 1, 3, 4 and 6 were armed with guns and the other were armed with lathis.
Accused No. 1 fired at the deceased No. 1 and Accused No. 3 also fired at him as a result of which he fell down and when deceased No. 2 tried to move, Accused No. 4 shot at him and deceased No. 2 also fell down.
When P.Ws 1, 2 and Kailash Singh rushed towards the place, accused No. 6 fired at P.W. 1 but he escaped.
Then the lathi wielding persons beat P.Ws 1 and 2 and Kailash Singh.
To the same effect is the evidence of P .Ws 1 and 2 also.
Under Section 3 13 Cr.
P.C. all the circumstances appearing against the accused were put to them.
They in general denied the offence.
However, among them, accused Nos. 6, 7, 8, 9, 11, 13 and 14 admitted their presence at the scene of occurrence.
Accused No. 6 in par ticular stated that P.W. 1 and others armed with guns, spears and lathis tried to do fishing in the pond in which accused No. 6 had a share.
Accused No. 6 and others went to the pond for fishing.
P.W. 1 and other challenged and they chased accused No. 6 and others and accused No. 13 was shot at by P.W. 1 and others and he and accused No. 14 were beaten with lathis and in defence he fired two gun shots hitting deceased Nos. 1 and 2.
He then went to the police station and lodged a report and deposited his gun and that P.W. 1 has falsely implicated him.
As regards this report which is purported to have been given by accused No. 6, P.W. 5 the Investigating Officer was questioned.
He admitted that when he returned to the Police Station on 30th May, 1980 he came to know that, accused No. 6 has surrendered his gun.
He also admitted in the cross examination that the crime was registered on the basis of the report given by Chirkut Singh and the same was also investigating but it appears that no action was taken.
Investigating Officer also admitted that when he saw accused Nos. 13 and 14 he found injuries on them.
The other circumstance strongly relied upon by the defence is that there were gun shots injuries on accused No. 13.
It may be noted that the same has not been explained by the prosecution.
P.W. 7 the Doctor admitted that he examined Accused No. 14 and found on him a skindeep 12" x 2" lacerat ed wound on the left thigh and a wound certificate was issued.
He also admitted that he examined accused No. 13 and he found five tiny abrasions in the area of 4cm x 4cm on outer surface of right thigh just above knee joint and the injured was refer 580 red to the radiologist.
P.W. 7, however, stated that he has not seen the report of the radiologist.
The defence examined Dr. S.K. Singh as D.W. 1.
He deposed that he took the X ray of the right thigh of the accused No. 13 Mahendra Kahar and the report was marked as an exhibit.
He further deposed that the shadows in the X ray go to show that there were 10 radio opaque round shadows and these shadows may very well corre spond to the pallets fired by some fire arms and the same appear to have pierced upto muscles and bone.
His examina tion further showed that the pallets remained embedded in the thigh.
Before the trial court as well as before the High Court, firstly it was contended on behalf of the accused that the eye witnesses are highly interested and therefore, their evidence cannot be accepted and even otherwise they have not come out with the whole truth and the injuries found on two of the accused would go to show that the accused.
acted in fight of self defence.
Relying on the presence of gun shots injuries on accused No. 13 it was strongly contended that the prosecution party have also used fire arms and, there fore, the accused were entitled to the fight of private defence.
The trial court accepted the evidence of all the three witnesses holding that their evidence is consistent and does not suffer from any serious infirmity.
So far as the plea of self defence is concerned, the trial court held that the plea taken by accused No. 6 was to be rejected mainly on the ground that there was no material to show that at the pond the fishing operations were going on.
As regards the presence of injuries on the accused persons, learned Sessions Judge having regard to the nature and size of the injuries found on accused Nos. 13 and 14 took the view that they are simple and that it is not proved that these in juries were received during the occurrence.
Regarding the presence of the alleged gun shots injuries on accused No. 13 he pointed out that the medical evidence is inconclusive on the point whether those injuries were caused at the time when this incident took place.
In the appeal before the High Court, Justice Katju took the view that the theory that the injuries on accused Nos. 13 and 14 were self inflicted cannot be accepted and that the plea taken by accused No. 6 appears to be probable in view of the fact that the bullet found in the dead body of deceased No. 2 was fired by a 16 Bore gun and that as admitted by the Investigating Officer, P.W. 5, it was accused No. 6 only in that area who had a licence for 16 Bore gun which was deposited by him in the police station after the occurrence.
Coming to the injuries found on accused Nos. 13 and 14 Justice Katju took the view that they received injuries during the course of the same occurrence and that the three eye witnesses have not fur nished any explanation regarding those injuries and that these 581 witnesses have falsely implicated some of the accused due to enmity and, therefore, their evidence cannot be relied upon and accordingly ordered total acquittal.
As already men tioned Justice Agrawal, on the other hand, agreed with the trial court completely.
Justice Seth, to whom the case was referred because of the difference of opinion took a third view and convicted only accused Nos. 1, 3, 4 and 6 to whom specifically overt acts were attributed.
Dealing with the plea of self defence Justice Seth held that lacerated injury on accused No. 14 was a simple one and he could have re ceived that even subsequent to the occurrence.
With regard to the gun shots injuries found on accused No. 13 Mahendra Kahar, the learned Judge himself examined accused No. 13 who was present in the Court when the appeal was being heard and found that hard substance were palpable underneath the flesh round about the location of his injury.
In the circumstances it does appear that fire arm shots to exist underneath the location of injury found on the person of accused Mahendra Kahar.
But he ultimately held that in all probability the pallets found in the leg of accused No. 13 Mahendra Kahar must have been there long before the incident, as in the view of the learned Judge it was doubtful that those pallets could have entered the body through the external injuries which are described as tiny abrasions.
Seth, J. accordingly rejected the plea of self defence.
Before we advert to the above contentions it becomes necessary to consider whether the accused No. 13 Mahendra Kahar and accused No. 14 Sant Singh received the injuries during the course of occurrence.
P.W. 7 the Doctor examined accused No. 13 Mahendra Kahar on 30.5.
1980 at about 6 A.M. and he found the following injuries.
Five tiny abrasions in the area of 4cm x 4cm on outer surface of fight thigh just above knee joint.
The injured complained of pain in the right thumb and left forearm.
In respect of injury No. 1 the Doctor advised X ray with a view to ascertain whether or not there were pallets, and pending the same he reserved his opinion.
P.W. 7 also opined that injuries appeared to have been caused within 24 hours preceding the medical examination which correspond to the time of occurrence, namely, 8 A.M. on 29.5.
P.W. 7, however, stated that the X ray report was not shown to him.
The evidence of P.W. 7 makes it clear that accused No. 13 Mahendra Kahar received these injuries during the course of the 582 occurrence.
D.W. 1 is the Doctor who took the X ray.
He deposed that on 5.6.80 he took the X ray of the fight thigh of the undertrial prisoner Mahendra Kahar accused No. 13 and the same is marked as Ex Kha 12.
On the basis of the X ray plate he opined that he noticed 10 radio opaque round shad ows in the injured and they correspond to the pallets fired by some fire arm.
Justice Seth considered the evidence of these two Doctors.
He also examined the accused in the Court and he found that hard substance were palpable underneath the flesh.
As already mentioned he was of the view that these appeared to be pallets but according to him they must have been there long before the incident.
The learned Judge took this view because he was doubtful that those pallets could have entered the body through the external injuries which are described as tiny abrasions.
Having given our careful consideration we are unable to agree with the view taken by Seth, J.P.W. 7 the Doctor 's evidence makes it clear that the external injuries were caused during this occur rence only and underneath the same these pallets were found by the radiologist D.W. 1.
The injuries are not self in flicted.
Therefore, there is no basis whatsoever to presume that the pallets under the flesh must have been there al ready even before this occurrence took place.
As a matter of fact accused No. 13 Mahendra Kahar was referred to the Doctor P.W. 7 since there was an injury.
P.W. 7 having examined him found that there were 10 ' radio opaque round shadows underneath the injury and it was only for that reason he referred the injured to the radiologist and D.W. 1 the radiologist after taking the X ray concluded that under neath the injury pallets discharged from a fire arm were embedded in the flesh.
Therefore, the only view that is possible is that accused No. 13 Mahendra Kahar received gun shot injuries during the course of this occurrence only.
P.W. 7 also examined accused No. 14 Sant Singh on the same day.
He found a skin deep 12 ' x2 ' lacerated wound vertically inflicted on the front and outer surface of left thigh from which blood was oozing and the injured complained of pain.
The Doctor pointed out that the injury was simple and could have been caused by blunt weapon like a lathi.
The injury was also stitched.
It is suggested by the prosecution that this could have been a self inflicted one but again there is no basis for such presumption.
The Investigating Officer said that on finding the injury on him he was sent for medical examination.
As a matter of fact accused No. 6 in his statement under Section 313 stated that accused Nos. 13 and 14 received injuries and he also went to the police station and lodged a report to that effect.
It, therefore, emerges that accused No. 13 received gun shot injuries and accused No. 14 received lacerated injury during the course of the same occurrence and these injuries must have been caused by some member 583 belonging to the prosecution party.
Now the question is whether the prosecution has ex plained these injuries and if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automat ically be rejected, without any further probe.
He placed considerable reliance on some of the judgments of this Court.
In Mohar Rai & Bharath ' Rai vs The State of Bihar, ; , it is observed: "Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabi lised.
Under these circumstances the prosecution had a duty to explain those injuries.
The evidence of Dr. Bishnu Prasad Sinha (P.W. 18) clearly shows that those injuries could not have been self inflicted and further, according to him it was most unlikely that they would have been caused at the instance of the appellants themselves.
Under these circum stances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries.
In our judgment, the failure of the prosecu tion to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the inci dent is not true or at any rate not wholly true.
Further those injuries probabilise the plea taken by the appellants.
" In another important case Lakshmi Singh and Ors.
vs State of Bihar, , after referring to the ratio laid down in Mohar Rai 's case, this Court observed: "Where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is un true; and that the injuries probabilise the plea taken by the appellants.
It was further observed that: "In a murder case, the non explanation of the injuries sustained by the accused at about the time of the occur 584 rence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable.
(3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
" Relying on these two cases the learned counsel for the defence contended that in the instant case the prosecution has failed to explain the injuries on the two accused and the genesis and the origin of the occurrence have been suppressed and a true version has not been presented before the Court and consequently the truth from falsehood cannot be separated and consequently the entire prosecution case must be rejected.
We are unable to agree.
In Mohar Rai 's case it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true.
Likewise in Lakshmi Singh 's case also it is observed that any non expla nation of the injuries on the accused by the prosecution may affect the prosecution case.
But such a non explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution.
But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case.
Much depends on the facts and circumstances of each case.
In the instant case, the trial court as well as the two learned Judges of the High Court accepted the prosecu tion case as put forward by P.Ws 1 to 3 in their evidence.
The presence of these three witnesses could not be doubted at all.
P.Ws 1 and 585 2 are the injured witnesses and P.W. 1 gave a report giving all the details.
However, he attributed specific overt acts to accused Nos. 1, 3, 4 and 6 and made an omnibus allegation against the remaining accused.
It is for this reason that Justice Seth found it to be safe to convict only accused Nos. 1, 3, 4 and 6 who are the appellants before us.
P.Ws 1, 2 and 3 are the eye witnesses.
We have carefully considered their evidence and nothing material is elicited in the cross examination which renders their evidence wholly untrustwor thy.
No doubt they have not explained the injuries found on accused Nos. 13 and 14.
From this alone it cannot be said that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented a true ver sion.
Though they are interested, we find that their evi dence is clear, cogent and convincing.
The only reasonable inference that can be drawn is that the two accused persons received the injuries during the course of the occurrence which were inflicted on them by some members of the prosecu tion party.
As discussed above we are satisfied in this case that nonexplanation of injuries on these two accused persons does not affect the prosecution case as a whole but in a case of this nature what all that the defence can contend on the basis of non explanation of injuries found on these two accused is that the accused could have had a right of pri vate defence or at any rate a reasonable doubt arises in this regard.
The learned counsel for the defence, however, submits that if for any reason the prosecution case in its entirety is not rejected because of the non explanation of the in juries found on these two accused, yet the right of private defence of the accused cannot be denied and that on that score also these four convicted accused are entitled to an acquittal.
It is also their submission that a careful exami nation of the provisions of Sections 96, 99 and 102 I.P.C. would show that on a reasonable apprehension of grievous hurt or death the accused had a right even to the extent of causing the death of the assailants and they cannot be expected to modulate this right in such a situation and that in the instant case these four appellants were justified even to the extent of causing death of the two deceased by inflicting gun shot wounds.
In this ' context it is also submitted that the plea taken by accused No. 6, Chirkut Singh that he shot at the two deceased persons in self defence cannot be brushed aside.
We should at this juncture point out that the plea taken by accused No. 6, Chirkut Singh does not commend itself.
The same 586 appears to be an after thought.
The observation report and other circumstances in the case would show that there were no fishing operations in the pond.
Therefore, the plea of accused No. 6, Chirkut Singh that fishing operations were going on in the pond and that he and some of the other accused went there and that was the genesis and the origin of the occurrence, has no basis whatsoever.
On the other hand, the evidence of the eye witnesses regarding the time, place and manner of occurrence in general, as put forward by the prosecution, cannot be doubted at all.
We shall now consider the submission whether the accused had the right of self defence.
Learned counsel for the State contended that if the accused want to claim the benefit of the general or special exception of the right of private defence then they should plead and discharge the burden by establishing that they are entitled to the benefit of excep tion as provided under Section 105 of the Evidence Act.
In other words, the submission is that the burden of proof of the existence of such a right is on the accused and that in the instant case the accused have not discharged the burden and that mere presence of simple injuries on the accused cannot necessarily lead to an inference that they had a right of self defence.
We have already held that having regard to the facts and circumstances of the case, mere non explanation of these injuries by the prosecution cannot render the whole case unacceptable.
We have also held that those injuries on one of the accused No. 13, Mahendra Kahar were inflicted by a fire arm during the same occurrence.
Under these circumstances, the important question that we have to consider is whether the accused should be denied the benefit of an exception on the ground that the accused have not discharged the necessary burden of establishing their right to the benefit of the exception beyond all reasonable doubt just like the prosecution is bound under Section 102 of the Evidence Act, or if upon a consideration of the evidence as a whole and the surrounding facts and circum stances of the case, a reasonable doubt is created in the mind of the court about the existence of such a right wheth er the accused, in such a situation, is entitled to the benefit of the said exception, i.e. the right of private defence.
If so, whether they have exceeded the same? The nature and extent of the burden that the accused has to discharge under Section 105 of the Evidence Act has been one of questions of great general importance and for consid erable time the opinions of the Courts were not uniform.
As a matter of fact, in Partap vs State of U.P., ; , this Court noted "that the question 587 of law that arises here seems to have troubled several High Courts.
" The phrase "burden of proof" is not defined in the Act.
In respect of criminal cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts.
This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
Section 105 of the Evidence Act is in the following terms: "When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
" The Section to some extent places the onus of proving any exception in a penal statute on the accused.
The burden of proving the existence of circumstances bringing the case within the exceptions mentioned therein is upon him.
The Section further lays down that the Court shall presume non existence of circumstances bringing the case within an exception.
" The words "the burden of proving the existence of circumstances" occuring in the Section are very signifi cant.
It is wellsettled that "this burden" which rests on the accused does not absolve the prosecution from discharg ing its initial burden of establishing the case beyond all reasonable doubts.
It is also well settled that the accused need not set up a specific plea of his offence and adduce evidence.
That being so the question is: what is the nature of burden that lies on the accused under Section 105 if benefit of the general exception of private defence is claimed and how it can be discharged? In Woolmington vs The Director of Public Prosecutions, [1935] Appeal Cases 462, Viscount Sankey, L.C. observed: "When evidence of death and malice has been given (this is a question for the jury), the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked.
If the jury are either satisfied with his explanation or, upon a review of all, the evidence are left in reasonable doubt whether, even if his explanation be not accepted, ' the act was unintentional or 588 provoked, the prisoner is entitled to be acquitted.
" It is further observed: "Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt.
In either case, he is enti tled to the benefit of the doubt.
But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence .
Through out the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner 's guilt subject to what I have already said as to the defence of insanity and subject also to any stationary exception.
If, at the end of and on the whole of the case, there is reasonable doubt created by the evidence given by either the prosecution or the prisoner as to wheth er the prisoner killed the deceased with a malicious inten tion, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
No matter what the charge or where the trial, the principle that the prosecu tion must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
" Emperor vs
U. Dampala, AIR 1937 Rangoon 83 a full Bench of the Rangoon High Court following the Woolmington 's case held that the ratio therein is not in any way inconsistent with the law in British India, and that indeed the princi ples there laid down from valuable guide to the correct interpretation of Section 105 of the Evidence Act and the full Bench laid down that even if the evidence adduced by the accused fails to prove the existence of circumstances bringing the case within the exception or exceptions plead ed, the accused is entitled to be acquitted if upon a con sideration of the evidence as a whole the court is left in a state of reasonable doubt as to whether the accused is or is not entitled to the benefit of the exception pleaded.
We have noticed that Section 105 requires that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions or special exception or proviso contained in any pan of the Penal Code is 589 on him and the Court shall presume the absence of such circumstances.
This presumption is rebuttable.
In Parbhoo and Ors.
vs Emperor, AIR 1941 Allahabad 402, a Full Bench of seven Judges considered the scope of Sections 102 and 105 of the Evidence Act.
The majority agreed with the view taken by the Full Bench in Dampala 's case.
In Parbhoo 's case Bajpai, J. in his concurring judgment observed that Section 105 is stated in two forms, that of a rule as to the burden of proof and that of a presumption and that the burden of proving the guilt of the accused always rests on the prose cution and never: shifts and the learned Judge further held that the doubt cast in connection with the right of private defence must be a reasonable doubt and if there is such a reasonable doubt, it casts a doubt on the entire case of the prosecution and that the result is that the accused gets a benefit of doubt.
"The presumption laid down in Section 105 of the Evidence Act might come into play but it does not follow therefrom that the accused must be convicted even when the reasonable doubt under the plea of the right of private defence or under any other plea contained in the general or special exceptions pervades the whole case.
" In Dampala 's case Dunkley, J. while concurring with the majori ty view after discussing the law on the subject observed: "The conclusion therefore is that if the Court either is satisfied from the examination of the accused and the evi dence adduced by him, or from the circumstances appearing from the prosecution evidence, that the existence of circum stances bringing the case within the exception or exceptions pleaded has been proved, or upon a review of all the evi dence is left in reasonable doubt whether such circumstances had existed or not, the accused in the case of a general exception is entitled to be acquitted, or, in the case of a special exception, can be convicted of a minor offence." This case has been followed subsequently by a number of High Courts.
In K.M. Nanavati vs State of Maharashtra, [1962] Suppl.
1 SCR 567 it is observed that: "In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution ' to prove 'the guilt of the accused.
But when an accused relies upon the General Excep tions in the Indian Penal Code or on any special 590 exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presump tion.
Under that Section the Courts shall presume the ab sence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the nonexistence of such circumstances as proved till they are disproved.
This presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecu tion or by the combined effect of such circumstances and the evidence adduced by the accused.
But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients, of the offence with which the accused is charged; that burden never shifts.
The alleged conflict between the general burden which lies on the prose cution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary then real.
Indeed, there is no conflict at all." In Dahyabhai Chhaganbhai Thakkar vs State of Gujarat, ; it is observed: "It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt.
The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Penal Code.
The general burden never shifts and it always rests on the prosecution.
But, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the exception lies on the accused; and the Court shah presume the absence of such circumstances.
Under Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 4 thereof, the Court 591 shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed Or their existence was so probable that a prudent man ought, under the circum stances of the particular case, to act upon the supposition that they did exist.
To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the Court suffi cient to make it consider the existence of the said Circum stances so probable that a prudent man would act upon them.
The accused has to satisfy the standard of a "prudent man".
If the material placed before the Court such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfied the test of "prudent man", the accused will have discharged his burden.
The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasona ble doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself.
It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the Penal Code.
" A careful reading of these two decisions would reveal that the statement of law therein neither expressly or impliedly overrules or is in conflict with the majority view in Parb hoo 's case.
However, in Rishi Kesh Singh & Ors.
vs The State, AIR 1970 Allahabad 51, the question that came up for consideration before a Larger Bench consisting of nine Judges was whether the dictum in Parbhoo 's case is still a good law on the ground that some of the decisions of the Supreme Court have cast a cloud of doubt.
A majority of seven Judges approved the principle laid down in Parbhoo 's case.
The Larger Bench also referred to various subsequent decisions of the Supreme Court also including the Nanavati 's case; Bhikari vs State of Uttar Pradesh, ; and Dahyabhai 's case, Beg, J., as he then was, in a separate but concurring judgment after referring to the Nanavati 's case; Bhikari 's ease; Dahyabhai 's case and Mohar Rai & Bharath Rai 's case, held that there is no conflict between what was held by the Supreme Court and the majority view taken in Parbhoo 's case.
After analysing the view expressed by the Surpeme Court in the several above mentioned decisions, Beg, J. observed: 592 "After a close scrutiny of every part of each of the seven opinions in Parbhoo 's case [1941] All LJ 619=AIR 1941 All 402 (FB).
I have come to the conclusion that the majority of their Lordships did not lay down anything beyond three important propositions which, if not either directly or indirectly supported by decisions of their Lordships of the Supreme Court have not been affected in the slightest degree by these decisions.
These propositions are; firstly, that no evidence appearing in the case to support the exception pleaded by the accused can be excluded altogether from consideration on the ground that the accused has not proved.
his plea fully; secondly, that the obligatory .presumption at.the end of Sec. 105 is necessarily lifted at least when there is enough evidence on record to justify giving the benefit of doubt to the accused on the question whether he is guilty of the offence with which he is charged; and, thirdly, if the doubt, though raised due to evidence in support of the exception pleaded, is reasonable and affects an ingredient of the offence with which the accused is charged, the accused would be entitled to an acquittal.
As I read the answer of the majority in Parbhoo 's case [1941] All LJ 619=AIR 1941 All 402 (FB).
I find it based on these three propositions which provide the ratio decidendi and this is all that needs t6 be clarified.
" "The practical result of the three propositions stated above is that an accused 's plea or an exception may reach one of three not sharply demarcated stages, one succeeding the other, depending upon the effect of the whole evidence in the case judged by the standard Of a prudent man weighing or balancing probabilities carefully.
These stages are; first ly, a lifting of the initial obligatory presumption given at the end of Sec. 105 of the Act; secondly the creation of a reasonable doubt about the existence of an ingredient of the offence; and thirdly, a complete proof of the exception by "a preponderance of probability", which covers even a slight tilt of the balance of probability in favour .of the ac cused 's plea.
The accused is not entitled to an acquittal if his plea does not get beyond the first stage.
At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt.
At the third stage, he is undoubtedly entitled to an acquittal.
This, in my opinion, is the effect of the majority view in Parbhoo 's case which directly re lates 593 tO first two stages only.
The Supreme Court decisions have considered the last two stages so far, but the first stage has not yet been dealt with directly or separately there in any case brought to our notice.
" Mathur, J., with whom five Judges agreed, while holding that ratio laid down by the majority in Parbhoo 's case is in conformity with law, however, observed that the reasoning in support of the conclusions is erroneous.
Beg, J. was not prepared to go to that extent.
The majority speaking through Shri Mathut, J. laid ' down that the dictum in Parbhoo 's case which is still a good law, can, however, be modified as follows: "In a case in which any General Exception in the Indian Penal Code, or any special exception or proviso contained in another part of the same Code, or in any law defining the offence, is pleaded or raised by an accused persons and the evidence led in support of such plea, judged by the test of the preponderance of probability, as in a civil proceeding, fails to displace the presumption arising from Section 105 of the Evidence Act, in other words, to disprove the absence of circumstances bringing the case within the said excep tion; but upon a consideration of the evidence as a whole, including the evidence given in support of the plea based on the said exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more the ingre dients of the offence, the accused person shall be entitled to the benefit of the reasonable doubt as to his guilt and hence to acquittal of the said offence." Learned counsel for the State, however, submitted that if the view taken by the Allahabad High Court is to be accepted then it would amount to throwing the burden on the prosecution not only to establish the guilt of the accused beyond all reasonable doubt but also that the accused is not entitled to benefit of any exception and if such a principle is laid down then Section 105 of the Evidence Act would be rendered otiose and there would be inconsistency between Sections 102 ' and 105.
This very question has been answered by the Supreme Court in Nanavati 's case and it has been held that the general burden of proving the ingredients of the offence is always on the prosecution but the burden of proving the circumstances attracting the exception lies on the accused.
But the failure on the part of the accused to establish all the circumstances bringing his case under the exception 594 does not absolve the prosecution to prove the ingredients of the offence and the evidence relied upon by the accused in support of his claim for the benefit of the exception though insufficient to establish the exception may be sufficient to negative one or other of the ingredients of the offence and thus throw a reasonable doubt on the essential ingredients of the offence of murder.
The accused for the purpose of discharging this burden under Section 105 can rely also on the probabilities.
As observed in Dahyabhai 's case "the accused will have to rebut the presumption that such circum stances did not exist" by placing material before the court which satisfies the standard of a prudent man and the mate rial may consist of oral and documentary evidence, presump tions, admissions or even the prosecution evidence and the material so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself.
Therefore there is no such infirmity in the view taken in these cases about the scope and effect of Sections 102 and 105 of the Evidence Act.
We have not come across any case of the Supreme Court where the ratio laid down in Parbhoo 's case and which was subsequently approved by a larger Bench in Rishi Kesh Singh 's case has been considered comprehensively.
However, in Behram Khurshed Pesikaka vs The State of Bombay, [1955] 1 SCR 6 13 there is a specific reference to Parbhoo 's case and Woolmington 's case while considering the scope and the manner of the expression 'burden of proof ', in the judgment of Hon ' Venkatarama Ayyar, J.
But the learned Judge was not prepared to go into this question in an appeal under Article 136 but only noted that the Bombay High Court in Government of Bombay vs Sakur, AIR 1947 Bombay 38 has taken a different view.
In State of U.P.v. Ram Swarup; , a Bench consisting of M.H. Beg, J., as he then was, Y.V. Chandrachud and V.R. Krishna lyer, JJ., while considering the right of private defence put forward by the accused to some extent went into the question of burden of proof under Section 105 and a reference is made to a decision of the larger Bench in Rishi Kesh Singh 's case.
Chandrachud, J. who spoke for the Bench, observed thus: "The judgment in Rishikesh Singh vs State, AIR 1970 All 51 explains the true nature and effect of the different types 595 of presumptions arising under Section 105 of the Evidence Act.
As stated is that judgment, while the initial presump tion regarding the absence of circumstances bringing the case within an exception may be met by showing the existence of appropriate facts, the burden to establish a plea of private defence by a balance of probabilities is a more difficult burden to discharge.
The judgment points out that despite this position there may be cases where, though the plea of private defence is not established by an accused on a balance of probabilities, yet the totality of facts and circumstances may still throw a reasonable doubt on the existence of "mensrea" which normally is an essential ingre dient of an offence.
The present is not a case of this latter kind.
" We may also refer to a judgment of a Bench of three Judges consisting of M.H. Beg, P.N. Bhagwati and R.S. Sarkaria, JJ.
in Partap 's case.
Sarkaria, J. speaking for himself and Bhagwati, J. observed: "We have carefully scrutinised the judgments of the courts below.
In our opinion, their finding in regard to the plea of self defence is clearly erroneous.
They appear to have overlooked the distinction between the nature of burden that rests on an accused under Sec.
105, Evidence Act to estab lish a plea of self defence and the one cast on the prosecu tion by Section 101 to prove its case.
It is wellsettled that the burden on the accused is not as onerous as that which lies on the prosecution.
While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere pre ponderance of probability.
" Beg, J., however in a separate judgment felt a doubt about the veracity of the defence case and the evidence found in support of it to be able to hold that it is proved on a balance of probabilities.
But in his view what transpires from a consideration of the whole evidence is enough to entitle the accused to a benefit of doubt.
Beg, J. referred to the judgments of the Full Bench in Parbhoo 's case; Nana vati 's case and the larger Bench decision in Rishi Kesh Singh 's case and applying the principles of benefit of doubt laid in the above three cases to the facts of the case before them observed: "Applying the principle of benefit of doubt as I had exp 596 lained above, to the plea of private defence of person in the instant case.
I think that, even if the appellant did not fully establish his plea, yet, there is sufficient evidence, both direct and circumstantial, to justify the finding that the prosecution has not established its case beyond reasonable doubt against Partap on an essential ingredient of the offence of murder; the required mensrea.
After examining all the facts and circumstances revealed by the prosecution evidence itself and the defence evidence and considering the effect of non production of the better evidence available which, for some unexplained reason, was not produced.
I am not satisfied that the plea of private defence of person can be reasonably ruled out here.
This is enough, in my opinion, to entitle the appellant to get the benefit of doubt. ' ' In Mohd. Ramzani vs State of Delhi, AIR 1980 SC 134 1 Sar karia, J., who spoke for the Bench, observed that the onus which rests on the accused person under Section 105, Evi dence Act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prose cution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt.
There fore, the contrary view taken by the Bombay High Court in Sakur 's case and in State vs Bhima Devraj, AIR 1956 Sau. 77 that the burden is entirely on the accused to establish that he is entitled to the benefit of the exception, does not lay down the correct law.
At this stage it becomes necessary to consider the meaning of the words "the Court shall presume the absence of such circumstances" occurring in Section 105 of the Evidence Act.
Section 4 of the Act explains the meaning of the term "shall presume" as to mean that the Court shall regard the fact as proved unless and until it is disproved. 'From a combined reading of these two Sections it may be inferred that where the existence of circumstances bringing the case within the exception is pleaded or is raised the Court shall presume the absence of such circumstances as proved unless and until it is disproved.
In Section 3 of the Act meaning of the terms "proved", "disproved" and "not proved" are given.
As per this provision, 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.
A fact is said to be "disproved" when, after consid ering the matters before it, the Court either believes 597 that it does not exist, or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
A fact is said to be "not proved" when it is neither "proved" nor "disproved.
" The first part of Section 105 as noted above lays down that when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the exceptions or proviso is on him and the latter part of it lays down that the Court shall presume the absence of such circumstances.
In a given case the accused may discharge the burden by expressly proving the existence of such circumstances, thereby he is able to disprove the absence of circumstances also.
But where he is unable to discharge the burden by expressly proving the existence of such circumstances or he is unable to disprove the absence of such circumstances, then the case would fall in the category of "not proved" and the Court may presume the absence of such circumstances.
In this background we have to examine the meaning of the words "the Court shall presume the absence of such circumstances" bearing in mind the general principle of criminal jurisprudence that the prose cution has to prove its case beyond all reasonable doubt and the benefit of every reasonable doubt should go to the accused.
It will be useful to refer to some of the passages from the text books of outstanding authors on evidence and then proceed to consider the ratio laid down by the Supreme Court cases on this aspect.
In Phipson on Evidence, 13th edn.
page 44, a passage reads as follows: "The burden is upon the prosecution of proving a defendant 's guilt beyond reasonable doubt before he is convicted.
Even where the evidential burden shifts to the defendant the burden of establishing proof beyond reasonable doubt remains upon the prosecution and never changes.
If on the whole case the jury have such a doubt the defendant is entitled to be acquitted." Another passage at page 48 reads as follows: ' "In criminal cases the prosecution discharge their eviden tial burden by adducing sufficient evidence to raise a prima facie case against the accused.
If no evidence is called for the defence the tribunal of fact must decide whether the prosecution has succeeded in discharging its persuasive 598 burden by proving its case beyond a reasonable doubt.
In the absence of any defence evidence, the chances that the prose cution has so succeeded fare greater.
Hence the accused may be said to be under an evidential burden if the prosecution has established a prima facie case.
Discharge of the eviden tial burden by defence is not a pre requisite to an acquit tal.
The accused is entitled to be acquitted if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner . .No matter what the charge . . the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be enter tained.
XX XX XX XX XX XX In many cases, however, the accused 's defence will involve introducing new issues, for example, automatism, provoca tion, self defence, duress, etc.
Once there is any evidence to support such "explanations" the onus of disproving them rests upon the prosecution.
The accused, either by cross examination of the prosecution witnesses or by evidence called on his behalf or by a combination of the two, must place before the court such material as makes the defence a live issue fit and proper to be left to the jury.
But once he has succeeded in doing this and thereby discharged his evidential burden it is then for the Crown to destroy that defence in such a manner as to leave in the jury 's minds no reasonable doubt that the accused cannot be absolved on the grounds of the alleged facts constituting the defence.
" Dealing with the presumptions of law, the author has noted on page 60, thus: "Generally in criminal cases (unless otherwise directed by statute and subject to 4 15 ante) the presumption of inno cence casts on the prosecutor the burden of proving every ingredient of the offence, even though negative averments be involved therein.
Thus, in cases of murder, the burden 599 of proving death as a result of a voluntary act of the accused and malice on his part is on the prosecution.
On charges of rape, etc.
the burden of proving non consent by the prosecutrix is on the prosecution and in bigamy, that of proving the defendant 's knowledge that his or her spouse was alive within the seven years last past." Wigmore on evidence, dealing with the "Legal Effect of a presumption" (3rd ed., Vol.
IX p. 289) explains: "It must be kept in mind that the peculiar effect of a presumption 'of law ' (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion 'in the absence of evidence to the contrary ' from the opponent.
If the opponent does offer evidence to the contrary (sufficient to satisfy the Judge 's requirement of some evidence), the presumption disappears as a rule of Taylor in his 'Treatise on the Law of Evidence ' ( 12th Edn.
1 page 259) points out: "On the two fold ground that a prosecutor must prove every fact necessary to substantiate his charge against a prison er, and that the law will presume innocence in the absence of convincing evidence to the contrary, the burden of proof, unless shifted by legislative interference, will fall in criminal proceedings on the prosecuting party, though, to convict, he must necessarily have recourse to negative evidence.
Thus, if a statute, in the direct description of an offence, and not by way of proviso (a), contain negative matter, the indictment or information must also contain a negative allegation, which must in general be supported by prima facie evidence.
" Dealing with the presumptions, the author says: "The proper direction as to onus of proof where prima facie evidence has been given on the part of the prosecution which, if unanswered, would raise a presumption upon which the jury might be justified in finding a verdict of guilty, and the defendant has called evidence to rebut that presump tion, is that if they accepted the explanation given 600 by and on behalf of the prisoner, or if that explanation raised in their minds a reasonable doubt as to his guilt, they should acquit him as the onus of proof that he was guilty still lay upon the prosecution.
If upon the whole evidence the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which lies upon them.
" It is held in Nanavati 's case that under Section 105 of the act the Court shall presume the absence of circumstances bringing the case within any of the exceptions, i.e. the Court shall regard the non existence of such circumstances as proved till they are disproved, but this presumption can be rebutted by the accused by introducing evidence to sup port his plea of accident in the circumstances mentioned therein.
This presumption may also be rebutted by admissions made or circumstances elicited from the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused.
Dealing with the ingredients of the offence to be proved by the prosecution and the burden to be discharged under Section 105 of the Evidence Act by the accused and a reasonable doubt that may arise on the basis of such rebuttal evidence by the accused, it is observed: "An illustration may bring out the meaning.
The prosecution has to prove that the accused shot dead the deceased inten tionally and thereby committed the offence of murder within the meaning of section 300 of the Indian Penal Code; the prosecu tion has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentional ly shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution, the accused against whom a presumption is drawn under section 105 of the Evidence Act that the shooting was not by accident in the circumstances men tioned in section 80 of the Indian Penal Code, may adduce evi dence to rebut that presumption.
That evidence may not be sufficient to prove all the ingredients of section 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertance, i.e. it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of section 300 Indian Penal Code.
or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder.
In that event, though the accused failed to bring his case 601 within the terms of section 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused.
In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused.
The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence.
" In Dahyabhai 's case as already noted, the relevant portion reads thus: "The evidence so placed may not be sufficient to discharge the burden under section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself.
It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in section 299 of the Penal Code.
" The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence.in criminal cases.
Section 105 places 'burden of proof ' on the accused in the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable.
Therefore, taking the Section as a whole the 'burden of proof ' and the presumption have to be considered together.
It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises.
But where the accused introduces material to dis place the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt.
The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised.
More so when there are circumstances on the record (gathered from the prosecution evidence, chief and cross examinations, pro 602 babilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence.
In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused.
The accused may also show on the basis of the material a prepon derance of probability in favour of his plea.
If there are absolutely no circumstances at all in favour of the exist ence of such an exception then the rest of the enquiry does not arise inspite of a mere plea being raised.
But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal.
From what has been discussed above it emerges that the presumption regarding the absence of existence of circum stances regarding the exception can be rebutted by the accused by introducing evidence in any one of the manners mentioned above.
If from such a rebuttal, a reasonable doubt arises regarding his guilt, the accused should get the benefit of the same.
Such a reasonable doubt consequently negatives one or more of the ingredients of the offence charged, for instance, from such a rebuttal evidence, a reasonable doubt arises about the right of private defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence.
In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section 105 of the Evidence Act should necessarily go to the accused.
It can be argued that the concept of 'reasonable doubt ' is vague in nature and the standard of 'burden of proof ' contemplated under Section/05 should be somewhat specific, therefore, it is difficult to reconcile both.
But the gener al principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reason able doubt, are to be borne in mind.
The 'reasonable doubt ' is one which occurs to a prudent and reasonable man.
Section 3 while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of proof, namely, about the existence or nonexistence of the circumstances from the point of view of a prudent man.
The Section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, "believe it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assump 603 tion of its existence.
The Act while adopting the require ment of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability.
It is this degree of cer tainty to be arrived where the circumstances before a fact can be said to be proved.
A fact is said to be disproved when the Court believes that it does not exist or considers its non existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved.
It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal dis putes.
It is something different from moral conviction and it is also different from a suspicion.
It is the result of a process of keen examination of the entire material on record by 'a prudent man '.
There is a difference between a flimsy or fantastic plea which is to be rejected altogether.
But a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version indirectly succeeds.
The doubt which the law contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent, drowsy or confused mind.
It must be the doubt of the prudent man who assumed to possess the capacity to "separate the chaff from the grain".
It is the doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstances of the case appearing from the evidence.
It is not a doubt which occurs to a wavering mind.
Lord Denning, J. in Miller vs Minister of Pensions, while examining the degree of proof required in criminal cases stated: "That degree is well settled.
It need not reach certainty but it must reach a high degree of probability.
Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.
If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course, it is possible but not in the least probable", the case is proved beyond rea sonable doubt.
" Regarding the concept of benefit of reasonable doubt Lord Du Paraq, in another context observed thus: 604 "All that the principle enjoins is a reasonable scepticism, not an obdurate persistence in disbelief.
It does not demand from the Judge a resolute and impenetrable incredulity.
He is never required to close his mind to the truth.
" Now, let us examine the types of cases to which these principles underlined under Section 105 can be applied and to what extent? The Section deals with the burden of proof in respect of the general exceptions, special exceptions and proviso contained in the Penal Code or in any part of the same code, or in any law defining the offence.
It is already noted that the doctrine of burden of proof has to be the general law and the same remains always upon the prosecu tion.
However, in respect of the cases where the statute wholly places the burden of proof on the accused himself, then the burden is more onerous on him.
As already noted in Rishi Kesh Singh 's case Mathur, J. speaking for the majori ty, while affirming the view taken in Parbhoo 's case ob served that in a case where any such exception is pleaded and the evidence led in support of such plea, judged by the test of preponderance of probability, fails to displace the presumption arising from Section 105 of the Evidence Act; yet if upon a consideration of the evidence as a whole including the evidence led in support of plea of exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more of the ingredients of the offence, the accused shall be entitled to the benefit of the reasonable doubt as to his guilt.
In C.S.D. Swami vs The State, ; the character of a presumption of guilt under Section 5 of the Prevention of Corruption Act from proof.of certain facts "unless the contrary is proved" was considered and it was held there that the exception laid down by statute was "a complete departure from the estab lished principle of the criminal jurisprudence that the burden always lies upon the prosecution to prove all the ingredients of the offence charged and that the burden never shifts on to the accused to disprove his guilt.
" V.D. Jhin gan vs State of U.P.; , also is a case deal ing with the presumption under Section 4 of the Prevention of Corruption Act under which the accused was under an obligation to disprove his guilt by adducing such evidence by which the preponderance of probabilities prove the de fence case.
An examination of these cases would reveal that the statutory exception which modifies the operation of the general principle that the prosecution must prove all ingre dients of the offence with which the accused is charged, to some extent stands on a different 605 However, Beg, J. in his separate judgment, in Rishi Kesh Singh 's case observed thus: "It covers every tilt or preponderance of the balance of probability whether slight or overwhelming.
In fact, the dividing line between a case of mere "preponderance of probability" by a slight tilt only of the balance of proba bility and a case of reasonable doubt is very thin indeed although it is there.
A case of reasonable doubt which must necessarily be one of which, on a balancing of probabili ties, two views are possible.
What may appear to one reason able individual to be a case not fully proved may appear.to another to be so proved on a balancing of probabilities.
Such a case and only such a case would, in my opinion, be one of reasonable doubt.
A mere preponderance of probability in favour of the exception pleaded by an accused would, however, constitute a "complete" proof of the exception for the accused but a state of reasonable doubt would not.
" Somewhat to the same effect are the observations made by the Supreme Court in Harbhajan Singh vs State of Punjab, ; After citing Woolmington 's case it is therein held that "The principle of common law is part of the crimi nal law of the country.
That is not to say that if an excep tion is pleaded by an accused person he is not required to.
justify his plea; but the degree and character of proof which the accused is expected to support his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case.
The onus on the accused may well be compared to the onus on a party in civil proceedings; just as in civil proceedings the ' Court which tries an issue makes its decision by adopt ing the test of probabilities, So must a criminal court hold the ' plea made by the accused proved, if a preponderance of probability is established by the evidence led by him.
" It can thus be seen that there is a dividing line between a case of the accused discharging the burden by preponderance of probabilities which is equated to proof of the exception and a state of reasonable doubt that arises on a considera tion of the evidence and facts and circumstances as a whole, as regards one or more of the ingredients of the offence.
Therefore, in a case where the prosecution has discharged.
its burden and where the accused pleads exception and if there is some evidence to support that plea the obligatory presumption under Section 105 is lifted and the accused may proceed further and establish his plea by a preponderance 606 of probabilities or he may carry his plea further and suc ceed in creating a reasonable doubt about an ingredient of an offence.
Consequently in respect of the general excep tions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the accused by one of these processes would be discharging the burden contem plated under Section 105 but in cases of the exceptions covered by special statutes and where the burden of proof is placed on the accused to establish his plea, he will be discharging the same by preponderance of probabilities and not by merely creating a doubt.
At this stage we have to point out that these principles cannot be made applicable to a case where the accused sets up alibi.
There the burden entirely lies on him and plea of alibi does not come within the meaning of these exceptions.
Circumstances leading to alibi are within his knowledge and as provided under Section 106 of the Act he has to establish the same satisfactorily.
Likewise in the case where the statute throws special burden on the accused to disprove the existence of the ingredients of the offence, he has to discharge the burden, for example, in the cases arising under Prevention of Food Adulteration Act if the accused pleads a defence under Section 19, the burden is on him to establish the same since the warranty on which he relies is a circumstance within his knowledge.
However, it may not be necessary to enumerate these kinds of cases as we are mainly concerned in this case only with the scope and application of Section 105 of the Evidence Act.
We also make it clear that the principles laid down by us are only in respect of the said provision only.
As we think that it would be appro priate and useful to set out the sum and substance of the above discussions regarding the scope of Section 105 and we accordingly state the same as follows: The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden.
The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case.
He may adduce the evidence in support of his plea directly or rely on the prosecution case itself or, as stated above, he can indi rectly introduce such circumstances by way of cross examina tion and also rely on the probabilities and the other cir cumstances.
Then the initial presumption against the accused regarding the non existence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused.
The 607 accused can also discharge the burden under Sec. 105 by preponderance of probabilities in favour of his plea.
In case of general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the Court, after due consideration of the evidence in the light of the above principles, if satisfied, would state, in the first instance, as to which exception the accused is entitled to, then see whether he would be enti tled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accord ingly.
In the instant case we are concerned with the exception of right of private defence.
In the instant case a plea of right of private defence is raised.
As noted above one of the accused received a 12 'x2 ' lacerated wound and other accused received gun shot injuries.
The plea that the non explanation of these injuries by the prosecution warrants rejection of the prosecution case, is rejected as the evi dence of the material witnesses even otherwise found to be cogent, convincing and acceptable but from the circumstances these two accused particularly one of them had received gun shot injuries during the course of the same occurrence is established.
The accused have also adduced defence evi dence namely that of a Doctor in support of their plea.
This material though by itself is not sufficient to establish the General Exception under Section 96 or the special exception No. 2 to Section 300 IPC but creates a reasonable doubt about the existence of such a right.
The accused have proved the infliction of injuries on them by the complainant party in the course of the occurrence.
Therefore, the obligatory initial presumption against them is removed and their plea appears to be reasonably true and consequently they are entitled to the right of self defence.
The next question is whether they have exceeded this right.
Learned counsel submits that the accused is not expected to modulate his right of self defence and that in the instant case it cannot with certainty be said that they have exceeded this right and therefore, they are entitled to an acquittal.
In Amjad Khan vs The State, ; , on the facts and circumstances of the case it was held that the accused was entitled to a right of private defence of the body even to the extent of causing death as there was no time to have recourse to the authorities and had reasonable grounds for apprehending that either death or grievous hurt would be caused either to himself or to his family.
These things could not be weighed in too fine a set of scales or "in golden scales.
" In 608 Puran Singh and Ors.
vs State of Punjab, ; it is observed that the right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing of death also and it is not necessary that death or grievous hurt should actually be caused before the right could be exercised.
A mere reasonable apprehension is enough to put the right of private defence into opera tion.
It is also observed that the question whether a person having a right of private defence has used more force than is necessary would depend on the facts and circumstances of a particular case.
In the case before us as per the evidence of the materi al witnesses the two deceased were only proceeding alongwith the rasta towards the pump set for taking bath.
Even in the plea set up by Chirkut Singh, accused No. 6, it is not stated specifically that deceased Nos. 1 and 2 were armed with any deadly weapons.
Therefore, the assailants had definitely exceeded the right of private defence when they went to the extent of intentionally shooting them to death by inflicting bullet injuries.
Therefore, the offence com mitted by them would be one punishable under Section 304 Part 1 I.P.C.
We accordingly set aside the conviction of the.
appel lantsaccused Nos. 1, 3, 4 and 6, Vijayee Singh, Ranjit Singh, Ram Briksh Singh and Chirkut Singh respectively for an offence punishable under Section 302/149 I.P.C. and the sentence of imprisonment for life awarded thereunder.
In stead they are convicted under Section 304 Part I read with Section 34 I.P.C. and sentenced each of them to undergo 10 years imprisonment.
The other sentences/convictions awarded to them are confirmed.
The sentences shall run concurrently.
Criminal Appeal Nos.
375 77 of 1987 are allowed to this extent only and Criminal Appeal Nos. 372 74/87 are dis missed.
R.N.J. Crl.
A. Nos. 375 77/87 are allowed and Crl.
A. Nos.
372 74/87 are dismissed.
| IN-Abs | 14 accused were tried for offences under section 148 and 302 read with Section 149 of I.P.C. for the murder of two persons named Mahendra Singh and Virendra Singh and injuries to 3 others named Vijay Narain Singh, P.W. 1, Uma Shankar Singh, P.W. 2 and Kailash Singh.
Accused No. 6 Chirkut Singh was further tried under Section 307 I.P.C. for attempting to murder P.W. 1 and all the remaining accused under section 307 read with Section 149 I.P.C. for causing injuries to Uma Shankar and Kailash Singh.
The trial court relying on the evidence of P.Ws 1 and 2 who were the main eye witnesses convicted all the 14 accused under section 302 I.P.C. read with Section 149 I.P.C. and awarded them life imprisonment.
The convicted accused preferred appeals to the High Court and the State filed appeals for enhancement of their sen tence.
A Division Bench of the Allahabad High Court consist ing of Justice Katju and Aggarwal heard the appeals.
While Justice Katju allowed the appeals by the accused and dis missed the State appeals, Justice Aggarwal disagreeing with him, dismissed all the appeals, both by the accused and by the State.
Consequently the matter was referred to a third judge.
Justice Seth who confirmed the conviction and sen tence awarded to accused Nos. 1, 3, 4 and 6 only and acquit ted all the rest of the accused on the view taken by him that the specific overt acts were attributable to only these four accused and the rest should be given the benefit,of doubt.
Criminal Appeals Nos.
375 377 of 1987 by special leave were preferred by the convicted accused Nos. 1, 3, 4 and 6 and Criminal Appeals Nos.
372 374 of 1987 preferred by the State against the acquittal of other accused.
Accepting the plea of the accused to the right of selfdefence but holding that they had definitely exceeded this right when they went to the extent of intentionally shooting the deceased to death and therefore the offence committed was one punishable under section 574 304 Part I I.P.C. and not under Section 302 read with Sec tion 149 I.P.C. Accordingly in partly allowing the Appeals filed by the convicted accused and dismissing the State appeals, this Court, HELD: A fact is said to be "proved" when, after consid ering the matters before R, 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.
[596G H] A fact is said to be 'disproved ' when, after considering the matters before it, the Court either believes that it does not exist, or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
A fact is said to be "not proved" when it is neither "proved" nor "disproved".
[596H; 597A] The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases.
[601E] Section 105 places "burden of proof ' on the accused in the first part and in the second part there is a presumption which the Court can draw regarding the absence of the cir cumstances, which presumption is always rebuttable.
Taking the section as a whole the "burden of proof" and the pre sumption have to be considered together.
It is exiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises.
But where the accused introduces material to displace the presumption which may affect the prosecution,case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt.
[601F G] The initial obligatory presumption regarding circum stances gets lifted when a plea of exception is raised.
More so when there are circumstances on the record, gathered from the prosecution evidence, chief and cross examinations, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise creating a reasonable doubt about the existence of the ingredients of the offence.
In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused.
[601H; 602A] The presumption regarding the absence of existence of circumstances regarding the exception can be rebutted by the accused by intro 575 ducing evidence.
If from such a rebuttal, a reasonable doubt arises regarding his guilt, the accused should get the benefit of the same.
Such a reasonable doubt consequently negatives one or more of the ingredients of the offence charged, for instance, from such a rebuttal evidence, a reasonable doubt arises about the right of private defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence.
In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section 105 of the Evidence Act should necessarily go to the accused.
[602C E] Section 3 is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of fact, in other words, "believes it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence.
[602G H; 603A] The Evidence Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of proba bility or improbability.
It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved.
[603D] The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden.
The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case.
[606F G] In the instant case, as per the evidence of the material witnesses, the two deceased were only proceeding alongwith the rasta towards the pump set for taking bath.
Even in the plea set up by accused No. 6 it is not stated specifically that deceased Nos. 1 and 2 were armed with any deadly weap ons.
Therefore, the assailants had definitely exceeded the right of private defence when they went to the extent of intentionally shooting them to death by inflicting bullet injuries.
Therefore, the offence committed by them would be one punishable under Section 304 Part I I.P.C.
The convic tion of accused No. 1, 3, 4 and 6 under Section 302 read with Section 149 I.P.C. and the sentence of rigorous impris onment for life awarded thereunder is set aside and instead they are 576 convicted under Section 304 Part I read with Section 34 I.P.C. and each of them sentenced to undergo rigorous im prisonment for 10 years.
Their other convictions/sentences are confirmed the sentences to run concurrently.
[608C E] Mohar Rai & Bharath Rai vs The State of Bihar, ; ; Lakshmi Singh & Ors.
vs State of Bihar, ; Pratap vs State of Uttar Pradesh, AIR 1976 S.C. 966; Woolmington vs The Director of Public Prosecutions, [1935] Appeal Cases 462; Emperor vs U. Damapala, AIR 1937 Rangcon 83; Parbhoo & Ors.
vs Emperor, AIR 1941 Allahabad 402; K.M. Nanavati vs State of Maharashtra, [1962] Suppl.
1 SCR 567; Dahyabhai Chhaganbhai Thakkar vs State of Gujarat, ; ; Rishi Kesh Singh & Ors.
vs The State, AIR 1970 Allahabad 51; Bhikari vs State of Uttar Pradesh, ; ; Behram Khurshed Pesikaka vs The State of Bombay, ; Government of Bombay vs Sakur, AIR 1947 Bombay 38; State of Uttar Pradesh vs Ram Swarup, ; ; Mohd. Ramzani vs State of Delhi, AIR 1980 S.C. 1341; State vs Bhima Devraj, AIR 1956 Sau. 77; Miller vs Minister of Pensions, ; C.S.D. Swami vs The State, ; ; V.D. Jhingan vs State of Uttar Pradesh, ; ; Harbhaian Singh vs State of Punjab, ; ; Amjad Khan vs The State, ; and Puran Singh & Ors.
vs State of Punjab, ; , referred to
|
Appeal No. 4145 of 1984.
From the Judgment and Order dated 14.2.1984 of the Punjab and Haryana High Court in Regular Second Appeal No. 1498 of 1982.
Ravi Parkash Gupta, Arvind Varma, Bahar Burqui and Gopal Subramaniam for the Appellant.
R.F. Nariman, Ms. Madhvi Gupta and Ashok K. Gupta for the Respondent.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This plaintiff 's appeal by special leave is from the judgment and order dated 14.2.1984 of the High Court of Punjab and Haryana in Regular Second Appeal No. 1498 of 1982, modifying those of the courts below and pass ing a decree for Rs.5,000 only by way of refund of earnest money instead of decree for specific performance.
The appellant herein as plaintiff filed Civil Suit Nos.
195/196 of 1973, averring, inter alia, that she had entered into an agreement dated 16.9.
1971 with the respondent (defendant) for purchase of property No. B VII 7 (old) and B VIII 9 (new) containing 2 Kohlus of 20 H.P. electric motor etc.
for a consideration of Rs.50,000 and also had paid to the defendant an earnest money of Rs.5,000; that the proper ty was jointly owned by the defendant with her step mother in law Smt.
Lajwanti who would also join the execution of the sale deed; that if Smt.
Lajwanti failed to do so the respondent (defendant) would sell her half share of the property for half of the sale price; that the 352 defendant respondent pursuant to the agreement delivered possession of her share of the property to the plaintiff appellant, whereafter the plaintiff repaired the property spending Rs.4,200; that thereafter the partition was also effected between the defendant respondent and Smt.
Lajwanti; that the defendant thereafter illegally took possession of the property from the plaintiff appellant and refused to execute the sale deed in terms of the agreement dated 16.9.1971 on or before September 26, 1971 as stipulated; that as arbitration proceedings between defendant and her co sharer Smt.
Lajwanti was going on the defendant took back the said agreement (styled as receipt) and thereafter re fused to execute the stipulated sale deed and in response to the plaintiff 's lawyer 's notice dated 23.7.1971 the defend ant took the false plea that the agreement did not pertain to the building but only to the machinery fitted therein.
The relief prayed was a decree for specific performance of the contract, in the alternative a decree for a total sum of Rs. 16,000 including the earnest money of Rs. 5,000.
The defendant respondent contested the suit on the inter alia pleas that the agreement being not scribed on a proper stamped paper was not permissible in evidence; that it was only a paper transaction executed to pressurise her co sharer Smt.
Lajwanti; that no earnest money was paid; that in any case the document related only to the moveable property; and that pursuant to the compromise between the parties dated 9.1.1972, the agreement was destroyed.
In the trial court the plaintiff relied mainly on Ext.
PW 11/A being the entry of the transaction in the Petition Writer 's Register.
When this Exhibit was disallowed by the trial court vide its order dated 27.10.1976 as the entry was a duplicate of its original document which had not been produced in the court and therefore inadmissible, the plain tiff 's revision petition therefrom to the High Court was allowed with a direction to impound the document in accord ance with law and then proceed with the case.
The High Court in its order dated 18.7.1977 characterised Ext.
PW 11/A as the entry in the Petition Writer 's Register and observed that it contained all the details of a transaction but appeared to be neither a copy nor an extract though a prima facie duplicate of the original document.
The defendant respondent 's special leave petition therefrom was dismissed by this Court with the following observation: "The entry in the writer 's register which has been allowed to be admitted by the High Court subject to impounding and consequential processes will in our view be eligible for 353 admission as evidence.
This means that we will not interfere with the order of the High Court.
However we make it clear that the trial court which considers this entry will evalu ate it properly and not read more than what it says or treat it as equivalent to something which it does not.
Full effect will be given to the entry, no more, no less.
" In light of the aforesaid orders of the High Court as well as of this Court, the trial court having decreed the suit and the defendant respondent having been unsuccessful in appeal to the Additional District Judge, she filed a Regular Second Appeal which was allowed by the High Court by the impugned judgment and order to the extent already indicated.
Before the High Court the defendant respondent contended that if the entry PW 11/A was to be treated as original document or its counterpart the same did not bear the signa tures of one of the parties, that is, the respondent.
The signatures of the husband of the respondent would be of no avail as there was no evidence on record to show that he had the authority to execute a document on her behalf and the document signed unilaterally by one party could not be treated as an agreement between two persons.
Secondly as was admitted by the witness, the entry was more or less an extract of the original document and such an extract drawn and maintained by a deed writer according to his own light could not form basis of an agreement between the parties which could be given effect to by way of specific perform ance.
Both the contentions were sustained by the High Court holding that no contract could be inferred from the document PW 1 I/A. Accordingly the High Court set aside the decree for specific performance, allowed the appeal and passed a decree to the extent of Rs.5,000 being the earnest money to be returned by the defendant to the plaintiff.
Mr. Gopal Subramaniam, the learned counsel for the appellant assails the impugned judgment on the grounds, inter alia, that the High Court overlooked the relevant provisions of the Evidence Act as also this Court 's order relating to Ext.
PW 11/A inasmuch as all the findings of the courts below were in favour of the appellant holding on issue No. 14 that there was an oral agreement which was also admitted with its contents and the theory of destruction was found to be false; that the High Court should not have gone behind the Supreme Court 's order and should not have gone into the admissibility of Ext.
PW 1 1/A in face of this Court 's order; that the High Court has not given even a single reason as to why the decree of 'the lower courts should have been 354 set aside; and that Ext.
PW II/A was nightly admitted by the courts below in accordance with the Supreme Court 's order but the High Court going behind that order rejected it.
Counsel puts the appellant 's case on PW 11/A and also dehors that document.
Mr. R.F. Nariman, the learned counsel for the respondent submits that the High Court rightly set aside the decree because the trial court as well as the lower appellate court were concerned only with the question as to whether there was an agreement or not, but not with the question as to whether specific performance ought to be decreed or not.
Counsel submits that the High Court 's holding Ext.
PW 11/A to be inadmissible meant only its evaluation as the agree ment; and that the grounds given by the High Court on the merit of the case are correct.
Accordingly to counsel, even assuming that Ext.
PW 11/A was a copy of the agreement, it would by no means justify specific performance due to var ious patent and latent defects in it, and it did not create any fight in favour of the plaintiff.
In view of this sub mission we proceed to examine first the contract itself.
In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract.
The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts.
Where a valid and enforceable contract has not been made, the court will not make a con tract for them.
Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable.
The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract.
It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it.
The con tract being the foundation of the obligation the order of specific performance is to enforce that obligation.
Mr. Subramaniam argues that there was an oral agreement.
The issue No. 1 was "whether there was a valid agreement of sale dated 16.9.1971 between the parties, if so what were its terms".
Issue No. 14 was "whether there was an agreement of sale on 12.9.1971 between the parties, if so what were its terms"? The trial court adjudicated issue No. 1 in favour of the plaintiff.
Before the First Appellate Court it was contended by the defendant that the alleged agreement to sell 355 dated 16.9.1971 was not admissible in evidence for the reason of it having not been scribed on the stamp paper of the requisite value nor could any secondary evidence be adduced by the plaintiff respondent to prove and establish the contents of the said agreement.
The defendant averred that she never intended to sell the suit property to the plaintiff nor was it intended to be purchased by the plain tiff, and that the agreement dated 16.9.1971 was a paper transaction which was brought into being for exerting pres sure on Lajwanti, the other co sharer of the property as suggested by plaintiff 's husband Master Kasturi Lal.
The plaintiff before the First Appellate Court relied on Ext.
PW 11/A, and the Court observed: "The learned counsel for the defendant appellant very fair ly/frankly submitted and conceded at the bar that the fate of this case hinges in its entirety on the all important document Ext.
PW 11/A which is claimed by the plaintiff re spondent to be an agreement to sell dated 16.9.71, the specific performance of which was sought and enforced in the suit by her." While Mr. Subramaniam asserts that the correspondence between the parties amply showed admission of the contract on the part of the defendant respondent, Mr. Nariman 's demurrer is that there was no such admission, but on the other hand statements on the part of the defendant showed that she put an end to what was claimed to be a contract.
Though predominantly a question of fact, in view of the assertions of counsel, we have ourselves looked into the correspondence on record.
The earliest letter on record is from S.K. Singhal, Advocate for the plaintiff Mayawanti to defendant Kaushalya Devi and Lajwanti stating inter alia that on 16.9.
1971 the latter agree to sell one karkhana building with two wheat grinding machines, two kohlus for expelling oil, one electric motor of 20 H.P., electric connection and other necessary goods and accessories owned by them and Kaushalya Devi executed an agreement to sell the building and machinery for Rs.50,000 and received a sum of Rs.5,000 in advance at the time of execution of the said agreement; that in case of default his client was entitled to get the sale deed executed through the intervention of the court and further that in case Lajwanti did not sign the sale deed Kaushalya Devi would execute it with regard to one half share belonging to her; that the sale deed was to be executed upto 26.9.1971.
; and that his client was ready and willing to perform her part of the contract.
KaushalVa Devi was therefore called upon to execute and register the sale deed in favour of Mayawanti to the extent of one half each 356 of the karkhana as his client had always been and still was ready and willing to perform her part of the contract.
The defendant replied to the said letter through her Advocate Hat Kishan Lal Soni by letter dated December 29, 1971 stat ing that Mayawanti agreed to buy a factory consisting of a flour mill, two kohlus, a 20 H.P. electric connection in stalled in property Unit No. B VII 7 (old), B VIII 9 (new) and she called upon the plaintiff to arrange to pay the sum of Rs.50,000 and get the sale transaction registered within 10 days failing which the sender should be at liberty to sell it to any other party at the risk of the plaintiff for compensation by way of damages suffered from the resale.
It is to be noted that there is no mention of any building in this letter.
In their letter dated 4.1.1972 from Mr. Soni to Mr. Singhal, Advocate for the plaintiff, it was stated that the agreement was to transfer two kohlus and 20 H.P. elec tric connection installed in the property Unit No. B VII 7 (01d)/B VIII 9 (new) situated on Gokal Road, Ludhiana lying on the road side nearby excluding the buildings and the 20 H.P. electric motor on receipt of full price of Rs.50,000 and that the latter 's client seemed to be labouring unneces sarily to include the building and 20 H.P. electric motor in the bargain.
In his letter dated 18.1.1972 to the plaintiff, Sham Lal Katyal, Advocate of Lajwanti intimated that Kausha lya Devi had no fight to sell the share of Lajwanti.
In his letter dated 13.7.1973 Sukhpat Rai Wadehra, Advocate for Mayawanti stated that the defendant entered into an agree ment to sell the property Unit No. B VII 7 (old) and B VIII 9 (new) with a flour mill, two kohlus, 20 H.P. facto ry connection and a wooden cabin standing on the roadside and that due to the partition with her "sister Lajwanti" a sale deed was to be executed on or before 26.9.1972 and she having failed to do so Mayawanti was entitled to specific performance of the agreement to sell and therefore she was called upon to execute the sale deed of property No. B VII 7 (old) and B VIII 9 (new.).
In his letter dated 23.7.1973 Mr. Soni wrote to Mr. Wadehra, that the agreement was without the building and the motor and that the original agreement was suspected to have been interpolated and so not produced by the plaintiff as required by the defendant.
In the letter dated August 3, 1973 from Mr. Wadehra to Mr. Soni, it was asserted that the agreement was for the building and the machinery therein and that the agreement was never cancelled orally.
In the next letter dated 6.9.1973 from Mr. Ahluwa lia, the defendant 's lawyer reiterated that the agreement dated 16.9.1971 was for karkhana only and not for the build ing and that the plaintiff could not arrange money for payment.
In this letter it was stated that the time was of essence of the contract and had Mayawanti paid any earnest money after the expiry date 26.9.1971, the defendant was 357 entitled to forfeit the same.
Thus, even though the sale deed was to be executed on 26.9.1971 the instant suit was filed long thereafter on 31.7.1973.
If the above correspondence were true, it would appear that the contract was in the alternative of either whole or half of the property and that the offer and acceptance did not correspond.
It is settled law that if a contract is to be made, the intention of the offeree to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer.
The rule is that the acceptance must be absolute, and must correspond with the terms of the offer.
If the two minds were not ad idem in respect of the property to be sold, there cannot be said to have been a contract for specific performance.
If the par ties themselves were not ad idem as to the subject matter of the contract the court cannot order specific performance.
If the plaintiff understood the terms to have included the building but the defendant understood it to have excluded the building and the so called memorandum Ext.
PW 11/A did not mention the building, there is no contract before the court for specific performance.
While Mr. Subramaniam would argue that the land was also included, Mr. Nariman rightly points out that land was nowhere mentioned in PW 11/A.
It is true that Issue Nos. 2 and 3 were whether the defendant delivered possession of the property to the plaintiff pursu ant to the agreement and whether the possession was illegal ly taken by the defendant, and the Trial Court found no independent evidence and Kasturilal admitted that there was no document to prove the delivery of possession.
However, on basis of a suggestion to Kasturilal that it was "incorrect to suggest that any goods, i.e. gunny bags, oil, khal, was in possession having been taken out from the factory build ing at the time of repairs", the trial court concluded that delivery of possession was there.
The first appellate court also took it to be a "vital and material suggestion" and upheld the finding.
Admittedly the possession was with the defendant at the time of the suit and there was no proceed ing to recover the possession by the plaintiff.
This infer ential finding, therefore, can not have any bearing on the subject matter of the contract contrary to what was stated in Ext.
PW 11/A which was heavily relied on by the plain tiff.
Mr. Subramaniam then submits that the plaintiff was entitled to specific performance by virtue of Ext.
PW 11/A which was rightly admitted and that even if it was excluded from consideration then also on the notices, pleadings and evidence the plaintiff was entitled to a 358 decree and the High Court ought not to have gone behind the order of the Supreme Court to hold that Exhibit to be inad missible and it never adverted to the admission of the agreement of 16.9.
Before us Mr. Subramaniam argued that Ext.
PW 11/A was either a primary evidence or a second ary evidence of the original and its impounding implies its intrinsic value for the purpose of the case.
The signatures were not denied.
The trial court rightly treated it as the agreement and in the written statement, the defendant ob jected to its admissibility and not to its contents.
Mr. Nariman would like us to proceed on the basis that Ext.
PW 11/A was not disputed by the defendant.
PW 11/A is Sl.
No. 871 dated 16.9.1971 in the columns of the register of Atma Ram Gupta, petition writer, Ludhiana for the year 1971 and contains the following par ticulars: It is styled as "receipt" for Rs.5,000 in column 4, and in column 3 the name and address of the writer is given as Smt.
Koshalya Devi W/o Dharam Dev, Ludhiana, Gokal Road, Mohalla Kothi Megh Singh.
It bore 10 n.p. stamp.
In writer 's signatures column No. 8 it contains writer 's signature in English and the R.T.I. of Kaushalya Devi and the signature in English of Kasturi Lal.
It contains the signatures of its writer Atma Ram Gupta, petition writer, Ludhiana dated 21.11.1971.
Under the column particulars of writing and address for the witnesses, it contains the following: "Smt.
Mayawanti W/o Master Kasturi Lal, Ludhiana owns and has a factory, flour mill, Two 'kohlus ' for expelling oil.
I and Smt.
Lajwanti widow of Baru Ram, Ludhiana have an elec tric motor of 20 H.P. connection in working condition at Gokal Road.
To the East Amar Singh, to the West Mansa Ram, Ramji Das, to the north there is a road, to the South there is a Gali.
All these are settled to be sold for Rs.50,000 and Rs.5,000 is taken as advance.
The balance will be taken at the time of registration.
The registration will be done at the expense of the buyer.
It will be in the name of the buyer or in any other name he indicates by 26.9.
If any other person has a right or encumbrance on it, the advance and compensation will be paid back.
If Lajwanti does not sign these sale deeds, then I will execute the sale deed of my one of the two shares, otherwise pay pack the advance and compensation in the same amount.
The buyer may take the advance.
359 WITNESSES: Dharam Dev, husband of one who gives the receipt, R/o Ludhiana, Kothi Megh Singh, Gokal Road.
Tarsem Kumar Gupta, Stamp Vendor, Khanna Zila, Distt.
Ludhiana, Mohalla Hakim Rehamatullah, Kucha Kaka Ram House No. 27 13 (9).
" Admittedly witnesses were examined and cross examined on this Exhibit and the appellant argued before us on its basis.
The defects pointed out by Mr. Nariman are that it refers to Smt.
Mayawanti W/o Master Kasturi Lal as the owner of the factory, flour mill and two kohlus for expelling oil.
Mayawanti, the plaintiff appellant, was the intending pur chaser and not owner of the property.
The owner and vendor was the defendant/respondent Kaushalya Devi.
It nowhere mentions the land and the building; and it gives the proper ty number only.
Of course the boundaries of the factory, flour mill are given.
Mr. Subramaniam submits that land was implied in the description.
Mr. Nariman would not agree.
It says: "if Lajwanti does not sign this sale deed, then I will execute the sale deed of my one of the two shares, otherwise pay back the advance and compensation in the same amounts.
The buyer may take the advance.
" What is the legal effect of this statement on the agreement? Even assuming that recita tion of Mayawanti as the owner was a mistake and the factory also implied the land whereupon it stood, the question is whether it amounts to an alternative promise.
In Halsbury 's Laws of England 4th Edn.
Vol. 9, Para 446 on alternative promises we read: "When a promise is made in an alternative form and one alternative is impossible to perform, the question whether the promisor is bound to perform the other or is altogether excused depends on the intention of the parties to be ascer tained from the nature and terms of the contract and the circumstances of the particular case.
The usual result in such a case will be that the promisor must perform the alternative which remains possible; but it may be that on the proper construction of the contract there is not one obligation to be performed in alternative ways but one obligation to be performed in one way unless the promisor chooses to substitute another way, in which case, the pri mary obligation being impeded, the promisor is not bound to exercise the option for the benefit of the other party." Applying the principle to the instant case, on proper con struc 360 tion of Ext.
PW 11/A can it be construed that there was not one obligation to be performed in alternative ways but one obligation to be performed in one way unless the promisor choose to substitute another way? In other words, the pri mary obligation being impossible was the promisor bound to exercise the option for the benefit of the other party? It would be reasonable to construe that if Lajwanti failed to sign the sale deed then the promisor would either execute the sale deed in respect of her share, or in the alterna tive, pay back the advance and compensation in the same amount, and the buyer would have to take the advance.
Laj wanti having refused to sell her share, the first alterna tive became impossible.
The question then was whether the second alternative would automatically follow or option was reserved by the vendor either to sell her own share or to pay back the advance and the compensation in the same amount.
The first alternative failing, if the promisor decided in favour of the other alternative, it could not be said that there was any breach of any obligation under the agreement, and if that was so, there could arise no question of specific performance of the contract.
Looking at PW 1 i/A from another angle the payment was an alternative to performance.
In paragraph 4 17 of volume 44 of Halsbury 's Laws of England dealing with payment as an alternative to performance we find: "There are cases where the court holds, on the construction of the contract, that the intention of the parties is that the act may be done by the contracting party or that payment may be made by him of the stipulated amount, so that the contracting party has in effect the option either of doing the act which he has contracted to do or paying the speci fied sum, the contract being alternative, either to do or abstain from doing on payment of the sum in money.
The court may treat covenants to perform or to pay as alternative where specific performance would work unreasonable results.
" The expression 'otherwise pay back the advance and compensa tion in the same amount ' is capable of being interpreted as payment of the amount as alternative to performance.
Of course the amount advanced and the compensation was stipu lated to be the same amount.
That however, would not affect the real character of the promise.
We may also refer to another element of uncertainty or ambi 361 guity in the contract in the event that has happened viz. Lajwanti 's refusal to part with her share in the property.
exhibit PW 1 1/A says that, in that event, Kaushalya Devi should execute the sale deed of "my one of the two shares".
The share is undefined and the consideration for the sale price for the half share is also unspecified.
This is of impor tance because portions of the property are not equally valuable due to the situation of the kohlus, flour mill etc.
on a part thereof.
It is true that, eventually there was a partition between Kaushalya Devi and Lajwanti and the vendee may have had no difficulty in working out the portion that should come to her towards the half share agreed to be sold by Kaushalya Devi.
But the question is whether words could be read into Ext.
PW 11/A to spell out an agreement, on the date of that exhibit, that, in case Lajwanti backed out, Kaushalya Devi would sell her half share to the appellant for one half of the total consideration.
It seems difficult to say that the answer should necessarily be in the affirma tive.
There are too many is to be dotted and it 's to be crossed before a clear and unambiguous contract, on the terms sought to be enforced, could be spelt out of the language of Ext.
PW 1 1/A.
The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do.
The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem.
The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff.
If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all.
Where there are negotiations, the court has to determine at what point, if at all, the parties have reached agreement.
Negotiations thereafter would also be material if the agreement is rescinded.
The jurisdiction of the court in specific performance is discretionary.
Fry in his Specific Performance, 6th Edn.
P. 19, said: "There is an observation often made with regard to the jurisdiction in specific performance which remains to be noticed.
It is said to be in the discretion of the Court.
The meaning of this proposition is not that the Court may arbitrarily or capriciously perform one contract and refuse to perform another, but that the Court has regard to the conduct of the plaintiff and to circumstances outside the contract itself, and that the mere fact of the existence of a 362 valid contract is not conclusive in the plaintiff 's favour. 'If the defendant ', said Plumer V.C., can show any circum stances dehors, independent of the writing, making it ineq uitable to interpose for the purpose of a specific perform ance, a Court of Equity, having satisfactory information upon that subject, will not interpose.
" The author goes on to say that of 'the circumstances calling for the exercise of this discretion, "the Court judges by settled and fixed rules; hence the discretion is said to be not arbitrary or capricious but judicial; hence, also, if the contract has been entered into by a competent party, and is unobjectionable in its nature and circumstances, specific performance is as much a matter of course, and therefore of right, as are damages.
The mere hardship of the results will not affect the discretion of the court.
" Regarding the extent of the jurisdiction Fry wrote: "If a contract be made and one party to it make default in performance, there appears to result to the other party a right at his election either to insist on the actual per formance of the contract, or to obtain satisfaction for the non performance of it.
It may be suggested that from this it follows that a perfect system of jurisprudence ought to enforce the actual performance of contracts of every kind and class, except only when there are circumstances which render such enforcement unnecessary or inexpedient, and that it ought to be assumed that every contract is specifically enforceable until the contrary be shown.
But so broad a proposition has never, it is believed, been asserted by any of the Judges of the Court of Chancery, or their successors in the High Court of Justice, though, if prophecy were the function of a law writer, it might be suggested that they will more and more approximate to such a rule." As Chitty observes, the "prophecy has not been wholly fulfilled, for the scope of the remedy remains subject to many limitations.
" But the author observes a welcome move towards the more liberal view as to the extent of jurisdic tion which was favoured by Lord Justice Fry.
But where no contract has been entered into at all, there is no room for any liberal view.
Section 9 of the Specific Relief Act says that except as otherwise 363 provided in that Act where any relief is claimed under Chapter I1 of the Act in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts.
In the instant case the defence of there having not been a contract for lack of consensus ad idem was available to the defendant.
In view of the above conclusion, the appeal has to be dismissed.
We should, however, like before concluding, to refer to certain other aspects debated before us: (1) At a late stage of the arguments, it was contended on behalf of the appellant that the translation of Ext.
PW 1 1/A acted upon by the High Court, is not accurate and that it does not refer to Mayawanti as the owner of the Kohlus etc.
We directed the original records to be called for and also gave leave to the appellant to file a translation.
This has been done but the respondent does not accept this.
It was also mentioned on behalf of the appellant that the translator in the Supreme Court had found the original too illegible to be translated and it was requested that a translation may be allowed to be got done by an Advocate of this Court knowing the language.
We cannot permit this at this stage.
The unofficial translation filed tries to im prove upon the recorded translation of Ext.
PW 1 1/A in two respects.
First, the reference to Mayawanti as the owner is sought to be substituted by a reference to her as the vend ee.
So far as this is concerned, as already pointed out, even if we take the reference to Mayawanti in the exhibit as due to oversight, there are various other aspects of uncer tainty which render the terms of Ext.
PW 11/A specifically unenforceable.
The second improvement is the addition of a sentence at the end: "The purchaser either may take earnest money along with penalty or get the registry done forcibly.
I will have no objection.
" This is a totally new version which we cannot permit at this stage when it is objected to by the other side.
After all, the entry PW 11/A in the Deed Writer 's Register could not be treated as preappointed evidence.
It was not a piece of evidence prescribed in advance by statute as requisite for proof of the transaction of sale, as distinguished from casual evidence.
But it could not be allowed at the same time to grow out of the surround ing circumstances.
(2) A reference was made in the argument before us to an oral agreement preceding Ext.
PW 11/A.
But the terms of such oral 364 agreement are nowhere in evidence and the same uncertainties surround it as hover around Ext.
PW 11/A.
The High Court cannot, therefore, be faulted for not confirming the decree of specific performance on the basis of an oral agreement.
(3) A good deal of argument was also addressed before us as to whether PW 11/A was admissible as secondary evidence.
We have not touched upon this and have proceeded on the assump tion that the entries in the document writer 's register, signed by the parties, can itself be treated as an agreement between them the specific performance of which can be sought.
(4) Shri Gopal Subramaniam contended that the High Court has erred in holding, contrary to the earlier observations of this Court, that Ext.
PW 11/A was inadmissible.
There is no doubt a certain degree of ambiguity in the observations of the High Court in this regard.
But, reading the High Court 's judgment as a whole, we are inclined to accept the submis sion of Mr. Nariman that the High Court has only evaluated the exhibit in the light of the direction of this Court that "full effect will be given to the entry; no more, no less" and not rejected it as inadmissible, as contended for by the appellant.
We have referred to these aspects only because counsel had placed considerable emphasis on them in the course of arguments but in the view we have taken of the scope and effect of Ext.
PW 11/A, it is unnecessary to elaborate on them or to deal with certain other contentions urged before_us.
For the foregoing reasons we uphold the finding of the High Court that there was no valid and enforceable contract between the parties as evidenced by Ext.
PW 11/A.
The result is that this appeal fails and is dismissed, but under the peculiar facts and circumstances of the case without any order as to costs.
Interim orders, if any, stand vacated.
R.N.J. Appeal dis missed.
| IN-Abs | A civil suit was flied by the appellant herein against the respondent herein in the year 1973 praying for a decree for specific performance of the contract, in the alternative for a decree for a total sum of Rs. 16,000 including the earnest money of Rs.5,000 on averments inter alia that she had entered into an agreement dated 16.9.71 with the Re spondent for the purchase of a property with 2 Kohlus of 20 H.P. electric Motor etc., installed therein and jointly owned by the Respondent with her step mother in law Smt.
Lajwanti, for a consideration of Rs.50,000; that in case Smt.
Lajwanti did not join in the execution of the sale deed, the Respondent would sell her half share of the property for half the sale price; that pursuant to this agreement the Respondent handed over to the Plaintiff appel lant possession of her share of the property but later as arbitration proceedings were going on between the Respondent and her co sharer Smt.
Lajwanti, the Respondent took back the said agreement (styled as receipt) and thereafter ille gally took possession of the property from the appellant and declined to execute the sale deed in terms of the agreement.
The Respondent contested the suit on the pleas that she never intended to sell the suit property to the Plaintiff; that the agreement was a mere paper transaction brought into being for putting pressure on her co sharer; that the agree ment being not scribed on a proper stamped paper was inad missible in evidence; that the agreement related only to the moveable property; that no advance money was paid as alleged and lastly that pursuant to the compromise between the parties dated 9.1.72 350 the agreement dated 16.9.71 stood destroyed.
The trial Court disallowed the agreement Exhibit PW I I/A which constituted the foundation of the claim as inad missible in evidence and dismissed the suit.
The High Court on revision, allowed the revision peti tion of the appellant with the direction to the trial court to impound the document in accordance with law and then proceed with the case.
Respondent 's Petition for special leave against that order was dismissed by this Court.
Consequent to these orders of the Supreme Court and the High Court the Trial Court tried the suit afresh and passed a decree for specific performance which was affirmed by the Additional District Judge on appeal.
However on second appeal the High Court held that there was no valid and enforceable contract as evidenced by Exhibit PW.
II/A and thus instead of the decree for specific performance granted a decree for Rs.5,000 only by way of refund of the earnest money.
Hence this appeal by special leave by the Plaintiff.
Dismissing the appeal and upholding the finding of the High Court, this Court, HELD: The specific performance of a contract is the actual execution of the contract according to its stipula tions and terms, and the courts direct the party in default to do the very thing which he contracted to do.
The stipula tions and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem.
The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of Course, on the plaintiff.
If the stipulations and terms are uncertain and the parties are not ad idem there can be no specific performance, for there was no contract at all.
[362D E] Where there are negotiations, the Court has to determine at what point, if at all, the parties have reached agree ment.
Negotiations thereafter would also be material if the agreement is rescinded.
In the instant case the defence of there having not been a contract for lack of consensus ad idem was available to the defendant.
[363F; 364B] The jurisdiction of the Court in specific performance is discretionary.
When a promise is made in an alternative form and one 351 alternative is impossible to perform, the question whether the promiser ' is bound to perform the other or is altogether excused depends on the intention of the parties to he ascer tained from the nature and terms of the contract and the circumstances of the particular case.
[362F] The expression 'otherwise pay back the advance and compensation in the same amount ' is capable of being inter preted as payment of the amount as alternative to perform ance.
Of course the amount advanced and the compensation was stipulated to he the same amount.
That, however, would not effect the real character of the promise.
[361G]
|
ivil Appeal No. 3488 of 1988.
From the Judgment and Order dated 14.7.
1988 of the Madhya Pradesh High Court in Second Appeal No. 17 of 1985.
568 G.L. Sanghi, S.K. Mehta, Aman Vachher and Atul Nanda for the Appellants.
Pramod Swarup for the Respondent.
The Judgment of the Court was delivered by R.M. SAHAI, J.
This tenant 's appeal is directed against order passed by Madhya Pradesh High Court in proceedings arising out of Section 12(1)(f) of the M.P. Accommodation Control Act, 1961.
In 1976, the landlady filed an application for eviction under Section 12(1)(f) of the Act as the accommodation in occupation of appellant was required bona fide for continu ing tailoring business of her son who was doing it since 1970 in a small room of the same premises in the lane which was both unsuitable and inadequate.
Her claim was accepted by the Trial Court as necessity was valid and the landlady had a right to reside in any part of the house.
In appeal various objections raised on behalf of tenant, namely, feasibility of shifting business to one more room in the house or that additional accommodation was available were repelled.
It was further found that landlady 's husband had a flourishing tailoring business during British days but it suffered setback and he later became blind.
The appeal was, however, allowed and the application was dismissed as in opinion of Appellate Court the Trial Court had incorrectly understood the dimension of the shop.
It did not find any merit in the submission that the shop was irregularly built and was unsuitable for doing business.
After discussing the evidence it found that the business of landlady 's son was very poor and not growing at all.
Therefore, the accommoda tion in his possession was not at all insufficient and unsuitability was also not proved.
1n Second Appeal by the landlady the High Court did not agree with the Appellate Court and found that the need of the landlady was genuine and bona fide as the shop in dispute was not sufficient for four machines and two or three servants.
Principal attack was on jurisdiction of High Court to interfere with finding of fact in second appeal.
Defence was equally vehement.
But it appears unnecessary to examine it as out of various aspects highlighted one was sufficiency of accommodation with tenant even if he vacated the shop in dispute.
Since it was not clear from order of any Court time was granted on conclusion of argument to learned counsel for parties to file affidavit explaining the extent of accommo dation and the status of the tenant.
Without going into status as that is disputed it 569 is apparent rather undisputed that landlady whose husband at one time had flourishing business is now in dire circum stances.
To keep both the ends meet the family depends not only on meagre income from rent and tailoring shop but the landlady had even to part with another room of the same house adjacent to shop in dispute to one Rataley which is now in possession of tenant.
Financial difficulty apart the tenant admittedly has not only this shop with 27 '6" on one side and 20 ' on the other, but another shop of approximately the same dimension.
May be the wall in between the two rooms has been removed and entire has been converted into a big shop.
But the tenant has two shops each with spacious accom modation facing the road and the landlady 's son has one with irregular dimension of 10 '9"in front and 3.8 ' in back in a lane in most unhygienic conditions, in front of which many doors of latrines of other houses open.
Therefore, on the one hand is the tenant in occupation of two big rooms in which he is carrying on business luxuriously whereas the landlady 's son is sandwiched in back of her own house in unhealthy surroundings with not enough place for 3 or 4 machines with two or three helpers what to say of trial room or other facilities for customers.
The pathetic and pitiable condition of the landlady with no injury to the tenant except that he shall be required to carry on business from one shop only are circumstances which prevent this Court from interfering with the order of the High Court as in our opinion substantial justice has been done between parties.
Therefore it appears unnecessary to examine if the High Court committed any error in exercise of jurisdiction under Section 100 Civil Procedure Code.
In the result the appeal fails and is dismissed.
But there shall be no order as to costs.
P.S.S. Appeal dismissed.
| IN-Abs | The respondent landlady sought eviction of the appellant under section 12(1)(f) of the M.P. Accommodation Control Act, 1961 on the ground of bona fide requirement for continuing tailoring business of her son, being carried on in a small room of the same premises.
The trial court accepted the claim.
The appellate court, however, allowed the appeal on the ground that the business of the landlady 's son was very poor and not growing at all and, therefore, the accommoda tion in his possession was not at all insufficient.
The High Court found that the need of the landlady was genuine and bona fide.
Dismissing the tenant 's appeal, this Court, HELD: The landlady whose husband at one time had a flourishing business was now in dire circumstances.
To keep both the ends meet the family depended not only on meagre income from rent and tailoring shop but the landlady had even to part with possession of another room of the same house adjacent to the shop in dispute to another tenant.
Financial difficulty apart, the tenant admittedly had two shops each with spacious accommodation facing the road while the landlady 's son had one with comparatively small and irregular dimension in a lane in most unhygienic conditions, with not enough place for 3 or 4 machines with two or three helpers, what to say of trial room or other facilities for customers.
The pathetic and pitiable condition of the land lady with no injury 40 the tenant except that he shall be required to carry on business from one shop only, do not call for interference with the order of the High Court.
[569A E]
|
ivil Appeal No. 539 of 1976.
From the Judgment and Order dated 26.8.1975 of the Gujarat High Court in Spl.
Civil Application No. 1627 of 1972.
Soli J. Sorabjee, Attorney General, A. Subba Rao, C.V.S. Rao, P. Parmeswaran and Ms. Nisha Bache for the Appellants.
S.K. Dhingra for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
By this appeal Union Government has challenged correctness of construction by High Court of Gujarat of notification No. 163 of 1965 issued under Rule 8 framed under Central Excise and Salt Act allowing exemption to all sorts of papers by "any factory commencing produc tion" to refer "not to the production of excisable goods paper in general failing under Item 17, but to pro duction of these specified exempted categories of paper in Column 2 of this notification" and canvasses for acceptance of the construction put on it by the Collector, Central Excise "that the factory must have commenced production on or after that date and not that the production of these items must have been commenced after the date".
M/s. Arvind Boards & Paper Products Limited, Antalia, Bilimora, Gujarat State, was established in 1942.
From 1944 when it went into production till 1964 it manufactured only straw boards and mill boards.
It expanded its activities in 1965 and commenced manufacture of duplex board.
The packing and wrapping paper was manufactured 661 on experimental basis in 1966 and on commercial basis after 1967.
In December, 1971 the company wrote a letter to the Assistant Collector of Central Excise inquiring as to wheth er the company would be entitled to exemption under notifi cation No. 163/65 both in respect of the production at tributable to its installed capacity as in 1967 as well as in respect of the production attributable to its expanded capacity.
In 1972 it was informed that it would be entitled to concession under Column 5 of the Table of the notifica tion in respect of the production attributable to the en larged capacity, namely, the third machine only.
Consequent ly the claim of the petitioners for exemption on capacity as it existed in 1967 was not accepted.
The order was main tained in appeal as well.
The Appellate Collector held: "I do not agree with the appellant 's contention that the Assistant Collector erred in holding that "any factory which commenced production" related to any factory manufacturing paper falling under Item 17 of the said schedule irrespec tive of the varieties manufactured thereof.
The exemption contained in the aforesaid Notification No. 163/65 as amend ed is in respect of the goods.
Said exemption is conditional i.e. it is applicable to paper produced in a factory which commenced production on or after a specific date.
Therefore, the condition is that the factory must have commenced pro duction on or after that date and not that the production of these items must have been commenced after that date.
" The High Court did not agree with the construction of the Notification made by the Collector (Appeal) and held: "That is why the whole controversy has arisen as regards these key words "commencement of production".
On a plain literal construction, bearing in mind the context of the exemption, where only certain specified categories of paper which is excisable item as specified in Column 2 had been exempted, it is obvious that the commencement of production must refer not to the production of excisable goods paper in general falling under item 17, but to production of these specified exempted categories of paper in Col. 2 of this notification.
Any other interpretation would make the speci fication of various kinds of paper in Column 2 which alone attracted exemption redundant and would make even this condition in Cols.
3, 4 and 5 unworkable.
" Excise duty was leviable under the Act on manufacture and clearance of paper under Item 17 of Schedule 1 to the Act.
It reads as 662 "MANUFACTURED GOODS CLASSIFIED CHIEFLY BY MATERIAL 17.
PAPER, all sorts (including pasteboard, millboard.
straw board and cardboard), in or in relation to the manu facture of which any process is ordinarily carried on with the aid of power '.
XXX XXX XXX (3) Printing and writing paper, packing and wrapping paper, straw board and pulp board, including grey board, corrugated board, duplex and triplex boards, other sorts . . 35 paise per kg." In 1965 the Central Government issued notification exempting papers of all sorts, from so much of the excise duty levi able thereon under the said item read within notification for the time being in force issued by the Central Government in relation to the duty so leviable, as is specified in the corresponding entry in Columns 3, 4, 5(a), 5(b) & 5(c) of the Table as the case may be: TABLE section Des Any factory Any factory Any factory commen cription which comm which comm production for the enced pro enced pro time on or after the duction duction on 1st March, 1964, or before the or after the any factory existing 1st April, 1st April, immediately, before 1961.
1961 but the 1st March 1964 before the whose production 1st March capacity has been 1964.
enlarged and brought into operation on or after the extent such production is attributable to the enlarge capacity.
During the During During the first 12 the period months of second subsequent the com 12 mon to the first mencement mence 24 months of produc ment of of the com duction.
produc mencement of produc tion.
663 1 2 3 4 5(a) 5(b) 5(c) Entitlement of exemption depends on construction of the expression "any factory commencing production" used in the Table extracted above.
Literally exemption is freedom from liability, tax or duty.
Fiscally it may assume varying shapes, specially in a growing economy.
For instance tax holiday to new units, concessional rate of tax to goods or persons for limited period or with the specific objective etc.
That is why its construction, unlike charging provi sion, has to be tested on different touchstone.
Infact an exemption provision is like an exception and on normal principle of construction or interpretation of statutes it is construed strictly either because of legislative inten tion or on economic justification of inequitable burden or progressive approach of fiscal provisions intended to aug ment state revenue.
But once exception or exemption becomes applicable no rule or principle requires it to be construed strictly.
Truly, speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it.
When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about ap plicability is lifted and the subject fails in the notifica tion then full play should be given to it and it calls for a wider and liberal construction.
Therefore, the first exer cise that has to be undertaken is if the production of packing and wrapping material in the factory as it existed prior to 1964 is covered in the notification.
From the table extracted above it is clear that it is in two parts and exemption is allowable in the first part to the factory commencing production on or after 31st March, 1964, and in the second part to the existing factory to extent of enlarged capacity.
If the first part is read in isolation it is susceptible of construction as was adopted by the High Court.
But the notification has to be read in its entirety and constured as a whole.
Once that is done cloud of uncertainty disappears.
A close reading of both the parts together leaves no room for doubt that it was intended to be exhaustive granting exemption to all factories produc ing packing and wrapping paper whether existing or commenc ing production from 1st March, 1964.
To the former to the extent of enlarged capacity and to latter to full extent.
The ambiguity arose because of absence of words new before 'factory ' or goods after the word 'production ' in the first clause.
To harmonise it the High Court added the words 'goods '.
But what was lost sight of that the words 'commenc ing ' in the first part and 'existing ' in the second part had to be read in juxtaposition.
That is all those factories which were existing from before 664 were entitled to exemption on production of goods to the extent of enlarged capacity.
This enlargement could be as a result of installation of additional machinery.
The word 'capacity must necessarily relate to capacity of factory and not to goods.
For instance a factory with capacity of say 1 lakh kg. of paper but producing only 75 thousand kg.
achiev ing maximum after 1964 could not be covered in the clause as the production cannot be held to be due to enlarged capaci ty.
That could be only if the capacity to produce goods increased due to installation of additional machinery.
If this be true and correct, as it appears to be, then the first part presents no difficulty.
The expression 'commenc ing production ' has to be read as commencing production of goods by a factory which was not existing and has started production on or after 1st March, 1864.
Any other construc tion shall result in discrimination.
A factory like respond ent existing from 1942 producing straw board and mill board shall be entitled to exemption on production of wrapping and packing paper on construction of the expression 'commencing production ' by the High Court even though it switched over from straw board and mill board to packing and wrapping paper after the relevant date whereas another unit existing and producing wrapping and packing paper itself from before 1st March, 1964 could not be entitled to exemption except to the extent of enlarged capacity.
That is if an existing unit would have installed a new machinery it would have been entitled to exemption of production only to that extent whereas any unit producing goods other than the exempted goods would become entitled to exemption in respect of entire production.
That could not have been the intention.
A construction which results in inequitable results and is incongruous, has to be avoided.
Therefore, production of packing and wrapping paper by respondent was entitled to exemption only to the extent it was attributable to enlarged capacity and not to the existing capacity.
Hansraj Goverdhan vs
H.H. Dave, Asstt.
Collector, Central Excise & Customs, Surat and Others, relied on behalf of respondent demonstrates mis conception about interpreting an exemption provision.
It was a case where goods of third persons were manufactured by cooperative society.
But once initial hurdle was crossed and it was held that goods had been produced by cooperative society it was found squarely covered in the notification and the Court extended it to goods manufactured by third persons and repelled the submission that object of granting exemption was to encourage formation of cooperative societies and it should be confined to goods manufactured by its members and not others.
Similarly in Commissioner of Income Tax vs Madho Prasad, ; the provision 665 allowing exemption to 'such part of the income in respect of which the said tax is payable.
under the head 'property ' as is equal to the amount of rent payable for a year ', was construed liberally and it was held that the expression 'equal to the amount of rent payable for a year ' did not 'warrant the inference that the benefit of exemption ' could 'be claimed only once ' because the amount of rent which was sought to be deducted in more than one years was found squarely to fall in Item 36 of notification.
It was again a case of interpreting an exemption notification at later stage.
Recently in Tata Oil Mills Co. Ltd. vs Collector of Central Excise, ; , exemption was to soap made from indigenous rice bran oil as against edible oil.
The assessee was engaged in manufacture of soap from rice bran fatty acid which was extracted from rice bran oil, in assesses factory.
It was found rice bran oil as such could not be used unless it was converted into fatty acid.
Therefore the assessee was covered in the notification.
Once the ambiguity or about manufacture of soap from rice bran fatty acid was removed the Bench proceeded to construe the word "indigenous" in the notification liberally.
In Collector of Central Excise vs Parle Exports (P) Ltd., AIR 1989 644 this Court while accepting that exemption clause should be construed liberally applied rigorous test for determining if expensive items like Gold Spot base or Limca base or Thums Up base were covered in the expression food products and food preparations used in item No. 68 of First Schedule of Central Excise and Salt Act and held 'that it should not be in consonance with spirit and the reason of law to give exemption for non alchoholic beverage basis under the notification in question. ' Rationale or Ratio is same.
Do not extend or widen the ambit at stage of applicability.
But once that hurdle is crossed construe it liberally.
Since the respondent did not fall in the first clause of the notification there was no question of giving the clause a liberal construction and hold that production of goods by respondent mentioned in the notification were entitled to benefit.
In the result this appeal succeeds and is allowed.
The order of the High Court is set aside and the Writ Petition is dismissed with costs.
R.N.J. Appeal allowed.
| IN-Abs | The Respondent Company which was established in 1942 went into production in 1944 manufacturing Straw Boards and Mill boards only uptil the year 1964.
In 1965 it expanded its activities by manufacturing duplex board.
In the follow ing year it started manufacturing packing and wrapping paper on experimental basis and on commercial basis after 1967.
Sometime in 1971 the Company wrote to the Assistant Collec tor of Central Excise enquiring as to whether it would be entitled to exemption from duty under Notification No. 163/1965 both in respect of production attributable to its installed capacity as in 1967 as well as in respect of production attributable to its expanded capacity.
The As sistant Collector passed an Order holding the company was entitled to concession under column 5 of the Table of the Notification No. 163 of 1965 in respect of production at tributable to its enlarged capacity namely, the third ma chine and rejected its claim for exemption on production attributable to its capacity as it existed in 1967.
Dissat isfied the company preferred appeal to the Appellate Collec tor who maintained the order of the Assistant Collector.
The Respondent Company thereupon moved the High Court by a writ petition under Article 226 of the Constitution of India.
In allowing the writ Petition the High Court held that on a plain literal construction it is obvious that the commencement of production must refer not to the production of excisable goods paper in general failing under item 17.
but to production of those specified exempted categories of paper in column 2 of the aforesaid notification.
Hence this appeal by the Union of India.
Allowing the appeal and dismissing the Writ Petition of the Company.
this Court.
HELD: When the question is whether a subject falls in the Notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is removed and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction.
[663D E] A close reading of both parts of the Notification together leaves no 660 room for doubt that it was intended to be exhaustive grant ing exemption to all factories producing packing and wrap ping paper whether existing or commencing production from 1st March.
1964 to the former to the extent of enlarged capacity and to latter to the full extent.
[663G H] As the Respondent Company did not fall in the first clause of the notification there was no question of giving the clause a liberal construction and hold that production of goods by the Respondent mentioned in the Notification were entitled to the benefit.
Production of packing and wrapping paper by Respondent was entitled to exemption only to the extent it was at tributable to enlarged capacity and not to the existing capacity.
[665F; 664F] Hansraj Goverdhan vs H.H. Dave, Asstt.
Collector, Cen tral Excise & Customs, Surat and Others, [1969] 2 S.C.R. 2.52; Commissioner of Inome tax vs Madho Prasad, ; ; Tara Oil Mills Co. Ltd. vs Collector of Central Excise, ; referred to.
|
ivil Appeal Nos.
1936 & 1937 of 1990.
From the Judgment and Order dated 26.7.1989 of the Delhi High Court in C.W.P. No. 852 of 1989 and 2852 of 1988.
S.K.Mehta, Aman Vachhar and Atul Nanda for the Appellants.
S.C. Manohanda, Manoj Arora, V.K. Sharma and R.K. Maheshwari for the Respondents.
630 The Judgment of the Court was delivered by RANGANATHAN, J.
After hearing counsel for all parties, we grant special leave in these two petitions and proceed to dispose of the appeals finally by this common order as the point involved is a common one.
We are dealing with the matter at some length as it raises certain important aspects of the Stamp Act, 1899 and the which are likely to come up for consideration frequently.
Shanti Devi, the petitioner in SLP No. 15093 of 1989, was the highest bidder at an auction sale of house property bearing No. A 205, Defence Colony, New Delhi con ducted on 29.2.88 by the Tax Recovery Officer (T.R.O.) for realising the income tax dues of its owner.
Her bid was accepted and the sale confirmed on 13.4.1988.
On 14.4.1988 a certificate of sale was issued by the T.R.O. to the peti tioner.
Under the relevant rules, a copy of the certificate of sale should have been endorsed to the Sub Registrar but it was actually sent to the Sub Registrar on 12.5.1988.
The petitioner in SLP No. 138 of 1990 purchased property bearing No. 112 113, Gautam Nagar, Delhi at an auction conducted by the Income tax department.
A certificate of sale in their favour was issued on 23.5.1988.
A copy of the sale certifi cate was forwarded by the T.R.O. to the Sub Registrar.
The purchasers thereafter attempted to get the property registered by the Sub Registrar in their names.
The Sub Registrar and the Collector of Stamps did not accede to this request apparently on the ground that this could not be done unless stamp duty was paid on the certificate of sale.
On the petitioner 's request, the T.R.O. also addressed a couple of letters to the Sub Registrar and Collector which may be referred to here.
With his letter dated 12.5.1988 to the former, the T.R.O. enclosed an extract from the Tax Recovery Inspectors Manual issued by the Income Tax department which reads as follows: "After confirmation of sale of immovable property a certificate in form ITCP 20 will be issued.
The original of this sale certificate is liable for stamp duty and a further duty of Rs.4.50 is also chargeable on the copy of the sale certificate to be forwarded to the Sub Registrar.
These charges (which may vary from State to State) are to be borne by the auction purchaser.
The original sale certificate thus issued will be the title for the property and it has the same value as a sale deed and it does not require registra tion by the purchaser.
Thus the auction purchaser is saved expenses of 631 registration etc.
This office itself will send a copy of the sale certificate for registration to the concerned Sub Registrar for making necessary entries in his registers." (underlining ours) The Collector of Stamps was addressed directly by the T.R.O. on 29.9.1988 in relation to the Gautam Nagar property.
In that letter the T.R.O. stated that he had received legal advice that no stamp duty was payable on the certificate of sale.
The attention of the Collector was drawn to the fact that a copy of the sale certificate had been sent to the Sub Registrar as required under Rule 21 of the Income tax (Certificate Proceedings) Rules ITCP rules which runs as follows: "21.
Every Tax Recovery Officer granting a certificate of sale to the purchaser of immovable property sold under the second schedule shall send a copy of such certificate to the Registering Officer concerned under the Indian ( 18 of 1908) within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in the certificate is situate.
" The Collector was requested to inform the Sub Registrar accordingly to make necessary entries in the registers regarding the auction sale of the above immovable property on the basis of the copy of sale certificate sent to him.
Apparently, no further action was taken by the Sub Registrar or Collector in the matter and, hence, each of the petitioners applied to the Delhi High Court under Article 226 of the Constitution.
The T.R.O., the Collector, the Sub Registrar, Delhi Administration and the Municipal Corpo ration of Delhi were impleaded as respondents.
The petition er prayed for a writ of mandamus or any appropriate writ or order or direction to the respondents to register the cer tificate of sale and mutate the property in the name of the petitioner.
The Delhi Administration and the Municipal Corporation were added as parties since they did not respond to the petitioner 's request to effect mutation entries in the Corporation register, presumably on account of the petitioner 's failure to pay the "transfer fees" leviable as additional stamp duty under the Delhi Municipal Act.
The writ petition was dismissed at the stage of admission by the Delhi High Court.
The learned Judges passed a short order to the following effect: "Under section 29(f), read with Schedule I (Article 18) and section 3 632 of the Stamp Act, the liability to pay the Stamp Duty is of the purchaser, unless there is a specific contract to the contrary in this regard.
In this case the auction notice is silent as to who is to pay the Stamp Duty.
In other words, it does not create liability for the Government to pay the Stamp Duty.
Hence the general provisions of law which are quoted above would be applicable.
Dismissed.
" Each of the petitioners has thereupon, preferred this spe cial leave petition before this Court.
On the above facts, three different and separate ques tions arise for consideration: (1) What is the action to be taken by the SubRegistrar when the copy of a certificate of sale is forwarded to him by the T.R.O.? (2) Is the vendee in a sale by the T.R.O. entitled to ask the T.R.O. to make entries regarding the transfer in his records on the basis of the copy of the certificate of sale sent to him by the T.R.O.? (3) What is the procedure to be followed by the Sub Registrar when the original certificate of sale is produced before him by the vendee? The first of the above questions is directly answered by section 89 of the Indian .
This section provides for the procedure to be followed in certain situa tions; in particular, in cases where sales are effected either by courts under the Code of Civil Procedure or by revenue officers in pursuance of a revenue recovery certifi cate.
Under section 89(2), every court granting a certificate of sale of immovable property under the Code of Civil Proce dure, 1908, shall send a copy of such certificate to the registering officer within the local limits of whose juris diction the whole or any part of the immovable property comprised in such certificate is situate.
Sub section (4) of section 89 makes a similar provision in respect of immovable properties sold by public auction by a revenue officer who issues a certificate of sale in pursuance of the auction.
The sub sections further provide that when the copy of the certificate of sale is so received, such "registering offi cer snail file the copy or copies; the case may be, in his Book No. 1.
" So far as sales for recovery of income tax are concerned, rule 21 of the ITCP rules, quoted earlier, makes a like provision requiring the concerned T.R.O. to send a copy of :he certificate of sale to the registering officer concerned.
A doubt may arise whether the expression revenue officer ' in section 84 (4) of the includes a T.R.O.; and, if not, whether, without an appropriate amend ment of section 89 (2) or (4) of the , the mere framing of a rule by the Central Board of Direct Taxes under the Income tax Act, 1961 will be 633 sufficient to oblige the registration officer to file a copy of the certificate of sale sent to him by the T.R.O. in his Book No. 1.
In our opinion, there is no need to read the term 'revenue officer ' in any restricted sense and that it is wide and comprehensive enough to include the T.R.O. who effects a compulsory sale for the recovery of an income tax demand.
We are therefore clear that, in the present case, the registration officer has to act in terms of section 89(4) of the Indian read with rule 21 of the ITCP rules.
This is to file the copy of the certificate of sale received by him from the T.R.O. in his Book No. 1.
This takes us to the second question as to whether filing of a copy of the certificate in Book No. 1 within the meaning of section 89 is tantamount to the registration of the document under the or it is a totally different concept.
The registration of a document under the Act is conditional on the fulfilment of several requirements (Ss. 32 to 35).
The document has to be presented for regis tration by a person competent to do so.
The persons execut ing the document should appear before the Sub Registrar and admit or deny execution of the document.
The Sub Registrar may conduct an enquiry, where needed, to satisfy himself as to the proper execution of the document.
He will decide to admit the document to registration only if he is satisfied on this.
What he has to do once he admits a document to registration is laid down in Ss. 51 to 67.
First, he is bound to endorse full particulars and details of the regis tration on the document presented to him and also obtain the signature of every person presenting the document.
He should then, without delay copy the entire document in the appro priate book maintained for the purpose (which, in respect of non testamentary instruments relating to immovable property, is Book No. 1).
The entries in each book nave to be consecu tively numbered year wise and corresponding entries should be contemporaneously made in current indices to be main tained in every office.
The officer should affix his signa tures to the endorsements made in his presence and then endorse a certificate on the document that it is registered together with the registration particulars which shall be signed, sealed and dated by him.
The document is then re turned to the person presenting it for registration.
The books and indices are available for public inspection and certified copies thereof are to be given to parties applying for them.
This, in brief, is the process of registration.
On the other hand, the process of filing that is contem plated under the Act is somewhat different though the Act does interchange 634 the two expressions in some places.
For instance, section 51(2) itself refers to all documents or memoranda registered under section 89 being entered or filed in Book No. 1.
But there appear to be vital differences between the two processes: (i) It is the original of a document that is registered whereas only copies or memoranda are filed; (ii) The executant of a document which is required to be registered, has to present it for registration and go through the attendant and subsequent processes described above.
A copy to be filed under section 89 or memoranda that are filed under Ss. 64 to 66 is simply transmitted to the con cerned Sub Registrar for being filed.
Apparently, the proce dure of presentation is dispensed with in regard to the latter because they are issued by public authorities dis charging their official duties.
(iii) Additional particulars relevant to a document admitted to registration need to be got endorsed thereon from time to time as contemplated in Ss. 58 and 59 but this rule does not apply to a copy or memorandum filed under the Act.
(iv) When a document is registered, the entirety of the document has to be copied out into the relevant book and the original document returned to the person who presents the document with necessary endorsements.
This requirement is absent in the case of a copy or memorandum which is just filed.
(v) Where a document is registered, a certificate of regis tration has to be issued which will be admissible to prove the due registration of the document.
There are thus some differences between the two pro ceedures and this aspect has been touched upon in some very early decisions under the Registration Act, 1877: vide, Fatteh Singh vs Daropadi, [1908] Punj.
Case No. 142; Siraj un nissa vs Jan Muhammad, ; Masarat un nissa vs Adit Ram, All. 568 (F.B.).
Refer ence may also be made to Premier Vegetable P. Ltd. vs State, AIR 1986 M.P. 258.
We need not, however, consider for the purposes of this case whether filing and registration mean one and the same thing for all purposes and ' what the legal effect of these differences is.
For, though the processes are different, the purchaser at a court or revenue sale is under no disadvantage because of the lack of 635 registration.
The certificate of sale itself not being a compulsorily registrable document: vide section 17(2)(xii), the transfer of title in his favour is not vitiated by the non registration of the certificate.
The copy of the certificate filed in Book No. 1 contains all the relevant details.
These details are reflected in the indices maintained under section 55 which are open to inspection to all persons.
(We may point out here that section 55(2) only refers to memoranda filed but it seems clear, particularly in the light of various State amendments, that the index to Book No. 1 should also contain the details of copies of document filed by him).
These requirements are sufficient to ensure that any person in tending to purchase or deal with the property is put on notice about the principal contents of the certificate of sale provided he inspects the relevant book and/or index.
It is sufficient to say, for the purposes of this case, that all that the Sub Registrar required to do is to file the copy of the certificate in Book No. 1 and no more.
He does not have to copy out the certificate or make any other entries in Book No. 1.
We now come to the last question and that is whether the certificate of sale is liable to stamp duty and, if so, what the consequences are.
The High Court has referred to section 3, section 29(f) and Article 18 of Schedule I to the Stamp Act.
This provision applies in the absence of a contract to the con trary.
Prima facie, therefore, the view taken by the High Court and there are other decisions also to the same ef fect is correct unless a contract to the contrary can be spelt out.
The auction notice did not promise any exemption from stamp duty.
The extract quoted earlier from the Depart mental Manual (viz. that both the certificate and copy are liable to stamp duty) also renders it unlikely that any promise was given by the TRO at the time of sale that no stamp duty will be payable.
However the T.R.O. 's letter to the Collector referring to the legal advice obtained by him strikes a somewhat inconsistent note.
Even if there had been any such mention by the TRO or the auctioneer, the question would arise whether it can be construed as a contract to the contrary binding on the Union for the purposes of section 29(f) of the Stamp Act.
Sri Mehta requests that we may not now go into these questions but leave the issue to be decided as and when the petitioners seek to have the certificate of registration registered or introduced in evidence before any court or authority entitled to take evidence which is at present a remote contingency.
There are two provisions in the Stamp Act which provide for the adjudication of stamp duty.
Under section 31, it is open to the executants of any document, at any stage but within the time limit set out in section 32, to produce a document before the Collector of Stamps and require him to 636 adjudicate on the question whether the document should bear any stamp duty.
The Collector thereupon may adjudicate the stamp duty himself or refer the matter to the Chief Control ling Revenue Authority of the State.
In turn, it is open to the Chief Controlling Revenue Authority to refer the matter to the High Court for an authoritative decision (Ss. 32 and 56).
This procedure could have been followed by the peti tioners if they wished to seek an answer to the question whether the certificate of sale is liable to stamp duty but they have not done it and the time limit under section 32 has run out.
The other provision that may become applicable is section 33.
Under this section, if any document (and this includes a certificate of sale) is presented to the Registrar for registration and the Registrar is of opinion that it is a document which should bear stamp duty but that it has not been stamped, it is his duty to impound the document and send it on to the Collector of Stamps for necessary adjudi cation (section 38).
This contingency has also not happened.
The third contingency, also provided for in section 33 is when a party wishes to rely upon the certificate of sale as a piece of evidence before a court or an authority entitled to take evidence.
Such court or authority will also have to impound the document and shall not admit the same in evidence unless the stamp duty chargeable and the stipulated penalty are paid.
This situation has not arisen so far but may arise at some time in future.
It is unnecessary to anticipate the same and decide the issue.
We shall therefore leave the issue of stamp duty to be adjudicated upon in the normal course, as and when found necessary, and express no views thereon at this stage.
We should, however, like to deal with a contention raised in the grounds that even if the certificate of regis tration is sought to be presented for registration by the petitioners, the Sub Registrar has no jurisdiction to refuse registration on the ground that the document is insuffi ciently stamped.
As already pointed out, section 17(2)(xii) of the Registration Act makes it clear that the certificate of sale issued in a court sale or by a revenue officer does not need registration.
(Though this provision, like section 89, relates only to a certificate of sale granted to the pur chaser of any property sold by public auction by a civil court or revenue officer, for the same reasons as have been set out earlier, we think that the certificate issued by the TRO is also covered by this provision).
It is, therefore, clear that it is not obligatory on the purchaser of property in a tax recovery sale to get the certificate of sale regis tered in order to perfect his title.
However, if he presents the original certificate of sale to the Registration Officer for registration, the Registration Officer will have to comply with the relevant statutory provisions in this re gard.
However this situation has not arisen as yet 637 and it is unnecessary to anticipate it and decide the point.
We therefore do not express any opinion thereon.
This leaves for consideration the question in regard to the municipal transfer fee.
No details have been placed before us on this issue.
The payability of the municipal transfer fee perhaps depends upon the payability of stamp duty but our attention has not been invited to the relevant statutory provisions or their interpretation.
The High Court has given no separate finding on this issue.
We also express no opinion particularly since we are not expressing any opinion on the question as to whether Stamp Duty is payable on the certificate of sale or not.
It will be open to the petitioners to contest this levy in other appropriate pro ceedings.
For the above reasons, we are of opinion that these appeals have to be allowed in part.
The Sub Registrar is directed to file the copy of the certificate of sale re ceived by him from the T.R.O. in his Book No. 1 as required by section 89(4) of the Act read with rule 21 of the Income tax (Certificate Proceedings) Rules, 1962.
The petitioners are entitled to ask for nothing more.
We express no opinion on the question as to whether any stamp duty or municipal transfer fees are payable in respect of the original certif icate of sale.
The appeals are accordingly disposed of.
There will be no order as to costs.
N.P.V. Appeals allowed partly.
| IN-Abs | The appellants purchased properties in auction sales conducted by the Tax Recovery Officer for recovery of income tax and were issued sale certificates.
Copies of certifi cates were also sent to the SubRegistrar, as required under Rule 21 of the Income Tax (Certificate) Proceedings Rules ITCP Rules.
The appellants approached the SubRegis trar for getting the properties registered in their names but the Sub Registrar and the Collector of Stamps refused to do so unless stamp duty was paid on the certificate of sale.
At the appellants ' request, the Tax Recovery Officer also addressed the two officers for getting the entries made in the Register on the basis of the copy of sale certificate.
He also informed the Collector of Stamps that according to the legal advice given to him no stamp duty was payable on the certificate of sale.
However, no action was taken by either of the officers.
The appellants ' request to Delhi Administration and Municipal Corporation to effect mutation entries in the Corporation Register, was also not acceded to on account of the appellants ' failure to pay the transfer fees, leviable as additional stamp duty under the Delhi Municipal Act.
Therefore, the appellants filed writ peti tions before the High Court praying for directions to the respondents to register the certificate of sale and mutate the property in the name of the appellants.
The High Court dismissed the petitions holding that, in the absence of specific contract to the contrary, the liability to pay the stamp duty was that of the purchaser.
628 Allowing the appeals by the purchasers, partly, this Court, HELD: 1.
Under section 89(4), every Revenue Officer, granting a certificate of sale of immovable property or public auction should send a copy of such certificate to the registering officer within the local limits of whose juris diction the whole or any part of the immovable property comprised in such certificate is situate, and such register ing officer shall file the copy or copies, as the case may be, in his Book No. 1.
So far as sales for recovery of income tax are concerned rule 21 of the ITCP Rules, makes a like provision requiring the concerned T.R.O. to send a copy of the certificate of sale to the registering officer con cerned.
[632E G] There is no need to read the term 'revenue officer ' in any restricted sense.
It is wide and comprehensive enough to include the T.R.O. who effects a compulsory sale for the recovery of an income tax demand.
The registration officer has to act in terms of section 89(4) of the Indian Registra tion Act read with Rule 21 of the ITCP Rules and file the copy of the certificate of sale received by him from the T.R.O. in his Book No. 1.
[633A B] 2.
Section 17(2)(xii) of the makes it clear that the certificate of sale issued in a court sale or by a revenue officer does not need registra tion.
Though this provision, like section 89, relates only to a certificate of sale granted to the purchaser of any property sold by public auction by a civil court or revenue officer, the certificate issued by the T.R.O. is also cov ered by this provision.
It is, therefore, not obligatory on the purchaser of property in a tax recovery sale to get the certificate of sale registered in order to perfect his title.
However, if he presents the original certificate of sale to the Registration Officer for registration, the Registration Officer will have to comply with the relevant statutory provision in this regard.
[636F H] 3.1 The Certificate of sale itself not being a compulso rily registerable document: vide section 17(2)(xii), the transfer of title in favour of the purchaser is not vitiated by the non registration of the certificate.
The copy of the certificate filed in Book No. 1 contains all the relevant details.
These details are reflected in the indices main tained under section 55 which are open to inspection to all persons.
These requirements are sufficient to ensure that any person intending to purchase or deal with the property is put on notice about the principal contents of the certif icate of sale provided he inspects the relevant book and/or index.
[635A C] 629 3.2 Therefore, in the instant case, all that the Sub Registrar is required to do is to file the copy of the certificate in Book No. 1 and no more.
He does not have to copy out the certificate or make any other entries in Book No. 1.
[635C] 4.1 Under Sections 3, 29(f) and Article 18 of Schedule I of the Stamp Act, 1899 the liability to pay stamp duty is of the purchaser to the contrary can be spelt out.
[635D] In the instant case, the auction notice did not promise any exemption from stamp duty.
The Tax Recovery Inspectors ' Manual which states that both the certificate and copies are liable to stamp duty, also renders it unlikely that any promise was given by T.R.O. at the time of sale that no stamp duty will be payable.
However, the T.R.O. 's letter to the Collector of stamps referring to the legal advice given to him strikes a some what inconsistent note.
However, the issue of stamp duty is felt to be adjudicated upon in the normal course, as and when found necessary.
[635E G] 4.2 The payability of municipal transfer fee depends upon the payability of stamp duty.
It will be open to the appellants to contest this levy in other appropriate pro ceedings.
[637B] 5.
The Sub Registrar is directed to file the copy of the certificate of sale received by him from the T.R.O. in his Book No. 1 as required by section 89(4) of the read with Rule 21 of the IncomeTax (Certificate Proceed ings) Rules, 1962.
[637D] Fatteh Singh vs
Daropadi, [1908] Punj.
Case No. 142; Sirajun nissa vs Jan Muhammad, ; Masarat un nissa vs Adit Ram, All. 568 (F.B.) and Premier Vegetable P. Ltd. vs State, AIR 1986 M.P. 258.
referred to.
|
ivil Appeal No. 1995 of 1990.
From the Judgment and Order dated 23.11.1988 of the Patna High Court in C.W.J.C. No. 8457 of 1988.
A.K. Sen. Shankar Ghosh and M.P. Jha for the Appellant.
G.S. Misra for the Respondents.
The Judgment of the Court was delivered by J.
This appeal on special leave is directed against the judgment and order dated November 23, 1988 passed in C.W.J.C. No. 8457 of 1988 by the High Court, Patna dismiss ing the writ petition moved by the appellant assailing the order of his compulsory retirement from service by notifica tion dated October 26, 1988 issued by the Government of Bihar compulsorily retiring him from service with effect from the date of issue of the notification.
The salient facts giving rise to this appeal are that the appellant was initially appointed on December 9, 1957 to the post of Industrial Expansion Officer and he was con firmed to the said post on May 15, 682 1958.
The appellant was promoted to the post of Planning cum Evaluation officer, a Gazetted post, on December 19, 1973 because of his excellent service career.
The appellant was further promoted to the next higher post of Industrial Economist by notification dated September 24, 1983 with effect from December 19, 1978 in the scale of Rs.1350 2000.
Because of excellent character role and merit of the appellant, he was promoted to the next higher post of Joint Director in his original scale of pay of Rs.1350 2000 with 20 per cent personal pay for holding such higher post which he held from September 24, 1983 to March 31, 1984.
From April 1, 1984 the appellant was provided with the higher post of General Manager under the respondent State in its Industries Department.
The respondent State issued a notification on September 16, 1988 promoting a large number of juniors to the higher scale of Rs.1575 2300 without considering the case of the appellant.
Being aggrieved the appellant filed one representation against his supersession which was made without considering the case of the appellant.
The representation was filed on October 7, 1988.
In the said representation the appellant brought to the notice of the respondent State that the serv ice record of the appellant throughout remained excellent, integrity beyond doubt and the appellant was never communi cated with any punishment in his service career.
While the appellant was awaiting for a decision, the respondent State issued the impugned notification dated October 26, 1988 compulsorily retiring the appellant from the post of General Manager, District Industries Centre, Deoghar under the provisions of Rule 74(b)(ii) of the Bihar Service Code.
The appellant claimed that the aforesaid order of com pulsory retirement has been issued by the respondent State on the basis of a memorandum dated October 6, 1988 though in the garb of Rule 74(b)(ii) of the Bihar Service Code, but in fact this has been made as a measure of punishment.
Being aggrieved and dissatisfied by the order of compul sory retirement passed against him by the respondents, the appellant preferred a writ petition being C.W.J.C. No. 8457 of 1988 before the High Court, Patna questioning the im pugned order on the grounds inter alia 683 that the appellant throughout his 30 years had an exemplary service career and his integrity remained unquestionable, that the appellant was never communicated with any adverse remarks nor any departmental proceeding was ever initiated against the appellant, nor any explanation was ever called for.
The High Court without at all considering and appreci ating the contentions dismissed the writ application by a laconic order.
Feeling aggrieved by the said order the instant appeal on special leave has been filed.
The only crucial question that fails for consideration in this Court is whether the impugned order of compulsory retirement from service has been made by the Appointing Authority in public interest in accordance with Rule 74(b)(ii) of Bihar Service Code, 1979 or for any oblique motive as an extraneous consideration or by way of punish ment casting stigma on the service career of the appellant even though the impugned order was couched in innocuous language.
The relevant Rule 74(b) reads as follows: "Rule 74(b)(i): Notwithstanding anything contained in the preceding subrule a Government Servant may, after giving at least three months ' previous notice, in writing, to the appointing authority concerned, retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or any date thereafter to be specified in the notice.
Provided that no Government servant under suspension shall retire from service except with the specific approval of the State Government.
Provided further that in case of officers and servants of the Patna High Court (including those of Circuit Bench at Ranchi), under the rule marking authority of the Chief Justice, no such officers and servants under suspension shall retire from service except with the specific approval of the Chief Justice.
Rule 74(b)(ii): The appointing authority concerned may, after giving a Government servant at least three months ' previous 684 notice in writing, or an amount equal to three months ' pay and allowances in lieu of such notice, require him in public interest to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date there after to be specified in the notice.
" On a plain reading of the said Rule it appears that the appointing authority has been conferred power to retire a government servant from service in public interest after giving three months ' prior notice in writing or an amount equal to three months ' pay and allowances in lieu of such notice on the date on which such government servant com pletes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.
The impugned notification was made on October 26, 1988 by the Government of Bihar intimating the appellant that as he had completed the age of more than 50 years, and in the opinion of the Government of Bihar, in public inter est he is compulsorily retired from service with effect from the date of issue of this notification.
He will be paid salary of three months with allowances in lieu of three months ' notice under Rule 74(b)(ii) of Bihar Service Code.
It has been contended on behalf of the appellant that though the impugned order is couched in innocuous terms and it is made in compliance with the provisions of Rule 74(b)(ii) of Bihar Service Code on appellant 's reaching the age of more than 50 years and it does not prima facie appear to cast any stigma on the service career of the appellant yet it has been made by way of punishment casting stigma on the appellant 's service career and as such the impugned order is illegal, bad and the same has been made in viola tion of audi alterem partem rule as well as Article 311(2) of the Constitution.
It has been further submitted in this connection that the power to retire the appellant compulso rily from service has not been made in public interest under Rule 74(b)(ii) of Bihar Service Code but on the basis of the fact finding report given by the Deputy Development Commis sioner, Dumka by his letter dated September 19, 1987 re garding grave financial irregularities committed by the appellant in consideration of which a memorandum was pre pared by the Additional Commissioner cum Special Secretary, Shri T. Nand Kumar on October 6, 1988 recommending to the respondent State to compulsorily retire the appellant from service under Rule 74(b)(ii) of Bihar Code.
It has also been contended that the basis of the order was made with oblique purposes 685 in consideration of extraneous matter and the impugned order purports to removal from service on certain serious allega tions of misconduct and consequently it casts a stigma on the service career of the appellant.
Such order of compulso ry retirement from service though appears to be innocuous, has been made by way of punishment and as such it is liable to be set aside and quashed.
It has, on the other hand, been urged on behalf of the respondent State that the impugned order has been made under Rule 74(b)(ii) of Bihar Service Code in public interest and there is nothing to show from the order itself that it has been made by way of punishment and it casts a stigma on the service career of the appellant.
The language of the order is innocuous.
The appellant cannot delve into the secretari at files to find out the basis of the order.
Some decisions have been cited at the bar in support of this submission.
Rule 74(b)(ii) of the Bihar Service Code confers power on the Appointing Authority to compulsorily retire a govern ment servant on his attaining 50 years of age or after completing 30 years of qualifying service in public inter est.
The object of this rule is to get rid of the government servant who has become dead wood.
This order is made only to do away with service of only those employees who have lost their utility, become useless and whose further continuance in service is considered not to be in public interest.
In the instant case the appellant has an unblemished career and undoubtedly by dint of his merit and flawless service career he had been promoted to the post of Joint Director in 1983 and subsequently on 1st April, 1984 he was promoted to the higher post of General Manager under the respondent State in its Industries Department.
The appellant has specifically pleaded in paragraph K of this appeal that he came to know that the impugned order of compulsory retirement has been issued by the respondent State on the basis of a memorandum dated October 6, 1988.
It has been further pleaded that the appellant came to know from the memorandum that the impugned order of compulsory retirement dated October 26, 1988 has been issued by the respondent State though in the garb of Rule 74(b)(ii) of the Bihar Service Code, but in fact the same has been issued as a measure of punishment.
This fact will be evident from the memorandum dated 6th October, 1988 wherein the State has alleged that six items of charges have been proved against the petitioner (appellant).
The State Government has also accepted that there is no question of going into the formality of departmental proceeding but has decided to retire the petitioner compulsorily under Rules 74(b)(ii) of the Bihar Service Code.
Paragraphs 686 2 to 4 of the Memorandum dated 6th October, 1988 make it clear that the impugned order dated October 26, 1988 of compulsory retirement, has been issued as a measure ' of punishment.
It is further submitted that the order passed on October 26, 1988 was without giving any notice or any show cause to the petitioner.
It has been stated in para 4 to 7 of the counter affidavit as under: (4) That it is not at all necessary to draw departmental proceeding against the petitioner (appellant) before effect ing his compulsory retirement from government service.
Since his retirement under Rule 74(b)(ii) of the Bihar Service Code does not amount to dismissal or removal from government service within the meaning of clause (2) of Article 311 of the Constitution, it is, therefore, not necessary to obtain the advice of the Bihar Public Service Commission (Limita tion of Functions) Regulation, 1956.
(5) That it is relevant to state that while the petitioner (appellant) was General Manager, District Industries Centre, Dumka and Deoghar during the year 1985 onwards till his compulsory retirement, an enquiry into the serious charges of corruption, omission and commission of financial and administrative lapses and foul play against him had been conducted respectively by Deputy Development Commissioner, Dumka, Deputy Commissioner, Dumka and Additional Director of Industries, Bihar, Patna.
The above charges were proved such as: (i) The charge of registration of bogus unit had clearly been established; (ii) Allegations of recommendations and sanction of capital subsidy on D.G. sets to bogus units have been proved; (iii) Where there were no D.G. sets and the unit was bogus, subsidy had been sanctioned against the departmental in structions; (iv) Seed money had been sanctioned to non existent units and payments made in violation of Government orders; 687 (v) Registration had been done for restricted items; (vi) Subsidy on D.G. sets had been sanctioned and payments made to units located outside his jurisdiction; and (vii) Appointment of persons had been made on ad hoc basis beyond his delegated powers in gross violation of Government rules.
(6) That in the above mentioned cases registration; recom mendations and payments had been made by the petitioner (appellant) after making personal inspections of the units which facts are sufficient to prove that he had commited the said irregularities knowingly for his personal gains and thereby the State Government had suffered a heavy loss.
This misconduct on his part had tarnished the image of the Gov ernment in the public.
It is, therefore, his so called exemplary service record which has no co relation with his compulsory retirement as stated in the aforesaid paragraph.
(7) That contention of the petitioner (appellant) as stated in para (viii) of the special leave petition that the memo randum which have formed the basis of causing the compulsory retirement of the petitioner (appellant), is absolutely wrong and without any substance.
It is relevant to state that the memorandum being confidential papers of the re spondent State Government cannot be termed as the Order of compulsory retirement and which order does not contain any word from which a stigma may be inferred.
" It has been further averred in para 8 of the said affi davit that on a perusal of the order of compulsory retire ment of the petitioner (appellant), it is sufficiently clear that no stigma has been attached to the petitioner nor there is any word in the said Order from which a stigma may be inferred.
The Supreme Court has held in the case of I.N. Saxsena vs The State of Madhya Pradesh, [967] 2 SCR 496 that where an order requiting a Government servant to retire compulsorily contains express words from which a stigma can be inferred that order will amount to removal within the meaning of Article 311.
But where there are no express words in the order itself which would throw any stigma on the Government order, we cannot delve into Secretariat files to discover whether some kind of stigma can be inferred on such research.
688 In para 9 it has been stated that it is, therefore, as per the decision of the Supreme Court in the said case, the Court cannot look into the background resulting in the passing of the order of compulsory retirement in order to discover whether some kind of stigma can be inferred and accordingly in the instant case the memorandum is totally irrelevant for the consideration by the Court and in view of the same the appeal of the appellant can be dismissed.
A supplementary affidavit has been filed on behalf of the appellant sworn by Suhird Kumar, son of the appellant.
In para 3 of the said affidavit it has been submitted that the memorandum is prepared on the basis of two enquiry reports done by the different officers without there being any notice or getting any other version and this sort of memorandum cannot be said to be a fair memorandum in the eyes of law and so any action taken by the State Government on the basis of the said Memorandum is bad and violative of Article 14 and 16 of the Constitution of India.
It is thus, clear and evident from the counter affidavit filed on behalf of the State Government referred to herein before that the basis of the impugned order of compulsory retirement from service of the appellant is not in public interest as stated in the order of compulsory retirement dated October 26, 1988.
The impugned order, in fact, has been passed on the basis of the memorandum dated October 6, 1988 which is also based on the Report given by the Deputy Development Commissioner, Dumka by his letter dated Septem ber 19, 1987 without asking any explanation from the appel lant and without giving him any opportunity to defend his case before the Deputy Development Commissioner.
It is, therefore, wrong to say that the basis of the order is not the said memorandum as well as the report of the Deputy Development Commissioner which clearly evinces that the impugned order of compulsory retirement is a mere camouflage being couched in innocuous terms and in fact the same has been made by way of punishment.
In support of the impugned order it has been vehemently urged on behalf of the respondent State that the order of compulsory retirement dated October 26, 1988 does not show prima facie that it has been made by way of punishment.
The Order as it is, speaks of compulsory retirement of the appellant from service in accordance with the provisions of Rule 74(b)(ii) of the Bihar Service Code.
It has been con tended further ' that this order being couched in innocuous terms cannot be questioned and the appellant cannot delve into the secre 689 tariat filed to find out the basis of the order and to challenge the same on that basis.
Reference has been made in this connection to the case of 1.
N. Saksena vs The State of Madhya Pradesh, (supra).
In that case, the State of Madhya Pradesh issued a memorandum on February 28, 1963 raising the age of retirement of its employees from 55 to 58 years.
Clause 5 of the memorandum, however, said that the appoint ing Authority may require a Government servant to retire after he attained the age of 55 years on three months ' notice without giving any reasons.
The clause further said that this power was normally to be used to weed out unsuit able employees.
The appellant who was a District and Ses sions Judge in the service of the State Government would normally have retired at the age of 55 years in August, 1963.
In September, 1963, however, Government communicated to.
him an order that he was to retire on December 31, 1963 under Rule 56 of the Fundamental Rules applicable to the State of Madhya Pradesh.
This order was challenged by the appellant by writ petition before the High Court of Madhya Pradesh.
It was rejected.
Thereafter, the appellant came with a certificate, to this court.
It has been held by this Court in that case that: "Where there are no express words in the order of compulsory retirement itself which would throw a stigma on the Govern ment servant, the Court would not delve into Secretariat files to discover whether some kind of stigma could be inferred on such research.
Since in the present case there are no words of stigma in the order compulsorily retiring the appellant, there was no removal requiring action under article 311 of the Constitution.
" This decision does not, in any way, apply to this case for the simple reason that in the affidavit in counter filed by the respondent State it has been categorically stated that while passing the impugned order of compulsory retirement the officers concerned were guided by the report dated September 19, 1987 submitted by the Deputy Development Commissioner, Dumka who stated in his report that the appel lant was responsible for the grave and serious financial irregularities resulting in financial loss to the State Government, without giving any opportunity of hearing and without intimating the allegations to the appellant before forming his opinion.
The said report was taken into consid eration and memorandum in question was issued on October 26, 1988 by the Additional Secretary, Industries Department, Government of Bihar wherein it has been clearly stated that the impugned order of compulsory retirement was made as the said mis 690 conduct on the part of the appellant tarnished the image of the Government in the public.
This categorical statement made in the affidavit in counter clearly proves that the basis of making the order of compulsory retirement of the appellant from the service is the aforesaid report of the Deputy Development Commissioner, Dumka referred to hereinbe fore.
In such circumstances, it is futile to argue that the order of compulsory retirement being couched in an innocuous language without causing any stigma is unassailable.
It is pertinent to mention in this connection the case of Shyam Lal vs The State of U.P. & Anr., ; wherein it has been held by the Constitution Bench that: "A compulsory retirement under the Civil Services (Classifi cation, Control and Appeal) Rules, does not amount to dis missal or removal within the meaning of Article 311 of the Constitution and therefore, does not fall within the provi sions of the said Article.
" "There is no such element of charge or imputation in the case of compulsory retirement.
The two requirements for compulsory retirement are that the officer has completed 25 years ' service and that it is in the public interest to dispense with his further services.
It is true that this power of compulsory retirement may be used when the authori ty exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to Article 465 A make it abundantly clear that an imputation or charge is not in terms made a condi tion for the exercise of the power.
In other words, a com pulsory retirement has no stigma or implication of misbeha viour or incapacity.
" It has been further held that: "A compulsory retirement does not amount to dismissal or removal and, therefore, does not attract the provisions of Article 311 of the Constitution.
In Baldev Raj Chadha vs Union of India and Ors., 1 it was held that: 691 "The whole purpose of Fundamental Rule 56(j) is to weed out the worthless without the punitive extremes covered by Article 311 of the Constitution.
But under the guise of 'public interest ' if unlimited direction is regarded accept able for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal.
The exercise of power must be bona fide and promote public interest.
" It has also been observed that: "An officer in continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immedi ately before the compulsory retirement cannot be compulsori ly retired on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms.
" In the case of Union of India vs Col. J.N. Sinha and Anr., [1971] 1 SCR 791 it has been observed by this Court that: "Fundamental Rule 56(i) does not in terms require that any opportunity should be given to the concerned Government servant to show cause against his compulsory retirement.
It says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so.
If that authority bona fide forms that opinion the correctness of that opinion cannot be challenged before courts, though it is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision.
" In Shamsher Singh & Anr.
vs State of Punjab, ; the appellant Shamsher Singh was a Subordinate Judge on probation.
His services were terminated by the Government of Punjab in the name of Governor of Punjab by an order which did not give any reasons for the termination.
It has been held that: "No abstract proposition can be laid down that where the services of probationer are terminated without saying any 692 thing more in the order of termination that it can never amount to a punishment in the facts and circumstances of the case.
If a probationer is discharged on the ground of mis conduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportu nity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.
" In that case the appellant was asked to show cause why his services should not be terminated and there were four grounds.
One was that the appellant 's behaviour towards the Bar and the litigant public was highly objectionable, de rogatory, non cooperative and unbecoming of a judicial officer.
The second was that the appellant would leave his office early.
The third was the complaint of Om Prakash, Agriculture Inspector that the appellant abused his position by proclaiming that he would get Om Prakash involved in a case if he did not cooperate with Mangal Singh, a friend of the appellant and Block Development officer, Sultanpur.
The fourth was the complaint of Prem Sagar that the appellant did not give full opportunity to Prem Sagar to lead evi dence.
Prem Sagar also complained that the decreeholder made an application for execution of the decree against Prem Sagar and the appellant without obtaining office report incorporated some additions in the original judgment and warrant of possession.
The appellant showed cause stating that he was not provided with an opportunity to work under the same superior officer for at least six months so that independent opinion could k., formed about his knowledge, work and conduct.
Thereafter, the appellant received a letter from the Deputy Secretary to the Government addressed to the Registrar, Punjab and Haryana High Court that the services of the appellant had been terminated.
It has been held that in the facts and circumstances of the case it is clear that the order of the termination of the appellant, Shamsher Singh was one of punishment.
The authorities were to find out the suitability of the appellant.
The order of termination is in infraction of Rule 9 which makes it incum bent upon the authority that the services of a probationer can be terminated on specific fault or on account of unsat isfactory record implying unsuitability.
The order of termi nation was, therefore, set aside.
This judgment has been followed in the case of Anoop Jaiswal vs Government of India and Anr., ; It has been observed that: 693 "It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order.
If the Court holds that the order though in the form is merely a determination of em ployment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the fights conferred by law upon the employee.
" It has also been observed that: "Even though the order of discharge may be non committal, it cannot stand alone.
Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored.
The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character.
If on reading the two together the Court reaches the conclu sion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in article 3 11(2) of the Constitution.
" On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government serv ant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any miscon duct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes.
Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned government servant as has been held by this Court in Anoop Jaiswal 's case.
This being the position the respondent State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of Rule 74(b)(ii) of the Bihar Service Code 694 which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant.
But in view of the clear and specific averments made by the respondent State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid Rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way of punishment.
As such, such an order is in contravention of Article 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide.
In the premises aforesaid we hold that the impugned order has not been made bona fide but for collateral pur poses and on extraneous consideration by way of punishment.
The impugned order is, therefore, illegal and unwanted and so it is liable to be quashed and set aside.
We, therefore, allow the appeal and set aside the impugned order.
We fur ther direct the respondents to reinstate the appellant in service forthwith with full back wages.
The respondents will pay costs to the appellant.
N.P.V. Appeal allowed.
| IN-Abs | The appellant, an officer of Bihar State, filed a writ petition before the High Court, challenging the order of compulsory retirement passed by the respondent State, under Rule 74(b)(ii) of Bihar Service Code, 1979, contending that throughout his service of 30 years he had an exemplary service career and his integrity remained unquestionable and that neither any adverse remarks were communicated to him nor any departmental proceedings were initiated against him, nor any explanation called for from him.
The High Court dismissed the writ petition by a laconic order.
In the appeal, by special leave, the appellant contended that though the order was couched in innocuous terms and made in compliance with the provisions of Rule 74(b)(ii) of Bihar Service Code on appellant 's reaching the age of more than 50 years, and prima facie not appearing to cast any stigma, it was not made in public interest, but made by way of punishment for oblique purposes, in consideration of extraneous matter and purporting to removal from service on certain serious allegations of misconduct, casting a stigma, and hence the order was illegal, bad and in violation of audi alterem partem rule and Article 311(2) of the Constitu tion and was liable to be quashed.
On behalf of the respondent State it was contended that the order had been made in public interest under Rule 74(b)(ii) and there was nothing to show from the order itself that it had been made by way of punishment, casting a stigma, the language of the order was innocuous, and the appellant could not delve into the secretariat files, to find out the basis of the order.
680 Allowing the appeal, this Court, HELD: 1.1 Even though the order of compulsory retirement is couched in innocuous language without making imputations against the government servant, who is directed to be com pulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes.
Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned government servant.
[693F G] Shamsher Singh & Anr.
vs State of Punjab, and Anoop Jaiswal vs Government of India and Am '.
, ; , relied on.
Shyam Lalv.
The State of U. P. & Anr., ; ; Baldev Raj Chadha vs Union of India and Ors., ; and Union of India vs Col. J.N. Sinha and Anr., [1971] 1 SCR 791, referred to.
I.N. Saxsena vs The State of Madhya Pradesh, ; , distinguished.
1.2 The object of Rule 74(b)(ii) of the Bihar Service Code is to get rid of the government servant who has become dead wood.
This order is made only to do away with service of only those employees who have lost their utility, become useless and whose further continuance in service is consid ered not to be in public interest.
[655D] 1.3 In the instant case, the appellant had an unblem ished career, and undoubtedly by dint of merit and flawless service career, had been promoted to the post of Joint Director and ultimately to the post of General Manager.
The counter affidavit filed on behalf of the respondent State has categorically stated that while passing the order of compulsory retirement the officers concerned were guided by the report dated September 19, 1987 which stated that the appellant was responsible for grave and serious financial irregularities resulting in financial loss to the State Government, without giving any opportunity of hearing and without intimating allegations to the appellant before forming the opinion.
The memorandum in question has clearly stated that the order of compulsory retirement was made as the appellant 's misconduct tarnished the image of the Gov ernment in the public.
This categorical 681 statement clearly proves that the basis of making the order is the report dated September 19, 1987.
Therefore, the order of compulsory retirement cannot be defended on the mere plea that it has been made in accordance with the provisions of Rule 74(b)(ii) which prima facie does not make any imputa tion or does not cast any stigma on the career of the appel lant.
[657E, 689F H, 690A, 693H, 694A] In view of the clear and specific averments made by the respondent State that the order has been made under Rule 74(b)(ii) as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the order cannot but be said to have been made by way of punishment.
Such an order is in contravention of Article 311 of the Constitution and arbitrary as it violates princi ples of natural justice.
It has not been made bona fide, but for collateral purposes and for extraneous consideration by way of punishment and is, therefore, illegal, unwarranted and liable to be quashed.
[694A B, C] Accordingly the order of compulsory retirement is set aside and the respondents are directed to reinstate the appellant with full back wages.
[694D]
|
Appeals nos.
317 to 320 of 1957.
Appeal from the judgment and order dated March 5, 1954, of the Madras High Court, in Writ Petitions Nos. 613 and 629 of 1952 and 201 and 202 of 1953.
A. V. Viswanatha Sastri and B. K. B. Naidu, for the appellants.
191 A. N. Kripal, R. H. Dhebar and D. Gupta, for respondent No. 1. 1958.
October 15.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
These four appeals arise from four petitions filed against the Income tax Officer , Nellore Circle, Nellore, respondent 1, in respect of the proceedings taken by him against three firms under section 34 of the Indian Income tax Act (hereinafter called the Act).
The firm M/s. Bellapu Audeyya and Chilla Pitchayya was formed on April 20, 1936, and it was dissolved on March 31, 1948.
It consisted of two partners, Chilla Pitchayya and Bellapu Audeyya.
Chilla Pitchayya had started another firm in the name and style of G. Pitchayya & Co. with another partner R. Subba Rao.
This firm was formed on July 30, 1941, and it was dissolved on March 31, 1949.
Bellapu Audeyya and.
Chilla Pitchayya had also formed another firm along with five other partners which carried on its business in the name and style of Prabbat Textiles.
This firm was formed on December 1, 1941, and it " as dissolved by a decree of the civil court Passed oil December 22, 1949, the dissolution having taken effect from January 1, 1949.
All the three firms were carrying on business in yarn and cloth and all of them were registered under section 26A of the Act.
It appears that for the purpose of assessing the income of these firms for the years 1943 44 and 1944 45, respondent 1 was satisfied on making enquiries that each of the three firms was a separate entity and so separate assessment orders were passed in respect of the income of each one of them for the said two years.
Subsequently on August 14, 1951, respondent I issued notice against the firm of Prabliat Textiles under s.34 of the Act.
In the proceedings thus commenced, respondent I hold that the firm of Prabhat Textiles was a fictitious tirm and that the real partners ",ere C. Pitchayya and B. Audeyya.
As a result of this finding, respondent I cancelled the registration of the said firm under r. 6B of the Income tax Rules and passed fresh orders of assessment against the said firm on the 192 basis that it was an unregistered firm for the assessment years 1943 44 and 1944 45 on August 14, 1952, and February 25, 1953, respectively.
Similar action was taken by respondent I in respect of the two other firms on the same dates.
Thereupon Y. Narayana Chetty, one of the partners of the Prabhat Textiles filed a writ petition in the High Court of Madras, No. 613 of 1952, against respondent I under article 226 of the Constitution and prayed that the High Court, should issue a writ of prohibition or any other appropriate writ, order or direction prohibiting the first respondent from continuing the proceedings as per his notice of August 14, 1951, and from enforcing the order of fresh assessment passed in the said proceedings oil August 14, 1952, in regard to the assessment year 1943 1944.
In respect of the same firm Chilla Pitchayya sought for a similar relief by Writ Petition No. 201 of 1953 in regard to the proceedings and assessment order for the assessment year 1944 45.
The same Chilla Pitchayya also filed Writ Petitions Nos.
629 of 1952 and 202 of 1953 in respect of the proceedings taken and fresh assessment orders passed against the two remaining firms for the assessment years 1943 44 and 1944 45 respectively.
The four petitions were heard together by the High Court and were dismissed on March 5, 1954.
The petitioners then applied for and obtained from the High Court a certificate under article 133 read with 0.
XLV, r. 1, 2, 3 and 8 that the value of the subject matter in the peti tions before the High Court as well as of the appeals before this Court was more than Rs. 20,000.
It is with this certificate that the four appeals have come before this Court.
Y. Narayana Chetty is the appellant in Civil Appeal No. 317 of 1957 whereas Chilia Pitchayya is the appellant in Civil Appeals Nos. 318, 319 and 320 of 1957.
In the High Court it was urged by the appellants that the proceedings taken under section 34 against each of the said firms were without jurisdiction and void.
It was also contended that the cancellation of the registration of each of the firms was similarly void and without jurisdiction inasmuch as r. 6B under which the said order of cancellation was passed was ultra vires the Central Board of Revenue which promulgated the rules under the powers conferred on it by the Act.
Besides the appellants attacked the validity of the orders passed against them under section 31 on the ground that it was illegal to assess escaped income under section 34 on the basis that the firms were unregistered firms while maintaining the original assessment for the said firms on the basis that they had been duty registered under section 26A of the Act.
The High Court has held against the appellants on all these points.
Besides the high Court has stated in its judgment that it was admitted by the appellants before it that appeals had been filed against each one of the orders challenged in the writ proceedings and the High Court thought that that itself would suffice to justify its refusal to exercise its jurisdiction under article 226 of the Constitution.
However, since the primary relief asked for by the appellants in their respective petitions was the issue of writ of prohibition the If High Court felt that it may as well deal with the merits of the contentions raised by the appellants.
That is why the High Court examined the merits of the said contentions.
On behalf of the appellants, Mr. Viswanatha Sastri has raised the same three points before us.
The first point raised by Mr. Sastri is that the proceedings taken by respondent I under section 34 of the Act are invalid because the notice required to be issued under the said section has not been issued against the assessees contemplated therein.
In the, present case the Income tax Officer has purported to act under section 34(I)(a) against the three firms.
The said sub section provides inter alia that " if the Income tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income tax has been under .assessed", he may, within the nine prescribed, " serve on the assessee a notice containing all or any of the requirements which may 194 be included in the notice under sub section
(2) of section 22 and may proceed to reassess such income, profits or gains.
" The argument is that the service of the requisite notice on the assessee is a condition precedent to the validity Of any reassessment made under section 34; and if a valid notice is not issued as required, proceedings taken by the Income tax Officer in pursuance of an invalid notice and consequent orders of reassessment passed 'by him would be void and inoperative.
In our opinion, this contention is well founded.
The notice prescribed by section 34 cannot be regarded as a more procedural requirement; it is only if the said notice is served on the assessee as required that the lncome tax Officer would be justified in taking proceedings against him.
If no notice is issued or if the notice issued is shown to be invalid then the validity of the proceedings taken by the Income tax Officer without a notice or in pursuance of an invalid notice would be illegal and void.
That is the view taken by the Bombay and Calcutta High Courts in the Commissioner of Incometax, Bombay City vs Ramsukh Motilal (1) and B. K. Das & Co. vs Commissioner of Income tax, West Bengal (2) and we think that that view is right.
Let us then consider the nature of the notice issued by the Income tax Officer in the present proceedings.
It is conceded by Mr. Sastri that the notice issued by the Income tax Officer was served on the appellant C. Pitchayya on behalf of the firms in question and that in each case the notice specifically averred that the Income tax Officer had reason to believe that the income of the assessee had been under assersed in the relevant years of assessment.
The notice further required the assessee to deliver to the officer within thirty five days of the receipt of the notice a return in the attached form of the total income and total world income of the assessee assessable for the relevant period.
In pursuance of this notice the appellant Pitchayya in fact appeared before the officer during the course of the proceedings commenced under s.34.
Mr. Sastri contends that this notice is defective be cause it purports to be issued Against the firm and no (1) [1955] '27 I.T.R. 54.
(2) 195 notice has been issued against the respective partners of the firm.
According to Mr. Sastri the assessee who is entitled to a notice under section 34(1)(a) is not the firm but each individual partner of the firm.
He also suggests that each individual partner should have been called upon to make a return of his total income assessable for the relevant year; inasmuch as the notice is issued against the firm and not against individual partners it is invalid.
In support of this argument Mr. Sastri has referred us to the definition of the word " assessee" under section 2, cl.
(2) as it stood prior to the amendment of 1953.
Under the said clause, assessee meant " person by whom income tax is clearly payable".
In the case of a registered firm income tax is clearly payable by the individual partners of the firm under section 23(5) of the Act, savs Mr. Sastri; and so, if the Income tax Officer intended to take action under section 34 it was his duty to issue the requisite notice against individual partners in respect of their respective incomes for which they were liable to pay the tax.
This argument purports to derive support from the provisions of section 23(5) as they stood before the amendment introduced in 1956.
The effect of the said provisions was that "the sum payable by the firm itself shall not be determined but the total income of each partner of the firm including therein his share of its income, profits and gains in the previous year shall be assessed and the sum payable by him on the basis of such assessment shall be determined "; so that what the Income tax Officer had to do in assessment proceedings against a registered firm was to determine the total income of each partner of the firm and not to determine the sum payable by the firm itself.
The argument is that this provision shows that the person liable to pay the tax was each individual partner of the firm and so it is the individual partners of the firm who are entitled to the statutory notice under section 34(1)(a).
In our opinion, this argument is not well founded.
Section 3 of the Act which is the charging section provides inter alia that "where any Central Act enacts that income tax can be charged for any year at any rate or rates, tax at that rate or those rates shall be 196 charged for that year in accordance with and subject to the provisions of this Act in respect of the total income of the previous year of every firm ; " in other words, a firm is specifically treated as an assessee by section 3.
Besides, the word "person" used by section 2, sub section (2) of the Act while defining the assessee, would obviously include a firm under section 3(42) of the General Clauses Act since it provides that a person includes "any company or association or body of individuals whether incorporated.
or not ".
Therefore, it would not be correct to say that an assessee under section 2, sub section
(2) of the Act necessarily means an individual partner and does not include a firm.
The argument based upon the relevant provisions of section 23(5) is also not valid be.
cause it is obvious that for the purposes of assessment at all relevant and material stages under sections 22 and 23 it is the firm that is treated as an assessee.
When a return of the income is made for the relevant year, it is a return with regard to the total income of the firm that has to be submitted under section 22; and when assessment is levied under section 23, the Income tax Officer determines and can determine the total income of each partner of the firm only after ascertaining the total income of the firm itself It is true that section 23(5) as it then stood required the Income tax Officer to determine the total income of each partner of the firm including his share of the firm 's income and to assess each partner in respect of such income, and in that sense individual partners of the firm undoubtedly became liable to pay income tax ; but it is clear that in determining the total income of each partner his share in the firm 's income has to be included and so the firm does not cease to be an assessee for the purpose of section 23(5).
This position is now clarified by the provisions of section 23(5)(a)(i) and (ii) as amended in 1956.
The present section 23(5)(a)(i) and (ii) provides: section 23(5)(a)(i) and (ii): (5) Notwithstanding anything contained in the foregoing sub sections, when the assessee is a firm and the total income of the firm has been assessed under subsection (1), sub section (3) or sub section (4), as the case may be 197 (a) in the case of a registered firm (1) the income tax payable by the firm itself shall be determined; and (ii) the total, income of each.
partner of the firm, including therein his share of its income, profits and gains of the previous year, shall be assessed and the sum payable by him on the basis of such assessment shall be determined: and so it is clear that the registered firm does not at all cease to be an assessee under this provision.
In this connection it would be relevant to refer to section 23(4).
This subsection provides: " If any person fails to make the return required by any notice given under subsection (2) of section 22 and has not made a. return or a revised return under sub section (3) of the same section or fails to comply with all the terms of a notice issued under sub section (4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under subsection (2) of this section, the Income tax Officer shall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment and, in the case of a firm, may refuse to register it or may cancel its registration if it is already registered: Provided that the registration of a firm shall not be cancelled until fourteen days have elapsed from the issue of a, notice by the Income tax Officer.to the firm intimatiiig his intention to cancel its registration" This provision clearly shows that the person to whom the first part of the provision refers includes a firm and it lays down that if a firm commits a default as indicated the Income tax Officer may refuse to register it or may cancel its registration if it is already registered.
Thus there can be no doubt that section 23(4) treats the fit in as an assessee and provides for the imposition of penalty against the firm in case the firm commits any of the defaults indicated in the sub section.
The effect of the relevant provisions of section 23 therefore is that for the assessment of the total taxable income it is the affairs of the assessee firm that are investigated and 198 examined and when the total income of the firm is ascertained, it is allocated to its individual partners in proportion to their respective shares.
The result of such allocation undoubtedly is to make the partners liable to pay tax in respect of their taxable income thus allocated ; but that cannot justify the inference that the firm is not an assessee in the relevant proceedings.
Even when the notice is issued under section 34(1)(a) the Income tax Officer proceeds to act on the ground that the income, profits and gains of the firm which are chargeable to an income tax have been under assessed; it is the income of the firm which is initially ascertained in the assessment proceedings under section 23 and it is in respect of the said income of the firm that the Income tax Officer finds that a part of it has escaped assessment.
We do not, therefore, think that the appellant 's argument that the notice issued against the firm and served on the appellant was invalid under section 34(1)(a) can be accepted.
It is then urged that the Income tax Officer was bound to issue notices to individual partners of the firms because at the material time all the firms had been dissolved.
Mr. Sastri concedes that under section 63 (2) a notice or requisition under the Act may in the case of a firm be addressed to any member of the firm but his contention is that this applies to a firm in existence and not to a firm dissolved.
If the, appellants ' case is that as a result of dissolution of the firms the firms had discontinued their business as from the respective dates of dissolution they ought to have given notices of such discontinuance of their business under section 25(2) of the Act.
Besides, in the present case, the main appellant has in fact been served personally and the other partners who may not have been served have made no grievance in the matter.
We are, therefore, satisfied that it is not open to the appellants to contend that the proceedings taken by the Income tax Officer under section 34(1)(a) are invalid in that notices of these proceedings have not been served on the other alleged partners of the firms.
Incidentally it may be pointed out that the finding of 199 the Income tax Officer in respect of all the three firms is that the only persons who had interest in the business carried on by the said firms were B. Audeyya and C. Pitchayya.
It is remarkable that B. Audeyya has not cared to challenge the proceedings or to question the validity of the fresh assessment orders passed by the Income tax Officer in the present proceedings.
Mr. Sastri then challenges the validity of the cancellation of the registration of the three firms on the ground that r. 6B under which the Income tax Officer purported to act is ultra vires.
Rule 6B provides that in the event of the Income tax Officer being satisfied that the certificate granted under r. 4 or under r. 6A has been obtained without there being a genuine firm in existence he may cancel the certificate so granted.
The material rules of which r. 6B is a part have been framed by the Central Board of Revenue under the authority conferred by section 59 of the Act.
This section empowers the Central Board of Revenue, subject to the control of the Central Government, to make rules inter alia for carrying out the purposes of the Act.
Section 59 (2)(e) lays down that such rules may provide for any matter which by this Act is to be prescribed and the rules preceding r. 6B deal with the procedure to be followed, and prescribe the application to be made, for the registration of firms under section 26A of the Act.
Section 59(5) provides that the rules made under the said section shall be published in the official gazette and shall thereupon have effect as if enacted in this Act.
Thus there is no doubt that the rules are statutory rules and once they are published in the official gazette they are operative as if they were a part of the Act.
Mr. Sastri concedes this position; but he argues that r. 6B is inconsistent with the material provisions in the Act and is therefore ultra vires the Central Board of Revenue.
This argument is based substantially on the provisions of section 23(4).
We have already referred to the provisions of this subsection.
Mr. Sastri contends that it is only where the requirements of section 23(4) are satisfied that the registration of a firm can be cancelled.
The procedure for registration of firms is laid down in section 26A of 200 the Act.
An application has to be made to the Incometax Officer on behalf of any firm constituted Linder the instrument of partnership specifying the individual shares of the partners for registration for the purposes of the Act and of any other enactment for the time being in force and relating, to income tax and supertax.
Sub section (2) requires that the said application ,,hall be made by such person or persons and, at such times and shall contain such particulars and shall be in such form and be verified in such manner as may be prescribed and it shall be dealt with by the Incometax Officer in such manner as may be prescribed.
It is in pursuance of the requirements of section 26(2) that the relevant rules for the registration of the firms have been made.
The question which arises for our decision in this connection is: if a firm has been registered Linder section 26A, when can such registration be cancelled ? The appellant suggests that the only cases in which such registration can be cancelled are those prescribed in section 23(4).
We have no doubt that this argument is fallacious.
The cancellation of registration under section 23(4) is in the nature of a penalty and the penalty can be imposed against a firm if it is guilty of any of the defaults mentioned in the said subsection.
It would be noticed that where registration is cancelled under section 23(4), there is no doubt that the application for registration had been properly granted.
The basis of an order under section 23(4) is not that the firm which had been registered was a fictitious one, but that, though the registered firm was geniuine, by its failure to comply with the requirements of law it had incurred the penalty of having its registration cancelled.
That is the effect of the provisions of section 23(4).
On the other hand, r. 6B deals with cases where the Income tax Officer is satisfied that a certificate of registration has been granted under r. 4 or under r. 6A without there being a genuine firm in existence ; that is to gay an application for registration had been made in the name of a firm which really did not exist; and on that ground the Income tax Officer proposes to set right the matter by cancelling the certificate which should never have been granted to the 201 alleged firm.
That being the effect of r. 6B it is im possible to accede to the argument that the provisions of this rule are inconsistent with the provisions of section 23(4) of the Act.
If the Income tax Officer is empowered under section 26A read with the relevant rules to grant or refuse the request of the firm for registration, it would normally be open to him to cancel such registration if he discovers that registration had been erroneously granted to a firm which did not exist.
Rule 6B has been made to clarify this position and to confer on the Income tax Officer in express and specific terms such authority to review his own decision in the matter of the registration of the firm when he dis covers that his earlier decision proceeded on a wrong assumption about the existence of the firm.
In our opinion, there is no difficulty in holding that r. 6B is obviously intended to carry out the purpose of the Act and since it is not inconsistent with any of the provisions of the Act its validity is not open to doubt.
It is, however, urged that whereas the firm aggrieved by the order passed by the Income tax Officer under section 23(4) can challenge the correctness or propriety of the order in an appeal against the final assessment order passed under section 23, no such remedy is available to the firm whose registration is cancelled under r. 6B.
We are not impressed by this argument.
The validity of the rule cannot, in our opinion, be challenged merely on the ground that no appeal has been provided against the order passed under the impugned rule.
It is also true that whereas before taking action under section 23(4) the Income tax Officer is required to issue a notice to the firm, no such provision is made under r. 6B.
Mr. Sastri has, however, conceded that the appellant before us had notice and was given an opportunity to satisfy the Income tax Officer that the respective firms were genuine and not fictitious.
Thai being so we do not think that it would be open to the appellant to contend that the order passed against him under r. 6B is invalid on the purely academic ground that r. 6 B does not require notice to be issued before the registration of a firm is cancelled.
If the power 26 202 under r. 6B is exercised by the Income tax Officer against a firm without giving it a notice in that behalf and without affording it an opportunity to satisfy the officer that it is a genuine firm, it may be open to the firm to question the validity of the order on that ground.
We are, however, not called upon to deal with such a case in the present appeals.
In this connection we may incidentally refer to the decision of this Court in Ravula Subba Rao vs Commissioner of 1.
T., Madras (1) where this Court has held that rules (2) and (6) of the rules framed under section 59 of the Indian Income tax Act are not ultra vires the rule making authority.
The last argument which Mr. Sastri sought to raise before us was that the revised assessment is completely illogical, and therefore illegal, in each case inasmuch as the original assessment for the two assessment years still remains as on the basis that the firms in question are registered and the fresh assessment in respect of the escaped income for the same years is made on the basis that the said firms are not registered.
Mr. Sastri says that it is not open to the Income tax Officer to adopt such a course.
If registration has been cancelled the whole of the assessment should be made on that footing; the department cannot treat the firm as registered for part of the income, and unregistered for the balance, during the same assessment years; that is Mr. Sastri 's grievance.
We do not propose to deal with the merits of this contention.
There can be no doubt that it would be open to the appellants to raise this contention in the appeals which they have filed against the fresh orders of assessment.
We understand that applications have been made by the appellants in respect of the said orders of assessment under section 27 of the Act.
If that be so, the appellants may, if it is open to them to do so, ventilate their grievance in the said proceedings also.
We hold that this contention cannot be urged in petitions for writs of prohibition under article 226 of the Constitution, since they do not raise any question of jurisdiction.
All that the appellants would be able to argue on this ground (1) [1956] S.C.R. 577.
203 would be that the course adopted by the Income tax Officer in making orders of fresh assessment is irregular and illogical and should be corrected.
That is a matter concerning the merits of the orders of assessment and by no stretch of imagination can it be said to raise any question of jurisdiction under article 226.
That is why we express no opinion ' on this point.
Before we part with this case we would like to, observe that Mr. Kripal for the respondent sought to raise three preliminary objections.
He urged that the issue of a writ is a discretionary matter and since the High Court has refused to exercise its discretion in favour of the appellants the appeals would be virtually incompetent inasmuch as this Court would be slow to interfere with the exercise of discretion by the High Court.
He also argued that the original petitions to the High Court are incompetent under article 226 since under the Act the appellants had an alternative effective remedy available to them in the form of appeals against the impugned orders and in fact they had filed such appeals and had also made applications under section 27 of the Act.
Mr. Kripal also contended that the High Court would have no jurisdiction to issue a writ of prohibition against the tax authorities.
We do not propose to consider these objections because, as we have already indicated, we are satisfied that the view taken by the High Court on the points raised before it is right.
These objections may have to be considered in future on a suitable occasion.
The result is the appeals fail and must be dismissed with costs.
Appeals dismissed.
| IN-Abs | Two persons, B and C, formed a partnership firm on April 20, 1936, and the firm was dissolved on March 31, 1948.
I and C along with R formed a second firm on July 30, 1941, and it was dissolved on March 31, 1949.
B and C along with five others formed a third firm on December 1, 1941, and it was dissolved on January 1, 1949.
All the three firms were carrying on business in yarn and cloth and all of them were registered under section 26 A of the Income tax Act.
For the years 1943 44 and 1944 45 tile said firms were treated as separate entities and separate assessment orders were passed in respect of the income of each one of them for the said years.
Subsequently, the Income tax Officer served notices under section 34 Of the Act on C on behalf of the firms and after hearing the parties he held that the firms were fictitious and so cancelled their registration under r. 6B of the Income tax Rules and passed fresh orders of assessment against them on the basis that they were unregistered firms.
One Y who was a partner in the third firm and C filed four writ petitions under article 226 of the Constitution in the High Court challenging the validity of the orders passed.
The High Court dismissed the petitions but granted certificates of fitness to appeal 190 under article 133.
The appellants contended that r. 6B was inconsistent with section 23(4) of the Act and was ultra vires, that consequently the cancellation of registration of the firms was without jurisdiction and was void and that the proceedings taken under section 34 Of the Act were invalid as the required notice was not issued against the individual partners who were the assesses.
Held, that r. 6B of the Income tax Rules was not inconsis tent with section 23(4) Of the Act and was not ultra vires.
Rule 6B dealt with cancellation of registration in cases where the certificate of registration had been granted without there being a genuine firm in existence, while section 23(4) dealt with cancellation of registration on account of failure to comply with the requirements of law, though the registered firm was genuine.
Rule 6B was obviously intended to carry out the purpose of the Act and was valid.
The fact that no appeal had been provided against an order made under r. 6B was no ground for challenging its validity.
It was also not open to the appellants to contend that the orders passed under section 6B were invalid on the ground that the rule did not require the giving of any notice before the can cellation of registration as in the present case notice had actually been given and the appellants had been afforded an opportunity of being heard.
Held, further, that in the cases of registered firms, the firms themselves were the assessees and as such the notices issued under section 34 against the firms and served upon C were valid and proper notices, :and it was not necessary to serve notices upon the individual partners of the firms.
The notice prescribed by section 34 was not a mere procedural requirement.
If no notice was issued or if the notice issued was shown to be invalid then the proceedings taken by the Income tax Officer would be illegal and void.
Commissioner of Income tax, Bombay City vs Ramsukh Motilal, and R. K. Das & Co. vs Commissioncy of Income tax, West Bengal, , approved.
The contention that the assessments were completely illogical and therefore illegal could not be urged in a petition under article 226 of the Constitution since it did not raise any question of jurisdiction.
|
Appeal No. 62 of 1990.
From the Judgment and Order dated 2.12.1989 of the Allahabad High Court in C.M.Appn.
No. 17984 (W) of 1989 in W.P. No. 5400 of 1989.
Mukul Mudgal for the Appellant.
Anil Dev Singh, G.L. Sanghi, Mrs. Shobha Dikshit, E.C. Agrawala, Atul Sharma and V.K. Pandita for the Respondents.
The Judgment of the Court was delivered by THOMMEN, J.
This appeal by special leave is against the Order of the Allahabad High Court, Lucknow Bench, in C.M. Application No. 17984 (W) of 1989 in Writ Petition No. 5400 of 1989.
The application for clarification and modification of the judgment in the Writ Petition was filed in the High Court by the appellant, though not a party to that proceed ing, on the ground that he was adversely affected by it.
The appellant was nominated by the State of Himachal Pradesh to undergo the B.D.S. course in the State of Uttar Pradesh.
The appellant successfully completed his course of studies in Uttar Pradesh and secured the B.D.S. degree.
For that purpose he had stayed in that State for over a period of five years.
He later applied for admission to 671 the M.D.S. course at King George Medical College, Lucknow.
He secured admission to the course, but in a subject other than that of his choice.
The subject of his choice was Oral Surgery, but what was offered to him was Periodontics.
The reason for denying the appellant the subject of his choice was that he had to step down in favour of others who had come within the rule of preference as per the Notification dated August 19, 1983 issued under section 28(5) of the U.P. State Universities Act, 1974 (U.P. Act No. 29 of 1974) providing for reservation of seats and prescribing a resi dence qualification for selection to the M.D.S. course.
By the impugned order, the High Court rejected the appellant 'S prayer for clarification and modification of its judgment in Writ Petition No. 5400 of 1989 and held that that judgment was rendered in accordance with the principle laid down in its earlier decision in Writ Petition No. 5325 of 1988 where the residence qualification prescribed by the Notification was so construed as to be applicable only to a person who was a resident in the State of Uttar Pradesh for reasons other than that of merely completing a course of studies.
In other words, the High Court refused to accept the appellant 's contention that the residence qualification should be so construed as to entitle to admission a person, like the appellant, who had come from outside the State strictly and solely for the purpose of undergoing a course of studies and returning to his own State upon completion of the course.
The High Court held that residence strictly for studies without more did not bring a person within the ambit of the Notification.
This is what the High Court stated in its judgment in Writ Petition No. 5400 of 1989, clarifica tion of which was sought by the appellant: "In other words those candidates who joined B.D.S. Course on the basis of nominations made by the Central Government or their own State and were not bona fide residents of the State of Uttar Pradesh prior to joining the B.D.S. Course will not be treated to be bona fide residents of Uttar Pradesh merely because they have stayed in the State of Uttar Pradesh for five years or more for completion of the B.D.S. Course or housemanship." The appellant does not challenge the validity of the notified provisions.
The sole question which arises for consideration is as regards the construction of clause 4 of the said Notification.
Before reading that clause, it may be noticed that clause 1 of the Notification provides for reservation of seats in favour of candidates belonging to the 672 categories specified therein.
Clause 2 then provides: "2.
The remaining seats shall be filled up on the basis of merit by the candidates who have passed the B.D.S. examina tion from the K.G. Medical College, Lucknow, obtaining a minimum of 55% marks in the aggregate and who are bona fide residents of Uttar Pradesh.
(emphasis supplied) The High Court notices that clause 2 stipulates two conditions, namely (i) institutional; and (ii) residential.
The High Court observes that the appellant satisfies the first requirement the institutional, but does not fulfill the second requirement, namely, bona fide residence.
A bona fide resident is one who comes within the meaning of that expression in clause 4, which reads: "4.
For the purpose of this order the expression 'bona fide resident of Uttar Pradesh ' shall mean (a) a citizen of India, the domicile of whose father is in Uttar Pradesh and who himself is domiciled in Uttar Pradesh; or (b) a citizen of India, the domicile of whose father was not in Uttar Pradesh but who himself has resided in Uttar Pra desh for not less than five years at the time of making the application." (emphasis supplied) It is not disputed that the appellant is a citizen of India and is domiciled in India.
The question is whether he is a 'bona fide resident of Uttar Pradesh '.
The contention of the appellant before the High Court was that he had stayed in the State of Uttar Pradesh for more than five years for the purpose of completing his studies and was, therefore, fully qualified as a bona fide resident of that State.
The High Court found that residence merely for the purpose of studies would not satisfy the requirement of clause 4.
The appellant was nominated by the State of Himachal Pradesh to undergo a course of studies in the State of Uttar Pradesh and he stayed in Uttar Pradesh for over five years solely for that purpose.
There is no evidence that he had any other object for staying for that length of time, as he did, in Uttar Pradesh.
There is no evidence that 673 he had any intention of indefinitely residing in that State.
A person is treated as a 'bona fide resident of Uttar Pradesh ' in terms of sub clauses (a) and (b) of Clause 4 by reason of either his 'domicile ' or 'residence ' in that State.
While sub clause (a) speaks of the domicile of the candidate and his father, sub clause (b) speaks of a person, whose father was not domiciled in the State and who himself has resided for not less than five years in the State.
The concept of 'domicile ' is irrelevant to the construction of sub clause (b) in respect of the residence qualification of the candidate.
All that it requires is his requisite resi dence.
Domicile which is a private international law or con flict of laws concept identifies a person, in cases having a foreign element, with a territory subject to a single system of law, which is regarded as his personal law.
A person is domiciled in the country in which he is considered to have his permanent home.
His domicile is of the whole country, being governed by common rules of law, and not confined to a part of it.
No one can be without a domicile and no one can have two domiciles.
A domicile of origin is attributed to every person at birth by operation of law.
This domicile is not decided by his place of birth, or by the place of residence of his father or mother, but by the domicile of the appropriate parent at the time of his birth, according as he is legiti mate or illegitimate.
It is possible for the domicile of origin to be "transmitted through several generations no member of which has ever resided for any length of time in the country of the domicile of origin." (See Dicey & Morris, The Conflict of Laws, 10th ed.
I, Rule 9, p. 108).
The domicile of origin continues until he acquires a domicile of choice in another country.
Upon abandonment of a domicile of choice, he may acquire a new domicile of choice, or his domicile of origin, which remained in abeyance, revives.
The burden of proving a change of domicile is on him who asserts it.
The domicile of origin is more tenacious.
"Its character is more enduring, its hold stronger and less easily shaken off." Per Lord Macnaghten, Winans vs A.G., , 290.
The burden of proving that a domicile of origin is abandoned is needed much heavier than in the case of a domicile of choice.
No domicile of choice can be acquired by entering a country illegally.
The domicile of choice is a combination of residence and intention.
Residence which is a physical fact means "bodily presence as an 674 inhabitant" (Re Newcomb, ; (1908).
See Dicey, op.
Such residence must be combined with intention to reside permanently or for an unlimited time in a country.
It is such intention coupled with residence that acquires him a new domicile.
It is immaterial for this purpose that the residence is for a short duration, provided it is coupled with the requisite state of the mind, namely the intention to reside there permanently.
"If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency", Re Fuld 's Estate (No. 3) 1968 (P) 675.
such as, the end of his studies, he lacks the intention required by law.
His "tastes, habits, conduct, actions, ambitions, health, hopes, and projects" Casdagli vs Casdagli, , 178 are keys to his intention.
"That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary pur pose, but with a present intention of making it his perma nent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home".
Lord vs Colvin, [1859] 4 Drew 366 at 376.
We must, in this connection, hasten to add that 'domi cile ', being a private international law concept, is inappo site to the relevant provisions, having no foreign element, i.e., having no contact with any system of law other than Indian, unless that expression is understood in a less technical sense (see observations to this effect in Dr. Pradeep Jain and Others etc.
vs Union of India and Others etc.
, [1984] 3 SCC 654. 666 669).
An expression which has acquired a special and technical connotation, and developed as a rule of choice or connecting factor amongst the compet ing diverse legal systems as to the choice of law or forum, is, when employed out of context, in situations having no contact with any foreign system of law, apt to cloud the intended import of the statutory instrument.
When a person is referred to as domiciled in a country, the expression 'country ' is used in private international law as a term of art denoting, in the words of dicey, "the whole of a territory subject under one sovereign to one body of law".
See Dicey & Morris, The Conflict of Laws, Vol. 1, page 24.
But in a federation like the United States, Austra lia, or Canada, or in a composite State like the United Kingdom, different systems of law may prevail in different regions in respect of certain matters.
In such cases, each of the territories governed by a separate system of law is treated, for the purpose of private international law, as a 'country ', though in public international law or 675 constitutional law it is not a separate sovereign State.
As stated by Halsbury, "in federal states, some branches of law are within the competence of the federal authorities and for these purposes the whole federation will be subject to a single system of law, and an individual may be spoken of as domiciled in the federation as a whole; other branches of law are within the competence of the states or provinces of the federation, and the individual will be domiciled in one state or province only".
Halsbury 's Laws of England Vol. 8, para 422; See D.P. Joshi vs The state of Madhya Bharat and Another, 15.
This is, however, not the position in India.
Though a Union of States, and a federation in that sense, the whole country is governed by a single unified system of law, with a unified system of judicial administration, notwithstanding the constitutional distribution of legislative powers be tween the Centre and the States.
There is no State wise domicile within the territory of India.
A man who is domi ciled in India is domiciled in every State in India and is identified with a territorial system of legal rules pervad ing throughout the country.
He is 'domiciled ' in the whole of this country, even though his permanent home may be located in a particular spot within it.
Udny vs Udny, [1869] LR 1 Sc & Div 441, H.L.; Bell vs Kennedy, i18681 LR 1 Sc & Div 307, H.L. The expression, as understood in private international law, makes no sense in the context of Clause 4, for Indian domicile cannot be limited to any particular State within India.
The full import of 'domicile ' is, there fore, inapplicable to the construction of clause 4.
We would in this connection recall the words of this Court in Dr. Pradeep Jain & Ors.
vs Union of India & Ors.
, [1984] 3 SCC 654 at 668, See also D.P. Joshi vs The State of Madhya Bharat and Another, ; "It would be absurd to suggest that the legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India, merely because with respect to the subjects within their legislative competence, the States have power to make laws.
The concept of 'domicile ' has no relevance to the applica bility of municipal laws, whether made by the Union of India or by the States.
It would not, therefore, in our opinion be right to say that a citizen of India is domiciled in one State or another forming part of the Union of India.
The domicile which he has is only one domicile, namely, domicile in the territory of India." 676 'Domicile ' for the purpose of clause 4 must, neverthe less, be understood and applied in a limited sense and in contradistinction to 'residence ', for that clause uses both the expressions and demands compliance with either of them with reference to the State of Uttar Pradesh.
Unlike 'resi dence ' which is only bodily presence, 'domicile ' in this context must necessarily mean physical residence coupled with the intention to settle down in Uttar Pradesh, al though, being confined to a particular region rather than the whole area of operation of the territorial legal system and lacking in any foreign complexion or unconcerned with any foreign element, the animus manendi required for the purpose of clause 4 is much less in quality and contents than what is required in Private International Law.
Sub clause (a) of Clause 4 prescribes no minimum length of residence or minimum degree of intention, and, however short or insignificant the two elements may be, their combination, in whatever proportion, is sufficient to constitute 'domi cile ' for the purpose of clause 4(a).
In the present case, the appellant came to the State of Uttar Pradesh with a predetermined mind, namely, to complete the chosen course of studies and return to the State which had nominated him for the purpose.
Having regard to the time and duration, the object and obligation, and the uncontro verted facts, the appellant was undoubtedly a bona fide student who resided in Uttar Pradesh for over five years, but whose residence did not acquire the attributes of 'domicile ' within the meaning of clause 4(a).
The question then is whether the appellant is a 'bona fide resident of Uttar Pradesh ' within the meaning of clause 4(b).
Residence is a physical fact.
No volition is needed to establish it.
Unlike in the case of a domicile of choice, animus manendi is not an essential requirement of residence.
Any period of physical presence, however short, may consti tute residence provided it is not transitory, fleeting or casual.
Intention is not relevant to prove the physical fact of residence except to the extent of showing that it is not a mere fleeting or transitory existence To insist on an element of volition is to confuse the features of 'resi dence ' with those of 'domicile '.
For an interesting discus sion on The Meaning of Residence, see J.D. McClean, Interna tional & Comparative Law Quarterly [1962] Vol.
II PP.
1153 et seq.
A person is ordinarily resident in a country if his residence there is not casual or uncertain, but is in the ordinary course of his life.
Per Viscount Cave, Commissioner of Inland Revenue vs Lysaght, ; Levene vs Commissioners of Inland Revenue; , 677 at p. 222.
A man may be ordinarily resident or habitually resident m more than one place.
While 'ordinary residence ' is the physical residence in regard to which intention is irrelevant, except to show that the residence is not merely fleeting, 'habitual residence ' may denote a quality of endurance longer than ordinary residence, although duration, past or prospective, is only one of the many relevant fac tors, and there is no requirement of any particular minimum period.
See Dicey & Morris; The Conflict of Laws, 10th ed., PP.
145 & 200 202.
See also Cheshire & North; Private International Law, 11th ed., PP.
171173; Halsbury 's Laws of England, 4th ed., Vol. 18 330.
In Reg vs Barnet L.B.C., Ex p. Shah, , the House of Lords held that a person was ordinarily resi dent in the United Kingdom, if he normally resided lawfully in that country from choice and for a settled purpose.
If a person resided there for the specific and limited purpose of education, he was ordinarily resident in that country, even if his permanent residence or real home was outside that country or his future intention or expectation was to live outside that country.
Residence must be voluntary.
"Enforced presence by reason of kidnaping or imprisonment, or a Robins 'on Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is".
Per Lord Scarman, Reg vs Barnet L.B.C., exhibit p. Shah, at 344.
Education, business, profession, employment, health, family, or merely love of the place are some of the reasons commonly regarded as sufficient for a choice of regular abode.
It is only lawful residence that can be taken into account.
If a man stays in a country in breach of immigration laws, his presence there does not constitute ordinary residence.
While residence and intention are the two essential elements constituting the 'domicile of choice ' residence in its own right is a connecting factor in a national legal system for purposes of taxation, jurisdiction, service of summons, voting etc.
To read into residence volition as a necessary element is, as stated above, to mistake residence for domicile of choice, and that is the error which the High Court appears to have committed.
Where residence is pre scribed within a unified legal system as a qualifying condi tion, it is essential that the expression is so understood as to have the widest room for the full enjoyment of the right of equality before the law.
Any construction which works to the disadvantage of the citizen lawfully seeking legitimate avenues of progress within the country will be out of harmony 678 with the guaranteed rights under the Constitution, and such a construction must necessarily be avoided.
Clause 2, which we have set out above, refers to a 'bonafide ' resident and such a person is defined under clause 4 to include a person who has resided in Uttar Pra desh for not less than five years at the time of making his application.
These two clauses indicate that a person should have resided in Uttar Pradesh for the requisite period lawfully and bona.fide.
The converse of bona.fide being mala fide, meaning lack of good faith, in the absence of any allegation that the appellant 's residence in that State was in any manner opposed to the law of the land, or tainted by lack of good faith, and in the light of the undisputed fact that his residence was neither casual nor fleeting, but in excess of the minimum period of five years, and for the definite purpose of education, he satisfies the definition of a 'bonafide resident '.
Any other construction of the clauses would, in our view, be unreasonably restrictive and thus conflict with the appellant 's constitutional rights.
Viewed in this light, we have no doubt that the con struction placed by the High Court upon sub clause (b) of clause 4 of the Notification is unsustainable.
In our opin ion, a person, such as the appellant, who resided in the State of Uttar Pradesh specifically for the purpose of undergoing a course of studies for not less than five years, albeit with the intention of finally returning to his home State, also comes within the meaning of the expression 'bona fide resident ' as defined in the said clause.
In the circumstances, we set aside the impugned order of the High Court, and allow the appeal with the costs of the appellant here and in the High Court.
N.V.K. Appeal allowed.
| IN-Abs | The appellant who was nominated by the State of Himachal Pradesh to undergo the B.D.S. course in the State of Uttar Pradesh, successfully completed his course and secured the B.D.S. degree.
For this purpose he had stayed in that State for over a period of five years.
Later, he applied for admission to the M.D.S. course at King George Medical Col lege, Lucknow and the subject of his choice was Oral Sur gery.
He secured admission but the subject 'that was offered to him was Periodontics.
The reason for denying the appellant the subject of his choice, viz. Oral Surgery; was that he had to step down in favour of others who had come within the rule of preference provided for in the Notification dated August 19, 1983.
issued under Section 28(5) of the U.P. State Universities Act, 1974, providing for reservation of seats, and prescrib ing a residence qualification for selection to the M.D.S. course.
The High Court in its judgment in Writ Petition No. 5400 of 1989 following an earlier decision of the Court held that those candidates who joined B.D.S. course on the basis of nominations made by the 667 Central Government or their own State will not be treated to be bona fide residents of Uttar Pradesh merely because they have stayed in the State for five years for completion of the course.
The appellant who was not a party to the proceedings in the writ petition applied for clarification and modification on the said judgment as it had adversely affected him.
The High Court rejected the application, holding that clause 2 of Notification stipulates two conditions viz: (i) institu tional and (ii) residential: and that the appellant satis fies the first requirement, namely, institutional but does not fulfill the second requirement, viz 'bona fide resident '; that a 'bona fide resident ' is one who comes within the meaning of that expression in clause 4 of this Notification, and that residence merely for the purpose of studies would not satisfy the requirement of clause 4.
In the appeal to this Court on the question: Whether the appellant was a 'bona fide resident of Uttar Pradesh ' within the meaning of clause (b) of the Notification dated August 19, 1983.
Allowing the appeal, and setting aside the order of the High Court, this Court, HELD: 1.
A person is treated as a 'bona fide resident of Uttar Pradesh ' in terms of sub clauses (a) and (b) of Clause 4 by reason of either his 'domicile ' or 'residence ' in that State.
While sub clause (a) speaks of the domicile of the candidate and his father, sub clause (b) speaks of a person, whose father was not domiciled in the State and who himself has resided for not less than five years in the State.
The concept of domicile is irrelevant to the construction of sub clause (b) in respect of the residence qualification of the candidate.
All that it requires is his requisite resi dence.
[673A B] 2.
Clauses 2 and 4 indicate that a person should have resided in Uttar Pradesh for the requisite period lawfully and bona fide.
The convers of bona fide being mala fide, meaning lack of good faith, in the absence of any allegation that the appellant 's residence in that State was in any manner opposed to the law of the land, or tainted by lack of good faith, and in the light of the undisputed fact that his residence was neither casual nor fleeting, but in excess of the minimum period of five years, and for the definite purpose of education, he satisfies the definition of a ' bona fide resident. ' [678B C] 3.
The construction placed by the High Court upon sub clause (b) 668 of clause 4 of the Notification is unsustainable.
A person such as the appellant who resided in the State of Uttar Pradesh specifically for the purpose of undergoing a course of studies for not less than five years albeit with the intention of finally returning to his home State, also comes within the meaning of the expression 'bona fide resident ' as defined in the said clause.
[678D E] 4.
Domicile which is a private international law or conflict of laws concept identifies a person, in cases having a foreign element, with a territory subject to a single system of law, which is regarded as his personal law.
[673B C] 5.
A person is domiciled in the country in which he is considered to have his permanent home.
His domicile is of the whole country, being governed by common rules of law, and not confined to a part of it.
No one can be without a domicile and no one can have two domiciles.
[673C D] Re Fuld 's Estate (No. 3) 1968 (P) 675; Casdagli vs Casdagli. , 178 and Dicey & Morris, The Con flict of Laws, Vol.
I page 24, referred to.
Domicile being a private international law concept, is inapposite to the relevant provisions, having no foreign element i.e. having no contact with any system of law other than Indian.
unless that expression is understood in a less technical sense.
[674D E] Dr. Pradeep Jain and Others etc.
vs Union of India & Others etc.
, [1984] 3 SCC 654, 666 669, referred to.
An expression which has acquired a special and tech nical connotation and developed as a rule of choice or connecting factor amongst the competing diverse legal system as to the choice of law of forum is, when employed out of context, in situations having no contact with any foreign system of law.
apt to cloud the intended import of the statutory instrument.
[674E F] 8.
India though a Union of States, and a federation in that sense, the whole country is governed by a single uni fied system of law, with a unified system of judicial admin istration, notwithstanding the constitutional distribution of legislative powers between the Centre and the States.
1675B C] 9.
There is no State wise domicile within the territory of India.
A 669 man who is domiciled in India is domiciled in every State in India and is identified with a territorial system of legal rules pervading throughout the country.
He is domiciled in the whole of this country even though his permanent home may be located in a particular spot within it.
[675C D] Halsbury 's Laws of England, vol.
8 para 422; D.P. Joshi vs The State of Madhya Bharat and Another, ; ; Udny vs Udny, [1869] LR 1 Sc & Div 441, H.L.; Bell vs Kennedy, [1868] LR 1 Sc & Div 307, H.L. and D.P. Joshi vs The State of Madhya Bharat and Another, ; , referred to.
Education, business, profession, employment, health, family or merely love of the place are some of the reasons commonly regarded as sufficient for a choice of regular abode.
It is only lawful residence that can be taken into account.
If a man stays in a country in breach of immigra tion laws.
his presence there does not constitute ordinary residence.
[677E F] 11.
Residence is a physical fact.
No volition is needed to establish it.
Unlike in the case of a domicile of choice, animus manendi is not an essential requirement of residence.
Any period of physical presence, however short, may consti tute residence provided it is not transitory, fleeting or casual.
Intention is not relevant to prove the physical fact of residence except to the extent of showing that it is not a mere fleeting or transitory existence.
To insist on an element of volition is to confuse the feature of 'residence ' with those of 'domicile '.
[676E F] 12.
A person is ordinarily resident in a country if his residence there is not casual or uncertain, but is in the ordinary course of his life.
A man may be ordinarily resi dent or habitually resident in more than one place.
While 'ordinary residence ' is the physical residence in regard to which intention is irrelevant, except to show that the residence is not merely fleeting, 'habitual residence ' may denote a quality of endurance longer than ordinary resi dence, although duration, past or prospective, is only one of the many relevant factors, and there is no requirement of any particular minimum period.
[676H; 677A B] 13.
While residence and intention are the two essential elements constituting the 'domicile of choice ', residence in its own right is a connecting factor in a national legal system for purposes of taxation, jurisdiction, service of summons, voting etc.
To read into residence volition as a necessary element is to mistake residence for domicile of choice.
[677F] 670 14.
Where residence is prescribed within a unified legal system as a qualifying condition, it is essential that the expression is so understood as to have the widest room for the full enjoyment of the right of equality before the law.
Any construction which works to the disadvantage of the citizen lawfully seeking legitimate avenues of progress within the country will be out of harmony within the guaran teed rights under the Constitution, and such a construction must necessarily he avoided.
[677G H; 678A] J.D. McClean, International & Comparative Law Quarterly, [1962] Vol.
II pp.
1153 et seq; Commissioner of Inland Revenue vs Lysaght, ; Levene vs Commissioner of Inland Revenu, ; at p. 222 and Dicey & Morris; The Conflict of Laws, 10th ed., pp.
143 145 & 200 202.
Cheshire & North; Private International Law, 11th ed., pp. 171 173 and Halsbury 's Laws of England, 4th ed., vol.
318 330, referred to.
|
ivil Appeal No. 1280 & 1281 of 1988.
From the Judgment and Order dated 21.4.1987 of the Calcutta High Court in Appeal from Original Order No. 128 of 1985, Award Case No. 151 of 1987.
A.K. Sen, Dr. Shankar Ghosh, Ajay K. Jain, Praveen Kumar and Pramod Dayal for the Appellant.
M.K. Banerjee and G.S. Chatterjee for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
These are cross appeals by M/s. Hind Builders (hereinafter referred to as 'the contractors ') and the Union of India.
from an order of Division Bench of the Calcutta High Court in an arbitration matter.
The contractors had been awarded a contract for the execution of certain civil works in connection with the Metro Railway Project in Calcutta.
Certain disputes arose between the Union and the contractors.
These disputes were referred for decision to two arbitrators appointed by the High Court of Calcutta.
The arbitrators entered upon the reference on 27th June.
The contractors had filed a claim before the arbitrators for a sum of Rs.2,05,67,554.
On 26.3.1984 the arbitrators awarded a sum of Rs.57,47,198 to the contractors.
The claim of the contractors filed before the arbitra tors was an itemised claim in respect of various items of works executed by them.
The body of the award made by the arbitrators reads as follows: "We . . make and publish our Award, as below: 642 (i) That the Respondent . . shall pay . . the Contractors a sum of Rs.57,47,198 . . only in full and final settlement of all their claims and dues under the above mentioned contract agreement.
In addi tion, the three Bank Guarantees . . issued by Vijaya Bank, Cuttack, on behalf of the contractors, in favour of Metro Railway, Cuttack, shall be released by the Respondent Railway, as detailed in the Annexure to this Award.
XXX XXX XXX The Award shall be complied with within 60 (Sixty) days from the date of publication of this Award, failing which simple interest @ 11 per cent per annum on the amount of the Award (excluding interest vide item (1) of the Annexure i.e. Rs.6,76,540) shall accrue till the date of payment or decree upon Award whichever is earlier.
" In the annexure to the award, the arbitrators tabulated the various items of the claim before them, the amount claimed against each item and the amount awarded against each item.
Under item (1) in the annexure, the arbitrators had awarded an interest of Rs.6,76,540 and that is why the direction regarding interest by the arbitrators excluded this amount from the principal amount which was to bear interest.
As stated earlier, the total amount awarded was Rs.57,47,198 in respect of items (a) to (q) of the award as against the claim of Rs.2,05,67,554 made by the contractors.
On an application being made to the High Court of Cal cutta on the Original Side for making the award a rule of court, the learned single Judge sitting on the Original Side confirmed the award except to the extent of Rs.5,20,000.
This is no longer in issue.
The learned Judge.
however, concluded his judgment with the following words: "The principal sum awarded stands reduced by Rs.5,20,000 as mentioned above.
The respondent will be entitled to interest at the rate of 11 per cent per annum from the date of refer ence till the date of the award.
" The Union of India preferred an appeal from the order of the learned single Judge.
The Division Bench was of the opinion that the arbitrators were not justified in awarding a sum of Rs.23,96,000 to the contractors (as against a claim of Rs.42,65,957 made by them) in respect of item (c)(xii) viz. "cost towards consolidation of earth by ramming and rolling" and that they could have awarded under the 643 contract only a sum of Rs.2,39,600 in respect of this item.
The amount awarded to the contractors was thus further reduced by the Division Bench by a sum of Rs.21,56,400 (Rs.23,96,000 Rs.2.39,600).
The Bench then observed that the principal sum to be awarded to the contractors would now stand at Rs.30,70,798 and directed that the respondent contractor should be entitled to interest at the rate of 11 per cent per annum on the said amount from the date of the reference till the date of the award.
The contractors have appealed from the order of the Division Bench being aggrieved by the reduction of the amount awarded under item (c)(xii) to Rs.2,39,600 from Rs.23,96,000.
The Union of India has preferred an appeal contending principally that, since the principal amount on which the arbitrator awarded interest was not Rs.57,47,198 but only Rs.50,70,658 (i.e. Rs.57,47,198 Rs.6,76,540), the contractors would be entitled to interest, after the judg ment of the Division Bench, not on Rs.30,70,798 as held by the Division Bench but only on Rs.23,94,258.
In addition, at the tune of the hearing before us, counsel for the Union of India raised two further points: (1) that the Division Bench erred in awarding inter est to the contractors from the date of the reference till the date of the award.
(2) That though the arbitrators had also awarded interest on the principal sum till the date of payment, the contractors should now be held entitled to interest only upto the date of the award because the learned single Judge and the Division Bench have held so and the contractors have preferred no appeal therefrom.
Taking up the contractor 's appeal first, the point raised falls within a very narrow compass and turns on the interpretation of item No. .09 of the annexure to the contract containing the schedule of rates.
This item reads as follows.
Item Brief description Approx Unit of Rate of No. of work imate payment payment in Qty.
"words" & "figures" Rs. P. 1 2 3 4 5 644 4.09 (a)Earthwork in open excava 235000 10 Rs.180 tion for forming garbage cubic cubic (Rupees tanks in all kinds and metres metres one conditions of soils upto hundred depth varying from 0 to 3 eighty 3 metres from the existing only) ground level and disposing of the spoils so as to raise land required for piling work, to fill up the existing low lying areas and ponds, to form embank ments for roads, etc of the Car Depot complex includ ing spreading in layers, breaking clods, levelling, dressing, all lifts/descents and all leads etc.
complete Note: No extra payments will be made if wet excavation is met with or for baling/ pumping out of water of all sorts including rain water.
(b) Extra over item (a) above, 135000 10 Rs.20 for consolidation of the Cubic Cubic (Rupees filled up areas or some of metres metres Twenty the top layers of the filled only).
up areas or road embank ment portions by watering and ramming/rolling as directed.
In respect of these items the statement of claim filed on behalf of the contractor was in the following terms: (b) Earthwork in excavation measured but not paid in full: That under agreement item No. 4.09 (a) the claimants as per instructions, specifications and agreement excavated 645 earthwork in open excavation for forming garbage tanks in all kinds of soil for a quantity of 2, 15,000 Cum and there after the contract was rescinded against which reduced quantity has been measured provisionally upto 17th CC bill for 2,09,523 Cum measured on 24.5.82 and as per the said measurements the claimants are yet to be paid for a quantity of 5,477 Cum over and above the payments already made upto 17th CC.
The claimants claim payment for 5,477 Cum of exca vation @ Rs. 18 per each Cum.
amounting to Rs.98,586.00.
CLAIM AMOUNT.
Rs. 98,586.00 (c)(xii) Cost towards consolidation of earth by ramming and rolling: That as per agreement item No. 4.09(b) the claimants are required to fill up the low lying areas etc., as specified under General Conditions of the Contract at para 3.05 with the excavated spoils obtained out of earthwork in excavation under agreement item No. 4.09(a).
The payment for earthwork in open excavation for work executed under agreement item No. 4.09(a) is to be made on sectional measurements calcu lated by level sections.
The excavated earth obtained from garbage excavation, a quantity of 2, 15,000 Cum as per provisions made in agreement item No. 4.09(b) was consoli dated in different areas as per instructions and approved plan.
The claimants claim payment for this quantity of consolidation at Rs.20 per Cum i.e. Rs.2 extra over Rs. 18 per Cum as specified in agreement item No. 4.09(a) & (b), amounting to Rs.43,00,000.00 against which payment has been made in CC bills for reduced quantity and amount of Rs.34,043.00.
The claimants claim payment for the balance amount of Rs.42,65,957.00 not paid for.
CLAIM AMOUNT Rs.42,65,957.00 In other words, the contractors claimed payment at the rate of Rs.18 per cubic metre in respect of the excavation work done by them under item No. 409(a).
Again, in respect of the same quantity.
of 2,15,000 cubic metres, the contractors made a claim at Rs.20 per cubic metre as the amount payable to them in respect of the consolidation of 646 excavated earth by ramming and rolling.
The Division Bench was of the view that under item No. 4.09(b), the contractors were entitled to an additional payment of Rs.2 only, since the contractors had already been paid at the rate of Rs.18 per cubic metre in respect of the excavation done by them.
The extra charges for ramming and rolling were payable only at the rate of Rs.2 per cubic metre instead of Rs.20 per cubic metre.
The Division Bench accordingly scaled down the amount awarded by the arbitrator in this regard to 1/10th of the amount awarded by him.
It is submitted on behalf of the contractors that the rate payable for the work under item 4.09(b) of the contract was not at all in dispute between the parties at any stage.
The Union had not raised any plea in this regard in its reply to the contractors ' claim, in the objections to the award filed in the High Court or in the arguments before the learned Single Judge.
Clearly, the Division Bench travelled beyond the limits permissible for the interference with an award by a court of law in reducing the amount awarded on this account.
It is pointed out that the award itself is a non speaking award.
The award does not refer to the terms of the contract or incorporate the details of the claims made by the contractors.
Though it is true that the arbitrators awarded a sum of Rs.23,96,000 against item (c)(xii), they have not given reasons therefore.
The award neither shows that the amount has been worked out at the rate of Rs.20 per cubic metre nor does it show the quantity in respect of which the amount has been worked out.
There is no reference to the terms of the contract or to item No. 4.09, clause (a) or (b).
No reasons have been given by the arbitrators for determining that a sum of Rs.23,96,000 has to be paid to the contractors under item (c)(xii).
It is therefore submitted that there was no error apparent on the face of the record.
Learned counsel vehemently contended that it is now settled law that an award cannot be said to suffer from a manifest error unless the error appears on the face of the award or of some document incorporated in the award.
Reference is made to the decisions of this Court in the following cases: Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd., Indore, ; ; Allen Berry & Co. Pvt. Ltd. vs Union oflndia, [1971] 3 SCR287;N. Chellappan vs Secretary, Kerala State Electricity Board & Anr., ; ; Hindustan Tea Co. vs K. Shashi Kant Co. & Ant., ; Hindustan Steel Works Construction Ltd.
C. Rajasekhar Rao, [1987] 4 SCC 93 and Sudarsan Trading Co. vs Government of Kerala & Anr., ; According to the contractors, what the Division Bench has done is to give its own interpretation to item Nos.
4.09(a) & (b) of the contract, to read an erroneous interpretation 647 of the said item into the award made by the arbitrators and to substitute its opinion in the place of that given by the arbitrators.
Thus, it is submitted, runs quite contrary to the principles enunciated in the above decisions and should, therefore, be set aside.
On the other hand, Shri Milon Banerjee, learned counsel for the Union of India submitted that the award is really a speaking award in so far as it does specify the amount granted in respect of each item of claim.
He submitted that the present case falls within the principle enunciated in M/s Alopi Prashad & Sons, Ltd. vs Union of India, ; , which has been taken note of in the case of M/S Sudarsan Trading Co. vs Government of Kerala & Anr., ; at p. 54 that an award which overlooks or ignores the terms of the contract is bad.
He also made a reference to the decision of the Delhi High Court in Bhagat Trading Co. vs Union, AIR 1984 Delhi 358 in this context.
He also referred to a decision of the Punjab High Court in Union of India vs Bakshi Ram, [1957] LIX P.L.R. 572, holding that "when there are pleadings in an arbitration and they are specifically referred to in the award so that it cannot be understood without reference to them, then those pleadings are incorporated in the award and they must be included in the consideration whether there is any error apparent on the face of the award" and that "if a lump sum is awarded by an arbitrator and it appears on the face of the award or is proved by extrinsic evidence that in arriving at the lump sum matters were taken into account which the arbitrator had no jurisdiction to consider, the award is bad." The conten tion of Shri Banerjee is that the annexure to the award clearly incorporates the statement of claim made by the contractors.
Since in turn the statement of claim refers to the clauses of the contract, the contract should also have been treated as incorporated in the award.
It is also appar ent on the face of the award, insofar as it relates to item (c)(xii), that the arbitrators have awarded payment at Rs.20 per cubic metres under item 4.09(b) whereas it must obvious ly be at Rs.2 per cubic metre.
According to the learned counsel, the decisions relied upon by him clearly show that an award which ignores or overlooks the express terms of a contract suffers from an error apparent on the face of the record and can be set aside by this Court.
He submitted that the award, read with the annexure, brings out the reasoning of the arbitrators and that an error therein can be recti fied by the court.
The arbitrators had no power to travel beyond the authority of the contract and, in order to deter mine whether they had exceeded their authority, the contract can be looked into by the court.
In support of this conten tion, the learned counsel also referred to a passage at p. 42 1 in the Law of Arbitration by Bachawat (Second Edition).
648 We have considered the respective contentions of the parties and we are of the opinion that the Division Bench erred in setting aside the award insofar as it relate to the sum of Rs.25,96,000.
Though the annexure sets out the award of the arbitrators as against various items of claims, the mere enumeration of the heads of claims cannot be equated to an incorporation of the statement of claim by the contrac tors into the award.
At any rate, the award does not relate the claims to the various clauses of the contract and the mere fact that the statement of claim refers to various items in the schedule to the contract does not result in the contract itself being incorporated as part of the award.
No error can be found in the award unless one reads into it first the statement of claim and then the relevant clauses of the contract.
But this cannot be done unless these docu ments are treated as incorporated in the award.
This cannot be done.
That apart even if the contract can be read into the award, we doubt whether this case can be treated as one of an error on the face of the award.
All that the award has stated is that for the extra work involved in ramming and rolling, the contractors were to be paid a sum of Rs.23,96,000.
The award does not mention how this amount is arrived at.
There is no mention of the quantity in respect of which this is awarded nor the rate at which the payment has been calculated.
It is, however, pointed out that con tractors had claimed payment at the rate of Rs.20 per cubic metres in respect of 2,15,000 cubic metres and that, even if it is assumed that the ramming and rolling had been done in respect of the entire volume of 2,15,000 cubic metres, the contractors could have, on a proper construction of the contract, been awarded only a sum of Rs.4,30,000 and nothing more.
Obviously, the award is calculated at Rs.20 per cubic metres in respect of 1,19,800 cubic metre.
It is clear, says counsel for the Union, that the volume of the item for which payment has to be made has been cut down but the amount has been calculated at Rs.20 per cubic metre which exceeds the amount of Rs.2 stipulated in the contract and this is erro neous on the face of it.
We are afraid that, in putting forward this contention, the respondents are really trying to analyse the reasons of the arbitrator for making the award under this head when no such reasons have been stated in this award.
In fact, it does not necessarily follow that the payment has been di rected at the rate of Rs.20 per cubic metre in respect of 1, 19,800 cubic metre.
Theoretically, it could have been award ed, in respect of the entire volume of 2, 15,000 cubic metre, at the rate of Rs.11 and odd per cubic metre.
It is, however, clear that the payment has been granted at a rate in excess of Rs.2 per cubic metre.
We shall, however, take it that the arbitrators have awarded at the rate 649 of Rs.20 per cubic metre in respect of this item of work for, as pointed out by Dr. Ghosh, the Union of India had never put forward the case either before the arbitrator or before the learned single Judge that the contractors were not entitled to payment at the rate of Rs.20 per cubic metre as claimed and it was before the Division Bench for the first time that a question arose that the payment for the item should be at Rs.2 and not Rs.20 per cubic metre.
Wheth er the payment should be made at the rate of Rs.20 per cubic metre or at Rs.2 per cubic metre will depend upon a proper interpretation of the contract.
It is argued that the main item of work viz. excavation and distribution of the exca vated work has been paid for under item No. 4.09(a) and that item 4.09(b) envisages an additional payment of Rs.2 per cubic metre if the excavated soil, instead of being loosely distributed, is rammed and rolled by applying some pressure.
This seems, prima facie, a plausible interpretation of clause 4.09(b).
But we cannot assume, in the absence of any evidence or expert knowledge, that the ramming and rolling was not an independent, heavy or cumbersome piece of work and merely involved a minor addition to the work under item 4.09(a).
On the other hand, in the grounds of appeal filed by the contractors it is contended: "The High Court failed to appreciate that the process of ramming and rolling is a very expensive specialised process as it has to be done layer by layer not exceeding six inches at a time and requires watering, breaking of clods and use of specialised road rollers, bulldozers and other equipment.
The work of ramming and rolling is much more expensive than that of earth excavation provided for in item 4.09 (a).
The High Court further failed to appreciate that in its reply to the statement of claim of the petitioner, the respondent No. 1 had not disputed that the rate applicable for ramming and rolling was Rs.20 per cubic metre.
The respondent No. 1 had only raised a dispute with regard to the quantity of the ramming and rolling done by the petitioner.
The High Court misinterpreted the contract and erred in reducing the award for ramming and rolling by erroneously applying the rate of Rs.2 per cubic metre.
" This may be fight or wrong but this is also a plausible view.
Unfortunately, this was an aspect not urged before, or considered by, the arbitrators.
There was no evidence before the arbitrators or material adduced before the Court as to the nature of these operations.
It is difficult to say, by merely reading the terms of contract that the 650 arbitrators have erroneously interpreted the terms of the contract.
It is not without significance that the departmen tal officers did not dispute the rate of the claim.
Equally, the arbitrators were experienced engineers and would not have passed, what is now said to be, an astounding claim without thought.
It is difficult to assume that all these persons have overlooked that the contractor had already been paid at Rs.18 under item 4.09(a) especially when it is so stated on the face of the claim.
This, therefore.
is not a case where tile arbitrators can be said to have ignored or overlooked a term of the contract; on the contrary, they have acted upon a particular interpretation of certain clauses of the contract on which two views are possible.
This case certainly cannot be brought under the principle that the arbitrators have ex facie exceeded the authority or jurisdiction conferred on them by the Contract.
At worst, what can be said is that they may have committed an error in deciding the issue referred to them but the error is not apparent on the face of the award even if the contract is read as part of it both because the arbitrators have not given their reasoning and because the view taken by them of the relevant terms of the contract cannot be said to be clearly erroneous.
In a matter on which the contract is open to two equally plausible interpretations, it is legitimate for the arbitrators to accept ' one or the other of the available interpretations and, even if the Court may think that the other view is preferable, the Court will not and should not interfere.
This view is too well settled to need any reference to any precedent other than Sudershan Trading Co 's case referred to earlier.
That is why we think that this case does not fall within the principle referred to by Shri Banerjee and that Dr. Ghosh is right in his submission that the Division Bench exceeded its jurisdiction in inter fering with this part of the award.
Turning now to the appeal of the Union of India, there is really no dispute about the first contention regarding the amount on which interest is payable to the contractors.
The correct computation should stand as follows in the light of our findings in the contractors ' appeal: Compensation awarded 57,47,198 by arbitrator Less: Interest element therein [item (1)] 6,76,540 Net principal amount awarded 50,70,658 651 Less:Amount deleted by learned Single Judge 5,20,000 45,50,650 The contractors will be entitled to interest on this amount.
What is the period with reference to which interest would be payable on the above amount? The arbitrators had allowed interest on the amount awarded by them from 5.10.82 to 26.3.84 under item (1) and had also allowed interest from the date of the award till the date of payment or decree, whichever is earlier.
Of this, the learned Single Judge had deleted the interest for the period 5.10.82 to 6.5.83 and what remains is the award of interest from 6.5.83 till the date of payment.
There are two disputes as to this.
The first objection raised on behalf of the Union is that the contractors will not be entitled to any interest for the period from the date of reference to arbitration (6.5.1983) till the date of the award (26.3.1984).
On behalf of the contractors, Dr Ghosh refutes this contention.
He relies upon the decision of this Court in Executive Engineer vs Abhaduta Jena.
[1988] 1 SCC 418 and contends that, in all cases where, as in this case, arbitrators are appointed by Court and disputes referred to them for arbitration, pen dente lite interest can and should be awarded by the arbi trator.
He points out that, though initially in Seth Thawar das ' case some doubts were raised about the competence of the arbitrator to award interest, this Court has subsequently consistently held that an arbitrator can do this: vide, Nachiappa vs Subramaniam, ; ; Satinder vs Arnrao, ; ; Firm Madanlal vs Hukamchand Mills Ltd.; , ; Union vs Bungo Steel Furniture P. Ltd., ; ; Ashok Construc tion Co. Ltd. vs Union, and State vs Saith & Skelton P. Ltd., ; After referring to these and other cases, Chinnappa Reddy, J. in Abhaduta Jena, (supra) summed up the position thus: "15.
As a result of the discussion of the various cases, we see that Bengal Nagpur Railway Co. Ltd. vs Ruttanji Ranjit, 65 IA 66; Union of India vs West Punjab Factories, ; and Union of India vs Watkins & Co., AIR 1966 SC 275 were cases of award of interest not by an arbitrator, but by the court.
It was laid down in those three cases that 652 interest could not be awarded for the period prior to the suit in the absence of an agreement for the payment of interest or any usage of trade having the force of law or any provision of the substantive law entitling the plaintiff to recover interest.
Interest could also be awarded by the court under the Interest Act if the amount claimed was a sum certain payable at a certain time by virtue of a written instrument.
In regard to pendente lite interest, the provi sions of the Civil Procedure Code governed the same.
The question of award of interest by an arbitrator was considered in the remaining cases to which we have referred earlier.
Nachiappa Chettiar vs Subramaniam Chettiar, ; ; Satinder Singh vs Amrao Singh, ; ; Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd., ; ; Union of India vs Bungo Steel Furniture Pvt. Ltd., [1967] I SCR 324; Ashok Construction Co. vs Union of India, and State of Madhya Pradesh vs M/s. Saith & Skelton Pvt. Ltd., ; were all cases in which the reference to arbitration was made by the court, of all the disputes in the suit.
It was held that the arbitrator must be assumed in those circumstances to have the same power to award interest as the court.
It was on that basis that the award of pendente lite interest was made on the principle of Section 34 Civil Procedure Code in Nachiappa Chettiar vs Subramaniam Mills Ltd., (supra); Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd., (supra); Union of India vs Bungo Furniture Pvt. Ltd., (supra) and State of Madhya Pradesh vs M/s Saith & Skelton Pvt. Ltd., (supra).
In regard to interest prior to the suit, it was held in these cases that since the Interest Act, 1839, was not applicable, interest could be awarded if there was an agreement to pay interest or a usage of trade having the force of law or any other provision of substantive law entitling the claimant to recover interest.
Illustrations of the provisions of substantive law under which the arbitrator could award interest were also given in some of the cases.
It was said, for instance, where an owner was deprived of his property, the right to receive interest took the place of the right to retain possession, and the owner of immova ble property who lost possession of it was, therefore, entitled to claim interest in the place of right to retain possession.
It was further said 653 that it would be so whether possession of immovable property was taken away by private treaty or by compulsory acquisi tion.
Another instance where interest could be awarded was under Section 61(2) of the Sale of Goods Act which provided for the award of interest to the seller or the buyer, as the case may be, under the circumstances specified in that section.
XXX XXX XXX 18.
While this is the position in cases which arose prior to the coming into force of the , in cases arising after the coming into force of the Act, the position now is that though the award of pendente lite interest is still governed by the same principles, the award of interest prior to the suit is now governed by the .
Under the , an arbitrator is by defini tion, a court and may now award interest.
in all the cases to which the applies.
" Sri Milon Banerjee, appearing for the Union of India, however, contends that the above principle is applicable only in cases where an arbitrator is appointed on interven tion of count as contemplated in Chapter IV of the Arbitra tion Act.
It is only in these cases that the arbitration proceedings can be considered to be a continuation of the court proceedings, empowering the arbitrator to do all that the court could do.
For, even in cases arising after the , the award of pendente lite interest can only be in terms of the provisions of section 34 of the Code of Civil Procedure and this cannot be invoked in cases of arbitration except in cases falling under Chapter IV merely on the ground that the appointment of the arbitrator is made under section 8, 12 or 20 of the said Act.
Counsel submits that Chinnappa Reddy, J. has pointed out in Abhadhuta Jena 's case [ [1988] 1 SCC at pp.
434 5] that in all cases whether arising before or after the , the claimants would not be entitled to interest from the date of reference to the date of the award for the simple reason that "the arbitrator is not a court nor were the references to arbi tration made in the course of suits".
It is this principle that has been reiterated in Food Corporation of India vs Surendra, Devendra & Mohendra Transport Co., (at pp.
554 et seq) and Gujarat Water Supply & Sewage Board vs Unique Erectors, ; There is force in the contention urged by Sri Banerjee.
There are 654 passages in Abhaduta Jena which indicate that the grant of pendente lite interest would be justified only when the reference to arbitration is made in the course of a suit: vide, the last sentence on p. 428, the first sentence on p. 429, the emphasis added in the extracts from earlier judg ments on pp.
430 1, and the summings up at p. 433 and 435.
The principle indicated in these passages apparently is that since a Court has, under section 34, of the C.P.C., power to grant pendente lite interest in a suit, an arbitrator to whom a reference to arbitration is made in the course of the suit would be clothed with all the powers of the Court including the one to grant such interest.
This is how this Court has also looked at the matter in a subsequent case.
In State of Rajasthan vs Sharrna & Co., ; , the parties had entered into a compromise in certain proceedings in Court agreeing that their disputes would be settled by arbitration but the arbitrators were appointed subsequently by the parties themselves and a reference made to them.
A Bench of this Court (of which one of us was a member) re viewed the earlier cases and explained the decision in Abhaduta Jena thus: "12.
This was awarding interest pendente lite.
This is in violation of the principles enunciated by this Court in Executive Engineer (Irrigation), Balimela vs Abhaduta Jena.
Our attention was drawn by Shri Soli J. Sorabjee, counsel for the respondent, to the decision of this Court in Food Corporation of India vs M/s Surendra, Devendra & Mohendra Transport Co., where at pages 555 556 of the report, the Court referred to certain decisions cited by Chinnappa Reddy, J. in Executive Engineer (Irrigation) in which he had expressed the view that those were cases in which the refer ences to arbitration were made by the court or in court proceedings of the disputes in the suit.
In that context it was held in those cases that the arbitrator had power to grant interest.
It was contended before us that this was a similar case.
There was a court proceeding in this case regarding the appointment of the arbitrator and, as such, on the same analogy it should be treated that the arbitrator had power to grant interest.
We are unable to accept this.
What Mr. Justice O. Chinnappa Reddy meant to say by the latter judgment in Executive Engineer (Irrigation) case, referred to in Food Corporation of India was where the disputes regarding the merit of the case were pending in the court and such disputes instead of being decided by the 655 court, adjudication had been referred to an arbitrator by the court, in such cases the arbitrators deciding in the place of court, would have the same powers to grant interest pendente lite as the courts have under Section 34 of the Civil Procedure Code.
Instant case is not such a proceeding.
" This principle would logically be applicable, as rightly contended by Shri Banerjee, only to cases where the refer ence to arbitration arises in the course of a suit.
Dr. Ghosh, however, submits that, except for Nachiappa vs Subramaniam, ; and Hukumchand Mills; , , the other cases referred to by Chinnappa Reddy, J. were all only cases in which an arbitrator had been appointed under section 8 or 20 of the Arbitration Act.
The principle enunciated, he submits, was actually a little wider than that contended for by Shri Banerjee.
It is this that where an arbitrator is appointed by the Court and a reference is made to him, he has all the powers of the Court.
He invites attention to the observations in Hukum chand Mills, case ; , reiterated (in the context of post award interest) in Union vs Bungo Furniture Co., ; at p. 329) that it is "an implied term of the reference that the arbitrator will decide the dispute according to law and would give such relief with regard to pendente lite interest as a Court could give if it decided the dispute".
He urges that Abhaduta Jena related to a batch of cases, arising out of references made prior to, and later than, the commencement of the , but by the parties themselves under the terms of the contract, without reference to court and so it was held that pendente lite interest could not be granted.
But that is not so in the present case.
He says that this decision was simply followed in State vs Construction India, ; , in the Food Corporation case and in State vs Sharma and Co., ; The Gujarat Water Supply case [1989] ISCC 532 was, he urges, also a similar case (see para 5) though in that case there appear to have been some proceedings in Court earlier.
In short, he virtually submits that Abhaduta Jena and Sharma 's case have unduly restricted the grant of pendente lite interest and require reconsideration and that pendente lite interest should be awarded in all cases where the intervention of Court is sought for the appointment of arbitrators, directly or indirectly, at any stage.
Generally speaking, it would only seem reasonable that the power to grant interest pendente lite should be treated as ancillary to the award of damages or compensation which, but for the delay in the 656 litigation (whether in Court or by way of arbitration), the claimant should have received much earlier.
However, though pendente lite interest has been made available in Court proceedings, its extension to arbitration law appears to have acquired some technical limitations resulting in denial of pendente lite interest in most cases of arbitration.
Even if we accept the contention of Dr. Ghosh, pendente lite interest cannot still be awarded by an arbitrator appointed by the parties under a private agreement for which there may be no justification in equity.
These anomalies have arisen because formerly an arbitrator could not be treated as a Court to which the Code of Civil Procedure applied and because now the , while including arbitra tion proceedings within its ambit, has, apart from a refer ence to section 34, omitted to provide specifically for pendente lite interest.
This has been clearly brought out by Chinnap pa Reddy, J. We have earlier referred to passages from Abhaduta Jena which outline the principle the learned Judge had in mind for permitting pendente lite interest by an arbitrator.
It is interesting, in fact, to notice that the present contentions of Dr. Ghosh (based on certain earlier decisions of this Court) appear to have been advanced by him in the Food Corporation case to support a wider contention that pendente lite interest should be awarded even in an arbitration by private agreement (as in that case) so long as the terms of the arbitration agreement did not exclude the jurisdiction of the arbitrator to enter tain such a claim.
But the Court did not accept the conten tion and followed Abhaduta Jena.
Abhaduta Jena has been followed in later cases also and its scope has been recently explained in Sharma 's case ; We may point out that in the latter case, a specific point was raised that since the Court had been concerned with the appointment of the arbitrator at some stage it should be treated as a reference to arbitration by court warranting the grant of pendente lite interest but this contention was negatived and the principle confined only to cases where a reference to arbitration is made in the course of suits.
The position was similar in the Gujarat Water Supply case ; but pendente lite interest was denied.
In view of Abhaduta Jena and the clarification specifically set out in para 13 of Shartna 's case, we are unable to accede to the contention of Dr. Ghosh, attractive as it is an equitable proposition.
The Division Bench of the High Court had no occasion to consider the above recent pronouncements of this Court.
Further, it is seen that, before the Division Bench, the Union took an objection that under clause 16(2) of the general conditions of contract, the contractors could claim no interest on the amounts that may be determined as 657 payable to them.
The Division Bench met this contention by relying on a circular issued by the Government of India making the claim for interest entertainable in arbitration "if notice had been issued in this behalf by the arbitrator".
There is, however, no finding and nothing on record brought to our notice to show that any specific notice, claiming interest, had been given as contemplated by the contract.
Having regard to all these considerations, we are unable to uphold the order of the Division Bench on this issue.
This takes us to the second point urged on behalf of the Union in regard to interest.
The contention is that the learned Single Judge had restricted it to the date of the award, and that this has become final as the contractors have preferred no appeal therefrom.
The grounds of appeal before us by the Union are confined only to the mistake in not taking into account the sum of Rs.6,76,540 and do not raise any question regarding post award interest.
It is, therefore, not open to Shri Banerjee to raise this question.
That apart, on merits also the contention raised that post award interest has been declined by the High Court is not correct.
The contention overlooks the course of pleadings between the parties.
The arbitrators had, in the annexure to the award, computed interest from 5.10.82 to 26.3.84 i.e. from the date of the termination of the contract till the date of the award and in the award, had granted interest on the amount awarded from the date of award till the date of decree or payment.
A point had been raised before the High Court in the memo of objections that the arbitrators had erred in awarding interest in the manner mentioned in the award but the objection urged by the Union before the learned Single Judge was a different one viz. that the arbitrators ought not to have granted interest for the period prior to the date of reference without any agreement or right in law to claim such interest.
It is this conten tion that was accepted by the learned Single Judge who deleted the interest award prior to the date of the refer ence and held that the arbitrators had jurisdiction to award interest from the date of the reference till the date of the award.
This did not affect the arbitrator 's direction in the main part of the award, that interest will accrue on the amount of the award (if the said amount was not paid within 60 days) till the date of payment or decree, whichever is earlier.
This part of the award was not questioned.
In fact, the decree drawn up in consequence of the order of the learned Single Judge, specifically directs (a) interest on the awarded amount from 6.5.83 (date of reference) to 26.3.84 (date of the award ); (b) "thereafter, interest on the amount ' awarded at 11% from 27.3.84 to 11.12.84" (date of the decree); and (c) interest thereafter at 658 9% per annum.
The objection of the Union in the LPA on the question of interest was only that the arbitrators had erred in awarding interest from 6.5.1983 to 26.3.1984.
It is this contention that was accepted by the Division Bench.
The High Court had, therefore, not decided that the contractors were not entitled to interest beyond the date of the award.
This contention of the Union, therefore, fails and is rejected.
In the result C.A. 1280/88 is allowed and C.A. 128 1/88 is allowed in part.
There will be no order as to costs.
R.N.J. Appeals allowed.
| IN-Abs | Certain disputes having arisen between the Union of India and the Contractors in respect of the Contract awarded to the letter for the execution of certain civil works pertaining to the Metro Railway Project in Calcutta, the same were referred for decision to two Arbitrators appointed by the High Court of Calcutta.
The Contractors filed their itemised claim before the Arbitrators for a total sum of Rs.2,05,67,554.
The Arbitrators awarded a sum of Rs.57.47,198 to the contractors in full and final settlement of all their claims which included a sum of Rs.6.76,540 as interest vide item (1).
They directed that the award shall be complied with within sixty days of its publication fail ing which simple interest @ 11 percent per annum shall accrue thereon (excluding interest amount of Rs.6.76,540) till the date of payment or decree upon award which ever is earlier.
On an application being made to the High Court for making the Award a rule of the Court.
the learned single judge confirmed the award except that the principal sum awarded was reduced by Rs.5,20,000 with the direction that the amount so awarded will carry interest @ 11% per annum from the date of reference till the date of the award.
639 The Union of India preferred an appeal to the Division Bench, which reduced the amount awarded under item (c)(xii) from Rs.23.96.000 to Rs.2.39,000.
Thus the principal amount to be awarded to the contractors was finally put at Rs.30.70,798 and this amount was directed to carry interest @ 11% per annum from the date of the reference till the date of the award.
Aggrieved by the order of the Division Bench reducing the amount awarded under item (c)(xii) from Rs.23,96,000 to 239,600 the contractors preferred an appeal to this Court.
The Union of Indian on the other hand preferred a cross appeal praying (i) that interest should not be payable on the amount of Rs.30,70,798 fixed by the High Court but only on Rs.23,94,258 left after deducting therefrom the amount of Rs.6,76,540 awarded by the Arbitrators in respect of item No. (L) and (ii) that.
though the arbitrators had also awarded interest on the principal sum till the date of payment or decree on award in case payment was not done within sixty days of the publication of the award.
the contractors should be held entitled to interest upto the date of the award only and not beyond it because both the learned single judge and the Division Bench have held so and the contractors have preferred no appeal therefrom.
Taking up the contractor 's appeal first, this Court came to the conclusion that the Division Bench had exceeded its jurisdiction in interfering with this part of the award and restored the amount awarded by the arbitrators under item (c)(xii).
Dealing with the appeal of the Union of India this Court ruled that there was really no dispute left about Union of India 's first contention as to what was the correct amount on which interest was payable to the contractors after its findings in the contractor 's appeal and placed the figure at Rs.45,50,658.
Dealing with the second contention as to what was the period with reference to which interest would be payable to the contractors on the above amount it was noticed that the arbitrators had allowed interest from 5.10.82 (date of termination of contract) to 26.3.84 (date of award) under item (L) and had also allowed interest from the date of the award till the date of payment or decree whichever is earli er.
The learned single judge had deleted the interest for the period 5.10.82 to 6.5.83 (date of reference) but held that the arbitrators had jurisdiction to award interest from the date of the reference till the date of award and also post award interest.
As the objection of the Union of India 640 before the Division Bench in the LPA on the question of interest was only that the arbitrators had erred in awarding interest from 6.5.1983 to 26.3.1984 the High Court had not decided that the contractors were not entitled to interest beyond the date of award and therefore this contention of the Union of India failed and was rejected.
The Court.
HELD: The grant of pendente lite interest would be justified only when reference to arbitration is made in the course of a suit.
The principle indicated is that since a court has.
under section 34 of power to grant pendente lite interest in a suit.
an arbitra tor to Whom a reference to arbitration is made in the course of the suit would be clothed with all the powers of the court including one to grant such interest.
Generally speak ing.
it would only seem reasonable that the power to grant interest pendente lite should be treated as ancillary to the award of damages or compensation which.
but for the delay in the litigation (Whether in court or by way of arbitration).
the claimant should have received much earlier.
However.
though pendente interest has been made available in court proceedings.
its extension to arbitration law appears to have acquired some technical limitations resulting in denial of pendente lite interest in most arbitration cases.
Pendent lite interest cannot still be awarded by an Arbitrator appointed by the parties under a private agreement for which there may be no justification in equity.
Anomalies have arisen because formerly an Arbitrator could not be treated as a court to which the code of civil procedure applied and because now the Interest act, 1978, while including arbitration proceed ings within its ambit, has, apart from a reference to section 34 omitted to provide specifically for pendente lite interest.
This has been clearly brought out by Chinnappa Reddy, J., in Abhaduta Jena which outline the principle the learned judge had in mind for permitting pendente lite interest by arbi trator.
Abhaduta Jena has been followed in later cases also and its scope has been recently explained in Sharma 's Case , and the Gujarat Water Supply case where pendente lite interest was denied.
[655H; 656A F] Gujarat Water Supply & Sewage Board vs Unique Erectors, ; ; Firm Madan Lal Roshan Lal Mahajan vs Hukumchand Mills Ltd., lndore; , ; Allen Berry & Co. Pvt. Ltd vs Union of India, ; N. Chellappan vs Secretary, Kerala State Electricity Board & Anr., ; ; Hindustan Tea Co. vs
K. Shashi Kant Co. & Anr., ; Hindustan Steel Works Construction Ltd. vs C. Rajasekhar Rao, [1987] 4 S.C.C. 93; Sudarsan Trading Co. vs Government off Kerala & Anr. ; M/s. Alppi Prashad & Sons, Ltd. vs 641 Union of India; , ; Bhagat Trading Co. vs Union of India, AIR 1984 Delhi 358; Union of India vs Bakshi Ram, [1957] LIX P.L.R. 572; Executive Engineer vs Abhaduta Jena, [1988] 1 S.C.C. 418; Nachiappa vs Subramaniam, ; Satinder vs Amrao, ; ; Union vs Bungo Steel Furniture P. Ltd., ; ; Ashok Construction Co. Ltd. vs Union, ; State vs Saith & Skelton P. Ltd., ; ; Food Corpora tion of India vs Surendra, Devendra & Mohendra Tansport Co., and State of Rajasthan vs Sharma & Co., ; , referred to.
|
ivil Appeal No. 1135 of 1981.
From the Judgment and Order dated 15.12.1980 of the Allahabad High Court in Civil Writ Petition No. 1096 of 1974.
R.N. Trivedi, R. Ramachandran and Ms. Sadhna Ramachan dran (N.P.) for the Appellant.
Anil Deo Singh, Gopal Subramanium, Ms. section Dikshit, S.S. Hussain, S.A. Syed, R.S.M. Verma and Shakil Ahmed Syed for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Karamat Husain Muslim Girls College, Luc know (hereinafter called the 'College ') is being managed by Anjuman Muslimat e Hind which is a society registered under the .
The avowed object of the society is to advance the cause of education among the women of India.
The College has been recognised by the State of Uttar Pradesh as a religious 701 minority institution within the meaning of Article 30(1) of the Constitution of India and is an affiliated associate of Lucknow University.
The post of lady Principal in the degree section of the college was advertised on April 5, 1974 indicating the following qualifications/ requirements: (1) First or good second class Masters Degree in any of the subject taught in the institution; (2) At least five years experience of teaching degree classes as also administrative experience; (3) Must possess working knowledge of Urdu; (4) Willing to reside in the college premises.
In response to the advertisement the appellant along with others applied for the post.
The appellant did not fulfil the qualification of five years experience.
She alone appeared for the interview and the Selection Committee relaxed the qualification of experience in her favour and selected her.
The Management thereafter sought the approval of the University to appoint the appellant as required under Section 31(11) of the Uttar Pradesh State Universities Act, 1973 (hereinafter called the 'Act ').
The University, howev er, declined to approve and directed the management to re advertise the post.
The appellant challenged the decision of the University by way of a writ petition under Article 226 of the Constitution of India before the Lucknow Bench of the Allahabad High Court on the ground that the college being a minority institution any interference by the University under the Act is violative of Article 30(1) of the Constitu tion.
It was also contended that there was no basis or justification to withhold the approval.
The High Court rejected the attack on the ground of Article 30 of the Constitution of India by holding that the provisions of the Act are regulatory and are primarily for the purpose of maintaining uniformity, efficiency and stand ards of education in the minority institutions.
On the merits the High Court held that the Selection Committee was not justified in relaxing the qualification without reserv ing that fight to itself in the advertisement.
The High Court also found that the qualification "possessing working knowledge of Urdu" was unjust On the above findings the writ petition was dismissed.
This 702 is how the appellant is before us via Article 136 of the Constitution of India.
The High Court has tightly held the relaxation granted by the Selection Committee to be arbitrary.
In the absence of statutory rules providing power of relaxation, the adver tisement must indicate that the Selection Committee/Appoint ing Authority has the power to relax the qualifications.
Regarding "Working knowledge of Urdu" we do not agree with the High Court that the said qualification is unjust.
The college being a Muslim minority institution prescribing the said qualification for the post of Principal, is in conform ity with the object of establishing the institution.
In the view which we are taking in this case it is not necessary to go into the argument based on Article 30(1) of the Constitution of India.
We heard the arguments in this case on February 23, 1990 and adjourned the case with the following order: "It is admitted by the parties that as a result of the Court orders the appellant Ms. Shainda Hasan is continuing to work as Principal in the Karamat Husain Muslim Girls College, Lucknow since 1974.
Having served the institution for over 16 years it would be unjust to make her leave the post.
Under the circumstances let the University reconsider the whole matter sympathetically.
" The case was taken up in Chambers on April 20, 1990 when Mrs. Shobha Dixit learned counsel for the State after ob taining instructions from the University agreed with us that asking the appellant to leave the job after sixteen years would be doing injustice to her.
Keeping in view the facts and circumstances of the case and in the interest of justice we direct the Lucknow Univer sity and its Vice Chancellor to grant the necessary approval to the appointment of the appellant as Principal of Karamat Husain MusIim Girls College, Lucknow, with effect from the date she is holding the said post.
We further direct that the appellant shall be entitled to the salary,allowances and all other consequential benefits to which a regular princi pal of the said college would have been and is entitled.
We dispose of the appeal with the above directions.
There shall be no order as to costs.
T.N.A. Appeal dis missed.
| IN-Abs | The respondent college, a religions minority institu tion, invited application for the post of Principal from candidates possessing First or Second class Master 's Degree, five years teaching experience and possession of working knowledge of Urdu.
The Selection Committee selected the appellant by relaxing the qualification of experience in her favour but the University declined its approval to the appointment under Section 31(11) of the Uttar Pradesh State Universities Act, 1973 and directed the Management Committee to readvertise the post.
The appellant challenged the University 's decision before the High Court contending that the college being a minority institution any interference by the University under the Act was violative of Article 30(1) of the Consti tution and that there was no justification to withhold the approval.
The High Court rejected the attack on the ground of Article 30 by holding that the provisions of the Act were regulatory but held that the Selection Committee was not justified in relaxing the qualification and that the quali fication 'possessing working knowledge of Urdu ' was unjust.
Hence this appeal by special leave.
700 Dismissing the appeal, this Court, HELD: 1.
In the absence of statutory rules providing power of relaxation, the advertisement must indicate that the Selection Committee/Appointing Authority has the power to relax the qualifications.
The High Court has rightly held the relaxation granted by the Selection Committee to be arbitrary.
[702B] 2.
The college being a Muslim minority institution, the prescribing of the qualification of possession working knowledge of Urdu for the post of Principal, is in.
conform ity with the object of establishing the institution.
The said qualification is not unjust.
[702B] [In the interest of justice and in view of the facts and circumstances of the case, the Lucknow University and its Vice Chancellor are directed to grant the necessary approval to the appointment of the appellant to the post of Principal of College, which the appellant is holding as a result of the Court orders, with effect from the date she is holding the said post, and the appellant shah be entitled to salary, allowances and all other consequential benefits to which a regular Principal of the said college would have been enti tled.] [702G]
|
ivil Appeal No. 3566 of 1989.
712 From the Judgment and Order dated 17.2.1989 of the Gauhati High Court in F.A. No. 7 of 1972.
K.N. Bhatt, H.N. Salve, A.K. Sil and G. Joshi for the Appel lant.
section Parekh for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETT, J.
The question of law which is concerned in this appeal is whether in the circumstances of the case, the appellant ("Bank") was required to act as agent of the respondent or as bailee in respect of goods entrusted for delivery to the respondent against payment.
In 1945 the respondent was carrying on the business of wholesome and retail dealership in textile yarn and cloth at Agartala and in the course of that business he was appointed as a Government nominee to indent for and lift the quanti ties of cloth and yarn to Agartala from different mills situated in Bengal, Bombay, Ahmedabad and other places.
For the purpose of that business, the respondent had maintained Current Account No. 391 with the Agartala Branch of the United Commercial Bank Limited which has since been styled as 'UCO Bank ', the appellant in this appeal.
The case of the respondent plaintiff was that there was an oral agreement with the Bank on September 2, 1950 under which the latter inter alia was to receive bills, documents and air receipts sent by or on behalf of the plaintiff from his agents or suppliers and would release and/or take delivery of goods sent by them, as and when the goods arrive at Agartala.
The Bank would hold or keep the said goods stored in its godown for and on behalf of and on account of the plaintiff for his benefit etc.
It was also alleged that payment of the bills in respect of goods dispatched to the Bank should be made by the plaintiff.
He should be given delivery of the goods and air receipts by the Bank according to his convenience and requirement.
It was further stated that under the said terms and conditions, the Banker consti tuted himself and acted as an express trustee and/or agent of the plaintiff in relation to the said goods and air receipts and thus stood in fiduciary relationship with the plaintiff.
713 Complaining non delivery of goods even after receiving payment thereof, the plaintiff brought a suit for accounts, damages, compensation and delivery of goods or their equiva lent in money valued at Rs.2,68,198.97.
The Bank has denied all the allegations and asserted that it never acted as an agent, trustee or depositee of the plaintiff in respect of the goods and documents.
The exist ence of fiduciary relationship between the parties was also denied.
It was however stated that certain parties from Calcutta were supplying goods to various parties in Agartala including the plaintiff and they used to send bills with air receipts Covering the goods to the Bank for presentation to the drawees and the Bank would deliver the same against payment.
The Bank collected bill amounts on behalf of those parties in the usual course of business.
It was further admitted that some parties from Calcutta engaged the Bank to collect the amounts of the bills drawn on the plaintiff, to clear the goods dispatched by them from the Airways on their behalf, to store them in Bank 's godown and to allow the drawee (plaintiff) to take delivery of the goods against payment of their costs and charges including the salaries of the godown staff, handling and insurance charges etc.
Those charges and costs were recovered from the plaintiff by the Bank on behalf or ' the parties sending the goods to the plaintiff.
The Bank maintained that it had dealt with such goods of the Calcutta parties, recovered monthly charges at the instructions of the drawers and the drawee (plaintiff) and debited to the account of the plaintiff.
When there was no amount available in the plaintiff 's account or when the plaintiff defaulted in retiring the bills, the said charges were recovered from the drawers.
The goods in the custord of the Bank on behalf of the Calcutta parties which were paid for by the plaintiff would be delivered to the plaintiff and the goods for which no payment was made by the plaintiff would be returned to the drawers of the bills.
The trial court framed among others, the following three issues: (9) Was there any agreement and/or arrangements between the parties as alleged in the plaint? 10) Was the defendant a trustee and/or agent of the plaintiff as alleged in the plaint? and (11) Was there any fiduciary relationship between the parties as alleged by the plaintiff? 714 The trial court recorded findings on all these issues in the affirmative and in favour of the plaintiff.
On Issue No. (9) as to the existence of agreement, it was observed: "The evidence on record shows that regular accounts of goods for the plaintiff would be maintained by the defendant Bank.
Although the purpose of current account No. 391 of the plaintiff cannot alter the nature being that of debtor and creditor attributable to the account, the factum of the account and its operation also indicate that there was an agreement between the parties.
This does not however exclude necessary agreement or arrangement by the bank with the Calcutta parties.
Debits in the account of the plaintiff started to be made from 13.9.50 in connection with transac tions of the plaintiff, whereas the alleged agreement be tween the bank and S.T. Bros, occured in March, 1951.
All these factors lead to the inference that there was an agree ment or arrangement between the bank and the plaintiff regarding payment of bills and charges for the account of the plaintiff and otherwise and regarding storing of those goods received by the Bank in its godowns, of which the plaintiff came to be owner and for delivery of those goods as and when required by the plaintiff.
These are the minimum terms deducible from the evidence on record.
To this extent the issue is answered in favour of the plaintiff." Issue No. (10) was determined as follows: "It is in evidence that the Bank collected bills, made remittances to mills, applied for purchasing drafts on behalf of the plaintiff, met expenses of storing the goods by debiting account No. 391 of the plaintiff, collected treasury bills of the plaintiff and vide Ext.
P 56 series made adjustment of bills by debiting account No. 391 without cheques issued by the plaintiff and did similar other works.
All this leads to the reasonable inference that the bank also acted as agent of the plaintiff.
In this suit, such agency of the defendant involved a relation of trust and confidence and the goods which came to be owned by the plaintiff on payment of value thereof and which remained in the hands of the bank were impressed with trust for the benefit of the plaintiff.
As matter of fact, the defendant bank 's position 715 was that of an intermediary owing duties to both the Cal cutta parties and the plaintiff." Issue No. (11) as to the fiduciary relationship between the Bank and plaintiff, it was remarked: "The bank collected cheques issued in its favour and under advice of the plaintiff remitted the money to the mills and the Calcutta parties to meet the value of the bills drawn by the mills and the agents of the plaintiff (Calcutta parties).
It has to be noted in this connection that the Calcutta parties acted as agents of the plaintiff in so far as they acted on behalf of the plaintiff in lifting the controlled commodities from the mills and arranging for their dispatch to Agartala.
The bank also made adjustment of bills by debiting account No. 391 without any cheques being issued by the plaintiff, vide Ext.
P 56 series, and met the expenses of storing the goods by debiting from the account No. 391 of the plaintiff.
From Ext.
P 61, stock register, it is seen that the bank stocked goods on account of the plain tiff in its godowns on those premises, according to the learned counsel for the plaintiff, there is no escape from the conclusion that the bank stood in a fiduciary relation ship with the plaintiff.
Learned counsel for the defendant bank urged that save and except relationship of banker and customer there was no other relationship between the plain tiff and defendant bank.
But in view of the materials on record I find that there was fiduciary relationship between the plaintiff and the defendant bank.
This issue is decided in favour of the plaintiff." Accordingly, the suit was decreed in part directing delivery of goods or the value equivalent to Rs.1,26,500.
A Commis sioner was also appointed to take accounts with regard to the transactions.
The High Court of Calcutta has affirmed the decree of the trial court.
As to the question of relationship between the Bank and customer, the High Court observed: "In our opinion if we find that the plaintiff paid the value of the goods and the appellant bank neither delivered the goods nor rendered accounts, a fiduciary relationship could exist between the plaintiff and the bank in respect of the 716 goods for which value was paid by the plaintiff." The Bank by obtaining leave has now appealed to this court.
In opening the appeal, Counsel for the appellant urged that the case of the plaintiff based on oral agreement which is expressly contrary to banking transactions ought not to be relied upon.
It was claimed that the Bank was a collect ing agent for the supplier of goods and not an agent or trustee for the respondent.
Adjustment of bills by debiting to the current account without cheques from the respondent would not change the ordinary relationship of bank and customer.
There was no 'special relationship ' created either by opening the current account or storing the goods meant for delivery to the plaintiff and there was nothing to take the parties outside the usual course of banking business.
It was further argued that the Bank received and took charge of the goods only as bailee and any inference of fiduciary relationship between parties was unwarranted and unjusti fied.
Counsel for the appellant appears to be very particular to get rid of the finding recorded by the Courts below as to the fiduciary relationship in bank and customer relation ship.
We agree with him that the High Court and the trial court were not justified in holding that a fiduciary rela tionship could exist between the parties in respect of goods for which the suit claim was based.
This inference was drawn primarily from the debit entries in the plaintiff 's current account.
Reference was made to collection of bills, remit tances to mills, meeting expenses of storing the goods and debiting the same to the current account even without cheques from the plaintiff.
These acts according to the trial court would lead to an inference that the Bank acted as agent of the plaintiff and there was thus fiduciary relationship between parties.
But we do not find anything in this method of operation to take the parties outside the ordinary relationship of banker and customer.
Lord Chorley says that "the main mass of daily banking activity in branch banks is concerned with the operations of current accounts which thus provide a sort of hub round which the wheels of the whole set up of commercial banking revolve . .
There is no accepted definition of a current account; though in its normal form it is easily recognised in practice.
The principal feature of such an account is the fact that the customer gets his money repaid from it, or any advances which he is receiving from his banker by way of loan: and this is so whether the repayment is to himself or to a third party.
Normally the repayment is made through the machinery of the cheque and conversely unless otherwise indicated by the customer it is implied that 717 cheques paid in are for the credit of the current account, and that they will be so credited . .
We have seen that overdrawings by the customer when allowed by the banker are treated as loans. ' They will be debited to the current account.
Indeed it is through the current account, and by means of overdrafts on it that loans and advances are nor mally made by bankers to their customers".
(Law of Banking by Lord Chorley 6th ed.
at 167 168).
In Paget 's Law of Banking, 9th ed.
at 82 83, it is stated that "the current or drawing account may be either a credit or an overdrawn account.
A credit account is made up of moneys paid in by the customer, the proceeds of cheques and bills collected for him, coupons collected, interest and dividends paid direct to the banker and from various other sources, less any money properly paid out.
Moneys from different sources, once they have found their way into the current account, are treated as one entire debt.
" This is the normal method of banking operation and the maintenance of the current account in this case appears to be not outside this principle and therefore, no inference could be drawn that the Bank stood in fiduciary relationship with the plaintiff.
Next question for consideration is whether the Bank acted as agent of the plaintiff in respect of the goods in question? Here also Counsel appears to be right in his submission.
Banks take charge of goods, articles, securities as bailee and not as trustee or agent.
Bailment is the delivery or transfer of possession of a chattel (or other item of personal property) with a specific mandate which requires the identical res either to be returned to the bailor or to be dealt with in a particular way by the bailee as per directions of the bailor.
One important distinguish ing feature between agency and bailment is that the bailee does not represent the bailor.
He merely exercises, with the leave of the bailor (under contract or otherwise), certain powers of the bailor in respect of his property.
Secondly, the bailee has no power to make contracts on the bailor 's behalf; nor can he make the bailor liable, simply as bailor, for any acts he does.
(See Fridman 's Law of Agency 5th ed.
p. 23).
In the instant case, there is nothing to indicate that the Bank represented the Calcutta parties or the plain tiff with authority to change the contractual or legal relationship of parties and therefore, there is no justifi cation to hold that the Bank acted as agent of the plain tiff.
But that however, does not mean that the Bank could succeed in this appeal.
Having regard to the finding of fact recorded by the Courts below, it is immaterial whether the Bank acted as bailee or in any other capacity.
On the evi dence adduced by the parties it has been 718 established that the plaintiff did pay the price of the goods in respect of which he based his claim in the suit.
The Bank, however, took the plea that the goods were deliv ered to one Shishu Ranjan Sen, who was the authorised agent of the plaintiff.
But at the relevant time the plaintiff had his own agent called Dhani Ram and he did not receive the goods.
The Bank has neither examined Shishu Ranjan Sen nor Dhani Ram.
The Bank examined one Dhawan (DW 2) to prove some initials of Shishu Ran jan Sen on certain documents but his evidence has not been accepted.
The fact, therefore, remains that the Bank having received the price of the goods from the plaintiff has failed to deliver the same to him.
This finding has not been seriously disputed and indeed cannot be disputed since the Bank having chosen not to call Shishu Ranjan Sen or Dhani Ram to give evidence.
The evidence adduced by the Bank was thus insufficient to establish the factum of delivery of goods to the plaintiff.
The banker bailee gratuitous or for reward is bound to take the same care of the property entrusted to him as a reasonably pru dent and careful man may fairly be expected to take of his own property of the like description.
(See: Halsbury 's Laws of England 4th ed.
3 para 93).
In fact a paid bailee must use the greatest possible care and is expected to employ all precautions in respect of the goods deposited with him.
If the property is not delivered to the true owner, the banker cannot avoid his liability in conversion.
(See: (i) The Law Relating to Banking by T.G. Reeday 4th ed.
p. 81; (ii) Law And Practice relating to Banking by F.E. Ferry 5th ed.
p. 21).
In the light of these principles the Bank could not avoid the liability to return the goods as agreed upon or to pay an equivalent amount to the plaintiff.
Even if we assume that the goods were delivered to a wrong person, the Bank has to own the responsibility to pay the plaintiff.
The liability of banker to customer in such a case is absolute even if no negligence is proved.
In Hals bury 's Laws of England (supra, para 94), it is stated "where the bank delivers the goods to the wrong person, whereby they are lost to the owner, the liability of the bank is absolute, though there is no element of negligence, as where delivery is obtained by means of an artfully forged order.
In law the banker could contract out of this liability, but he would be unlikely to do so in practice.
" Before parting with the case, we may also state that in practice, bankers do not set up the statute of limitations against their customers or their legal representatives, and we see no reason why this case should be an exception to that practice.
In the result, the appeal is dismissed with costs, but not for all the reasons stated by the trial court and the High Court.
N.P.V. Appeal dis missed.
| IN-Abs | The respondent, who was indenting and lifting goods from textile mills situated in different places, and was main taining a current account with the appellant Bank for this purpose, filed a suit against the Bank for accounts, dam ages, compensation and delivery of goods or their equivalent in money, for non delivery of goods despite receiving pay ment thereof, contending that there was an oral agreement with the appellant Bank, regarding receipt and payment of bills, etc.
and receipt and storage of goods on his behalf, and delivery of goods to him as and when required.
and that under the said terms and conditions.
the Banker constituted himself and acted as an express trustee and/or agent of the respondent in relation to the said goods and documents and thus stood in fiduciary relationship with the respondent.
The appellant.
denying the allegations, contended that it had never acted as an agent, trustee or depositee of the respondent in respect of the goods and documents and that no fiduciary relationship existed between the parties.
The trial court decreed the suit holding that from the evidence and entries in the current account, it could be inferred that there was agreement or arrangement between the parties, and the appellant acted as agent/trustee of the respondent.
and that there was fiduciary relationship be tween the parties.
The High Court, affirming the decree of the trial court.
held that 710 if the respondent had paid the value of the goods and the appellant Bank neither delivered the goods nor rendered accounts.
a fiduciary relationship could exist between the respondent and the Bank in respect of the goods for which value was paid by the respondent.
In the appeal, by special leave, on behalf of the appel lant Bank it was contended that the Bank was only a collect ing agent for the supply of goods, and not an agent or trustee for the respondent; adjustment of bills by debiting to the current account without cheques from the respondent would not change the ordinary relationship of bank and customer; no special relationship was created either by opening the current account or storing the goods meant for delivery to the respondent and there was nothing to take the parties outside the usual course of banking business; and the bank received and took charge of the goods only as bailee and any inference of fiduciary relationship between.
parties was unwarranted and unjustified.
Dismissing the appeal.
this Court.
HELD: 1.
The courts below were not justified in holding that a fiduciary relationship could exist between the par ties in respect of goods for which the suit claim was based.
This inference was drawn primarily from the debit entries in the respondent 's current account.
Collection of bills.
remittances to mills.
meeting expenses of storing the goods and debiting the same to the current account even without cheques from the respondent could not lead to an inference that the Bank acted as agent of the respondent and that there was fiduciary relationship between parties.
There is nothing in this method of operation to take the parties outside the ordinary relationship of banker and customer.
This is the normal method of banking operation and the maintenance of the current account in the instant case is not outside this principle.
[716D G] Law of Banking by Lord Chorley 10th ed.
at 167 168 and Paget 's Law of Banking, 9th ed.
at8.2 83.
referred to.
2.1 Banks take charge of goods, articles, securities as bailee and not as trustee or agent.
Bailment is the delivery or transfer of possession of a chattel or other item of personal property with a specific mandate which required the identical res either to be returned to the bailor or to be dealt with in a particular way by the bailee as per direc tions of the bailor.
One important ' distinguishing feature between agency and bailment is that the bailee does not represent the bailor.
He merely exercises.
with the leave of the bailor under contract or otherwise, certain 711 powers of the bailor in respect of his property and the bailee has no power to make contracts on the bailor 's be half: nor can he made the bailor simply as bailor liable for any acts he does.
[717D F] Fridman 's Law of Agency 5th ed.
p. 23, referred to.
In the instant case, there is nothing to indicate that the Bank represented some of the parties or the respondent with authority to change the contractual or legal relation ship of parties.
It cannot, therefore.
be held that the Bank acted as agent of the respondent.
[717G] 2.2 The banker bailee, gratuitous or for reward.
is bound to take the same care of the property entrusted to him as a reasonable, prudent and careful man may fairly be expected to take of his own property of the like descrip tion.
A paid bailee must use the greatest possible care and is expected to employ all precautions in respect of the goods deposited with him.
If the property is not delivered to the true owner the banker cannot avoid his liability in conversion.
[718C D] Having regard to the finding of fact recorded by the courts below, it is immaterial whether the Bank acted as bailee or in any other capacity.
On the evidence adduced by the parties it has been established that the respondent did pay the price of the goods in respect of which he based his claim in the suit.
The Bank having received the price of the goods from the respondent has failed to deliver the same.
This finding has not been seriously disputed and the evi dence adduced by the Bank was insufficient to establish the factum of delivery of goods to the respondent.
Therefore the bank could not avoid the liability to return the goods as agreed upon or to pay an equivalent amount to the respond ent.
Even if it is assumed that the goods were delivered to a wrong person, the Bank has to own the responsibility to pay the respondent.
The liability of the banker to customer in such a case is absolute even if no negligence is proved.
[717H; 718A; B, E] Halsbury 's Laws of England 4th ed.
3 paras 93 and 94.
The Law Relating to Banking by T.G. Reeday 4th ed.
p. 81 and Law and Practice relating to Banking by F.E. Ferry 5th ed.
p. 21, referred to.
In practice, the bankers do not set up the statute of limitations against their customers or their legal represen tatives.
There is no reason for making an exception to this practice in the instant case.
|
No. 1275 of 1989 etc.
(Under Article 32 of the Constitution of India).
Ms. Rani Chhabra, K. Ramkumar, Govind Mukhoty and Vimal Dave for the Petitioners.
M.K. Ramamurthy (NP), K.K. Venugopal, H.S. Gururaj Rao, Ms. Chandan Ramamurthi, M.A. Krishnamurthi, T.V.S.N. Chaff, section Markandeya, W.A. Nomani, G.S. Giri Rao and A.K. Raina for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are petitions under article 32 of the Constitution.
Petitioners are promotee Engineers of the Roads & Buildings Wing of the Andhra Pradesh Engineering Service and challenge mainly is to certain earlier decisions of this Court resolving similar disputes by judgments ren dered in writ petitions and to the guidelines formulated by the State Government in the matter or ' the drawing up of the seniority list by way of implementation of this Court 's directions.
705 Facts are not in dispute.
Shortly stated, under the Rules substantive vacancies in the category of Assistant Engineers have to be filled up from two sources 37 I/2 per cent by direct recruitment and the remainder of 62 1/2 per cent by transfer of Supervisors and Draughtsmen and by promotion of Junior Engineers.
Regular direct recruitment had not been made as and when due and promotees beyond the limit had been put in in the place of direct recruits.
While disposing of a group of petitions in a contest of this type in K. Siva Reddy & Ors.
vs State of A.P. & Ors.
, ; , a two Judge Bench of this Court instead of disturbing the entire group of promotee Engineers in excess of the quota, made the following direction: "Reopening the question of inter se seniority on the basis of non enforcement of the rules from the very beginning may create hardship and that would be difficult to mitigate but we see no justification as to why the benefit of the scheme under the rules should not be made available to direct recruits at least from 1982.
When the State Government by rules duly framed prescribed the method of recruitment and put the scheme into operation it had the obligation to comply with it.
The explanation offered by the State Govern ment for non compliance of the requirements of the rules does not at all impress us.
We, therefore, direct that as on December 31, 1982, the State Government must ascertain the exact substantive vacancies in the category of Assistant Engineers in the service.
On the basis that 37 1/2 per cent of such vacancies were to be filled up by direct recruit ment, the position should be worked out.
Promotees should be confined to 62 1/2 per cent of the substantive vacancies and in regard to 371/2 per cent of the vacancies the shortfall should be filled up by direct recruitment.
General Rules shall not be applied to the posts within the limits of 37 1/2 percent of the substantive vacancies and even if promo tees are placed in those posts, no seniority shall be count ed.
The State Government shall take steps to make recruitment of the shortfail in the direct recruitment vacancies within the limit of 37 1/2 per cent of the total substantive vacan cies up to December 31, 1987 within four months from today by following ,the normal method of recruitment for direct recruits.
The seniority list in the cadre of Assistant Engineers shall be redrawn up, as directed by the Tribunal, by the end of September 1988, keeping the directions re ferred to above in view.
There 706 shall be a direction issued to the State of Andhra Pradesh to make recruitment to the category of Assistant Engineers by strict compliance of Special Rules henceforth.
" The State Government came forward to implement the direction and published the draft seniority list drawn up on the basis of discussed guidelines.
Keeping the directions in view the draft list placed the 1982 direct recruits from serial nos.
234 to 269 without disturbing promotees upto serial No. 233 and the remainder of promotees given promo tion prior to 1982 were placed against serial nos.
270 to 300.
Writ petition No. 369 of 1989 C. Radhakrishna Reddy & Ors.
vs State of A. P. & Ors., had earlier raised the same dispute.
By judgment dated November 10, 1989, while dismiss ing the said writ petition a two Judge Bench of this Court said: "In Siva Reddy 's case this Court found that promotees had exceeded the quota and even got regularised in respect of the posts in excess of the limit.
Taking into consideration the fact that regularisation had been done after the promo tees had put in some years of service and disturbing regu larisation would considerably affect the officers concerned, regularisation was not interfered with.
This Court 's inten tion obviously was not to take away the benefit of regulari sation in respect of the officers belonging to the promotee group in excess of their quota but the Court did not intend to allow such regularised officers in excess of the quota to also have the benefit of such service for purposes of sen iority.
A reading of the judgment in Siva Reddy 's case clearly indicates that this Court intended what the Govern ment have laid down by way of guideline.
We see no justifi cation to interfere with the Government direction.
A draft seniority list on the basis of such direction has already been drawn up and has been circulated.
We are told that objections have been received and would be dealt with in usual course by the appropriate authorities.
This writ petition had been entertained in view of the allegation that the Government direction was on a misconception of what was indicated in the judgment and in case there was any such mistake the same should be rectified at the earliest.
Now that we have found that the Government order is in accord with the Court direction, this writ petition must be dis missed and individual grievances, if any, 707 against the draft seniority list would, we hope, be consid ered on the basis of objections filed by the competent authority.
" At the hearing Mr. Mukhoty, appearing in support of the main petition, vehemently contended that serious injustice had been done to the promotees and accrued rights of theirs had been disturbed.
He submitted that some of the direct recruits had been given the benefit of seniority by counting service prior to their actual recruitment and relied upon observations made by this Court in some cases to the effect that for computation of length of service the period prior to selection was being counted by a deeming position of employment prior to recruitment.
When called upon to sub stantiate his allegation, he has not been able to do so.
On the other hand, the Court had taken a very equitable view in not disturbing the regularisation contrary to the quota and had taken every care to ensure that the cause of justice was not made to suffer and a balance was maintained by an appro priate admixture of relief by confining the reconsideration for a period after 1982.
The year 1982 was fixed, as the reasonings indicate, on account of two features (i) that regular disputes had been raised from that time; and (ii) a period of 5 6 years was not too long a period to give rise to a sense of conclusiveness generated by long lapse of time.
The promotee Engineers should have been happy and thankful to their lot that their regularisation was not disturbed and even seniority prior to 1982 was not being affected.
Oblivious of these benefits which they have re tained though acquired out of turn, they have proceeded on the footing that their cause has been affected and justice to them has been denied by placing a group of them below the 1982 recruits.
We do not think that for dismissing this group of petitions anything more should be said excepting to quote with approval what this Court had said in Dr. G. Marulasiddaiah vs Dr. T.G. Siddapparadhya & Ors., ; "The canker of litigiousness has spread even to a sphere of life where discipline should check ambition concerning personal preferment.
" A government servant is justified in taking legal action when he feels that a stigma or punishment is undeserved but he is expected to bear with fortitude and reconcile himself to his lot suppressing disappointment when he finds a co worker raised to a position which he himself aspired after.
708 Ordinarily, we would have awarded exemplary costs but with a view to allowing an appropriate reconciliation of the petitioners to their lot and not to give them a feeling of infliction of any new injury, we refrain from doing so.
P.S.S. Petitions dis missed.
| IN-Abs | Sub rule 3(a) of rule 3 of the Andhra Pradesh (Roads and Buildings) Engineering Service Rules, 1965 prescribes that the substantive vacancies in the category of Assistant Engineers 37 1/2 per cent shall be filled up by direct recruitment and the remaining 62 1/2 per cent by transfer and promotion of junior officers.
In K. Siva Reddy vs State of Andhra Pradesh, ; , filed by direct recruits, the Court had directed the State Government to ascertain the exact sub stantive vacancies in the category of Assistant Engineers in the service as on December 31, 1982, work out the quota prescribed under rule 3(3)(a) of the Rules and draw up a seniority list accordingly.
In the draft seniority list drawn up by the State Gov ernment on the basis of the guidelines, it placed the 1982 direct recruits from serial Nos.
234 to 269 without disturb ing promotees upto serial No. 233 and the remainder of promotees given promotion prior to 1982 were placed against serial Nos. 270 to 300.
In C. Radhakrishna Reddy vs State of A.P., W.P. No. 369 of 1989 decided on November 10, 1989 the Court found the said list in accord with the directions.
In these writ petitions preferred by the promotee As sistant Engineers, it was contended for them that serious injustice had been done to them as the accrued rights of theirs had been disturbed and some of the direct recruits had been given the benefit of seniority above them by count ing service prior to their actual recruitment.
Dismissing the writ petitions, the Court, HELD: 1.
A Government servant is justified in taking legal action 704 when he feels that a stigma or punishment is undeserved but he is expected to bear with fortitude and reconcile to his lot suppressing disappointment when he finds a co worker raised to a position which he himself aspired after.
[707G] Dr. G. Marulasiddaiah vs Dr. T.G. Siddapparadhya & Ors., ; , referred to.
In K. Siva Reddy 's case, the Court had taken a very equitable view in not disturbing the regularisation contrary to the quota and had taken every care to ensure that the cause of justice was not made to suffer and a balance was maintained by an appropriate admixture of relief by confin ing the reconsideration for a period after 1982.
The year 1982 was fixed on account of two features, (i) that regular disputes had been raised from that time, and (ii) a period of 5 6 years was not too long a period to give rise to a sense of conclusiveness generated by long lapse of time.
The promotee engineers should have been happy and thankful to their lot that their regularisation was not disturbed and even seniority prior to 1982 was not being affected though they had acquired these benefits out of turn.
[707C E]
|
ivil Appeal No. 2013 of 1990.
772 From the Judgment and Order dated 14.9.1988 of the Central Administrative Tribunal, Delhi in C.C.P. No. 17 of 1987 in T. 246 of 1985.
Anil Dev Singh, C.V.S. Rao, T.C. Sharma and B.K Pershad for the Appellant.
Subodh Markandeya, W.A. Nomani, G. Seshagiri Rao, A.K. Raina, Mrs. Chitra Markandeya, G.D. Gupta and Ashok K. Mahajan for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
Leave granted.
The appeal is filed by the General Manager, Northern Railways against the decision dated 14th September, 1988 of the Central Administrative Tribunal, New Delhi.
In order to appreciate the grievance of the appel lant Railways against the impugned order, it is necessary to state the relevant facts in brief.
Respondent employees who are Traffic Apprentices belonged to Class III Service which has four grades, and the four grades carry different pay scales as follows: (i) Grade I Rs.250 380 (ii) Grade II Rs.335 425 (iii) Grade III Rs.370 475 (iv) Grade IV Rs.450 575 The promotion to the alternate grade in the said four grades is by selection.
However, the appointments to all the four grades is by promotion.
Above Class III posts, are Class II and Class I posts.
Class I posts are in Junior Scale grade, Senior Scale grade, Junior Administrative Grade and Senior Administrative Grade.
The entire Class II service is filled by promotion by selection from Class III service.
In Class I service, 60 per cent posts are filled by direct recruitment and 40 per cent by promotion from Class II service.
The recruitment as well as promotion to Class I is through the Union Public Service Commission ( 'UPSC ' for short).
All these posts are available as a promotion avenue to the incumbents of Class III posts.
Class III service in the Traffic and Transportation Department consists not only 773 of Traffic Apprentices but also of other categories.
Howev er, the promotion to Class II post is not made exclusively from Class III service of Traffic and Transportation Depart ment.
The incumbents of Class III service in Commercial Department are also entitled to be considered for promotion to Class II posts.
Hence, a combined seniority list of Class III service both in the Traffic and Transportation Department as well as the Commercial Department, is pre pared.
The promotions to further posts, viz., to Class I posts and to the posts of Junior Administrative Grade are thereafter made from the incumbents of the Class II posts.
It has further to be noted that the appointments to the posts of Traffic Apprentices is by direct recruitment to the extent of 25 per cent of the annual vacancies in the posts of Section Controllers who are in the grade of Rs.200 300 (PS) and in other posts in the same cadre in the Yard and Station categories.
This was according to the scheme prepared by the Railway Board for improving control organisations on the Railways.
The Traffic Apprentices thus directly recruited are, on completion of the training, first absorbed as Assistant Movement Inspectors etc.
in the grade of Rs. 150 225 and are eligible for promotion to the grade of Rs.200 300 (PS)/Rs.250 380 (AS) in the normal manner after selection as Section Controllers, Station Masters, Assistant Station Masters, Yard Masters etc.
provided they complete at least one year 's service in the grade of Rs. 150 225.
Such promotions are, however, to be considered against 25 per cent of the annual vacancies.
The Railway Board had further clarified the position that 25 per cent of the total annual vacancies in the grade Of Rs.200 300 (PS)/ Rs.250 380 (AS) were to be earmarked for Traffic Appren tices, and if during any particular year it was not found possible to utilise this quota fully on account of suffi cient number of Traffic Apprentices being not eligible for promotion (owing to their not having completed one year 's service in the grade of Rs.150 225), the deficit was to be carried forward to the next selection.
By their further letter of December 18, 1963, the Railway Board directed that with immediate effect, the Traffic Apprentices on successful completion of the three years ' training, should be straight away brought on the scale of Rs.200 300 (PS)/ Rs.250 380 (AS) instead of being first absorbed in the scale of Rs. 150225 (PS)/Rs.205 270 (AS) as prevalent then.
Thus, it would be clear that Traffic Apprentices were to be directly recruited to fill vacancies to the extent of 25 per cent of the vacancies and the posts of Section Con trollers etc After recruitment, they were to be imparted three years ' special training and thereafter 774 they were required to serve for one year in the grade of Rs. 150 225/ Rs.205 270 after which they were considered for selection to the grade of Rs.200 300 (PS)/Rs.250 380 (AS).
From 1963, they were to be straightaway absorbed in the grade of Rs.200 300/Rs.250 380 after completion of their training period of three years, but without having to quali fy through Selection Board first and without the condition of one year 's service.
The Traffic Apprentices were thus to fill vacancies to the extent of 25 per cent.
This quota had to be carried forward in case of shortfall in any particular year, and the remaining 75 per cent of the vacancies were earmarked for promotion to other departmental officials who were called rankers.
After both the sources of recruitment merged in the scale of Rs.200 300/Rs.250 300, a single unified cadre known as "Relieving Transportation Assist ants" stood constituted.
It appears that the respondent 's grievance in the writ petition filed before the Delhi High Court was that their seniority in the cadre of Relieving Transportation Assistants was not correctly fixed according to the quota rule of 25:75, either because the quota rule was not ob served properly or the unfilled vacancies in the 25 per cent quota reserved for them were not carried forward from 1954 onwards.
Hence, they wanted their seniority list as Traffic Apprentices to be recast according to quota and rota rule, and the seniority list which was prepared allegedly contrary to the said rule, quashed.
The learned Single Judge had rejected the petition on the ground that they had approached the Court too late and, therefore, their petition suffered from laches.
The Division Bench in Letters Patent Appeal No. 220 of 1972 did not agree with the learned Single Judge and decided the matter on merits, and gave the finding that the Northern Railways had for the first time communicated by their letter of December 26, 1967 to all the Divisional Superintendents that it was decided that the seniority of Traffic Apprentices appointed prior to December 18, 1963 would be determined from the date of their promotion to the grade of Rs.250 380 and not according to their quota against the vacancies which occured from 1.4.1954 onwards, the date from which the direct recruitment of the Traffic Apprentices was permitted.
The Court held that according to the correct interpretation of the various letters of the Railway Admin istration, Traffic Apprentices were to be assigned seniori ty, vis a vis rankers (promotees) according to their roster position, taking into account the positions reserved for them, viz., 25 per cent of the actual annual vacancies with effect from 1.4.1954 carried forward in subsequent years.
The Court also held that the Railway Administration subse quently modified its instructions contained in 775 their letter of December 26, 1967 and issued another letter on April 19, 1968 stating that the Traffic Apprentices would be deemed to have been promoted from the dates they were eligible provided vacancies were available in the particular year for theft absorption and that their interests would be protected by giving benefit of pro forma fixation of pay etc.
A further letter of December, 18, 1968 thereafter followed from the headquarters of the Northern Railways in which it was made clear that the seniority had to be fixed with reference to the dates from which the Traffic Appren tices would have been promoted in the grade of Rs.250 380 had the quota of the vacancies from 1954 onwards always been calculated correctly, i.e., the vacancies from 1954 onwards should always have been taken into account to work out 25 per cent quota for the Traffic Apprentices.
On these find ings, the Division Bench stated as follows: "We may state here that all the Rankers who are likely to be affected by the decision in this case are party respondents.
No right of any innocent third party is involved in the case.
We are 'also not quashing any rule executive instruc tion or letter of the Railway Administration or any seniori ty list issued by the earlier than February 1971.
The Su preme Court has not laid down any rigid rule of limitation in entertaining a writ petition under Article 32 or Article 226 of the Constitution of India.
The Supreme Court was pleased to observe that it will almost always be proper for the court to hold that it is unreasonably delayed if the writ petition is filed beyond the period of limitation prescribed for a similar civil action.
Thus, if there are any exceptional facts and circumstances even the delay beyond the period of limitation prescribed for a civil action for the remedy may be reasonable or justified and the writ petition may still be entertained.
The Court may, however, be reluctant to entertain such writ petitions but that does not mean that the court has no jurisdiction.
If we are right in holding that the cause of action arose in February 1971, or even earlier in April 1968, then there is no question of any delay.
But, if we are not, even then on the facts and circumstances of the case, as discussed above, we have not been able to persuade ourselves to agree with the learned single Judge that the writ petition is enormous ly delayed.
By issuing the writ of mandamus in this case, we are only setting at rest the uncertainty and disparity which is prevailing in the various divisions of the Northern Railway in the 776 matter of fixation of inter seniority of Traffic Apprentices and Rankers.
The Railway Administration have themselves admired that in Allahabad division of Northern Railway, Seniority has been granted to Traffic Apprentices according to their quota against the vacancies which occurred from 1.4.1954 onwards.
In case of commercial apprentices who are similarly situated seniority has been assigned vis a vis remain according to their quota on the basis of their roster positions, 1, 5, 9 etc.
There is no reason why the appel lants should be deprived of what is legally due to them even if they have approached this Court after some delay.
For the reasons stated above, the Letters Patent Appeal is accepted, the judgment of the learned single judge on ques tion No. 1 is set aside and reversed and we hold that the writ petition was not belated and was not liable to dismiss al on the ground of laches.
The finding on question No.2, having been upheld by us, the appellants, are entitled to the grant of writ of mandamus directing respondents 1 to 3 to fix the seniority of Traffic Apprentices, in the light of the observations made by the learned single Judge and as upheld by us.
The seniority list, Annexure E attached to the writ petition is quashed.
The respondent Railway Administra tion shall draw the seniority list within 3 months from today and proceed to make confirmations and/or further promotions in the higher grades in accordance with the law, rules and orders in force from time to time.
In the circum stances of the case we leave the parties to bear their own costs.
" This decision of the Division Bench is of July 30, 1975.
Against this decision the Railways preferred a special leave petition which was dismissed.
Thereafter, the Railways prepared a fresh seniority list in 1976.
It appears that this seniority list took care of the grievances only of the employees who were parties to the petition.
Against the said seniority list, therefore, some of the Traffic Apprentices filed a writ petition being Writ Petition No. 948 of 1976 challenging the seniority.
That writ petition was trans ferred to the Tribunal and numbered as T.A. No. 246 of 1985.
It appears that in the meanwhile in 1983, the Railways, in compliance with the judgments delivered by the High Courts of Allahabad and Punjab & Haryana prepared a fresh seniority list, and the Tribunal disposed of the transfer petition (TA No. 246 of 777 1985) by order dated June 25, 1986.
By this order, the Tribunal observed that the application before the Tribunal was to direct the respondent Railways (the appellant herein) to quash the impugned seniority list, i.e., the seniority list of 1976 and to prepare a fresh seniority list and to make the confirmations and promotions inaccordance with the fresh seniority list.
The Tribunal observed that that relief had already been granted by the Delhi High Court in LPA No. 220 of 1972 by its decision which is already referred to above.
Hence, no fresh directions were necessary.
The Tribu nal also found that a fresh seniority list had been prepared in 1983 in pursuance of the directions given by the High Court.
It appears further that since the seniority list was not prepared within three months as directed by the High Court and according to respondent No. 8 in that application before the Tribunal, the seniority list was also not in conformity with the other directions contained in the High Court judgment, a contempt petition was filed before the High Court and the same was pending before it.
The Tribunal, therefore, stated that it expressed no opinion as regards the validity or otherwise of the seniority list prepared in pursuance of the High Court 's directions.
The Tribunal also made it clear that unless otherwise ordered by the competent authority or the High Court, as the case may be, the senior ity list prepared in pursuance of the directions of the High Court shall be acted upon and: "the confirmations and promotions made on the basis of that list within a period of four months from the date of the receipt of this order.
Further, promotions shall be made strictly in accordance with the list prepared in 1983 in pursuance of the directions of the High Court in LPA NO.
220 of 1972.
It appears, therefore, that the Railways had prepared a seniority list of 1983 in pursuance of the directions of the Delhi High Court in LPA No. 220 of 1972 decided on July 30, 1975.
The grievance of the petitioners in TA No. 246 of 1985 (Writ Petition No. 948 of 1976) was against the senior ity list of 1976 and since that seniority list was supersed ed by 1983 list which the Tribunal observed was in pursuance of the High Court 's directions, nothing survived in the grievance of the applicants there (viz., Chadha and others in that application).
It further appears that according to the statement made on behalf of the appellant Railways, the Railways had already worked out the promotions upto and inclusive of Class II posts by 14th 778 February, 1988.
However, the applicants, Chadha and others in TA No. 246 of 1985 filed a contempt petition being CCP No. 17 of 1987 before the Tribunal making a grievance that full effect had not been given to the judgment dated June 25, 1986 of the Tribunal in TA No. 246 of 1985.
On that application, the Tribunal passed the impugned order of September 14, 1988, which is the subject matter of the present appeal.
The Tribunal has observed that the full consequences of the judgment of the Tribunal were spelt out by the General Manager of the Railways in his letter of July 30, 1982 forwarded to the Railway Board.
The Tribunal then set out the said consequences as contained in General Manag er 's letter and observed that the General Manager had cor rectly appreciated the consequences of the directions of the High Court and of the Tribunal.
The Tribunal then stated that, however, in implementing the order, the Railways did not give effect to the said judgments.
The Tribunal then directed that the seniority list prepared on the basis of the panels of 1972 73 and 1978 79 for promotion to Class II posts should be revised.
We are not concerned here with the said directions.
However, the Tribunal observed further that the Railways ' contention that the earlier direction of the Tribunal did not entitle the petitioners, i.e., Chadha and others to be considered for promotion to Class II or Class I or Junior Administrative Grade was not correct and the same was contrary to its order as well as to the implications of the said order spelt out by the General Manager himself.
The Tribunal then went on to observe as follows: " . .
When the Tribunal had directed not only confirma tion and promotion be made in accordance with the revised seniority list but also directed further promotions to be made on that basis, it was the duty of the respondent not only to give promotion in Class III but also to give further promotion to Class II, Class I and Junior Administrative Grade.
Of course, these promotions have to be given in accordance with the rules with effect from the date when the juniors were given promotion.
The petitioners should have also been considered and promoted to Class II, Class I or Juniors Administrative Grade just as their juniors were considered and promoted.
Further inclusion in the panel of 1978 79 cannot, therefore, be insisted upon since they have already qualified.
After the above clarification, we do not think that there would be any further difficulty in implementing the order and in granting promotion to Shri Chadha and Shri 779 Sandhu in respect of whom alone this petition is pressed.
It is stated that although the implications were correctly understood by the General Manager, even where the orders were implemented to a certain extent, no arrears have been paid.
It is hereby clarified that on such promotion, they would also be entitled to payment of arrears.
The order of the Tribunal in T 246/85 (sic) as further clarified hereinabove shall be implemented accordingly and compliance reported to the Tribunal within six weeks from today. ' ' The Tribunal also kept the matter before it on October 31, 1988, and the Special Leave Petition giving rise to the present appeal was filed against the said decision of the Tribunal.
Two additional facts need be stated.
The combined seniority list which was prepared in 1983 of Class III posts for promotion to Class II posts was finalised in March 1987 and was made the basis of the postponed selection to Class II service as per orders of the Tribunal and panel was issued on 13.3.1987.
Thereafter, on the basis of orders passed by the Tribunal on 9.12.1987, the Traffic Apprentices who became eligible for promotion in the first 'batch after revision of seniority were considered by a Review Departmen tal Promotion Committee and interpolated in.
the Class II panels of 1972 73 and 1975 76.
As a result, the seniority of the personnel from the Commercial Department was affected since direct recruit Traffic Apprentices from the Traffic and Transportation Department were given seniority according to the quota and rota rule from 1954 onwards.
Hence, M/s. A.P. Chowdhary and K.N. Saxena, officers belonging to the Commercial Department approached the Tribunal by their applications Nos. 360 of 1988 and 936 of 1989 respectively, challenging the new seniority list, and also on the ground that they were not parties to the earlier proceedings.
It further appears that three of the respondents, Chadha, Sandhu and Malik filed an application before the Tribunal making a grievance that they were not given their due promotion.
That application is also pending before the Tribunal.
It also appears that the Departmental Promotion Committee prepared two fresh panels the first panel was for promotions to the posts which were vacant between 1972 73 and 1975 76 and the second 780 for the vacant posts for the year 1978 79.
In the second panel, KN Saxena stands selected.
In this appeal, we are concerned with two limited issues, viz., (i) whether in the context of the history of the litigation and the decisions and directions of the High Court and the Central Administrative Tribunal, the respond ents should be given promotions in all posts above Class II service as a logical corollary to their new ranking in the revised seniority list of 1983, and (ii) whether on such promotions being given, they should be paid emoluments of such higher posts with retrospective effect.
We have stated that we are concerned with the promotions of the respondents in the posts above Class II service because, as stated earlier, the appellant Railways have already worked out their promotions in Class II service.
There is, therefore, no dispute with regard to the respondents ' promotions in Class II service.
However, the dispute still survives with regard to their entitlement to the emoluments in Class II service with retrospective date.
As regards the promotion to posts above Class II service, we find that initially when the petitioners ap proached the court, their grievance was with regard to their seniority in and promotions to the grades in Class II serv ice.
The High Court had also in its direction said nothing about the promotions to Class II service.
However, as stated earlier, the appellants have worked out the promotions to Class II service on the basis of the new seniority list of Class III service of the year 1983.
The respondents, there fore, have gained substantially since, as stated earlier, the promotions to Class II and above were not the subject matter of the writ petition before the High Court.
We are afraid the Tribunal has gone beyond the scope of the origi nal petition while dealing with the contempt petition.
The respondents, therefore, are not entitled to claim in these proceedings as a matter of right promotions to any higher posts.
We, however, do not desire to make any observations which will come in their way if the UPSC is inclined to look into the matter.
In that case the UPSC may constitute review Departmental Promotional Committee and give them proforma promotions and seniority in the promotional posts from the relevant years, if they are otherwise eligible to the same.
We say nothing more on the subject.
As regards the emoluments of nigher posts with retrospective effect, we find that the High Court had cate gorically denied the same to the respondents even on the basis of their claim to higher grades in Class III posts.
Further, even the entitlement.
of the respon 781 dents to the higher grades in Class III posts as per the directions of the High Court was on the basis of the quota and rota rule which in itself is both inequitable and irra tional.
Time and again, the rule has been criticised on account of the absurd result to which it leads, viz., the deemed appointments have to be given to the concerned em ployees even from the dates when they were not in service and probably when they were still in their schools and colleges.
We are informed across the Bar that this is the situation even with respect to some of the respondents herein.
The quota and rota rule had to be worked out in the present case from the year 1954 as per the direction of the High Court and the Tribunal.
There is, therefore, neither equity nor justice in favour of the respondents to award them emoluments of the higher posts with retrospective effect.
It is for this reason that we are of the view that the decisions of this Court such as in P.S. Mahal & Ors.
vs Union of India & Ors., ; directing the pay ment of higher emoluments with retrospective effect on account of the deemed promotions of earlier dates will not be applicable to the facts of the present case and have to be distinguished.
It is true that the appellant Railways had failed to give correct effect to the decision dated July 30, 1975 of the High Court in LPA No. 220 of 1972, and had kept the matter hanging till this day for no fault of the respond ents.
The High Court by its said decision had directed the appellant Railways to prepare a seniority list within three months from the date of the decision, and also to proceed to make further promotions in the higher grades in accordance with law, rules and orders in force from time to time.
But it is equally true that during all these years the higher posts were not vacant and were manned by others and the appellant Railways had paid the incumbents concerned the emoluments of the said posts.
The respondents have not actually worked in the said posts and, therefore, on the principle of "no work no pay" they will not be entitled to the higher salary.
Hence, we give no directions in this behalf and leave it to the appellant to give such relief as they may deem fit.
The directions given above would be subject, to the petitions which are already pending before the Central Administrative Tribunal, New Delhi.
The appeal is allowed accordingly with no order as to costs.
T.N.A. Appeal al lowed.
| IN-Abs | The respondent employees, are Traffic Apprentices be longing to Class III Railway service which has four grades carrying different payscales.
Above Class III posts, are Class II and Class I posts.
The entire Class II service was filled by promotion by selection from Class III service.
The Class III service in the Traffic and Transportation Depart ment consisted not only of Traffic Apprentices but also of other categories.
However, the promotion to Class II post was not made exclusively from Class III service of the said Department, but the incumbents of Class III service in the Commercial Department were also entitled to be considered for promotion.
Consequently, a combined seniority list of Class III service both of the Traffic and Transportation Department as well as the Commercial Department, was main tained.
The promotions to further posts, viz., to Class I posts were thereafter made from the incumbents of Class II posts.
In Class I service, 60 per cent posts were filled by direct recruitment and 40 per cent by promotion from Class II service.
The appointment to the posts of Traffic Apprentices was by direct 770 recruitment to the extent of 25% and this quota was to be carried forward in the case of shortfall in any particular year.
The remaining 75% of the vacancies were earmarked to other departmental officials for promotion who were called rankers.
Subsequently, both the sources of recruitment were merged and a new single unified cadre of "Relieving Trans portation Assistants" was constituted.
The respondents filed a writ petition in the High Court challenging the seniority list in the aforesaid newly con stituted cadre on the ground that their seniority in the newly constituted cadre was not correctly fixed according to quota rota rule of 25:75 either because the quota rule was not observed properly or the unfilled vacancies in the 25% quota reserved for them were not carried forward since 1954 onwards.
A single judge of the High Court rejected the petition on the ground of laches.
On appeal, the Division Bench set aside the decision of the single judge on the question of laches and directed the Railway Administration to draw a revised seniority list.
Against the decision of the Division Bench, the Railways preferred a Special Leave Petition in this Court which was dismissed.
Accordingly, the Railways prepared a fresh sen iority list in 1976.
Since the said seniority list took care of the grievances only of the employees who were parties to the petition, some of the Traffic Apprentices fried an application before the Central Administrative Tribunal for a direction to quash the seniority list of 1976 and to prepare a fresh seniority list.
In the meanwhile pursuant to the directions of the High Court the Railways prepared a fresh seniority list in 1983 superseding the seniority list of 1976.
The Tribunal disposed of the application by its order dated June 25, 1986 by directing that the seniority list of 1983 shall be acted upon, and that the confirmations and promotions be made on the basis of that list.
Consequently the Railways worked out the promotions upto and inclusive of Class II posts.
Subsequently the respondent fried a contempt petition before the Tribunal contending that full effect had not been given to its judgment dated June 25, 1986.
The Tribunal by its order dated 14th September, 1986 held that the respond ents are entitled to further promotions to Class II and Class I; and are entitled to emoluments on such higher posts with retrospective effect.
Hence this appeal by the Railways 771 against the Tribunal 's order dated 14th September, 1986.
Allowing the appeal, this Court, HELD: 1.
The Tribunal has gone beyond the scope of the original petition while dealing with the contempt petition.
The promotions to Class II and above were not the subject matter of the writ petition before the High Court, and in its direction the High Court said nothing about the promo tions to Class II service.
However, the appellant Railways worked out the promotions to Class ii service on the basis of the new seniority list of class Iii service of the year 1983 under which the respondents have gained substantially.
Therefore, the respondents are not entitled to claim as a matter of right promotions to any higher posts.
This Court, however, does not desire to make any observations which will come in their way if the Union Public Service Commission is inclined to look into the matter.
[780D G] 2.
The entitlement of the respondents to the higher grades in Class111 posts as per the directions of the High Court was on the basis of quota and rota rule, which in itself is both inequitable and irrational.
Time and again, the rule has been criticised on account of the absurd result to which it leads, viz., the deemed appointments have to be given to the concerned employees even from the dates when they were not in service and probably when they were still in their schools and colleges.
[780H; 781A B] In the instant case, this is the situation with respect to some of the respondents.
The quota and rota rule had to be worked out from the year 1954 as per the directions of the High Court and the Tribunal.
There is, therefore, nei ther equity nor justice in favour of the respondents to award them emoluments of the higher posts with retrospective effect.
[781B C] P.S. Mahal & Ors.
vs Union of India & Ors.
, ; , held inapplicable.
2.1 On the principle of "no work no pay", the respond ents will not also be entitled to the higher salary as they have not actually worked in the said posts.
[781F]
|
Civil Appeal No. 3951 (NCE) of:1987.
From the Judgment and Order dated 19.11.1987 of the Kerala High Court in E.P. No. 3 of 1987.
K.K. Venugopal, E.M.S. Anam, E. Ahmad and V.K. Beeram for the Appellant.
Dr. Y.S. Chitale, M.K. Damodaran, V.J. Mathew, Aseem Mehrotra and K.M.K. Nair for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
This is an appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act ') against the judgment of the High COurt of Kerala in Election Petition No. 3 of 1987, by which the election of the appellant to the Kerala Legislative Assembly from Mattancherry Constituency No. 73 was declared void on the ground that the appellant had committed two corrupt practices within the meaning of Section 123(4) of the Act.
The admitted facts are that election to the Kerala Legislative Assembly from all the constituencies was held on March 23, 1987.
The main contest in almost all the constitu encies was between the United Democratic Front (UDF) con sisting of Congress I, Kerala Congress, Indian Union Muslim League (IUML) and others on the one hand, and the Left Democratic Front (LDF) consisting of the Communist Party of India Marxist (CPI M), Revolutionary Socialist Party and others on the other.
The appellant was the candidate of the LDF and the first respondent was the candidate of the UDF.
In the said election, the appellant was declared elected by a margin of 1873 votes over his nearest rival, the first respondent.
On May 8, 1987, the first respondent filed an elec tion petition claiming a declaration that the appellant 's election was void and that he was entitled to be declared duly elected from the said constituency.
In support of the petition, the first respondent alleged various corrupt practices on the part of the appellant.
However, the High Court negatived all the said corrupt practices except two, viz., (i) printing and publication on March 22, 1987, a day prior to the election, pamphlets containing a news item in daily "Malayala Manorama" dated May 22, 1983, and (ii) publication of a wall poster, both maligning the personal character and conduct of the first respondent.
The High Court held that both these acts amounted to corrupt prac tices within the meaning of Section 123(4) of the Act and were sufficient to 726 void the election.
The pamphlet containing the reprint of the daily "Malayala Manorama" was marked as exhibit P 1 and two photographs of the wall poster were marked as Exs.
P 14 and P 15 before the High Court and would be referred to herein after as such.
exhibit P 14 is the close up and exhibit P 15 is the distant photograph of the same wall poster. 4.
Before we refer to the rival contentions and the material on record, it would be convenient if we reproduce here the contents of exhibit P 1 and Exs.
P 14 and P 15 to understand the allegations made in the said documents.
exhibit P 1 is a reprint of a page of the issue of 22nd May, 1983 of a daily newspaper "Malayala Manorama".
It contains the names and the photographs of four men, who were admit tedly murdered in May 1983.
It also carries two other photo graphs, one showing two killed bodies lying and the other showing the front part of the court building where allegedly all the four were killed.
It also carries a photograph of the appellant with his election symbol which was 'ladder ' and a photograph of the then Prime Minister, Rajiv Gandhi.
Apart from the contents of the said newspaper as they ap peared in the said old issue, it carries additions on the left hand, the English translation of which is as follows: "ELECT ZAKHARIA THE UNITED FRONT CANDIDATE MATTANCHERRY.
On March 23rd a decisive election is taking place in our State.
We wish to have a Government who will protect life and property of the people.
In the light of past expe rience the only front acquired legitimate claim to give protection is the United Democratic Front under the leader ship of Congress (I).
Marxist Party has only created insecu rity in the country.
X X X X X The Marxist Comrades who create lawlessness and commit murders while in power and out of power, is a chal lenge to peace loving inhabitants of Mattancherry.
Mattan cherry is a constituency which has witnessed terrible cruel ties of the Marxists.
The Mattancherry Town, once the centre of commerce, today became equal to a grave 727 yard only due to violent activities of the Marxist people.
The wounds created by their cruelties are always unhealed.
They need not be detailed by one.
X X X X X You may remember only the cruel murder that shocked Mattancherry in 1983.
Four youngsters were cut to death in the road in broad day light.
The relevant portion of the Malayala Manorama which published that news is given herewith as, such; everybody knows the hands behind that murder.
The Marxist leader arrested is also known.
X X X X X Dear sisters, brothers, you may think a while.
Should we have the rule of the Marxist terrorists.
We believe that the people of Mattancherry who wish peaceful life in the country will defeat Marxists.
X X X X X Believers in democracy should be specially careful not to split their votes.
It is possible to defeat Marxists only through unity of the believers in democracy.
That is why the Indian National Congress lead by Shri Rajiv Gandhi ' the stalvert of democratic Bharath is giving leadership to the democratic front.
It is the necessity of peace lovers that United Democratic Front should win for law and order and stable administration.
Therefore, it is humbly requested that M.J. Zakharia may be elected with big majority casting votes to his Ladder Symbol.
Photo of Vote Democratic Front Photo of candidate to avoid Marxist Rule Rajiv Gandhi M.J. Zakharia of Terror Constituency Election Committee Give Strength United Democratic Front, to Rajiv Gandhi 's Mattancherry hands 728 VOTE FOR UNITED DEMOCRATIC FRONT CANDIDATE M.J. ZAKHARIA IN LADDER SYMBOL Printed at Veekshanam.
" The High Court has found that the following statement in paragraph 3 above, viz., "everybody knows the hands behind that murder.
The Marxist leader arrested is also known" was in relation to the personal character/conduct of the first respondent.
P 14 and P 15 are the photographs, as stated earlier, of the poster pasted on a wall, with the pamphlet (exhibit P 1) pasted on its left side.
The contents of the wall poster are as follows: "Defeat murderer T.M. Mohammed who murdered four Christian brothers at Fort Cochin.
Our Symbol.
" The symbol is the ladder.
This poster directly accused the first respondent as being murderer of the said four killed persons and requested the voters to vote for the appellant.
As regards exhibit P 1, there is no mention of the first respondent directly by his name anywhere in the poster.
However, the first respondent has alleged that there is an innuendo by which he is projected there as the murderer of the four victims.
The High Court has accepted that the first respondent is referred to in the said pamphlet by innuendo.
The High Court has also found that the pamphlets were got printed by one Latif who was appellant 's agent, on behalf of his Election Committee and at the instance of and with the consent and connivance of the appellant and his election agent and was distributed by them among the electors knowing the imputation to be false and calculated to affect the prospectus of his election.
As regards Exs.
P 14 and P 15, the High Court has recorded a finding that the said wall poster was pasted on a wall at the instance and with the consent of the appellant 's election agent.
Thus, the High Court has recorded a finding that the first respondent had proved that the appellant was guilty of the corrupt prac tices within the meaning of Section 123(4) of the Act.
Before we proceed to discuss the relevant evidence on record, it is necessary to understand the correct posi tion of law on the subject.
The corrupt practices and elec toral offences are mentioned in Part 7 of the Act.
Chapter I of the said Part deals with corrupt practices and contains Section 123 whereas Chapter III thereof enumerates electoral offences.
and penalties therefore, and contains Sections 125 to 136.
729 Section 123(4) with which alone we are concerned in the present appeal reads as follows: "123(4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or with drawal, of any candidate, being a statement reasonably calculated to prejudice the prospectus of that candidate 's election.
" It is obvious from the aforesaid provisions of Section 123(4) that for a publication to constitute the corrupt practice (a) it must be a statement of fact: by (i) a candi date; or (ii) his agent; or (iii) any other person with the consent of the candidate or his election agent; (b) the statement must be false or the candidate must believe it to be false or should not believe it to be true; (c) the state ment should refer to the personal character and conduct of another candidate and (d) that it must be reasonably calcu lated to prejudice the prospects of that other candidate 's election.
Explanation 1 to Section 123 states that in that Section the expression "agent" includes election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
The expression "election agent" is defined in Section 40 and is accorded a special status of almost an alter ego of the candidate so much so that whatever is done by the election agent or with his consent is deemed to have been done by the candidate himself whether it is with the candidate 's consent or not.
It is further sufficient to note that the election agent is empowered to discharge almost all the functions that a candidate can himself perform.
The further provisions of the Act which are necessary to be noted are those of sub sections (1)(b), (1)(d) and (2) of Section 100.
They read as under: "100.
Grounds for declaring election to be void (1) Subject to the provisions of sub section (2) if the High Court is of opinion (a). . . 730 (b) that any corrupt practice has been committed by a re turned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c). . . (d) that the result of the election, in so far as it con cerns a returned candidate, has been materially affected (i). . . (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) . . . . . . . . the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candi date has been guilty by an agent, other than his election agent of any corrupt practice but the High Court is satis fied (a) . . . . . . . . (c). . . . . . . . . (d). . . . . . . . . then the High Court may decide that the election of the returned candidate is not void".
The aforesaid provisions of Section 100 show that where the corrupt practice is committed not by the candidate or his election agent or any other person with the consent of the candidate or his election agent but by an agent other than the election agent and in his interest, and the corrupt practice by such agent has materially affected the result of his election, the High Court is enjoined to declare the election of the candidate to be void.
Sub section (2) of Section 100 enacts a rider to sub section (1) thereof, and states that even if the 731 agent has committed the corrupt practice in the interest of the returned candidate, if the High Court is satisfied that the said corrupt practice was not committed by the candidate or his election agent and every such corrupt practice was committed contrary to the orders and without the consent of the candidate or his election agent and that the candidate and his election agent took all reasonable means for pre venting the commission of the corrupt practice at the elec tion, and that in all other respects the election was free from any corrupt practice the part of the candidate or any of his agents, the High Court may decide that the election of the returned candidate is not void.
With this statement of law in mind, we may now refer to the two corrupt practices alleged to have been committed by the appellant.
We will first deal with exhibit P 1 the print ing, publication and distribution of which is held to have been one of the two corrupt practices committed by the appellant 's agent at his instance and with his consent and connivance as well as of his election agent.
As far as the petition is concerned, the relevant averments with regard to exhibit P 1 are as follows: "13.
Another important aspect which will amount to corrupt practice is the publication of pamphlets by the candidate, his agents and his workers with his consent and knowledge.
Malayala Manorama dated 23.5.1983 was reported by the candidate at the expenses of the first respondent.
This re printing is intended to propagate false statements which the candidate, his agents and as workers . .
X X X X X 19.
It is clear from these that the reprinting of Malayala Manorama by the candidate was with a view to create a false impression among the electorate that the petitioner is a murderer and hence the electorate shall not vote in favour of him.
This was done with a mala fide intention to propa gate false news among the electorate.
X X X X X 46.
Malayala Manorama daily dated 22nd May, 1983 was re printed with certain additions and also with photographs 732 of Prime Minister and the candidate with the candidate 's symbol.
This was reprinted from the Veekshanam Press at Ernakulam and got printed by the Election Committee of the first respondent . 47.
Annexure I reprinted Malayala Manorama was widely dis tributed in the constituency.
It was distributed on 22nd March, 1987.
March 22, 1987 was a Sunday and May 1983 was also a Sunday.
The petitioner is reliably informed that about 25,000 copies of Annexure I were printed and those copies of reprinted Malayala Manorama were distributed throughout the constituency.
" In paragraphs 48 to 53 of the petition, the first re spondent has proceeded to give the names of the persons who distributed the said pamphlet in different divisions of the constituency and of the persons whom he was going to examine as witnesses to prove the same.
In paragraph 54, he has made further averments in connection with the said pamphlet as follows: "Annexure was really the reproduction of Malayala Manorama daily dated 22.5.1983.
Since a news item regarding the murder of 4 persons was reported in the daily mentioned above, to mislead the electorate, the Malayala Manorama printed and published on 22.5.1983 was reprinted . " 9.
It will be apparent from these averments in the petition that although the first respondent has stated in his petition that the pamphlet was printed and distributed with a view to create a false impression among the elector ate that he was a murderer, he has not stated as to why it will create such an impression among the electorate.
It was necessary for him to state so in the petition because admit tedly the pamphlet nowhere names him as a murderer of the said four victims.
What was, however, argued by Dr. Chitale on behalf of the first respondent was that the statements in the pamphlet, viz., "everybody knows the hands behind that murder.
The Marxist leader arrested also is known" were a clear and a direct reference to the first respondent, be cause it was an admitted fact that the first respondent was arrested for an offence of harbouring the accused in that murder case.
There was also a protest meeting held in that connection, and the appellant who was his agent at that time had also addressed the said meeting condemning his arrest.
According to Dr. Chitale, therefore, 733 the arrest of the first respondent though for the offence of harbouring the murderers, was in connection with the murder and the statement in the pamphlet that "The Marxist leader arrested is also known" read with the earlier statement that "Everybody knows the hands behind that murder" was clearly calculated to create an impression in the mind of the elec torate that it was the first respondent who was the murder er.
Admittedly, therefore, even according to Dr. Chitale, these were the only two statements which could be said to have had a reference to the first respondent as the murderer and there was no direct reference to or implication of the first respondent as the murderer of the said four victims.
In other words, the first respondent even in his petition had relied upon an innuendo, and the innuendo was based upon the fact that, firstly, the first respondent was a Marxist leader and, secondly, he was arrested for harbouring the murderers.
However, in the petition, no averment is made anywhere that it was because he was a Marxist leader and was also arrested for harbouring the murderers that the elector ate was likely to construe the said two statements as accus ing him as the murderer.
The facts and/or particulars which spell out the innuendo where one is alleged or relied upon to constitute a corrupt practice are themselves material facts and it is necessary to state them in the petition in view of the mandatory provisions of Section 83(1) of the Act.
The provi sions of Section 83(1) are as follows: "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 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petitioner shall also be accompanied by an affidavit in the prescribed form in support of the allega 734 tion of such corrupt practice and the particulars thereof.
" It is clear from the provisions of both clauses (a) and (b) of the Section that election petition has to contain (i) a concise statement of the material facts on which the petitioner relies and also (ii) give full particulars of any corrupt practice that the petitioner alleges.
In a case therefore, where what constitutes a corrupt practice is not a bare statement/statements published but those which are not published, and yet are implied, a statement of material facts will not be complete without the statement of such implicit facts.
In other words, without the statement of the said facts, the statement will not be a statement of materi al facts within the meaning of the said Section.
This provi sion of law is indisputable.
Much of the debate that took place before us cen tered round this aspect which has assumed all importance in the context of the first charge of the corrupt practice.
Various authorities were cited on both sides in support of the respective contentions on the subject.
We may briefly refer to them to the extent they are relevant for our pur pose.
In Hough vs London Express Newspaper Ltd., it was a case of an action for an alleged libel pub lished in the newspaper.
The plaintiff, Florence Sarah Hough, married Frank Hough in 1933 and lived with him in Battersea as his wife and had one child from him.
In Febru ary, 1936, he deserted her, and in June 1936 he was ordered to pay maintenance for the child.
He was known at Battersea, where he lived at the time of the order, and after the desertion also he continued to live there.
He acquired some notoriety as a boxer, and the plaintiff became known in the district as his wife.
On December 22, 1937, an article appeared in Daily Express, a newspaper owned by the defend ants, containing the words: "Frank Hough 's curly headed wife sees every fight.
"I should be in more suspense at home.
" she says, "I always get nervous when he gets in the ring although I know he won 't get hurt.
Nothing puts him off his food.
He always eats a cooked meal last thing at night, however late it is when he gets in".
" From the description given of the wife, it was obvious to those who knew the wife that another person was referred to.
Hence, the plaintiff brought an action for libel alleging that the words by innuendo meant that she was falsely repre senting herself to be the wife and that she was 735 an unmarried woman who had cohabited with and had children by the boxer.
On these facts, the Court of Appeal held: (i) the words were defamatory as reasonable persons knowing the circumstances would understand the words in defamatory sense (ii) it was not necessary for the plaintiff to prove that one or more persons understood the words in a defamatory sense.
1t is sufficient that reasonable persons might so understand them.
The decision, therefore, shows that it is not necessary that a person publishing a defamatory state ment should intend that the statement should refer to the defamed person.
It is sufficient that reasonable persons should understand it to refer to him or her.
The words need not be defamatory in the primary sense.
They are actionable if the existence of certain circumstances makes it reasona ble that persons to whom those circumstances are known, might understand them in a defamatory sense.
It is not necessary to prove that in fact persons with such knowledge did so understand them.
What is necessary, however, is that the special circumstances which are known to others and by which they are likely to understand the reference as being one to that defamed persons must be pleaded and proved.
In Fullam vs
Newscastle Chronicle and Journal Ltd. & Anr.
, the facts were that prior to 1962, the plaintiff was a Roman Catholic priest and a curate in the dioceses of Salford near Manchester.
In 1962, he gave up the priesthood and became a schoolteacher.
In 1964, he married and in 1965 he and his wife had their first child.
The plaintiff took a teaching post at Wakefield.
South Yorkshire, where he lived.
In July 1973, he applied for the deputy headmastership at a school in Redcar on Teesside, which was about 80 miles north of Wakefield, and he was appointed to that post.
There had been a controversy about the previous deputy headmaster.
On 21st July, a local news paper which circulated in the districts of Teesside and Newscastle Upon Tyne but not in the Wakefield area, pub lished an article about the plaintiff 's appointment which stated inter alia that he was a former Catholic priest, that he had left his parish in the Salford diocese and later had married and that it was claimed by the general secretary of the National Association of School masters that he "went off very suddenly from the parish where he was curate 'about seven years ago '.
" The plaintiff pleaded in his statement of claim that the words in the article meant and would be understood to mean that he (a) had lathered a child whilst still a priest serving in a parish, (b) had lathered an,,illegitimate child, (c) had wrongly continued to serve as a priest after his marriage, (d) had wrongly withheld the fact of his marriage from his eclesiastical 736 superiors and parishioners and accordingly was unfit to be deputy headmaster of the school at Redcar.
Pursuant to RSC Order 82, rule 3(1), the plaintiff gave as the particulars of the facts on which he relied in support of innuendoes (i) that he had married on 15th February, 1964 and (ii) that his eldest child had been born in May 1965.
He did not give particulars of the persons who knew one or the other of those extrinsic facts and who, therefore, having regard to the statement in the article that he had left the parish suddenly "seven years ago", might have derived from the article the imputations alleged in (a) to (d) of para 5 of the statement of claim.
The defendants applied to strike out para 5 of the claim on the ground that it disclosed no reasonable cause of action.
The Court of Appeal held as follows: "(i) Although it was not the usual practice in libel actions to plead particular acts of publication if the words com plained of had been published in a newspaper, in cases where the action was based on a legal, or 'true ', innuendo and the ordinary readers of the paper would not have derived from the words complained of the innuendo alleged, the plaintiff was required, under RSC Order 18, rule 7(I) and Order 82, rule 3(I) to particularise not only the special circum stances which were alleged to give rise to the innuendo but also the identity of the readers of the paper who were alleged to know of those special circumstances, since the identity of those readers was a material fact on which the plaintiff relied in support of his cause of action.
(ii) Since the only readers of the article who could have concluded that the plaintiff had lathered a child or married while he was still a priest were readers who new either the date of birth of his 'eldest child or the date of his mar riage but did not know both those facts and such readers would be rare and exceptional, having regard in particular to the area where the paper circulated, the plaintiff should be ordered to give particulars identifying those readers.
Accordingly, unless such particulars were given, para 5 of the statement of claim should be struck out.
" While discussing the law on the subject, Lord Denning MR observed as follows: "The essence of libel is the publication of written words to 737 a person or persons by whom they would be reasonably under stood to be defamatory of the plaintiff.
But those words may give rise to two separate and distinct causes of action . .
First, the cause of action based on a popular innuendo.
If the plaintiff relies on the natural and ordi nary meaning of the words, he must in his statement of claim satisfy the person or persons to whom they were published, save in the case of newspaper or periodical which is pub lished to the world at large, when the persons are so numer ous as to go without saying.
Secondly, the cause of action based on a legal innuendo.
If the plaintiff relies on some special circumstances which convey some particular person or persons knowing the circum stances, a special defamatory meaning other than the natural and ordinary meaning of the words when he must in his state ment of claim specify the particular person or persons to whom they were published and the special circumstances known to that person or persons for the simple reason that these are the material facts on which he relies and must rely for this cause of action.
It comes straight within the general rule of pleading contained in RSC Order 82, rule 3.
In the second cause of action, there is no exception in the case of a newspaper because the words would not be so understood by the world at large but only by the particular person or persons who know the special circumstances." (emphasis supplied) Lord Denning further observed that this rule of pleading was not observed in Cassidy vs Daily Mirror Newspapers, or in Hough vs London Express Newspaper Ltd., (supra) because the defendant did not ask for particu lars.
After referring to paragraph 5 of the plaint, he then observed that paragraph 5 was utterly inadequate as it stood and that no ordinary reader could ever derive those imputa tions about "fathering a child" etc.
from the article.
It would have to be some particular person with knowledge of some special circumstances.
He further observed that the pleading in that case told the circumstances, viz., the marriage in 1964 and the birth of a son in 1965 but it did not tell as to who were the persons who knew of the circum stances and derived the imputations from the article.
In the same case, Scarman LJ stated that it was obvious that a 738 material fact in such a cause of action was that the persons to whom the words were published knew the extrinsic facts.
In principle, therefore, their knowledge being a material fact should be pleaded.
He further observed that there may be a case where the facts may be very well ' known in the area of the newspaper distribution in which even it would suffice to plead merely that the plaintiff would rely on inference that some of the newspaper readers must have been aware of the facts which are said to give rise to the innu endo.
But that was not the case in that action and, there fore, justice required that the plaintiff should fully particularise the publication relied on so that the defend ants may understand the nature of the case they have to make.
These two decisions, however, are in libel action and not in election matters.
In Sheopat Singh vs Ram Pratap, ; , one of the questions that directly arose for consideration was of the burden of proving the ingredients of the corrupt practice under Section 123(4).
The facts were that an alle gation was made against the personal character and conduct of one of the candidates in the election, viz., that a cinema theatre of Rs.7 lakhs in Ganganagar was the barkat of the cement of the Rajasthan Canal.
The candidate concerned was at the crucial time the Minister in charge of the Rajas than Canal Project.
During the election, a cinema theatre known as Adarsh Theatre was being put up at Ganganagar.
There was no dispute that the theatre referred to in the poster was the said Adarsh Theatre and it belonged to the concerned candidate and his sons.
In that context, there fore, it was manifest that the poster meant to convey the idea that the candidate had misappropriated the cement of the Rajasthan Canal of which he was in charge and built a big theatre in the name of his sons.
Hence, it was a clear reflection on the candidate 's personal character and con duct.
The argument advanced on behalf of the returned candi date was that there was no evidence in the case that the said statement was one reasonably calculated to prejudice the prospects of the election of the candidate against whom the said statement was meant, viz., Ramchander Chowdhary.
In that connection, it was argued that if the voters did not know that the cinema theatre which was being built in Ganga nagar belonged to Ramchander Chowdhary or his sons, the statement concerned would not deflect the voters from voting in favour of Chowdhary.
It was also argued that there was no evidence in the case that all or any of the voters knew the fact that the cinema theatre belonged to Chowdhary or his sons.
This Court stated in that case that they were not dealing with a libel action and, therefore, the 739 cases cited at the Bar on libel action such as Nevill vs Fine Art and General Insurance Co. Ltd., and the Capital and Counties Bank Ltd. vs George Henty & Sons, had no relevance for determining the ques tion under Section 123(4) of the Act.
The only question is whether the statement in question was reasonably calculated to prejudice the prospects of Chowdhary 's election.
The Court then pointed out that on behalf of the returned candi date it was not contended either before the Election Tribu nal or before the High Court that the voters had no knowl edge of the fact that the cinema theatre at Ganganagar belonged to Chowdhary or his sons.
The Court further ob served that apart from that the object with which the state ment was made was the crucial test.
Since it was proved that Ganganagar cinema theatre belonged to Chowdhary 's sons and that Chowdhary was the Minister in charge of the Rajasthan Canal and he was also the only effective candidate against the returned candidate who was the appellant in that case, the appellant 's intention in making that statement was obvious and that was to attack the personal character of Chowdhary in order to prejudice his prospects in election.
The appellant must have reasonably calculated that the voters, or at any rate the voters in and about the locality where the cinema theatre was being put up, had knowledge or the tact that It was being constructed by the Minister of his sons.
It cannot also be said that when a big cinema theatre at a cost of Rs.7 lakhs was being put up in Gangana gar the voters in and about that place would not have known about the ownership of that building.
Hence, the fact that the building was brought in for attacking the personal character of Chowdhary merely indicated that the appellant knew that the voters had knowledge of its ownership and expected that it would create the impression which it mani festly indicated to convey.
Hence, this Court held that the High Court 's finding that the statement was reasonably calculated to prejudice Chowdhary 's prospects in election could not be said to be unsupported by evidence or by the.
admitted facts placed before the High Court.
It was a rea sonable inference from the facts found by the High ' Court.
It must be said that in this case the question whether it was necessary for the election petitioner to state in the petition the extrinsic facts which would connect the person concerned with the libelous statement was not raised and, therefore, was not answered.
The only question which was agitated was whether the voters without knowing that the theatre belonged to the defamed candidate would be deflected from voting and this Court upholding the finding of the High Court, observed that it was not contended either before the Election 740 Tribunal or before the High Court that the voters had no knowledge of the fact that the cinema theatre belonged to Chowdhary or his sons.
Secondly, it was held that whether the voters had such knowledge was immaterial since what was crucial for the corrupt practice under Section 123(4) of the Act is the object with which it was made.
Since the election petitioner had proved that the theatre belonged to Chowd hary 's sons and that Chowdhary was the Minister in charge of the Rajasthan Canal, it must be held that the returned candidate had reasonably calculated that the voters or at any rate the voters in and about the locality where the theatre was being put up, had knowledge of the fact that it was being constructed by the Minister or his sons, and that such extrinsic facts could not have been unknown to the voters.
This decision may be construed as laying down that even if the petition does not state the extrinsic facts but the electorate is well aware of them, the petitioner can lead evidence and prove them.
Whether the petition in that case did or did not state the extrinsic facts is not clear from the decision.
It is also not clear from the judgment whether any evidence was led that in fact the voters had understood the said statement to refer to Chowdhary.
On the other hand, one of the observations made in the judgment shows that the proof of such an impression of the voters is dispensable for the purpose of establishing a corrupt prac tice under Section 123(4) of the Act.
That observation is as follows: "To be within the mischief of sub section (4) of Section 123 of the Act such a statement shall satisfy another test, namely, it shall be a statement reasonably calculated to prejudice the prospects of the election of the candidate against whom it is made.
The word "calculated" means de signed: it denotes more than mere likelihood and imports a design to affect voters.
It connotes a subjective element, though the actual effect of.
the statement on the electoral mind reflected in the result may afford a basis to ascertain whether the said statement was reasonably calculated to achieve that effect.
The emphasis is on the calculated effect, not on the actual result, though the latter proves the former.
But what is important to notice is that it is not necessary to establish by positive evidence that the voters, with the knowledge of the contents of the statement were deflected from voting for the candidate against whom the statement was made.
" In Kumara Nand vs Brijmohan Lal Sharma. ; the 741 facts were that the complaining candidate was called "the greatest of the thieves" in a poem recited at a public meeting in the presence of the returned candidate.
It was held that it was not a mere expression of opinion but was a statement of fact.
It was further held that in such circum stances, particulars are not necessary before a bald state ment with respect to personal character or conduct of the candidate can be said to be a statement of fact.
It was also observed that whether particulars are necessary will depend on the facts and circumstances of each case.
We may state here that the discussion in that case mainly centered around the question whether the particular statement was a state ment of fact or an expression of opinion.
In Habib Bhai vs Pyarelal & Ors.
, AIR 1964 MP 62 dealing with the question of innuendo the High Court referred to certain English cases on the point and held that "in view of these decisions, it is obvious that an innuendo is simply an averment that such a one, means such a particular person; or that such a thing, means such a particular thing: and, when coupled with the introductory matter, it is an averment of the whole connected proposition by which the charge may be brought home to the person concerned.
The whole attempt of the learned counsel for the appellant before us was to suggest that the words, though not per se defamatory of the third respondent, were definitely so in their secondary meaning read in the context of circumstances.
But, as no attempt was made in the pleadings to plead the extrinsic facts to show by those facts as to how the allegations contained in annexure I were related to the third respond ents, we are of opinion that it must he held that by refer ring to any possible meaning of the words used, no imputa tion could be read in the words as against him.
" It can, therefore, be said that in this case the Court had insisted that it was necessary to plead the extrinsic facts to show all those facts as to how allegations were related to the defamed or complaining candidate.
In Manmohan Kalia vs Yash & Ors., ; which is more or less on par with the present case, it was alleged by the election petitioner that the returned candidate through speeches either made by him or his friends had carried on a vilifying campaign to show that the complaining candidate was directly connected with the murder of one Asa Ram, a Harijan and one of the supporters of Congress (I) Party so as to wean away the votes of the harijans of the locality and members of the Congress (I) Party.
The High Court had disbelieved oral evidence and found no nexus with the news items etc. and had 742 dismissed the petition.
This Court held that where the doctrine of innuendo is applied, it must be clearly proved that the defamatory allegation was made in respect of a person though not named, yet so fully described that the allegation would refer to that person and that person alone.
Innuendo cannot be proved merely by inferential evidence which may be capable of two possibilities.
On the facts, the Court held that after having gone through the evidence, statement of witnesses and the documents placed before the Court, it was difficult to find any close connection or direct link between the imputations made against the appel lant in 1978 and those made in 1980.
In none of the docu ments produced by the complaining candidate which referred to the activities of the returned candidate, there was the slightest possibility that the appellant had anything to do with the murder of Asa Ram.
The Court further observed as follows: "It is now well settled by several authorities of the Su preme Court that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process".
In W. Hay & Ors.
vs Aswini Kumar Samanta, AIR 1958 Cal.
269 a Division Bench of the Calcutta High Court held that it is well settled that in a "libel action" the ordinary defam atory words must be set out in the plaint.
Where the words are per se or prima facie defamatory only the words need be set out.
Wherever the defamatory sense is not apparent on the face of the words, the defamatory meaning or as it is technically known in law, the innuendo must also be set out and stated in clear and specific terms.
Where again the offending words would be defamatory only in the particular context in which they were used, uttered or published, it is necessary also to set out except where as in England, the law is or has been made expressly otherwise, the offending context (colloquium) in the plaint, and to state or ever further that this context or the circumstances constituting the same, were known to the persons to whom the words were published, or, at least, that they understood the words in the defamatory sense.
In the absence of these necessary averments, the plaint would be liable to be rejected on the ground that it does not disclose any cause of action.
743 13.
What exactly should be pleaded in an action for defamation has been stated also in Halsbury 's Laws of Eng land Vol.
28 4th ed.
In paragraphs 174, 175, 176, 177 and 178 of the said Volume, we have discussion with regard to natural and ordinary meaning of the words complained of, and about the innuendo and the facts and matters supporting innuendo which should be pleaded and proved.
It is stated there that in drafting a statement of claim in libel or slander, it is necessary to distinguish between cases in which the words complained of are alleged to be defamatory in their natural and ordinary meaning, whether the literal or the inferential meaning, and those in which the defamato ry meaning is a secondary meaning derived from extrinsic or special facts or matters, so that a legal or true innuendo must be pleaded.
If it is claimed that the words are defama tory in their natural and ordinary meaning and the words bear only one literal meaning, which is clear and explicit, it is not necessary to plead the meaning in the statement of claim.
However, if the words are reasonably capable of bearing more than one literal meaning or if the defamatory meaning relied on is inferential (a "false or popular" innuendo), it is desirable and may even be necessary to plead the defamatory meaning or meanings.
Where the plain tiff wishes to claim that the words complained of were understood to be defamatory in a secondary or extended meaning by those persons having knowledge of some special facts or matters, such a meaning constitutes a separate cause of action and the same should be pleaded expressly in a separate paragraph in the statement of claim (emphasis supplied).
Particulars must be given of the facts and mat ters on which the plaintiff relies in support of any second ary or extended defamatory meaning which it is decided to plead.
These special facts or matters may be extrinsic to the words used or there may be some special meaning of the words themselves.
The plaintiff should plead that particular words bore the innuendo meaning.
In Gatley on Libel and Slander (8th ed.) in para graph 95, while dealing with "True and False Innuendoes", it is observed that in distinguishing between the ordinary and natural meaning and the innuendo meaning or words, the substantive law cannot be separated from the requirements of pleadings and the rules of evidence.
When the plaintiff wishes to rely on any special facts as giving the words a defamatory or any particular defamatory meaning, he must plead and prove such facts including, where necessary, any special knowledge possessed by those to whom the words are published which gives the words that meaning, and must set out the meaning in his pleading.
Where words are not defama tory in their natural and ordinary mean 744 ing but are so only by reason of extrinsic circumstances, the plaintiff must plead also those circumstances and the precise defamatory meaning conveyed by them to those persons to whom the words were published.
Otherwise, the statement of claim will disclose no cause of action.
Such an innuendo is required to be pleaded whenever the plaintiff relies on any extrinsic facts as giving to the words the meaning he alleges.
The plaintiff must plead the words, the extrinsic facts and knowledge of those facts on the part of one or more of those persons to whom the words were published.
He can also give evidence of any facts and circumstances which he has pleaded and which would lead reasonable persons to infer that the words were understood in that meaning provid ed such facts or circumstances were known to those persons to whom the words were published.
The evidence required is the evidence of special facts causing the words to have a meaning revealed to those who knew the special facts.
Street in his treatise on Torts (6th ed.) at page 294, has stated that where nothing is alleged to give an extended meaning, words must be construed by the judge in their ordinary and natural meaning.
The whole of the statement must be looked at, not merely that part on which the plain tiff relies as being defamatory, although, of course, it may be relevant to take account of the greater importance of some part of a statement, e.g., the headlines of an article in a newspaper.
There may be circumstances where the plain tiff alleges that the statement is defamatory because spe cific facts known to the reader give to the statement a meaning other than or additional to its ordinary meaning; this is known as a true or legal innuendo.
In that case, the plaintiff must plead and prove such facts, for the defendant is entitled to know that meaning of the statement on which the plaintiff relies so that he is able to argue either that the statement in that meaning is not defamatory or that it is then true of the plaintiff.
There is a third possibility.
The words may have a meaning beyond their literal meaning which is inherent in them and arises by inference or impli cation: this is sometimes known as the "false" innuendo.
The plaintiff has to plead separately any such "false" innuendo.
A "false" innuendo differs from a "true" innuendo in that the pleader of a "false" innuendo does not set out any extrinsic facts in support of his plea.
Duncan & Neil in their book on defamation (1978 ed.) while referring to "innuendo" on page 17 onwards have stated that the law of defamation recognises that (a) some words have technical or slang meaning or meanings which depend on some special knowledge possessed not by the general public but by a limited number of persons 745 and (b) that ordinary words may on occasions bear some special meaning other than their natural and ordinary mean ing because of certain extrinsic facts and circumstances.
The plaintiff who seeks to refer to an innuendo meaning has to plead and prove the facts and circumstances which give words a special meaning '.
He has also to prove that the words were published to one or more persons who knew these facts or circumstances or where appropriate, the meaning of the technical terms etc.
While referring to the test where identification depends on extrinsic facts, the learned authors have stated that where identification is in issue, the matter can sometimes be decided by construing the words themselves in their context.
More often, however, the plaintiff will be seeking to show that the words would be understood to refer to him because of some facts or circumstances which are extrinsic to the words themselves.
In these cases the plaintiff is required to plead and prove the extrinsic facts on which he relies to establish identification and, if these facts are proved, the question becomes: would reasonable persons knowing these facts or some of them, reasonably believe that the words referred to the plaintiff.
Where identification depends on extrinsic facts these extrinsic facts must be pleaded because they form part of the cause of action.
The conspectus of the authorities thus shows that where the defamatory words complained of are not defamatory in the natural or ordinary meaning, or in other words, they are not defamatory per se but are defamatory because of certain special of extrinsic facts which are in the knowl edge of particular persons to whom they are addressed, such innuendo meaning has to be pleaded and proved specifically by giving the particulars of the said extrinsic facts.
It is immaterial in such cases as to whether the action is for defamation or for corrupt practice in an election matter, for in both cases it is the words complained of together with the extrinsic facts which constitute the cause of action.
It is true that Section 123(4) of the Act states that the statement of fact in question must be "reasonably calculated to prejudice the prospects" of the complaining candidate 's election.
However, unless it is established that the words complained of were capable of being construed as referring to the personal character or conduct of the candi date because of some specific extrinsic facts or circum stances which are pleaded and proved, it is not possible to hold that they were reasonably calculated to prejudice his prospects in the elections.
For, in the absence of the knowledge of the special facts on the part of the 746 electorate, the words complained of cannot be held to be reasonably calculated to prejudice such prospects.
Once, however, it is proved by laying the foundation of facts that the words in question were, by virtue of the knowledge of the special facts, likely to be construed by the electorate as referring to the personal character or conduct of the complaining candidate, it may not further be necessary to prove that in fact the electorate had understood them to be so.
That is because all that Section 123(4) requires is that the person publishing the complaining words must have in tended and reasonably calculated to affect the prospects of the complaining candidate in the election.
It is in the light of this position in law that we have to examine as to whether the first respondent (elec tion petitioner) had discharged this primary burden cast on him.
We have already shown above by referring to the por tions of the petition relating to exhibit P 1, that beyond alleging that the pamphlet in question and particularly the two statements therein, viz., "everybody knows the hands behind that murder.
The Marxist leader arrested also is known", the first respondent has not shown as to how the said two statements or the rest of the contents of exhibit P 1 had projected him as the murderer in the eyes of the elec torate.
Dr. Chitale, learned counsel appearing for the first respondent relied upon the contents of paragraphs 14 and 19 of the petition to contend that the extrinsic facts to spell out the innuendo were sufficiently set out there and those facts being known to the electorate the said two offending statements were enough to point to the first respondent as the murderer in the eyes of the electorate.
We have already referred to the relevant portions from the said paragraphs.
We do not find any facts pleaded there whereby the elector ate would gather an impression that the first respondent was the murderer of the Said four victims.
Barring his own testimony, all other evidence led by the first respondent is also totally silent on this aspect of the matter.
None of his witnesses has stated anywhere that the contents of exhibit P 1 had made out the first re spondent as the murderer of the four victims or even that they were capable of doing so.
On the other hand, all his witnesses without exception are unanimous that after reading exhibit P 1 the impression it created on them was that it referred to an incident which had taken place on the previ ous day or to an earlier incident and nothing more.
None of the witnesses has stated that exhibit P 1 even remotely connect ed the first respondent with the murders.
This is what the witnesses have stated: 747 V.H. Ashraft, PW 2 states in his examination in chief as follows: "I read exhibit P 1.
The impression that it created in me was that it referred to an incident that took place on the previous day.
" In cross examination, the witness states: "On seeing a copy of exhibit P 1 my first impression was that it is an issue of the daily paper for that day . .
I did not go through exhibit P 1 in full.
Immediately I have gone through the daily issue also.
At that time I realised that Ex P 1 did not relate to an incident that took place on the previous day.
After that when I read exhibit P 1 I further realised that it relates to some incident on an earlier occasion".
VSA Muthaliff, PW 3 in his examination in chief states as follows: "On reading exhibit P 1 I thought that it is a supplement pub lished in connection with the election.
I thought that it is a supplement of Malayala Manorama Daily for that day.
I thought that it was the report regarding murders in connec tion with the election".
M.K. Saidalavi, PW 4 in his examination in chief states as follows: "On reading exhibit P 11 thought that it was the news about a murder that took place the previous day.
The impression that 1 gathered was that murder was committed by the Communists .
I thought that exhibit P 1 is likely to affect Left United Front adversely.
" In cross examination, the witness says as follows: "I had occasion to talk to my friends about exhibit P 1.
After reading exhibit P 11 understood that it was not the news of a recent incident.
I had occasioned to read about that inci dent earlier in 1983.
On going through exhibit P 1 I understood that it related to an incident that took place in 1983.
" C.J. Dominic, PW 5 in his examination in chief states as follows: 748 "On reading the headlines I went to the market.
When I returned home the talk there was as if murder took place the previous day.
Then in order to clear doubt I went to the reading room.
On going through the daily issue of the Ma layala Manorama I was not able to find the news in exhibit P 11 felt sorry that such a murder took place on the eve of the election." K.D. Abdu, PW 6 states in his examination in chief as fol lows: "I read the copy of exhibit P 1 I realised that it was a con scious attempt on the part of the United Democratic Front to defeat the petitioner in the election.
Copies of exhibit P 1 were supplied by them in almost all the houses in the local ity.
Majority of the voters in that locality was ladies and they were illiterate also.
" In cross examination, the witness states as follows: "Regarding exhibit P 1 my enquiry revealed that almost all the persons of the locality had complained.
I went through the entire copy of exhibit P 1.
" Then it appears that there is a note by the court that the witness says that exhibit P 1 was purposely intended to defame the petitioner.
The witness further stated in cross examina tion as follows: "When I talked to the petitioner (i.e., the first respond ent) about the speeches I made mention of the copy of exhibit P 1 also.
He did not ask for a copy. ' ' K. Prakash, PW 7 in his examination in chief states as follows: "On reading such posters exhibit P 1 the news appeared to me to be true.
It was only after the election that I came to know that the impression was not correct." Though T.M. Darar, PW 8 states in his examination in chief that he had seen copies of exhibit P 1 being distributed in 7th Division and he also alleges that he had seen the copy of the said pamphlet and the wall posters containing the photographs of the appellant seen pasted there, he does not give the impression about the same.
However, in crossex amination he states as follows: 749 "I went through the copy of exhibit P 1.
On reading I understood that it is an old story.
" Thanhapen, PW 9 in examination in chief has nothing to state.
However, in cross examination he states as follows: "1 did not read the copy of exhibit P 1 in full when it was given to me.
Even before reading I was pained to see it.
Pain was because I saw that four persons were murdered.
After going over to my daughter 's residence on the same day I read another copy of exhibit P 1 in full.
On reading I under stood that it is an old story.
Then the pain that I felt at first was slightly relieved.
But the pain continued because after all murder is murder.
" C.S Devadas, PW 10 in his cross examination states as fol lows: "The impression that I gathered was that the Marxists are murderers and therefore instead of giving votes to them it must be given to the 1st respondent (i.e., the appellant).
" Sathyan, PW 13 in his examination in chief states as fol lows: "In exhibit P 1 there was also a statement of the 1st respond ent.
The reading of the news regarding 4 murders appears at first sight to be an item of news going adverse to the petitioner.
This news item was a general discussion in the locality.
" In cross examination he states as follows: "When I got exhibit P 1 I read through the same.
Even after reading exhibit P 1 in full I was not able to realise that it was the news of murders committed much earlier.
Even after discussions with others I did not realise that it was an earlier incident.
It had news importance.
It was only after the election that I came to understand that the news item in exhibit P 1 related to an earlier incident.
Discussion was with my colleagues.
They said that they also got the copies of exhibit P 1.
They are persons without politics.
I did not bring this news item to the notice of the petitioner (i.e., the first respondent).
750 5.
The workers of the petitioner (i.e., the first respond ent) also used to come to me for canvassing.
I asked them about the news in exhibit P 1.
They said they knew about it.
This was after lunch on the date previous to election.
When Rajappan and Vasukutty gave a copy of exhibit P 1 to me others were waiting outside.
On seeing and reading a copy of exhibit P 1 it appeared to me to be a supplement of Malayala Manora ma daily for that day.
Even after reading.
the news item in exhibit P I, on account of the importance of the news, I had no occasion to think about it further to ascertain whether it is a recent news or an old news.
" P.M. Kaviraj, PW 14 in his examination in chief has only this to say: "I heard ladies saying that the news contained in exhibit P 1 is a cruel act.
" In cross examination he says as follows: "On getting PW 1, I read through it in entirety.
Even then 1 understand (sic) that it is the news of an old incident.
My impression was that it was the news relating to an inci dent which took place on that date.
I did not inform the petitioner that I read EX.
I wanted to tell him but I did not do so.
Till now I did not inform him.
That is be cause I am not interested.
I told my friends.
It was then that I knew that it was an old news.
" T.A. Guide, PW 15 in his examination in chief states as follows: "The persons mentioned in exhibit P 1 who have been murdered are my neighbours.
" In cross examination he states as follows: "On reading of exhibit P 11 understood that it related to an earlier incident.
We discussed the matter at home.
I also discussed the matter with some friends.
Thus, it is clear from the testimony of the first respondent 's witnesses that the contents of exhibit P 1 gave them an impression variously as either the incident had occurred the previous day or that it was 751 an old story or that the Communists or Marxits were murder ers or that it was a cruel act or that it was unfavourable to the first respondent.
The impression conveyed by the document that the Marxists or Communists were murderers and therefore the electorate should not ' vote for them and hence it was unfavourable to the first respondent, was not an impression about his personal character/conduct.
It was an impression at best about his political character/conduct.
In particular there was no impression that he was the murderer or one of the murderers.
As far as the petitioner himself is concerned, in paragraph 2 of his deposition in examination in chief he makes a general statement as follows: "Personally against me the propaganda on behalf of the first respondent (i.e., the appellant) was that I am a murderer, a non religious man and one who is unfit to be elected as a member of the legislative assembly.
" Thereafter in paragraph 19 of his deposition he says with reference to exhibit P 1 as follows: "The original of exhibit P 1 was printed and published on a Sunday which was 22.5.83, distribution was on a Sunday which was 22.3.1987.
Four murders were described as incidents which took place on the previous day.
Out of the 4 murdered, the photos of two dead bodies lying in the hospital were also published therein.
exhibit P 1 mainly contained the news about murders alone.
The intention behind the publication was to make the electors understand 4 murders that took place in 1983 as murders that took place on the previous day.
That paper also contains a request by the committee with the photos of 1st respondent (i.e., the appellant) and Rajiv Gandhi.
In the request it is specifically stated 'that it is only common knowledge as to who is behind the murder.
So also it is written that the Marxist leader who is arrest ed is also known to all.
That was the result of a conspiracy consciously entered into for the purpose of maligning and exposing me as a murderer and an undesirable person.
I was never an accused of any murder case.
In connection with the 4 murders described in exhibit P 1 a 752 case was registered against me for having given shelter to the accused in that case.
There were several meetings in protest against my rest in connection with that case stating that it is a false case.
1 had absolutely no involvement in giving protection or shelter to those persons.
Subsequently that case ended in acquittal.
In the main protest meeting held at Thoppumpadi one of the speakers was the 1st respond ent himself.
(i.e., the appellant).
At the time of those murders in 1983 Mr. Vayalar Ravi was the Home Minister.
He was also the leader of the Union in the Cochin Port Trust.
I was also a worker of a rival union there.
There were differ ences of opinion between myself and Mr. Vayalar Ravi.
There fore it was at his instigation that I was implicated in a false case." (emphasis supplied) Then there is a Court question: Whether the murders of those persons were political murders? The answer is: Those four murdered persons were anti social elements.
There was no politics involved in it.
Then he continues to state: "The publication of exhibit PW 1 on the date previous to the election had the effect of creating an impression among the impartial electors that I am a person involved in murders . .
If such a propaganda is made as was done in this case the opposite candidate will not be getting an opportunity to rectify the result.
1st respondent and his workers were fully aware of the fact that I am completely innocent in connection with the murders of the said four persons.
Since they were fully aware of the fact that I am sure to succeed in the election, this story was purposely manipulated as a result of conspiracy." "22.
exhibit PW 1 when it was published had the appearance of a real issue of Manorama.
Daily People on reading the report went under the impression that what was contained therein was the news of an incident which took place the previous day.
On seeing copies of exhibit PW 1, many of my workers and electors also telephoned and told me that a supplement of Malayala Manorama was seen.
They also inquired about the murders mentioned therein.
Since I was not able to get an opportunity of bringing the real facts 753 before the electors, myself and my workers were in a help less condition." (emphasis supplied) In his cross examination he states in paragraph 32 of his deposition as follows: "The fight hand side of exhibit P 1 contains a true copy of the Malayala Manorama.
In that portion there is no difference.
On the left hand side and the lower portion of the right side there are certain additions.
The news item in exhibit P 1 regarding murders are correct in all details.
What is wrong is only that it was published as if to appear that it was an incident that took place on the previous day.
My complaint is that an impression was created among the people that it was an incident that took place on 21.3.1987.
Even after reading the whole of exhibit P I people go only under the im pression that the incident happened on the previous day.
My memory is that I have specifically alleged in the petition that such an impression was created.
It was unfavourable to my interest only on account of the creation of such an impression that it was an incident that happened on the previous day.
My complaint is that I did not get an opportu nity to correct the impression before the polling.
I have alleged in the petition that such an impression was created among the voters and I did not get time to correct the impression before the polling.
In the true copy of Malayala Manorama contained in exhibit P 1 there is nothing against me.
On the left hand side of exhibit P 1 is the request to vote for the 1st respondent even though my name was not mentioned it was intended against me.
Even without mentioning my name it is possible to know that it was intended against me.
The writings in that request capable of identifying me as the culprit are the statements that the persons responsible are known to all and the Marxist leader who was arrested was also known to all." (emphasis supplied).
He was then asked the question: "Have you so stated in the petition?" The answer was "My memory is that it is so stat ed".
He then proceeds to state as follows: "If I remember correct I have stated in the petition that the person intended by the arrested Marxist leader is my self.
754 Many persons who gathered such an impression contacted me over phone.
I did not examine anybody among them.
I have examined several persons for proving the distribution of exhibit P 1.
None of those witnesses were asked by my counsel wheth er any of them understood the reference in the request contained in exhibit P 1 as concerning me.
I was present in court when those witnesses were examined.
I did not ask any of them whether they continued to hold the impression that the murder took place on the previous day . .
My impres sion is only from what my workers told me." (emphasis supplied) 20.
We have supplied the emphasis at the proper places in the first respondent 's testimony reproduced above.
He has himself admitted that all those who read exhibit P 1 gathered an impression that the incident had occurred on the day previous to its publication.
If that is so, then even the statements in exhibit P 1 that "Every body knows the hands behind that murder.
The Marxist leader arrested is also known" were not connected by the people with his arrest for harbouring the accused in the old murder case and vice versa.
The first respondent has repeated his allegation that the people had thought that the incident had taken place on the day previous to the publication of exhibit P 1 at places more than one in his testimony.
He has also placed his own interpretation on the said publication which is incompatible with the extrinsic facts stated by him in support of the innuendo meaning of the publication.
According to him (i) the four murders were described as incident which had taken place on the previous day; (ii) the intention behind its publication was to make the electorate believe that the murders which had taken place in 1983 were murders that had taken place on the previous day; (iii) it is in the context of this intention that it was specifically stated that it was only common knowledge as to who was behind the murders.
So also in the context of this intention that it was written that the Marxist leader who was arrested was also known to all; (iv) again it is to explain this intention that he has given the extrinsic facts, viz., that in connection with the four murders described in the publication a case was registered against him for having given shelter to the accused in that case.
He has also stated that there were several meetings in protest against his arrest and that in the main protest meeting the appellant was one of the speakers on his behalf; (v) according to him further the people on reading the report gathered the impression that what was stated in the publication was the news of an incident which had taken place the previous day; (vi) further what 755 was wrong with the publication, according to him, was only that it was published as if to appear that it was an inci dent that had taken place on the previous day.
He has reit erated this by specifically stating that his complaint was that an impression was created among the people that it was an incident that had taken place on March 21, 1987.
Accord ing to him, further even after reading the whole of exhibit P 1 people went only under the impression that the incident had occurred on the previous day.
It is his case further that he has specifically alleged in the petition that such an im pression was created and that it was unfavourable to his interest only on account of the creation of such an impres sion, viz., that it was an incident that had happened on the previous day.
He has then stated that even though his name was not mentioned, it was intended against him, and that even without mentioning his name it was possible to know that it was intended against him and that the publication was capable of identifying him as the culprit because of the statements that "the persons responsible were known to all" and "the Marxist leader arrested was also known to all.
Although he has also added at the end that many persons who gathered such an impression, viz., that he was meant by the publication, had contacted him over phone, he admitted that he did not examine anyone from among the said persons.
This is a telling circumstance against him because he had followed as a witness after all his witnesses were examined, and he knew that none of his witnesses had stated that they had connected the imputations in the publication with him.
On the other hand, as stated earlier, not only all his witnesses had stated that they had gathered the impression that the incident had taken place the previous day but he himself was of the view that the publication was meant to create such impression and that it did so.
Hence, there was no reason for the electorate to connect him with the said incident even remotely.
On his own testimony as well as on the testimony of his witnesses, therefore, it is clear that the publication was intended to create an impression and did create an impression that the incident of murders had taken place a day previous to the election.
If that is so, then the publi cation and the two allegedly offending statements in the same did not connect him with the murders much less had they called him a murderer.
Even his arrest for harbouring the accused in the old incident of murders was not capable of identifying him as the murderer in the eyes of the people.
None knew who were the accused and who were arrested in connection with the murders which were committed the previ ous day.
The people, however, certainly knew that the first 756 respondent was not arrested in connection with the said murders.
Hence the extrinsic facts which the first respond ent stated in his testimony for the first time even if they were given in the pleadings would not have spelt out the corrupt practice.
For those facts in the face of the asser tion of the first respondent himself were incapable of identifying him as the murderer in the eyes of the elector ate.
For these reasons, we are of the view that the extrin sic facts given for the first time by the first respondent in his testimony were incapable of identifying him as the hand behind the murders or as the murderer in the eyes of the people.
We are also of the view that in the absence of the extrinsic facts supporting the innuendo meaning of the publication, the petition lacked the statement of material facts for spelling out the corrupt practice complained of.
Either, therefore, the allegation of the corrupt practice should have been struck off or the petitioner ought not to have been allowed to lead evidence in support of it.
For, as stated earlier, whenever an innuendo is alleged, a statement of material facts as required by Section 83(i)(a) of the Act is not complete without stating the extrinsic facts spelling out the innuendo meaning.
It is the publication together with the extrinsic facts which in such circumstances consti tute the corrupt practice.
The absence of the statement of such facts is not an absence of the particulars of corrupt practice but an absence of the averment of material facts themselves.
Hence, it is not necessary for us to deal with the controversy raised before us with regard to the respon sibility of furnishing of or asking for particulars.
It is necessary, in this connection, to make a distinction between a purely libel action and an allegation of corrupt practice in an election petition.
Both, for libel action as well as for an allegation of corrupt practice in an election petition, it is necessary to plead as well as to prove the extrinsic facts to spell out the innuendo meaning of the words complained of.
However, whereas in a libel action it may further be necessary to prove that those with special knowledge of the extrinsic facts were likely to interpret or understand the words complained of in a defama tory sense, in an election action, it may not be necessary to do so and all that is necessary is to prove that the words complained of were reasonably calculated to prejudice the prospectus of the defamed candidate 's election.
However, this latter distinction does not obliterate the similarity between the two actions, viz., that in each case in the first instance the defamation is to be spelt out by pleading the necessary extrinsic facts.
In a libel action, the ex trinsic facts constitute a cause of action whereas in the election action they 757 constitute the corrupt practice.
In other words, without them, there is no cause of action in the libel suit and no allegation of corrupt practice in an election petition.
Dr. Chitale, however, contended that the appellant had nowhere stated that the first respondent was not intend ed to be referred to by the said publication.
In this con nection, he invited our attention to the appellant 's deposi tion.
In his cross examination on the subject.
In paragraph 25 the appellant has stated as follows: "The statement contained in exhibit P 1 may give an impression that it was in the name of the Election Committee.
On a reading of that statement, it would appear that it was on behalf of the Election Committee.
" There were then the following questions and answers: Question: Do you agree to the contents of the statement included in exhibit P 17 Answer: I do not have any disagreement.
Question: In the statement contained in exhibit P 1 it is stated that everyone knows persons behind the murder and also the Marxist leader who was arrested in that connection.
What is your opinion regarding those statements? Answer: That is only a repetition of an incident that took place in 1983.
I cannot say what was the intention behind that statement and who was intended thereby.
Question: No Marxist leader was arrested in connection with that case.
Further on a reading of that statement the impression that could be gathered is that the Marxist leader in the election was responsible for the murder and he was arrested.
Is it so? Answer: I have nothing to do with that statement.
And I was not able to gather such an impression on reading it.
I do not think that anybody else also will go under that impression.
Question: When any such statement is reprinted and published, it must be intended for upsetting the candidate.
Answer: That de pends upon the intention entertained by the person.
I cannot give an opinion.
Question: When the petitioner (the first respondent) was the Deputy Mayor of the Cochin Corporation, was he not arrested in connection with that case under the false accusation that he gave shelter to the accused? An swer: I remember that the petitioner (the first respondent) was arrested in connection with such a case.
He then pro ceeds as follows: "I was a speaker in a meeting in protest against his arrest.
I spoke in that meeting because I felt that it is a politi cally motivated false case.
In 1983, I have gone to the hospital 758 where the dead bodies were taken for post mortem." In the first instance, in the absence of the statement of the material facts in the petition as stated above, the appellant was not called upon to join issue with them in his written statement.
Secondly, there is nothing in his testi mony referred to above, which helps the first respondent in his case that the publication had referred to him as the murderer.
This is more so, because, as stated above, the first respondent himself has interpreted the publication as creating an impression of a different murder.
The next corrupt practice of which the High Court has found the appellant guilty is the wall poster affixed on the Palace Road on the northern side of the City Rationing Office, within 25 yards from the polling station.
Near this wall poster was also affixed exhibit P 1.
The contents of the wall poster are as follows: "Defeat murderer T.M. Mohammed who murdered four Christian brothers at Fort Cochin.
Our symbol.
" exhibit P 14 is the close up photograph of the said poster whereas exhibit P 15 is a photograph from a distance as stated earlier.
There is no doubt that the contents of this wall poster directly named the first respondent as the murderer of the four victims, and if it is proved that the said poster was affixed prior to the election by the workers of the appellant with his knowledge and consent as alleged in the petition, nothing more has to be established to hold the appellant guilty of the corrupt practice within the meaning of Section 123(4) of the Act.
The finding of the High Court on this corrupt practice is recorded in paragraph 50 of its judgment.
The High Court has stated there that the writings were at the instance of the appellant and with the consent of his election agent and that it was published in the presence of and under the supervision of the appellant 's election agent and hence it attracts all the requirements of Section 123(4) of the Act.
This finding is attacked on behalf of the appellant before us.
It is necessary, there fore, first to find out the allegations made by the first respondent in his election petition in that behalf.
The first respondent has alleged in paragraphs 17, 34, 84 and 120 of his petition as follows: "17.
The wall posters and writings on the walls arc done by the first respondent, his agents and his workers with a view to propagate false aspects against the petitioner and to mis 759 lead the electorate that the petitioner is a murderer and if anyone votes in favour of him the law and order of the society will be adversely affected.
This has misled the whole electorate which has caused serious prejudice in the election of the petitioner.
X X X X X 34.
On the Palace Road, on the northern side of the City Rationing Office the workers of the first respondent with the knowledge and consent of the first respondent affixed wall poster that the petitioner had murdered 4 Christian brothers at Fort Cochin and hence the electorate shall vote against the petitioner and they have to vote in favour of the first respondent.
It is also relevant to note that this is within 25 yards from the polling station and near this writing they have affixed the reprinted Malayala Manorama daily on 22nd March, 1987 morning.
This is to mislead the public that the petitioner is a murderer and he had murdered four Christian brothers . .
X X X X X 84.
To prove Annexures 20 and 21 the wall posters pasted on the walls near the City Rationing Office, Palace Road, COchin, the petitioner is examining two witnesses namely, (1) K. Prakash, House No. 8/796, T.D. East Raod, Cherali, Cochin 2 and (2) J. Sundaram, Kocherry Junction, Pandikuddy, Cochin 2.
X X X X X 120.
Even before the distribution of reprinted Malayala Manorama the first respondent has specifically instructed his workers to write on the walls and also paste handwritten wall posters throughout the constituency publishing that the petitioner is a murderer.
The hand written wall poster was pasted near the City Rationing Office on the Palace Road, a photostat copy of which is produced and marked as Annexure 20.
This was pasted by Anil Raj section Thamaraparambu, Amarava thy, Cochin 1.
This wall poster was written at the specific instruction of the Chief Agent and convener of the election committee and in their 760 presence Anil Raj pasted this wail poster on the wails.
This fact was witnessed by K. Prakash and J. Sundaram.
Really these writings misled the whole electorate and give a bad impression about the petitioner that he is a murderer, and he is responsible for the murder of 4 Christian brothers.
This is absolutely falsehood.
This publication was done by the candidate, his agents and by his workers with the con sent and knowledge of the candidate and they knew that this statement is false in relation to the petitioner.
The allegations in the petition were denied by the appellant in his written statement as follows: "12.
Averments in paragraphs 30 to 35 are also false and are hereby denied.
Neither the first respondent nor his agents or workers have any knowledge of the wail writings filed by the petitioner as Annexures 15 to 22.
Nor were any such writings made by any person with the consent or knowledge of this respondent.
Nor do the writings show anything beyond a criticism of the Marxist party on grounds of law and order.
However, the wall writings shown as Annexure 20 were not seen anywhere in the constituency nor made by the respondent or his workers.
It is deliberately concocted by the peti tioner.
In these paragraphs also no material facts required to impute a corrupt practice against the first respondent have been stated.
The entire allegations in the aforesaid paragraphs have been falsely made.
X X X X X 18 .
The annexure 20 appears to have been deliberate ly concocted by the petitioner with an ulterior motive and the rest of the aforesaid annexures are also similarly concocted nor do they show any corrupt practice.
The further contention in para 98 that these writing and wall posters appeared in the constituency between 10th and 14th March 1987 is absolutely false.
Nor were they done by this re spondent or by his agents or workers of the UDF.
Neither, with the consent of the knowledge of the respondent.
The witness mentioned in paragraph 98 also appears to be parti sans of the petitioner.
X X X X X 761 25.
The averments in paragraph 120 that the reprinted Ma layala Manorama was pasted and hand written wallposter was published stating that the petitioner is a murderer is entirely false and the averment that the first respondent instructed his workers to do so is false.
The averment that annexure 20 is a photo copy of a handwritten wall poster near the City Rationing Office on the Palace Road and this was pasted by Anil Raj and they are written on the specific instruction of the Chief Agent and convener of the election committee is wholly untrue and is denied . . .
X X X X X 26.
The averments in paragraph 121 that this respondent has spent more than two lakhs for the election purpose is wholly untrue.
The expense incurred by this respondent for the election has been strictly within the limits prescribed by law, and the ejection accounts of this respondent have been duly submitted as required by law.
The petitioner is fur nishing a wholly fanciful idea of Auto rikshaws and cars etc.
out of his imagination in paragraph 121.
It will thus be seen that in paragraph 17 of the petition, the first respondent has averred generally that it was the appellant, his agents and his workers who had pasted the wall posters.
Secondly, in this paragraph he has not specified any wail or walls on which the poster was pasted.
Thirdly, he has attributed the pasting only to the appel lant, his agents and his workers.
There is no mention of the election agent.
What is further in this paragraph he has not said whether the workers had done it with the Appellant 's consent or knowledge.
As regards the averments in paragraph 34 of the peti tion, the first respondent does state that the workers of the appellant had pasted the wall poser with the knowledge and consent of the appellant.
But it is necessary to remem ber here that he does not mention in this paragraph either the agent or the election agent nor does he state here that the pasting was ,done with the knowledge and consent of the election agent.
What is further important to note is that in this paragraph he mentions the pasting of the poster only on one wall and that is the Palace Road wall near the City Rationing Office.
762 In paragrah 84 again, he specifies that he is going to examine witnesses in connection with the pasting only on one wall, viz., the same wall on the Palace Road near the City Rationing Office, and he gives the names of two witnesses and one of them, viz., K. Prakash (PW 7) has been examined in that connection.
In the last paragraph where there is a reference to the said posters.
P 14/P 15, viz., paragraph 120, al though there is a vague mention of the "walls", the only wall specified is the same wall on the Palace Road.
In this paragraph, again the averment is that the said pasting was done by the workers and agents with the knowledge and con sent of the appellant.
In this paragraph, for the first time he has introduced the "Chief Agent" and the convenor of the Election Committee, and the allegation is that the wall poster was written at the specific instructions of the said Chief Agent and the Convenor.
He has not specified who the Chief Agent and the Convenor of the Election Committee were.
Although Dr. Chitale submitted that the expression "Chief Agent" should be construed to mean election agent, it is not possible for us to accept the submission for reasons more than one.
In the first instance, the pleadings with regard to corrupt practice have to be specific since everyone who is guilty of the corrupt practice is liable to be prosecuted for the offence.
Secondly, except in this paragraph, we don 't find there is a reference to any such person as Chief Agent.
Wherever the first respondent wanted to refer to the election agent, he has done so.
It cannot, therefore, be argued that he does not know the difference between the election agent and the Chief Agent.
The averments in the petition, therefore, bring out two facts in particular prominently.
One is that, though the first respondent has alleged vaguely in paragraphs 17 and 120 of the petition, that the wall posters were on more walls than one he has specified no wall in paragraph 17 and he has referred to only one wall, i.e., the Palace Road wall in all the other relevant paragraphs, viz. ,, 34, 84 and 120.
What is more, in paragraph 84, he had made it clear that he was going to examine witnesses only in connection with the pasting of the poster on the said one wall and no more.
Secondly, even with regard to the pasting of the wall poster on the said wall, he is not sure as to who had done it and with whose knowledge and consent.
As pointed out above, in paragraph 17 he has stated that only the appel lant 's agents and workers had pasted it.
He has not stated that his workers had done it with the appellant 's consent or with the consent of the election agent.
In paragraph 34 no doubt he states that the appellant 's workers had done it with the knowledge of the appellant, but in paragraph 120, he 763 states that it was done at the specific instructions of the Chief Agent of the appellant and in the presence of the Chief Agent and the convenor of the Election Committee.
Nowhere in the petition it is stated that it was done with the knowledge and consent and at the instance of or in the presence of the appellant 's election agent.
This assumes importance because his witness, K. Prakash (PW 7) as will be pointed out hereafter, has come out with a version which is inconsistent with the averments in the petition and has stated that the pasting of the poster on the Palace Road wail was being done under the supervision among others of Joseph Katithara, who was the appellant 's election agent.
As regards the evidence which the petitioner has led to prove Exs.
P 14 and P 15.
we find that although he had cited two witnesses, viz., K. Prakash and J. Sundaram, to prove the lone wallposter on the Palace Road only one wit ness, viz. K. Prakash is examined.
Though K. Prakash (PW 7) was cited to prove the lone wail poster on the Palace Road, he has from the witness box deposed to the fact that he had seen "wall posters" being pasted on the Saturday, a week prior to the election.
Since he is the only witness who has been examined to prove the actual pasting of the wall poster and the appearance of the wail poster prior to the election, his deposition has to be scanned carefully.
He has stated that he resided in the 8th Division of the Mattancherry Assembly Constituency.
In examination inchief, he stated that he was a medical wholesale distributor.
He had also an occasion to see a copy of exhibit P 1.
It was given to him at his residence on the date previous to the election.
He has also named the appellant and M/s. M.K. Latif, Naveen Kumar, Radhakrishnan and others as being the persons who had brought the copy of exhibit P 1 to his residence.
Indeed he seems to be a very important man, since not only the workers of the appellant but the appellant himself had, according to him, gone to his residence specially to deliver a copy of exhibit P 1 to him.
Then he has deposed to the fact that he had seen copies of Exs.
P 14 and P 15 being pasted on the "wails" and not only one wail near the City Rationing Office on the Palace Road.
He admits that exhibit P 14 is the close up photo and exhibit P 15 is the distant photo of the same poster.
It is, therefore, difficult to understand how he could have seen both being pasted.
May that be as it is.
It has further to be remembered that both Exs.
P 14 and P 15 are the photographs of not only the wail poster but also of exhibit P 1 which was pasted by its side.
Because, he has gone on to say that he had seen "wall posters" being pasted on Saturday, one week prior to the election.
Since it is the case of the first respondent himself that exhibit P 1 was printed and pub lished only a day prior to the election, it is difficult to understand as to how this witness 764 could have seen the wall poster together with exhibit P 1 being pasted one week prior to the election.
He has then named Anil Raj, Joseph Katithara who is the election agent of the appellant, K.M. Mohammed, Radhakrishnan and other unnamed workers of the UDF being persons present to supervise the pasting of the wail posters. ' Thereafter, he has corrected himself by saying that at that time the "photo" of exhibit P 1 was not there, a statement difficult to follow.
According to him at the time he saw the pasting being done, his co worker was also there.
He has not named him nor is he examined.
It is then his case that on the day previous to the election, he also saw a copy of exhibit P 1 being pasted near the wall poster.
Of course, this witness has also deposed to the writings on walls which are Exs.
P 16, P 17 and P 18 with which we are not concerned in this appeal but about which the first respondent had made serious complaint in the petition before the High Court which has been rejected by the High Court.
He is thus a witness not only for the past ing of Exs.
P 14/P 15 on all the walls in the City but for a similar pasting of all other exhibits complained of.
An omnipresent witness indeed.
In cross examination he was asked whether he was not the Secretary of the Election Committee of the first respondent in Division No. 8 and also the branch Secretary of the Marxist Communist Party.
He denied the said suggestion and stated that he did not work in the election for the first respondent and that he had no politics and he was not a member or sympathizer of any political party.
He has also gone on to maintain that he had seen wail posters similar to exhibit P 14 in other places and has named some of the places as Anavadil, UCO Bank, Cherlai, Pandikuddy Junction.
He has then stated contrary to what he had stated in his examina tion in chief, that he had not seen the act of pasting of exhibit P 1 and he did not know who pasted exhibit P 1 near exhibit P 14 although in examination in chief he has categorically stated as follows: "On the day previous to the election I saw copy of exhibit P 1 being pasted near the wall poster.
Time and again, the courts have uttered a warning against the acceptance of a non corroborated oral testimony in an election matter because it is not only difficult to get a non partisan witness but is also easy to procure partisan witnesses in such disputes.
The courts have, there fore, insisted upon some contemporaneous documentary evi dence to corroborate the oral testimony when in particular such evidence could have been maintained.
The dangers of accepting only 765 the oral testimony are illustrated by this witness.
In the first instance, this witness was cited by the first respond ent himself to prove only Exs.
P 14/P 15 pasted on one wail, viz., the City Rationing Office wall on the Palace Road as has been stated clearly in paragraph 84 of the petition.
Even if we construe the said paragraph in the petition liberally, it can only mean that this witness was cited to prove the "wallposters" being pasted on the "walls" near the City Rationing Office on the Palace Road.
He was not cited to depose to posters on walls in any other part of the City.
Secondly, the petitioner has not produced any documentary evidence such as the photographs of the posters on the other walls even near the City Rationing Office not to speak of the walls in other parts of the City.
exhibit P 15 shows the long length of the wall.
But except for this poster there is no poster on any other part of that wall seen in the photograph.
Assuming that there were posters on the other walls, even near the City Rationing Office, we have no evidence in that behalf much less of the posters on the walls in the other parts of the City.
The witness has, however, chosen to depose to his having seen posters on walls in other pans of the City to which again there is no specific reference in the petition.
It was the duty of the petitioner to give the particulars of the posters on the other wails or in other parts of the City.
His testimony is also suspect for other reasons as well.
Firstly, this wit ness has also deposed to the fact that he had received a copy of exhibit P 1 on the day prior to the election and what is ' further, he has gone to the extent of saying that it was the appellant himself who along with his election agent and other workers had gone to his residence to deliver the said copy.
It is difficult to believe that on the day prior to the election the appellant and his election agent in partic ular, will have no other work but to go from house to house distributing exhibit P 1.
Secondly, the witness has also deposed to the fact that he had not only seen the wall poster, Exs.
P 14/P 15 but he had also seen other wall posters which were the subject matter of the petition.
What is further, according to him, he had also seen Exs.
P 14/P 15 being pasted in his presence by one, Anil Raj under the supervi sion of the appellant 's election agent Joseph Katithara and the workers of the UDF one week prior to the election.
We have pointed out above that in the petition there is no reference to the election agent in this connection anywhere and the reference to the Chief Agent cannot be construed as a reference to him.
What is further, he has also in his examinatiOn in chief gone to the extent of saying that even when exhibit P 1 was pasted near exhibit P 14, a day prior to the election, he had seen the actual pasting.
This, of course, he retracted in his cross examination when he stated that he had not seen the said act of pasting.
We have, therefore, a witness here who is 766 omnipresent at all crucial times and places and has no compunction in contradicting himself on vital matters.
It is this witness that we are asked to believe in support of the first respondent 's case that the wail poster Exs.
P 14/P 15 was pasted by the appellant 's agents and workers under the supervision of the appellant 's election agent.
Needless to say that his testimony has to be discarded being of a very doubtful nature.
The only other witness who is examined in connection with Exs.
P 14/P 15 is the photographer, K.J. Simon (PW 25).
Even according to this witness, he had taken the photo graphs, Exs.
P 14/ P 15 on March 25 and 26, 1987, i.e., two days after the election.
Therefore, even if we accept his evidence that he had taken the photographs in question on the said days, that will not support the first respondent 's case that the said posters were there prior to the election day.
The appellant 's cross examination of this witness was directed to prove that he had not taken the photographs even on 25th and 26th March, 1987 but at a much later date and just prior to the filing of the present election petition.
The appellant 's case both in his written statement as well as in the Court is that the wall poster of which Exs.
P 14 and P 15 are the photographs was concocted much after the election and only for the purpose of the election petition.
It is in the light of this case of the appellant that we have to scrutinise the testimony of this witness.
The wit ness says that exhibit P 14 is the chose up photograph of the wail writing near the City Rationing Office and exhibit P 15 is its long distance view and that he had taken the photographs in question on March 25 and 26, 1987.
In cross examination, he was asked whether since he was a professional photogra pher and had his studio, he kept accounts.
His answer was that he kept accounts only for the indoorwork and not for the out door work an answer which is very difficult to appreciate.
The answer was given obviously to forestall the further investigation in the matter by compelling him to produce his accountbooks which would have shown the date on which he had actually taken the photographs.
He was then asked as to how he had remembered the dates on which he had taken the photographs of various other posters including Exs.
P 14/P 15.
To that he replied that he had given the dates of the photographs from his memory.
To test his memo ry, he was asked that since he was also taking photographs of marriage ceremonies which were on an average three or four times in a month, he could give the dates on which he had taken photographs in connection with some of the mar riages.
To that question, of course, he answered in the negative.
This witness, further, who was called only to depose to the fact that he had taken the photographs in question, has 767 gone further and stated that all the wall writings and wall posters appeared to him to be old and he had "seen them earlier".
According to him, further, they were written even two days prior to the date of election.
He also goes on to say that exhibit P 1 was seen by him on the day prior to the election.
Although he stated that he was paid Rs.800 for the photographs and Rs.1,000 for copies thereof, he did not enter the amounts in his accounts.
He stated that he had a Bank account but he did not remit the amount to the Bank.
He then stated that in his studio there would be no record to show that the photographs were taken.
He also stated that he had not given any receipt for receiving the payment.
It was then suggested to him that he was a sympathizer of the Marxist Party which suggestion, of course, he denied.
His testimony not only fails to impress us, but leads us to believe that there is much force in the contention of the appellant that the poster in question was concocted at a later day.
For otherwise it is difficult to explain as to why the witness who in the ordinary course should maintain his accounts and other documents should keep them from the court on pretexts which are not only far from convincing but positively doubtful.
There is yet another and a very important reason as to why the entire version with regard to Exs.
P 14/P 15 has to be rejected.
The first respondent has come to the court with a version that the wall poster and such other posters were pasted on walls in the different parts of the constitu ency at least a week prior to the election.
Admittedly, such false propaganda is an electoral offence punishable both under Section 127A of the Act and Section 17 I C of the Indian Penal Code.
The first respondent or his agents and workers could have made complaints both to the Election Officer as well as to the police in that connection immedi ately, and a regular panchnama of the same could also have been made at the time.
That would have been the best evi dence of the said allegation.
We have no doubt that the first respondent and his workers would not have failed to do so had the posters been pasted at the time alleged by them.
We are, therefore, impelled to reject the evidence produced by the first respondent in connection with the publication of the wallposter represented by Exs.
P 14/P 15.
In the circumstances, the finding of the High Court in respect of both the alleged corrupt practices will have to be set aside and 768 is hereby set aside.
Hence, we allow the appeal, set aside the order of the High Court and dismiss the election peti tion.
Interim order passed by this Court also stands vacat ed.
In the circumstances of the case, the parties will bear their own costs.
The Registry will take immediate action under Section 116C (2) of the Act.
G N. Appeal al lowed.
| IN-Abs | In the 1987 election to Kerala Legislative Assembly the appellant contested against the first respondent.
The appellant and respondents belonged to two different fronts, each consisting of several political parties.
The appellant was declared elected, by a margin of 1873 votes over his nearest rival, the first respondent.
The first respondent filed an election petition in the High Court claiming that the appellant 's election was void and that he should be declared elected in place of the appellant.
In support of his contention, he alleged various corrupt practices on the part of the appellant.
The High Court negatived all except two of the allegations, viz., (i) printing and publication on March 22, 1987, a day prior to the election, pamphlets containing a news item in daily "Malayala Manorama" dated May 22, 1983, and (ii) publication of a wail poster, maligning the 720 personal character and conduct of the first respondent.
The High Court held that both the said acts amounted to corrupt practices within the meaning of Section 123(4) of the Representation of People Act, 1951 and were sufficient to void the election.
This appeal under section 116A of the Representation of People Act, is against the High Court 's judgment.
Allowing the appeal, this court, HELD: 1.1.
As regards the pamphlets, the first respond ent in his election petition had relied upon an innuendo, and the innuendo was based upon the fact that, firstly, he was a Marxist leader and, secondly, he was arrested for harbouring the murderers.
However, in the election petition, no averment was made that it was because he was a Marxist leader and was also arrested for harbouring the murderers that the electorate was likely to construe the said two statements as accusing him as the murderer.
No facts were pleaded in the Election Petition whereby the electorate would gather an impression that the first respondent was the murderer of the said four victims.
[733B C; 746 E F] 1.2.
Barring his own testimony, all other evidence led by the first respondent is also totally silent on this aspect of the matter.
None of his witnesses has stated anywhere that the contents of the pamphlet had made out the first respondent as the murderer of the four victims or even that they were capable of doing so.
On the other hand, all his witnesses without exception are unanimous that after reading the pamphlet the impression it created on them was that it referred to an incident which had taken place on the previous day or to an earlier incident and nothing more.
None of the witnesses has stated that the said pamphlet even remotely connected the first respondent with the murders.
The impression conveyed by the document that the Marxists or Communists were murderers and therefore the electorate should not vote for them and hence it was unfavourable to the first respondent, was not an impression about his per sonal character/ conduct.
It was an impression at best about his political character/ conduct.
In particular there was no impression that he was the murderer or one of the murderers.
Although the first respondent has also added at the end that many persons who gathered such an impression, viz., that he was meant by the publication, had contacted him over phone, he admitted that he did not examine anyone from among the said persons.
This is a telling circumstance against him because he had 721 followed as a witness after all his witnesses were examined, and he knew that none of his witnesses had stated that they had connected the imputations in the publication with him.
On the other hand, as stated earlier, not only all his witnesses had stated that they had gathered the impression that the incident had taken place the previous day but he himself was of the view that the publication was meant to create such impression and that it did so.
Hence, there was no reason for the electorate to connect him with the said incident even remotely.
On his own testimony as well as on the testimony of his witnesses, therefore, it is clear that the publication was intended to create an impression and did create an impression that the incident of murders had taken place a day previous to the election.
If that is so, then the publication and the two allegedly offending statements in the same did not connect him with the murders much less had they called him a murderer.
Even his arrest for harbour ing the accused in the old incident of murders was not capable of identifying him as the murderer in the eyes of the people.
None knew who were the accused and who were arrested in connection with the murders which were committed the previous day.
The people, however, certainly knew that the first respondent was not arrested in connection with the said murders.
Hence the extrinsic facts which the first respondent stated in his testimony for the first time even if they were given in the pleadings would not have spelt out the corrupt practice.
For those facts in the face of the assertion of the first respondent himself were incapable of identifying him as the murderer in the eyes of the elector ate.
For these reasons, the extrinsic facts given for the first time by the first respondent in his testimony were incapable of identifying him as the hand behind the murders or as the murderer in the eyes of the people.
[746F H; 751A B; 755D H; 756A B] 1.3.
In the absence of the extrinsic facts supporting the innuendo meaning of the publication, the petition lacked the statement of material facts for spelling out the corrupt practice complained of.
Either, therefore, the allegation of the corrupt practice should have been struck off or the petitioner ought not to have been allowed to lead evidence in support of it.
[756C] 2.1.
Where the defamatory words complained of are not defamatory in the natural or ordinary meaning, or in other words, they are not defamatory per se but are defamatory because of certain special or extrinsic facts which are in the knowledge of particular persons to whom they are ad dressed, such innuendo meaning has to be pleaded and proved specifically by giving the particulars of the said extrinsic facts.
It is immaterial in such cases as to whether the action is for 722 defamation or for corrupt practice in an election matter, for in both cases it is the words complained of together with the extrinsic facts which constitute the cause of action.
It is true that Section 123(4) of the Act states that the statement of fact in question must be "reasonably calculated to prejudice the prospects" of the complaining candidate 's election.
However, unless it is established that the words complained of were capable of being construed as referring to the personal character or conduct of the candi date because of some specific extrinsic facts or circum stances which are pleaded and proved, it is not possible to hold that they were reasonably calculated to prejudice his prospects in the elections.
For, in the absence of the knowledge of the special facts on the part of the elector ate, the words complained of cannot be held to be reasonably calculated to prejudice such prospects.
Once, however, it is proved by laying the foundation of facts that the words in question were, by virtue of the knowledge of the special facts, likely to be construed by the electorate as referring to the personal character or conduct of the complaining candidate, it may not further be necessary to prove that in fact the electorate had understood them to be so.
That is because all that Section 123(4) requires is that the person publishing the complaining words must have intended and reasonably calculated to affect the prospects of the com plaining candidate in the election.
[745E H; 746A B] 2.2.
Whenever an innuendo is alleged, a statement of material facts as required by Section 83(i)(a) of the Act is not complete without stating the extrinsic facts spelling out the innuendo meaning.
It is the publication together with the extrinsic facts which in such circumstances consti tute the corrupt practice.
The absence of the statement of such facts is not an absence of the particulars of corrupt practice but an absence of the averment of material facts themselves.
Sheopat Singh vs Ram Pratap, ; ; Kumara Nand vs Brijmohan Lal Sharma, ; ; Habib Bhai vs Pyarelal & Ors., AIR 1964 MP 62; Manmohan Kalia vs Yash & Ors.
, ; ; W. Hay & Ors.
vs Aswini Kumar Saman ta, AIR 1958 Cal. 269; Hough vs London Express Newspaper Ltd., ; Fullam vs Newscastle Chronicle and Journal Ltd. & Anr., ; Cassidy vs Daily Mirror Newspapers, ; Nevill vs Fine Art and General Insurance Co. Ltd., and Capital and Counties Bank Ltd. vs George Henty & Sons, , referred to.
Halsbury 's Laws of England, Vol. 28, 4th Edn. paras 174 178; Gatley on Libel and Slander, 8th Edn.
paragraph 95; Street on Torts, 723 6th Edn., p. 294 and Duncan & Neil on Defamation, [1978] Edn., p. 17, referred to.
Both, for libel action as well as for an allegation of corrupt practice in an election petition, it is necessary to plead as well as to prove the extrinsic facts to spell out the innuendo meaning of the words complained of.
Howev er, whereas in a libel action it may further be necessary to prove that those with special knowledge of the extrinsic facts were likely to interpret or understand the words complained of in a defamatory sense, in an election action, it may not be necessary to do so and all that is necessary is to prove that the words complained of were reasonably calculated to prejudice the prospects of the defamed candi date 's election.
However, this latter distinction does not obliterate the similarity between the two actions viz., that in each case in the first instance the defamation is to be spelt out by pleading the necessary extrinsic facts.
In a libel action, the extrinsic facts constitute a cause of action whereas in the election action they constitute the corrupt practice.
In other words, without them, there is no cause of action in the libel suit and no allegation of corrupt practice in an election petition.
[756F H; 757A] 4.1.
As regards the wail posters in which the first respondent was described as a murderer and it is stated that hence he should be defeated, the first respondent in his petition has stated generally that it was the appellant, his agents and his workers who had pasted the wallposters.
He has not specified any wail or wails on which the poster was pasted.
He has not mentioned either the agent or the elec tion agent nor did he state that the pasting was done with the knowledge and consent of the election agent.
It is important to note that he mentioned the pasting of the poster only on one wail, though there was a vague reference to "walls".
[761F H; 765B] 4.2.
Time and again, the courts have uttered a warning against the acceptance of a non corroborted oral testimony in an election matter because it is not only difficult to get a non partisan witness but is also easy to procure partisan witnesses in such disputes.
The courts have, there fore, insisted upon some contemporaneous documentary evi dence to corroborate the oral testimony when in particular such evidence could have been maintained.
Such a danger is illustrated by the testimony of PW. 25 in the instant case.
It is not only contradictory, and fails to impress this court but also leads to the belief that there is much force in the contention of the appellant that the poster in ques tion was concocted at a later day.
It is difficult to ex plain as to why the witness a 724 professional photographer who in the ordinary course should maintain his accounts and other documents should keep them off from the court on pretexts which are not only far from convincing but positively doubtful.
Although he stated that he was paid Rs.8,00 for the photographs and Rs.1,000 for copies thereof, he did not enter the amounts in his ac counts.
He stated that he had a Bank account but he did not remit the amount to the Bank.
He then stated that in his studio there would be no record to show that the photographs were taken.
He also stated that he had not given any receipt for receiving the payment.
[764G H; 767A D] 4.3. "Election agent" as defined in Section 40 of the Act is accorded a special status of almost an alter ego of the candidate so much so that whatever is done by the elec tion agent or with his consent is deemed to have been done by the candidate himself whether it is with the candidate 's consent or not.
He is empowered to discharge almost all the functions that a Candidate can himself perform.
1729E FI 4.4.
It was alleged that the wall poster was written at the specific instructions of the Chief Agent and the Conven or.
It was not specified who the Chief Agent and the Conven or of the Election Committee were.
The argument that the expression "Chief Agent" should be construed to mean elec tion agent, cannot be accepted since the pleadings with regard to corrupt practice have to be specific since every one who is guilty of the corrupt practice is liable to be prosecuted for the offence.
And except in one place, there is no reference to any such person as Chief Agent.
Wherever the first respondent wanted to refer to the election agent, he has done so.
It cannot, therefore, be said that he did not know the difference between the election agent and the Chief Agent.
[762B E] 4.5.
The first respondent has come to the court with a version that the wail poster and such other posters were pasted on wails in the different parts of the constituency at least a week prior to the election.
Admittedly, such false propaganda is an electoral offence punishable both under Section 127A of the Act and Section 171 C of the Indian Penal Code.
The first respondent or his agents and workers could have made complaints both to the Election Officer as well as to the police in that connection immedi ately, and a regular panchnama of the same could ,also have been made at the time.
That would have been the best evi dence of the said allegation.
The first respondent and his workers would not have failed to do so had the posters been pasted at the time alleged by them.
[767E F] 725
|
ivil Appeal No. 4055 of 1987.
From the Judgment and Order dated 11.8.1987 of the Punjab and Haryana High Court in R.S.A. No. 2092 of 1987.
C.M. Nayar for the Appellants.
R.P. Agarwal and U.S. Prasad for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
This appeal of the State of Punjab by special leave arises out of a suit filed by the respondent, Nachhat tar Singh.
The plaintiff respondent was serving the State Police as a constable when an incident took place on 17.2.1971, which led to the prosecution of the plaintiff along with the Head Constable Kahan Singh and the Sub Inspector Baldev Singh.
The charge made against the plaintiff was that he physically assaulted and detained one Gurdial Singh.
The accused were tried and Baldev Singh was acquitted.
So far the plaintiff and Kahan Singh were concerned, they were found guilty under section 325 read with section 34 of the Indian Penal Code and several other sections, and were sentenced to rigorous imprisonment for six months each.
The conviction was maintained up to the Supreme Court stage.
The Senior Superintendent of Police, Patiala, thereafter dismissed the plaintiff on 20.4.1976.
This order of dismiss al was challenged as illegal in the present suit which was instituted on 6.11.1982.
Besides taking several technical objections, the suit was defended on merits, as well as on the ground of limita tion.
From the judgment of the trial court it appears that only two questions were pressed by the parties, namely, whether the suit was barred by limitation and whether the order of dismissal was illegal on the ground that the plain tiff was not served with a show cause notice before the impugned order was passed.
Both the issues were decided by the learned 824 Subordinate Judge against the plaintiff and the suit was accordingly dismissed.
The plaintiff appealed against the decision.
It appears that before the Additional District Judge, who heard the appeal, it was contended on behalf of the plaintiff that the other accused constable Kahan Singh, who was also con victed with the plaintiff, had also filed a separate suit against his dismissal from service, which was decreed with an observation that it was open to the competent authorities to pass fresh order of punishment in accordance with law, but while no further punishment was awarded to Kahan Singh, the respondent 's service stands terminated.
A plea of dis crimination was taken on this basis which was accepted by the first appellate court and the suit was decreed.
On the question of limitation the court after a very brief discus sion in the judgment held that the impugned order of dis missal was void on the ground of arbitrariness and, there fore, the bar of limitation would not apply.
It was further observed that this decision would not preclude the authority to award a minor punishment, provided such a punishment has been awarded to the other police officials tried and con victed along with him.
The authority was also permitted to take a decision in regard to the pay and allowance for the period the plaintiff remained out of service because of his being in jail.
The defendant appellants filed a regular second appeal before the High Court against the decree of the first appellate court which was dismissed at the admission stage by merely saving: "HEARD.
DISMISSED" It has been contended on behalf of the appellants, and in our view correctly, that serious questions of law are in volved in this case and the High Court erred in dismissing the second appeal in limine.
It has been argued that Rule 16.2(2) of the Punjab Police Rules, 1934 mandatorily directs that a police officer judicially sentenced to rigorous imprisonment exceeding one month shall be dismissed, and this mandate of law cannot be ignored on the ground that in the case of another member of the police force a mistake was committed.
Besides, it has been asserted on oath before this Court and not denied by the respondent that the aforesaid Kahan Singh had to be re instated in service for a short time in pursuance of the decision in the suit as the order of his dismissal had been passed by an authority not compe tent in this regard, and that later he was again dismissed.
It has also been pointed out that another convicted consta ble Surinder Singh was given the 825 benefit of probation by the criminal court and his case, therefore, is distinguishable.
Even in the concluding por tion of the last paragraph of the judgment of the Additional District Judge, the possibility that "the other police officials convicted with him" (that is, the plaintiff) might have been later punished, is recognised.
It has been further urged on behalf of the appellants that the finding of the Additional District Judge on the question of limitation is patently illegal inasmuch as the judgment assumes that no law of limitation is applicable to suits where an order is impugned as being void.
The High Court should have examined the plaint for finding out the cause of action for the suit and then in that light deter mined the correct article of the Limitation Act applicable to the case.
Serious objection has been taken against the observations of the first appellate court permitting the competent authority to inflict only minor punishment on the plaintiff in certain conditions, and the direction about the payment of the salary and the other emoluments.
After heat ing the learned counsel for the parties, we agree with the appellants that the question involved in this suit should not have been lightly brushed aside by the High Court in the manner it has been done.
We, therefore, set aside the judg ment of the High Court and remit the case to it for fresh disposal in accordance with law.
It will be open to the appellants to file an application for admitting additional evidence in regard to the further orders passed against Kahan Singh subsequent to the civil court 's decree in his favour, and to argue before the High Court that the case of the present plaintiff is distinguishable.
The High Court should call for the records and decide the case finally at the motion stage itself as the case is an old one.
In the event of admission of fresh evidence, the High Court shall permit the plaintiff to file relevant rebutting evidence.
The operation of the decree of the first appellate court shall remain stayed till the final disposal of the second appeal by the High Court.
The appeal is accordingly allowed.
There will be no order as to costs.
T.N.A. Appeal allowed.
| IN-Abs | The respondent, a constable, convicted under sections 325/34 of the Indian Penal Code along with another co ac cused constable and dismissed from service, filed a suit challenging his dismissal, which was dismissed by the trial court holding that it was barred by limitation.
On appeal the First Appellate Court decreed his suit by holding that the respondent plaintiff was discriminated because his co accused was re instated in service pursuant to the decision in the suit filed by the co accused; his dismissal was void on the ground of arbitrariness, and the bar of limitation was not applicable.
The defendant appellant filed a regular second appeal against the aforesaid decree before the High Court which was dismissed in limine.
In the appeal to this Court it was contended on behalf of the appellant that the High Court erred in dismissing the second appeal in limine.
Allowing the appeal, this Court, HELD: 1.
Serious questions of law are involved in this case and they should not have been lightly brushed aside by the High Court in the manner it has been done.
Therefore the High Court erred in dismissing the second appeal in limine.
[824F; 825D] 2.
Rule 16.2 (2) of the Punjab Police Rules, 1934 manda torily directs that a police officer judicially sentenced to rigorous imprisonment exceeding one month shall be dis missed, and this mandate of law 823 cannot be ignored on the ground that in the case of another member of the police force a mistake was committed.
[824F] 3.
The appellant 's assertion that the respondent 's co accused who was .reinstated in service pursuant to the Court 's decision was subsequently dismissed has not been denied by the respondent.
The case is, therefore, remitted to the High Court for fresh disposal.
[824G; 825D]
|
vl Appeal Nos. 17 and 18 of 1989.
From the Judgment and Order dated 3.10.1988 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal Nos.
E/2 123 of 1987 C and E/2 124 of 1987 C in Order Nos. 738 and 739 of 1988 C, K. Parasaran, V. Balachandran and M.V. Madhava Rao for the Appellant.
Ashok H. Desai, Solicitor General, Ms. Indu Malhotra and P. Parmeshwaran for the Respondents.
These are two appeals under section 35 L of the (hereinafter referred to as 'the Act ') They arise out of the claim of M/s Rohit Pulp and Paper Mills Ltd. (hereinafter referred to as 'the assessee ') for partial exemption from excise duty in respect of the art paper and chromo paper manufactured by it.
The assessee is having a factory at Khadki in which different varieties of paper and paper boards are manufac tured.
The factory does not have a bamboo pulp plant.
It uses waste paper and cereal straw which are considered to be unconventional raw materials for the manufacture of paper and paper board.
The pulp used by the assessee contains more than 50% by weight of pulp made from these unconventional raw materials. 'Paper and paper board ' are goods falling under item 17(1) of the first schedule to the Act.
Two notifications were issued on 1st March, 1984 under rule 8(1) of the Cen tral Excises Rules, 1944 in respect of the above item.
The first of them, being notification No. 24 of 1984, restricted the excise duty on items falling under the aforesaid item in the manner following: 802 section No. Description Rate 1.
Printing and writing paper.
Ten per cent ad valorem paper plus one thousand rupees per metric tonnes.
All sorts of paper commonly Ten per cent ad valorem known as kraft paper (inclu plus one thousand three ding paper and paper boards hundred and eighty five of the type known as kraft rupees per metric tonne.
liner or corrugating medium) of a substance equal to or exceeding 65 grammes per sq. metre 3.
Paper board of the following Ten per cent ad valorem varieties, namely, pulp board plus one thousand eight duplex board and triplex board.
hundred and ten rupees per metric tonne.
Paper and paper boards, other Ten per cent ad valorem than those specified in S.Nos.
plus one thousand four 1 to 3. hundred and thirty rupees per metric tonne.
The second notification, notification No. 25 of 1984, is the one with which we are directly concerned here.
It pro vides for a concession in respect of paper and paper boards falling under item 17(1) of the Schedule, manufactured out of pulp containing not less than 50 per cent by weight of pulp made from materials (other than bamboo, hardwoods, softwoods, reeds or rags) and cleared on or after the 1st day of April in any financial year.
The concessional rates prescribed were as below: section No. Description Rate Conditions 1.
(i) Printing and wri Rs.450 per provided that the ting paper metric tonne total quantity of clearances, if any, of all vari (ii) All sorts of paper Rs.450 per eties of paper and commonly known as metric tonne paper boards in the kraft paper (inclu preceding financial ding paper & paper year, by or on be boards of the type half of a manufac known as kraft liners turer, from one or or corrugating medium) more factories, or of a substance equal to from a factory by or exceeding 65 grammes or on behalf of one per square metre.
or more manufactu rers did not exce ed 3,000 metric tonnes.
803 (iii) Others Rs.560 per metric tonne.
(i) Printing and writing Rs.730 per Provided that the writing paper metric tonne.
total quantity of clearances of all varieties of paper (ii) All sorts of papers Rs.730 per & paper boards in commonly known as metric tonne.
the preceding fin kraft paper (including ancial year, by or paper and paper boards on behalf of a ma of the type known as nufacture, from kraft liners or corru one or more facto gating medium) of a ries or from a substance equal to or factory by or on exceeding 65 grammes behalf of one or per square metre.
more manufacturers , exceedings 3,000 metric tonnes but did not exceed 7,500 metric ton nes.
(iii) Others Rs.900 per metric tonne.
(i) Printing and Rs.900 per Provided that the writing paper metric tonne.
total quantity of clearances of all (ii) All sorts of Rs.900 per varieties of paper paper common metric tonne.
& paper boards in ly known as the preceding fin Kraft paper & nancial year, by (including pa or on behalf of a per & paper manufacturer, from boards of the one or more facto type known as kraft ries or from a fa liners or corruga ctory or on behalf ting medium) of a of one or more substance equal to manufacturers, ex or exceeding 65 gram ceeding 7,500 met mes per square metre.
tric tonne but did not exceed 16,500 metric tonnes: (iii) Others Rs.1.120 per metric tonne.
804 4.
[This para, added by notification No. 92/84 dated 18.4.84 added another concessional rate where the clearances exceed ed 10,500 but did not exceed 24,000 metric tonnes on the same lines as above but this does not need to be set out here]" The grant of the above concessional rates were, however, subject to certain important conditions set out in the provisoes to the notification.
These provisoes read: "Provided that the factory does not have a plant attached thereto for making bamboo or wood pulp.
Provided further that the exemption contained in this notification shall not apply to cigarette tissue, glassing paper, grease proof paper, coated paper (including waxed paper) and paper of a substance not exceeding 25 grammes per square metre.
" Another notification No. 45 of 1985 dated 17.3.1985 has been relied upon in support of the contention of the Union of India and hence this may also be set out here.
It pre scribed rates on paper and paper board falling under item 17(1) in the following manner: section No. Description Rate 1.
Printing and writing paper (i) coated paper Ten percent ad valorem plus one thousand five hundred and five rupees per metric tonne.
(ii) of a substance not ex Ten percent ad valorem ceeding 25 grammes per plus one thousand five square metre hundred and five rupees per metric tonne.
(iii) Others Ten percent ad valorem plus one thousand five hundred and five rupees per metric tonne.
All sorts of paper com Ten percent ad valorem monly known as kraft plus one thousand five paper (including paper hundred and eighty five and paper boards of the rupees per metric type known as kraft liner tonne.
or corrugating medium) of a substance equal to or exceeding 65 grammes per square metre.
805 3.
Coated paper (including Ten percent ad valorem waxed paper) and paper of plus one thousand nine a substance not exceeding hundred and thirty 25 grammes per square rupees per metric metre (other than those tonne.
specified in Sl.
No.1) 4.
Glassine paper, cigarette Ten percent ad valorem tissue and grease proof plus one thousand nine paper.
hundred and thirty rupees per metric tonne 5.
Paper board of the follow Ten percent ad valorem ing varieties, namely, pulp plus one thousand eight board, duplex board and hundred and ten rupees triplex board.
per metric tonne.
Paper and boards, other Ten percent ad valorem than those specified in plus one thousand four Sl.
No.1 to 5.
hundred and thirty rupees per metric tonne The assessee seems initially to have paid excise duty on the goods manufactured by it in terms of notification No. 24/84 but later seems to have thought of claiming the con cessional rates prescribed by notification No. 25/84.
The company was manufacturing art paper and chromo paper.
It is common ground that these two types of paper fall under category "printing and writing paper".
It is also common ground that these two articles also fall under the descrip tion "coated paper" used in the second proviso.
Since coated paper is taken by the proviso out of the purview of the notification No. 25 of 1984, the Excise Department refused to permit the assessee to avail of this concession in re spect of its manufactured goods.
This treatment by the Excise Department has also been confirmed by the Central Excise and Gold Control Appellate Tribunal (CEGAT).
The Tribunal disposed of the matter very briefly.
It observed: 806 "37.
That brings us to the second question whether art paper and chromo paper were eligible for the exemption granted under notification No. 25 of 1984.
We have carefully consid ered arguments of the appellants.
We have perused the noti fication No. 24 of 1984 as amended and note that the second proviso excludes from the exemption, among others, coated paper (including waxed paper).
There is no denial that art paper and chromo paper are coated papers.
It may be correct that these are not, like other papers mentioned in second proviso, industrial varieties of papers and are writing and printing varieties.
All the same when the proviso, as it is worded, is clear there is no warrant for us to supply words to the proviso to the notification.
We, therefore, find against the appellants in this regard and hold that art and chromo paper would not be eligible for exemption under notification No. 25 of 1984." (emphasis added) The assessee is aggrieved by this order of the Tribunal and hence the present appeals.
Sri K. Parasaran, appearing for the appellant, raises an ingenious contention.
He urges that though the expression 'coated paper ' has generally a wide connotation and includes coated papers of all varieties, it should be given a re stricted meaning in the context in which it appears in the proviso.
It is submitted that in the paper business, paper is broadly of two varieties, "industrial paper" and "cultur al paper".
Paper used for printing or writing is treated as cultural paper.
On the other hand, industrial paper is paper which is used for various purposes which may be broadly described as industrial purposes, such as wrapping, packing sanitary use and the like.
It is submitted that though the notification intended to grant a concession.
to small facto ries manufacturing paper out of unconventional raw material.
it was decided to deny the concession to certain kinds of paper.
These exceptions have been set out in the proviso.
They are: (1) cigarette tissue, (2) glassing paper, (3)grease proof paper, (4) coated paper (including waxed paper), and (5) paper of substance not exceeding 25 gm.
per square metre in weight (which may be compendiously described as light paper).
It is argued that a common strain runs through all these five categories.
The first three varie ties, namely, cigarette tissue, glassing paper and grease proof paper admittedly fall under the category of industrial paper.
Likewise, paper of a substance not exceeding 25 gm.
per square metre in weight is invariably used for 807 industrial purposes and this is so found by the Tribunal.
The word 'coated paper ', it is urged, must be read in this context.
Since the other items set out in the proviso are items of industrial paper, it stands to reason that though 'coated paper ', in a wider sense, may include all categories of coated paper, the denial of concession by the proviso is to be restricted only to coated paper falling under the industrial variety.
In other words, it is submitted that the word 'coated paper ' should be interpreted by applying the principle of "Noscitur A Sociis" or on the analogy of the "Ejusdem generis" principle.
This contention, it is submit ted, is re inforced by two considerations.
The first is that the Government must have had some idea or principle in putting together the exceptions and there is no conveivable principle other than the one enunciated.
The second consid eration is the addition of the words used in parenthesis along with 'coated paper ' viz. "(including waxed paper)".
It is pointed out that waxed paper obviously means coated paper because waxed paper is nothing but paper coated with wax and would have anyhow been covered by the exception.
Neverthe less, it was considered necessary, it is said, to specifi cally include it in order to make it clear by this illustra tion that only industrial paper like waxed paper is taken out from the concession.
The words in parenthesis are, in other words, the words illustrative of the limitation to be read into the expression 'coated paper '.
It is finally argued that, even if the words of the proviso are capable of being construed in a wider manner so as to deny exemption to all kinds of coated paper, the Court should apply the well established principle of construction of taxing statutes that an ambiguous provision should be interpreted in favour of the subject.
On the other hand, the learned Solicitor General submits that if there are two possible views of the proviso, the Court should not interfere with the conclusion reached by the Tribunal which reflects one of two possible and plausi ble views.
On the interpretation of the proviso, the Solici tor General submits that there is no principle of interpre tation by which the plain and natural meaning of the word 'coated paper ' can be abridged nor, he says, is there any thing in the context to warrant such a limitation.
He re futes the suggestion that, in commercial parlance, there is a clear cut distinction between industrial and cultural paper.
He does not agree that light paper can only be indus trial paper and refers to the terms of the 1985 notification in support.
He points out that if coated paper meant only industrial paper, as contended for by the assessee, the expression in parenthesis was totally unnecessary.
He submits that there is a distinction between coated paper and impregnated paper.
As waxed paper could fall under 808 either of these categories, there was a possibility of some one contending that paper impregnated with wax is not 'coated paper '; that is why it became necessary to add the parenthesis to clarify that both kinds will be 'coated paper ' for the purposes of the proviso.
He submits for these reasons that the view taken by the Tribunal was the correct one and that the appeals should be dismissed.
We have considered the contentions urged on both sides and we have come to the conclusion that there is force in the appellant 's contentions.
All the three notifications we have extracted above draw a distinction between printing and writing paper on the one hand and other types of paper on the other.
They also show that the duty on printing and writing paper is generally less than that on the other varieties of paper.
Though paper can be classified into various varieties, it does appear that one such classifica tion is between industrial paper and cultural paper.
"The Dictionary of Paper" published by the American Paper and Pulp Association (Second Edition) contains the following definition: Industrial Papers A very general term which is used for to indicate papers manufactured for industrial uses as opposed to those for cultural purposes.
Thus, building papers, insulative papers, matching paper etc. would be considered industrial papers whereas writing and printing papers would be cultural papers.
Now the proviso denies the concession extended by notifica tion No. 25/84 to certain types of papers.
It is true that no meticulous reasons can always be made available or dis covered for variations in rates of duty as between various types of goods and the absence of some common thread in relation to a set of goods treated alike may not necessarily render the classification irrational or arbitrary.
But, at the same time, one can legitimately postulate that the denial of a concession to a group proceeds on the basis of some aspect or feature common to all items in the group.
If such a principle can be conceived of which would rationalise the inclusion of all the items, it would be quite reasonable and proper to give effect to a construction of the notifica tion as will accord with that principle.
It is this which the appellant has attempted to do and we are reclined to think that the ratiocination of the exceptions suggested, far from being artificial or far fetched, is a plausible and likely one that the Government could have had in mind and that it should be accepted.
809 As mentioned earlier, the concession of the notification is denied to five kinds of paper.
Three of them, undoubtedly and indisputably, are varieties of industrial paper.
This is indeed common ground and it has also been supported by reference to the definitions in the Dictionary of Paper and elsewhere which it is unnecessary to set out here.
The fourth is what we have referred to as 'light paper ' not exceeding a particular weight.
On behalf of the assessee, it is contended that this is also only industrial paper.
In support of this contention, reference is invited to the tables appended to the Dictionary of Paper which indicate that there cannot be printing and writing paper of weight less than 26 gms per sq.
metre.
It is also pointed out that the Tribunal has also given a finding to this effect in para 37 of its order.
The learned Solicitor General, on the other hand, points out that section No. 1 (ii) of the 1985 notification itself clearly shows that there can be "printing and writing paper of a substance not exceeding 25 gramms per sq. metre".
On behalf of the assessee, on instructions, it is submitted that this classification proceeds on a totally unreal basis and that there is no such printing and writing paper in existence.
We cannot, however, assume that the 1985 notifi cation proceeds on an erroneous basis.
1t is sufficient for our purposes to take it, on the basis of the record in this case, that light paper is, by and large, industrial paper without altogether excluding all possibility that it is used occasionally for cultural purposes also.
The classification set out in the 1985 notifications also lends some support to the contentions urged.
The five varieties of paper we are concerned with are found in serial Nos. 3 and 4 of this notification and serial Nos. 1 and 3 reflect a contrast between coated paper and light paper used for cultural purposes (item No. 1) and that used for other (industrial) purposes (item No. 4).
On this basis, then, it is clear that tour out of the five varieties of paper which are denied the benefit of the concession seem to constitute industrial paper.
In fact even if, as urged for the Union of India, only three of ' these items are of the industrial variety while the other two could be either, it will not still be unreasonable (though, may be, a little less plausible) to draw an inference that only industrial paper failing in those two categories are intended to be comprehended in the classification rather than assume, for no detectable reason, that all paper of these two varieties alone are excluded from the concession.
We think, therefore, that the appel lants are on firm ground in submitting that the expression 'coated paper ' in the proviso should draw colour from the context in which it is employed and receive an interpreta tion consistent therewith than its literal one, which in its widest sense, may be comprehensive enough to include all coated paper, industrial or otherwise.
810 The principle of statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established.
In the context with which we are concerned, we can legitimately draw upon the "nosci tur a sociis" principle.
This expression simply means that "the meaning of a word is to be judged by the company it keeps.
" Gajendragadkar, J. explained the scope of the rule in State vs Hospital Mazdoor Sabha, ; in the following words: "This rule, according to Maxwell, means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense.
They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general.
The same rule is thus inter preted in "Words and Phrases" (Vo.
XIV, p. 207): "Associated words take their meaning from one another under the doctrine of nosciture a sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim Ejusdem Generis.
" In fact the letter maxim "is only an illustration or specific application of the broader maxim noscitur a sociis".
The argument is that certain essential features or attributes are invariably associated with the words "business and trade" as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition though their normal import may be much wider.
We are not impressed by this argument.
It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider.
It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied.
It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the Legislature in using wider words is clear and free of ambiguity, the rule of construc tion in question cannot be pressed into service.
" 811 This principle has been applied in a number of contexts in judicial decisions where the Court is clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used.
The cases are too numerous to need discussion here.
It should be sufficient to refer to one of them by way of illustration.
In Rainbow Steels Ltd. vs C.S.T., ; this Court had to understand the meaning of the word 'old ' in the context of an entry in a taxing tariff which read thus: "Old, discarded, unserviceable or absolute machinery, stores or vehicles including waste products . . " Though the tariff item started with the use of the wide word 'old ', the Court came to the conclusion that "in order to fall within the expression 'old machinery ' occurring in the entry, the machinery must be old machinery in the sense that it has become non functional or nonusable".
In other words, not the mere age of the machinery, which would be relevant in the wider sense, but the condition of the machinery analogous to that indicated by the words following it, was considered relevant for the purposes of the statute.
The maxim of noscitur a sociis has been described by Diplock, C.J. as a "treacherous one unless one knows "the socictas to which the socii belong" (vide: Letang vs Coopex, ; The learned Solicitor General also warns that one should not be carried away by labels and Latin maxims when the word to be interpreted is clear and has a wide meaning.
We entirely agree that these maxims and prece dents are not to be mechanically applied; they are of as sistance only in so far as they furnish guidance by compen diously summing up principles based on rules of common sense and logic.
As explained in Collector of Central Excise vs Parle Exports (P) Ltd.; , at p. 357 and Tata Oil Mills Co. Ltd. vs
C.C.E.; , at p. 545 6 in interpreting the scope of any notification, the Court has first to keep in mind the object and purpose of the notifi cation.
All parts of it should be read harmoniously in aid of, and not in derogation, of that purpose.
In this case, the aim and object of the notification is to grant a conces sion to small scale factories which manufacture paper with unconventional raw materials.
The question naturally arises: Could there have been any particular object intended to be achieved by introducing the exceptions set out in the provi so? Instead of proceeding on the premise that it is not necessary to look for any reason in a taxing statute, it is necessary to have a closer look at the wording of the provi so.
If the proviso had referred only to 'coated paper ', no special object or 812 purpose would have been discernible and perhaps there would have been no justification to look beyond it and enter into a speculation as to why the notification should have thought of exempting only 'coated paper ' manufactured by these factories from the purview of the exemption.
But the notifi cation excepts not one but a group of items.
If the items mentioned in the group were totally dissimilar and it were impossible to see any common thread running through them again, it may be permissible to give the exceptions their widest latitude.
But when tour of them undoubtedly, at least three of them can be brought under an intelligible classification and it is also conceivable that the Govern ment might well have thought that these small scale facto ries should not be eligible for the concession contemplated by the notification where they manufacture paper catering to industrial purposes, there is a purpose in the limitation prescribed and there is no reason why the rationally logical restriction should not be placed on the proviso based on this classification.
In our view, the only reason .
able way of interpreting the proviso is by understanding the words 'coated paper ' in a narrower sense consistent with the other expressions used therein.
In the view we have taken it is unnecessary to consider the other contentions urged before us: (i) whether the words "(including waxed paper)" are words indicative of the limi tation sought to be placed on the words "coated paper" or they are only intended to make it clear that even paper impregnated with wax will not be entitled to exemption; and (ii) whether, if the notification is capable of two equally plausible interpretations, the one in favour of the subject should be upheld or the one taken by the Tribunal should be confirmed.
For the reasons discussed above, we accept the appel lant 's submission that 'coated paper ' in the second proviso refers,only to coated paper used for industrial purposes and not to coated varieties of printing and writing paper.
The Tribunal 's order is set aside and the appellant held enti tled to the concessional rates specified in notification No. 25184.
The appeals are allowed.
But we make no order as to costs.
| IN-Abs | Notifications No. 24 and 25 of 1984 under rule (1) of the Central Excise Rules, were issued on 1.3.1984 in respect of paper and paper board falling under item 17(1) of the first schedule to the .
While notification No. 24 of 1984 restricted the excise duty on certain items, notification No. 25 of 1984 provided for a concession in respect of paper and paper boards manufactured out of pulp containing not less than 50 per cent by weight of pulp made from materials (other than bamboo, hardwoods, softwoods, reeds or rags) and cleared on or after the 1st day of April in any financial year, subject to certain important conditions set out in the provisoes to the notifi cation.
Under the provisoes, the concessional rates were applicable only if the factory did not have plant attached to it for making bamboo, wood pulp and the exemption would not apply to cigarette tissue, glassing paper, grease proof paper, coated paper (including waxed paper) and paper of a substance not exceeding 25 grammes per square metre.
Another notification No. 45 of 1985 dated 17.3.1985 was also issued prescribing rates on paper and paper board failing under the aforesaid item including coated paper.
The appellant assessee had a factory in which different varieties of paper and paper board were being manufactured, using waste paper and cereal straw containing more than 50 per cent by weight of pulp made from the unconventional raw materials.
The factory did not have a bamboo pulp plant.
The assessee was manufacturing art paper and chromo paper.
These two types of paper generally fell under catego ry of printing and writing paper.
These two articles also fell under the description coated 798 paper used in the second proviso to the notification No. 25 of 1984.
The appellant initially paid excise duty on the goods manufactured by it in terms of notification No. 24 of 1984, but later claimed concessional rates prescribed by notification No. 25 of 1984.
Since coated paper was taken out of the purview of notification No. 25 of 1984, by the proviso, the Excise Department refused to permit the asses see to avail of this concession in respect of its manufac tured goods.
This was confirmed by the Central Excise and Gold Control Appellate Tribunal.
In the appeal before this Court, on behalf of the appel lantassessee it was contended that though the expression 'coated paper ' had generally a wide connotation and included coated papers of all varieties, it should be given a re stricted meaning in the context in which it appeared in the proviso, that in the paper business, paper was broadly two varieties, "industrial paper" and "cultural paper", that while paper used for printing or writing was treated as cultural paper that used for various purposes, broadly described as industrial purposes, such as wrapping, packing, sanitary use and the like, was industrial paper, that since a common strain ran through all the five categories men tioned in the proviso, inasmuch the first three varieties, admittedly fell under the category of industrial paper and the last one was invariably used for industrial purposes, and so found by the Tribunal, the word 'coated paper ', must be read in that context, and should be interpreted by apply ing the principle of "Noscitur A Sociis" or on the analogy of the "Ejusdem generis" principle and that even if the words of the proviso were capable of being construed in a wider manner so as to deny exemption to all kinds of coated paper, the Court should apply the well established principle of construction of taxing statutes that an ambiguous provi sion should be interpreted in favour of the subject.
On behalf of the respondent it was contended that there was no principle of interpretation by which the plain and natural meaning of the word 'coated paper ' could be abridged nor was there anything in the context to warrant such a limitation, that there was no 'clear cut distinction between industrial and cultural paper, and that it could not be said that light paper could only be industrial paper.
Allowing the appeals, this Court, HELD: 1. 'Coated paper ' in the second proviso to notifi cation No. 25 of 1984 refers only to coated paper used for industrial purposes and not to coated varieties of printing and writing paper.
The 799 appellant is, therefore, entitled to concessional rates specified in the notification.
[812F G] 2.1 The expression 'coated paper ' in the proviso should draw colour from the context in which it is employed and receive an interpretation consistent therewith than its literal one, which in its widest sense, may be comprehensive enough to include all coated paper, industrial or otherwise, [809G H] 2.2 The concession of the notification is denied to five kinds of paper.
Three of them are varieties of industrial paper.
The fourth is light paper, not exceeding a particular weight.
Light paper is by and large industrial paper and is also used occasionally for cultural purposes also.
The five varieties of paper are found in serial Nos. 3 and 4 of the 1985 notification and serial Nos. 1 and 3, reflect a con trast between coated paper and light paper used for cultural purposes (item No. 1) and that used for other (industrial) purposes (item No. 3).
On this basis, it is clear that four out of the five varieties of paper which are denied the benefit of the concession constitute industrial paper.
In fact, even if, only three of these items are of the indus trial variety, while the other two could be either, it will not still be unreasonably (though may be, a little less plausible) to draw an inference that only industrial paper falling in those two categories are intended to be compre hended in the classification rather than assume, for no detectable reason, that all paper of these two varieties alone are excluded from the concession, [809E G] 2.3 Though no meticulous reasons can always be made available or discovered for variations in rates of duty as between various types of goods and the absence of some common thread ' in relation to a set of goods treated alike may not necessarily render the classification irrational or arbitrary, it can legitimately be postulated that the denial of a concession to a group proceeds on the basis of some aspect or feature common to all items in the group.
If such a principle can be conceived of which would rationalise the inclusion of all the items, it would be quite reasonable and proper to give effect to a construction of the notification as will accord with that principle.
[808F G] 2.4 In interpreting the scope of any notification, the Court has first to keep in mind the object and purpose of the notification.
All parts of it should be read harmonious ly in aid of, and not in derogation, of that purpose.
[811F] 800 Collector of Central Excise vs Parle Exports (P) Ltd., ; and Tata Oil Mills Co. Ltd. vs
C.C.E.; , , referred to.
In the instant case, the aim and object of the notifica tion is to grant a concession to small scale factories which manufacture paper with unconventional raw materials.
If the proviso had referred only to coated paper no special object or purpose would have been discernible and perhaps there would have been no justification to look beyond it and enter into a speculation as to why the notification should have thought of exempting only coated paper manufactured by these factories from the purview of the exemption.
But the notifi cation excepts not one but a group of items.
If the items mentioned in the group were totally dissimilar and it were impossible to see any common thread running through them, again, it may be permissible to give the exceptions their widest latitude.
But when four of them undoubtedly, at least three of them can be brought under an intelligible classifi cation and it is also conceivable that the Government might well have thought that these small scale factories should not be eligible for the concession contemplated by the notification where they manufacture paper catering to indus trial purposes, there is a purpose in the limitation pre scribed and there is no reason why the rationally logical restriction should not be placed on the proviso based on this classification.
[811H; 812A C] The only reasonable way of interpreting the proviso is by understanding the words 'coated paper ' in a narrower sense consistent with the other expressions used therein.
[812D] 3.
The principle of statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established.
The expression noscitur a sociis simply means that the meaning of a word is to be judged by the company it keeps [810A B] In the context of the instant case, this principle can be legitimately drawn upon.
However, the latin maxims and precedents are not to be mechanically applied; they are of assistance only in so far as they furnish guidance by com pendiously summing up principles based on rules of common sense and logic.
[811E F] State vs Hospital Mazdoor Sabha, ; ; Rainbow steels Ltd. vs
C.S.T.; , and Lethang vs Coopex, ; , referred to. 801 "The Dictionary of Paper" published by the American Paper and Pulp Association (Second Edition), referred to.
|
ON: Civil Appeal Nos.
2076 2078 of 1990.
From the Judgment and Orders dated 25.8.
1989, 10.11.1989 & 5.9.
1989 of the Bombay High Court in W.A. Nos.
2198, 3377 and 2197 of 1989.
D.N. Dwivedi and Sarva Mitter for the Appellants.
Arun Jetley, Additional Solicitor General, Raian Karan jawala, H.S. Anand, Nandini Gore, Ravi Kumar, M. Karanjawa la, V,N. Patil and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by 828 RANGANATH MISRA, J.
Special leave granted.
Three applications were filed under Article 226 of the Constitution before the High Court of Bombay by the respec tive appellants before us challenging the rejection of their highest offers in response to invitation by public tender without assigning any reason for the same as arbitrary, unconstitutional and contrary to rule of law.
The respondent a Government company within the meaning of section 617 of the Companies Act has been constituted as the New Town Development Authority under sub section
(3A) of section 113 of the Maharashtra Regional Town Planning Act, 1966.
The respondent is empowered to dispose of land vested in it and the respondent has formulated with the approval of the State Government under section 159 of the said Act a code for regulat ing, inter alia disposal of land.
Regulation 4 provides: "The Corporation may dispose of plots of lands by putting to auction or considering the individual applications as the Corporation determines from time to time." According to the appellants the normal practice adopted by the Corporation is to invite tenders for the disposal of specified plots which the Corporation chooses to assign according to the terms and conditions for lease of plots for mercantile use.
The appellants maintained that they had given the highest offers by way of tender for certain speci fied plots by complying with the requirements of deposit and claim that though the offers were the highest, yet the same have not been accepted.
Each of the appellants was before the High Court challenging the action of respondent No. 1 but the writ petitions were dismissed in limine by saying that there was no arbitrariness in the respondent No. 1 trying to get proper price for its plots.
It is not disputed that the scheme which is operating provides that "respondent No. 1 reserves the fight to amend, revoke or modify the scheme at its discretion as well as to reject any or all offers for allotment without assigning any reason.
" Obviously it is in exercise of this power that the highest tenders have not been accepted.
It is the contention of Mr. Dwivedi appearing in support of these appeals that the respondent is 'State ' under Arti cle 12 of the Constitution and conferment of naked and unguided power as referred to above is arbitrary and con trary to the provisions of Article 14 of the Constitution; and since there is no prescribed norm or guideline and he power is unregulated and unfettered and the highest offer after complying with the prescribed requirements is avail able to be rejected 829 without assigning any reasons, citizens are likely to be affected by exercise of such uncanalised power.
Shortly put, Mr. Dwivedi submits that the procedure is contrary to the requirement of rule of law and therefore, cannot be sus tained.
An affidavit in opposition has been filed on behalf of respondent No. 1 wherein the circumstances under which the highest offers have not been accepted has been indicated and the position has been explained.
We do not find it difficult to agree with Mr. Dwivedi 's submissions that respondent No. 1 is 'State ' within the meaning of article 12 and in its dealings with the citizens of India it would be required to act within the ambit of rule of law and would not be permitted to conduct its activities arbitrarily.
It is too late in the day for an institution like respondent No. 1 to adopt the posture that the activity in question is commercial and as respondent No. 1 is engaged in trading activity it would be open to it to act as it considers appropriate for the purpose of protecting its business interest.
An instrumentality of the State as has been laid down by this Court in a series of authoritative decisions beginning with R.D. Shetty vs International Air port Authority of India & Ors., and in Ajay Hasia vs Khalid Mujib Sehravardi, ; and a number of decisions thereafter has to act within the ambit of rule of law and would not be allowed to conduct itself arbitrarily and in its dealings with the public would be liable to judicial review.
The State is certainly entitled to look for the best deal in regard to its properties.
This has been accepted by several decisions of this Court with reference to State action under the Excise Laws.
There is no allegation of mala fides in the conduct of respondent No. 1 in refusing to accept the highest offer.
We must, therefore, proceed on the footing that respondent No. 1 acted bona fide and in refus ing to accept the highest offers of the appellants in regard to specific plots has been actuated by the consideration of looking for better offers for the specific plots in the economic interest of respondent No. 1.
The question which still remains to be answered is as to whether when the highest offer in response to an invitation is rejected would not the public authority be required to provide reasons for such action? Mr. Dwivedi has not asked us to look for a reasoned decision but has submitted that it is in the interest of the public authority itself, the State and every one in the society at large that reasons for State action are placed on record and are even communicated to the persons from whom the offers came so that the dealings remain above board; the interest of the public authority is adequately protected and a citizen knows where he stands with reference to his offer.
What this Court 830 said in State of U.P.v.
Raj Narain & Ors., ; may be usefully recalled here: "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets.
The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries.
They are entitled to know the particulars of every public trans action in all its bearing.
The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.
To cover with veil of secrecy, the common routine business, is not in the interest of the public.
" In recent times, judicial review of administrative action has become expansive and is becoming wider day by day.
The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded.
State activi ty too is becoming fast pervasive.
As the State has descend ed into the commercial field and giant public sector under takings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers.
That very often involves long stakes and availability of reasons for action on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability.
Looking for reasons in support of such action provides an opportuni ty for an objective review in appropriate cases both by the administrative superior and by the judicial process.
The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the con cerned parties unless there be any specific justification not to do so.
We do not intend.
to go into matters any further in as much as we do not propose to apply this test to the present appeals.
These appeals fail but we make no order as to costs.
P.S.S. Appeals dismissed.
| IN-Abs | The appellants had given the highest offers for certain specified plots for lease in response to invitation by public tender by the respondent Corporation a Government Company, and complied with the requirements of deposit.
The respondent, however, rejected the said offers without as signing any reason.
The appellants challenged the action of the respondent before the High Court as arbitrary, unconstitutional and contrary to rule of law.
The High Court, dismissed the writ petitions in limine.
In these appeals by special leave, it was contended for the appellants that the respondent Corporation was a 'State ' under Article 12 of the Constitution, that the power of rejection of offers without assigning any reason was unregu lated and unfettered, contrary to the requirement of rule of law, and that it was in the interest of the public authority itself, the State and everyone in the society at large that reasons for State action are placed on record and or even communicated to the persons from whom the offers came.
827 Dismissing the appeals, the Court, HELD: 1.
The respondent No. 1 was 'State ' within the meaning of Article 12 of the Constitution and in its deal ings with the citizens of India, it would be required to act within the ambit of rule of law and would not be permitted to conduct its activities arbitrarily.
[829B C] R.D. Shetty vs International Airport Authority of India Sehravardi; , , referred to. 2.
The State is certainly entitled to look for the best deal in regard to its properties.
In the instant case, there was no allegation of mala fides in the conduct of respondent No. 1 in refusing to accept the highest offers.
It could, therefore, be presumed that in so doing the respondent had been actuated by the consideration of looking for better offers for the specific plots in its economic interest.
There was thus no arbitrariness in respondent trying to get proper price for its plots.
[829E F, 828E F] 3.
When highest offers of commercial nature are rejected reasons sufficient to indicate the stand of the public authority should be made available and the same should be communicated to the concerned parties unless there be any specific justification not to do so.
That would assure credibility to the action, discipline public conduct and improve the culture of accountability and provide an oppor tunity for an objective review in appropriate cases both by the administrative superior and by the judicial process.
[830F G, E F] State of U.P. vs Raj Narain & Ors., ; , re ferred to.
|
Appeal No. 410 of 1958.
Appeal by special leave from the judgment and order dated July 31, 1958, of the Judicial Commissioner 's Court, Himachal Pradesh at Simla in Civil Misc.
First Appeal No. 2 of 1958.
K.L. Misra, Advocate General for the State of U. P. and section section Shukla, for the appellant.
Achhru Ram and Ganpat Rai for respodent No. 1. 1958.
October 17.
The Judgment of the Court was delivered by SARKAR, J.
This appeal arises out of an election petition filed by the respondent No. 1, Hira Singh Paul, whom we shall hereinafter refer to as the respondent.
The other respondent to this appeal is the Election Commission, but it has not appeared presumably because it is not interested in the result of the appeal which involves no claim against it.
The only question that it involves is whether the appellant was guilty of a corrupt practice, the details of which will be set out later, within the meaning of section 123(7) of the Representation of the People Act, 1951.
In the 1957 General Elections, ten candidates filed their nomination papers to contest the election from the Mahasu double member constituency in Himachal Pradesh.
One of the two seats for this constituency 215 was reserved for a scheduled caste candidate.
Two of the candidates withdrew from the contest and the remaining eight went to the poll.
These eight included the appellant, the respondent and one Nek Ram.
Nek Ram was declared elected to the reserved seat and the appellant to the general seat.
The respondent polled the next largest number of votes to the appellant.
After the results had been declared the respondent filed the election petition on August 3, 1957, challenging the validity of the election of the appellant on the ground that he had committed various corrupt practices.
The Election Tribunal framed 18 issues in respect of the various corrupt practices alleged in the petition but answered all the issues excepting issues Nos.
8(1), 8(ii) and 11 against the respondent.
Issue No. 8(1) raised the question whether one Amar Singh, said to be a member of the armed forces of the Union of India, worked and canvassed for the appellant.
Issue No. 8(ii) was whether Amar Singh was appointed his polling agent by the appellant.
Issue No. 11 was in the following terms: In case one or more of Issues Nos.
(8) to 10 is or are decided in the affirmative, whether the respondent No. 1 obtained, procured or abetted or attempted to obtain, procure by himself, by his agents and by his supporters the assistance of the Government servants as specified under the said issues for the furtherance of the prospects of his election ? The Tribunal found against the appellant on Issues Nos.
8(1), 8(ii) and 11 and thereupon declared his election void.
The appellant then went up in appeal to the judicial Commissioner, Himachal Pradesh, who by his judgment dated July 31, 1958, set aside the finding of the Tribunal on Issue No. 8(1) but maintained its findings on the other two issues and confirmed the declaration that the appellant 's election was void.
The appellant has come up to this Court by special leave in appeal against that judgment.
As will have been seen from what has been earlier stated the only questions 216 that survive are those raised by Issues Nos. 8(ii) and 1 1.
The facts are not now in dispute and may be stated as follows: The constituency was divided into 606 polling stations and for each polling station three polling agents could be appointed.
The appellant was thus entitled to appoint 1818 polling agents.
On April 28, 1957, he signed a very large number of the forms prescribed by the rules framed under the Act for appointing polling agents, in blank and without 'setting out therein the name of any polling agent, as he had not then been able to make up his mind in view of the large number of polling stations as to who would be his polling agents at the various polling stations.
He made over these forms to Kalyan Singh, who passed on three of them to Kashmira Singh having inserted therein the words " polling station No. 13, Sheopur ".
Kashmira Singh filled in the name of Amar Singh as the polling agent in one of these forms on May 25, 1957, the day of polling, and made it over to the latter to enable him to act as the appellant 's polling agent at polling station No. 13, Sheopur.
Amar Singh then duly signed the form as required by the rules and filed it with the presiding officer at polling station No. 13, Sheopur, and on the strength of it, acted as the polling agent of the appellant at that station for about two hours when objection having been taken to him on the ground that he was a member of the armed forces, he withdrew and left the polling station.
Amar Singh was on the polling day in fact a member of the armed forces, though this was not then known to the appellant.
Kalyan Singh and Kashmira Singh acted in all that they did, under the authority of the appellant.
These facts may be taken to have been established on the evidence adduced.
The learned Advocate General of Uttar Pradesh who appeared for the appellant, first sought to contend that Amar Singh had not really been appointed the appellant 's polling agent.
He said that under section 46 of the Act a polling agent can be appointed only by the candidate himself or by his election agent and Amar Singh could not on the facts found, for reasons to 217 be stated presently, be said to have been appointed a polling agent either by the appellant or his election agent.
Therefore, according to him, Amar Singh had not been appointed the appellant 's polling agent at all and hence the charge of corrupt practice against him for having so appointed Amar Singh must fail.
First, it seems to us that this argument is not open to the learned Advocate General.
He himself appeared for the appellant before the learned Judicial Commissioner and there conceded that the factum or the validity of the appointment of Amar Singh as the appellant 's polling agent could not be questioned by him.
We do not think that we should permit the appellant to withdraw a concession expressly made by his counsel in the Court below in a matter of this kind.
This is all the more so as the present argument does not seem to have been raised when the matter was before the Tribunal, either.
Secondly, it seems to us that the contention is without substance.
We will assume that the learned Advocate General is right in his contention that under the Act a polling agent can be appointed only by the candidate himself or by his election agent and not by the candidate acting through any other agent.
The learned Advocate General 's contention is that on the facts found, the only possible conclusion is that Amar Singh had not been appointed polling agent by the appellant himself but by one or other of his agents, namely, Kalyan Singh or Kashmira Singh and as none of them was his election agent, the appointment was invalid.
It is not in dispute that neither Kalyan Singh nor Kashmira Singh was his election agent.
In fact it appears that the appellant had no election agent at all.
In our view, however, this does not matter as the present is not the case of an appointment by any agent but by the appellant himself.
We have come to this view because here, the appointment was made by the document signed per sonally by the appellant.
The fact that the name of the polling agent was written in the document by another person after the appellant had signed it, does not make the appointment of the polling agent under 28 218 that document an appointment by some other person acting as the agent of the appellant.
On the language of the document and the appointment was not purported to have been made in any other.
way than by the document it was an appointment made by the appellant himself.
The other person only wrote the name in the document which he had authority to do.
He did not purport to make any appointment at all.
It is impossible to read the document as the making of the appointment by an agent of the appellant acting for him.
The true view of the matter plainly is that the appellant himself appointed by the document as his polling agent, a person whose name had been written therein by another with his authority.
We, therefore, hold that Amar Singh had been appointed his polling agent by the appellant himself.
It was thus even on the learned Advocate General 's construction of section 46, a proper appointment.
We then come to this that the appellant appointed Amar Singh, a member of the armed forces, his polling agent and the latter acted as such.
The question is, Did this amount to a corrupt practice by the appellant ? The respondent 's contention which has been accepted by the Courts below, is that it is a corrupt practice within section 123(7) of the Act.
That provision so far as is relevant and the explanation to it, are in these terms.
Section 123.
The following shall be deemed to be corrupt practices for the purposes of this Act : (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person, 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 following classes, namely : (c) members of the armed forces of the Union; Explanation. (1) (2) For the purposes of clause (7), a person shall be 219 deemed to assist in the furtherance of the prospects of a candidate 's election if he acts as an election agent, or a polling agent or a counting agent of that candidate.
" The learned Advocate General contends that the procuring or obtaining by a candidate of any assistance for the furtherance of the prospects of his election from a person in the service of the Government as a member of the armed forces, would not amount to a corrupt practice unless that candidate knew that the person was in such Government service.
He says that the words 'procuring orobtaining ' import such knowledge and that this view of the matter receives great strength from the word I for ' in the phrase " for the furtherance of the prospects of that candidate 's election ".
According to him, without such knowledge the candidate cannot be said to have procured or obtained any assistance, for no one can obtain or procure a thing unless he knows that he is doing so.
He then points out that there is evidence that neither the appellant nor Kalyan Singh nor even Kashmira Singh knew that Amar Singh was a member of the armed forces.
He, therefore, says that the appellant cannot in the absence of such knowledge be said to have procured or obtained the assistance of a member of the armed forces for furthering the prospects of his election.
,It is true that neither the appellant nor Kalyan Singh, nor even Kashmira Singh knew at the date of the appointment of Amar Singh that he was a member of the armed forces but the point now raised by the learned Advocate General is, in our view, none the less unsustainable.
It overlooks the provisions of the second explanation to the section which we have already set out.
Under that explanation if a person acts as the polling agent of a candidate it must be held without more, that, he assisted in furtherance of the prospects of that candidate 's election.
In the present case therefore it has to be held that Amar Singh who acted as the appellant 's polling agent, thereby assisted in the furtherance of the prospect. , of his election.
Now under the provisions of the Act, no one can act as the polling agent of a candidate unless he has been appointed as such and we have already held that the appellant 220 himself had appointed Amar Singh as his polling agent.
It follows in view of the explanation that the appellant procured and obtained the assistance of Amar Singh for the furtherance of the prospects of his election.
All the requirements of the section are thus satisfied and the appellant must therefore be held to have committed the corrupt practice thereby constituted.
All that the section requires is that assistance shall be procured for furthering the election.
Where the explanation applies as it does in the present case, if a candidate has appointed a person to act as his polling agent and he accordingly does so act, a statutory presumption arises that the candidate thereby procured that person 's assistance in furtherance of the prospects of his election, and this irrespective of whether he intended to procure such assistance or not.
Indeed, as Mr. Achhru Ram appearing for the respondent pointed out, the explanation clearly shows that the candidate 's intention is irrelevant, for, such presumption arises even when a candidate has procured another person to act as his counting agent and it is very difficult to imagine that the appointment of a counting agent can further the prospects of any election, for the counting agent acts after the polling is over and only when the votes already polled, are counted.
Therefore it seems to us that in the case of the appointment of a polling agent which comes within the explanation as the present case does, the intention of the candidate in procuring the assistance is irrelevant.
If that is so, it is clear that the knowledge of the candidate whether the person, whose service as his polling agent he has procured, is a member of the armed forces or any of the other specified class of Government servants or not, is equally irrelevant.
We think therefore that the learned Advocate General 's contention must fail.
What we have said just now also disposes of the other argument of the learned Advocate General, namely, that a corrupt practice is in the nature of a criminal act and cannot therefore be established unless mens rea, or criminal intention, is established, and that the appellant cannot be said to have committed 221 a corrupt practice for he had no mens rea in appointing Amar Singh his polling agent since he did not know that Amar Singh was a member of the armed forces.
On this point we were referred to certain passages from English text books on election law of which it will be enough to refer to one, for all state the law in substantially the same terms.
In Schofield 's Parliamentary Elections, 2nd Edn. which is one of the text books to which we were referred, it is stated at p. 402: There is an elementary distinction between a corrupt and an illegal practice.
To establish the former it is essential to show that a corrupt intention is present.
A corrupt practice is a thing the mind goes along with, whereas an illegal practice is a thing the legislature is determined to prevent, whether it is done honestly or dishonestly.
The view thus formulated is founded on the English law of election and is clearly of no assistance to us.
It is based on particular English statutes and the language employed therein.
We have already shown that our statute in the case at least of a corrupt practice of the kind in hand does not concern itself with any question of intention.
Mr. Achhru Ram with his usual industry made available to us the English statutes on which the statement of law set out in the text books referred to by counsel for the appellant had been based and pointed out that under these statutes the acts therein made corrupt practices had to be done corruptly and that corrupt practices were always made offences punishable as crimes.
It may be of use here to point out that the relevant provisions in our statute were amended in 1956 and that has done away with the distinction between illegal and corrupt practices.
In fact, we have now only corrupt practices and no illegal practices.
The present case, it may be pointed out, is governed by the amended statute.
No question of mens rea or intention or knowledge of the candidate arises in this case.
We, therefore, come to the conclusion that the appellant was guilty of a corrupt practice by appointing Amar Singh, a member of the armed forces, his polling 222 agent whereby the latter was enabled to and did act as such.
The appellant 's election was consequently in our opinion rightly declared void.
The appeal is therefore dismissed with costs.
| IN-Abs | The appellant, who was a candidate for election to Parlia ment, signed a very large number of blank forms for the appointment of polling agents and made them over to one Kalyan Singh.
Kalyan Singh passed on three of the forms to Kashmira Singh after inserting therein the name of a particular polling station.
Kashmira Singh filled in the name of Amar Singh as the polling agent in one of these three forms and gave it to Amar Singh, who, duly signed the form, filed it before the presiding officer of the polling station and acted as the appellant 's polling agent.
Amar Singh was a member of the armed forces but this fact was not known to the appellant or to Kashmira Singh or Kalyan Singh.
After the poll the appellant was declared elected but on an election petition being filed his election was set aside on the ground that he had committed the corrupt practice of procuring the assistance of a person in the service of the Government.
The appellant contended that Amar Singh had not been duly appointed as the appellant 's polling agent as neither the appellant nor his election agent had made the appointment, and that the appellant could not be held guilty of the corrupt practice for he did not know that Amar Singh was in the service of the Government and consequently did not have the necessary mens Yea.
214 Held, that the appellant did appoint Amar Singh as his polling agent by personally signing the appointment form.
The fact that the name of the polling agent was written in the form by another person after the appellant had signed it does not make it an appointment by the other person.
Held, further, that the appellant was guilty of the corrupt practice inasmuch as he appointed Amar Singh as his polling agent and Amar Singh by acting as the polling agent assisted in the furtherance of the prospects of the appellant 's election.
A presumption arises under section 123(7) Explanation (2) that the appellant by so doing procured Amar Singh 's assistance in furtherance of the prospects of his election, irrespective of whether he intended to procure such assistance or not.
The knowledge of the appellant whether the person whose assistance he procured was a person in the service of the Government or not was irrelevant.
Mens rea was not a necessary ingredient of the corrupt practice.
|
vil Appeal Nos.
2044 45 of 1990.
From the Judgment and Order dated 18.8.1989 of the Madras High Court in C.R.P. Nos.
4797 and 4798 of 1984.
C.S. Vaidyanathan, K.V. Vishwanathan, K.V. Mohan, S.R. Bhat and S.R. Setia for the Appellant.
785 K. Parsaran and V. Balachandran for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
Special leave to appeal is granted and the appeals are disposed of by a common order.
On 9.6.1936, Ramaswamy Gounder (the predecessor in interest of the respondents) executed a lease deed in favour of Gopal Sait (the predecessor in interest of the appellant).
Certain passages from an English translation of the lease deed (which was in vernacular) are relevant for the purposes of the present case and they read thus: "Whereas the property viz. vacant land well and Kaichalai etc.
belongs to the party of the First part as his ancestral property; Whereas the said property was leased out to party of the Second Part on a monthly rental of Rs.12 8 0 for 15 years and taken possession by the party of the second part from party of the First part on 3.12.1935 . . and the party of the Second part for his convenience and at his own ex penses and costs (was) permitted to construct in the said vacant land and install petrol selling business . .
After the expiry of lease period of 15 years i.e. on 12.2. 1950 the lessee shall at his own expense remove the struc ture put up by him and deliver possession of the vacant land together with well and kaichalai in the present state . SCHEDULE . vacant land situated in this bounded on the North by vacant land leased out for Burmah Oil Co. by the said Ramas wamy Gounder Gopalji Ratnaswami . . all these vacant lands together with in the fourth plot measuring East to west 84 and North to South 16 together with half share in well therein together with tiled Kaichalai . together with door, doorways etc.
There is no number for Kaichalai.
It is common ground that the total vacant area covered by the 786 lease was 3600 sq.
and that the kaichalai, referred to therein, was thirty seven and a half by sixteen and a half feet i.e. of the extent of about 600 sq.
It also appears that even though there was initially no door number for the Kaichalai, it was eventually given door No. 82 and the suit premises we are concerned with bear door Nos. 80, 81 and 82.
The lease was extended for a period of two years from 1.1.51 by a fresh deed dated 15.1.51 at an enhanced rent.
This lease deed recited: "On the expiry of two years, i.e. on 31.12.52, the lessor has no objection for the removal of the structure put up by Burmah Shell petrol pump etc except the extent of structure of thirty seven and a half feet by sixteen and a half feet put up by the lessor . " There was a fresh lease deed, again, executed on 2.1.53 for a further period of three years at a higher rent.
This deed also required the lessee, when delivering possession back to the lessor on the expiry of the lease, to remove the struc tures put up by him or the Burmah Shell Co. Ltd. "except the structure measuring thirty seven and a half ft. by sixteen and a half ft.".
The lessee appears to have continued to occupy the property even beyond 31.12.55 at a further enhanced rent.
In 1962, we are told, the lessor flied a petition to evict the lessee under section 10(3)(a)(i) and 14(1)(b) of the Madras Buildings (Lease and Rent Control) Act 1960, alleging that he required the premises for personal occupation and for bona fide immediate demolition.
"The lessee defended the petition saying that the premises do not require any immedi ate demolition, that the premises are used for non residen tial purposes and kept in good condition and that the peti tioner 's requirement for personal occupation is not bona fide." The petition was dismissed by the Rent Controller observing that the premises did not need demolition and further that, as the premises had been leased out for non residential purposes and the landlord could not seek its conversion into residential use without the controller 's application, the petitioner 's allegation that he required it for personal use was neither tenable nor bona fide.
Ramaswamy Gounder filed a petition again in 1979 for the eviction of the respondent but he died in February 1979 and the petition filed by him was dismissed for default.
There after his legal representatives (the present respondents) instituted a petition for eviction 787 (R.C.O.P. 19/79 out of which the present proceedings have arisen) of the respondents on the grounds of demolition and re construction and of wilful denial of title within the meaning of Ss. 14(1)(b) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act.
In the meantime, the provisions of the Madras City Tenants ' Protection Act, 1922 (Later renamed the Tamil Nadu City Tenants ' Protection Act) were extended to the municipal limits of Udumalpettai within which the premises in question were located.
Taking advantage of this, the respondent filed O.P. 1/79 (in the same court of District Munsif cum Rent Controller) claiming the benefit of compulsory purchase conferred on tenants of land under the said Act.
The Dis trict Munsif cum Rent Controller allowed the lessor 's peti tion for eviction and dismissed the lessee 's petition.
The sub judge, on appeal, dismissed the appeals with a slight modification.
He was of the view that, except for the kai chalai, the other buildings had been put up by the respond ents with the permission of the lessor and that, hence, he was entitled to obtain compensation therefore by institution of separate appropriate proceedings.
The respondent filed two revision petitions before the High Court which declined to interfere.
The learned Judge held: "I do not see any reason to interfere with the orders of the courts below negativing the claim of the revision petition er.
In as much as admittedly the property situated in door No. 82 belonged to the landlord, this is a case to which section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 will apply.
However, the property bearing door Nos. 80 and 81 belonged to the petitioner is the find ing.
On that all that the tenant could ask for will be for removal of the superstructure.
Beyond that his claim for compensation also could not be ordered since there was no prayer for the same.
The decision in M/s. Larsen & Toubro Ltd. vs The Trustees of Dharmamoorthy Rao Bahadur, Calvala Cunnan Chetty 's Charities by its Trustees, [1988] 2 LW 380 is distinguishable because this is a case of only one and a half grounds wherein there is a kaichalai of 600 sq.
The removal shall take place within a period of three months from today.
The Civil revision petitions are dismissed.
" Hence these two appeals.
788 Though there have been claims made under the Rent Con trol Act by the lessor and under the City Tenants ' Protec tion Act by the lessee, the claim under the latter has not been pressed before us by the learned counsel for the appel lant who has confined his arguments before us to the only question whether the demised premises constitute a "build ing" within the meaning of section 2(2) of the Rent Control Act.
Sri C.S. Vaidyanathan, learned counsel for the appel lants submitted that the first appellate court has found, modifying the trial court 's findings in this regard, that the original lease comprised only of the vacant site, well and kaichalai and that all the other superstructures found in the demised premises had been put up by the appellant.
He contended that the 'kaichalai ' was merely in the nature of a shed put up for the tethering of cattle and that it was not a 'building ' within the meaning of the Rent Control Act.
Alternatively, he contended, even if the Kaichalai could be considered to be a building this was not a case of the lease of a building or hut with its appurtenant land: it was really a case of the lease of a vacant site to the petition er on which was situated a small hut in one corner.
The lease deed itself recites that the appellant had taken the premises for putting up a petrol pump.
In fact he did put in an underground storage tank, a petrol pump and other struc tures and carried on a petrol and kerosene business thereon.
Though the small Kaichalai was situate in a corner of the site, the lease intended by the parties was only that of the site.
The Kaichalai was no doubt not demolished and, per haps, the appellant also made use of it for the purposes of his business but, says Sri Vaidyanathan, this made no dif ference to the obvious and clear and dominant intention of both parties that it was the site that was leased out for a petrol pump business.
Sri Vaidyanathan contended that the issue is directly governed by the decision in the Larsen & Toubro case ; , to which one of us was a party.
He submitted that, where a lease is a composite one of land and buildings, the court has to address itself to the primary or dominant intention of the parties.
If this is to lease a building the lease of land being adjunct or incidental as in the Larsen & Toubro, case (supra), the Rent Control Act would apply.
On the other hand, if the dominant intention is to lease a site the presence of a building thereon not being considered material by either party the lease would not be one of a 'building ' covered by the Rent Control Act, whether or not it can be considered as a lease only of a vacant site governed by the City Tenant 's Protection Act.
Counsel contended that it is possible that there may be a grey area of leases which might fall under neither Act and proceedings in respect of which 789 may continue to be governed by the Transfer of Property Act, unaffected by these special laws.
The Rent Control Act contains a definition of the ex pression 'building ' which reads as follows: "2(2) 'building ' means any building or hut or part of a building or a hut, let or to be let separately for residen tial or non residential purposes and includes (a) the gardens, grounds and out houses, if any, appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut, (b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding house.
" We have not been able to get at the exact meaning of the Tamil word 'kaichalai '.
It, however, seems to denote a structure or a roof put up by hand.
Whatever may be the precise meaning of the term, we think that the definition in section 2(2) clearly includes the kaichalai in the present case.
Since the Act applies to residential and non residential buildings alike, the expression 'hut ' cannot be restricted only to huts or cottages intended to be lived in.
It will also take in any shed, hut or other crude or third class construction consisting of an enclosure made of mud or by poles supporting a tin or asbestos roof that can be put to use for any purpose, residential or non residential, in the same manner as any other first class construction.
The kaichalat is a structure which falls within the purview of the definition.
Counsel for the appellant is perhaps under stating its utility by describing it as a mere cattle shed.
The area of the shed is quite substantial and, as will be explained later, the parties also appear to have attached some importance to its existence on the site.
It is very difficult to hold, in view of the above definition, that the kaichalai is not a 'building ' within the meaning of section 2(2).
On behalf of the respondents, it is contended that, in a composite lease, the existence of a building or hut on the land (however small, insignificant or useless it may be) is sufficient per se to bring the lease within the scope of the Rent Control Act.
It is suggested for the respondent that it would be inarguable, once it is admitted or held 790 that the Kaichalai is a building and that the same has been let out, that still there is no letting out of a building within the meaning of the Act.
In support of his contention, Sri Parasaran, for the respondent, placed considerable reliance on Irani vs Chidarnbaram Chettiar, AIR 1953 Mad. 650.
He pointed out that, in that case there was a vast vacant land with only some stalls in one corner and a com pound wall but it was nevertheless held to be a case of lease of a building.
According to him, this case was not disapproved, but indeed indirectly approved, by this Court in Salay Md. Sait vs
J.M.S. Charity, [1969] 1 MLJ SC 16 though certain other cases (where leases of vacant sites with only the lessees ' buildings thereon were held to be leases of buildings) were overruled in that decision.
This case, according to him, decides that, once there is a build ing on the land, however insignificant, and it is let out, the case will be governed by the Rent Control Act.
We do not think this case is an authority for such an extreme posi tion.
It rather seems that the case was one decided on its own special facts.
At the time of the original lease by the landlord there was only a vacant site and a few small stalls.
But, by the time the relevant lease deed (which came up for consideration) was executed, it had become the site of a theatre.
No doubt the theatre did not belong to the lessor; nevertheless for several years the leased property had been sued as a theatre and the purpose of the parties was clearly that the leased premises should continue be used as a cinema theatre.
It was in this special situation that the Court came to the conclusion that it was plausible to hold the lease to be one of a building though if the struc tures not belonging to the landlord were left out of ac count, there was only a vacant site and a few stalls.
We think it would not be correct to draw support from this decision for the extreme proposition contended for on behalf of the respondent.
In our opinion, we have to travel beyond this solitary fact, go further to look at the, terms of the lease and the surrounding circumstances to find out what it is that the parties really intended.
There is no difficulty in determining the scope of the lease where a building and a piece of land are separately let out.
But in the case of composite lease of land and building, a question may well arise whether the lease is one of land although there is a small building or hut on it (which does not really figure in the transaction) or one of a lease of the building (in which the lease of land is incidental) or a lease of both regardless of their respec tive dimensions.
In determining whether a particular lease is of the one kind of another, difficulties are always bound to arise and it will be necessary to examine whether the parties intended to let out the building along with the lands or vice 791 versa.
The decisions in Sivarajan vs Official Receiver, AIR 1953 Trav.
Co. 105; Nagamony vs Tiruchittambalam, AIR 1953 Trav.
Co. 369; Official Trustee vs United Commercial Syndi cate, and Raj Narain vs Shiv Raj Saran, AIR , relied upon by Sri Vaidyanathan, were in stances where what the parties had in mind was only the lease of land, although there were certain petty structures thereon which were not demolished or kept out of the lease but were also let out.
They were clearly cases in which, we think, the applicability of the Rent Act was rightly ruled out.
On the other hand, Larsen & Toubro, ; is a case where there was the lease of a building although a vast extent of land was also included in the lease.
That was not a case which arose under the Rent Control Act but it illustrates the converse situation.
Sri Vaidyanathan wants to derive, from the case referred to above and certain cases which deal with other aspects which become relevant while considering a composite letting, a proposition that the dominant purpose of the letting should govern.
For instance, there are cases where factories, mills or cinema theatres are leased out and cases have held that the dominant object is to lease a factory, mill or theatre and that, even though in all these cases, the letting out of a building would be involved, the provisions of the Rent Control Act would not apply vide Venkayya vs Subba Rao, AIR 1957 A.P. 619; Uttam Chand vs Lalwani.
AIR 1965 SC 716 and Dwarka Prasad vs Dwarkadas; , But we think that this approach also seeks to over simplify the problem.
When we come down to consider the terms of a particular lease and the inten tion of the parties, there are bound to be a large variety of cases.
If the transaction clearly brings out a dominant intention and purpose as in the cases cited above, there may be on difficulty in drawing a conclusion one way or the other.
But it is not always necessary that there should be a dominant intention swaying the parties.
There may be cases where all that is intended is a joint lease of both the land and the building without there being any considerations 'suf ficient to justify spelling out an intention to give primacy to the land or the building.
For instance, where a person owns a building surrounded by a vast extent of vacant lands (which may not all be capable of being described appurtenant thereto, in the sense of being necessary for its use and enjoyment) and a party comes to him and desires to take a lease thereof, he may do so because he is interested either in the building or the land (as the case may be).
But the owner may very well say: "I am not interested in your need or purpose.
You may do what you like with the land (or building).
1 have got a compact property consisting of both and I want to let it out as such.
You may take it or leave it.
" The fact in such cases is that the owner has a building and land and he lets them 792 out together.
He is not bothered about the purpose for which the lease is being taken by the other party.
In such cases, it is very difficult to say that there is no lease of build ing at all unless there is some contra indication in the terms of the lease such as, for example, that the lessee could demolish the structure.
The test of dominant intention or purpose may not be very helpful in such cases in the context of this legislation.
Sri Vaidyanathan sought to contend that the words of section 2(2) "any building . . and gardens, grounds . . let or to be let along with it", import the concept that the dominant purpose should be a letting of the building.
We do not think that this is necessarily so.
The decision of this Court in Sultan Bros. P. Ltd. vs C.I.T., [ ; is of some relevance in this context.
There the Supreme Court was concerned with the interpretation of section 12(4) of the Indian Income tax Act, 1922 which read: "(4) Where an assessee lets on hire machinery plant or furniture belonging to him and also buildings, and the letting of the buildings inseparable from the letting of the said machinery, plant or furniture, he shall be entitled to allowances in accordance with the provisions of the clauses (iv), (v) and (vii) of sub section (2) of section 10 in respect of such buildings.
" The High Court took the view that the plant and machinery and buildings should not only be inseparably let out but also that "the primary letting must be of the machinery, plant or furniture and that together with such letting or along with such letting there (should be) letting of build ings." 1n that case, the High Court held, the primary let ting was of the building and so section 12(4) would not apply.
The Supreme Court did not approve of this reasoning.
It said: "Now the difficulty that we feel in accepting the view which appealed to the High Court and the Tribunal is that we find nothing in the language of sub section
(4) of section 12 to support it.
No doubt the sub section first mentions the letting of the machinery, plant or furniture and then refers to the letting of the building and further uses the word 'also ' in connection with the letting of the building.
We, however, think that this is too slender a foundation for the conclu sion that the intention was that the primary letting must be of the machinery, plant or furnitures.
In the absence of a much 793 stronger indication in the language used, there is no war rant for saying that the sub section contemplated that the letting of the building had to be incidental to the letting of the plant, machinery or furniture.
It is pertinent to ask that if the intention was that the letting of the plant, machinery or furniture should be primary, why did not the section say so? Furthermore, we find it practically impossi ble to imagine how the letting of a building could be in cidental to the letting of furniture, though we can see that the letting of a factory building may be incidental to the letting of the machinery or plant in it for the object there may be really to work the machinery.
If we are right in our view, as we think we are, that the letting of a building can never be incidental to the letting of furniture contained in it, then it must be held that no consideration of primary or secondary lettings arises inconstruing the section for what must apply when furniture is let and also buildings must equally apply when plant and machinery are let and also buildings.
We think all that sub section
(4) of section 12 contem plates is that the letting of machinery, plant or furniture should be inseparable from the letting of the buildings." The Court proceeded then to consider the concept of 'insepa rable letting ' and observed: "It seems to us that the inseparability referred to in sub section (4) is an inseparability arising from the intention of the parties.
That intention may be ascertained by flaming the following questions: Was it the intention in making the lease and it matters not whether there is one lease or two, that is, separate leases in respect of the furniture and the building that the two should be enjoyed together? Was it the intention to make the letting of the two practically one letting? Would one have been let alone or a lease of it accepted without the other? If the answers to the first two questions are in the affirmative, and the last in the nega tive then, in our view, it has to be held that it was in tended that the lettings would be inseparable.
This view also provides a justification for taking the case of the income from the lease of a building out of section 9 and putting it under section 12 as a residuary head of income.
It then be comes a new kind of income, not covered by section 9, that is, income not from the ownership of the building alone but an income which 794 though arising from a building would not have arisen if the plant, machinery and furniture had not also been let along with it.
" Though the context was somewhat different, the observations in that case are of great assistance.
We think that, in the context here also, we should be guided not by any theory of dominant purpose but by the consideration as to whether the parties intended that that the building and land should go together or whether the lessor could have intended to let out the land without the building.
The latter inference can perhaps be generally drawn in certain cases where only the lease of land dominated the thoughts of the parties but the mere fact that the building is small or that the land is vast or that the lessee had in mind a particular purpose cannot be conclusive.
Let us now turn, in the above background, to a consider ation of the lease deed in the present case.
As already mentioned, counsel for the appellant strongly relies on the purpose of the lease and seeks to make out that the building (kaichalai) was not really a significant part of the lease.
This contention is stoutly refuted on behalf of the respond ents.
It is pointed out that the kaichalai was of substan tial dimensions and that counsel for the appellant is not fight in characterising it as a mere cattle shed.
It is pointed out that the shed was also admittedly used by the appellants for the purposes of its business and there is nothing to show that this was also not in contemplation at the time of the lease.
Again it is pointed out that, in some parts of the lease deeds, the vernacular version gives first place to the kaichalai rather than to the vacant site.
Also, every one of the lease deeds attaches special emphasis that the kaichalai should not be removed but should be returned to the lessor without any damage.
We may also advert to one more circumstance which shows beyond doubt that the kaicha lai was not an insignificant structure.
We have earlier referred to the fact that Ramaswamy Gounder had filed an earlier eviction petition on the ground that he needed the premises for personal occupation and immediate demolition.
The lessee 's defence to this was not that the kaichalai was a cattle shed unfit for personal occupation, The defence was that it had been let out for a non residential purpose and could not be converted to residential use without permis sion.
This certainly demonstrates that the kaichalai was capable of use both for residential and non residential purposes.
Counsel for the respondent, in fact, wanted to go a little further and hold it against the appellant that he had not taken in those proceedings the plea, now put for ward, that the Rent Control Act could not at all be invoked.
We will not, however, 795 hold this against the appellant 'as, at that time, the benefits of the Tenants ' Protection Act had not been extend ed to Udumalpettai and the tenant would not have gained anything by raising any such point.
But the pleadings in those proceedings as well as the order of the Rent Control ler therein leave no doubt that the kaichalai was a material structure let out as such to the lessee for non residential purposes and which, with necessary permission, could also have been used for residential purposes.
Having regard to all these circumstances, the correct inference appears to be that what the lessor intended was a lease of both the land and the building.
The land was to be put to use for a petrol pump; so far as the building was concerned, the lessee was at liberty to use it as he liked but he had to maintain it in good condition and return it at the end of the lease.
This was a composite lease with a composite purpose.
It is difficult to break up the integrity of the lease as one of land alone or of building alone.
In these circumstances, we think this letting would come in within the scope of the Rent Control Act, for the reasons already explained.
Before concluding, we may touch upon two more relevant aspects.
The first is the use of the word "separately" in section 2(2).
This, however, does not affect our above construction of the section.
That word is intended to emphasise that, for purposes of the Act, a building means any unit comprising the whole or part of a building that is separately let out.
It does not mean it cannot mean that composite leases of land and building would not be covered by it.
That would be clearly contrary to the language of the whole clause which specifically talks of joint letting of land and building.
The second is the restriction of the applicability of section 2(2) to cases of letting of building and appurtenant lands only.
It may be suggested that the lands here are not "appurtenant" except perhaps to the extent required for providing access to the Kaichalai.
This argument is not very helpful to the appellants.
At best, it can mean that the Kaichalai and only a part of land needed for its enjoyment or use would be governed by the Rent Control Act.
But this was not the contention of the appellant and no attempt has been made to ascertain what the extent of such "appurtenant" land could be.
That apart, we are inclined to think that the word "appurtenant" has, in the context, a much wider mean ing.
It is not just restricted to land which, on a consider ation of the circumstances, a court may consider necessary or imperative for its enjoyment.
It should be construed as comprehending the land which the parties considered appro priate to let along with the building.
To hold to the con trary may give rise to practical difficulties.
Suppose there is, in the middle of a metropolis, a bungalow with a vast extent of land sur 796 rounding it such as for e.g. in the Larsen & Toubro case and this is let out to a tenant.
If a very strict and narrow interpretation is given to the word "appurtenant", it is arguable that a considerable part of the surrounding land is surplus to the requirements of the lessee of the building.
But, we think, no argument is needed to say that such a lease would be a lease of building for the purposes of the Rent Control Act.
Where a person leases a building together with land, it seems impermissible in the absence of clear intention spelt out in the deed, to dissect the lease as (a) of building and appurtenant land covered by the Rent Control Act and (b) of land alone governed by other relevant statu tory provisions.
What the parties have joined, one would think, the court cannot tear as under.
In fact, we may point out that a wider meaning for this word was convassed in Irani vs Chidambaram Chettiar, AIR 1953 Madras 650 which the court had no necessity to go into in the view taken by it on the interpretation of the lease deed.
In this case also no contention has been raised in regard to this aspect and so we shall also leave open the precise connotation of the word except to say that it may warrant a wide meaning in the context.
For the reasons discussed above, we see no grounds to interfere with the judgments of the courts below.
The appeal is dismissed but we make no order as to costs.
R.S.S. Appeal dis missed.
| IN-Abs | On 9.6.1936 the predecessor in interest of the respond ents executed a lease deed in favour of the predecessor in interest of the appellant, for a period of 15 years.
The property leased out was vacant land, well and Kaichalai, and the lessee was permitted to construct on the vacant land and install petrol selling business.
It was further stipulated that after the expiry of the lease period the lessee shall at his own expense remove the structure put up by him and deliver possession of the vacant land together with well and Kaichalai.
The lease was extended from time to time.
The lessor had filed petitions in 1962 and 1979 to evict the lessee under the Madras Buildings (lease and Rent Control) Act, 1950 but without success.
Thereafter, in 1979 the present respondents instituted a petition for eviction of the lessee on the ground of demolition and reconstruc tion, and of wilful denial of title, within the meaning of Sections 14(1)(b) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act.
In the meantime, the provisions of the Tamil Nadu City Tenants ' Protection Act, 1922 were extended to the municipal limits of Udamalpettai.
Taking advantage of this, the lessee filed petition claiming the benefit of compulsory purchase conferred on tenants of land under the said Act.
The Dis trict Munsif cum Rent Controller allowed the lessor 's peti tion for eviction and dismissed the lessee 's petition for compulsory purchase.
The Sub Judge dismissed the appeals.
The lessee fried two revision petitions before the High Court which declined to interfere.
Before this Court it was contended on behalf of the appellant that the original lease comprised only of the vacant site, well and Kaichalai; the kaichalai was merely in the nature of a shed put up for the tethering 783 of cattle and it was not a 'building ' within the meaning of Section 2(2) of the Rent Control Act; though the small Kaichalai was situated in a corner of the site, the lease intended by the parties was only that of the site.
It was further contended that where a lease was a composite one of land and buildings, the court had to address itself to the primary or dominant intention of the parties; if the inten tion was to lease a building the lease of land being ad junct or incidental, the Rent Control Act would apply; on the other hand, if the dominant intention was to lease a site the presence of a building thereon not being consid ered material by either party the lease would not be one of a 'building ' covered by the Rent Control Act.
Larsen & Toubro case ; , relied upon.
On behalf of the respondents it was contended that, in the case of a composite lease; the existence of a building or hut on the land (howsoever small, insignificant or use less it may be) was sufficient per se to bring the lease within the scope of the Rent Control Act.
Irani vs Chidambaram Chettiar, AIR 1953 Madras 650 and Salay Mohd. Sait vs
J.M.S. Charity, [1969] 1 MLJ SC 16, relied upon.
Dismissing the appeals, this Court, HELD: (1) The Tamil word "kaichalai" seems to denote a structure or a roof put up by hand.
Whatever may be the precise meaning of the term, the definition in Section 2(2) of the Rent Act clearly includes the 'kaichalai ' in the present case.
[789D] (2) Since the Rent Act applies to residential and non residential buildings alike, the expression 'hut ' cannot be restricted only to huts or cottages intended to be lived in.
It will also take in any shed, hut or other crude or third class construction consisting of an enclosure made of mud or by poles supporting a tin or asbestos roof that can be put to use for any purpose, residential or non residential, in the same manner as any other first class construction.
[789E F] (3) In the case of composite lease of land and building, a question may well arise whether the lease is one of land although there is a small building or hut (which does not really figure in the transaction) or of a lease of the building (in which the lease of land is incidental) or a lease of both regardless of their respective dimensions.
[790G] 784 (4) It is not always necessary that there should be a dominant intention swaying the parties.
There may be cases where all that is intended is a joint lease of both the land and the building without there being any consideration sufficient to justify spelling out an intention to give primacy to the land or the building.
The test of dominant intention or purpose may not be very helpful in such cases in the context of this legislation.
[791F; 792B] Sivarajan vs Official Receiver, AIR 1953 Trav.
Co. 105; Nagamony vs Tiruchittambalam, AIR 1953 Trav.
Co. 369; Offi cial Trustee vs United Commercial Syndicate, ; Raj Narain vs Shiv Raj Saran, AIR ; Ven kayya vs Subba Rao, AIR 1957 AP 619; Uttam Chand vs Lalwani, AIR 1965 SC 716 and Dwarka Prasad vs Dwarkadas, ; (5) In the context of this case, we should be guided not by any theory of dominant purpose but by the consideration as to whether the parties intended that the building and land should go together or whether the lessor could have intended to let out the land without the building.
[794B] Sultan Bros. P. Ltd. vs C.I.T., ; , referred to.
(6) Having regard to all the facts and circumstances, the correct inference appears to be that what the lessor intended was a lease of both the land and the building, this being a composite lease with a composite purpose.
In these circumstances, this letting would come in within the scope of Rent Control Act.
[795C] (7) Where a person leases a building together with land, it seems impermissible in the absence of clear intention spelt out in the deed, to dissect the lease as (a) of build ing and appurtenant land covered by the Rent Control Act and (b) of land alone governed by other relevant statutory provisions.
What the parties have joined, the court cannot tear as under.
[796B]
|
TION: Criminal Appeal No. 302 of 1990.
From the Judgment and Order dated 29.1.1990 of the Delhi High Court in Crl.
Writ Petition No. 657 of 1989.
Harjinder Singh and R.N. Joshi for the Appellant.
N.S. Hegde, Additional Solicitor General and Udai Lalit for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
Leave granted.
This appeal is directed by the detenu, Mahesh Kumar Chauhan Banti questioning the correctness of the judgment made in Criminal Writ Petition No. 657/89 by the High Court of Delhi dismissing the petition as devoid of any merit.
The above Writ Petition out of which this present appeal has arisen was filed by the appellant, Mahesh Kumar Chauhan against the order of detention dated 13.7.1989 clamped upon him by the first respondent, Union of India in exercise of the powers conferred by Section 3(1) of the (hereinafter referred to as the 'Act ') with a view to pre venting the detenu from engaging in transporting and con cealing smuggled goods and dealing in smuggled goods other wise than by engaging in keeping smuggled goods.
The entire facts of the case are well set out in the grounds of detention and, therefore, we think that it is not necessary to reiterate the same.
Mr. Harjinder Singh, learned counsel appearing on behalf of the appellant raised a variety of contentions, one of which being that there is an inordinate and unexplained delay in considering and disposing of the representation of the detenu dated 18.8.89 and as such the continued detention of the appellant is impermissible and unconstitutional as being violative of the mandatory provisions of Article 22(5) of the Constitution of India.
982 In the counter affidavit filed on behalf of the respond ent before the High Court, the declarant namely, Joint Secretary, Department of Revenue, Ministry of Finance while refuting the allegation of the appellant that his represen tation has been dealt with in 'cavalier manner ' has stated that the petitioner has made his representation on 21.8. 1989 and not on 18.8.1989 as alleged by the appellant and that it was received in the office of his Department on 23.8.89 and the same was forwarded to the concerned sponsor ing authority on 25.8.1989.
The Sponsoring Authority sent his comments only on 11.9.1989.
Thereafter, the representa tion along with the comments was processed and put up before the Ministry of State for Revenue, who considered and re jected the same on 15.9.1989 subject to the approval of the Finance Minister.
On 18.9.89 the file was received back from the Finance Minister 's office and the memorandum was issued on 19.9.89 rejecting the representation.
Mr. Harjinder Singh submitted that the offices of the detaining authority and the sponsoring authority are within the metropolis of Delhi and that there is absolutely no explanation for the delay occasioned on the part of the sponsoring authority in send ing his comments till 11.9.1989 though the representation was sent for comments to the said authority even on 25.8.1989 and that this considerable delay at the hands of the sponsoring authority stands unexplained vitiating the order of detention.
In support of the above contention, he placed much reliance on the decision of this Court in Rama Dhondu Borade vs
V.K. Saraf, Commissioner of Police & Ors., to which one of us (Ratnavel Pandian, J.) was a party.
In the above cited decision, this Court after referring to the dictum laid down in Smt.
Shalini Soni vs Union of India, ; and some other decisions of this Court dealing with the similar questions of delayed disposal of representation, has laid down the following proposition of law: "The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India.
Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu for wards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasona ble dispatch and to dispose the same as expeditiously as possible.
This constitutional requirement must be satisfied with respect but if this constitutional imperative is ob served in breach, it would 983 amount to negation of the constitutional obligation render ing the continued detention constitutionally impermissible and illegal, since such a breach would defeat the verycon cept of liberty the highly cherished right which is en shrined in Article 21 of the Constitution.
" However, in the same decision, it has been pointed out "What is reasonable dispatch depends on the facts and cir cumstances of each case and no hard and fast rule can be laid in that regard.
" We hasten to say in this connection that inspite of the fact this Court in a series of decisions has repeatedly and consistently laid down the rule in precise and clear terms that all the procedural safeguards prescribed in under Article 22(5) of the Constitution of India should be scrupu lously and strictly observed one of which as ingrained in our system of judicial interpretation, being that the detenu shall be afforded an earliest opportunity of making a repre sentation against the validity of the order of detention clamped upon him and that representation should be consid ered and disposed of as expeditiously as possible How far this Court has seriously viewed the culpable suppine indifference, callousness and recalcitrant attitude on the part of the appropriate authorities who while dealing with the representations at various stages and disposing of the same cause considerable delay is prismatically reflected with enhanced intensity through a plethora of pronouncements of this apex Court.
We may appositely refer to a few.
Shelat, J. in Khairul Haque vs State of West Bengal, Writ Petition No. 246 of 1969 decided on 10.9.69 reported in 1969 II Supreme Court Weekly Reports 529 after referring two earlier decisions in Sk Abdul Karim and Others vs State of West Bengal, and Durga Show and Ors.
vs State of West Bengal; [ has observed thus: "The fact that article 22(5) enjoins upon the detaining author ity to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such representa tion must, when made, be considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning".
(emphasis supplied) 984 A Constitution Bench of this Court in Jayanarayan Sukul vs State of West Bengal, [ 19 has highly depricated the conduct of appropriate authorities in unduly and unreasonably delaying the consideration and disposal of a representation and stated as follows: "The reason for immediate consideration of the representa tion is too obvious to be stressed.
The personal liberty of a person is at stake.
Any delay would not only be an irre sponsible act on the pan of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities." (emphasis ,supplied) ' Sarkaria, J. in Shaik nanif & Ors.
vs State of W. B., ; has expressed as follows: "It is the duty of the Court to see that the efficacy of the limited, yet crucial, safeguards provided in the law of preventive detention is not lost in mechanical routine, dull ' casualness and chill indifference on the part of the authorities entrusted with their application.
In Raisuddin vs State of U.P., [ ; , it is pointed out, " . . if on such examination, it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority/State.
Government in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu . . " Chinnappa Reddy, J. in Frances Coralie Muffin vs W.C. Khambra and Others, [ ; has expressed his view saying: " . .
No allowance can be made for lathgargic indifference.
No allowance can be made for needless procras tination.
" We do not like to swell this judgment by recapitulating all the pronouncements of this Court on this point.
985 Now the unchallengeable legal proposition that emerges from a host of decisions, a few of which we have referred to above.
is that a representation of a detenu whose liberty is in peril and deprived should be considered and disposed of as expeditiously as possible; otherwise the continued deten tion will render itself impermissible and invalid as being violative of the constitutional obligation enshrined in Article 22(5) of the Constitution and if any delay is oc cured in the disposal of a representation, such delay should be explained by the appropriate authority to the satisfac tion of the Court.
Inspite of the weighty pronouncements, of this Court making the legal position clear, it is still disquiting to note that on many occasions the appropriate authorities cause considerable delay in considering and disposing of representations and also exhibit culpable indifference in explaining such delay.
We feel that in case the appropriate authority is unable to explain personally the delay at various stages, then it will be desirable indeed appropri ate for the concerned authority or authorities at whose hands the delay has occurred to individually explain such delay.
The next question is should or can the Court in the absence of any explanation wink at or skip over or ignore such an infringement of the constitutional mandate and uphold an order of detention merely on the ground that the enormity of allegations made in the grounds of detention is of very serious nature as in the present case? Our answer would be 'Not at all '.
In this connection, it will be relevant to make refer ence to the view expressed by Mathew, J. speaking for the majority in Prabhu Dayal Deorah vs The District Magistrate, Kamrup and Others, ; which is as follows: "We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from antiso cial activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in ac cordance with the procedure established by the Constitution and the laws.
The history of personal liberty is largely the history of insistence on observance of procedure.
And ob servance of procedure has been the bastion against wanton assaults on personal liberty over the years.
Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in 986 accordance with the procedure established by law.
" Reverting to the facts of the present case as submitted by the learned counsel, except merely mentioning that the representation was forwarded to the concerned sponsoring authority on 25.8.1989 and the comments from the sponsoring authority was received by the Department on 11.9.1989, there is absolutely no explanation as to why such a delay had occurred.
Therefore, in the light of the proposition laid down in Rama Dhondu Borade 's case (albeit), we have no other option except to allow this appeal on the ground that this undue and unexplained delay is in violation of the constitu tional obligation enshrined in Article 22(5) of the Consti tution of India rendering the impugned order invalid.
For the foregoing reasons, we set aside the order of the High Court, allow the appeal and direct the detenu to be set at liberty forthwith, unless his detention is required for some other cause.
N.P.V. Appeal al lowed.
987 SHAMBHU DAYAL AGARWALA V. STATE OF WEST BENGAL AND ANR.
MAY 3, 1990 [section RANGANATHAN AND A.M. AHMADI, JJ.] : Sections 3, 6A to 6C, 6E and 7(1) (b) Seizure of essential commodity under sec tion 6A Breach of order under section 3 Prosecution pro ceedings pending Bar on courts to make an order with regard to the possession, delivery, disposal, release or distribu tion of such commodity except the Collector Whether the Collector empowered to release the seized goods to owner or to the person from whom the commodity is seized? On September, 20. 1987 the officers of the Enforcement Branch raided the factory premises of the Appellant engaged in the manufacture of Mustard Oil.
562 bags of mustard seeds and 262 tins of oil were seized for alleged violation of the conditions of licence as well as orders issued under section 3 of the Act.
An F.I.R. was lodged with the police and as required under section 6A, the report of the seizure of the goods was also made to the Collector followed by filing of a Chargesheet before the Special Judge.
The petitioner moved the High Court by a writ Petition for quashing the proceed ings.
The learned single Judge of the High Court disposed of the Writ Petition reserving liberty to the Petitioner to move the concerned Collector for release of the seized goods.
The Petitioner accordingly moved an application under section 6E before the concerned Additional Collector for release of the seized goods.
The Collector dropped the confiscation proceedings and ordered the release of the seized goods to the Petitioner.
Against this order the State Government preferred a Revision to the High Court.
The High Court allowed the Revision and set aside the order of re lease of the seized goods passed by the Collector holding that under the provisions of section 6A read with section 6E of the Act, the Collector had no power to release the seized goods.
Aggrieved by this order the Petitioner has come up in appeal by special leave to this Court.
Dismissing the appeal.
this Court.
HELD: The Scheme of sections 6A. 6B and 6C makes it clear that after the essential commodity is seized and the same is inspected by the concerned Collector, the latter has to decide after complying with the 988 procedure set out in section 6B, whether or not to confis cate the essential commodity.
Since the procedure delineated in section 6B is time consuming, the Collector has been given special power to sell the essential commodity as stated in sub section (2) of section 6A if it is subject to speedy and natural decay or it is expedient in public inter est so to do.
If the Collector decides not to confiscate the commodity and if no prosecution is launched or contemplated the commodity has to be returned to the owner or person from whom it was seized.
If in the meantime it is sold in exer cise of power under sub section (2) of Section 6A, the price of Commodity has to be paid as provided by sub section (3) of section 6A. [998C E] Sub section (2) of section 6C uses the prefix 'return ' followed by the words 'the essential commodity seized ' and not the word 'release '.
It seems that having regard to the scheme of the Act, the object and purpose of the statute and the mischief it seeks to guard against, the word 'release ' is used in the limited sense of release for sale, etc., so that the same becomes available to the consumer public.
There could be no question of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood completed and before the termination of the prosecution in the acquittal of the offender.
[998F H] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3 10 of 1990.
From the Judgment and Order dated 11.5.
1988 of the Calcutta High Court in Crl.
No. 402 of 1988.
P.P. Rao, R.K. Gupta and P.C. Kapur for the Appellant.
Kapil Sibbal, Additional Solicitor General, G. Venkatesh Rao, D.K. Sinha, J.R. Das, H.K. Puri and A. Paul for the Respondents.
The Judgment of the Court was delivered by AHMADI, J. Special leave granted.
The short question which arises for our determination is whether the Collector to whom a report of seizure of any essential commodity is made under section 6A of the Essen tial Commodities Act, 1955 (hereinafter called 'the Act '), is empowered by virtue of section 6E of the Act to release the goods seized in pursuance of an order made 989 under section 3 in relation thereto during the pendency of the proceedings before the Special Court? The facts, in brief, are as Under: The petitioner being engaged in the manufacture of mustard oil at his factory at 1, Canal Road, Police Station Behala, Calcutta 53, was required to maintain a stock of mustard seed at his factory premises.
A contingent of offi cers of the District Enforcement Branch led by the Investi gating Officer Gopal Mosat, the complainant, raided the factory premises of the petitioner on the morning of Sunday, September 20, 1987, in the absence of the petitioner.
The said raid continued till the early hours of September 21, 1987.
During the said raid 562 bags of Mustard Seeds and 267 tins of Mustard Oil, weighing about 39.92 quintals, were seized for purported infraction of the conditions of the licence as well as the orders issued under section 3 of the Act.
The Investigating Officer filed a written complaint in that behalf at the Behala Police Station which came to be treated as the First Information Report.
The report of the seizure of the essential commodity was made to the concerned Collector as required by section 6A of the Act for initiat ing confiscation proceedings.
On September 27^ 1987, a charge sheet was filed before the learned Special Judge.
It may be mentioned that before the submission of the charge sheet a Writ Petition was filed in the High Court wherein certain interim orders were made with which we are not concerned.
Suffice it to say that the said Writ Petition was disposed of by a learned Single Judge of the High Court on February 2, 1988, reserving liberty to the petitioner to apply for release of the seized goods to the Collector before whom the confiscation proceedings were pending.
Thereupon, the petitioner preferred an application on Febru ary 9, 1988 under section 6E of the Act before the Addition al Collector for release of the seized commodities.
On March 11, 1988 the said officer dropped the confiscation proceed ings, albeit without prejudice to the prosecution pending before the Special Judge, and directed the release of the seized commodities.
Feeling aggrieved by the said order of release, the State Government invoked the revisional juris diction of the High Court.
The said Criminal Revision No. 402 of 1988 was allowed by the High Court on May 11, 1988.
The High Court set aside the impugned order of release of the seized goods holding that under the provisions of sec tion 6A read with section 6E of the Act, the Collector had no power to order release of the seized commodity.
The High Court approached the question thus: "Under Section 6A of the Act the Collector has under certain circumstances been given power to confiscate the 990 goods.
By Section 6A the Collector has not been given any power to release the goods.
Section 6E is to be read in the perspective of the provision of Section 6A of the Act be cause of the phrase "pending confiscation" under Section 6A used in Section 6E.
If the Collector has not been given any power to release the goods under Section 6A, it can never be assumed that by Section 6E which gives some interim power to the Collector with reference to the proceeding under Section 6A, the Collector has been given any power to release the goods after finding that the goods cannot be confiscated.
Under Section 6A the Collector may order confiscation of the essential commodities so seized.
He has not been given any power to release the goods.
" Mr. P.P. Rao, the learned counsel for the petitioner/appellant contended that on the Collector having dropped the confiscation proceedings it was incumbent on him to pass the consequential order of release under section 6E of the Act.
According to him since the jurisdiction of the Court to make orders with regard to the possession, deliv ery, disposal, release or distribution of such essential commodity is specifically and expressly barred by section 6E of the Act, the Collector alone has jurisdiction to order release of the seized goods.
The words 'pending confisca tion ' employed in section 6E of the Act go with the word 'seize ' and are, therefore, descriptive of the essential commodity and are not intended to limit the powers of the Collector, argued counsel.
He, therefore, submitted that section 6E confers wide powers on the Collector to release the goods at any stage of the proceedings and the High Court was not justified in placing a narrow construction on the language of the said provision.
On the other hand Mr. Kapil Sibal, the learned Additional Solicitor General while sup porting the impugned order of the High Court, argued that the power to release conferred by section 6E on the Collec tor refers to release in favour of a third party and not the party from whom the essential commodity was seized.
Accord ing to him if the construction placed on section 6E on behalf of the petitioner is accepted it would defeat the very purpose of the Act.
therefore, submitted that this was not a fit case to interfere with the order passed by the Division Bench of the High Court.
In order to appreciate the rival view points we may at the outset examine the scheme of the Act.
The Act, as the Preamble reveals, was enacted to provide, in the interest of the general public, for the control of production, supply and distribution of, and trade and commerce in 991 certain commodities.
It extends to the whole of India.
The dictionary of the Act is contained in section 2.
Section 2(ia) defines 'Code ' to mean the Code of Criminal Procedure, 1973.
Section 2(f) says that words and expressions used but not defined in the Act and defined in the Code shall have the meanings assigned to them in the Code.
Section 3 empow ers the Central Government to provide for regulating or prohibiting the production, supply and distribution of essential commodity and trade and commerce therein if the same is considered necessary or expedient inter alia for maintaining or increasing supplies of any essential commodi ty or for securing their equitable distribution and avail ability at fair prices.
Sub section (2) of section 3 out lines what an order made under sub section (1) thereof may provide.
Besides regulating by licences, permits or other wise the manufacture or production of any essential commodi ty or the storage, transport, distribution, disposal, acqui sition, use, consumption, etc., thereof, the order may, inter alia, provide for controlling the prices at which the essential commodity may be bought or sold and may also require any person holding in stock any essential commodity to sell the whole or a specified part of the quantity held in stock or produced or received by him or likely to be produced or received by him to the Central Government or a State Government or to an officer or agent of such Govern ment, etc.
Sub section (3) of section 3 provides for deter mination of the price to be paid to the person from whom the essential commodity is so purchased.
Section 6 lays down that an order passed under section 3 will have effect not withstanding anything inconsistent therewith contained in any other enactment or instrument.
Then comes section 6A which provides for the confiscation of essential commodity.
Subsection (1) of this section may be reproduced for ready reference: "6A Where any essential commodity is seized in pursuance of an order made under section 3 in relation thereto it shall be reported without any unreasonable delay to the Collector of the district in which such essential commodity is seized and the Collector may, if he thinks it expedient so to do, inspect or cause to be inspected such essential commodity, whether or not the prosecution is instituted for the contra vention of such order and the Collector, if satisfied that there has been a contravention of the order, may order confiscation of (a) the essential commodities so seized; (b) any package, covering or receptacle in which such essen tial commodity is found; and 992 (c) any animal, vehicle, vessel, or other conveyance used in carrying such essential commodity ;" Sub section (2) of the said section empowers the Collector to sell any essential commodity, if the same is subject to speedy and natural decay or it is otherwise expedient so to do in public interest, at the controlled price, if any, fixed therefore or by public auction if no such price is fixed.
If the Central or the State Government has fixed the retail sale price of such commodity under the Act or under any other law, the Collector is empowered to order its sale through fair price shops at the price so fixed.
Section 6B posits that no order of confiscation of any essential com modity or conveyance, etc., shall be made unless the owner or the person from whom it is seized has been served with a notice informing him of the grounds on which it is proposed to confiscate the same and he has been given reasonable time to make a representation in writing against the grounds set out in the notice and has been given a reasonable opportuni ty of being heard.
This section incorporates the principles of natural justice to ensure that the owner of person from whom the essential commodity is seized has the fullest opportunity to satisfy the Collector against passing a confiscation order under Section 6A.
An appeal is provided by section 6C against the order of confiscation passed under section 6A. Section 6D clarifies that an award of confisca tion under the Act by the Collector shall not prevent the infliction of any punishment to which the concerned person is liable under the Act.
We then come to Section 6E which was inserted in the Act in place of the existing provision by Act No. 42 of 1986 with effect from 9th September, 1986.
Since the incident in question relates to a date subsequent to 9th September, 1986, it is unnecessary to notice the earlier provision.
Section 6E which confers exclusive juris diction on the Collector and in the State Government con cerned under section 6C to pass certain orders pending confiscation reads as under: "Whenever any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto, or any package, coveting or receptacle in which such essential commodity is found, or any animal, vehicle, vessel Dr other conveyance used in carrying such essential commodity is seized pending confiscation under Section 6 A, the Collec tor, or, as the case may be, the State Government concerned under Section 6 C shall have, and, notwithstanding anything to the contrary contained in any other law for the time being in force, any court, tribunal or other authority 993 shall not have, jurisdiction to make orders with regard to the possession, delivery, disposal, release or distribution of such essential commodity, package, coveting, receptacle, animal, vehicle, vessel or other conveyance".
It is obvious on a plain reading of this provision that the same was brought on the statute book with a view to debar ring the courts from making any order with regard to the possession, delivery, disposal or distribution of any essen tial commodity seized under an order made under section 3 of the Act.
Section 7 prescribed the penalties for the contra vention of any order made under section 3 and provides for the forfeiture of the essential commodity to the Government and for the forfeiture of any animal, vehicle or other conveyance used in carrying the said essential commodity, if the court so orders.
Section 10A makes every offence under the Act cognizable and non bailable, notwithstanding any thing contained in the Code.
Section 11 provides that no Court shall take cognizance of any offence punishable under the Act except on a report made by a public servant as defined by section 21, I.P.C., or any person aggrieved or any recognised consumer association.
Section 12A empowers the State Government to constitute by notification as many Special Courts as may be necessary and Section 12AA, which begins with a non obstante clause notwithstanding anything contained in the Code provides mat all offences under the Act shall be triable only by the Special Court constituted for the area in which the offence was committed.
Section 12AC makes the provisions of the Code (including the provi sions as to bail and bonds) applicable to the proceedings before the Special Courts as if it is a Court of Sessions unless the Act provides otherwise.
The above resume of the relevant provisions of the Act makes it clear that once an order is made by the Central Government under section 3 for regulating or prohibiting the production, supply and distribution of any essential commod ity it shall have effect notwithstanding anything inconsist ent therewith contained in any other enactment or instru ment.
Any person who contravenes any order made unless section 3 becomes liable to penal action under section 7 and the property in respect of which the order has been contra vened becomes liable to forfeiture.
Notwithstanding anything contained in the Code, the offence punishable under the Act for the contravention of an order under section 3 is cogniz able and non bailable and may be tried by the Special Court constituted for the area in which the offence was committed.
Thus the breach of an order made under section 3 attracts penal consequences, i.e., imprisonment and fine, and also renders the 994 property seized liable to forfeiture.
This is one conse quence of the breach of an order made under section 3 of the Act.
The Act also provides, section 6A, that where any essential commodity has been seized in pursuance of an order made under section 3 in relation thereto, a report of the seizure must be sent to the Collector without unreasonable delay, on receipt whereof the Collector may inspect the seized property .and on being satisfied about the contraven tion of the order made under section 3 may order the confis cation of such essential commodity and any package, covering or receptacle wherein such essential commodity is found as well as any animal, vehicle or conveyance used for carrying such essential commodity.
If the essential commodity is liable to speedy decay, the Collector is empowered to sell it at the controlled price, if any, or by public auction or through fair price shops if the retail sale price for such commodity is fixed.
The price so realised minus the expenses incurred for effecting the sale has to be paid to the owner of the essential commodity or the person from whom it was seized (a) where no order of confiscation is ultimately passed by the Collector, or (b) where the appellate order passed under Section 6C so requires or (c) where in a prose cution under the Act the person concerned is finally acquit ted.
An order of confiscation made after following the requirements of section 6B does not prevent the infliction of punishment under the other provisions (sections 7 to 10) of the Act.
Thus confiscation of the essential commodity etc., is not in lieu of punishment but can be in addition to the penal consequences.
It is in this background that we must examine the controversy before us.
Section 6A empowers confiscation of the seized essential commodity, the package, covering and receptacle in which the essential commodity was found and the animal, vehicle or other conveyance in which such essential commodity was carried.
The words 'may order confiscation ' convey that the power is discretionary and not obligatory.
Sub section (2) thereof confers a special power to deal with any essential commodity which, in the opinion of the Collector, is subject to speedy and natural decay or it is otherwise expedient in public interest to be disposed of in the manner indicated therein.
Section 6A, therefore, merely confers power of confiscation and not the power of release, disposal, distri bution, etc., except to the limited extent permitted by sub section (2) thereof.
Of course the second proviso to sub section (1) of Section 6A permits the grant of an option to pay, in lieu of confiscation of any animal, vehicle, vessel or other conveyance, a fine equal to its market price at the date of seizure.
Section 6E was first enacted to debar courts from making any order with regard to the pos session, delivery, disposal or distribution of any essential commo 995 dity seized in pursuance of an order made under section 3 in relation thereto.
By the substituted section 6E as it presently stands the scope of the provision has been en larged by extending the bar of jurisdiction of the Court, tribunal or other authority to the release, etc., of pack ages, coverings or receptacles as well as animals, vehicles, vessels or other conveyances also.
It provides that whenever any essential commodity is seized under an order made in exercise of power conferred by section 3 in relation thereto no court, tribunal or other authority shall have jurisdic tion to make any order with regard to the possession, deliv ery, disposal, release or distribution of such essential commodity save and except the Collector pending confiscation under section 6A, or the State Government concerned under section 6C.
The question then is whether this power of release which is conferred on the Collector pending confis cation is wide enough to permit the release of the essential commodity to the owner or to the person from whom it was seized, notwithstanding the pendency of prosecution for breach of an order made under section 3 in relation thereto? The Act was enacted to safeguard public interest.
It was thought necessary in the interest of the general public to control the production, supply and distribution of, and trade and commerce in, certain commodities through legisla tion.
With that in view, powers to control production, supply, distribution, etc., came to be conferred on the Central Government by section 3 of the Act.
As pointed out earlier, in order to deter persons dealing in such essential commodities from contravening any order made under section 3, the law envisages two independent proceedings, namely, (i) confiscation under section 6A and (ii) prosecution leading to punishment provided by section 7 of the Act.
In order to ensure that the steady supplies of essential com modities to the members of the general public is not dis rupted, provision is made in sub section (2) of section 6A that the Collector may, if it is expedient and in public interest so to do, sell the seized commodity at the con trolled price or by public auction if no such price is fixed or through the public distribution system if the retail sale price is fixed for the said commodity.
Similar powers can be exercised if the commodity is subject to speedy and natural decay.
The obvious purpose of conferring this power on the Collector without waiting for the completion of the confis cation proceedings is to maintain the smooth supplies of essential commodities to the consumer public, avoid artifi cial shortages, maintain the price line and secure equitable distribution thereof through fair price shops.
If such a power was not confined and if the seized commodity could not be dealt with till the completion of the confiscation pro ceedings, it would defeat the very object and purpose 996 for which the Act was enacted.
By the conferment of this power a duty is cast on the Collector to see that essential commodities are not locked up in proceedings under the Act; artificial scarcity is not created to hike up prices; a close watch is kept on the supplies to the general public; when necessary in public interest the stock of seized com modities is released to combat short supply and in general to ensure the availability of essential commodities at fair prices to the general public.
To ensure that this objective of maintaining supplies and securing equitable distribution of essential commodities is not defeated, the legislature has entrusted the task to the Collector in its entirety and has ruled out interference by courts, tribunals and other authorities by placing an embargo on their jurisdiction in this behalf by section 6E of the Act.
While conferring wide powers as above on the Collector, the legislature has also protected the dealer 's interest by providing that in the event it is ultimately found that he was not guilty of contravention of any order made under section 3, he shall be paid the price realised with reasonable interest.
But if the prosecution ends in a conviction, section 7(1)(b) enjoins that the property in respect of which the order was contra vened 'shah be forfeited ' to the Government.
The language of this clause is clearly mandatory and leaves no option to the Court but to order forfeiture.
This becomes clear if we read this clause in juxtaposition with clause (c) which confers a discretion on the Court to order forfeiture of any packing, coveting or receptacle in which the essential commodity was found or any animal, vehicle, vessel or any other conveyance which was used to carry the same.
If the property is re turned to the owner or the person from whom it was seized in exercise of power under section 6E, it is difficult to understand how the Court would implement the mandate of clause (b) of sub section (1) of section 7 of the Act.
But the learned counsel for the appellant argued that even in cases where the Collector sells the essential commodity under sub section (2) of section 6A and retains the price thereof, the essential commodity ceases to be available for forfeiture under clause (b) of section 7(1) of the Act.
He, therefore, submitted that the Act itself contemplates a situation which renders clause (b) of section 7(1) otiose where the essential commodity is disposed of by the Collec tor under sub section (2) of section 6A of the Act.
He, therefore, saw no harm in releasing the commodity to the owner or the person from whose possession it was seized on condition that such person deposits the market price of the commodity on the date of seizure or gives a bank guarantee for the said sum.
In this connection reference was also made to the provision in sub section (5) of Section 452 of the Code which inter alia provides that the term 'property ' shall include, 'in the case of property regarding which an 997 offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange whether immediately or otherwise '.
This definition can be invoked in view of section 2(f) of the Act which is not inconsistent with any provision of the Act.
But this submission overlooks the fact that the power conferred by sub section (2) of section 6A to sell the essential commodity has to be exer cised in public interest for maintaining the supplies and for securing the equitable distribution of the essential commodity.
If the essential commodity is returned to the person from whom it was seized or to the owner thereof, the very objective of the Act would be defeated and the purpose of seizure would be frustrated The seizure has to be effect ed not for the sake of earning revenue, i.e. the market price of the commodity at the date of seizure, which may be ultimately forfeited, but to prevent hoarding of essential commodities, avoid artificial shortages, maintain a steady supply to the community and ensure equitable distribution at fair and reasonable prices.
If the seized commodity is returned by merely securing its value, this objective of the act will be wholly defeated.
That is why section 6A does not empower the Collector to give an option to pay, in lieu of confiscation of the essential commodity, a fine not exceed ing the market value of the commodity at the date of sei zure, as in the case of any animal, vehicle, vessel or other conveyance seized along with the essential commodity.
Only a limited power of sale of the commodity in the manner pre scribed by sub section (2) of section 6A is granted.
This shows that the legislature did not intend to confer a power on the Collector to return the essential commodity to the owner or the person from whose possession it was seized.
That is for the obvious reason that it would run counter to the very object and purpose of the enactment.
And now to the structural setting and context in which the word 'release ' is used in section 6E.
While debarring courts, tribunals and other authorities from exercising power in relation to the seized commodity, power is con ferred on the Collector or the State Government concerned under section 6C, to make orders with regard to the posses sion, delivery, disposal, release or distribution of such commodity, etc.
This power can be exercised pending confis cation.
The power conferred by this section is unqualified.
The word 'release ' is preceded by the words 'possession, delivery and disposal ' and followed by the word 'distribu tion ' The setting and context in which the word 'release ' is used makes it clear that it is not used in the sense of 'return '.
In the first place as pointed out earlier it would completely defeat the 998 purpose and object of the Act if the essential commodity seized for suspected contravention of the order made under section 3 is returned to the owner or person from whom it was seized even before the confiscation proceedings were completed.
Such an intention cannot be ascribed to the legislature.
Secondly, it is not possible to believe that the legislature would confer unqualified and unrestricted power to return the essential commodity to the owner or the person from whose possession it was seized before a decision whether or not to confiscate the same is taken.
As the section stands, if the interpretation put by the learned counsel for the appellant is accepted, it would be permissi ble to the Collector to return or restore the commodity without imposing any condition, pending confiscation pro ceedings.
We are unable to persuade ourselves to accept the interpretation placed by Mr. Rao on the word 'release '.
The scheme of sections 6A, 6B and 6C makes it clear that after the essential commodity is seized and the same is inspected by the concerned Collector, the latter has to decide, after complying with the procedure set out in section 6B, whether or not to confiscate the essential commodity.
Since the procedure delineated in section 6B is time consuming, the Collector has been given special power to sell the essential commodity as stated in sub section (2) of section 6A if it is subject to speedy and natural decay or it is expedient in public interest so to do.
If the Collector decides not to confiscate the commodity and if no prosecution is launched or contemplated the commodity has to be returned to the owner or person from whom it was seized.
If in the meantime it is sold in exercise of power under sub section (2) of section 6A, the price of the commodity has to be paid as provided by sub section (3) of section 6A. If the Collector has ordered confiscation but the order is reversed in appeal under section 6C and no prosecution is pending, sub section (2) of section 6C enjoins that the essential commodity should be 'returned ' and if that is not possible its price together with reasonable interest.
It is pertinent to note that sub section (2) of section 6C uses the words 'return the essential commodity seized ' and not the word 'release the essential commodity seized '.
It seem to us that having regard to the scheme of the Act, the object and purpose of the statute and the mischief it seeks to guard against the word 'release ' is used in the limited sense of release for sale, etc., so that the same becomes available to the con sumer public.
There could be no question of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood completed and before the termination of the prosecution in_ the acquittal of the offender.
Such a view would render clause (b) of section 7(1) totally nugato ry.
It seems to us that section 6E is intended to serve a dual 999 purpose, namely (i) to prevent interference by courts, etc., and (ii) to effectuate the sale of the essential commodity under sub section (2) and the return of the animal, vehicle, etc., under the second proviso to sub section(1) of section 6A.
In that sense section 6E is complementary in nature.
We are, therefore, of the opinion that the High Court was right in the ultimate conclusion it reached.
Counsel for the appellant next pointed out that this Court had passed an interim order on December 8, 1988 for sale of the seized commodity and for handing over the sale proceeds to the appellant on the latter furnishing a bank guarantee to the satisfaction of the Special Judge, 24 Paraganas (South), Alipore.
Despite this order the seized commodity had not been disposed of Mr. Rao, therefore, contended that this Court should not assist the respondent State which had defied and thwarted the order of this Court.
It is true that the seized commodity has not been disposed of to date.
But it appears from the subsequent order of February 13, 1989 as amended by the order of February 15, 1989, that the only direction given to the Special Judge was to dispose of the pending prosecution within two months.
It was further directed that the Special Judge will pass appro priate consequential orders regarding the release of the seized goods.
It, therefore, becomes clear that when the subsequent orders were passed on February 13 and 15, 1989, the appellant did not insist on the sale of the seized commodity as per the order of December 8, 1988.
The matter came up for hearing on subsequent occasions also but at no time did the appellant press for the implementation of the said order of December 8, 1988.
Even after the Special Judge recorded an acquittal and directed return of the goods, the appellant did not seek implementation of the said order.
Nor did the appellant move the High Court for the implementation of the said order in the appeal pending against the order of acquittal.
It is, therefore, too late in the day now to contend that as the order of December 8, 1988 has remained unimplemented we should refuse to grant any relief to the respondent State.
For the reasons stated above we see no merit in this appeal and dismiss the same with costs.
R.N .J.
Appeal dismissed.
| IN-Abs | The appellant filed a writ petition before the High Court challenging the detention order passed against him under Section 3(1) of the , alleging that his representation was dealt with in a cavalier manner, resulting in undue delay in its disposal.
Refuting the allegation, it was contended on behalf of the respondents that the representation, received on 23.8.89, was forwarded to the sponsoring authority for comments on 25.8.89 and the comments were received only on 11.9.89, and orders rejecting the representation were issued on 19.9.89, after obtaining the orders of the appropriate authorities.
The High Court rejected the petition as devoid of any merit.
In the appeal before this Court, on behalf of the appel lant it was contended that the offices of the detaining authority and the sponsoring authority were within the same city and there was absolutely no explanation for the delay on the part of the sponsoring authority in sending the comments till 11.9.89, though the representation dated 18.8.89 was sent for comments to the said authority even on 25.8.89, thus vitiating the order of detention, and that in view of the inordinate and unexplained delay in considering and disposing of the representation, the continued detention of the appellant was impermissible and unconstitutional, as being violative of the mandatory provisions of Article 22(5) of the Constitution of India.
Allowing the appeal, this Court, 980 HELD: 1.1 A representation of a detenu whose liberty is in peril and deprived should be considered and disposed of as expeditiously as possible; otherwise the continued deten tion will render itself impermissible and invalid as being violative of the constitutional obligation enshrined in Article 22(5) of the Constitution and if any delay is occurred in the disposal of a representation, such delay should be explained by the appropriate authority to the satisfaction of the Court.
[985A B] Rama Dhondu Borade vs
V.K. Saraf, Commissioner of Police Bengal, [1969] II Supreme Court Weekly Reports 529; Jayana rayan Sukul vs State of West Bengal, ; Shaik Hanif& Ors.
vs State of W. B., ; ; Raisuddin vs State of U.P., ; and Frances Coralic Muffin vs
W.C. Khambra and Ors.
, ; , relied on.
1.2 Inspite of the weighty pronouncements, of this Court making the legal position clear, it is still disquieting to note that on many occasion the appropriate authorities cause considerable delay in considering and disposing of represen tations and also exhibit culpable indifference in explaining such delay.
In case the appropriate authority is unable to explain personally the delay at various stages, then it will be desirable indeed appropriate for the concerned author ity or authorities at whose hands the delay has occured to individually explain such delay.
[985C D] 1.3 The Court, in the absence of any explanation, cannot wink at or skip over or ignore such an infringement of the constitutional mandate and uphold an order of detention merely on the ground that the enormity of allegations made in the grounds of detention is of very serious nature, as in the present case.
[985D El Prabhu Dayal Deorah vs The District Magistrate, Kamrup & Ors., ; , relied on.
In the instant case, except merely mentioning that the representation was forwarded to the concerned sponsoring authority on 25.8.89 and the comments from the sponsoring authority were received by the Department on 11.9.89, there is absolutely no explanation as to why such a delay had occured.
This undue and unexplained delay is in violation of the constitutional obligation enshrined in Article 22(5) of the Constitution of India rendering the order invalid.
[986B C] 981 Rama Dhondu Borade vs
V.K. Saraf, Commissioner of Police & Ors., , relied on.
|
ivil Appeal Nos.
3752 3755 of 1982.
Appeal by Certificate from the Judgment and Order dated 2.2.1982 of the Allahabad High Court in Wealth Tax Reference No. 179 of 1978.
S.C. Manchanda, Raja Ram Agarwal, Dr. Meera Agarwal and R.C. Mishra for the Appellant.
889 Dr. V. Gauri Shankar, Manoj Arora and Ms. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by S.C. AGRAWAL, J.
These appeals, by certificate granted by the High Court under Section 29(1) of the Wealth Tax Act, 1957, (hereinafter referred to as 'the Act ') are directed against the judgment of the High Court of Allahabad dated February 2, 1982 in Wealth Tax Reference No. 179 of 1978.
The appellant, F.S. Gandhi (hereinafter referred to as 'the assessee '), owns properties situate at Mahatma Gandhi Marg and Sardar Patel Marg in Civil Lines area at Allahabad.
The lands on which these buildings stand were leased out to the assessee by the Government of Uttar Pradesh.
The leases in respect of these properties, except the property situate at 30 A, Mahatma Gandhi Marg, expired in 1958 and the lease in respect of the property situate at 30 A Mahatama Gandhi Marg expired in 1963.
The Government of Uttar Pradesh issued notices to the assessee to hand over vacant possession of the leasehold lands.
The properties are let out to the tenants and the assessee was receiving rental income from the same.
For the assessment years 197 1 72, 1972 73, 1973 74 and 1974 75 the assessee submitted the Wealth Tax returns wherein he valued the properties at ten times of the annual rental income.
The Wealth Tax Officer passed assessment orders wherein he valued the properties at fifteen times of the annual rental income.
On appeal, the Appellate Assistant Commissioner of Wealth Tax, valued the said properties at twelve and a half times of the annual rental income.
On further appeal, the Income Tax Appellate Tribunal (hereinaf ter referred to as 'the Tribunal ') valued the properties at ten times of the annual rental income.
At the request of the assessee the Tribunal referred the following questions of law to the High Court: "1.
Whether on the facts and circumstances of the case, the Tribunal was fight in holding that properties in respect of which leases had expired in 1958 and 1963 and notices had been received to hand over the possession were assets within the meaning of Section 2(e)(v) of the Wealth Tax Act and its value was liable to be included in the net wealth of the assessee? 890 2.
Whether on correct interpretation of Section 2(e)(v) and relevant provisions of Transfer of Property Act, the Tribunal was right in holding that the interest of the appellant in respect of properties in dispute was for a period over six years? 3.
Whether there was any material before the Tribunal to hold that on the relevant valuation date the property situated at 30 A, Mahatama Gandhi Marg worth ten times of its annual was rental income while in previous years the value of the said property was shown and accepted at Rs. 1, 19,000? 4.
Whether the Tribunal was right in holding that the property at 30 A, Mahatama Gandhi Marg, was to be valued on the basis .of its annual income along with other properties notwithstanding the property in question was commercial property while other properties were residential houses and whether the multiple upheld by the Tribunal is justified in law and on facts? 5.
Whether on the facts and circumstances of the case the multiple of ten times of rental income in respect of property at 30 A, Mahatama Gandhi Marg, is not excessive and wholly unjustified?" By order dated February 2, 1982, the High Court answered the said questions in the affirmative, i.e., in favour of the Department and against the assessee.
Thereafter the assessee moved an application under Section 29(1) of the Act for grant of certificate of fitness for appeal to this Court.
By 'order dated July 8, 1982, the High Court granted certificate of fitness on the view that the following ques tion is a question of law which is of general importance and as such this was a fit case in which an appeal could be filed before this Court: "Whether on the facts and circumstances of the case the Tribunal was fight in holding that the properties in respect to which leases had expired in 1958 and 1963 and notices had been received to hand over the possession were assets within the meaning of Section 2(e)(v) of the Wealth Tax Act and its valuation was liable to be included in the net wealth of the assessee?" 891 This question was amongst the questions referred to the High Court.
While dealing with the said question the High Court has held: "on the determination of a lease by efflux of time or by notice, it is the duty of the lessee to deliver vacant possession of the demised premises to the lessor.
If he continues in possession even after the determination of the lease, his possession is secured inasmuch as the lessor cannot evict him otherwise than in due course of law and if he continues in possession without the assent or dissent of the landlord, he would be a tenant at sufferance.
His pos session would be wrongful but not unlawful.
It is wrongful because the erstwhile tenant continues in possession beyond the expiry of the period fixed in the lease.
It is not unlawful because the landlord cannot take law into in his own hands and evict him.
But in case the landlord expresses his assent by acceptance of rent or otherwise to his contin uing in possession this wrongful possession would be con verted into a lawful one.
The landlord 's assent may be expresse or implied.
" Taking into consideration the facts of the present case the High Court has found that the leases of the properties expired in 1958 and that of 30 A, Mahatama Gandhi Marg in 1963.
The High Court has observed: "There is nothing on record to show that any attempt was made whatsoever by the State Government to enforce those notices given by it and the assessee had continued in peace ful possession and enjoyment of these properties all along.
In our opinion, therefore, the assent of the landlord to the assessee 's continuing in possession of these properties can be inferred and that being so that assessee would be treated to be a tenant of the same by holding over." According to the High Court after determination of the earlier leases the assessee is lessee of properties under a new contract of tenancy and this tenancy is a tenancy from month to month under Section 116 read with Section 106 of the Transfer of Property Act.
The High Court has further held that the present tenancy is a tenancy from month to month for an unstated period and it could not be said to be precarious in nature.
The High Court was of the view that the said tenancy is an asset.
as defined in Section 2(e) of the Act and is not 892 excluded under sub clause (v) because the said interest has been available to the assessee for a period exceeding six years from the date the new contract of tenancy came into existence.
In the Act, as originally enacted, Section 2(e)(v) read as under: "In .this Act, unless the context otherwise re quires X X X X X X (e) "assets" includes property of every description, movable or immovable, but does not include X X X X X X (v) any interest in property where the interest is available to an assessee for a period not exceeding six years.
" By the Wealth Tax (Amendment) Act, 1964 which came into force with effect from April 1, 1965, the words "from the date the interest vests in the assessee" were inserted at the end of sub clause (v) and thereafter, sub clause (v) read as under: "any interest in property where the interest is available to an assessee for a period not exceeding six years from the date the interest vests in the assessee.
" By the Finance Act, 1969 clause (e) of Section 2 of the Act was substituted by the following provision: "(e) "assets" includes property of every description, movable or immovable, but does not include (1) in relation to the assessment year commencing on the 1st day of April, 1969 or any earlier assessment year (i) agricultural land and growing crop, grass or standing trees on such land; (ii) any building owned or occupied by a cultivator of, or receiver of rent or revenue out of, agricultural land: Provided that the building is on or in the immediate 893 vicinity of the land is a building which the cultivator or the receiver of rent or revenue by reason of his connection with the land requires as a dwelling house or a store:house or an outhouse; (iii) animals; (iv) a right to any annuity in any case where the terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant; (v) any interest in property where the interest is available to an assessee for a period not exceeding six years from the date the interest vests in the assessee; (2) in relation to the assessment year commencing on the 1st day of April, 1970 or any subsequent assessment year (i) animals; (ii) a right to any annuity in any case where the terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant; (iii) any interest in property where the interest is avail able to an assessee for a period not exceeding six years from the date the interest vests in the assessee.
" As a result of the aforesaid amendment the provision which is applicable in relation to the assessment year commencing on the 1st day of April, 1970 and subsequent assessment years is sub clause (2) of clause (e) of Section 2.
Since the assessments in question relate to assessment years 1971 72 to 1974 75 the matter has to be considered in the light of the provisions contained in clause (e) of Section 2 of the Act as substituted by Finance Act, 1969.
In framing questions Nos. 1 and 2 for reference to the High Court the Tribunal has erroneously made a reference to sub clause (v) of clause (e) of Section 2 as it stood prior to the 1969 amendment.
The High Court, while answering these questions and granting the certificate of fitness for appeal to this Court, did not notice this error.
The provisions of Section 2(e)(v) as amended in 1964 are identical with the provisions of Section 2(e)(2)(iii), as substituted by the 1969 amend ment.
The error is, therefore, of no consequence and the matter has been examined by us in the 894 ight of the provisions contained in clause (e) of Section 2, as substituted in 1969.
Shri R.R. Agarwal, the learned counsel for the appel lant, has not disputed the findings recorded by the High Court that the assessee was n possession of the leasehold properties as a tenant holding over and hat the said tenancy was a tenancy from month to month for an restated period.
The submission of Shri Agarwal is that the interest of he assessee under the said tenancy could not be regarded as an 'asset ' ruder Section 2(e) of the Act and that it has to be excluded because he said interest cannot be regarded as an interest available to the assessee for a period exceeding six years from the date the interest vests in the assessee.
The aforesaid contention of Shri Agarwal involves inter pretation of the words "where the interest is available to an assessee for a period not exceeding six years from the date the interest vests in the assessee" contained in Sec tion 2(e)(2)(iii) of the Act.
The word "available" is pre ceded by the word "is" and is followed by the words "for a period not exceeding six years.
" The word 'is ', although normally referring to :he present often has a future mean ing.
It may also have a past signification as in the sense of 'has been ' (See Black 's Law Dictionary, 5th Edn. P. 745) We are of the view that in view of the words "for a period not exceeding six years" which follow the word "available" the word is ' must be construed as referring to the present and the future.
In that sense it would mean that the inter est is presently available and is to be available in future for a period not exceeding six years.
The High Court has construed the word 'is ' to mean 'has been '.
As per the construction placed by the High Court in a case where an interest has been created for a period exceeding six years it would be included in he assets of the assessee under Section 2(e) of the Act only after the expiry of the period of six years even though the interest is available to he assessee for a period exceeding six years from the date the interest tests in the assessee.
The construction placed by the High Court instead of placing emphasis on the nature of the interest attaches importance to the enjoyment of the interest.
We are unable to subscribe to that view.
In our opinion the question as to whether the interest should be included or excluded from the assets of the assessee under Section 2(e)(2)(iii) of the Act has to be considered in the light of he nature of interest on the relevant date.
Under the said provision he relevant date is the date on which the interest vests in the assessee.
Therefore, the matter has to be considered by examining the nature of the interest on the date the interest vests in the assessee.
895 This view of ours finds support from the decision of this Court in Commissioner of Wealth Tax, Madras vs Smt.
Muthukrishna Ammal; , wherein the provisions of Section 2(e)(v).
as it stood prior to the amendment of 1964, have been considered.
In that case the respondent assessee had obtained on lease from Government certain salt pans under two agreement dated January 1, 1943 and January 1, 1945, and each lease was to endure for 25 years but was liable to be determined by notice on either side at the close of any salt manufacturing season.
In relation to wealth tax assessment years 1959 60, a question arose as to whether the assessee 's interest in the salt pans for the unexpired period of the two leases was liable to be included in the computation of her net wealth.
This Court held that the interest of the lessee under each lease was precarious inasmuch as it was liable to be determined by notie by the Government at the expiry of any manufacturing season and that the leasehold interest in the salt pans was not avail able to the assessee for a period exceeding six years from the valuation date.
It was urged on behalf of the Revenue that since the assessee had enjoyed the rights under one lease for 16 years and in the other lease for 14 years and on the valuation date both the leases were outstanding, the rights were "assets" within the meaning of the Act and that the expression "is available to an assessee for a period not exceeding six years" in clause (v) of Section 2(e) means 'is and has been available to an assessee for the period of six years before the date of valuation. ' It was also urged that if interest in property though revocable has remained unre voked for more than six years before the valuation date, the interest would be an asset within the meaning of Section 2(e).
This Court rejected the said contention and held as under: "We are unable to agree with that contention.
The expression used by Parliament is "is available to an assessee for a period not exceeding six years", and it must mean that the assessee though he has interest in property at the valuation date the interest will remain available for a period not exceeding six years.
If it is to remain available for six years or for a shorter period the interest will fall within the exception: if it is to remain available for a period exceeding six years it will fall within the definition of "assets" and its value will be liable to be included in the net wealth of the assessee. ' ' In that case this Court has noticed the amendment intro duced in sub clause (v) of Section 2(e) by the Wealth Tax (Amendment) Act, 896 1964 but did not consider it necessary to deal with it because the said matter related to the period prior to the said amendment.
The High Court has sought to distinguish this decision on the view that the position has changed after the amend ment introduced in 1964 and that the insertion of the words 'from the date the interest vests in the assessee ' means that if an interest has been available to the assessee for a period exceeding six years from the date the interest vests in the assessee, it would be an asset while prior to its amendment if the interest was not available to an assessee for a period not exceeding six years it could not be treated as an asset.
The High Court has observed that as a result of the amendment of 1964, Section 2(e)(v) can be interpreted to mean that if an interests has been available to an assessee for a period exceeding six years from the date the interest vests in the assessee, it would be asset.
We are unable to agree with the said view.
While construing the words "is available to an assessee for a period not exceeding six years" this Court in Commissioner of Wealth Tax vs Smt.
Muthukrishna Ammal, (Supra) has rejected the contention urged by the Revenue that the said words mean "is and has been available to the assessee for a period of six years" and this Court has construed the said words to mean that "the interest will remain available for a period not exceed ing six years" meaning thereby that the interest must be such that on the relevant date it is available presently and is available for a period not exceeding six years in future.
The only change which was brought about in Section 2(e)(v) as a result of the amendment introduced in 1964, whereby the words "from the date the interest vests in the assessee" were inserted in that sub clause, was that prior to the said amendment the relevant date was the valuation date and the availability of interest had to be seen with reference to that date and as a result of the amendment of 1964, the relevant date became the date on which the interest vests in the asseses and, therefore, the availability of the interest was to be seen with reference to the date on which the interest vests in the assessee.
But the requirement that on the relevant date the interest would be available in future for a period exceeding six years, as held by this Court in Commissioner of Wealth Tax vs Smt.
Muthukrishna Ammal, (Supra), remained unaltered.
In this context, it may also be mentioned that Commis sioner of Wealth Tax vs Smt.
Muthukrishna Ammal, (Supra) was decided by this Court on September 6, 1968.
The Finance Act, 1969, whereby clause (e) of Section 2 of the Act was substi tuted, was enacted by Parliament on May 13, 1969.
In the amended provisions of clause (e), Parliament has repeated the same language, namely, "where the interest is avail 897 able to an assessee for a period not exceeding six years" in item (v) of sub clause (1) and in item (iii) of sub clause (2).
It must be assumed that while enacting the Finance Act, 1969, Parliament was aware of the construction placed by this Court on these words in Commissioner of Wealth Tax vs Smt.
Muthukrishna Ammal, (Supra).
In repeating the said words in the amended clause (e) of Section 2, Parliament must be taken to have used the said words to bear the mean ing which has been put upon them by this Court in Commis sioner of Wealth Tax vs Smt.
Muthukrishna Ammal, (Supra).
In the instant case, it has been found that after the expiry of the leases of the assessee in the years 1958 and 1963 the assessee continued in possession under a new con tract of tenancy and the said tenancy was a tenancy from month to month for an unstated period.
The said tenancy was precarious in nature because it could be terminated by the lessor, viz., the Government of Uttar Pradesh, at any time by a notice under Section 106 of the Transfer of Property Act.
The fact that such a notice was not given cannot mean that the interest created by the said new tenancy was an interest available to the assessee for a period exceeding six years from the date the interest vested in the assessee.
In the circumstances in view of Section 2(e)(2)(iii) the said interest could not be treated as an asset of the asses see for the purpose of the Act.
Our attention has been invited to the decision of the Allahabad High Court in Purshottam Dass Tandon and Others vs State of U.P., Lucknow and Others, A.I.R. 1987 All.
From the said decision it appears that a number of petitions were filed in the Allahabad High Court under Article 226 of the Constitution of India by lessees who had been granted leases of nazul lands in Civil Lines area of Allahabad and whose leases have expired and who were seeking renewal of those leases.
After considering the various orders that were passed by the Government of Uttar Pradesh, from time to time, the High Court, while disposing of the said petitions, has given the following to the opposit parties: (i) grant fresh leases to all those who had deposited the premium or at least one instalment on terms and conditions mentioned in 1959 Order read with 1960 Order; (ii) issue notices to all those lessees to whom no notice was issued and determine their premium etc.
on terms and conditions mentioned in 1959 60 Orders expeditiously; 898 (iii) determine premium etc.
of others to whom notices were issued but it could not be finalised for one reason or other at an early date; (iv) determine rate of premium etc.
for premises which are used as residential cum commercial purpose in light of 1965 Order; (v) determine rate of premium used for commercial purpose in light of various Orders issued till 1965; and (vi) lessees shall after grant of fresh leases file the necessary forms etc.
within one month before the Prescribed Authority under Urban Ceiling Act, 1976 (Act 33 of 76) if it had already not been filed who shall proceed to decide the same as expeditiously as possible.
In view of the aforesaid directions that have been given by the High Court it can be said that the assessee whose leases expired in 1958 and 1963, can ask for grant of fresh leases on the terms and conditions mentioned in 1959 and 1960 Orders issued by the Government of Uttar Pradesh.
In other words it can be said that in the relevant assessment years the assessee had the right to obtain fresh leases for the lands of the properties in question.
But there is noth ing to show that in pursuance of the said right fresh leases have been granted by the Government of U.P. in respect of those lands and such leases were available to the assessee during the assessment years in question.
For the reasons aforesaid it must be held that the properties in respect of which leases had expired in 1958 and 1963 and notices had been received by the assessee to hand over the possession were not assets within the meaning of section 2(e)(2)(iii) of the Act and the valuation of the same was not liable to be included in the net wealth of the assessee.
Question No. 1 referred by the Tribunal to the High Court must, therefore, be answered in the negative i.e. in favour of the assessee.
Question No. 2 referred by the Tribunal to the High Court is connected with Question No. 1 and both the questions were considered by the High Court together.
Since Question No. 1 is answered in Favour of the assessee, Question No. 2 must also be answered in the nega tive i.e., in favour of the assessee and it must be held that the Tribunal was not right in holding that the interest of the assessee in respect of the properties in dispute was for a period over six years for the purpose of Section 2(e)(2)(iii) of the Act.
899 In the result the appeals are allowed and the judgment and order of the High Court is set aside insofar as it relates to Questions Nos. 1 and 2.
The said questions are answered in favour of the assessee and against the Revenue.
No order as to costs.
N.P.V. Appeals allowed.
| IN-Abs | The appellant assessee owned certain properties on lease hold lands.
The leases in respect of these lands expired in 1958 and 1963 and the lessor State Government issued notices to the assessee to hand over vacant posses sion of the leasehold lands.
The properties were let out to the tenants and the assessee was receiving rental income from the same.
In the Wealth Tax Returns for the assessment years 1971 72, 1972 73, 1973 74 and 1974 75, the assessee valued the properties at ten times of the annual rental income.
In the assessment order the Wealth Tax Officer valued the properties at fifteen times of the annual rental income.
On appeal, the Appellate Assistant Commissioner of Wealth Tax valued the said properties at twelve and a half times of the annual rental income.
On further appeal, the Income Tax Appellate Tribunal valued the properties at ten times of the annual rental income, but, at the request of the assessee, referred to the High Court for its opinion certain questions of law, includ ing the questions whether the Tribunal was right in holding that the properties in respect of which the leases had expired in 1958 and 1963 and notices had been issued to hand over the possession were assets within the meaning of Sec tion 2(e)(v) of the Wealth Tax Act, 1957 and its value was liable to be included in the net wealth of the assessee and that, on correct interpretation of Section 2(e)(v) of the Wealth Tax Act, and relevant provisions of the Transfer of Property Act, the interest of the appellant in respect of properties in dispute was for a period of over six years.
887 The High Court held that after the determination of the earlier leases, the assessee was lessee of properties under a new contract of tenancy, and it was a tenancy from month to month under Section 116 read with Section 106 of the Transfer of Property Act, and for an unstated period, and could not be said to be precarious in nature, that the said tenancy was an asset as defined in Section 2(e) of the Act and was not excluded under sub clause (v) because the said interest had been available to the assessee for a period exceeding six years from the date the new contract of tenan cy came into existence.
It, however granted certificate of fitness to appeal to the Supreme Court.
Allowing the appeals, this Court, HELD: 1.
The properties in respect of which leases had expired in 1958 and 1963 and notices had been received by the assessee to hand over the possession were not assets within the meaning of Section 2(e)(2)(iii) of the Wealth Tax Act 1957 and the valuation of the same was not 'liable to be included in the net wealth of the assessee.
The Tribunal was not right in holding that the interest of the assessee in respect of the properties in dispute was for a period over six years for the purpose of Section 2(e)(2)(iii) of the Act.[898F H] 2.1 The word "available" in Section 2(e)(2)(iii) of the Act is preceded by the word "is" and is followed by the words "for a period not exceeding six years".
The word 'is ', although normally referring to the present, often has a future meaning.
It may also have a past signification as in the sense of 'has been '.
In view of the words "for a period not exceeding six years" which follow the word "available", the word 'is ' must be construed as referring to the present and the future.
In that sense, it would mean that the inter est is presently available and is to be available in future for a period not exceeding six years.
[896C D] The High Court has construed the word 'is ' to mean 'has been '.
As per the construction placed by the High Court in a case where an interest has been created for a period exceed ing six years it would be included in the assets of the assessee under Section 2(e) of the Act only after the expiry of the period of six years even though the interest is available to the assessee for a period exceeding six years from the date the interest vests in the assessee.
The con struction placed by the High Court attaching importance to the enjoyment of the interest, instead of placing emphasis on the nature of the interest is not correct.
[894E G] 2.3 The question as to whether the interest should be in cluded or 888 excluded from the assets of the assessee under Section 2(e)(2)(iii) of the Act has to be considered in the light of the nature of interest on the relevant date.
Under the said provision, the relevant date is the date on which the inter est vests in the assessee.
Therefore, the matter has to be considered by examining the nature of the interest on the date the interests vests in the assessee.
[894G H] Commissioner of Wealth Tax vs Smt.
Muthukrishna Ammal, ; , relied on.
In the instant case, after the expiry of the leases of the assessee in the years 1958 and 1963 the assessee contin ued in possession under a new contract of tenancy and the said tenancy was a tenancy from month to month for an un stated period.
The said tenancy was precarious in nature because it could be terminated by the lessor, at any time by a notice under Section 106 of the Transfer of Property Act.
The fact that such a notice was not given cannot mean that the interest created by the said new tenancy was an interest available to the assessee for a period exceeding six years from the date the interest vested in the assessee.
In the circumstances, in view of Section 2(e)(2)(iii) the said interest could not be treated as an asset of the assessee for the purpose of the Act.
[897C D] [Section 2(e)(v), as amended in 1964, was substituted by the Finance Act,1969 and the relevant provision applicable to the instant case was Section 2(e)(2)(iii).
However, in the reference to the High Court, the Tribunal referred to sub clause (v) of clause (e) of Section 2, as it stood prior to the 1969 amendment and the High Court also did not notice it.
This Court observed that since the provisions of Section 2(e)(v) as amended in 1964, were identical with the provi sions of Section 2(e)(2)(iii) as substituted by the 1969 amendment the error was of no consequence and examined the matter in the light of the provisions contained in Section 2(e) as substituted by the 1969 amendment.] [893G H; 894A]
|
ivil Appeal No. 2054 of 1990.
From the Judgment and Order dated 23.1.
1987 of the Central Administrative Tribunal, Calcutta in Transfer Appli cation No. 1263 of 1986.
A.P. Chatterjee, G.S. Chatterjee (NP) and Ms. Ratna Bhattacharya for the Appellants.
R.B. Dattar (NP), Anil Dev Singh, B.K. Prasad, C.V. Subba Rao and R.B. Misra for the Respondents.
816 A. Bhattacharya for the Intervener.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Special leave granted.
Station Masters of South Eastern Railways are aggrieved by implementation of the scheme of re structuring by the Chief Personnel Officer framed by the Railway Board for 'C ' and 'D ' cadre.
Their claim was not accepted by the Central Administrative Tribunal as implementation as such, was beneficial to the majority.
It was further found that alter native 'I ' of the scheme meant for the combined cadre was rightly adopted as the cadre of Assistant Station Master (ASM) and Station Master (SM) in the South Eastern Zone was combined before 1983.
The appellants have challenged cor rectness of these findings.
They also claim that implementa tion of scheme is highly unjust and inequitable.
Prior to re structuring the cadre comprised of Assistant Station Masters at the bottom and Station Superintendent at the top.
Initial appointment of ASM was made in the scale of Rs.360 540.
The promotional ladder bifurcated into (i) ASM to ASM and (ii) ASM to SM, both in the scale of Rs.425 640 (non selection) and then Rs.455 700 (selection) before becoming one common source for promotion to Deputy Station Superintendent/SM Rs.550 750 (non selection) Rs.700 800 Station Superintendent (selection) and Rs.840 1010 Station Superintendent (non selection).
For moving up the promotion al ladder every ASM was required to opt if he would proceed on the channel of ASM to ASM or ASM to SM.
Re structuring was done in 'C ' and 'D ' cadres in the scales, designation and percentage in selection and non selection posts.
Two alternatives were framed described as alternative 'I ' for the combined cadre and alternative 'II ' for the separate cadres.
They were to be adopted by the respective zones depending on the cadre pattern prevalent there.
One of the principles visualised for group 'C ' was that if all posts in an existing grade were en bloc placed in a higher grade the existing regular incumbents thereof were to be allowed the higher grade without subjecting them to any selection.
For ASM/SM two alternatives were provided to be adopted by the respective zones depending on whether the existing cadre was separate or combined.
In alternative 'I ' meant for the combined cadre SMs in the scale of Rs.425 640 and Rs.455 700 were designated as Deputy Station Superin tendents and 817 Station Superintendents in the scale of Rs.550 750 and Rs.700 900 respectively.
Therefore, the appellants claim that if alternative 'I ' was adopted, then it should have been given full play and the SMs who were working in the aforesaid scales should also have been placed en bloc in the re designated posts without any further process of selec tion.
In pursuance of the re structuring, the Chief Personnel Officer issued a letter to the Divisional Manager, South Eastern Railway that it had been decided that alternative 'I ' enunciated by 'the Board shall be followed on the South Eastern Railway.
It further provided that the existing system of calling for options from ASMs for the post of SMs/ ASMs in the higher grade was being dispensed with and sen iority of staff in each grade shall be determined on the basis of non fortuitous service rendered in such grade.
Other paragraphs of the letter are not relevant for the resolution of the present controversy.
Since the direction of the Chief Personnel Officer worked to prejudice of numer ous persons who had exercised their options to the promo tional channel of Station Master, they approached the High Court or Tribunal by way of Writ Petition or Claim Petition but without any success.
Some of such disputes came up for disposal before this Court in Civil Appeal Nos.
1536 41 of 1987 which were disposed of by order dated 30th July, 1987, directing the Railway Board to consider if the Chief Person nel Officer while implementing the scheme deviated from its terms and implemented it to the prejudice of those appel lants.
Since it was conceded that the scheme did not affect present status and emoluments, this Court then made it clear that implementation should not be done to prejudice of appellants.
It further protected the interests of those who due to wrong implementation might have got benefit by di recting that they shall not be disturbed.
The direction given by this Court was not complied with; therefore, con tempt proceedings were filed the hearing of which was de ferred till the disposal of the present appeals.
When these appeals were taken up for hearing, it tran spired that total number of employees of the appellants ' category were not more than 206.
Therefore, the Court passed the order on 26th JUly, 1989 that if relief was granted to these 206 employees.
by implementing the scheme in the manner indicated in the earlier order of 1987, they shall be satisfied and the litigation shall come to an end.
But nothing more was done and on 8th September, 1989 this Court after heating learned counsel for the parties at great length recorded that two questions were required to be looked into: (i) if the cadre of ASM and SM was common or different and (ii) if alternative 'I ' was adopted, then why 818 the SMs could not be re designated and Deputy Station Super intendents and wanted response of the Administration about them.
On both these aspects an affidavit was filed by the Chief Personnel Officer.
Regarding the first, it is stated that cadre of ASM and SM before restructuring was a common one in South Eastern Railway for all 'intents and purposes '.
It is explained that separate cadre meant that the ASMs and SMs would have sought their advancement separately, 'in a way different from them in the entire non gazetted cadre '.
And then ASM and SM had to combine again to work as Deputy Station Superintendent/SM.
In respect of automatic re desig nation, the explanation is that eight different scales of pay existing before re structuring were reduced to six and designation of ASM in the scale of Rs.455 700 and SM in scale of Rs.425 640, were abolished and the post belonging to six revised designations have been distributed on the prescribed percentage basis.
It is further stated that incumbents of the existing grades were promoted according to their positions of seniority against the posts which were available on percentage basis distribution.
Therefore, the contention of the petitioners that the Station Masters should be automatically designated as Deputy Station Super intendent was not correct.
According to the Chief Personnel Officer the appellants along with ' others in accordance with their seniority were required to be subjected to the proce dure of selection/suitability test as per procedure envis aged in the re structuring scheme.
The affidavit also at taches a letter from the Railway Board addressed to the General Manager, reiterating that the implementation of the scheme by the Chief Personnel Officer was as intended by the Board.
Facts as they ultimately emerge do not appear to have been adequately indicated in the affidavit of the senior officer even when the aspects were pointedly indicated by this Court.
It is not disputed that in the South Eastern Zone the practice of option by ASM for promotional channel was in vogue before 1983.
Dispute is about the time when it was exercised.
According to appellant it was at the time of recruitment and appointment even on pain of disciplinary action.
And option once exercised was irrevocable.
Whereas according to officials it used to be offered when vacancy arose according to seniority.
Unfortunately it was accepted by the Tribunal as well without any foundation in the record by shutting its eyes to various letters which clinch the issue in favour of the appellants, for instance the letter dated 14th May, 1965, and 20th May, 1970, issued by the Divisional Superintendent Railway filed before Tribunal, produced along with supplementary affidavit shows that options were required to be exercised by ASMs irrespective of availability of vacancy before the target 819 date and if it was not exercised then they were liable to disciplinary action.
And options, for or against could not be changed when once exercised.
Where it was not exercised on or before the date it was deemed to have been opted for ASM to SM.
No effort was made to meet these letters; yet an affidavit was filed that option was exercised when vacancy arose.
Options was thus exercised by appellants at the stage of appointment and recruitment.
But it appears to have resulted in dissatisfaction because even though the pay scales were identical those who became SM were entrusted with superviso ry control and administrative responsibility.
For this the ASM recruited in the same batch must have been unhappy.
And the SM must, also, have had the grievance as promotion in higher scale was obviously delayed because the post of SM must have been fewer in number as compared to ASM.
There fore, it was rightly abolished and was hailed by the two unions of employees.
But what happened to those who due to irrevocable option exercised prior to 1983 had been waiting for moving up and due to abolition of option and implementa tion of the alternative 'I ' lost the opportunity while ASMs junior to them availed it? No provision for them was made.
Even in this Court despite repeated directions, the Chief Personnel Officer or the Administration instead of resolving it have taken an uncharitable stand by asserting that those who opted for promotional channel of SM having enjoyed benefit of day duty and supervisory control on their own volition cannot be compared with ASMs whose working condi tions were different.
That is a person who worked with greater responsibility, and under strain must suffer.
What is surprising is that such unreasonable stand is supported even by the Board by relying on 'intents and contents '.
Even the claim of the Administration that cadre of ASM/SM was combined cadre in South East Railway was not substantiated by any document, letter or order.
On the other hand, from letter dated 10th May, 1984 issued by Additional District Pay Commissioner to General Manager recognises existence of separate cadre: "It is evident from the details furnished in the enclosure to your above quoted letter that your Railway had a separate cadre for ASMs/SMs and a decision had been reached prior to the issue of the restructuring orders No. PC.
III/80/ UPG/19 dated 29.7.83 to switch over to a combined cadre, except where in respect of any cadre or cadres avenues of advance ment have been prescribed by this Ministry, laying 820 down avenues of promotion in respect of non gazetted Railway staff, is within the competence of the General Managers of the zonal railways.
Since the matter has been processed on your railway in consultation and agreement of the two recog nised Trade Unions in the permanent Negotiating Machinery, the action by your Railway to switch over to a combined percentages scheme is within your powers. ' ' Existence of separate cadres prior to 1983 and changing over to a combined system is not the same thing as claiming that the cadre which existed prior to 1983 was a combined cadre.
Explanation in the affidavit while replying to the issue as to whether the cadre of ASM and SM was common or a different cadre is given thus: "The Railway Board 's letter dated 10.8.84 refers to only merging these two grades which should not mean that the cadre was separate.
In other words, the Railway Board 's said letter means that the action of the Railway to combine the two grades also is in order and it does not imply that the entire cadre was separate.
" It cannot be accepted either as correct or satisfactory.
Cadres of ASM/SM before 1983 was separate and different.
With abolition of option it has become one.
The letter of the Railway Board required revised percentages prescribed for the category depending on whether the existing cadre structure was a combined one or a structured one.
Since the cadre in South Eastern Railway was a separate one, the Chief Personnel Officer deviated from the scheme by applying alternative 'I ' which was to be adopted by a zone where combined cadre existed.
And if alternative 'I ' was adopted then the SMs should have been automatically designated as Deputy Station Superintendents and they should not have been subjected to the selection procedure.
The explanation in the affidavit of Chief Personnel Officer that the grade Rs. 425 640 having been abolished as a consequence of restruc turing is not acceptable.
In alternative 'I ' SM in scale of Rs.425 640 automatically stood redesignated as Deputy Sta tion Superintendent.
But the scale does not find place in alternative 'II '.
But both the employees unions have accept ed the implementation of the letter of Chief Personnel Officer as it is beneficial to a majority of the employees.
Therefore, it may not be disturbed.
At the same time all those 204 employees who had opted before 1983 must be enti tled to the benefit which would have been available to them on theft options.
821 In the result this appeal is disposed of by directing that the respondent authorities shall grant promotional benefit to those 204 SMs who had exercised options before 1983 in the same manner as it would have been if option had not been abolished in accordance with the earlier procedure provided they fulfilled the other requirements.
While doing so those who had been promoted shall not be disturbed as directed by this Court on 30th July, 1987.
Further if as a result of this exercise posts in higher grade fall short, the respondents shall create adequate number of additional posts to overcome the difficulty.
The respondents are fur ther directed to complete all this exercise within six months.
Persons promoted in pursuance of this order shall be entitled to all consequential benefits from the due dates.
Appellants shall be entitled to consolidated costs which are assessed at Rs.5,000 to be payable by respondent No. 2.
N.V.K Appeal disposed of.
| IN-Abs | In the South Eastern Railway the cadre initially com prised of Assistant Station Masters at the bottom and the Station Masters at the top.
Initial appointment of ASM was made in the scale of Rs.360 540.
The promotional ladder bifurcated into: (i) ASM to SM, and (ii) ASM to SM, both in the scale of Rs.425 640 (non selection), and then Rs.455700 (selection); before becoming one common source for promotion to Deputy Station Superintendent/SM Rs.550 750 (non selec tion) Rs.700800 Station Superintendent (selection), and Rs.840 1010 Station Superintendent (non selection).
For moving up the promotional ladder every ASM was required to opt if he would proceed on the channel of ASM to ASM, or ASM to SM.
Later, re structuring was done in 'C ' and 'D ' cadres in the scales, designation and percentage; in selection and non selection posts.
Two alternatives were framed described as alternative 'I ' for the combined cadre, and alternative 'II ' for the separate cadres; which were to be adopted by the respective zones depending on the prevailing cadre pattern.
For ASM/SM two alternatives were provided to be adopted by the respective zones depending on whether the existing cadre was separate or combined.
In alternative 'I ' meant for the combined cadre SMs in the scale of Rs.425 640 and Rs.455 700 were designated as Deputy Station Superin tendents and Station Superintendents in the scale of Rs.540 750 and Rs.700 900 respectively.
Pursuant to the re structuring, the Chief Personal Officer issued a letter to the Divisional Manager, South Eastern Railway that it has been decided that alternative 'I ' enunciated by the Board shall be followed on the said railway, and the existing system of calling for options from ASMs for the post of SMs/ASMs in the higher grade was being dispensed with seniority of staff in each grade shall be determined on 814 the basis of non fortutious service rendered in such grade.
Since the aforesaid direction of the Chief Personnel Officer worked to the prejudice of numerous persons who had exercised their options to the promotional channel of Sta tion Master, they approached the High Court/Tribunal by way of writ petitions/claim petitions but without any success.
Some of these disputes came up in appeal before this Court which were disposed of on July 30, 1987 by directing the Railway Board to consider if the Chief Personnel Officer while implementing its scheme deviated from its terms, and implemented it to the prejudice of those appellants.
The appellants Station Masters of South/Eastern Railway aggrieved by the implementation of the scheme of re struc turing by the Chief Personnel Officer approached the Central Administrative Tribunal, which rejected their claim, as the implementation was beneficial to the majority, and further found that the alternative 'I ' of the scheme meant for the combined cadre was rightly adopted as the cadre of Assistant Station Masters and Station Masters in the South Eastern Zone was combined before 1983.
The appellants in their appeal to this Court challenged the correctness of the aforesaid findings and also claimed that the implementation of the scheme was highly unjust and inequitable.
It was claimed that if alternative 'I ' was adopted then it should have been given full play and the SMs should have been placed en bloc in the re designated posts without any further process of selection.
Disposing of the appeal by directing that the respond ents shall grant promotional benefit to those 204 SMs who have exercised option before 1983, this Court, HELD: 1.
It is not disputed that in the South Eastern Zone the practice of obtaining option by ASM for promotional channel was in vogue before 1983.
The dispute was about the time when it was exercised.
According to the appellant it was at the time of recruitment and appointment even on pain of disciplinary action whereas according to the officials it used to be offered when vacancy arose according to seniori ty.
Unfortunately, it was accepted by the Tribunal as well without any foundation in the record by shutting its eyes to the letters dated 14th May, 1965 and 20th May, 1970, issued by the Divisional 815 Superintendent which shows that options were required to be exercised by ASMs irrespective of availability of vacancy before the target date, and if it was not exercised then they were liable to disciplinary action.
[818F H; 819A] 2.
Even the claim of the Administration that cadre of ASM/SM was combined cadre in South East Railway was not substantiated by any document, letter or order.
On the other hand, the letter dated 10th May, 1984 issued by Additional District Pay Commissioner to the General Manager recognises existence of separate cadre.
[819F] 3.
Existence of separate cadres prior to 1983 and chang ing over to a combined system is not the same thing as claiming that the cadre which existed prior to 1983 was a combined cadre.
[820C] 4.
Since the cadre in South Eastern Railway was a sepa rate one, the Chief Personnel Officer deviated from the scheme by applying alternative 'I ' which was to be adopted by a zone where combined cadre existed and if alternative 'I ' was adopted then the SMs should have been automatically designated as Deputy Station Superintendents and they should not have been subjected to the selection procedure.
In alternative 'I ' SM in scale of Rs.425 640 automatically stood redesignated as Deputy Station Superintendents.
But the scale does not find place in alternative II.
But both the employees unions have accepted the implementation of the letter of the Chief Personnel Officer as h is beneficial to a majority of the employees.
Therefore, it may not be dis turbed.
At the same time all those 204 employees who had opted before 1983 must be entitled to the benefit which would have been available to them on their options.
[820F H]
|
tion (Criminal) No. 421 of 1989.
(Under Article 32 of the Constitution of India).
Vishal Jeet petitioner in person.
V.C. Mahajan, A.S. Nambiar, R.B. Misra, Ms. A. Subha shini, T.V.S.N. Chari, Prabir Choudhary, D. Goburdhan, M.N. Shroff, K.R. Nambiar, Uma Nath Singh, N.N. Johri, V. Krish namurthy, V.N. Patil, A.S. Bhasme, P.R. Ramasesh, M. Veerap pa, R.K. Mehta, R.S. Suri, B.D. Sharma, D. Bhandari, Amal Dalla, D.K. Sinha, J.R. Das, S.K. Bhattacharya, S.K. Nandi, Mahabir Singh, I. Makwana, N.K. Sharma, A. Subba Rao, Ms. Kamini Jaiswal, P.K. Manohar and Mrs. Shanta Vasudevan for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This writ petition under Article 32 of the Constitution of India at the instance of an Advo cate is filed by way of a Public Interest Litigation seeking issuance of certain directions, directing the Central Bureau of Investigation (1) to institute an enquiry against those police officers under whose jurisdiction Red Light areas as well Devadasi and Jogin traditions are flourishing and to take necessary action against such erring police officers and law breakers; (2) to bring all the inmates of the red light areas and also those who are engaged in 'flesh trade ' to protective homes of the respective States and to provide them with proper medical aid, shelter, education and train ing in various disciplines of life so as to enable them to choose a more dignified way of life and (3) to bring the children of those prostitutes and other children found begging in streets and also the girls pushed into 'flesh trade ' to protective homes and then to rehabilitate them.
The averments made in the writ petition on the basis of which these directions are prayed for can be summarised thus: Many unfortunate teen aged female children (hereinafter refer 864 red to as 'the children ') and girls in full bloom are being sold in various parts of the country, for paltry sum even by their parents finding themselves unable to maintain their children on account of acute poverty and unbearable miseries and hoping that their children would be engaged only in household duties or manual labour.
But those who are acting as pimps or brokers in the 'flesh trade ' and brothel keepers who hunt for these teenaged children and young girls to make money either purchase or kidnap them by deceitful means and unjustly and forcibly inveigle them into 'flesh trade '.
Once these unfortunate victims are taken to the dens of prosti tutes and sold to brothel keepers, they are shockingly and brutally treated and confined in complete seclusion in a tiny claustrophobic room for several days without food until they succumb to the vicious desires of the brothel keepers and enter into the unethical and squalid business of prosti tution.
These victims though unwilling to lead this obnox ious way of life have no other way except to surrender themselves retreating into silence and submitting their bodies to a11 the dirty customers including even sexagenar ians with plastic smile.
The petitioner has cited certain lurid tales of sex with sickening details alleged to have been confessed by some children and girls either escaped or rescued from such abodes of ill fame.
After giving a brief note on Devadasi system and Jogin tradition, the petitioner states that this system and tradition which are still prevailing in some parts of the country should be put to an end.
The ultimate plea of the petitioner is that the young children and girls forcibly pushed into 'flesh trade ' should be rescued and rehabilitated.
With this petition, the petitioner has filed 9 affidavits said to have been sworn by 9 girls who claim to be living in the brothel houses, pleading for rescue and a list of names of 9 girls who are mortally afraid to swear the affidavits.
Be it noted that no counter has been filed by any one of the respondents.
The matter is one of great importance warranting a comprehensive and searching analysis and requiring a human istic rather than a purely legalistic approach from differ ent angles.
The questions involved cause considerable anxie ty to the Court in reaching a satisfactory solution in eradicating such sexual exploitation of children.
We shall now examine this problem and address ourselves to the merits of the prayers.
No denying the fact that prostitution always remains as a running sore in the body of civilisation and destroys all moral values.
The causes and evil effects of prostitution maligning the society are so 865 notorious and frightful that none can gainsay it.
This malignity is daily and hourly threatening the community at large slowly but steadily making its way onwards leaving a track marked with broken hopes.
Therefore, the necessity for appropriate and drastic action to eradicate this evil has become apparent but its successful consummation ultimately rests with the public at large.
It is highly deplorable and heart rending to note that many poverty stricken children and girls in the prime of youth are taken to 'flesh market ' and forcibly pushed into the 'flesh trade ' which is being carried on in utter viola tion of all cannons of morality, decency and dignity of humankind.
There cannot be two opinions indeed there is none that this obnoxious and abominable crime committed with all kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.
Article 23 which relates to Fundamental Rights in Part of the Constitution and which has been put under the caption 'Right against exploitation ' prohibits 'traffic in human beings and begat and other similar forms of labour ' and provides that any contravention of Article 23(1) shall be an offence punishable in accordance with law.
The expres sion 'traffic in human beings ' is evidently a very wide expression including the prohibition of traffic in women for immoral or other purposes.
Article 35(a)(ii) of the Consti tution reads that notwithstanding anything in this Constitu tion, Parliament shall have, and the legislature of a State shall not have, power to make laws for prescribing punish ment for those acts which are declared to be offences under this part.
The power of legislation, under this article, is given to the Parliament exclusively, for, otherwise the laws relating to fundamental rights would not have been uniform throughout the country.
The power is specifically denied to the state legislatures.
In implementation of the principles underlying Article 23(1) the Suppression of Immoral Traffic in Women & Girls Act, 1956 (SITA for short) has been enacted under Article 35 with the object of inhibiting or abolishing the immoral traffic in women and girls.
In this connection, it is significant to refer Article 39 which relates to 'Directive Principles of State Policy ' under Part IV of the Constitution.
Article 39 particularises certain objectives.
Clause (f) of Article 39 was substituted by Forty Second Amendment Act, 1976.
Among the objectives mentioned under Clauses (e) and (f) of Article 39, we will confine ourselves only to certain relevant objectives under those two clauses which are sufficient for the purpose of this case.
One 866 of the objectives under clause (e) of Article 39 is that the State should, in particular, direct its policy towards securing that the tender age of children are not abused.
One of the objectives under clause (f) is that the State should, in particular, direct its policy towards securing that childhood and youth are protected against exploitation and against moral and material abandonment.
These objectives reflect the great anxiety of the Constitution makers to protect and safeguard the interests and welfare of the children of our country.
The Government of India has also, in pursuance of these constitutional provisions of clauses (e) and (f) of Article 39, evolved a national policy for the welfare of the children.
It will be apposite to make reference to one of the principles, namely, principle No. (9) formulated by the Declaration of the Rights of the Child adopted by the Gener al Assembly of the United Nations on November 20, 1959.
The said principle reads thus: 'The child shall be protected against all forms of neglect, cruelty and exploitation.
He shall not be the subject of traffic, in any form.
" Before the adoption of SITA, there were enactments in some of the states for suppression of immoral traffic, but they were not uniform nor were they found to be adequately effective.
Some states did not have any law on the subject.
With the growing danger in society to healthy and decent living with morality, the world public opinion congregated at New York in a convention for suppression of traffic in persons for exploitation for immoral purposes.
Pursuant to the signing of that convention on May 9, 1950, our Parlia ment has passed an Act called "Suppression of Immoral Traf fic in Women and Girls Act, 1956 which is now changed as "The Immoral Traffic (Prevention) Act, 1956" to which cer tain drastic amendments are introduced by the Amendment Acts of 46 of 1978 and 44 of 1986.
This Act aims at suppressing the evils of prostitution in women and girls and achieving a public purpose viz. to rescue the fallen women and girls and to stamp out the evils of prostitution and also to provide an opportunity to these fallen victims so that they could become decent members of the society.
Besides the above Act, :here are various provisions in the Indian Penal Code such as Sections 866 A (dealing with procuration of minor girl), 366 B (dealing with offence of importation of girl from foreign country), 372 (dealing with selling of minor for purposes of prostitution etc. ) and 373 (dealing with 867 the offence of buying minor for purposes of prostitution etc.).
The Juvenile Justice Act, 1986 which provides for the care, protection, treatment, development and rehabilitaton of neglected or deliquent juveniles contains a specific provision namely Section 13 which empowers a police officer or any other person or organisation authorised by the State Government in this behalf to take charge of any neglected juveniles and bring them before the Board constituted under this Act which Board under section 15 has to hold an enquiry and make such orders in relation to the neglected juveniles as it may deem fit.
Inspite of the above stringent and rehabilitative provi sions of law under various Acts, it cannot be said that the desired result has been achieved.
It cannot be gainsaid that a remarkable degree of ignorance or callousness or culpable indifference is manifested in uprooting this cancerous growth despite the fact that the day has arrived imperiously demanding an objective multi dimensional study and a search ing investigation into the matter relating to the causes and effects of this evil and requiting most rational measures to weed out the vices of illicit trafficking.
This malady is not only a social but also a socioeconomic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive.
In our view, it is neither practicable and possible nor desirable to make a roving enquiry through the CBI through out the length and breadth of this country and no useful purpose will be served by issuing any such direction, as requested by the petitioner.
Further, this malignity cannot be eradicated either by banishing, branding, scourging or inflicting severe punishment on these helpless and hapless victims most of whom are unwilling participants and involun tary victims of compelled circumstances and who, finding no way to escape, are weeping or wailing throughout.
This devastating malady can be suppressed and eradicated only if the law enforcing authorities in that regard take very severe and speedy legal action against all the erring persons such as pimps, brokers and brothel keepers.
The Courts in such cases have to always take a serious view of this matter and inflict consign punishment on proof of such offences.
Apart from legal action, both the Central and the State Government who have got an obligation to safeguard the interest and welfare of the children and girls of this country have to evaluate various measures and implement them in the right direction.
868 Bhagwati, J. (as he then was) in Lakshmi Kant Pandey vs Union of India, while emphasizing the importance of children has expressed his view thus: "It is obvious that in a civilized society the importance of child welfare cannot be over emphasized, because the welfare of the entire community, its growth and development, depend on the health and well being of its children.
Children are a 'supremely important national asset ' and the future well being of the nation depends on how its children grow and develop.
" We, after bestowing our deep and anxious consideration on this matter feel that it would be appropriate if certain directions are given in this regard.
Accordingly, we make the following directions: 1.
All the State Governments and the Governments of Union Territories should direct their concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution without giving room for any complaint of remissness or culpable indifference.
The State Governments and the Governments of Union Terri tories should set up a separate Advisory Committee within their respective zones consisting of the secretary of the Social Welfare Department or Board, the Secretary of the Law Department, sociologists, criminologists, members of the women 's organisations, members of Indian Council of Child Welfare and Indian Council of Social Welfare as well the members of various voluntary social organisations and asso ciations etc., the main objects of the Advisory Committee being to make suggestions of: (a) the measures to be taken in eradicating the child pros titution, and (b) the social welfare programmes to be implemented for the care, protection, treatment, development and rehabilitation of the young fallen victims namely the children and girls rescued either from the brothel houses or from the vices of prostitution.
All the State Governments and the Governments of Union Territories should take steps in providing adequate and 869 rehabilitative homes manned by well qualified trained social workers, psychiatarists and doctors.
The Union Government should set up a committee of its own in the line, we have suggested under direction No.(2) the main object of which is to evolve welfare programmes to be implemented on the national level for the care, protection, rehabilitation etc.
of the young fallen victims namely the children and girls and to make suggestions of amendments to the existing laws or for enactment of any new law, if so warranted for the prevention of sexual exploitation of children.
The Central Government and the Governments of States and Union Territories should devise a machinery of its own for ensuring the proper implementation of the suggestions that would be made by the respective committees.
The Advisory Committee can also go deep into devadasi system and Jogin tradition and give their valuable advice and suggestions as to what best the Government could do in that regard.
The copies of the affidavits and the list containing the names of 9 girls are directed to be forwarded to the Commis sioner of Police, Delhi for necessary action.
We may add that we are not giving an exhaustive list of the members for the constitution of the committee.
There fore, it is open to the concerned Government to include any member or members in the committee as it deems necessary.
We hope and trust that he directions given by us will go a long way towards eradicating the malady of child prostitu tion, Tevadasi system and Jogin tradition and will also at the same time protect and safeguard the interests of the children by preventing of the sexual abuse and exploitation.
So far as the remaining prayer regarding rehabilitation of the children of prostitutes is concerned, we understand that a similar issue is raised in a separate writ petition bearing W.P. No. 824/88 pending before this Court and this Court is seized of the matter and also has given an interim direction on 15.11.1989 for setting up a committee to 870 go into the question from various angles of the problems taking into consideration the different laws relevant to the matter and to submit its report.
(Vide Gaurav Jain vs Union of India and Others, ; Therefore, we are not expressing any opinion on this prayer regarding the rehabil itation of the children of prostitutes.
With the above directions, the Writ Petition is dis posed of.
T.N.A. Petition disposed of.
| IN-Abs | The petitioner filed a writ petition in this Court under Article 32 of the Constitution of India by way of public interest litigation seeking directions for (i) inquiry against police officials under whose jurisdiction the malady of forced prostitution, Devdasi system and Jogin traditions were flourishing and (ii) for rehabilitiation of the victims of this malady.
Disposing the writ petition, this Court.
HELD: 1.
The malady of prostitution is not only a social but also a socio economic problem and, therefore, the meas ures to be taken in that regard should be more preventive rather than punitive.
This cannot be 862 eradicated either by banishing, branding, scourging or inflicting severe punishment on the helpless and hapless victims most of whom are unwilling participants, and invol untary victims of compelled circumstances and who, finding no way to escape, are weeping or wailing throughout.
This devastating malady can be suppressed and eradicated only if the law enforcing authorities in that regard take very severe and speedy action against all the erring persons such as pimps, brokers and brothel keepers.
[867D; E G] 2.
In spite of the stringent and rehabilitative provi sions of law contained in Constitution of India, 1950, the Immoral Traffic (Prevention) Act, 1956, Indian Penal Code, 1860 and the Juvenile Justice Act, 1986, it cannot be said that the desired result has been achieved.
It cannot be gainsaid that a remarkable degree of ignorance or callous ness or culpable indifference is manifested in uprooting this cancerous growth despite the fact that the day has arrived imperiously demanding an objective multi dimensional study and a searching investigation into the matter relating to the causes and effects of this evil and requiring the most rational measures to weed out the vices of illicit trafficking.
[867C D] 3.
The Courts also in such cases have to always take a serious view of this matter and inflict consign punishment on proof of such offences.
However, it is neither practica ble and possible nor desirable to make a roving enquiry through the C.B.I. throughout the length and breadth of the country.
and no useful purpose will be served by issuing any such direction.
[867G; 867E] 4.
Apart from legal action, both the Central and the State Governments have got an obligation to safeguard the interest and welfare of the children and girls of this country.
[867H] Lakshmi Kant Pandey vs Union of India, and Guarav Jain vs Union of India & Ors.
, ; , referred to.
All the State Governments and the Governments of Union Territories should direct their concerned law enforc ing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution without giving room for any complaint of remissness or culpable indifference.
They should also set up separate Advisory Committees for making suggestions for eradication of prosti tution, implementation of the social welfare programmes for the care, protection, treatment, development and rehabilita tion of the victims, and for 863 amendments of the existing law, or for enactment of any new law for prevention of sexual exploitation of the children.
These Governments should also devise a machinery for ensur ing proper implementation of the suggestions of their re spective committees.
[868D H; 869A E]
|
tition (Criminal) Nos.277 80 of 1989.
(Under Article 32 of the Constitution of India).
R.B. Mehrotra for the Petitioners.
U.N. Bachhawat, Uma Nath Singh and N.N. Johri for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
Two important questions arising for consideration in the above matter are: 1.Whether the petitioners 1 and 2 have been illegally detained from 21.5.1989 to 1.8.1989 without any order of remand?
2. Whether the petitioners 1 to 3 on being arrested were subjected to torture and treated in a degrading and inhuman manner by handcuffing and parading them through the public thorough fare during transit to the Court in utter disregard to 874 the judicial mandates declared in a number of decisions of this Court and whether they are entitled for compensation?
The salient and material facts as set out in the Writ Petitions are as follows: The petitioners are social workers and Members of Kisan Adivasi Sangathan ', Kerala.
The said 'Sangathan ' is actively working against all kinds of exploitation purported against the local farmers and tribal people in the district of Hoshangabad.
In villages of Morpani and Madikhoh of Hoshan gabad District there was only one school teacher employed in the Morpani school.
The teacher was not attending the school for the last one and half years.
Inspite of several com plaints lodged against the teacher, the authorities did not pay any attention in this regard.
Therefore on 27/28.7.1988, the petitioners 1 to 3 along with a large number of tribal women and children staged a peaceful 'dharna ' in front of the office of Block Education Officer, Kesala demanding appointment of two regular teachers in the schools located in tribal hamlets.
The Assistant District Inspector of Schools gave an assurance in writing stating that he would make enquiries and initiate action in this regard.
But to the petitioners ' dismay, the local police initiated criminal proceedings against the petitioners 1 to 3 and one old Adivasi widow aged about 65 years who was not paid her wages by the said teacher, for an offence punishable under Section 186 IPC on the allegations that the petitioners and the Adivasi woman have obstructed public servants in discharge of their public functions.
In connection with the said criminal proceeding, the petitioners were arrested, abused, beaten and taken to the Court of 1st Class Judicial Magis trate, Hoshangabad by handcuffing them.
It seems that the petitioners when questioned refused to tender apology or repent for their conduct but tried to justify their action of having staged the dharna for a legitimate cause.
The Magistrate convicted the petitioners 1 to 3 and sentenced them to undergo simple imprisonment for a period of one month while acquitting the woman.
It is stated that even after the pronouncement of the judgment, the police once again abused them, made obscene gestures, beat and took them to the penitentiary handcuffed.
The fourth petitioner was arrested in connection with the peaceful dharna on 25.11.1987 before the office of the Block Education Officer, Kesala and put behind the bars.
A warrant was said to have been issued against the second petitioner directing him to appear before the Magistrate on 8.5. 1989 in connection with some other false case.
According to the petitioner, they all were working for the welfare of the weaker sections and down trodden people in 875 a peaceful manner but they were inhumanly treated against all norms of decency by the police in utter disregard of the repeated and consistent mandates of this Court and in utter violation of their fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution of India.
There after, the petitioners filed Criminal Miscellaneous Petition Nos.282 1 24 of 1989 in the above writ petitions for im pleading the Superintendent, District Jail and the 1st class Magistrate, Hoshangabad as additional respondents and to treat the additional facts as part of the main writ petitions.
The additional facts are as follows: The petitioners 1 and 2, namely, Sunil Gupta and Raj Narain though have served their one month imprisonment from 22.4.1989 to 21.5.1989 they were not released from the jail but continued to be detained on the allegation that they were wanted in two more cases, namely, in Case No. 470 of 1988 registered under Section 341 read with Section 34 IPC pending in the .Court of 1st Class Magistrate, Hoshangabad and another in a case registered as Criminal Case No. 569/88 against the two petitioners and others under Section 353, 148 and 149, IPC.
The Court proceedings disclosed that the Magistrate issued bailable warrants as against the petition ers 1 and 2 and continued the same by issuing repeated orders of bailable warrants in a very mechanical and casual manner and without application of mind from 26.5.1988 to 17.2.1989.
Even after the two petitioners have been sent to jail in pursuance of their conviction for the offence under Section 186 IPC, a number of incorrect nothings were made in the records of the courts as if both the petitioners were pro duced from jail.
Even after the expiry of the sentence, the Magistrate had not cared to proceed with the case and to know as to why petitioners 1 and 2 were languishing in jail.
In connection with the second case, petitioner No. 3, Puru shottam Nayak was also remanded but later on released on bail on 26.4.1989.
The Counter affidavit is filed by one R.K. Shivhare, the then SHO (Police), Itarsi, Hoshangabad District on behalf of the respondents giving a detailed version about the incident leading to the registration of various cases and justifying the conduct of the police officials in handcuffing the petitioners.
Alongwith this affidavit, he has filed Annex ures I to VI.
He justifies the action of the police stating that the petitioners on pronouncement of their conviction, got agitated, turned violent and shouted slogans inside the Court which necessitated the escort police to handcuff the petitioners.
He cites Madhya Pradesh Police Regulation para No. 465(1) as per which if the escort in charge 876 feels the necessity of handcuffing persons, he is empowered to do so.
However, he denies allegations of torture, obscene gestures etc.
A copy of the police report dated nil and without dis closing the author of the same is filed stating that while first and second petitioners were taken to the prison on their conviction, they turned violent not only inside the Court but also outside the Court and they were taken to the orison with the help of other members of the police force.
The Deputy Superintendent of Police, Headquarters, Hoshanga bad has filed a separate counter affidavit denying the allegations made in the writ petition.
A rejoinder is filed by the first petitioner reiterating his earlier stand and annexing certain newspaper clippings and some other docu ments inclusive of the copy of the judgment of the IInd Additional Sessions Judge, Hoshangabad made in Criminal Appeal No. 59 of 1989 setting aside the conviction of the petitioners recorded by the Judicial Magistrate for the offences under Section 186 IPC, and acquitting the petition ers of the said offence.
Head Constable No. 66, who was incharge of the escort party has sworn to an affidavit stating that the petitioners 1 and 2 were taken to the jail on being handed over by the Court after their conviction and they took them to the prison by handcuffing them under a bona fide belief that the situation might become worse.
He also cites paragraph 465(1) of the M.P. Police Regulation in support of his action of putting the petitioners 1 to 3 under shackles.
One other supporting affidavit is also filed by a constable of the escort party.
It seems that a Sub Inspector of CID made an enquiry on a petition regarding the handcuffing of petitioners 1 and 2 and submitted his report to the Superintendent of Police.
The relevant portion of the report reads as follows: " . .And the Court called the police guard and as per Court 's direction the three accused were handcuffed and kept in the lock up, later on the Court again called all the three accused persons to the Court where Purushottam Nayak was released on bail . . . . .
It was found on enquiry that the appellants Sunil and Rajnarayan were sentenced to one month imprisonment each under Section 186 IPC in the Court of Shri Chand Soria and police guards under the order of the honourable court handcuffed the appellants in the court itself and lodged them in jail.
The appellants say that they should not have been handcuffed but the guards had no other instruction to the contrary in this regard.
" 877 From the writ petition, counter affidavits and rejoinder affidavit, we are able to gather certain facts, they being: 1.A case in Crime No. 80/87 under Sections 147, 341 was registered against the petitioners along with some others on 11.12.A case in Crime No. 86/87 under Section 353, 323, 332 read with Sec.34 IPC was registered against the petitioners on 25.11.87 by Kesala police.
A case in Crime No. 87/87 under Section 34 1 read with Sec.34 was registered against the petitioners on 25.11.1987 itself.
This case was tried in criminal case No. 470/88 which ended in conviction and the petitioners were released on probation on 11.7.
A case in Crime No. 52/88 under Section 186 and 447 was registered on 28.7.1987 by Kesala police which case was tried as case No. 58/88 on the file of the Judicial Magis trate 1st Class, Hoshangabad which ultimately ended in conviction.
This conviction has been set aside by the appellate Court.
It is stated that the petitioners 1 and 2 were avoiding warrants of arrest in Crime Nos. 86/87 and 87/87.
It seems that a number of cases were registered against the petition ers 1 and 2 and both of them did not avail bail and they were in prison.
In this connection, we would like to dispose of the Criminal Miscellaneous Petition Nos.2821 24 of 1989.
As we are not satisfied that the Superintendent of Jail and the Magistrate are necessary parties for disposal of these writ petitions, these petitions are dismissed.
According to Mr. R.B. Mehrotra, the learned counsel for the petitioners, the sentence of imprisonment for a period of one month imposed on petitioners 1 and 2 for the offence under Section 186 IPC expired on 21.5.1989 and, therefore, their subsequent detention till 1.8. 1989 was unauthorised and illegal.
A perusal of the materials placed on record, it is seen that the case in crime No. 87/87 was registered as criminal case No. 470/88 and it came to an end on 11.7.89 when the petitioners were released on probation.
The case in crime No. 86/87 was registered as criminal case No. 569/89.
There were 8 accused in that case inclusive of these two petitioners who were 878 arrayed as accused Nos. 3 and 4.
This case went on for several adjournments on the ground that one or other accused was either not produced before the Court or not appeared on the hearing date.
However, on 1.8.1989 the first petitioner was released on his personal bond as per the orders of this Court.
On 11.8.1989, the case was adjourned to 21.8. 1989 for further proceedings.
Though notes of the case diary, copies of which are filed before us, are not very clear as to the reasons of repeated issue of warrants yet we find that these petitioners were under remand in both the cases namely criminal case Nos.470/88 and 569/88.
Though the petitioners were released on probation in criminal case No. 470/88 yet on 11.7.1989 the petitioner No. 1, namely, Sunil Gupta was in jail in case No. 569/89 till he was released under the orders of this Court.
It is not the case of the petitioners that any complaint was made before this Court in the previous occasion when their release was sought for that they were in prison without orders of remand or that this Court made any observation about it.
Under these circum stances, we do not see any force in the contention that the petitioners were illegally detained till 1.8. 1989.
Accord ingly, the first question is negatived and answered against the petitioners.
Next, we shall examine whether petitioners 1 to 3 were subjected to all kinds of humilitation by being abused, beaten up and ultimately handcuffed.
At the threshold, it may be noted that the writ petition is filed by Mr. R.B. Mehrotra, Advocate for the petitioners whose registered clerk has filed an affidavit of verification.
The following averments are made in the writ petition: "That the petitioners were beaten, abused and they were taken handcuffed to the Court of Shri Chansoria, Judicial Magistrate 1st Class, Hosangabad" (vide paragraph 6).
"They had been handcuffed and were beaten by the police on number of earlier occasions for holding peaceful dharna and for making representations on behalf of the tribal people" (vide paragraph 10) "
That the authorities have caused injuries, physical pain, mental agony and insult to the petitioners" (vide paragraph 13) "That the petitioners have suffered grave mental agony, insult and physical pain at the hands of the police and the local authorities".
(vide paragraph 14) 879 The above allegations are stoutly refuted on behalf of the respondents.
However, the complaint of handcuffing is not denied and that action of the escort police is attempted to be justified mainly on the following grounds: 1.After pronouncement of the judgment in criminal case No. 248/88 arising out of crime No. 52/88 registered under sections 186 and 447 IPC, the petitioners 1 to 3 on their conviction got agitated, turned violent and shouted slogans outside and inside the Court and in such turbulent circum stances, the escort party felt that it was necessary to handcuff the petitioners.
Paragraph 465(1) of Part III dealing with escorting of arrested and convicted persons (including political persons) falling under Chapter VII of Madhya Pradesh Police Regula tions captioned 'Protection and Escort ' empowers the escort police to handcuff the arrested or convicted persons if the escort police feels the necessity.
It has been reported by the Jail Superintendent that in several cases the under trial prisoners have run away from police custody while being taken from jail to Court or vice versa.
Before scrutinising the material in regard to the com plaint of handcuffing, we shall dispose of the allegations of abuse, obscene gestures, beating and torture etc.
At the cost of repetition, it may be stated that all those allega tions except the handcuffing are denied.
Sunil Gupta, the first petitioner has filed an additional reply affidavit dated 8th July 1989 in which there is no allegation about the alleged torture, abuse, obscene gestures etc.
In his rejoinder affidavit filed in September 1989 by Sunil Gupta himself while referring to the incident relating to Criminal Case No. 569/88, he has stated.
"We are doing only peaceful picketing.
On this police and the Gundas of the ruling party came and we were beaten by the police and Gundas of ruling party and were forcibly removed from the Block Office.
" Barring that, there is no allegation of abuse and obscene gestures etc.
In view of the conspicuous omission in both the affidavits filed by Sunil Gupta, we see no force in the complaint that the police abused, tortured and made obscene gestures etc.
880 The only remaining complaint to be considered is in regard to the handcuffing.
We have already mentioned in the preceding part of the judgment the reasons given by the respondents in justification of the conduct of the escort party in putting menacles on the petitioners 1 and 2.
With regard to the reasons assigned by the police, Sunil Gupta in his additional affidavit has stated thus: "This act is incorrect, firstly neither myself nor Raj Narain did shout any slogan in the Court though I was hand cuffed in the Court itself but the handcuffing was not done with the consent of the Magistrate nor it was done under his direction.
Raj Narain was taken to jail on 21st April, 1989 and was brought in the Court on 22nd April 1989 under hand cuffs from the jail itself to Court lock up and then taken under handcuffs in the Court itself in the presence of the Magistrate.
" Coming to the Regulation relied upon by the police, we would like to reproduce the relevant instructions of the Madhya Pradesh Police Regulation hereunder for proper under standing the plea of justification.
'M.P. Police Regulation CHAPTER VII Protection and Escort Part III Escorting of the arrested and convicted per sons (including political persons) 465. When to use handcuffs Handcuffing will be resorted to only when it is necessary.
Its use will be regulated by following instructions.
Instructions regarding use of handcuffs (1) When a prisoner is to be taken from court to jail or jail to court in the custody; the Magistrate or the Jail Superintendent should give instructions in writing as to whether the prisoner will be handcuffed or not and the escort commander will follow the instructions but when 881 the instructions are for not to handcuff the prisoner and thereafter, due to some reasons if the escort commander feels that it is necessary to handcuff the prisoner, he should do so inspite of the instructions to the contrary.
(2) (1) . . . (3) The escort commander should ask and obtain orders in writing without fail, regarding handcuffing of prisoners, from the Magistrate or the Jail Superintendent before taking into custody the prisoner for escorting from the court or the jail.
Strict action should be taken against any disobe dience of this instruction.
" Undeniably, the escort party neither got instructions nor obtained any orders in writing from the Magistrate or the Jail Superintendent regarding handcuffing of petitioners 1 to 3 as found under the above instructions (1) and (2).
The escort commander has also not noted any reason for handcuffing the petitioners on 22.4.1989, on the other hand in the letter dated nil annexed to the counter of S.H.O., no mention of handcuffing is made at all.
Let us examine whether the plea of justification is supported by the materials placed before this Court.
Nand Lal Sharma (Head Constable No. 66), who presumably headed the escort party has not stated in his affidavit that he got instructions in writing, either from the Magistrate or from the Jail Superintendent to bind the petitioners 1 to 3 in fetters.
Nowhere, in his affidavit he swears that he handcuffed the petitioners 1 to 3 either under the orders or directions of the Magistrate.
Even the counter affidavit filed by Shivhare, S.H.O. of Itarsi Police there is no averment that the Magistrate directed the escort party to handcuff the petitioners 1 and 2.
For the first time, only in the report dated 10.7.1989, the relevant portion of which is extracted above, it is submitted by the Sub Inspector, CID to the Superintendent of Police, Hosangabad that the handcuffing was under the direction of the Court.
However, in the copies of the daily diary of the 'date 22.4.1989, it 882 is mentioned that the Head Constable Nand Lal Sharma and the constables of his escort party have been ordered to produce the accused to the Court from the jail after handcuffing them and they were further ordered to take the chains be sides handcuffs from the armoury.
These entries are purport ed to have been made one at 10.05 A.M. and another at 5.15 P.M.
There is a specific entry in the said daily diary that the escort party had produced the three accused before the Court after handcuffing them.
It seems that certain state ments were also recorded from petitioners 1 and 2 on 4.7. 1989 and 5.7.1989.
One, Jasbir has filed reply affidavit submitting that the petitioners 1 and 2 were handcuffed 'within the court room without there being any occasion for the same ' and 'the Magistrate never endorsed or directed their handcuffing '.
The petitioners have produced two photo graphs showing that the left hand of one person and the fight hand of another person are bound in fetters with a leading chain.
In one of the photographs, yet another person standing behind these two persons is also found handcuffed with a leading chain.
A number of persons inclusive some police officials also found standing nearby indicating that these petitioners 1 to 3 have been publically handcuffed.
This handcuffing of petitioners 1 to 3 with the leading chains might not relate to the admitted handcuffing of these petitioners on 22.4.1989 while they were being taken from the prison to the Court and from the Court to the prison because the close examination of these photographs reveal that the handcuffing of these three persons should have been on a thorough fare.
Though neither the enquiry report dated 10.7.89 of the Sub Inspector of CID nor the counter affida vits filed by the SHO, Head Constable and Constables disclose either about the handcuffing of these three petition ers earlier to 22.4.1989 or about the handcuffing of these petitioners while being taken to Court from the jail.
We are very much distressed the way in which the respondents have come forward to explain their conduct of handcuffing of these three petitioners while being taken from the Court to the jail but make no whisper about the handcuffing from jail to Court.
This Court on several occasions has made weighty pro nouncements decrying and severely condemning the conduct of the escort police in handcuffing the prisoners without any justification.
Inspite of it, it is very unfortunate that the Courts have to repeat and re repeat to disapproval of unjustifiable handcuffing.
As is pointed out by Krishna lyer, J. speaking for himself and Chinnappa Reddy, J. in Prem Shankar Shukla vs Delhi Administration.
; , this kind of complaint cannot be dismissed as a daily sight to be pitied and buried but to be examined from funda mental view point.
In the same 883 judgment, the following observation is made with regard to handcuffing: "Those who are inured to handcuffs and bar fetters on others may ignore this grievance, but the guarantee of human digni ty, which forms part of our constitutional culture, and the positive provisions of Articles 14, 19 and 21 spring into action when we realise that to manacle man is more than to mortify him; it is to dehumanize him and, therefore, to violate his very person hood, too often using the mask of 'dangerousness ' and security." . . "Handcuffing is prima facie inhuman and, therefore, unrea sonable, is over harsh and at the first flush, arbitrary.
Absent fair procedure and objective monitoring, to inflict 'irons ' is to resort to zoological strategies repugnant to Article 21.
Thus, we must critically examine the justifica tion offered by the State for this mode of restraint.
Sure ly, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised.
To prevent the escape of an under trial is in public interest, reasonable, just and cannot, by itself, be castigated.
But to bind a man hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture.
Where then do we draw the humane line and how far do the rules err in print and praxis?"
Chinnappa Reddy, J. in Bhim Singh, MLA vs State of J & K and Others, has expressed his view that police officers should have greatest regard for personal liberty of citizens in the following words: "Police officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness.
Custodians of law and order should not become depredators of civil liberties.
Their duty is to protect and not to abduct.
" See also Maneka Gandhi vs Union of India and Another,[1978]1 884 SCC 248; Sunil Batra vs Delhi Administration and Others, ; and Sunil Batra (II) vs Delhi Administra tion; , Coming to the case on hand, we are satisfied that the petitioners are educated persons and selflessly devoting their service to the public cause.
They are not the persons who have got tendency to escape from the jail custody.
In fact, the petitioners 1 and 2 even refused to come out on bail, but chose to continue in prison for a public cause.
The offence for which they were tried and convicted under Section 186 of Indian Penal Code is only a bailable offence.
Even assuming that they objected public servants in dis charge of their public functions during the 'dharna ' or raised any slogan inside or outside the Court, that would not be sufficient cause to handcuff them.
Further, there was no reason for handcuffing them while taking them to Court from jail on 22.4.89.
One should not lose sight of the fact that when a person is remanded by a judicial order by a competent Court, that person comes within the judicial custody of the Court.
Therefore, the taking of a person from a prison to the Court or back from Court to the prison by the escort party is only under the judicial orders of the Court.
Therefore, even if extreme circumstances necessitate the escort party to bind the prisoners in fetters, the escort party should record the reasons for doing so in writing and intimate the Court so that the Court considering the circumstances either approve or disapprove the action of the escort party and issue necessary directions.
It is most painful to note that the petitioners 1 and 2 who staged a 'dharna ' for public cause and voluntarily submitted them selves for arrest and who had no tendency to escape had been subjected to humiliation by being handcuffed which act of the escort party is against all norms of decency and which is in utter violation of the principle underlying Article 21 of the Constitution of India.
So we strongly condemn this kind of conduct of the escort party arbitrarily and unrea sonably humiliating the citizens of the country with obvious motive of pleasing 'some one '.
For the discussion made above, we have no compunction in arriving at a conclusion that in the present case, the escort party without any justification had handcuffed the petitioners on 22.4.1989 on both occasions i.e. when taking the petitioners 1 and 2 from the prison to he Court and then from the Court to the prison.
Hence, we direct the Govern ment of Madhya Pradesh to take appropriate action against the erring escort party for having unjustly and unreasonably handcuffing he petitioners 1 and 2 on 22.4.89 in accordance with law.
885 As has been pointed out supra, the copies of the photo graphs produced before this Court clearly reveal that three persons evidently the petitioners 1 to 3 have been hand cuffed with leading chains.
We are not able to arrive at a correct conclusion as to when, where and under what circum stance this had happened.
Therefore, we further direct the Government of Madhya Pradesh to initiate an enquiry in this matter and to take appropriate action against the erring officials.
Lastly, with regard to the prayer of claim for suitable and adequate compensation, we observe that it is open to the petitioners to take appropriate action against the erring officials in accordance with law, if they are so advised, and in that case, the Court in which the claim is made can examine the claim not being influenced by any observation made in this judgment.
In the result, the writ petitions are disposed of sub ject to the observations made above.
R.S.S. Petitions disposed of.
| IN-Abs | The petitioners are social workers and Members of Kisan Adivasi Sangathan, Kerala.
They, alongwith a large number of tribal people, had staged peaceful 'dharnas ' in front of the office of Block Education Officer demanding appointment of regular teachers in the school located in the tribal ham lets.
The local police initiated criminal proceedings against them for offences punishable under section 186 IPC on the allegations that they had obstructed public servants in discharge of their public functions.
The Magistrate convicted petitioners 1 to 3 and sentenced them to undergo simple imprisonment for a period of one month.
The petition ers 1 and 2 though having served their one month imprison ment from 22.4.1989 to 21.5.1989 were not released from jail but continued to be detained on the allegation that they were wanted in two more cases.
In the writ petitions filed in this Court the main grievance was that petitioners 1 to 3 on being arrested were subjected to torture and treated in a degrading and inhuman manner by handcuffing and parading them through the public thoroughfare during transit to the Court.
in utter disregard to the judicial mandates of this Court.
On these allegations the petitioners contended that they were entitled to compen sation.
The respondents have not denied the allegation of hand cuffing.
but have attempted to justify the action of the escort police.
In this connection.
the respondents have relied on Paragraph 465(1) of Part III dealing with escort ing of arrested and convicted persons (including 872 Political Persons) failing under Chapter VII of Madhya Pradesh Police Regulations.
Under this regulation, if the escort in charge feels the necessity of handcuffing persons, he is empowered to do so.
Disposing of the petitions, this Court, HELD: (1) In spite of weighty pronouncement made by this Court decrying and severely condemning the conduct of the escort police m ' handcuffing the prisoners without any justification, it is very unfortunate that the Courts have to repeat and re repeat its disapproval of unjustifiable handcuffing. ]862G] Prem Shankar Shukla vs Delhi Administration, ; ; Bhim Singh, M.L.A.v.
State of Jammu & Kashmir & Ors., ; Maneka Gandhi vs Union of India, [1978] 1 SCC 248; Sunil Batra vs Delhi Administration, ; and Sunil Batra (II) vs Delhi Administra tion; , , referred to.
(2) The petitioners are educated persons and selflessly devoting their service to the public cause.
They are not the persons who have got tendency to escape from the jail custo dy.
In fact, the petitioners 1 and 2 even refused to come out on bail, but chose to continue in prison for a public cause.
The offence for which they were tried and convicted under section 186 of Indian Penal Code is only a bailable offence.
[884B C] (3) When a person is remanded by a judicial order by a competent court, that person comes within the judicial custody of the Court.
Therefore.
the taking of a person from a prison to the Court or back from Court to the prison by the escort party is only under the judicial orders of the Court.
[884D] (4) Even if extreme circumstances necessitate the escort party to bind the prisoners in fetters, the escort party should record the reasons for doing so in writing and inti mate the Court so that the Court considering the circum stances either approves or disapproves the action of the escort party and issues necessary directions.
[884D] (5) Undeniably, the escort party neither got instruc tions nor obtained any orders in writing from the Magistrate or the Jail Superintendent regarding handcuffing of the petitioners.
[881D] (6) Even assuming that the petitioners obstructed public servants in discharge of their public functions during the 'dharna ' or raised any 873 slogans inside or outside the Court, that would not be sufficient cause to handcuff them.
Further, there was no reason for handcuffing them while taking them to Court from jail on 22.4.1989.
[884C D] (7) It is most painful to note that the petitioners who staged a 'dharna ' for public cause and voluntarily submitted themselves for arrest and who had no tendency to escape had been subjected to humiliation by being handcuffed which act of the escort party is against all norms of decency and which is in utter violation of the principle underlying Article 21 of the Constitution of India.
[884E F] (8) The Government of Madhya Pradesh is directed to take appropriate action against the erring escort party for unjustly and unreasonably handcuffing petitioners 1 and 2 on 22.4.89, in accordance with law.
[884H] (9) It is open to the petitioners to take appropriate action against the erring officials, in accordance with law, if they are so advised, and in that case.
the Court in which the claim is made can examine the claim not being influenced by any observation made in this judgment.
[885C]
|
ivil Appeal No. 2072 of 1990.
From the Judgment and Order dated 13.5.
1986 of the Calcutta High Court in Suit No. 2479 of 1967.
M.K. Banerjee, Subrat Rai Choudhary, Gopal Subramanium, N.P. Aggarwala, Anil Aggarwala, P.C. Sharma, L.P. Aggarwala, Ms. Indira Banerjee, R.N. Jhunjhunwala, Praveen Kumar, C.S. Vaidyanathan, P.R. Seetharaman, D.N. Mukherjee, Raj Kumr Gupta and P.C. Kapur for the appearing parties.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
Leave granted.
This appeal is directed against the order of the Divi sion Bench of the High Court of Calcutta.
The appellant was transposed as the plaintiff in the Original Side suit No. 2479/67 in the High Court of Calcutta.
The suit was filed for a declaration that the various properties set out in the Schedule belonged and still belong to the joint family consisting of the members mentioned in the plaint.
Pending the suit an application was filed for appointment of a receiver for the various properties mentioned in Schedule 'A ' annexed to the petition, for injunction and for other reliefs.
One Mr. S.C. Sen was appointed as Receiver.
A declaration was also sought in the suit that the trust dated October 20th, 1948 created by late Gopi Krishna Khemka, father of the plaintiff, is void and for cancellation of the same.
Premises No. 38, New Road, Alipore, building with open space was one of the properties belonging to the trust.
Grindlays Bank Limited ( 'Grindlays ' for short), respondent No. 1 herein was the original tenant and they were occupying four flats and they surrendered a portion of the tenancy namely two flats i.e. Flats Nos. 1 and 2 which came into effect from 1st 965 April, 1978.
The receiver let out these two flats to M/s Tata Finlay Ltd. ( 'Tatas ' for short) with Effect from Febru ary 7, 1979 pursuant to a letter written by Tatas.
Question ing the action of the receiver an application was filed in the High Court contending that the receiver had no authority to create any tenancy and that the receiver has virtually created two new tenancies terminating the original tenancy of Grindlays and it was contended before the learned Single Judge of the Calcutta High Court that neither Grindlays nor Tatas were entitled to occupy the premises and they are liable to be evicted summarily.
The learned Single Judge was not inclined to order summary eviction as prayed for but, however, observed that the respective contentions of the parties as to the validity of the tenancy created in favour of Tatas have not been finally decided by the High Court and that the parties are at liberty to agitate the same grounds in any action that they may be advised to proceed for evic tion of Tatas and Grindlays.
As against the order of the learned Single Judge, an appeal was filed before a Division Bench.
It was contended before the Division Bench that upon surrender of Flats Nos. 1 and 2 by the Grindlays a fresh tenancy was created by the receiver from 1st April, 1978 and the other tenancy in favour of Tatas is beyond the powers of the receiver and that the receiver had no authority to create any tenancy either in favour of Grindlays or Tatas.
Various contentions were raised before the Division Bench and ultimately the Division Bench having considered the several submissions passed an order, the operative portion of which reads as follows: "Therefore, the petitioner is entitled to get a decree for possession on any ground mentioned in Section 13(1) of the said Act and such relief can be obtained in a suit which cannot be filed in this court inasmuch as the premises in question is situated outside the original side jurisdiction of this Court.
" More or less the same contentions are advanced before us.
Firstly it is submitted that the receiver had no right or authority to create any lease or tenancy in respect of the said flats for a term exceeding three years at a time and such creation of a tenancy should be deemed to be only for a period of three years ' terminable on the expiry of the said period.
In this context a further submission is that upon surrender of Flat Nos. 1 and 2 by Grindlays a fresh tenancy was created by the receiver from 1st April, 1978 for which he had no authority.
Therefore, the High Court ought to have ordered summary eviction of Tatas, and Grindlays.
966 It is not in dispute that the tenancy in respect of Flat Nos. 1 and 2 was surrendered by the Grindlays and from 1st April, 1978 Tatas was inducted as tenant in respect of the said two flats at a monthly rent of Rs. 1200 and service charge at the rate of Rs.600 per month and since then Tatas is a monthly tenant in respect of the said two flats.
It is the case of the Tatas that the terms of the tenancy were reduced into writing as recorded in the letter dated 7th February, 1979 and the receiver adopted the same and did not raise any objection thereto, and it claimed to be still a monthly tenant and therefore, they are entitled to protec tion under West Bengal Premises Tenancy Act ( 'Act ' for short) and the appellant has no right to demand vacant possession of the said flats from the Tatas.
The stand taken by the Grindlays is that the premises in question comprised of four flats and they took all the four flats for 10 years on lease from 1st June, 1958.
After the expiry of the period of the said lease relationship between Grindlays and the Trust continued to be that of landlord and tenant governed by the Act, and that in 1977 they agreed to surrender Flat Nos. 1 and 2 by the letters dated 10th March, 1978 and 29th March, 1978 addressed to the receiver in favour of Tatas.
However, at all material times they retained the tenancy in respect of Flat Nos. 3 and 4 and continued to be tenant in respect of those flats and they are also governed by the act.
In the letters written it is also stated by the Grind lays that their continuation as tenant of flat Nos. 3 and 4 was acknowledged by the receiver by his letter dated 15th May, 1978.
It is contended on behalf of the appellant that after the expiry of the lease the receiver had no power to grant a lease for a period exceeding three years without the leave of this Court as envisaged in Chapter 21 Rule 5(a) of the Original side Rules and that in the instant case without obtaining any such leave receiver 's granting monthly tenan cies is illegal.
Reliance was also placed on the injunction order passed by Justice A.N. Sen sitting on original Side while appointing the receiver.
The learned Judge passed an order restraining the tenants from selling or "transferring" any of the properties mentioned in Schedule 'A '.
According to the appellants the transfer includes lease and therefore, the Receiver by creating a new lease i.e. tenancy has vio lated the injunction order and on that ground also the action of the receiver should be held to be illegal.
First we shall dispose of this contention and then advert to the rest.
Order 40 C.P.C. which provides for the appointment of Receivers empowers the court to confer upon the Receivers all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property.
In Satyanarayan Banerji and Ors.
vs Kalyani Prosad Singh Deo Bahadur and Ors., AIR 1945 calcutta 387, a Division Bench held that the object of appointment of 967 Receiver is not to divest the rightful owner of the title but only to protect the property and an appointment might operate to change possession but cannot affect the title to the property, which remains in those in whom it was vested when the appointment was made.
In Ratnasami Pillai vs Sabap athy Pillai and Ors., AIR 1925 Madras 318, it is held that the Receiver has only such powers as expressly granted by the Court.
Relying on these two decisions the learned counsel for the appellants submitted that in the instant case the Re ceiver has acted in such a manner affecting the title to the property and to the detriment of the interest of the right ful owner.
Section 5 of the Transfer of Property Act defines the meaning of 'transfer of property ' and it is in the following terms: "In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to him self, or to himself and one or more other living persons and "to transfer property" is to perform such act.
In this Section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.
" In Mulla Transfer of Property Act, 7th Edition, page 48, there is a passage in this respect which reads thus: "The word "transfer" is defined with reference to the word "convey".
This word in English Law in its narrower and more usual sense refers to the transfer of an estate in hand; but it is sometimes used in a much wider sense to include any form of an assurance inter vivos.
The definition in Sec.
205(1)(ii) of the Law of Property is "conveyance includes a mortgage, charge, lease, assent, vesting declaration, vest .
ing instrument, disclaimer, release of every other assurance of property or of any interest therein by any instrument except a will.
" This is a special definition adopted for the purposes of the Law of Property Act, 1925.
The word "con veys" in Sec.
5 of the Indian act is obviously used in the wider sense referred to above.
Transferor must have an 968 interest in the property.
He cannot serve himself from it and yet convey it.
" The word 'transfer ' is defined with reference to word 'convey '.
In Hari Mohan alias Hari Charan Pal vs Atal Krishna Bose and Ors., XXIII Vol.
Indian Cases 925, a Division Bench of the Calcutta High Court held that "the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, includes a lease, as a lease is a transfer of an interest in immovable property".
It is, therefore, clear that a lease comes within the meaning of the word 'transfer ' but in this case the matter does not stop there.
According to the learned counsel for the respondents the receiver has not created any new tenancy and the continuation of Grindlays as tenants in respect of Flats Nos. 3 and 4 does not amount to a new lease and, therefore, there is no transfer.
Conse quently there is no violation of the injunction order passed by Justice A.N. Sen. Learned counsel for the respondents.
referred to various documents mostly in the form of letters between the receiver and the Grindlays.
We have perused these letters.
They go to show that the Grindlays surren dered those two flats with the consent of the receiver but the stand taken by them is.
that their continuation as tenants of Flat Nos. 3 and 4 was acknowledged by the receiv er and the same cannot be treated as a new lease.
One of the questions is whether mere surrender of Flats Nos. 1 and 2 affects the Grindlays ' tenancy of Flats Nos. 3 and 4.
It is also contended by the learned counsel for the appellant that after the expiry of the stipulated period the tenancy in question turned to be a monthly tenancy and, therefore, the entire character of tenancy got changed.
In Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd., , a Division Bench consisting of Beaumont, C.J. and Kania, J. explaining the nature of the monthly tenancy observed in the following terms: "A characteristic of a periodical tenancy is that as each period commences, it is not a new tenancy, it is really an accretion to the old tenancy.
A monthly tenancy, that is, a tenancy subject to a month 's notice, creates in the first instance a tenancy for two months certain.
But as soon as the third month commences, that is not a new tenancy; it turns the original tenancy into a three months ' tenancy, and when the fourth month begins, the tenancy becomes a four months ' tenancy, and so on so long as the tenancy 969 continues, until that is to say, notice to quit is given.
" Relying on the above passage the learned counsel contended that the monthly tenancy, therefore, is new tenancy.
Even otherwise, according to the learned counsel the integrity of the tenancy is broken up and on that score also it is a new tenancy.
Reliance is placed on Badri Narain Jha and Ors.
vs Rarneshwar Dayal Singh and Ors.
, ; it is ob served: "An interse partition of the mokarrari interest amongst the mokarraridars as alleged by the plaintiffs could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant, and qua the landlord they constitute one person, each constituent part of which .possesses certain common rights in the whole and is liable to discharge common obligations in its entirety." In White vs Tyndall, 13 Appeal Cases 263 it is stated that the parties to whom a demise is made hold as tenants in common but what they covenant to pay is one rent, not two rents and not each to pay is one rent, not two rents and not each to pay half a rent but one rent.
There is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the covenants running with the land.
According to the appellant, in the instant case, if this principle is followed, the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies have come into existence paying separate rents and, therefore, in that view also it is a new tenancy.
Yet another submission of the appellant is that the act of the receiver in leasing out in favour of Grindlays and Tatas for a period of more than three years was bad in view of Chapter 21 Rule 5(a) of the Original Side Rules.
Though this point appears to have been abandoned before the Division Bench yet it is also canvassed before us.
Chapter 21 of the Calcutta High Court Original Side Rules deals with Receivers.
Relevant part of the Rule 5 reads thus: "5.
In every order directing the appointment of a Receiver of immovable property, there shall, unless otherwise or dered, be inserted the following directions: (a) that the Receiver shall have all the powers provided for 970 in Order XL, rule 1(d) of the Code, except that he shall not, without the leave of the Court (1) grant leases for a term exceeding three years.
The submission is that the act of the Receiver in leasing out the flats in the above manner beyond three years is in violation of this Rule and in that view of the matter lease should be cancelled and the tenants should summarily be evicted.
Learned counsel for the respondents, on the other hand, submitted that there was no new tenancy and surrender of flats Nos. 1 and 2 by the Grindlays and retaining two more flats does not amount to a new tenancy atleast so far as Grindlays is concerned and a reduction of rent also does not create new tenancy inasmuch as the rent that they had to pay was only for two flats in respect of each their tenancy continue.
In Woodfall 's Law of Landlord and Tenant, 25th Edn.
Page 969, paragraph 2079 reads as under: "2079.
Implied surrender of part only.
If a lessee for years accept a new lease by indenture of part of the lands, it is a surrender for that part only, and not for the whole (k); and though a contract for years cannot be so divided, as to be avoided for part of the years and to subsist for the residue, either by act of the party or act in law; yet the land itself may be divided, and the tenant may surrender one or two acres, either expressly or by act of law, and the lease for the residue will stand good and untouched.
" In Halsbury 's Laws of England, 4th Edn.
Volume 27, paragraph 449 read as under: "449.
Surrender by change in nature of tenant 's occupation.
A surrender is implied when the tenant remains in occupation of the premises in a capacity inconsistent with his being tenant, where, for instance, he becomes the landlord 's employee, or where the parties agree that the tenant is in future to occupy the premsises rent free for life as a licensee.
An agreement by the tenant to purchase the rever sion does not of itself effect a surrender, as the purchase is conditional on a good title being made by the Landlord.
" 971 In Foa 's General Law of Landlord and Tenant, 7th Edition by Judge Forbes, paragraph 991 reads thus: "991.
Lease of part, & c It has been held that acceptance of a new lease of part only of the demised premises operates as a surrender of that part and no more (b); but any ar rangement between landlord and tenant which operates as a fresh demise will work a surrender of the old tenancy, and this may result from an agreement under which the tenant gives up part of the premises and pays a diminished rent for the remainder and it may result from the mere alteration in the amount of rent payable (c).
Where one only of two or more lessees accepts a new lease, it is a surrender only of his share (d).
" In Hill and Redman 's Law of Landlord and Tenant, 16th Edn.
on page 45 1, it is observed: "Any arrangement between the landlord and tenant which operates as a fresh demise will work a surrender of the old tenancy; and this may result from an agreement under which the tenant gives up part of the premises and pays a dimin ished rent for the remainder, provided a substantial differ ence is thereby made in the conditions of the tenancy.
But a surrender does not follow from a mere agreement made during the tenancy for the reduction or increase of rent, or other variation of its terms, unless there is some special reason to infer a new tenancy, where, for instance, the parties make the change in the rent in the belief that the old tenancy is at an end.
" From the above passage it can be inferred that surrender of a part does not amount to implied surrender of the entire tenancy and the rest of the tenancy remains untouched.
We shall now examine the cases cited.
In Konijeti Venkayya and Another vs Thammana Peda Venkata Subbarao and Another, 19, Viswanatha Sastri, J. referred to the above mentioned passage from Woodfall 's Law of Landlord and Tenant and observed that the principle of law is stated correctly.
It can therefore be seen that surrender of the part of the lease does not amount to surrender of the whole.
In N.M. Ponniah Nadar vs 972 Smt.
Kamalakshmi Ammal, AIR 1989 SC 467 it is held: "A mere increase or reduction of rent will not necessarily import a surrender of an existing lease and the grant of a new tenancy.
So also if on account of the variation in the quantum of rent any consequential change is made regarding the time and manner of the payment of the rent it cannot have the effect of graver consequences being imported into the change of rent than what the parties had intended and warrant a finding by the Court, that the parties had intend ed to create a new tenancy in supersession of the earlier one or that by operation of law a new tenancy had come into existence.
" From what has been considered above it emerges that surren der of part of the tenancy does not amount to implied sur render of the entire tenancy.
Likewise the mere increase or reduction of rent also will not necessarily import a surren der of an existing lease and the creation of a new tenancy.
We have noticed above that the transfer includes 'lease '.
Therefore it becomes necessary at this stage to consider whether there has been violation of injunction granted by Justice A.N. Sen which formed part of the appointment order of the Receiver.
So far as the Grindlays are concerned we are unable to accede to the contention that a new tenancy is created.
It is true that Justice A.N. Sen issued an injunction restraining the defendants from selling or transferring any of the properties.
There is some force in the submission of the learned counsel for the appellant that the lease in favour of Tatas amounts to transfer but the same cannot be said of Grindlays.
Therefore the question of evicting them summarily on this ground does not arise.
However, the sub mission of the learned counsel is that even the lease in favour of the Grindlays expired and by creating a monthly tenancy it may even go beyond three years, and therefore it is not only creating a new lease but also is in violation of Rule 5 of the Original Side Rules.
We think we need not deal with this question elaborately in view of the main and important question regarding the applicability of the provi sions of the Act.
However, we have already considered and held that no new tenancy is created so far Grindlays are concerned.
Regarding the contention of infraction of Rule 5 it must be noted that the tenancy continued as monthly tenancy and it cannot be said that the Receiver has created tenancy for a period exceeding three years and as observed in Utility 's case it is an accretion to the old tenancy and not a new 973 tenancy.
Merely because there is change in a tenancy namely that it has become a monthly tenancy, it does not amount to a new tenancy as contended by the appellant so far as Grind lays are concerned.
It is also submitted on behalf of the Grindlays that no new lease has been created by the Receiver and they come within the meaning of 'tenants ' and therefore they cannot be evicted except as provided under the provisions of the Act.
Section 2(h) of the Act reads thus: "tenant" means any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be, payable and includes any person continu ing in possesion after the termination of his tenancy or in the event of such person 's death, such of his heirs as were ordinarily residing with him at the time of his death but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction.
" In Darnadilal and Others vs Parashram and Others, Section 2(i) of the Madhya Pradesh Accommoda tion Control Act, 1961 which is analogous to Section 2(h) of the Act has been considered and it is held: "Tenancy has its origin in contract.
There is no dispute that a contractual tenant has an estate or property in the subject matter of the tenancy, and heritability is an inci dent of the tenancy.
It cannot be assumed, however, that with the determination of the tenancy the estate must neces sarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation.
" It is also further observed that: "The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists." In Biswabani (P) Ltd. vs Santosh Kumar Dutta and Ors.
, ; it is observed that: 974 "If thus the appellant was already in possession as a tenant of the premises an unsuccessful attempt to create a fresh lease would not change the nature of his possession as from a tenant to one in part performance under a void lease.
The appellant continues to be in possession as tenant merely because the appellant and respondents 1 and 2 attempted to enter into a fresh lease which did not become effective.
" Their Lordships referred to a passage in Woodfall on 'Land lord and Tenant ' Vol. 1, 27th Edn.
page 187 para 446 which reads thus: "Moreover, if the tenant enters into possession under a void lease, he thereupon becomes tenant from year to year upon the terms,of the writing, so far as they are applicable to and not inconsistent with a yearly tenancy.
Such tenancy may be determined by the usual notice to quit at the end of the first or any subsequent year, and it will determine, without any notice to quit, at the end of the term mentioned in the writing.
But if the lessee does not enter he will not be liable to an action for not taking possession; nor will an action lie against the lessor for not giving possession at the time appointed for the commencement of the term but before the lease is executed.
" In an unreported judgment of the Calcutta High Court in Smt.
Ashrafi Devi and Anr.
vs Satyapal Gupta & Ors., Suit No. 966/58 dated 9th Sept., 1977 Justice Sabyasachi Mukharji, as he then was, dealt with the question of cancelling the tenancy of lease created in respect of a room and kitchen by the Official Receiver.
In that case it was found that the Official Receiver violating the order of the injunction granted lease which the Court found it to be illegal.
Then the learned Judge proceeded further to consider whether such an illegality can be rectified in the proceedings before the Court and it was held that "Therefore, by acting in viola tion of the order of the court, no right, in my opinion, can be created in favour of a third party.
Indeed the court has not acted.
The action was in breach of the order of the court.
" The learned counsel for the appellant relied on this judgment in support of his submission that the lease in the instant case created by the Official Receiver is also ille gal.
From the facts of that case we find a clear injunction order was passed specially restraining the Receiver from creating any new tenancy and in gross violation of that order.
But, in the instant case, the facts are different.
The injunction granted 975 by A .N.
Sen, J. does not apply to the tenancy in favour of Grindlays in respect of flats Nos. 3 and 4 inasmuch as it is an old tenancy though in a modified form.
In Ashrafi Devi 's, case as a matter of fact, the learned Judge observed: "There was no question of the lease being given without the power by the Receiver or in derogation or in violation of the order of the court.
The lease within the competency of a Receiver cannot be impeached or affected in the summary manner as was contended.
" We have already noted that the Grindlays were the tenants in respect of the four flats.
They surrendered two flats.
This partial surrender does not put an end to the tenancy and we are satisfied that in respect of the Grindlays no new tenan cy is created by the Receiver and they continued to be the tenant and they are entitled to the protection under the Act.
Shri Vaidyanathan, learned counsel appearing for one of the respondents, relying on the Full Bench decision of the Madras High Court in Arumugha Gounder vs Ardhanari Mudaliar and Others, AIR 1975 Madras 23 1 contended that the protec tion under the Act cannot be extended to the tenant of a Receiver.
In that case the tenant was let into possession of a land by Receiver appointed by the Court pending the suit.
The question was whether the provisions of Tamil Nadu Culti vating Tenants Protection Act, 1955 can be extended to such a tenant.
It was observed in para 6 that: "So then the act of the Receiver in letting out the land in the suit is an act of the Court itself and it is done on behalf of the Court, the whole purpose of the Court taking possession through the Receiver appointed by it is to pro tect the property for the benefit of the ultimate successful party.
If that is the essence and purpose of appointment of a Receiver, as we hold it is, it will be difficult to agree that by a literal application of the Tamil Nadu Cultivating Tenants Protection Act, it could be put beyond the reach of the Court to give relief to the successful party entitled to possession." Before arriving at this conclusion, the Full Bench, as a matter of fact, also observed in para 3: 976 "If literal application of the Tamil Nadu Cultivating Ten ants Protection Act is made, it may prima facie appear that a tenant let into possession by a Receiver would be entitled to statutory protection under the Act.
A cultivating tenant in relation to any land has been defined to mean a person who carries on personal cultivation on such land under a tenancy agreement, express, or implied.
A "landlord" in relation to a holding or part thereof is defined to mean a person entitled to evict a cultivating tenant from such holding or part.
A tenant let into possession by a Receiver appointed by Court literally appears to satisfy the defini tion of "cultivating tenant" and the Receiver, the defini tion of "Landlord" because the former carried on personal cultivating under a tenancy agreement.
" The Full Bench however took the view that the Receiver appointed by the Court acts as an Officer of the Court and he cannot create a lease which takes the pending matter beyond the purview of the Court and anyone who gets posses sion through such an act could only do so subject to the directions and orders of the Court.
In our view the princi ple laid down by the Full Bench does not apply to the facts in the instant case atleast to the case of Grindlays as in our view on new tenancy is created in their favour.
Even by the time the Receiver was appointed the Grindlays were the tenants in respect of the four flats and they continued to be so.
It is only later after due correspondence that they made a partial surrender and those two flats were let out to Tatas after due negotiations in respect of the rent.
Grind lays ' affidavit shows that they have also sent rent by way of Bank pay orders and they have been received by the Land lord.
It is only for the first time on 26.7.88 that the tenant was informed to stop the payment of rent.
Further the receiver has not acted in any manner affecting the title.
Now coming to the case of Tatas we agree with the High Court that it is a new tenancy.
Such a lease comes within the meaning of 'transfer ' and in view of the injunction order passed by A.N. Sen, J. creation of such a new tenancy is legally barred.
In Kerr on Receivers, 12th Edn.
at p. 154 it is observed: "The receiver does not collect the rents and profits by virtue of any estate vested in him, but by virtue of his position as an officer of the Court appointed to collect property upon the title of the parties to the action.
977 In appointing a receiver the Court deals with the possession only until the right is determined, if the right be in dispute.
" It is also useful to note a passage from Sir John Woodroffe book "on Receivers": "The Receiver being the officer of the Court from which he derives his appointment, his possession is exclusively the possession of the Court, the property being regarded as in the custody of the law, in gremio legis for the benefit of whoever may be ultimately determined to be entitled thereto." In Kanhaiyalal vs Dr. D.R. Banali, ; at p. 729 it was observed: "A receiver appointed under 0.40 of the Code of Civil Proce dure, unlike a receiver appointed under the insolvency Act, does not own the property or hold any interest therein by virtue of a title.
He is only the agent of the Court for the safe custody and management of the property during the time that the Court exercises jurisdiction over the litigation in respect of the property." In such a situation the question is whether the Tatas can invoke the benefit of the provisions of the Act.
In Smt.
Ashrafi Devi 's case this is precisely the question that is decided, and we have already referred to some of the obser vations made therein.
Justice Sabyasachi Mukharji held further: "On behalf of the transferee of the said property, it was contended that the West Bengal Tenancy Premises Act, 1956 protects such transferee.
If however, a valid lease or a tenancy had been created then of course, such a lease or a tenant would be protected but that, in my opinion, begs the question.
Secondly, it was contended that no party should be made to suffer because of an Act of the Court, I have not been able to appreciate this contention.
The court specifi cally prevented the transfer or creation of the tenancy.
The tenancy which is created was in derogation and in violation of the order of the court.
Therefore, by acting in violation of the order of the court, no right, in my 978 opinion, can be created in favour of a third party.
Indeed, the court has not acted.
The action was in breach of the order of the court.
" Similarly as observed in Arumugha Gounder 's case any such act of the Receiver done on behalf of the Court pen dente lite and anyone who gets possession through such an act could only do so subject to the directions and orders of the Court.
If we apply the above principles to the case of Tatas the tenancy created in their favour by the Receiver is in violation and contrary to the injunction order and such an act is subject to the directions and orders of the Court appointing the Receiver.
Therefore the tenancy created in favour of the Tatas was in breach of the order of the court and consequently the Tatas cannot claim any protection under the provisions of the Act and they are liable to be evicted.
In the counter affidavit filed on their behalf, it is no doubt stated that they were inducted into possession and even sending the cheques.
The case of the appellant is that cheques were never encashed.
In any event as observed above, the new tenancy created in their favour contrary to the orders of the Court does not create a fight and is liable to be cancelled.
Consequently the provisions of the Act cannot be invoked by them.
The appeal is therefore dismissed as against respondent No. 1 Grindlays and allowed as against respondent No. 2 Tatas.
In the circumstances of the case, parties are directed to bear their own costs.
R.S.S. Appeal dis missed.
| IN-Abs | The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void.
Pending the suit, a Receiv er was appointed by Justice A.N. Sen.
While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties.
The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats.
Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958.
After the expiry of the period of lease, Grindlays continued to be the tenant.
On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas.
The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979.
Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily.
The learned Single Judge was not inclined to order summary eviction as prayed for.
An appeal was filed before the Division Bench.
The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court.
Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules.
In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act.
On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction.
Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '.
Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property.
A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol.
Indian Cases 925, referred to.
(2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy.
Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy.
[972C D] Konijeti Venkayya & Anr.
vs Thammana Peda Venkata Subba rao & Anr.
AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt.
Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to.
(3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years.
It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules.
Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy.
[972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd., , referred to.
(4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy.
But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form.
The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act.
[974G H; 975A, C] Damadilal & Ors.
vs Parshram & Ors., [1976] Supp.
SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ; , referred to.
Ashrafi Devi & Anr.
vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977.
Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors., , distinguished.
964 (5) In the case of Tatas, it was a new tenancy.
Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred.
Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted.
[978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt.
Ashrafi Devi & Anr.
vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
|
RISDICTION: Civil Appeals No. 194 202 of 1986.
Appeals by Certificates from the Judgment & Order dated 9.12.85/17.12.85 of the Bombay High Court in Writ Petition Nos.
620 of 1984, 2653 of 1984, 394 of 1985, 456 of 1985, 457 of 1985, 183 of 1985, 660 of 1984, 126 of 1985 and 154 of 1985 V.M. Tarkunde, M.C. Bhandare, R.N. Sachthey, S.B. Bhasme, V.A. Bobde, D. Dave, R. Karanjawala, Ms. Meenakshi Arora, Mrs. Manik Karanjawala, Jitender Sethy, S.V. Tambwe kar, M.N. Shroff, A.S. Bhasme, A.M. Khanwilkar, P.G. Gok hale, B.R. Aggarwala for the Appellants and J.H Bhatia, Brambhate Petitioners in person.
908 K.K. Singhvi, T.V.S.N. Chari, Miss Manjula Gupta, Ms. Kitty Kumarmangalam, Ms. A. Subhashini and V.J. Francis for the Respondents.
S.S. Patvardhan, Intervener in person.
The Judgment of the Court was delivered by SHARMA, J.
The perpetual rivalry for seniority in serv ice between the direct recruits and the promotees has once more engaged the attention of this Court for several days.
The dispute which was brought to Court by S.B. Patwardhan in 1972 by a writ petition in the Bombay High Court and which was supposed to have been finally settled by the judgment of this Court reported in ( ; has been kept alive by some direct recruits till this date.
The events relevant for the case are spread over a long period and the issues joined by the parties have been described in the earlier judgments as involving ticklish and complicated questions of unrivalled complexity with no earlier case comparable.
The position as now stands is that the field of controversy on legal questions has been considerably narrowed down by the earlier decisions of this Court, but the relevant facts and the issues to be settled have multiplied by further events and subsequent rules framed under the Proviso to Article 309 of the Constitution.
For appreciating the controversy which has to be resolved, a brief survey of several sets of rules is neces sary.
The parties are Engineers in the employment of the State of Maharashtra excepting the petitioners in W.P. Nos.
3947 48 of 1983 who are in Gujarat service.
Avoiding the details, the position may be briefly stated by dividing the entire period into 4 sub periods and mentioning the scope of such of the provisions of the rules which have direct bear ing on the questions involved in the present cases.
By a resolution of the year 1937 of the Government of Bombay, two new Provincial Engineering Services described as the Bombay Engineering Service Class I consisting of posts of Chief Engineer, Superintending Engineers, Executive Engineers and Assistant Engineers Class I, and the Bombay Engineering Service Class II, having officers designated as Deputy Engineers, were created.
All the posts were permanent.
In 1939, Rules were made for regulating the methods of recruit ment to the said Services which directed the recruitment to be made either by nomination from amongst the students of the College of Engineering, Pune or by promotion of officers holding inferior posts.
The next Rules to which the parties in the present cases have made reference were those made by 909 the resolution dated 21.11.
194 1 for determination of the seniority of the direct recruits and the promoted officers, containing only two rules out of which r. 1 admittedly is not relevant for the present purpose.
Rule 2 said that in case of officers promoted to substantive vacancies, the seniority would be determined with reference to the date of their promotion to the substantive vacancies.
In 1960.
detailed rules for recruitment to Class I and Class II Services were framed by a Government resolution dated 29.4.
Learned counsel for the parties have referred to these Rules as the 1960 Rules and have made elaborate arguments with reference to some of the provisions.
In place of nomi nation from the successful students of College of Engineer ing, Pune as direct recruits, these Rules prescribed for a competitive examination to be held by the Public Service Commission, and introduced a quota system by fixing a ratio of appointments of direct recruits and promotees.
The Rules also made reference to promotion, as Executive Engineers on officiating basis, and Temporary Deputy Engineers and offi ciating Deputy Engineers.
By r. 8 the posts of Deputy Engi neers were re organised, and by sub rule (iii).it was pro vided that the direct recruits in any year shall in a bunch be placed senior to promotees confirmed during that year.
A review of these Rules was later undertaken by the Government and ultimately in partial supersession thereof a fresh set of rules, described by the learned counsel in the present cases as the 1970 Rules, were adopted by another Government resolution.
In the meantime, however, a serious dispute in regard to the interpretation of one of the provisions of the 1960 Rules arose which was Settled by this Court in the case of P.Y. Joshi and others vs The State of Maharashtra and Others, The judgment in this case has been the subject matter of considerable discussion during the hearing of present cases.
By r. 5 of the 1970 Rules, Class I and Class II Services were redefined and r. 12(a) declared that the cadre of Deputy Engineers would consist of all the direct recruits, the confirmed Deputy Engineers and the other officers who were officiating as Deputy Engineers on 30.4.
During the period 1960 70 adequate number of direct recruits were not available, and a large number of promo tees, therefore, had to be appointed to officiate as Deputy Engineers on continuous basis.
These appointments were made after following the procedure applicable to regular promo tions, including consultation with the Public Service Com mission.
By r. 12(b) the strength of the permanent Deputy Engineers was fixed at the total number of (a) the Deputy Engineers confirmed up to the date of commencement of the Rules, (b) direct recruits to the posts of Deputy Engineers appointed till the 910 date of commencement of the Rules, and (c) the Deputy Engi neers officiating on 30.4.1960; and it was provided that no fresh appointments in future would be made to this cadre and the vacancies arising would be transferred to the officers holding subordinate posts detailed in the sub rule in pro portions indicated.
The learned counsel for the parties have referred to this cadre as the 'frozen cadre '.
The question of seniority was dealt with in several rules, out of which r. 33 is important.
It said that the seniority list in each cadre in Class I and Class II shall be prepared in two parts one for the confirmed officers and other for those who were not confirmed; and that the confirmed officers would be treated as senior to the unconfirmed officers.
Since the direct recruits were all appointed against the permanent posts, they were reckoned to be senior to the officiating Deputy Engineers irrespective of the period for which they had been working continuously on the Deputy Engineer 's posts.
These Rules were amended in 1972, but there was no departure from the main scheme and the princi ple governing seniority.
In pursuance of the 1970 Rules seniority lists were prepared leading to the filing of several cases which were ultimately disposed of by this Court in S.B. Patwardhan and others vs State of Maharashtra and others; , Patwardhan, the appellant in that case, was promoted tempo rarily as Deputy Engineer in 1959 and was confirmed after the coming in force of the 1970 Rules.
The respondents No. 2 and 3 who were directly appointed as Deputy Engineers later were, in view of the Rules, shown as senior to Patwardhan.
Patwardhan challenged the validity of r. 8(iii) of the 1960 Rules and 33 of the 1970 Rules as being violative of arti cles 14 and 16 of the Constitution.
The judgment in the case is treated as a landmark in the service jurisprudence and has covered extensive grounds dealing with several important aspects relevant in the case.
The learned counsel for the parties have in the course of their arguments read and re read the judgment and made elaborate comments on its inter pretation and effect, which we will discuss later.
In the result, Patwardhan succeeded and r. 8(iii) of the 1960 Rules and r. 33 of the 1970 Rules were struck down.
In view of the judgment in Patwardhan 's case, it became necessary to prepare fresh seniority lists, and since the re organised states of Bombay and Gujarat were formed on 1.11.
1958 under the provisions of the State Re organisation Act, 1956, it was considered expedient to make rules for preparing seniority lists of Deputy Engineers in respect of the period 1.11.1956 to 30.4.1960, that is, the 911 date immediately after coming into force of the 1960 Rules.
Rules were framed under Article 309 of the Constitution read with section 81(6) of the Bombay Re organisation Act, 1960, and were called the Reorganised Bombay State Overseers and Deputy Engineers Seniority Lists Rules, 1978, and have been referred to before us as the 1978 Rules.
The seniority list of the Deputy Engineers as on 1.11.1956 which had been prepared earlier was declared by these Rules as valid and final.
This was consistent with the decision in Patwardhan 's case.
The further seniority lists were directed to be pre pared for the years 1957, 1958, 1959 and 1960 in accordance with the judgment in Patwardhan 's case wherein the seniority of the promotee Deputy Engineers was made dependant on the continuous officiation subject to certain other conditions.
Since the preparation of the seniority lists and reversion of the direct recruits whose promotion was ille gal, in view of the decision in Patwardhan 's case, were being delayed, one Bagayat Patil, a promotee Deputy Engineer officiating as Executive Engineer, filed a writ application being W.P. No. 3483 of 1980 in the High Court for implemen tation of the judgment, inter alia, on the ground that r. 6(iii) of the 1960 Rules relating to Class I being similar to the struck down r. 8(iii) was also illegal.
Another writ application being W.P. No. 672 of 1981 was filed by the direct recruits challenging the validity of the 1978 Rules mainly on the ground that the Rules omitted to fix propor tionate quota for the direct recruits and the promotees.
The two cases were disposed of by a common judgment upholding the validity of the 1978 Rules, striking down r. 6(iii) of the 1960 Rules, and issuing appropriate directions for reversion of the illegally promoted direct recruits as also for preparation of seniority lists in accordance with the judgment in Patwardhan 's case.
Kulkarni, one of the direct recruits, in representative capacity, challenged the judg ment before this Court in S.L.P. No. 8064 of 198 1 which was dismissed on 29.10.1981.
On the same date S.L.P. No. 9161 of 1981, filed by one Samtani was also rejected.
A special leave petition by the State Government was also dismissed later.
One of the direct recruits J.H. Bhatia, who was admittedly represented by the petitioner in S.L.P. No. 8064 of 1981, filed an application under Article 32 of the Con stitution before this Court on 1.2.
1982, that is, after the dismissal of S.L.P. No. 8064 of 1981, which has been regis tered as W.P. No. 1327 of 1982 and is being disposed of by the present judgment.
In 1981 further rules called Re organised Bombay State Assistant Engineers and Executive Engineers Seniority Lists Rules, 912 198 1, described by the 'parties as the 198 1 Rules, were flamed laying down the rule of determination of seniority of the Assistant Engineers and the Executive Engineers for the period 1.11.1956 to 30.4.1960.
With respect to the prepara tion of the seniority list of the Executive Engineers, r. 3(3)(a) read with Explanation to r. 3(4) fixed quota with retrospective effect between the direct recruits and the promotees, and these rules were successfully challenged in the High Court in W.P. No. 362 of 1982.
The ,judgment in the case striking down the above rules has not been directly questioned in this Court.
The main Rules which are the subject matter of the present cases were framed in 1982 under Article 309 of the Constitution laying down the principle for fixing the sen iority for the period dated 1.5.1960 to 20.12.1970, and are called the Maharashtra Service of Engineers (Regulation of Seniority and Preparation and Revision of Seniority Lists for Specified Period) Rules, 1982, hereinafter referred to as the 1982 Rules.
The Preamble states that they were framed in view of the decision of the Supreme Court in S.B. Pat wardhan vs State of Maharashtra and of Bombay High Court in W.P. No. 3483 of 1980.
On their face, they are consistent with the aforesaid judgments, but by including two rules therein Rules 4 and 9, deleted later fixing rigid quota with retrospective effect, attempt was made to neutralise the decision and rob the promotees the 'benefit of their continuous officiation.
Rule 9 (omitting the Explanation which is not relevant for the present purpose) read as follows: "9. Allocation of vacancies in cadre of Deputy Engineers for direct recruits and promotees.
The number of vacancies in the cadre of Deputy Engineers in every year during the specified period and in the fractional year shall be deemed to be equal to the number of vacancies actually filled in that year or, as the case may be, fractional year, and the first three fourths of such vacancies in each year or in the fractional year shall be deemed to be allocated for persons recruited directly as Deputy Engineers and the subsequent remaining vacancies in that year or in the fractional year shall be deemed to be allocated for filling by promotions from amongst Overseers who may be eligible for such promo tions in accordance with rules or orders made by Government from time to time during the specified period.
" Rule 4; .dealing with the promotion of Assistant Engineers and Deputy 913 Engineers in vacancies in the cadre of Executive Engineers was in similar language.
Section 2(h) defined "fortuitously appointed" in the following terms: "fortuitously appointed" means appointed in any vacancy which, according to rule 4 or 9, is not allocated for the class of officers to which the person appointed in that vacancy belongs; ' ' These rules were challenged in Writ Petitions No. 955 and 956 of 1983, filed respectively by promotee Deputy Engineers Dafle and Kamtkar, and by promoted Executive Engineers Lele and Panse (hereinafter mentioned as Dafle Lele case) before the Bombay High Court and were struck down as illegal.
The High Court further ordered the State to carry out the direc tions given in Bagayat Patil 's case (W.P. No. 3483 of 1980).
None 'of the Engineers came to this Court against this judgment, except the State Government in S.L.P. Nos.
16614 15 of 1983 which also have been heard by us.
However, the prayer for stay was rejected.
The result is that the senior ity has to be reckoned on the basis of continuous officia tion.
By an amendment in 1984 the rr. 4 and 9 were formally deleted.
For the purpose of fixing the seniority of Executive Engineers and Assistant Engineers for the period commencing on 21.12.1970, separate rules were framed under Article 309 of the Constitution and are called the Executive Engineers and Assistant Engineers belonging to the Maharashtra Service of Engineers Class I and the Maharashtra Service of Engi neers Class II (Regulation of Seniority and Preparation and Revision of Seniority Lists) Rules, 1983 and will be re ferred to hereafter as the 1983 Rules.
The validity of these Rules has been challenged in W.P. No. 1169 of 1986 filed under Article 32 in this Court.
As stated earlier, J.H. Bhatia filed Writ Petition No. 1327 of 1982 in person and obtained an ex parte rule.
Another application under article 32 of the Constitution being W.P. No. 5 187 of 1983 was filed by Srikant Bharat Sohoni, a direct recruit to Class II, who, besides challeng ing the 1978 Rules, has also attacked the validity of the 1982 Rules, although he did not file an appeal against the judgment of the High Court on this point.
According to the learned counsel for the promotee respondents he was not concerned with the 1978 Rules at all but he mentioned the same in his application for the sole purpose of obtaining a rule on the ground of admission of Bhatia 's writ petition.
914 Encouraged by these two cases, several other writ petitions were also filed and have been heard along with the Civil Appeals.
Although the claim of the promotees to reckon the seniority according to the continuous officiation was ac cepted by this Court in Patwardhan 's case in 1977, the State Government continued denying them the fruits of the litiga tion.
The High Court on a complaint made by Bagayat Patil, took note of the delay and issued directions for implementa tion of the judgment.
Still nothing was done till 1984 and an application for starting proceedings in contempt was made before the High Court.
In the meantime a fresh writ petition being W.P. No. 660 of 1984 was filed by the direct recruits before the Aurangabad Bench of the Bombay High Court and stay was obtained.
Thereafter a number of similar applica tions were filed one after another, either before the Nagpur Bench or the Aurangabad Bench of the Bombay High Court.
When the promotees pointed out before this Court the game of the direct recruits, a direction was issued for hearing of all the cases at Bombay.
Accordingly aH the 15 writ applications were transferred and heard together at Bombay.
The High Court rejected the case of the direct recruits and dismissed the writ petitions.
The petitioners in 9 of them have chal lenged the judgment in Civil Appeals No. 194 202 of 1986.
The main argument on behalf of the direct recruits has been addressed by Mr. V.M. Tarkunde, who represents the appellants in the Civil Appeals and the writ petitioners in W.P. No. 1169 of 1986.
The learned advocates in some of the other writ cases and two of the writ petitioners in person made supplementary arguments.
It has strenuously been con tended that the 1978 Rules, 1982 Rules, 1983 Rules and the 1984 Rules are invalid and must be struck down.
The judgment in Dafle Lele case has also been challenged.
The cases were earlier heard for sometime by a Division Bench when the Bench referred the matter to be dealt with by a larger Bench for examining the correctness of the decision in Patward han 's case.
When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in Patwardhan 's case was unsound and fit to be over ruled, but no attempt was made to substantiate the plea.
We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account 915 for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncer tainties of government service depending neither on effi ciency of the incumbant nor on the availability of substan tive vacancies.
The principle for deciding inter se seniori ty has to conform to the principles of equality spelt out by articles 14 and 16.
If an appointment is made by way of stop gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appoint ee, because of the qualitative difference in the appoint ment.
To equate the two would be to treat two unequals as equal which would violate the equality clause.
But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority.
Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case.
To hold otherwise will be discriminatory and arbitrary.
This principle has been followed in innumerable cases and has been further elaborated by this Court in several judgments including those in Baleshwar Dass vs State of U.P. and others, [1981] 1 SCR 449, and Delhi Water Supply and Sewage Disposal Committee and others vs R.K. Kashyap and others, [ 1989] Supp. 1 SCC 194, with which we are in agree ment.
In Narender Chadha and others vs Union of India and others, [ ; , the officers were promoted al though without following the procedure prescribed under the rules, but they continuously worked for long periods of nearly 15 20 years on the posts without being reverted.
The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16.
There is considerable force in this view also.
We, there fore, confirm the principle of counting towards seniority the period of continuous officiation following an appoint ment made in accordance with the rules prescribed for regu lar substantive appointments in the service.
Mr. Tarkunde in the course of his argument made it clear that he was not questioning the ratio in Patwardhan 's case but was challenging the judgment therein as erroneous on the ground that the posts of temporary Deputy Engineers held by the promotees were not in the cadre of the Deputy Engineers, which included only permanent posts, and this position was not correctly appreciated there.
The argu 916 ment is that since the permanent posts held by the direct recruits and the temporary posts which the promotees were allowed to officiate did not form a single cadre, there could not arise any question of interse seniority amongst them.
The finding to the contrary in Patwardhan 's case is said to have been inconnectly arrived at, mainly due to the failure on the part of the State Government to place all the relevant materials before the Court.
The stand of the appel lants is that having regard to all the facts and circum stances leading to the present litigation, the direct re cruits cannot be held to be bound either by a rule of res judicata or otherwise and they are free to challenge the Patwardhan 's decision as incorrect.
It is claimed that if the relevant position is correctly appreciated, there is no escape but to hold that the 1960 Rules excepting r. 8(iii) and the 1970 Rules except r. 33, were perfectly legal and the declaration about their invalidity was erroneous.
The learned counsel contended that since the fresh Rules.
which are now impugned, were flamed as a result of the said enone ous judgment, they have to be struck down.
The observations in the judgment in P.Y. Joshi 's case were characterised as obiter dicta which cannot be held to be binding on this Court at a Subsequent stage, and the question whether the direct recruits and promotees were in the same cadre or held posts in two separate and distinct cadres must be answered in accordance with the decision in State of Gujarat vs
C.G. Desai and others, [1974] 2 SCR 255 in favour of the appel lants.
Developing his argument Mr. Tarkunde said that since the 1960 Rules and the 1970 Rules were perfectly valid, they clothed the direct recruits with right of seniority over the promotees which could not be retrospectively taken away in view of their fundamental rights under articles 14 and 16 of the Constitution.
He further urged that the quota rule applicable to the Service under the 1960 Rules was binding on all concerned and the High Court has in the Dafle Lele case erred in quashing rr. 4 and 9 of the 1982 Rules.
The plea of the respondents that the quota rule was not strictl ly enforceable on account of the words "as far as practica ble" in r. 1(b) of the 1960 Rules or that it was relaxed Or given up later has been denied and it is said that the appointments of the promotees in excess of the quota, there fore, could not be treated as valid until the date when the posts became available in their share and consequently the earlier period cannot be considered for the question of theft seniority.
The main thrust of Mr. Tarkunde 's argument is that the permanent Deputy Engineers and the officiating Deputy Engineers were in two cadres and as the officiating Deputy Engineers could not be treated to be included in the perma nent cadre having only perma 917 nent posts, they were not entitled to compete with the direct recruits in the matter of seniority.
It is true that initially the cadre consisted of only permanent posts.
The promotees, however, claim that the additional posts were subsequently added to the cadre and no new cadre was formed.
Great emphasis was laid by Mr. Tarkunde on the language of certain rules on the basis of which it was urged that the cadre of the permanent Engineers was higher in rank than that of the officiating Engineers, who had to be fur ther promoted for becoming members of the said cadre.
Rule 8(i) of the 1960 Rules, which was relied on for this pur pose, reads as follows: "8(i) The Sub Divisional posts in the Department are; at present, manned by direct recruits to Bombay Service of Engineers, Class II cadre, Deputy Engineers confirmed from subordinate Service of Engineers, the temporary Deputy Engineers recruited by the Bombay Public Service Commission, officiating Deputy Engineers and similar other categories.
These various categories are being compiled into two fists only, viz., Bombay Service of Engineers, Class II cadre of permanent Deputy Engineers and a list of Officiating Deputy Engineers.
The future recruitments to Bombay Service of Engineers, Class II cadre shall be made by nomination of candidates recruited direct by competitive examination, held by the Commission, and by promotions from the list of offi ciating Deputy Engineers.
The number of such promotions shall be about one third the number of direct recruits appointed in that year.
" argument is that if the officiating Deputy Engineers could be "promoted" to Bombay Service of Engineers, Class II cadre, how could they be treated as part of the said cadre earlier.
It was pointed out that the second sentence of the above rule in express terms directs two lists to be pre pared, one of the permanent Deputy Engineers, and the other of officiating Deputy Engineers.
Admittedly the appointment of all the direct recruits was made as against the permanent vacant posts and on their successfully completing the proba tionary period they were confirmed against those posts while the promotees were posted in the temporary posts as offici ating Deputy Engineers.
Rule 80), according to the appel lants, therefore, makes a clear distinction between the two groups, which could not be lumped together.
Reliance was also placed on the language of rr.
5, 6, 12(a), 30 and 33 of the 1970 918 Rules.
We are not in a position to agree with the learned counsel that the rules indicate that the officiating posts were not included in the cadre of the Deputy Engineers.
It is true that the use of word "promotions" in r. 8(i) of the 1960 Rules is not quite appropriate, but that by itself cannot lead to the conclusion that the officiating Deputy Engineers formed a class inferior to that of the permanent Engineers.
As was stated with reference to the expressions like 'substantive capacity ', 'service ' and 'cadre ' in Ba leshwar Dass vs State of U.P. and others, [1981] 1 SCR 449 (at page 463 C E), we cannot attribute fixed connotation to the expression 'promotion ' without reference to the context.
The expression, there has been used in the sense of confir mation.
The language used in several other rules is incon sistent with two cadre theory, and by way of illustration r. 12(a) may be considered.
Rules 5 and 24 of the 1970 Rules mention only 4 cadres in Class II namely, those of Sub Divisional Officers, Sub Divisional Engineers, Assistant Engineers Class II and Deputy Engineers and there was no separate cadre of officiating Deputy Engineers.
Rule 12(a) of the 1970 Rules expressly includes some of the officiating Deputy Engineers within the cadre of Deputy Engineers, although it leaves behind the other officiating Deputy Engineers who started officiating later than 30.4.1960.
Rule 13 speaks of officers "officiating in the earthwhile cadre of Deputy Engineers" and r. 27 of "officiating promotions" which are inconsistent with two cadre theory.
In r. 33 of the 1970 Rules also two lists were directed to be prepared, not cadrewise but in each cadre, clear indicating that the lists were different from cadres.
In r. 8(i) of the 1960 Rules also the different groups were not described as dif ferent cadres.
They were referred to as "categories" and what the re organisation suggested was with reference to "lists" to be prepared.
It will not, therefore, be right to equate the lists with cadres.
It is true that the Rules have not in express language stated that the officiating posts also will be in the cadre but if all their relevant provi sions are considered, they unmistakably lead to the said conclusion.
Excepting the use of the word "promotions" in r. 8(i) of the 1960 Rules no other provision appears to help the appellants.
This question was considered in Patwardhan 's case at considerable length, and a categorical finding against the direct recruits was arrived at, which has been followed for the last more than a decade, in many cases arising between members of Maharashtra and Gujarat Engineering Services.
The question is of vital importance affecting a very large number of officers in the departments concerned and many disputes have been settled by following the judgment in Patwardhan 's case.
In such a situation it is not expedient to depart from the decision 919 lightly.
It is highly desirable that a decision, which concerns a large number of government servants in a particu lar Service and which has been given after careful consider ation of the rival contentions, is respected rather than scrutinised for finding out any possible error.
It is not in the interest of the Service to unsettle a settled position every now and then.
Besides, the learned counsel for the parties have placed the rival arguments on the issue in great detail with reference to every available material, and in our opinion the finding was correctly arrived at.
We also agree that the interpretation given in P.Y. Joshi and Others vs The State of Maharashtra and Others, , by a Bench of 5 Judges on r. 8 of the 1960 Rules, which answers one of the main grounds of the direct recruits in support of two cadre theory, must be respected.
Mr. Tarkunde has at tempted to distinguish P.Y. Joshi 's case and has challenged the correctness of the observations at page 795 of the judgment in Patwardhan 's case.
We do not agree with the learned counsel.
The dispute in that case was in respect of promotion of promotee Deputy Engineers to posts of officiat ing Executive Engineers.
Rule 7(ii) of the 1960 Rules pre scribed, as a necessary condition for promotion, the minimum service of seven years as Deputy Engineer.
The respondent in P.Y. Joshi 's case were elgible, provided their experience as officiating Deputy Engineers was allowed to be counted.
The petitioners in that case were direct recruits to the posts of Deputy Engineers and they challenged the promotion of the respondents on the ground that they had not completed the seven years ' period after their confirmation as Deputy Engineers and the period for which they had been officiating as such was not available to them for the purpose.
Their contention was "that under the rules in force the respond ents who were in substantive rank of Overseers were only officiating Deputy Engineers and that as they did not belong to the cadre of Deputy Engineers they were not entitled to promotion inasmuch as they had to put in after confirmation as Deputy Engineers 7 years of actual service before being eligible for promotion as officiating Executive Engineers".
The arguments were addressed with reference to several rules including r. 8, and this Court while rejecting the stand of the direct recruits observed thus: "In our view it is the list of such persons that is referred to in cl.
(ii) of rule 8 and not that there should be a list of persons actually officiating as Engineers for further promotion to the same post which will have little meaning, for there cannot be a promotion of a person in the same cadre of service who is already promoted whether as an officiating or temporary or permanent incumbant.
If cl.
(i) of r. 8 920 provides that Class 11 cadre shall be recruited by competi tive examination, the promotees also are promoted from the list of persons considered fit to hold sub divisional charge, i.e., post of Deputy Engineers.
If in the case of direct recruits the appointment is without reference to confirmation, it cannot be any different in the case of promotees.
" This interpretation of r. 8 is binding as a precedent.
It is Urged by Mr. Tarkunde that the ratio of the Division Bench judgment in State of Gujarat vs
C.G. Desai and Others, [1974] 2 SCR 255, supports his argument and should be followed.
We do not think so.
The controversy, there, also related to the construction of r. 7(ii) of the 1960 Rules requiring the minimum service of 7 years for a Class II officer to be promoted as officiating Executive Engineer.
The respondent No. 1 C.G. Desai who was not considered eligible for promo tion was earlier officiating as Deputy Engineer from May 1955 to December 1959.
Thereafter he successfully competed at an examination for direct recruitment to Class II Service held by the Public Service Commission and was appointed as Permanent Deputy Engineer.
For the purpose of his promotion to the higher cadre he relied on his officiating service before he was selected as a direct recruit, which was denied by the Government.
In a writ case his claim was accepted as legitimate by the High Court.
This decision was challenged before this Court; and it was held by the judgment in the reported case that the respondent was not entitled to count his experience as officiating Deputy Engineer before his selection as a direct entrant in the Service.
It was, inter alia, observed that if a person like the respondent leaves his position in the long queue of officiating Deputy Engi neers with a view to avoid the tortuous wait for promotion and takes a short cut, "he gives up once for all the advan tages and disadvantages" of continuing as an officiating Deputy Engineer and accepts all the handicaps and benefits which attached to the group of direct recruits.
"He cannot, after .his direct recruitment claim the benefit of his pre selection service and thus have the best of both the worlds.
" In this set up and for the purpose of construing r. 7 and considering the necessary qualification for promotion as an Executive Engineer, it was observed that the direct recruits and the promotees in Class II constituted two groups or classes, and it was pointed out that unless the pre selection service as officiating Deputy Engineer of direct recruits was excluded for reckoning the 7 years experience, it would create two classes amongst the same group of direct recruits and result in discrimination against those direct recruits who had no such pre selection service to their credit.
The 921 decision has to be understood in this background and it cannot be of any help to the present appellants.
Even on an independent consideration of the provi sions of the Rules, the relevant materials and the arguments addressed on behalf of the parties, we are of the view that the temporary posts of Deputy Engineers against which promo tees officiated, did not form a separate cadre and were additions to the main cadre.
These temporary posts were created in pursuance of several resolutions of the State Government and an examination of their language is helpful in resolving the controversy.
The resolution No. ENH 1062 C, dated 8th November, 1962 (Ext. 'A ' at page 277 of Vol.
V of the paper book) after referring to the sanction accorded by the Government for creation of the temporary posts stated, "The posts of Executive Engineer and Deputy Engineer should be treated as temporary additions to their respective cadres. ' ' (emphasis added) Similarly the Resolution No. CDS 1170 F, dated the 3rd of November 1970, dealing with the temporary posts created in the departments of Irrigation and Power stated as follows: (pages 283 286, at page 284 paragraph 3 of Vol.
V of the paper book), "The temporary posts in each Department be treated as temporary additions to the respective cadres." (emphasis added) Mr. K.K. Singhvi, the learned counsel for the promotees relied upon these resolutions and several other documents in support of the finding of this Court in P.Y. Joshi 's case and Patwardhan 's case comprising the single cadre theory and contended that these and other materials were available to the Court in Patwardhan 's case.
Mr. Tarkunde, on the other hand, argued that some fresh materials have come to light since after the judgment in Patwardhan 's case, which had not been made available by the State earlier.
There is serious controversy as to the interpretation of these documents alleged to have been later discovered by the direct recruits and in our opinion they do not furnish any evidence of substantial nature to outweigh the materials produced by the State in Patwardhan 's case including the aforementioned resolutions.
In the circumstances, we do not consider it necessary to discuss this question any further and close the issue by holding that the 922 officiating Deputy Engineers were in the same cadre with the other Deputy Engineers in permanent posts.
It has been next contended that even if the decision in Patwardhan 's case be held to be correct, and it is as sumed that the posts of officiating Deputy Engineers are also included in the cadre of permanent Deputy Engineers, rr. 4 and 9 of the 1982 Rules could not have been challenged as illegal and the decision of the Bombay High Court in Dafle Lele case striking down these rules is erroneous and fit to be over ruled.
It was pointed out that the 1984 Rules flamed as a result of the said decision expressly stated that they were subject to the result in the Special Leave Petitions No. 16614 15 of 1983 filed by the State of Maha rashtra against the said decision, and if the judgment in Dafle Lele case is set aside then the 1984 Rules will auto matically disappear.
Great emphasis was laid by Mr. Tarkunde on the provision in the 1960 Rules fixing the ratio of the direct recruits and the promotees in the Deputy Engineers cadre; and it was urged that the question of seniority must be settled with reference to the time when posts became available to the promotees in accordance with the said quota rule.
Merely for the reason that the promotees were allowed to officiate on the temporary posts in excess of their quota they cannot be permitted to steal a march over the genuine claimants to the posts namely, the subsequently appointed direct recruits.
Repelling the stand of the respondents it was argued that the quota rule never collapsed and remained operative and was confirmed by the decision in Patwardhan 's case.
About the rule applying at the stage of appointment and not at the stage of confirmation, as was held in the said judgment, it was suggested that the observations cannot be legitimately interpreted as setting the officiating Deputy Engineers free of the principle of quota.
It meant, according to the learned counsel, that if an officer was promoted within his quota, the rule would be applicable with reference to the date of promotion and not the date of confirmation, but where his promotion was in excess of the permissible quota his seniority would be reckoned with reference to the date when a vacancy became available for him, and not on the basis of his continuous officiation.
He will be entitled to count his officiating experience only on a vacancy being available to him in accordance with the quota rule.
Reliance was placed on S.G. Jaisinghani vs Union of India and Others, ; ; A.K. Subraman and Others vs Union of India and Others, [1975] 2 SCR 979; V.B. Badami etc.
vs State of Mysore and Others, 15 and Paramjit Singh Sandhu and Others vs Ram Rakha and Oth ers; , Alternatively it was contended that assuming that the quota rule had collapsed as a 923 result of non availability of direct recruits, the State Government was under a duty to change the ratio by allotting a larger share to the promotees, which was belatedly done in 1970.
So long the rule was not amended the same had to be respected.
On the strength of observations in Bishan Sarup Gupta vs Union of India and others, [1975] Supp.
SCR 491, it was urged that collapse of quota rule does not make seniori ty dependant on continuous officiation.
It calls upon the Government to frame better rules to meet the requirements of the situation.
The quota rule was for the first time introduced by the 1960 Rules.
As already mentioned, these Rules were introduced through executive instructions issued by the State Government.
The statutory rules which were holding the field earlier did not fix any ratio between the direct recruits and the promotees.
Rule 1 of the 1960 Rules which is relevant in this context is quoted below: "1.
Appointment to the Bombay Service of Engineers, Class I and Class II, shall be made either (a) by nomination after a competitive examination held by the Bombay Public Service Commission hereafter called the Commission in accordance with the rules appended, or (b) by promotion from amongst the members of the lower cadres concerned.
Provided that the ratio of the appointment by nomination and by promotion shall, as far as practicable, be 75:25.
" It will be noticed that the ratio of 3:1 was fixed for the purpose of "appointment", and not for the strength in the Service, as was suggested on behalf of the appellants.
The other important feature was that the Proviso fixing the ratio, far from being imperative, permitted the State Gov ernment to exercise its discretion according to the demand of the exigencies, by using the expression "as far as prac ticable".
The case of the appellants is that the said ex pression was inserted in the Proviso with the object of avoiding fractions in arithmetical calculations of number of posts available to the two groups, and for no other purpose.
We do not see any reason to so restrict the scope and mean ing of the expression "as far as practicable".
A similar expression in identical terms used in certain other rules came up for consideration in N.K. Chauhan and Others vs State of Gujarat and 924 Others; , , and it was held that if it became nonfeasible and impracticable for the State to fill up the requisite quota by direct recruits after making a serious effort to do so, it was free to fill the posts by promotion of suitable hands, if the filling up of the vacancies was administratively necessary and could not wait.
Similar is the position here, and the r. 1 of the 1960 Rules must be held to be realistic and flexible, true to life rather than abstractly absolute.
It was strenuously contended by Mr. Tarkunde and was reiterated by the other learned counsel that the State Government erred in promoting the officers from the lower cadre far in excess of their legitimate share in the Service, and the promotees cannot be allowed to take advantage of this wrong perpetuated from year to year.
Reply of the respondents is that direct recruits suitable for appointment were not available and if appointments had been defined on that account the fast developing departments, entrusted with quick improvement in several fields would have been rendered crippled, leading to grave injury to the industrial and other growths in the State.
The public inter est demanded that the improvement work did not suffer on account of non availability of suitable candidates for nomination, when competent Engineers fit to shoulder the responsibility were available in abundant number in the departments themselves.
It will bear repetition that the promotees were not appointed in a casual manner; the Rules applicable for substantive appointments were meticulously followed and eligible officers were subjected to all the tests including scrutiny by the Public Service Commission before they were promoted.
The reason for not adhering to the quota rule was admittedly the non availability of the direct recruits and was specifically mentioned in the Gov ernment 's resolution of 1970 as a reason for replacing the old rules by new ones.
Mr. Singhvi, the learned counsel for the respondents, argued that having regard to the relevant facts and circumstances, there is no escape from the conclu sion that the quota rule spelt out by the executive instruc tions in the 1960 Rules had in fact collapsed, and that this fact can be recognised even without issuing a formal amend ing instruction.
It is permissible to draw an inference to that effect by the steps taken by the State Government, repeatedly and for a considerable period, in disregard of such a rule, and specially so where the quota is not fixed in imperative terms.
Reliance was placed on the observations at page 209 of the judgment of this Court in P.C. Sethi and Others vs Union of India and Others, as reported in ; The quota of direct recruits in that case had not been enforced "perhaps for good reasons as noted above, the policy of the Government being different".
In this back ground it was stated that administrative instructions, if not carried into effect for obvious and good reasons, cannot 925 confer a right upon entrants on later recruitment to enforce the same.
The learned counsel appears to be right.
It has, however, been rightly suggested on behalf of the appellants that when recruitment is from more than one source, there is no inherent invalidity in introducing quota system, but as was observed in Subraman 's case (supra), the unreasonable implementation of such a rule may attract the frown of the equality clause.
Further, if a rule fixing the ratio for recruitment from different sources is framed, it is meant to be respected and not violated at the whims of the authority.
It ought to be strictly followed and not arbitrarily ignored.
This, of course, may not prevent the Government from making slight deviations to meet the exigen cies.
If it is discovered that the rule 'has been rendered impracticable, it should be promptly substituted by an appropraite rule according to the situation.
The question, however, is as to what is the conclusion if the quota rule is not followed at all continuously for a number of years, after it becomes impossible to adhere to the same.
Admitted ly in the present cases direct recruits were not available in adequate number for appointment, and appropriate candi dates in the subordinate rank capable of efficiently dis charging the duties of Deputy Engineers were waiting in their queue.
The development work of the State peremptorily required experienced and efficient hands.
In the situation the State Government took a decision to fill up the vacan cies by promotion in excess of the quota, but only after subjecting the officers to the test prescribed by the rules.
All the eligible candidates were considered and the opinion of the Public Service Commission was obtained.
The appoint ments were not limited to a particular period and as a matter of fact continued till 1970 when the fresh rules were introduced.
The stand of the appellants is that whenever ap pointments are made in violation of a quota rule the ap pointees will have to go down below the new entrants, join ing the Service in accordance with their quota.
The cases relied upon by Mr. Tarkunde do discuss the general princi ples about the enforceability of quota rule and the effect of its violation, but do not profess to lay down the univer sal rule applicable.
to every case irrespective of the other relevant circumstances arising therein.
On the other hand, the decisions cited by Mr. Singhvi deal with circumstances similar to those in the present cases and are illustrative of situations where the general rule has to yield to just exceptions.
Indeed, Mr. Tarkunde himself attempted to dis tinguish them on the ground that the government had relaxed the quota rule in those cases.
The fallacy in the argument, however, is that the present cases are also of the same category.
926 23.
Mr. Tarkunde is fight that the rules fixing the quota of the appointees from two sources are meant to be followed.
But if it becomes impractical to act upon it, it is no use insisting that the authorities must continue to give effect to it.
There is no sense in asking the perform ance of something which has become impossible.
Of course, the Government, before departing from the rule, must make every effort to respect it, and only when it ceases to be feasible to enforce it, that it has to be ignored.
Mr. Tarkunde is fight when he says that in such a situation the rule should be appropriately amended, so that the scope for unnecessary controversy is eliminated.
But, merely for the reason that this step is not taken promptly, the quota rule, the performance of which has been rendered impossible, cannot be treated to continue as operative and binding.
The unavoidable situation brings about its natural demise, and there is no meaning in pretending that it is still vibrant with life.
In such a situation if appointments from one source are made in excess of the quota, but in a regular manner and after following the prescribed procedure, there is no reason to push down the appointees below the recruits from the other source who are inducted in the Service subse quently.
The later appointees may have been young students still prosecuting their studies when the appointments from the other source take place and it is claimed on behalf of the respondents that this is the position with respect to many of the direct recruits in the present case and, it will be highly inequitable and arbitrary to treat them as senior.
Further, in cases where the rules themselves permit the Government to relax the provisions fixing the ratio, the position for the appointees is still better; and a mere deviation therefrom would raise a presumption in favour of the exercise of the power of relaxation.
There would be still a third consideration relevant in this context: name ly, what is the conclusion to be drawn from deliberate continuous refusal to follow an executive instruction fixing the quota.
The inference would be that the executive in struction has ceased to remain operative.
In all these cases, the matter would however be subject to the scrutiny of the Court on the ground of mala fide exercise of power.
All the three circumstances mentioned above which are capa ble of neutralising the rigours of the quota rule are present h: the cases before us, and the principle of senior ity being dependant on continuous officiation cannot be held to have been defeated by reason of the ratio fixed by the 1960 Rules.
The decisions relied upon by Mr. Singhvi deal with similar situation and are consistent with our opinion.
927 25.
The decisions relied upon by Mr. Tarkunde support his argument in general terms but are distinguishable on account of the special features in the present cases.
Mr. Singhvi contended that many important observations in those cases also support the respondents on several relevant aspects, as for example, the statement at pages 990H991B in the judgment in A.K. Subrman 's case as reported in to the following effect: "It is submitted by the respondents that one third quota cannot be filled unless the two third quota was ex hausted.
This, in our view, will introduce sterility in the quota rule so far as the promotees are concerned.
Their hopes and aspirations cannot be related to the availability or non availability of the direct recruits to fill the two third quota.
Each quota will have to be worked independently on its own force.
The word "rest" in the quota rule cannot be pressed into service to defeat the object of the rule coming in aid of advancement of prospects of promotees in the hierarchy of the Service.
Relying on the observations at page 505H of the judgment in Gupta 's case reported in [1975] Supp.
SCR 491, Mr. Tarkunde strenuously urged that even on the assumption that the quota rule in the present cases had, in fact, broken down, it was imperative on the part of the Government to have framed fresh workable rules before promoting the respondents.
The learned counsel for the promotees distin guished the decision, and to our mind correctly, on the ground that there the manner and terms of the appointments made in breach of the quota rule, were widely different from those in the present cases.
The special facts as they appear from the other judgment in the Gupta 's case reported in ; , were stated at page 113E F thus: "It is necessary to remember, however, in this connection that all these officers had been told when promoted that their appointments were on an officiating or ad hoc basis and the question of their seniority had not been determined.
It was thereby implied that orders about seniority could only be passed after the department was in a position to take a decision with regard to the inter se seniority be tween the promotees and the direct recruits.
That being the situation of all these officers, they could hardly contend that the dates of appointments will not be altered for the purposes of determining seniority.
" 928 The decision was later considered in P.S. Mahal and others vs Union of India and Others, ; , and the analysis given at pages 877E 880 clearly indicates that the decision has to be understood in the background of the facts therein and cannot have a universal application irrespective of the situation.
This judgment as well as the decision in Badami 's case (supra) were rightly distinguished in Patward han 's case at page 797.
It has also been alternatively argued on behalf of the appellants that by the statement in the judgment in Patwardhan 's case that the quota rule applied at the stage of appointment and not at the stage of confirmation, this Court did not mean to say that those who were promoted in an officiating capacity were not subject to the quota rule.
The contention is that what was meant to be conveyed by the aforesaid observations was that if an officer had been promoted within his quota then it would be the date of his promotion and not the date of confirmation which would be relevant for the officer 's seniority, but where the officer is promoted in excess of his quota his seniority would arise when a vacancy in his quota becomes available.
We are afraid, it is not possible to read the judgment as suggest ed.
The finding at pages 795F796A, in the following words does not leave any room for controversy; "In this view of the matter, the prescription contained in the closing sentence of r. 8(i) that "the number of such promotions shall be about 1/3rd the number of direct re cruits appointed in that year" would apply to initial ap pointments and cannot govern the confirmation of those who have already been appointed to Class II cadre.
In other words, direct recruits and promotees have to be appointed in ,the proportion of 75:25 to Class II cadre, the former as Deputy Engineers and the latter as officiating Deputy Engi neers, but once that is done, the quota rule would cease to apply with the result that confirmations in the post of Deputy Engineers are not required to be made in the propor tion in which the initial appointments had to be made.
Thus rule 8(i) only requires that for every three direct recruits appointed as Deputy Engineers only one promotee can be appointed as officiating Deputy Engineer.
The rule cannot be construed to mean that for every three confirmations of Deputy Engineers, not more than one promotee can be con firmed as Deputy Engineer.
" Relying upon the observations in the Patwardhan 's case that the quota 929 system was an important feature of the 1960 Rules, it was contended by Mr. Tarkunde that it is not permissible to hold that the rule in this regard had been relaxed by the Govern ment or that it had at any point of time broken down.
We do not find it permissible to construe the statement in the judgment, referred to, to lead to such a conclusion.
This argument, as has been addressed before us on the basis of the quota rule as an additional contention was not pressed in Patwardhan 's case and so there was no occasion for this Court to deal with the same.
The observations referred to by Mr. Tarkunde were made in a different context altogether.
If it be assumed that this argument was constructively involved in the Patwardhan 's case, then it follows that the same must be deemed to have been overruled.
The case clearly, in unambiguous terms, rejected the claim of the direct recruits for seniority over the promotees.
The appellants by trying to interpret a part of the observation made in the judgment in a different context, in an artificial and uncalled for manner, are suggesting that the judgment is self contradic tory, but we do not find any justification for such an inference.
Still another point confined against a certain category of the officiating Deputy Engineers who were not included in the frozen cadre under the 1970 Rules was at tempted.
The contention is that the expressions "all the promoted Deputy Engineers" and "all directly recruited Deputy Engineers" used in Patwardhan 's case should be given restricted meaning, so as not to include those officiating Deputy Engineers who were not included in the frozen cadre within the group of "promoted Deputy Engineers"; and the Assistant Engineers Class II within the group of "directly appointed Deputy Engineers".
It is said that although in the judgment it was stated that the different groups in the Service were there in representative capacity, these groups were actually not represented.
Even assuming that to be so, it is not possible to hold that the principle of seniority being dependent on continuous officiation will not apply to these groups of the officers.
The reasons for rejecting the case of the appellants are equally applicable to all the promoted Deputy Engineers including those who were earlier Sub Divisional Engineers and Sub Divisional Officers, as well as all the directly recruited Deputy Engineers.
The suggested division of the two groups into further sub cate gories will result in illegal discrimination.
Mr. Tarkunde also urged that as a result of the judgment in Patwardhan 's case it was not necessary to frame the entire rules afresh, inasmuch as only r. 8(iii) of the 1960 Rules and r. 33 of the 1970 Rules 930 had been struck down.
The grievance against the 1982 Rules is that it has disturbed the order of seniority of the parties with retrospective effect, which is illegal.
The argument has to be rejected as it fails to take note of the finding that the direct recruits who joined the service later than the promotees were at no point of time senior.
The 1982 Rules merely recognised this position and gave effect to it.
They have (excepting the arbitrary and discriminatory provisions of rr. 4 and 9) undone the inequality, inequity and illegality which were the products of the offending provisions of the earlier Rules, and there is no reason whatsoever to doubt their validity.
The judgment of the Bombay High Court striking down rr. 4 and 9 of the 1982 Rules has been seriously criticised on behalf of the appellants.
The grounds of challenge, however, are the same which have been considered earlier.
Excepting the State of Maharashtra challenging this judgment in S.L.P. Nos.
16614 15 of 1983 no other party has directly impugned it.
So far Mr. A.S. Bhasme, who appeared on behalf of the State of Maharashtra, is concerned, he faintly de fended all the steps of the State taken from time to time, and made certain statements which were criticised on behalf of the appellants in the Civil Appeals as amounting to Unjustified concessions in favour of the promotees.
Since we have not gone by the stand taken on behalf of the State of Maharashtra before us during the argument, and our decision is based on a consideration of the merits of the different questions argued by the parties and not on any concession, we do not consider it necessary to deal with Mr. Bhasme 's argument at any length.
We hold that the rr. 4 and 9 of the 1982 Rules were tightly struck down and consequently the 1984 Rules were correctly framed and have to be upheld as legal and valid.
Mr. Tarkunde took great pains in analysing the practical effect of the judgment in Patwardhan 's case with which we agree and contended that the direct recruits shall suffer seriously if the present Civil Appeals, Writ Peti tions and the Special Leave Petitions are not allowed.
Mr. Singhvi challenged the figures worked out on behalf of the appellants.
We do not consider it necessary to go into this controversy as it cannot be denied that as a result of Patwardhan 's case and on dismissal of present cases a large number of promotees have to be treated as senior to the direct recruits, and in that sense the direct recruits do suffer.
This, however, cannot be avoided.
If their case on merits is not correct, it cannot be assumed that they were at any point of time clothed with any right, which they are being deprived of.
If the decision in Patwardhan 's case had been given effect to promptly, many 931 of them would have been reverted to inferior posts but by their persistance, both before the higher authorities of the State and the Courts, they have sufficiently delayed the matter so as to avoid the reversion of any one of them.
Mr. Bhandare, appearing in W.P. No. 5187 of 1983 and W.P. No. 8594 of 1983, generally adopted the argument ad dressed by Mr. Tarkunde and added by saying that the offi cers should have been, on a proper classification, divided into 3 classes.
namely_, (i) Assistant Engineers Class I, (ii) the Deputy Engineers directly recruited in Class II, and (iii) the officiating Deputy Engineers promoted from Class III, and quota should have been fixed separately for 3 classes right up to the top stage where appointments are to be made by promotion.
He prayed for a direction to the authorities to frame fresh rules including appropriate provisions on the lines suggested by him.
In view of our finding that the 1982 Rules as amended by the 1984 Rules do not suffer from any infirmity, there is no occasion for issuing any further direction.
So far the question of fixing the ratio of the appointments from different sources is concerned, it is a matter of policy for the Government and it is not for us to offer our advice.
The petitioner in W.P. No. 5187 of 1983, S.B. Soho ni, was directly appointed as a Deputy Engineer in March 1961 and was confirmed in 1963.
It was, therefore, rightly pointed out by Mr. Sighvi that he was not concerned with the 1978 Rules at all.
The writ petition, in absence of grounds relating to the 1978 Rules, confirms this impression.
He has of course challenged the 1982 Rules, as they stood before the amendment in 1984, but did not, after 1984 amendment, make any prayer for modification of his writ petition.
He also did not consider it necessary to file an appeal against the High Court judgment.
No additional ground has been raised on his behalf to be dealt with separately.
So far the petitioner in Writ Petition No. 8594 of 1983, J.T. Jangle is concerned, he was an earlier appointee and was included in the seniority list of November 1956.
This list was confirmed by the decision in Patwardhan 's case (vide page 800G of the judgment as reported in ; It has been stated in his petition that although some junior officers were promoted as Executive Engineers earli er, his promotion was delayed and took place in October 1973.
He has not given the details in this regard or the names of the junior officers who superseded him.
He was not considered eligible for promotion as Executive Engineer earlier as he had not completed 7 years ' service as required by the 1960 Rules.
He has not impleaded those who 932 have superseded him and has not made any specific prayer in this regard.
Besides, in view of the decision in P.Y. Joshi 's case (supra) he could not have claimed promotion before completing 7 years of service.
We do not find any merit in either of the two writ petitions W.P. No. 5187 of 1983 and W.P. No. 8594 of 1983 pressed by Mr. Bhandare.
Writ Petition No. 1327 of 1982 was argued by J.H. Bhatia, the petitioner, in person.
He was directly recruited as Deputy Engineer Class II in July 1959 and has challenged the constitutional validity of the 1978 Rules.
Mr. Singhvi, the learned counsel for the respondents, took a preliminary objection to the maintainability of the writ application on the ground that his claim stands barred by principles of res judicata.
Admittedly, he was represented in W.P. No. 672 of 1981, filed before the Bombay High Court which was dismissed on 7.9. 1981, upholding 1978 Rules.
An application under article 136 of the Constitution being numbered as S.L.P. No. 8064 of 1981 was filed from this judgment in representative capacity and was dismissed by this Court on 29.12.
These facts were not denied by the petitioner before us, and it was therefore contended on behalf of the respondents that so far the validity of the 1978 Rules is concerned, it must be held to be binding on the petitioner in respect of iden tical relief now pressed by him in the present writ case.
The objection appears to be well founded.
It is well estab lished that the principles of res judicate are applicable to writ petitions.
The relief prayed for on behalf of the petitioner in the present case is the same as he would have, in the event of his success, obtained in the earlier writ petition before the High Court.
The petitioner in reply contended that since the special 'leave petition before this Court was dismissed in limine without giving any reason, the order cannot be relied upon for a plea of res judicata.
The answer is that it is not the order of this Court dismissing the special leave petition which is being relied upon; the plea of res judicata has been pressed on the basis of the High Court 's judgment which became final after the dismissal of the special leave petition.
In similar situation a Con stitution Bench of this Court in Daryao and Others vs The State of U.P. and Others, ; , held that where the High Court dismisses a writ petition under article 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the same parties will be barred by the general principle of res judicata.
The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much empha sised by the Constitution, is 933 rounded and a judgment of the High Court under article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32.
An attempted change in the form of the petition or the grounds cannot be allowed to defeat the plea as was observed at page 595 of the reported judgment, thus: "We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the grounds raised by the petitioner in that behalf are substantially the same.
" The decision in Forward Construction Co. and others vs Prab hat Mandal (Regd.), Andheri and Others, ; , further clarified the position by holding that an adjudica tion is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence.
Thus, the principle of constructive res judicata underlying Explana tion IV of section 11 of the Code of Civil Procedure was applied to writ case.
We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata.
The petitioner, however, was permitted during the hearing, to place his case on merits and he did so at some length, and Mr. Singhvi replied thereto.
We have considered the arguments carefully and do not find any substance in the claim of the petitioner and we proceed to indicate our reasons briefly.
The petitioner J.H. Bhatia was appointed Deputy Engineer as a direct recruit in 1959 and was promoted as Executive Engineer in 1969.
According to his case, he was governed by the 1941 Rules and was, therefore, entitled to a higher position in the list of seniority.
It has been con tended by him that he was entitled to the benefit of either the 1941 Rules or the provision relating to quota in 1960 Rules and in either event he.
would have been eligible for promotion to the rank of Executive Engineer three years earlier, that is, in 1966.
On account of this delay in his promotion he seriously suffered by the further delay in his next promotion as Superintending Engineer by a considerable 934 period.
With reference to the criticism against the 1941 Rules in the judgment of Patwardhan 's case the petitioner urged that the same should be treated as passing remarks.
fit to be ignored.
Alternatively he has adopted the argu ments addressed on behalf of the appellants challenging the correctness of the decision in Patwardhan 's cast 38.
As has been stated earlier, the seniority list of the Deputy Engineers for the period up to 1.11.1956 was confirmed in the Patwardhan 's case.
The question of deter mining the seniority for the subsequent period arose in pursuance of the further decision in this judgment.
The 1960 Rules were enforced with effect from 30.4.1960 which intro duced, for the first time, several new provisions including the quota rule.
The period from 1.11.1956 to 30.4.1960 was, therefore, separately dealt with by framing the 1978 Rules under Article 309 of the Constitution.
In accordance with the decision in Patwardhan 's case the seniority list of the Deputy Engineers as on 1.11.1956 was declared by these Rules as valid, final and binding, and thereafter the further seniority fists were directed to be prepared for the years 1957, 1958, 1959 and 1960 on the basis of continuous offici ation in accordance with the judgment.
The petitioner con tends that the judgment in Patwardhan 's case cannot be interpreted to have struck down the 1941 Rules and the claim of the direct recruits appointed prior to the coming in force of the 1960 Rules must be upheld in view of the provi sions of r. 2 of the 1941 Rules.
The 1941 Rules contained only two rules which are quoted below: "1.
In the case of direct recruits appointed substantively on probation, the seniority should be determined with refer ence to the date of their appointment on probation.
In the case of officers promoted to substantive vacan cies, the seniority should be determined with reference to the date of their promotion to the substantive vacancies provided there has been no break in service prior to theft confirmation in those vacancies.
Mr. Singhvi replied by saying that r. 2, aforemen tioned, when properly understood, does not help the peti tioner at all, inasmuch as the rule refers to substantive vacancies and not permanent appointments., and substantive vacancies can arise even in temporary posts.
Reliance was placed on the observations in Baleshwar Dass ' V. [1981] 1 SCR 449.
However, we do not consider it necessary to deal with this argument, as in our view the petitioner cannot succeed even 935 otherwise.
The substance of the petitioner 's argument is again the same as has been contended on behalf of the appel lants in the Civil Appeals, namely, that the principle of seniority being dependent on continuous officiation as laid down in Patwardhan 's case should not be accepted.
The con tention is that the seniority ought to be reckoned with reference to the dates of permanent appointment in the cadre.
This argument precisely was rejected in Patwardhan 's case and we are in complete agreement with the same.
We also do not accept the argument of the petitioner that the judg ment did not deal with the 194 1 Rules.
The said Rules were pointedly considered at pages 790G79 IE in the published report and it was, inter alia, held, "The 194 1 Rules contained the real germ of discrimination because the promotees had to depend upon the unguided pleas ure of the Government for orders of confirmation.
In the pre Constitution era, such hostile treatement had to be suffered silently as a necessary incident of government service. ' ' It has to be remembered that the 1941 Rules, made under an executive instruction, do not stand on a stronger footing than the provisions of the subsequent similar Rules which have been struck down on the ground of illegal discrimina tion; and as in the case of the 1982 and the 1984 Rules, the 1978 Rules also were framed under Article 309 of the Consti tution.
No valid objection can be taken against the 1978 Rules made for undoing the wrong resulting from arbitrari ness and offensive discrimination which had visited the promotees.
Mr. Bhatia has, by his written argument, belatedly alleged mala fides on the part of the State Government on the ground that it failed to prepare and publish select fists for a number of years and it attempted to mislead this Court by not stating the correct position in regard to the cadre of the Deputy Engineers and the 1941 Rules.
We do not find any justification for the petitioner or any other direct recruit to urge lack of bona fides on the part of the State.
We do not find any merit in any of the submissions addressed by the petitioner.
The retired Superintending Engineer, Shripad Shankar Patwardhan, intervenor in Writ Petitions No. 1327 of 1982, 5187 of 1983 and 8594 of 1983, also made a few submissions in person and filed a note of his argument in the shape of an affidavit.
He has not raised any additional ground, and it is not necessary to discuss his case any further.
936 42.
The two petitioners in Writ Petitions No. 3947 48 of 1983 are Executive Engineers in the Irrigation Department of the Government of Gujarat.
Although the case was initially filed through advocates, at the hearing on a request by them the petitioner No. 1 was allowed to argue the case in person on their behalf.
Besides impleading the State of Gujarat, the Government of Maharashtra and the Union of India as respondents No. 1, 2 and 3 respectively, H.N. Shah, another officer of the same Department, was, made a party as re spondent No. 4 in the writ petition.
The case of the peti tioners is that the respondent No. 4 was junior to them and was erroneously treated as senior in the seniority lists for the period 1.11.1956 to 30.4.1960 prepared in accordance with the 1978 Rules.
The writ petition states that the petitioners were in Subordinate Engineering service of the former State of Bombay when they appeared at the competitive examination held for direct recruitment and were appointed Deputy Engi neers.
At the same examination, H.N. Shah, respondent No. 4, who was an officiating Deputy Engineer, also appeared and was appointed a Deputy Engineer as a direct recruit and his name appeared in the list below the petitioners.
After the bifurcation of the two States of Maharashtra and Gujarat in 1960, the petitioners as well as the respondent No. 4 were allocated to the State of Gujarat.
In 1969 the petitioner No. 1 and the respondent No. 4 were promoted as Executive Engineers and the name of the respondent No. 4 was again shown lower in the list.
It is stated in paragraph 13 of the writ petition that the petitioner No. 2 was temporarily dropped in this promotion order on administrative grounds.
It is contended on behalf of the petitioners that these lists correctly placed the respondent No. 4 below the peti tioners but the subsequent lists prepared in pursuance of the 1978 Rules wrongly show him as senior.
A counter affidavit on behalf of the State of Maharash tra was filed inter alia denying several allegations in the writ petitions explaining certain circumstances by giving all the relevant materials, and explaining the situation.
S.B. Patwardhan, the petitioner in the reported case, also intervened and refuted the claim of the petitioners.
The respondent No. 4 has retired in the meantime and has not appeared in this case.
The petitioner No. 1, after making a very brief argu ment, filed written submissions, but since in our view the Patwardhan 's case was correctly decided, the State was under a duty to prepare fresh 937 seniority lists for the period 1.11, 1956 to 30.4.1960, and this was done after framing the 1978 Rules.
We do not find any merit in the challenge to the 1978 Rules, as indicated earlier, and in that view these writ petitions are fit to be rejected, specially as the respondent No. 4 has already retired.
The only other case which was separately argued on behalf of the petitioners was Writ Petition No. 12570 72 of 1983.
Mr. 'Vinod Arvind Bobde, the learned counsel for the petitioners, in a brief submission adopted the argument of Mr. Tarkunde and reiterated that the finding in the Patward han 's case about the temporary posts being included in the main cadre was erroneous.
The point has already been dealt with. 44.
To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirma tion.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisa tion of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation.
In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
938 (E) Where the quota rule has broken down and the appoint ments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engi neers.
(J) The decision dealing with important questions con cerning a particular service given after careful considera tion should be respected rather than scrutinised for finding out any possible error.
It is not in the interest of Service to unsettle a settled position.
With respect to Writ Petition No. 1327 of 1982, we further hold: (K) That a dispute raised by an application under article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.
In view of the above and the other findings recorded earli er, we do not find any merit in any of the civil appeals, writ petitions and special leave petitions which are accord ingly dismissed.
There will be, however, no order as to costs.
Appeals and Petitions are dismissed.
| IN-Abs | The parties in these matters are Engineers in the em ployment of the States of Maharashtra and Gujarat.
In 1937, Government of Bombay created two new Provincial Engineering Services known as the Bombay Engineering Service Class I consisting of posts of Chief Engineer, SUperintending Engi neers, ExecUtive Engineers and Assistant Engineers Class I, and the Bombay Engineering Service Class II 901 having officers designated as Deputy Engineers.
All the posts were permanent.
In 1939, Rules were made for regulating the methods of recruitment to the said services which directed the recruit ment to be made either by nomination from amongst the stu dents of the College of Engineering, Pune or by promotion of officers holding inferior posts.
A resolution was passed on 21.11.1941 for determination of the seniority of the direct recruits and the promotee officers, containing only two rules.
Rule 2 thereof was to the effect that in case of officers promoted to substantive vacancies, the seniority would be determined with reference to the date of their promotion to the substantive vacancies.
In 1960, detailed rules for recruitment to Class I and Class 1I Services were framed.
In place of nomination from the successful students of College of Engineering, Pune as direct recruits, these Rules prescribed for a competitive examination to be held by the Public Service Commission, and introduced a quota system by fixing a ratio of appointments of direct recruits and promotees.
The Rules also made refer ence to promotion, as Executive Engineers on officiating basis, and temporary Deputy Engineers and officiating Deputy Engineers.
By r. 8 the posts of Deputy Engineers were re organised, and by sub rule (iii) it was provided that the direct recruits in any year shall in a bunch be placed senior to promotees confirmed during that year.
A review of these Rules was later undertaken by the Government and ultimately in partial supersession thereof a fresh set or rules, were adopted in 1970.
In the meantime, however, a serious dispute in regard to the interpretation of one of the provisions of the 1960 Rules arose which was settled by this Court in the case of P.Y. Joshi and Others vs The State of Maharashtra and Oth ers, During the period 1960 70 adequate number of direct recruits were not available, and a large number of promo tees, therefore, had to be appointed to officiate as Deputy Engineers on continuous basis.
These appointments were made after following the procedure applicable to regular promo tions, including consultation with the Public Service Com mission.
The strength of the permanent Deputy Engineers was fixed at the total number of (a) the Deputy Engineers con firmed up to the date of commencement of the Rules, (b) direct recruits to the posts of Deputy Engineers appointed till the date of commencement of the Rules, and (c) the Deputy Engineers officiating on 30.4.1960; and it was pro vided that no fresh appointments in future would be made to 902 this cadre and the vacancies arising would be transferred to the officers holding subordinate posts detailed in the sub rule in proportions indicated.
As per rule 33 of the 1970 Rules, the seniority list in each cadre in Class I and Class II was to be prepared in two parts one for the confirmed officers and other for those who were not confirmed; and that the confirmed officers would be treated as senior to the unconfirmed officers.
Since the direct recruits were all appointed against the permanent posts, they were reckoned to be senior to the officiating Deputy Engineers irrespective of the period for which they had been working continuously on the Deputy Engineer 's posts.
Though the Rules were amend ed in 1972, there was no departure from the main scheme especially the principle governing seniority.
In pursuance of the 1970 Rules seniority lists were prepared.
The validity of r. 8(iii) of the 1960 Rules and of r. 33 of the 1970 Rules was successfully challenged as being violative of Articles 14 and 16 of the Constitution.
S.B. Patwardhan and Ors.
vs State of Maharashtra and Ors. , ; In view of the judgment in Patwardhan 's case, it became necessary to prepare fresh seniority lists.
Rules were framed under Article 309 of the Constitution read with section 81(6) of the Bombay Reorganisation Act, 1960, and were called the Re organised Bombay State Overseers and Deputy Engineers Seniority Lists Rules, 1978.
In 1981 further rules called Re organised Bombay State Assistant Engineers and Executive Engineers Seniority Lists Rules,.
1981, were flamed laying down the rule of determina tion of seniority of the Assistant Engineers and the Execu tive Engineers for the period 1.11.1956 to 30.4.60.
These rules have been successfully challenged in the High Court.
The main Rules which are the subject matter of the present cases were framed in 1982 under Article 309 of the Constitution laying down the principle for fixing the sen iority for the period dated 1.5.1960 to 20.12.70 and are called the Maharashtra Service of Engineers (Regulation of Seniority and Preparation and Revision of Seniority Lists for Specified Period) Rules, 1982.
These rules were framed in view of the decision of the Bombay High Court in S.B. Patwardhan 's case.
By including two rules therein Rules 4 and 9, deleted later fixing rigid quota with retrospective effect, attempt was made to neutralise the 903 decision and rob the promotees the benefit of their continu ous officiation.
For the purpose of fixing the seniority of Executive Engineers and Assistant Engineers for the period commencing from 21.12.1970, separate rules were framed under Article 309 of the Constitution and are called the Executive Engi neers and Assistant Engineers belonging to the Maharashtra Service of Engineers Class I and the Maharashtra Service of Engineers Class II (Regulation of Seniority and Preparation and Revision of Seniority Lists) Rules, 1983.
As a result of a decision of the High Court striking down Sections 4 and 9 of the 1982 Rules, the 1984 Rules were framed by the Govern ment.
The present appeals, special leave petitions and Writ Petitions challenge the validity of the Rules framed in 1978, 1982, 1983 and 1984.
Dismissing all these matters, this Court, HELD: 1.
The period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and sen iority cannot be determined on the sole 'test of confirma tion, for, confirmation is one of the inglorious uncertain ties of government service depending neither on efficiency of the incumbant nor on the availability of substantive vacancies.
The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Arti cles 14 and 16.
If an appointment is made by way of stop gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment.
To equate the two would be to treat two unequals as equal which would violate the equality clause.
But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority.
Same will be the position if the initial appoint ment itself is made in accordance with the rules applicable to substantive appointments as in the present case.
To hold otherwise will be discriminatory and arbitrary.
[914G H; 915A D] S.B. Patwardhan vs State of Maharashtra. ; ; 904 Baleshwar Das vs State of U.P., [1981] 1 SCR 449; Delhi Water Supply and Sewage Disposal Committee & Ors.
R.K. Kashyap & Ors., [1989] Supp. 1 SCC 194 and Narender Chaddha 2.1 It is incorrect to say that the 1970 Rules indicate that the officiating posts were not included in the cadre of the Deputy Engineers.
It is true that the use of word "promotions" in r. 8(i) of the 1960 Rules is not quite appropriate, but that by itself cannot lead to the conclu sion that the officiating Deputy Engineers formed a class inferior to that of the permanent Engineers.
One cannot attribute fixed connotation to the expression 'promotion ' without reference to the context.
The expression has been used in the sense of confirmation.
The language used in several other rules is inconsistent with two cadre theory, and by way of illustration r. 12(a) may be considered.
Rules 5 and 24 of the 1970 Rules mention only 4 cadres in Class II namely, those of Sub Divisional Officers, Sub Divisional Engineers, Assistant Engineers Class II and Deputy Engineers and there was no separate cadre of officiating Deputy Engi neers.
Rule 12(a) of the 1970 Rules expressly includes some of the officiating Deputy Engineers within the cadre of Deputy Engineers, although it leaves behind the other offi ciating Deputy Engineers who started officiating later than 30.4.1960.
Rule 13 speaks of officers "officiating in the erstwhile cadre of Deputy Engineers" and r. 27 of "officiat ing promotions" which are inconsistent with two cadre theo ry.
In r. 33 of the 1970 Rules also two lists were directed to be prepared, not cadre wise but in each cadre, clearly indicating that the lists were different from cadres.
In r. 8(1) of the 1960 Rules also the different groups were not described as different cadres.
They were referred to as "categories" and what the re organisation suggested was with reference to "lists" to be prepared.
It will not, therefore, be right to equate the lists with cadres.
It is true that the Rules have not in express language stated that the officiating posts also will be in the cadre but if all their relevant provisions are considered, they unmistakably lead to the said conclusion.
[918A F] 2.2 Questions of vital importance affecting a very large number of officers in the departments concerned and many disputes have been settled by following the judgment in Patwardhan 's case.
In such a situation it is not expedient to depart from the decision lightly.
It is highly desirable that a decision, which concerns a large number of government servants in a particular service and which has been given after careful consideration of the rival contentions, is respected rather than scrutinised for finding out any possi ble error.
It is not in the interest of 905 the service to unsettle a settled position every now and then.
[918G H; 919A] 2.3 Even on an independent consideration of the provi sions of the Rules, and the relevant materials the temporary posts of Deputy Engineers against which promotees officiat ed, did not form a separate cadre and were additions to the main cadre.
These temporary posts were created in pursuance of several resolutions of the State Government and the language used therein amply supports this view.
[921A E] S.B. Patwardhan vs State of Maharashtra, ; and P.Y. Joshi vs
State of Maharashtra, , followed.
State of Gujarat vs
C.G. Desai & Ors., [1974] 2 SCR 255, distinguished.
Baleshwar Dass vs State of U.P. & Ors., [1981] 1 SCR 449, referred to.
3.1 The quota rule was for the first time introduced by the 1960 Rules.
These Rules were introduced through execu tive instructions issued by the State Government.
The ratio of 3:1 was fixed for the purpose of "appointment" and not for the strength in the service.
It permitted the State Government to exercise its discretion according to the demand of the exigencies, by using the expression "as far as practicable.
" There is no reason to so restrict the scope and meaning of the expression "as far as practicable".
The quota rule must he held to be realistic and flexible, true to life rather than abstractly absolute.
[923C H; 924A B] 3.2 When recruitment is from more than one source, there is no inherent invalidity in introducing quota system, but the unreasonable implementation of such a rule may attract the frown of the equality clause.
Further, if a rule fixing the ratio for recruitment from different sources is framed, it is meant to he respected and not violated at the whims of the authority.
It ought to be strictly followed and not arbitrarily ignored.
This, of course, may not prevent the Government from making slight deviations to meet the exigen cies.
If it is discovered that the rule has been rendered impracticable, it should be promptly substituted by an appropriate rule according to the situation.
[925A C] 3.3 In the present cases direct recruits were not avail able in adequate number for appointment, and appropriate candidates in the 906 subordinate rank capable of efficiently discharging the duties of Deputy Engineers were waiting in their queue.
The development work of the State peremptorily required experi enced and efficient hands.
In the situation the State Gov ernment took a decision to frill up the vacancies by promo tion in excess of the quota, but only after subjecting the officers to the test prescribed by the rules.
All the eligi ble candidates were considered and the opinion of the Public Service Commission was obtained.
[925D E] 3.4 If appointments from one source are made in excess of the quota, but in a regular manner and after following the prescribed procedure, there is no reason to push down the appointees below the recruits from the other source who are inducted in the Service subsequently.
The later appoint ees may have been young students still prosecuting their studies when the appointments from the other source take place and it will be highly inequitable and arbitrary to treat them as senior.
Further, in cases where the rules themselves permit the Government to relax the provisions fixing the ratio, the position for the appointees is still better; and a mere deviation therefrom would raise a pre sumption in favour of the exercise of the power of relaxa tion.
There would he still a third consideration relevant in this context: namely, what is the conclusion to he drawn from deliberate continuous refusal to follow an executive instruction fixing the quota The inference would be that the executive instruction has ceased to remain operative.
In all these cases, the matter would however he subject to the scrutiny of the Court on the ground of mala fide exercise of power.
All the three circumstances mentioned above which are capable of neutralising the rigours of the quota rule are present in the cases, and the principle of seniority being dependant on continuous officiation cannot be held to have been defeated by reason of the ratio fixed by the 1960 Rules.
1926C G] P.C. Sethi vs Union of India, ; and N.K. Chauhan vs State of Gujart, ; , relied on.
S.B. Patwardhan vs State of Maharashtra, ; , affirmed.
P.S. Mahal vs Union of India, ; and V.B. Badami etc.
vs State of Mysore & Ors., [1976] 1 SCR 815, distinguished.
Paramjit Singh Sandhu vs Ram Rekha & Ors.
, ; ; 907 A.K. Subraman vs Union of India, [1975] 2 SCR 979; Bishen Sarup Gupta vs Union of India, [1975] Supp.
SCR 491 and S.G. Jaisinghani vs Union of India & Ors., ; , referred to.
It is not possible to hold that the principle of seniority being dependant on continuous officiation will not apply to certain groups of the officers.
The reasons for rejecting the case of the appellants in Patwardhan 's case are equally applicable to all the promoted Deputy Engineers including those who were earlier Sub Divisional Engineers and Sub Divisional Officers, as well as all the directly recruited Deputy Engineers.
The suggested division of the two groups into further subcategories will result in illegal discrimination.
[929F G] 5.
Rules 4 and 9 of the 1982 Rules were rightly struck down by the High Court and consequently the 1984 Rules were correctly framed and have to be upheld as legal and valid.
[930A B] 6.
It is well established that the principles of res judicata are applicable to Writ Petitions.
A dispute raised by a petition under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure, if the same has been earlier decided by a competent court by a judgment which became final.
[932E; 933D E] Daryao & Ors.
vs State of U.P. & Ors.
, ; and Forward Construction Co. vs Prabhat Mandal, (Regd.) Andheri & Ors.
, ; , relied on.
|
ivil Appeal No. 5502 of 1983.
From the Judgment and Order dated 6.5.1983 of the Alla habad High Court in C.M.W.P. No. 6563 of 1980.
S.S. Ray, D.D. Thakur, Mrs. C. Markandeya, section Markan deya, W.A. Nomani, G.S. Giri Rao, R.K. Raina and J.M. Khanna for the Appellants.
B.D. Agarwal, Mrs. section Ramachandran, R. Ramachandran, H.K. Puri, Mrs. section Dikshit and A.K. Gupta for the Respond ents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Appellant No. 1 is a registered Housing Cooperative Society registered under the U.P.
Co operative Societies Act, bearing registration No. 2 130 dated 27.3.
1973, hereafter referred to as 'the society ', and appellant Nos. 2, 3 and 4 are respectively the President, Secretary and Treasurer of the Society.
The object of the Society is to acquire lands for its members for constructing residen tial houses for them.
The members are Central and State Government employees and public sector employees; and more than 70 acres of land situated in villages Chhalera Bangar and Suthari were acquired by the Society between January, 1973 and September, 1975.
For development of certain areas in the State of U.P. into industrial and urban township and for matters connected therewith, the U.P. Industrial Area Development Act, 1976, hereafter referred to as 'the Act ', was enacted and thereaf ter the U.P. Government by a Notification dated 17.4.1976 declared the villages named in the schedule annexed to the Notification to be an Industrial Development Area within the meaning of the Act, to be called "NOIDA".
67 Soon after constituting this Authority a Notification under sections 4 and 17 (sub section
(1) of section 4 and sub section
(4) of section 17) of the Land Acquisition Act was published in the U.P. Extra Ordinary Gazette dated 30.4.1976 stating that the land in village Chhalera Bangat was needed for the planned indus trial development.
The land of the appellant society was included in the Notification.
In continuation of Notifica tion dated 30.4.1976, another Notification under section 6 dated 1.5.1976 was issued stating that the land mentioned in the schedule (i.e. village Chhalera Bangar) was needed for a public purpose and under section 7 of that Act to direct the Collector of Bulandshahar to take order for the acquisition of the said land.
A Notification under sub section
(1) of section 4 of the Land Acquisition Act was issued on 1.6.1976 notifying that the land mentioned in the schedule (i.e. land in Suthari village etc.) was needed for a public purpose and that the case was of urgency and as such the provisions of sub.
section (1) of section 17 of the said Act were applicable to the land Notifica tion under section 6 of that Act was issued on 16.9.1976 notify ing that the land mentioned in the schedule (i.e. Suthari village etc.) was needed for public purpose and under section 7 of that Act it directed the Collector to take order for acquisition of the said land.
The appellant society and the other registered co opera tive societies demanded land in lieu of the land acquired in the NOIDA complex and after several representations and correspondence a subcommittee was constituted under the chairmanship of Sri B.J. Khadaiji, Commissioner and Secretary, Housing and Urban Development, Government of Uttar Pradesh to look into the matter.
In a meeting held on 19.10.1979 it was decided that sites would be given to various co operative societies nearest to Delhi on the basis of the NOIDA Master Plan which was under consideration.
It was also clarified in that meeting that 35 per cent of the area offered to the members of the Society will be plotted area out of the total acquired area of the Society.
The Executive Officer NOIDA vide his letter dated 21.4.1980 informed that it was proposed to offer developed plots to the bona fide members of the co operative societies whose lands were acquired.
An approximate rate was offered at Rs. 130 per square metre in sectors 30, 31, 34, 39 and 40.
Certain conditions were also laid down in that letter and one of the conditions was that amount equal to 30 per cent of the price of the area of developed plots computed at Rs. 130 per square metre should have to be sent in favour of NOIDA and thereafter tripartite agreement shall have to be made between NOIDA, Co operative Societies and individual members after finalisation of lay out plan.
68 Alleging that arbitrary action taken by the NOIDA that far was not acceptable to the appellant Society, it flied Civil Misc.
Writ Petition No. 6563 of 1980 on 29.7.1980 challenging the notifications issued under sections 4 and 6 of the Land Acquisition Act.
The writ petition was admitted by the Allahabad High Court but stay was refused.
The Society insisted on rehabilitation of the members on the original land on the basis of the policy of the Government.
The Chief Executive Officer intimated the Society that the authority had finally decided to offer lands in sectors 30, 31, 36 and 40 and that 20 per cent of the amount had to be deposited, but the Society did not deposit the amount by the stipulated time.
The Society requested for extension of time, but the NOIDA did not extend it and the appellant Society had not been allotted any land.
As the writ petition was filed in the year 1980 i.e. more than three years after publication of the notifications, the impugned Notifications had been upheld by a Division Bench of the Allahabad High Court by the impugned Judgment dismissing the writ petition.
The appellant Society argued before the High Court that the action of the Authority in not allotting land to the appel lant Society was mala fide and also that action of the Au thority in not extending the time as prayed for was arbi trary and discriminatory.
It was submitted by the respond ents that offer to give developed plots to the appellant Society was only as a concession and not as a legal right; the Authority was not bound to extend the time.
The appel lant Society also challenged the price fixed by the authori ty and the appellant 's counsel had not been able to show that anybody was offered developed plots for a price less than Rs. 130.
The High Court held that appellant Society had no legal right to get a particular land and that the Society did not avail of the concession granted by the authority.
Hence this appeal by Special Leave from the impugned Judgment and Order dated 6.5.1983 of the Allahabad High Court passed in Civil Misc.
Writ Petition No. 6563 of 1980.
While granting Special Leave on 30.5.1983 there was an order of ex parte stay of dispossession pending notice; but the execution proceedings were allowed to go on.
On 19.3.
1984 in C.M.P. No. 16786 of 1983 it was ordered that Mr. Markandeya, Advocate on behalf of the petitioners would make a representation to the respondent New Okhla Industrial Development Authority (NOIDA) for the allotment of a suit able site and the representation would be considered on its own merits and a decision taken thereon by the respondent within two months from the date of that order.
On 30.4.1984 Mr. G.L. Sanghi appearing for NOIDA had made a statement before the Court that 69 NOIDA undertook that in the event of this appeal being allowed NOIDA would give to the appellants such areas as this Court might specify from sectors 40 and 41 at prices to be determined in accordance with the Judgment of this Court.
Undertaking given by Mr. G.L. Sanghi was limited to NOIDA giving areas from sectors 40 and 41 to the appellants and to those persons who were eligible members of the Society on 1st May, 1976.
These orders were said to be without preju dice to the rights and contentions of both the parties in this appeal.
On 8.5.
1985 the order dated 30.4.1984 was modified by this Court directing that NOIDA would give to the appellants such areas as this CoUrt might specify from sectors 40, 41 as also from sector 42 at price to be determined in accord ance with the Judgment of this Court.
If any of the peti tioners could not be accommodated in any of these sectors, the NOIDA would give them sites or areas which were contigu ous to sectors 40, 41 and 42.
On 18.1.1990 this appeal was delinked from the group of NOIDA cases.
By Judgment and Order dated 13.2.1990 the main Writ Petition No. 975 of 1986 Hiralal Chawla & Anr.
vs State of U.P. & Ors., reported in [1990] 1 Judgments Today SC 194 was disposed of stating the total number of persons entitled to allotment and sizes of the plots to be allotted and direct ing that the sites be developed by NOIDA within a period of nine months beginning from 1st of March, 1990 and allot them by charging the agreed price at the rate of Rs. 1,000 per square metre and paying 12 per cent interest on the amount deposited till the actual allotment; and that the interest would be adjusted against the price payable on the allotted land.
The dates for payment of the 1st, 2nd and 3rd instal ments were also agreed.
It was observed that the Town Plan ning in NOIDA was said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh was a member.
It was accordingly directed that all the norms laid down by NOIDA in the matter of development shall be strictly followed.
Supervision of this operation should be by NOIDA and the appellants would co operate with NOIDA in that regard.
When this appeal was heard on 5.4.1990 there was a consensus that justice would be done to the parties, if this appeal is also disposed of on similar terms as in Hiralal Chawla & Anr.
vs State of U.P. & Ors.
, (supra).
However, the parties were allowed to file.
written submissions.
Written submissions were accordingly filed by the res 70 pondents, in reply thereto by the appellants, and for the intervener.
Taking into consideration the earlier interim orders, the consensus arrived at the hearing and the written submis sions, it is ordered in line with Hiralal (supra) that the interim orders dated 30.5.83, 19.3.84, 30.4.84 and 8.5.85 will merge in this Order.
The impugned Judgment of the High Court is set aside and it is ordered: (A) That the total number of persons entitled to allotment will be confined to those persons who were eligible members of the Society on 1st May, 1976 not exceeding 600 (six hundred).
(B) The total area to be allotted to the members of the Society will be 28.8 acres in the form of developed plots.
This amounts to 40% of the total 72 acres of land acquired by the Society in the villages Chhalera Bangar and Suthari between January, 1973 and September, 1975.
(C) The allotment shall be made in Sectors 40, 41 and 42 and if sufficient number of plots are not available in these Sectors, then from the adjacent Sectors.
(D) The plots to be allotted are to be developed by NOIDA within a period of nine months beginning from 1st May, 1990 and ending on 31st January, 1991 by which date the plots shall be allotted to the entitled members of the Society.
(E) The NOIDA shall be permitted to charge the price of the allotted plots at the rate of Rs. 1,000 per square metre.
(F) Every member who has deposited any sum of money with NOIDA against proposed allotment shall be enti tled to 12 per cent interest on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the person shall be entitled to adjustment of such interest against actual price of the land to be worked out at the rate of Rs. 1,000 per square metre.
Balance amount, if any, shall have to be paid by every eligible member of the Society as on 1.5.76 not exceeding 600 in all, within three months from now in three equal monthly instal ments.
The 1st instalment will be paid on or before May 31, 1990, the 2nd instalment to be paid on or before June 30, 1990 and the 3rd instalment to be paid on or before July 31, 1990.
(G) It shall be the obligation of the Society to duly notify every member of these directions and the time factor forthwith as failure to pay any of these instalments within the time limit indicated above shall disqualify such person from allotment and NOIDA will thereafter be only obliged to refund the money lying to the credit of the defaulter with bank rate of interest.
(H) It is stated by the parties that a Review Application in Hiralal Chawla 's case is pending.
As agreed by the parties in case that Review is allowed, the parties herein shall be at liberty to apply for review of this judgment to similar extent.
(I) Each allottee shall furnish an affidavit to the effect that neither he/she or spouse, 71 nor dependent children owns any other plot or house or flat within NOIDA.
Town Planning in NOIDA is said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh is a member.
We direct that all the norms laid down by NOIDA in the matter of development shall be strictly followed.
Supervision of this operation of course shall be by NOIDA but we hope and trust that the Society would coop erate with NOIDA in this regard.
The appeal is disposed of with these directions without any orders as to costs.
G.N. Appeal disposed of.
| IN-Abs | The appellant, a registered Housing Co operative Socie ty, acquired about 70 acres of land during the period 1973 to 1975.
After the enactment of U.P. Industrial Area Development Act, 1976, the State Government constituted an Industrial Development Authority called NOIDA.
Soon after the constitu tion of the said authority, notifications were issued under the Land Acquisition Act acquiring certain lands including that of the appellant Society.
The appellant and several other societies demanded land in lieu of the land acquired.
A sub Committee was constitut ed and it was proposed to offer developed plots to the bona fide members of the societies whose lands were acquired.
An approximate rate of Rs. 130 per square metre was fixed.
It was also stipulated that 30% of the price would have to be deposited before a tripartite agreement between NOIDA, Co operative Societies and individual members is made after finalisation of lay out plan.
The appellant society filed a Writ Petition in the High Court alleging that the action taken by NOIDA was arbitrary and challenging the notifications issued under Sections 4 and 6 of the Land Acquisition Act.
Meanwhile, the authority had intimated the appellant society that it was finally decided to offer lands, and that 20% of the amount had to be deposited within a stipulated time.
The Society requested for extension of time.
Time was not extended and the Society was not allotted the land.
It was contended before the High Court that the authori ty acted mala fide, and its not extending the time was arbitrary and discrimi 65 natory.
The land price fixed by the authority was also challenged.
The High Court dismissed the Writ Petition, holding that the appellants Society had no legal right to get a particular land and that it did not avail the conces sion granted by the authority.
This appeal by special leave is against the order of the High Court.
Disposing of the appeal, this Court.
HELD: 1.
The interim orders of this court dated 30.5.83, 19.3.84, 30.4.84 and 8.5.85 will merge in this Order.
[70B] 2.
The Judgment of the High Court dated 6.5.83 is set aside.
The total number of persons entitled to allotment will be confined to those persons who were eligible members of the Society on 1st May, 1976 not exceeding 600.
The total area to be allotted to the members of the Society will be 28.8 acres in the form of developed plots.
This amounts to 40% of the total 72 acres of land acquired by the Society in the villages Chhalera Bangar and Suthari between January, 1973 and September, 1975.
The allotment shall be made in Sectors 40, 41 and 42 and if sufficient number of plots are not available in these Sectors, then from the adjacent sectors.
The plots to be allotted are to be developed by NOIDA within a period of nine months beginning from 1st May, 1990 and ending on 31st January, 1991 by which date the plots shall be allotted to the entitled members of the Society.
NOIDA shall be permitted to charge the price of the allotted plots at the rate of Rs. 1.000 per square metre.
Every member who has deposited any sum of money with NOIDA against proposed allotment shall be entitled to 12 per cent interest on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the persons shall be entitled to adjustment of such interest against actual price of the land to be worked out at the rate of Rs.1,O00 per square metre.
Balance amount, if any, shall have to be paid by every eligible member of the Socie ty as on1.5.76 not exceeding 600 in all, within three months from now in three equal monthly instalments.
The 1st instal ment will be paid on or before May 31, 1990.
The second instalment to be paid on or before June 30.
1990 and the third instalment to be paid on or before July 31, 1990.
It shall be obligation of the Society to duly notify every member of these directions and the time factor forthwith as failure to pay any of these instalments within the time limit indicated above shall disqualify such person from allotment and NOIDA will thereafter be only obliged to refund the money lying to the credit of the defaulter with bank rate of interest.
In case the Review Petition in Hira lal Chawla 's case is allowed, the parties herein shall be at liberty to apply for review of this judgment 66 on similar extent.
Each allottee shall furnish an affidavit to the effect that neither he/she or spouse, nor dependent children owns any other plot or house or flat within NOIDA.
All the norms laid down by NOIDA in the matter of develop ment shall be strictly followed.
Supervision of this opera tion of course shall be by NOIDA.
The society would cooper ate with NOIDA in this regard.
[70B H; 71A B] Hiralal Chawla and Anr.
vs State of U. P. & Ors., [1990] 1JTSC 194, applied.
|
ffidavit and the addi tional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who has no connection whatsoever with the passing of the order or dealing with or processing the file at any point of time.
In fact, he could not have got any personal knowledge with the passing of the order of its subsequent proceeding since the order has been passed by the State Government and the subse quent proceedings have been dealt with by the officials of the Secretariat.
It is, therefore, terribly shocking and surprising that a police officer who has no connection whatsoever with this detention order and who had not at any relevant time personally dealt with the case has come for ward to swear about the entire proceedings from the begin ning right up to the rejection of the representation includ ing the holding of the meeting of the Advisory Board on behalf of the appropriate authority.
The affidavit filed by the Deputy Superintendent of Police is, therefore, not worth consideration.
[841D F; 836F G] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 30 1 of 1990.
From the Judgment and Order dated 15.1.1990 of the Rajasthan High Court in H.C.P. No. 2866 of 1989.
Pallave Shishodia, Sandeep Mehta and D. Bhandari for the Appellant.
Chandmal Lodha, S.C. Gupta (N.P.), M.N. Shroff, I. Makwana and Manoj Prasad for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This appeal by grant of special leave is directed against the Order of the High Court of Rajasthan at Jodhpur in Habeas Corpus Petition No. 2866/1989 dismissing the Writ Petition filed by the detenu Gazi Khan @ Chotia.
The order of detention dated 30.5.
1989 under challenge has been passed by the Administrative Secretary and Commis sioner, Home Department, State of Rajasthan in exercise of powers under Section 834 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1989 (for short 'the Act ') on reaching his subjective satisfaction that the detenu has been involved in illegal business of smuggled charas and heroin and other psychotropic substances.
The relevant facts as set out in the grounds of deten tion giving rise to this appeal may be recapitulated as follows: The detenu Gazi Khan @ Chotia was actively involved in illegal and objectionable activities by organising a group of smugglers and financing them in the activities of smug gling without directly involving himself in such activities.
However, the police of Jaisalmer has opened a history sheet showing the indirect involvement of the detenu in such smuggling activities.
The modus operandi of the detenu is revealed in the statements recorded under Section 108 of the Customs Act from a number of smugglers who were apprehended in the course of smuggling.
On 3.11.
1986 the detenu has himself given a statement before the Customs Officer admit ting his involvement in smuggling of readymade garments and bides.
He was suspected in Offence No. 32 dated 30.3.1988 as well in Offence No. 17 dated 17.4.88 under the provisions of the Act as well under Section 25 of the Arms Act.
But since no evidence was available incriminating the detenu with those offences no action could be taken.
Further the detenu is said to have been involved along with his associates in certain criminal cases registered under the provisions of the Indian Penal Code.
The detaining authority on the above materials placed before him has passed this impugned order.
The High Court before which he challenged the impugned order of detention on various grounds has dismissed the Writ Petition holding that all the contentions did not merit consideration.
Hence this appeal.
The learned counsel appearing on behalf of the appel lant, raised several contentions, the main thrust of which being that the representation made by the detenu was not decided within.
a reasonable time and hence the delay is fatal to the detention.
This point has been taken even before the High Court.
But the High Court accepting the explanation given by the Deputy Superintendent of Police, Jaisalmer in his additional affidavit filed on behalf of the respondents spumed that plea observing: "In the present case as from the facts mentioned in the additional affidavit and referred to above, it cannot be said that there was undue lethargy or indifference." 835 Under Ground No. (d) of paragraph 16 of the Special Leave Petition, a contention is raised with regard to the delay of disposal of the representation stating that "the extraordinary delay of 27 days in consideration of representation of the petitioner is sought to be explained by mere ipso dixit of the detaining authorities who merely rest content with the skeletal chronology of days taken allegedly by several authorities with copies of unexplained silence about why actually several days as alleged by au thorities were taken to process and consider the representa tion of petitioner.
" Before this Court a reply is filed by the Deputy Super intendent of Police, Jaisalmer stating that he is "appointed as Officer Incharge in this case" and that he is replying to the allegations made in the Special Leave Petition with reference to the record connected with this case.
In para graph 15(d) of his reply, it is averred that "there is no delay in the consideration of representation of the peti tioner.
" The same Deputy Superintendent of Police in an additional affidavit filed before the High Court has sought to explain the delay stating that the representation of the detenu was placed before the Assistant Secretary on 19.6.
1989 with a proposal that a report might be called from the District Magistrate, Jaisalmer, who was the sponsoring authority, that the District Magistrate who received the communication on 22.6.1989 forwarded his comments to the State Government on 29.6.1989, that the comments were re ceived by the State Government on 1.7. 1989 and were placed for perusal of the Assistant Secretary on 3.7.1989 and that the Assistant Secretary after putting up a note incorporat ing the comments of the District Magistrate on the represen tation placed the same for perusal to the Deputy Secretary on 9.7.1989 and thereafter on the recommendation of the Special Secretary (Home) the representation was rejected on 11.7.1989.
A perusal of the above additional affidavit shows that the Deputy Superintendent of Police speaks on behalf of the detaining authority, namely, the State Government as well the authorities who dealt with the representation, namely, the Assistant Secretary and the Special Secretary (Home Department).
Finally, in regard to the delay in the disposal of the representation he states in para 7 of the said affi davit thus: " . . The delay has occasioned not by lack of deligence 836 or promptness on the part of the party concerned but due to unavoidable circumstances and for the reasons entirely beyond the control of the Detaining Authority.
" In this connection, we would like to point out that the main reply and the additional affidavit before the High Court as well as the reply affidavit before this Court are filed only by the same Deputy Superintendent of Police on behalf of the Respondents 1 and 2.
After the judgment was reserved, we after going through the papers directed the matter to be reported for further hearing.
Accordingly the matter was listed on 17.4.1990 on which date we asked the learned counsel for the respondents to explain as to under what authority the Deputy Superin tendent of Police has arrogated himself to the knowledge of the entire file relating to the impugned order and speaks for the detaining authority and other authorities who subse quently dealt with the file.
The learned counsel took an adjournment and has now filed an additional affidavit sworn by the Commissioner and Secretary (Home Department) dated 21.4.1990.
In the present additional affidavit no explana tion is given to our query.
The explanation given by the Secretary in his affidavit for the complaint of delayed disposal of the representation is as follows: "That there was no inordinate delay in considering the representation of the petitioner and the same was rejected after careful consideration.
" We are terribly shocked and surprised to note that a police officer who seems to have no connection whatsoever with this detention order and who had not at any relevant time personally dealt with the case has come forward to swear about the entire proceedings from the beginning right up to the rejection of the representation including the holding of the meeting of the Advisory Board on behalf of the appropriate authority.
This practice of allowing a police officer who has not dealt with the case at any point of time at any level and who in the very nature of the case could not have any personal knowledge of the proceedings, to swear the counter and reply affidavits on behalf of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection.
This Court on several occasions has expressed its views that in response to the Rule Nisi a counter affidavit should normally be filed 837 by the detaining authority himself though it cannot be suggested as a rigid or inflexible rule applicable in all cases of detention under all circumstances.
However, when allegation of mala fide or abuse of powers or personal bias is attributed to the detaining authority, the said authority should himself swear to the counter affidavit.
In the ab sence of any such allegation in the petition a counter affidavit may be sworn by a responsible officer who person ally dealt with or processed the case or by an officer duly authorised under the Rules of Business of the Government concerned.
A Constitution Bench of this Court in the State of Bombay vs Purushottam Jog Naik, ; in which a similar question arose, the learned Judges answered as follows: " . . if the Home Secretary has the requisite means of knowledge, for example, if the Minister had told him that he was satisfied or he had indicated satisfaction by his con duct and act and the Home Secretary 's affidavit was regarded as sufficient in the particular case, then that would con stitute legally sufficient proof.
But whether that would be enough in any given case, or whether the "best evidence rule" should be applied in strictness in that particular case, must necessarily depend upon its facts.
In the present case, there was the element that 57 cases were dealt with in the course of 6 days and orders passed in all on one day.
But we do not intend to enter into the merits.
All we desire to say is that if the learned Judges of the High Court intended to lay down as a proposition of law that an affida vit from the Minister in charge of the department is indis pensable in all such cases, then they went too far." In Ranjit Dam vs State of West Bengal, 16 the counter affidavit was filed by the Assistant Secretary, Home (Special) Department, who was authorised to file it as the detaining authority had since then been appointed as Secretary of the State Electricity Board.
This Court in that circumstance stated thus: "The reason given in this counter affidavit for the District Magistrate not making the affidavit himself does not appear to be satisfactory.
But as nothing terms on that fact we need say no more about it for the present.
" Sarkaria, J. in Shaik Hanif vs State of West Bengal, ; observed thus: 838 "Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective stand ards, it is all the more desirable that in response to the rule nisi the counter affidavit on behalf of the State should be sworn to by the District Magistrate or the author ity on whose subjective satisfaction the detention order under Section 3_ .was passed.
If for sufficient reason shown to the satisfaction of the Court, the affidavit of the person who passed the order of detention under Section 3 cannot be furnished, the counter affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government Secretariat or submit ted it to the Minister or other officer duly authorised under the rules of business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters.
" The learned Judge after referring to Ranjit Dam 's case (albeit) and to I.N. Roy vs State of West Bengal, stated as under: "Nevertheless, the failure to furnish the counter affidavit of the Magistrate who passed the order of detention, is an impropriety.
In most cases, it may not be of much conse quence but in a few cases, for instance, where mala fides or extraneous considerations are attributed to the Magistrate or the detaining authority, it may, taken in conjunction with other circumstances, assume the shape of a serious infirmity, leading the Court to declare the detention ille gal.
" 71 having regard to the facts of that case wherein the Deputy Secretary Home) filed the counter instead of District Magistrate it was held that he mere omission to file the affidavit by District Magistrate did not vitiate the deten tion order.
Speaking for the Bench, Krishna Iyer, J. in Bhut Nath Mete vs State of West Bengal, 11974] 1 SCC 645 at page 658 (para 21) has expressed his considered view on this point as hereunder: "True, we should have expected an affidavit from the detain ing authority but even that is felt too inconvenient and a Deputy Secretary who merely peruses the records and swears an affidavit in every case is the poor proxy.
Why 839 is an affidavit then needed at all? The fact of subjective satisfaction, solemnly reached, considering relevant and excluding irrelevant facts, sufficient in degree of danger and certainty to warrant pre emptive casting into prison, is best made out by the detaining District Magistrate, not one who professionally reads records and makes out a precis in the form of an affidavit.
The purpose is missed, going by the seriousness of the matter, the proof is deficient, going by ordinary rules of evidence, and the Court is denied the benefit of the word of one who takes responsibility for the action, if action has to be taken against the detainer later for misuse.
We are aware that in the exigencies of adminis tration, an officer may be held up far away, engrossed in other important work, thus being unavailable to swear an affidavit.
The next best would then be the oath of one in the Secretariat who officially is cognisant of or has par ticipated in the process of approval by Government not one who, long later, reads old files and gives its gist to the Court.
Mechanical means are easy but not legitimate.
We emphasize this infirmity because routine summaries of files, marked as affidavits, appear in the returns to rules nisi, showing scant courtesy to the constitutional gravity of deprivation of civil liberty.
In some cases, where a valid reason for the District Magistrate 's inability to swear affidavits directly has been furnished, this Court has accepted the concerned Deputy Secretary 's affidavit.
This should, however, be the exception, not the rule.
" Khanna, J. in Asgar Ali vs District Magistrate, Burdwan & Ors., while answering a contention that an affidavit by the detaining authority was essential for sustaining the validity of the detention order observed as follows: "Although normally the affidavit of the person actually making the detention order should be filed in a petition for a writ of habeas corpus, the absence of such an affidavit would not necessarily be fatal for the case of the respond ents.
It would indeed depend upon the nature of allegations made by the detenu in the petition for determining whether the absence of affidavit of the person making the detention order introduces a fatal infirmity.
In case an allegation is made that the officer making the detention order was actuat ed by some personal bias against the detenu in 840 making the detention order, the affidavit of the person making the detention order would be essential for repelling that allegation.
Likewise, such an affidavit would have to be filed in case serious allegations are made in the peti tion showing that the order was mala fide or based upon some extraneous considerations.
In the absence of any such alle gation in the petition, the fact that the affidavit filed on behalf of the respondents is not that of the District Magis trate but that of the Deputy Secretary, Home (Special) Department of the Government of West Bengal would not by itself justify the quashing of the detention order.
" In Suru Mallick vs State of West Bengal, , this Court accepted the affidavit of the Deputy Secretary (Home) who dealt with the matter as the District Magistrate was not available and preoccupied with some urgent business.
In Gulab Mehra vs State of U.P. & Ors., [ 1988] 1 SCR 126, a Station House Officer of Kydganj Police Station filed the counter stating that District Magistrate had passed the detention order when the appellant was already in jail on the apprehension that the appellant therein was likely to be released on bail in the near future.
Ray, J. speaking for the Bench while setting aside the order of detention held thus: "This clearly goes to show that the Sub inspector has arro gated to himself the knowledge about the subjective satis faction of the District Magistrate on whom the power is conferred by the Act.
The District Magistrate, the detaining authority in this case has not chosen to file his affidavit.
The affidavit in opposition filed by the Station Officer of Police implies that he has access to the file of the Dis trict Magistrate or he influenced the decision of the Dis trict Magistrate for making the detention order.
" Again in State of Gujarat vs Sunil Fulchand Shah & Anr., ; , accepting a further affidavit of the Deputy Secretary (Home Department), this Court did not attach much importance to the fact that the affidavit was not filed by the detaining authority personally.
However, the Court said: "It is true that in a case where a point as mentioned above arises the detaining authority should personally affirm on oath the stand taken on his behalf, but it cannot be sug gested as an inflexible rule applicable to all detention cases irrespective of the circumstances." 841 Recently in Madan Lal Anand vs Union of India, Dutt, J. speaking for the Bench pointed out: "There can be no doubt that a deponent who has no personal knowledge about any fact may, on the basis of some other facts, make his submissions to the court.
We do not think that any importance should be attached to the said statement made by the deponent in the counter affidavit.
" Thereafter the learned Judge has expressed his views that when there is an allegation of mala fide or bias made against the detaining authority, then the detaining authori ty should himself swear to the counter affidavit.
Ultimately having regard to the allegation made therein and to the fact that the Under Secretary to the Government has filed the counter, the learned Judge pointed out: "Merely because the detaining authority has not sworn an affidavit, it will not in all circumstances be fatal to the sustenance of the order of detention." As we have pointed out supra the reply affidavit and the additional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who does not seem to have any connection whatsoever with the passing of the order or dealing with or processing the file at any point of time.
In fact, the Deputy Superintendent of Police could not have got any personal knowledge with the passing of the order or its subsequent proceeding since the impugned order has been passed by the State Government and the subsequent proceedings have been dealt with by the officials of the Secretariat.
Reverting to the facts of the case there is no explanation for the delay from 3rd to 9th July 1989, i.e. for 7 days for the Assistant Secretary merely to put up a note on the basis of the comments of the District Magistrate.
The present additional affidavit sworn to by the Commissioner and Secretary on 21.4.1990 also does not whisper any explanation as to why such a delay of 7 days had occurred at the hands of the Assistant Secretary.
The learned counsel appearing for the appellant in support of his contention that the unexplained delay has vitiated the order has placed reliance on a decision of this Court in Rama Dhondu Borade vs V.K. Saraf, Commissioner of Police & Ors., to which decision one of us (Ratnavel Pandian, J.) was a party.
In that decision 842 after referring to various decisions of this Court including Smt.
Shalini Soni vs Union of India.
[ ; the following proposition was laid down: "The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India.
Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu for wards this representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasona ble dispatch and to dispose the same as expeditiously as possible.
This constitutional requirement must be satisfied with respect but if this constitutional imperative is ob served in breach, it would amount to negation of the consti tutional obligation rendering breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution." However, in the same decision it has been pointed out that "what is reasonable dispatch depends on the facts and cir cumstances of each case and no hard and fast rule can be laid in that regard.
" We have already expressed that the affidavit filed by the Deputy Superintendent of Police is not worth consideration and there is absolutely no explana tion for the delay caused at the hands of the Assistant Secretary.
Therefore, for the reasons stated above, we set aside the impugned order of detention on the ground that there is a breach of constitutional obligation as enshrined under Article 22(5) of the Constitution of India.
In the result, the appeal is allowed and the detenu is directed to be set at liberty forthwith.
P.V. Appeal al lowed.
| IN-Abs | The appellant challenged before the High Court the order of detention passed against him under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psycho tropic Substances Act, 1989, on various grounds including delay in disposal of his representation.
An affidavit was filed by a Deputy Superintendent of Police, on behalf of the respondents stating that the representation was placed before the Assistant Secretary on 19.6.1989, a report was called for from the District Magistrate, the comments, which were received by the State Government on 1.7.1989, were placed before the Assistant Secretary on 3.7.1989 who, in turn, submitted to the higher authorities with his note on 9.7.1989 and the representation was rejected on 11.7.1989.
The High Court dismissed the Writ Petition holding that there was no undue lethargy or indifference.
In the appeal, by special leave, on behalf of the dete nu, it was contended that the detenu 's representation was not decided within a reasonable time and hence the extraor dinary delay of 27 days was fatal to the detention.
A reply was filed by the same Deputy Superintendent of Police, as Officer Incharge of the case, who filed the affidavit before the High Court, stating that there was no delay in the consideration of the representation.
832 Subsequently, on the direction of the Court, an addi tional affidavit sworn by the Commissioner and Secretary (Home Department) stating that there was no inordinate delay in considering the representation and it was rejected after careful consideration, was filed.
Allowing the appeal, this Court, HELD: 1.
There is no explanation for the delay from 3rd to 9th July, 1989 i.e. for 7 days, for the Assistant Secre tary to merely put up a note on the basis of comments of the District Magistrate.
The additional affidavit sworn to by the Commissioner and Secretary does not whisper any explana tion as to why such a delay of 7 days had occurred at the hands of the Assistant Secretary.
The order of detention is, therefore, a breach of constitutional obligation as en shrined under Article 22(5) of the Constitution of India.
[841F G; 842F] Rama Dhondu Borade vs V.K. Saraf, Commissioner of Police Smt.
Shalini Soni vs Union of India, ; , referred to.
2.1 A counter affidavit should normally be filed by the detaining authority himself, but this is not a rigid or inflexible rule and, in the absence of any allegations of mala fide or abuse of powers of personal bias attributed to the detaining authority, it may be sworn by a responsible officer who personally dealt with or processed the case or by an officer duly authorised under the Rules of Business of the Government concerned.
However, the practice of allowing a police officer who has not dealt with the case any point of time at any level and who in the very nature of the case could not have any personal knowledge of the proceedings, to swear the counter and reply affidavits on behalf of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection.
[836H; 837A B; 836F G] The State of Bombay vs Purushottam Jog Naik, ; ; Ran]it Dam vs State of West Bengal, ; Shaik Hanifv.
State of West Bengal; , ; J.N. Roy vs State of West Bengal, ; Bhut Nath Mete vs State of West Bengal, ; at page 658; Asgar Ali vs District Magistrate Burdwan & Ors., Suru Mallick vs State of West Bengal, [1975] 833 4 SCC 470; Gulab Mehra vs State of U.P. & Ors., [19881 ] SCR 126; State of Gujarat vs Sunil Fulchand Shah & Anr., ; and Madan Lal Anand vs Union of India, , referred to.
|
Appeal No. 433 of 1957.
Appeal from the judgment and order dated August 24, 1956, of the Rajasthan High Court at Jodhpur in Civil Misc.
Case No. 17 of 1955.
B. D. Sharma, for the appellant.
A. N. Kripal, R. H. Dhebar and D. Gupta, for the respondent 1958.
October 17.
The Judgment of the Court was delivered by VENKATARAMA AIYAR J.
This is an appeal against the judgment of the High Court of Rajasthan in a reference under section 66(1) of the Indian Income tax Act, 1922, hereinafter referred to as the Act.
The facts, so far as they are material, are these The appellant is a resident of what was once the independent State of Udaipur.
There was in that State a Company called the Mewar Industries, Ltd., registered under the provisions of the law in force in that State, and the appellant held 266 shares in that Company.
On January 18, 1950, the Company went into liquidation, and on April 22, 1950, the liquidator distributed a portion of the assets among the shareholders, and the appellant was paid a sum of Rs. 26,000 under this distribution.
It is common ground that this sum represents the undistributed profits of the Company which had accrued during the six accounting years preceding the liquidation.
It should be mentioned that there was in the State of Udaipur no law imposing tax on income, and that it was only under the Indian Finance Act, 1950 that the residents of the State of Rajasthan, in which the State of Udaipur had merged, became liable for the first time to pay tax on their income.
That Act came into force on April 1, 1950.
We are concerned in these proceedings with the assessment of tax for the year 1951 52, and that, under section 3 of the Act, has to be on the income of the previous year, i.e., 1950 51.
Now, the dispute in the present case relates to the sum of Rs. 26,000 paid by the liquidator to the appellant on April 22, 1950.
By his order dated July 3, 1952, the Income tax Officer held 206 that this was dividend as defined in section 2(6A)(c) of the Act and included it in the taxable income of the appellant in the year of account.
The appellant took this order in appeal to the Appellate Assistant Commissioner who by his order dated January 12, 1953, confirmed the assessment.
There was a further appeal by the appellant to the Appellate Tribunal, who also dismissed it on November 10, 1953.
On the application of the appellant, the Appellate Tribunal referred the following question for the decision of the High Court: " Whether on the facts and in the circumstances of this case, the aforesaid sum of Rs. 26,000 was liable to be taxed in the assessee 's hands as dividend within the meaning of that term in section 2(6A)(c) of the Indian Income tax Act.
" The reference was heard by Wanchoo, C. J. and Modi, J. who by their judgment dated August 24, 1956, answered it in the affirmative.
It is against this judgment that the present appeal has been preferred on a certificate granted by the High Court under section 66A(2) of the Act.
The sole point for determination in this appeal is whether the sum of Rs. 26,000 received by the appellant on April 22, 1950, is dividend as defined in.
section 2(6A)(c) of the Act.
That definition, as it stood on the relevant date and omitting what is not material, was in these terms: " 6(A) 'dividend ' includes (a) any distribution by a company of accumulated profits whether capitalised or not if such distribution entails the release by the company to its shareholders of all or any part of the assets of the company ; (c) any distribution made to the shareholders of a company out of accumulated profits of the company on the liquidation of the company: Provided that only the accumulated profits so distributed which arose during the six previous years of the company preceding the date of liquidation shall be so included;".
207 The definition of " previous year " as given in section 2(l 1), omitting what is not material, is as follows: " Previous year " means in respect of any separate source of income, profits and gains (a) the twelve months ending on the 31st day of March next preceding the year for which the assessment is to be made. " On these provisions, the contention of the appellant is that under the definition in section 2(6A)(c) the assets of a company distributed after it has gone into liquidation will be dividend only if they represented the profits thereof accumulated during the six previous years preceding the date of the liquidation, and that, in the present case, though the amounts distributed came out of the accumulated profits of the Company, those profits had not been accumulated within the six previous years of the liquidation of the Company.
It is not in dispute that the profits which were distributed had been accumulated during the years 1943 44 to 1948 49, i.e., during the six years preceding the liquida tion.
The point in controversy is whether those years can be said to be " previous years " within section 2(6A)(c) of the Act.
The appellant contends that " previous year " as defined in section 2(l 1) of the Act means the year which is previous to the assessment year, that accordingly when there is no year of assessment, there can be no previous year, that construing the words " six previous years " in section 2(6A)(c) in the light of the definition of "previous year" in section 2(l 1) of the Act, the years 1943 44 to 1948 49 cannot be held to be previous years, because the Indian Income tax Act came into force in the State of Rajasthan only on April 1, 1950, and prior to that date there was at no time any law imposing tax on income in the State of Udaipur, that there was therefore no year of assessment, and that, in consequ ence, the sum of Rs. 26,000 received by the appellant on April 22, 1950, is not a dividend as defined in section 2(6A)(c).
The contention of the respondent which has been accepted by the Income tax authorities and by the learned Judges in the Court below is that the expression " six previous years" is used in section 2(6A)(c) not in the technical and restricted sense in which the 208 words " previous year " are used in section 2(11) of the Act, and that, in the context, it means six consecutive accounting years preceding the liquidation of the company.
The question is which of these two interpretations is the right one to be put on the language of section 2(6A)(c).
The argument of Mr. Sharma for the appellant is that section 2(11) having defined the meaning which the expression 'previous year" has to bear in the Act, that meaning should, according to the well settled rules of construction, be given to those words wherever they might occur in the statute, and that that is the meaning which must be given to the words " six previous years " in section 2(6A)(c).
It is to be noticed that the definitions given in section 2 of the Act are, as provided therein, to govern " unless there is anything repugnant in the subject or context ".
Now, the appellant contends that the words " unless there is anything repugnant " are much more emphatic than words such as " unless the subject or context otherwise requires ", and that before the definition in the interpretation clause is rejected as repugnant to the subject or context, it must be clearly shown that if that is adopted, it will lead to absurd or anomalous results.
And our attention was invited to authorities in which the above rules of construction have been laid down.
It is unnecessary to refer to these decisions as the rules themselves are established beyond all controversy, and the point to be decided ultimately is whether the application of the definition ins.
2(l 1) is repelled in the context of section 2(6A)(c).
Turning to the language of section 2(II), we have this that according to the definition contained therein, " previous year " is the year which is previous to the year of assessment, and that means that there can be only one previous year to a given year of assessment.
When section 2(6A) (c) speaks of six previous years, it is obvious that it uses the expression " previous year " in a sense different from that which is given to it in section 2(l 1), because it would be a contradiction in terms to speak of six previous years in relation to any specific assessment year.
It was argued that under section 13(2) of 209 the , words in the singular should be read as including the plural, and that, therefore, the definition of "previous year" in section 2(l 1) could be read as meaning " previous years ".
But section 13 only enacts a rule of construction which is to apply " unless there is anything repugnant in the and to read a " previous year " in section 2(l 1) would be to nullify the previous year " enacted therein, and such a construction must therefore be rejected as repugnant to the context.
It was then suggested that all the six previous years might be regarded as previous each to the next following year if that was itself a year of assessment, and that such a construction would, consistently with the contention of the appellant, give full effect to the definition in section 2(11) of the Act.
But this argument overlooks that while there may be several preceding years to a given year of assessment there can be only one previous year in relation to it, and that it would make no sense to speak of six previous years with reference to a year of assessment.
We are satisfied that it would be repugnant to the definition of " dividend " in section 2(6A)(c) to import into the words " six previous years " the definition of previous year" in section 2(l 1) of the Act.
An examination of the policy underlying section 2(6A)(c) also leads to the same conclusion.
When a company makes profits and instead of distributing them as dividend accumulates them from year to year and at a later date distributes them to the shareholders, the amounts so distributed would be dividend under section 2(6A) (a), but when a company which has so accumulated the profits goes into liquidation before declaring a dividend and the liquidator distributes those profits to the shareholders, it was held in Commissioners o Inland Revenue vs Burrell (1) that such distribution was not a dividend because when once liquidation intervenes, there was no question of distribution of dividends, and all the assets of the company remaining after the discharge of its obligations were surplus divisible among (1) 210 the shareholders as capital.
It was to remove this anomaly that the Indian legislature, following similar legislation by British Parliament in the year 1927, enacted section 2(6A) (1) in 1939.
The effect of this provision is to assimilate the distribution of accumulated profits by a liquidator to a similar distribution by a company which is working; but subject to this limitation that while in the latter the profits distributed will be dividend whenever they might have been accumulated, in the former such profits would be dividend only in so far as they came out of profits accumulated within six years prior to liquidation.
Now, the reason of it requires that those years must be a cycle of six years preceding the liquidation, arid that is what is meant by the words " previous years ".
It was argued for the appellant that if that was what was intended by the legislature, that was sufficiently expressed by the words " preceding the liquidation ", and that the words previous years " would be redundant.
But the words preceding years " would have meant calendar years, whereas the accounting years of the company for ascertainment of profits and loss might be different from the calendar years, and the words " previous year " would be more appropriate to connote the financial year of a company.
Now, it should be mentioned that when a company in liquidation distributes its current profits,, that would also be not dividend as held in Burrell 's case (1), and the law to that extent has been left untouched by section 2(6A)(c).
And it has accordingly been held by the High Courts that the current profits of a company in liquidation which are distributed to the shareholders are not dividend within section 2(6A)(c), Vide Appavu Chettiar vs Commissioner of Income tax (2) and Girdhardas & Co. Ltd. vs Commissioner of Incometax (3).
Therefore, accumulated profits which are sought to be caught in section 2(6A) (c) would be the profits accumulated in the financial years preceding the year in which the liquidation takes place, and it is this that is sought to be expressed by the words " previous years " in section 2(6A) (c).
In the present case, as the Company went into liquidation on January 18, 1950, (1) (2) (3) 211 excluding the current year which commenced on April 1, 1949, the six previous years will be the years 1943 44 to 1948 49.
So far, we have considered the question on the language of section 2(6A)(c) and the policy underlying it.
On behalf of the respondent, certain authorities were cited as supporting his contention that the expression it previous years " in section 2(6A) (c) is not to be interpreted in the sense in which the expression " previous year" is defined in section 2(l 1) of the Act.
It is sufficient to refer to one of them, and that is the decision of this Court in Commissioner of Income tax, Madras vs K. Srinivasan and K. Gopalan (1).
There, the point for decision was as to the interpretation to be put on the words " end of the previous year " in section 25, sub sections
(3) and (4) of the Act which dealt with discontinuance of or succession to a business, and it was held that the expression " previous year " in those provisions meant an accounting year expiring immediately preceding the date of discontinuance or succession.
The decision is not itself relevant to the present discussion, but certain observations therein are relied on as bearing on the point now under consideration.
Mahajan, J. delivering the judgment of the Court observed: " The expression 'previous year ' substantially means an accounting year comprised of a full period of twelve months and usually corresponding to a financial year preceding the financial year of assessment.
It also means an accounting year comprised of a full period of twelve months adopted by the assessee for maintaining his accounts but different from the financial year and preceding a financial year.
For purposes of the charging sections of the Act unless otherwise provided for it is co related to a year of assessment immediately following, but it is not necessarily wedded to an assessment year in all cases and it cannot be said that the expression 'previous year ' has no meaning unless it is used in relation to a financial year.
In a certain context it may well mean a completed accounting year immediately preceding the happening of a contingency." (I) , 501 212 The learned Judges in the Court below have relied on these observations, and quite rightly, as supporting their conclusion that the expression " six previous years " in.
section 2(6A) (c) means only the six accounting years of a company preceding the date of liquidation.
The appellant sought to raise one other contention, and that is that the Indian Companies Act came into operation in the Udaipur territory on April 1, 1951, only by force of the Part B Stater, Laws Act (111 of 1951), that during the relevant period the Mewar Industries Ltd. was not a company as defined in section 2(5A) of the Act, and that therefore the distribution of assets made by that Company on April 22, 1950, could not be held to be a dividend as defined in section 2 (6A) (c).
But that is not a question which was referred for the opinion of the High Court under section 66(1) of the Act; nor is it even dealt with by the Tribunal and therefore cannot be said to arise out of its order.
Moreover, whether the Mewar Industries Ltd., is a Company as defined in the Indian Income tax Act is itself a question over which the parties are in controversy.
The definition of " Company " under the Indian Income tax Act has undergone several changes from time to time, and on the relevant date it stood as follows: " 2(6) 'Company ' means (i) any Indian Company or (ii) any association, whether incorporated or not and whether Indian or non Indian, which is or was assessable or was assessed as a company for the assessment for the year ending on the 31st day of March, 1948, or which is declared by general or special order of the Central Board of Revenue to be a company for the purposes of this Act.
" It is contended for the respondent that the Mewar Industries Ltd., was an association which was assessable as a Company for the year ending March 31, 1948, and that it was, in fact, assessed; but the appellant disputes this.
As the point turns on disputed question of fact.
, it cannot be allowed to be raised at this stage.
213 In the result, we hold that the sum of Rs. 26,000 received by the appellant on April 22, 1950, ",as dividend as defined in section 2(6A) (c) of the Act and is chargeable to tax.
The appeal fails, and is dismissed with costs.
Appeal dismissed.
| IN-Abs | The appellant, a resident of the once independent State of Udaipur, held 266 shares in the Mewar Industries Ltd., a company registered in that State.
There was no law in the State of Udaipur imposing tax on income and it was on April 1, 1950that for the first time the residents of Rajasthan, in which the State had merged, became liable to pay such a tax.
On January 18, 1950, the Company went into liquidation and on April 22, 1950, the liquidator distributed a portion of the assets among the shareholders, the appellant receiving a sum of Rs. 26,000.
This sum represented the undistributed profits of the company which had accrued during the six accounting years preceding the liquidation.
The income tax authorities included this sum in the taxable income of the appellant for the assessment year 1051 52 holding that it was dividend as defined in section 2(6A)(c) of the Indian Income tax Act.
Under section 2(6A)(c) the distribution of accumulated profits which arose during the " six previous years " preceding the date of liquidation would be dividend.
Section 2(1) defined " previous year " to mean the year which was previous to.the assessment year.
The appellant contended that " previous years " in section 2(6A)(c) must be read in the light of the definition is section 2(1) and as in the present case there had been no law imposing a tax prior to April 1, 1950, the profit for the years 1943 44 to 1948 49 cannot be held to be profits which " arose during the six previous years ", and consequently could not be taxed as dividend as defined in section 2(6A)(c) of the Indian Income tax Act.
Held, that the said sum was dividend within the meaning of section 2(6A)(c) of the Act and was liable to tax.
The definitions given in section 2 Of the Act applied unless there was anything repugnant in the subject or context.
It would be repugnant to the definition of " dividend " in section 2(6A)(c) to import into the expression " six previous years " the definition of " previous year " in section 2(ii) of the Act.
By the expression "previous years " in section 2(6A)(c) of the Act was meant the financial years preceding the year in which liquidation took place.
Commissioner of Income tax, Madras vs K. Srisivasan and Gopalan, , referred to. 205
|
vil Appeal Nos.
3131 and 3132 of 1988.
From the 'Judgment and Order dated 15.4.1987 of the A.P. Administrative Tribunal in R.P. No. 1909 of 1985.
K. Madhava Reddy, G. Prabhakar and Narasimhu P.S. (NP) for the Appellant.
section Ramachandran, B. Kanta Rao and N. Venkatarayudu for the Respondents.
Ms. Rani Chhabra and B. Rajeshwar Rao for the Interveners.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These appeals are directed against the order of the A.P. Administrative Tribunal, Hyderabad dated April 15, 1987 directing the State Govern ment to consider the cases of Officers for promotion to the category of Additional Director of Medical and Health Serv ices and equivalent posts on the basis of seniority includ ing service in their lower cadre.
The appointment in the A.P. Medical and Health Services is regulated by the statutory rules called "The Special Rules for the A.P. Medical and Health Services, 1982" (called shortly as the "Rules").
All the respondents were originally recruited as Civil Assistant Surgeons upon selection by the State Public Serv ice Commission.
The minimum qualification for Civil Assist ant Surgeon is M.B.B.S.
The post of Civil Assistant Surgeon is equivalent to the post of Assistant Professor.
They are inter transferable posts but a Post Graduate Degree is necessary for posting as Assistant Professor.
The Civil Assistant Surgeon is also posted as Tutor in the teaching side if he has no Post Graduate Degree qualification.
In the select list prepared by the Public Service Commission, respondents 1 to 12 were ranked above the other respondents, but they were not considered for promotion to the category of Additional Director and other equivalent posts.
Their juniors in the original cadre were appointed to such posts, and that was their grievance before the A.P. Administrative Tribunal.
58 All Civil Assistant Surgeons including Assistant Profes sors and Tutors are eligible for promotion as Deputy Civil Surgeon on the basis of seniority of Assistant Professors/Civil Assistant Surgeons and Tutors.
It is said that the post of Deputy Civil Surgeons are not cadre posts.
They are just like Selection Grade posts covering 15% of total cadre strength of Civil Assistant Surgeon posts.
They are common both in teaching cadre as well as in non teaching cadre.
From the very beginning after formation of Andhra Pra desh State, the Civil Assistant Surgeons are appointed by direct recruitment except perhaps in the year 1984, when there was direct recruitment of Assistant Professors with the minimum qualification of Post Graduate degree in the concerned speciality.
The Rules contain inter alia two parts; Part I and Part II.
We are concerned with Part I only.
It consists of the following three branches: Branch I Teaching cadre Branch II Non teaching cadre Branch III Laboratories Branch I Teaching cadre again consists of Class I and Class II.
Under Class I. there are six categories of posts.
They are as follows: Category 1 Additional Director of Medical and Health Services (Medical Education), Principals of Medical Colleges, Superintendents of Medical Colleges, Superintendents of Teaching Hospitals and Principal, Govern ment Dental College.
Category 2 Professors Clinical.
Category 3 Professors Non Clinical.
Category 4 Dental Professors.
Category 5 Deputy Civil Surgeons Clinical and non clinical.
Category 6 Deputy Civil Surgeon Dental.
Class II consists of the following three categories: Category 1 Assistant Professors Clinical and non clinical.
59 Category 2 Assistant Professors Dental.
Category 3 Tutors.
Rule 2 under Branch I Teaching cadre provides for method of recruitment to different classes and categories.
This Rule is important and may be read in full: "Rule 2 Appointment Appointment to the various classes and categories shall be made as follows: Class and Category Method of Recruitment Class I Category 1 (i) By promotion from among the Additional Director of holders of the post of Professors Medical & Health Services included in Class I Categories 2 (Medical Education), and 3 of this branch with not less Principals of Medical than three years service of which Colleges,Superintendents at least two years service in the of Teaching general said Category on First year in Hospitals and Principal, which panel is prepared.
Government Dental College.
Provided that the post of princi pal, Government Dental College shall be filled in by promotion from among the holders of the posts included in class I,Cate gory 4.
(ii) who have completed 45 years of age on first January or 1st July of the year in which panel is prepared.
Category 2 (i) By promotion from among the holders of the posts of Deputy Civil Surgeons (clinical) included in Class I, Catego ry 5 of this branch; (ii) By promotion from the holders of posts of Assistant Professors (clinical) included in Class II, Category 1 of this branch if persons from item (i) are not available.
" Similar are the provisions for promotion to the posts of pro 60 fessors (non clinical) in Category 3: "Category 3: (i) By promotion from among the holders of the posts of Deputy Civil Surgeons (non clinical) included in Class I, Category 5 of this branch; (ii) By promotion from the holders of posts of Assistant Professors (Non clinical) included in Class II, Catego ry 1 of this branch if persons from item (i) above are not available.
" It will be convenient, if at this stage, we also read the amendment to the foregoing Rules made on March 29, 1988.
They are as follows: AMENDMENT TO SPECIAL RULES FOR THE ANDHRA PRADESH MEDICAL AND HEALTH SERVICES (G.O.M.No.
182, Health, Medical and Family Welfare (A 1) 29 March, 1988) 1.
Constitution . . 2.
Appointment to the various categories of posts shall be made as shown in the Table below: Category of Post Method of Recruitment Category: 1 Additional Director of By promotion from among the holders Medical & Health Service of the post of professors in Cate (Medical Education), gories 2 and 3 with not less than Principals of Medical three years of service of which at Colleges,Superintendents least two years shall be in one of Teaching General the said categories as on first Hospitals and Principals January or 1st July of the year in Government Dental which panel is prepared.
College.
There are three requirements for eligibility for considera tion 61 for promotion to the category of Additional Director and equivalent posts: (i) He should be in cadre 2 and 3 in Class I; (ii) He should have a minimum service of two years in the said categories; and (iii) He should have a total service of not less than three years.
Two years service in the category appears to mean two years service as Professor and this is not in doubt or dispute.
The dispute, however, is about the requirement of service of three years.
Whether that service should be only in Class I categories 2 and 3 or inclusive of service in Class II is the question for consideration.
The Tribunal appears to have accepted the latter view.
It has been held that promotion to the post of Additional Director and equiv alent posts is to be made on the basis of total period of service in including service in the lower categories subject to the condition that the person should be holding the post of Professor or equivalent post for at least two years.
Mr. Madhava Reddy, learned counsel for the appellants argued that the view taken by the Tribunal would be contrary to the rule of seniority in the cadre of Professors.
The seniority for zone of consideration for promotion should always be of the feeding cadre and not from any other cadre.
Reference was made to Rule 10 of the Rules and also to Rule 33(a) of the Andhra Pradesh State and Subordinate Services Rules.
Counsel also contended that the minimum three years of service provided under rule 2 in any event must be in class I in any category and it can never be in Class II Service.
We are unable to accept the submission of learned coun sel for the appellants, having regard to the facts and circumstances of this case.
Rule 10 of the Rules requires determination of seniority on unit wise.
It reads: "10.
Seniority.
For purposes of seniority and appointment as full members the posts included in this branch shall consti tute separate units as indicated below: Unit 1 Class I Category 1, viz.
Additional Director of Medical and Health Services (Medical Education),Principals of Medical Colleges, Superintendents of Teaching General Hospitals.
Unit 2 Class I Category 2 viz. (i) Professors (Clinical and nonclinical).
62 Unit 3 Class I Dental Professors.
provided that Deputy Civil Surgeons and Assistant Professors shall have separate seniority in order of speciality" Rule 33(a) of the A.P. Subordinate Service Rules pro vides that seniority of a person in service, class, category or grade shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade.
It seems to us that the seniority in the category of professors in the teaching and non teaching cadre or in the lower cadre based on speciality wise may not be relevant for preparation of a penal for promotion to the cadre of Additional Director and other equivalent posts in Category.
Equally the service rendered as Deputy Civil Surgeon in category 5 cannot also be the basis for preparing the panel for consideration.
As observed earlier, Deputy Civil Surgeon is a common category in all the Branches; Branch I teaching cadre; Branch II non teaching cadre and Branch III Laboratories.
It is a part of the category of Civil Assistant Surgeons, and not cadre post.
It is just like selection grade post covering in all 15% of total cadre strength of Civil Assistant Surgeons.
The posts are distributed in all the three Branches and promo tion to the posts depends upon the available vacancies in every branch.
Furthermore, Rule 2 does not expressly exclude the service in Class II Cadre for preparing panel for considera tion for promotion to posts with which we are concerned.
We also consider that it would be unreasonable and unjust to exclude the service and overlook the vertical seniority in the substantive cadre to which everyone was selected by the Public Service Commission.
In medical profession there are specialities and specialities, but it is generally accepted that they are not of equal importance or utility.
However, the promotions are allowed on the basis of the respective specialities and the availability of promotional vacancies in such specialities.
A junior with relatively less impor tant speciality may be fortunate enough to get quick promo tion than his senior with a different speciality.
We are of the opinion that the juniors who get accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancies in such speciality should not be allowed to march over their seniors for ap pointment to administrative posts.
Any advantage gained by juniors on such fortuitous circumstances of having some speciality and promotion should not impair the rights of their seniors for promotion to posts where speciality or teaching experience 63 is not called for.
The seniority determined in order of speciality should not therefore be the basis for promotion to administrative posts.
Any rule providing for the contrary may be vulnerable to attack on the ground of arbitrariness.
We therefore, concur with the view expressed by the tribunal and dismiss these appeals with costs.
Before parting with the case, however, it is necessary to point out that the imprecise drafting of the present Rules has led to misunderstanding and litigation and it would be proper for the State Government to have the word ings of the Rules properly amended with perspicuity to give effect to the view indicated.
N.P.V. Appeals dis missed.
| IN-Abs | Under Rule 2 of the Special Rules for the A.P. Medical and Health Services, 1982, which provided for the method of recruitment to different classes and categories in the A.P. Medical and Health Services, there were three requirements for eligibility for consideration for promotion to the Class I, Category I posts of Additional Director (Medical Educa tion) and equivalent posts.
These were (i) the person should be in categories 2 and 3 posts of Professors, (ii) he should have a minimum service of two years in the said categories, and (iii) he should have a total service of not less than three years.
The respondents were all originally recruited as Civil Assistant Surgeons, upon selection by the State Public Service Commission.
In the Select List prepared by the Commission, respondents No. 1 to 12 were recruited above the other respondents.
However, they were not considered for promotion to the category of Additional Director and other equivalent posts.
Hence the aggrieved respondents took their grievance to the State Administrative Tribunal.
The dispute before the Tribunal was whether the requirement of three years service should be only in Class I, Categories 2 and 3, or it was inclusive of service in Class II.
The Tribunal held that it should be on the basis of total period of service including in the lower categories, subject to the condition that the person should be holding the post of Professor or equivalent post for at least two years.
56 In the appeal before this Court, on behalf of the State.
it was contended that the seniority for zone of considera tion for promotion should always be of the feeding cadre and not from any other cadre.
and that the minimum of three years must be in Class I in any category and can never be in Class II service.
Dismissing the appeals, this Court, HELD: 1.1 The juniors who get accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancies in such speciality should not be allowed to march over their seniors for ap pointment to administrative posts.
Any advantage gained by juniors on such fortuitous circumstances of having some speciality and promotion should not impair the rights of their seniors for promotion to posts where speciality or teaching experience is not called for.
The seniority deter mined in order of speciality should not.
therefore, be the basis for promotion to administrative posts.
Any rule pro viding for the contrary may be vulnerable to attack on the ground of arbitrariness.
[62G H; 63A] 1.2 It would be unreasonable and unjust to exclude the service and overlook the vertical seniority in the substan tive cadre to which everyone was selected by the Public Service Commission.
In medical profession, there are spe cialities but it is generally accepted that they are not of equal importance or utility.
However, the promotions are allowed on the basis of the respective specialities and the availability of promotional vacancies in such specialities.
A junior with relatively less important speciality may be fortunate enough to get quick promotion than his senior with a different speciality.
[62E G] 1.3 The seniority in the category of professors in the teaching and non teaching cadre or in the lower cadre based on speciality wise will not be relevant for preparation of a panel for promotion to the cadre of Additional Director and other equivalent posts in Category I. Equally.
the service rendered as Deputy Civil Surgeon in Category 5 cannot also be the basis for preparing the panel for consideration.
Further more.
Rule 2 does not expressly exclude the service in Class 11 Cadre for preparing panel for consideration for promotion to the Category of Additional Director and equiva lent posts.
[62B E] 2 Imprecise drafting of the Rules has led to misunder standing and litigation.
It would, therefore.
be proper for the State Government to have the wordings of the Rules properly amended with perspicuity to 57 give effect to the view indicated ' herein.
[63B C]
|
Criminal Appeal Nos. 5 17 523 of 1978.
From the Judgment and Order dated 17.2.1977 of the Allahabad High Court in Crl.
A. Nos.
1143, Referred No. 31 of 1976 connected with Crl.
A. Nos.
1132, 1133, 1156, 1158 of 1976 & Govt.
Appeal No. 2129 of 1976.
Prithvi Raj, Dalveer Bhandari and Prashant Choudhary for the Appellant.
R.L. Kohli, H.K. Pun and C.P. Lal (NP) for the Respondents.
Yogeshwar Prasad, Ms. Rachna Gupta and P.K. Bajaj for the Complainant.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
It is a very tragic and pathetic case tragic in the sense that 13 persons have been massa cred in a gruesome and horrendous manner and pathetic in the sense that the culprits burnt the victims of this barbaric act by covering with sugarcane leaves and sprinkling with diesel oil.
At the same time, we are deeply distressed and pained to note that three of the accused persons i.e. A 1, A 2 and A 27, who were in prison on the date of occurrence are falsely implicated as having taken part in the occur rence and the main witness, Nitya Nand (PW 1) has made a deliberate and suborn perjury by naming these three accused persons even in the earliest complaint (exhibit Ka 1) with an oblique motive of obtaining conviction of these accused also.
Even at the threshold, we would like to point out that as the appellant has not furnished the correct list of the array of the accused with reference to each of the four sessions trials in a chronological manner, we with great difficulty have culled out the names of the accused persons and the sessions trial case numbers from the body of the judgment of the Trial Court and appended a list of the names of the accused as Annexure 'A ' to this judgment so that we may not experience any difficulty in understanding and appreciating the prosecution case.
There were 41 accused in total who took their trial in sessions trial case Nos.
A 119, A 160, A 265/74 and A 27/75 as indicated by us 943 tO the foot note to Annexure 'A '.
The Trial Court convicted 16 accused under various provisions of the Indian Penal Code and the Arms Act and acquitted the remaining 25 accused.
In this judgment, we are referring to the accused persons in the order, as arrayed in Annexure 'A '.
Indisputably, 13 persons ranging between 22 25 years of age were done away with in the occurrence.
Two other per sons, namely, Jama (PW 3) and Balai (PW 24) escaped with injuries.
Of the deceased persons, one by name Kedar be longed to a village called Baluahi, whereas the rest of the deceased persons belonged to a village called Deotaha, to which village the injured persons belong.
The deceased persons are either the members of the family or associates of the complainant, Nitya Nand (PW 1) whose father was one among the 13 deceased persons.
Of the accused, some are inter related and the rest are associates.
The scene of occurrence lies within the limits of Nebua Naurangia Police Station in the District of Deoria in the state of U 'PAt a distance of 10 miles to the west of this police station, there is a village known as Bali.
A few furlongs to south of Bali, the village Deotaha is situated.
The agricultural area of the village Bali extends up to some distance to the west of village Deotaha.
About six furlongs to the west of village Deotaha, there are two contiguous plots bearing Nos. 736 and 737 without any dividing line.
The occurrence in question took place in the very same plots.
There were two rival factions in the village Deotaha in that the deceased persons, their relations and associates formed one faction and the accused formed the rival faction.
There was deep rooted enmity and simmering feelings between the two groups due to the following incidents.
In a keenly contested Pradhanship election of the vil lage Deotaha, the first accused became successful.
One of the deceased Prabhu Nath filed a suit as against A 27 (Jangi) for recovery of a sum of Rs.20,000 and the suit was decreed on A 27 's admission.
At the time of the occur rence, the execution proceeding in pursuance of the decree was pending.
In that suit, Kedar one of the deceased was a witness supporting the cause of Prabhu Nath.
On 15.5.
1973, the first accused and some others attacked one 944 Rajeshwar Tiwari during the course of which one Saheb be longing to the accused party was murdered.
The members of both the groups were arrested and sent to jail in connection with that occurrence.
After their release in the above case, they started damaging each other 's crops.
This led to the initiation of a security proceeding under Section 107 of the Code of Crimi nal Procedure.
In that the party of the first accused was bound over.
In September 1973, another security proceeding was initi ated under Section 107 of the Code of Criminal Procedure, wherein A 1, A 27 and 54 others belonging to A 1 's party were bound over.
Due to the above consecutive incidents, these two rival factions were nursing and nurturing their ill feelings which was gaming momentum day by day, ultimately culminating into the occurrence in question.
We shall now give a brief note of the prosecution case.
On account of the deep rooted animosity between the parties, the first two accused and Accused No. 27 hatched a conspiracy with some of their associates to murder Prabhu Nath and his men on 14.1.1974 when they were expected to be engaged for cutting the standing sugar cane in plot Nos.
736,and 737.
With an intention of screening himself from any prospective accusation the third accused deposited his licensed gun on 12.1.1974 with an arms dealer (PW 28) at Gorakhpur.
On the same day, namely, on 12.1.1974 at about noon accused Nos. 1, 2 and 27 in order to create evidence of their alibi entered into an agreement with one S.D. Dubey, who was at that time working in the Railways as Travelling Ticket Examiner (T.T.E.) and who is shown as Accused No. 40 in Annexure 'A ' to do an illegal act, to wit, to have the deceased persons murdered by their associates on 14.1.
In pursuance of this conspiracy these three accused (1, 2 and 27) traveled without tickets by 2 Dn.
Mail Train running between Khora Bhar and Gauri Bazar which stations lie on Gorakhpur Bhatni line.
As these three accused who traveled as ticketless passengers did not pay the charges due from them to the TTE (Accused No. 40), they as pre planned, were apprehended and produced before the Railway Magistrate on 13.1.1974 who convicted them and sentenced them to imprison ment till 18.1.1974.
Thus these 3 accused were incarcerated in the Gorakhpur jail till 18.1.1974.
945 The occurrence in question took place in the afternoon of 14.1.
On the day of occurrence at about 10.00 A.M. all the 13 deceased persons accompanied by two injured persons PWs 3 and 24 and few others went to plot Nos. 736 and 737 for cutting the sugar cane crops raised by one of the deceased namely Trijugi and his family members.
The deceased persons had also taken a tractor with the trolley attached to it for removing the sugar canes.
By about 1.00 P.M. the entire cane crops had been cut.
Some bundles of the sugar canes already cut had been loaded on the trolley.
At this point of time, about 80 90 persons inclusive of these accused persons armed with lethal weapons such as fire arms, spears, lathes and pharsas surrounded the spot from 3 direc tions, namely, north, east and west and after nearing the field started firing shots indiscriminately and also at tacked the prosecution party with pharsas, spears and lathes.
All those persons who were cutting the sugar cane crops got panicky and started running helter skelter.
These unfortunate 13 deceased persons ran towards north evidently to save their lives by taking positions behind the trolley and the tractor which were parked just north of the place of occurrence.
PWs 3 and 24 and some others ran towards south.
While so running PWs 3 and 24 received injuries.
But the other witnesses, namely, Nitya Nand (PW. 1), Om Prakash (PW. 6), Smt.
Mala (PW. 11) and Smt.
Chandgudi (PW. 12) escaped unhurt.
They all hid themselves in the fields of Hakim and Paras which lie to the south of the place of occurrence and witnessed the entire orgy of violence therefrom.
The cul prits chased these 13 deceased persons like hunters chasing the fleeing beasts and ruthlessly and indiscriminately attacked them.
All the 13 persons instantaneously succumbed to their injuries.
The dead bodies were found lying scat tered around the tractor and trolley providing a gory sight.
During the course of the occurrence, it is said that one of the deceased Prabhu Nath who had a gun fired at the accused party in self defence and injured Rambali (Accused No. 36).
Accused Nos. 10 and 16 covered the dead bodies with sugar cane leaves and sprinkled diesel oil taken out from the tractor and set fire to.
After committing this heinous crime, all the culprits left the scene of occurrence.
While leaving the scene, Accused No. 32 carried away the gun of the deceased Prabhu Nath.
The entire occurrence was over within an hour.
After the accused persons had left the scene, PW 1 went to the police station which is at a distance of 10 miles from the scene and presented a written complaint (exhibit Ka. 1) which was registered at about 2.45 P.M.
The 'chik report ' (The First Information Report) is exhibit Ka.
51 the copy of which is exhibit Ka.
The Station House Officer 946 (PW 43) took up investigation and proceeded to the scene accompanied by his head constable and other constables, after giving instruction to PW 17 to proceed to the scene by arranging some vehicles.
PW 43 reached the scene of occur rence at 4.00 P.M. and examined PWs 3, 24 and others and sent the injured witnesses for medical examination.
Then PW 43 held inquest over the dead bodies and thereafter sent the dead bodies for post mortem examination.
After despatch ing the dead bodies PW 43 inspected the scene of occurrence and found marks of pellets on all sides of the trolley and ash of burnt leaves lying around the trolley.
The wheels of the trolley were also found burnt.
Two live cartridges and several used and fired cartridges of 12 bore gun together with the pellets and some burnt clothes were found by the investigating officer on the spot.
Patches of blood were found at different places.
PW 4, the Medical Officer exam ined the injured witnesses and found on their person punc tured wounds besides abrasions.
PW 3 had two gun shot wounds.
The Doctor had noted the injuries.
in Exhibits Ka 5 and Ka 6.
The Medical Officers, namely PWs 2, 9, 10 and 46 conducted necroscopy on the dead bodies and noted various kinds of injuries such as incised wounds, lacerated in juries, contusions and gun shot wounds etc.
There was super ficial burn on the dead bodies indicating that the dead bodies were set fire to.
PW 43 searched for the accused mentioned in the F.I.R., but none was available.
Then he took proceedings under Sections 87 and 88 of the Code of Criminal Procedure (old).
He arrested Accused No. 39 on 16.1.1974 and seized his licensed gun.
Accused Nos. 3 and 16 were arrested in the house of Accused No. 38.
A rifle (exhibit 11) and a gun (exhibit 12) were seized by PW 43 from the house of Accused No. 38.
On 16.1.1974, the sub Inspector, PW 43 was suspended.
Thereafter the investigation was taken up by the Circle Inspector of Police on 17.1.
Subsequently, on 21.1.
1974 the investigation was entrusted to the C.I.D. Branch.
PW 38, an Inspector of that branch took up further investigation.
During the investigation he came to know that Rambali (Accused No. 36) was admitted to Gorakhpur Hospital, but slipped away from the hospital.
on 18.1.1974.
PW 38 collected evidence about the arrest of Accused Nos. 1, 2 and 27 by the T.T.E. while the latter found these three accused travelling without tickets on 12.1.1974.
He sent the two cartridges recovered from the place of occurrence to the ballistic expert, who opined that the same should have been fired by rifle (exhibit 11).
Some of the accused surrendered before the court on different dates.
After completing the investigation, PW 38 laid the chargesheet in 4 batches which gave rise to 4 different sessions trials which were disposed of by the learned Sessions Judge by this impugned common judgment.
947 All the accused pleaded not guilty and denied their complicity with the offence in question.
Rambali (Accused No. 36) admitted his presence and stated that the sugar cane crops belonged to one Phunni and not to Tirjugi and his relations and that while Phunni and his men were cutting the sugar cane crops, the deceased Prabhu Nath and the other deceased persons attempted to forcibly taking away the crops and during the course of such attempt, Phunni and his men attacked the deceased party and that he was shot by the deceased Prabhu Nath when he entreated that the sugar cane crops of Phunni should not be taken away.
Accused nos.
1, 2 and 27 denied the charge of conspiracy and stated that they were in prison on the date of occurrence consequent upon their conviction recorded by the Railway Magistrate for their ticketless travelling.
The prosecution in all examined 53 witnesses and filed number of documents.
The accused examined DWs 1 7.
Of the witnesses examined by the prosecution, PWs 1, 3, 6, 11, 12, 20 and 24 are ocular witnesses.
It may be mentioned here that PW 20 has been treated as hostile as he has not sup ported the prosecution case.
Of these witnesses, PWs 3 and 24 were injured witnesses.
One Ganga Prasad Pande mentioned as an eye witness in the F.I.R. was examined as a court witness (C.W. 1) and he did not support the prosecution version.
The learned Trial Judge believing the plea of accused Nagendra alias Tara (A.4) on the basis of the evi dence of DW. 1 (Dr. Krishna Swarup) found this accused as having not participated in the occurrence.
However, he spurned the plea of defence put forth by rest of the ac cused.
The learned Sessions Judge for the discussions made in his judgment acquitted 25 accused persons out of the total of 41 accused, namely, 4 6, 11 14, 17 22, 24 26, 28 32, 35, 39 41 finding them not guilty of any of the charges and convicted the rest of the 16 accused under various charges and sentenced them as hereunder: Accused Nos. 1, 2 and 27 were sentenced to life impris onment under Section 302 read with Sections 109 and 120 (B) IPC and Accused Nos. 3, 7, 8, 15, 23, 33, 34, 36 and 37 were convicted under Section 302 read with Section 149 IPC and sentenced to imprisonment for life and in addition to that, these 9 accused were convicted under Section 307 read with Section 149 IPC and each of them was sentenced to undergo rigorous imprisonment for a period of 4 years.
Accused No. 9 was convicted under Section 302 (simpliciter) and sentenced to life imprisonment and convicted under Section 307 (sim pliciter) and sentenced to 5 years rigorous imprisonment.
In addition to that, A. 9 was con 948 victed under Section 27 of the Arms Act and sentenced to rigorous imprisonment for a period of two years and also under Section 147 for a period of one year.
Accused Nos. 10 and 16 were convicted under Section 302 read with Section 149 IPC and each of them was sentenced to the extreme penalty of law, namely, death.
These two accused A. 10 and A. 16 were also convicted under Section 307 read with Section 149 IPC and each of them was sentenced to rigorous imprisonment for a period of 5 years.
Accused Nos. 3, 7, 8, 10, 15, 16, 23, 33, 34, 36 and 37 were convicted under Section 148 IPC and each of them was sentenced to undergo rigorous imprisonment for a period of one and half years.
Apart from this, all the convicted accused persons except Accused Nos. 1, 2, 27 and 38 were convicted under Section 201 read with Section 149 IPC and each of them was sentenced to rigorous imprisonment for a period of 4 years.
Added to that, all these accused except ing the above four were convicted under Sections 435 and 427, IPC and sentenced each one of the accused to undergo rigorous imprisonment for one year under each of these two charges.
Accused No. 37 was also convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprison ment for a period of two years.
All the convicted accused filed Criminal Appeal Nos.
1132, 1133, 1143, 1156, 1157 and 1158 of 1976.
The reference made by the Trial Court for confirmation of the sentence of death imposed on A. 10 and A. 16 was heard as a Referred case No. 31 of 1976.
The State preferred an appeal under Section 378 of Cr.
P.C. against the acquittal of all the 24 acquitted persons.
It may be mentioned at this juncture that the High Court did not grant leave as required under Section 378(3) of the Code of Criminal Procedure to entertain an appeal against the acquittal of S.D. Dubey (A. 40).
The High Court disposed of these appeals inclusive of the State appeal and the Referred case by the common impugned judgment dated 17.2.1977, allowing all the criminal appeals preferred by all the convicted accused except the appeal preferred by Rambali (A. 36) and setting aside the convictions and the sentences of those whose appeals were allowed.
The State appeal was dismissed.
The referred case was rejected conse quent upon the acquittal of A. 10 and A. 16.
The State on being dissatisfied with the impugned judg ment of he High Court, has preferred as many as seven crimi nal appeals as 949 detailed in the table given below: S1.
No. Criminal Appeal No. The Accused concerned.
517/78 A. 10 and A. 16 2.
518/78 A.38 3.
519/78 A. 1, A.2 & A.27 4.
520/78 A.3, A.7, A.8, A.9, A. 15, A.23 & A.33.
521/78 A. 37 6.
522/78 A.34 & A.36 7.
523/78 A. 4 6.
A. 11 14, A. 17 22, A.24 26, A.28 32, A.35 A.39 & A.41 After the grant of special leave, S.D. Dubey, Respondent No. 25 in Criminal Appeal No. 523/78 (Accused No. 40 in the Annexure 'A ' to this judgment) filed a petition for rectifi cation in Miscellaneous Petition No. 210/79 praying to recall the leave granted and the nonbailable warrant issued against him on the ground that the High Court did not grant leave to the State for preferring an appeal against his order of acquittal.
This Court by order dated 23.1.1979 deleted the name of S.D. Dubey from the array of the re spondents in Criminal Appeal No. 523/78 and revoked the special leave granted so far as he was concerned and also discharged the unbailable warrant issued against him.
The result is that there is no appeal against A. 40.
It seems that the complainant in all these appeals has filed Criminal Miscellaneous Petition Nos.
3621 3627 of 1989 for impleading him as a party.
Natarajan, J. (as he then was) by an order dated 14.9.1989 passed an order, "The counsel for the complainant may be heard at the time of heating of the appeal." Mr. Prithvi Raj, Sr.
Advocate as sisted by Mr. Dalveer Bhandari and another appeared on behalf of the appellant/state.
Mr. R.L. Kohli, Sr.
Advocate assisted by Mr. H.K. Puri and another appeared on behalf of the respondents.
Mr. Yogeshwar Prasad, Sr.
Advocate assisted by two advocates appeared on behalf of the complainant.
Mr. Prithvi Raj after taking us very meticulously through the judgment of the Trial Court as well as of the High Court and the evidence of some of the witnesses presented a very 950 comprehensive and detailed analysis of the case with the circumstances, surrounding it and made the following submis sions: 1.
The High Court has erroneously set aside the convictions recorded by the Trial Court without adverting to the intrin sic ' value of the evidence of the eye witnesses who speaks about the motive as well the actual occurrence in question, which took place in the broad day light of 14.1.
There is abundant and overwhelming evidence both oral and documentary conclusively establishing the long standing and deep rooted animosity for the accused persons to brutally attack the prosecution party.
The High Court is not justified in rejecting the testimo ny of the ocular witnesses especially of PWs 3 and 24, who were injured and whose presence at the scene of occurrence cannot be doubted, merely on the ground that they were all partisan witnesses.
The nature of the injuries sustained by the deceased persons as well by PWs 3 and 24 unmistakenly corroborate the evidence of the eye witnesses that all the victims have been indiscriminately and ruthlessly attacked with deadly weapons such as fire arms, spears, pharsas, lathes etc.
Both the Trial Court and the High Court without appreci ating the evidence adduced as against the acquired persons concerned in Criminal Appeal No. 523/78 has wrongly recorded the order of acquittal which is liable to be set aside.
Before entering into a detailed discussion of the oral and documentary evidence, we may point out certain incontro vertible facts.
The time of occurrence, the place of occur rence and the manner of attack are all not in dispute.
It seems that the learned Trial Judge himself had made a local inspection and visited the place of occurrence on 11.4.76 and he was satisfied with the evidence regarding the topog raphy of the scene.
So far as the motive is concerned, we have clearly stated in the narrative portion of the judgment that the prosecution party and the accused party were on war path on account of a series of incidents over a considerable length of time.
The evidence both oral and docu 951 mentary demonstrably establish that each one was out for the blood of another.
The very fact that 13 persons have been done away with by an inhuman, archaic and drastic mode of execution indicates that the culprits whoever they might have been should have been fomenting their hatred and pre planned to perpetuate this heinous crime on that particular day.
According to the prosecution, the perpetrators of the crime were numbering between 80 to 90.
When the victims and the witnesses started running away apprehending imminent danger to their lives, they were chased by the perpetrators of the crime and attacked ruthlessly by deadly weapons including fire arms.
The prosecution case is that except the father of PW 1, Prabhu Nath who was armed with a gun others were armless.
PW 1 speaks about the entire motive for the occurrence.
On a careful analysis of the evidence, we have no reservation in holding that there was bitter animosity between the prosecution and accused parties and as such there was sufficient motive on the part of the accused party to attack the prosecution party.
But at the same time, one should not lose sight of the fact that the prosecution party which was also entertaining the same amount of animosity against the accused party had sufficient motive to implicate all the leading persons of the accused party with the of fence in question.
As repeatedly said, motive is a double edged weapon and that it could be made use of by either party to wield that weapon of motive against each other.
Therefore, the key question for consideration is whether the prosecution has convincingly and satisfactorily established guilt of all or any of the accused beyond all reasonable doubt by letting in reliable and cogent evidence.
Regarding the conspiracy that is said to have been hatched on 12.1.74 among A. 1, A.2 and A.27 with three others A.28, A.29 and A.34 we have to scrutinise the evi dence of PWs 5, 8, 15 and DW 5.
The Trial Court in its judgment has found A. 1, A.2 and A.27 guilty under Sections 302 read with 109 and read with 120(B) and sentenced them for life, though has not placed much reliance on the evi dence of PWs 8 and 15.
In this connection, we may state that DW 5, ,the Assistant Station Master was examined only to discredit the testimony of PW 8.
PW 5 was the Railway Magistrate during the relevant period.
PW 29 was a Travelling Ticket Inspector and PW 39 was a constable.
According to them, A. 1, A.2 and A.27 were caught as ticketless travellers by S.D. Dubey (A.40) and produced before PW 29, who in turn handed over them to PW 39.
These three accused were detained at the waiting room of Bhatini Railway Station on the night of 12.1.1974 and pro duced before PW 5 on 13.1.1974 who convicted and 952 sentenced them to imprisonment till 18.1.1974.
These three accused themselves admit their conviction and imprisonment.
But would this piece of evidence coupled with the animosity that existed between the two groups be sufficient to con clude that the three accused have conspired to commit this offence9 No doubt, this impelling circumstance creates a strong suspicion against A. 1, A.2 and A.27 as to whether they had voluntarily got themselves arrested by creating a circumstance presumably due to some pre arrangement so that this circumstance might serve as a plea of alibi.
It is well said that suspicion, however strong it may be, it cannot take the place of legal proof.
Therefore, from this circum stance the Court cannot be justified in drawing an inference that these three accused had hatched a conspiracy to commit this offence.
There is absolutely no evidence that these ,three accused had any conversation among themselves to commit this offence or they pre planned to involve them selves in the offence of ticketless travelling so that they might escape their involvement with the offence.
One more circumstance, relied upon by the prosecution in attempting to prove the conspiracy, is the deposit of the gun by A.2 on 12.1.
1974 with PW 28, an arms dealer of Gorakhpur.
But the prosecution miserably fails in this attempt also because it is in evidence that the gun licence of A.2 had already been suspended.
Evidently A.2 had thought it appropriate to deposit his gun with an arms dealer for the sake of safety.
Therefore, that conduct of A.2 in depositing the gun could not be taken as a circumstance proving the conspiracy to any extent.
The High Court has rightly rejected the case of the prosecution on this aspect and dismissed the case of con spiracy and consequently set aside the conviction of these three accused under Section 302 read with Sections 109 and 120(B), IPC.
We shall now deal with the evidence relating to the actual occurrence.
The prosecution examined PWs 1, 3, 6, 11, 12, 20 and 24 as eye witnesses to the occurrence.
Of the above witnesses, PW 20, who is the son of one of the de ceased has resiled from his earlier statement and as such he was treated as a hostile witness.
As has been repeatedly stated in the earlier part of the judgment, PWs 3 and 24 were injured during the occurrence.
We shall examine the evidence of these eyewitnesses one by one subjecting their testimony to strict scrutiny.
PW I is none other than the son of deceased Prabhu Nath Tiwari, who is said to have been armed with a gun and fired at Rambali (A.36).
He claims to have been present at the spot of occurrence from beginning to end and to have wit nessed the entire occurrence and also identified all these accused persons as active participants along with 953 some others.
It is his evidence that he along with the other witnesses ran towards south and took shelter in the nearby field where from he witnessed the occurrence.
After all the miscreants had left the scene he was the person who went to the police station with a written complaint (exhibit Ka 1) and set the law in motion.
In exhibit Ka 1, PW 1 has implicated accused Nos. 1, 2 and 27 along with others assigning specif ic overtact to accused Nos. 1 and 2 stating that they were armed with a pistol and a gun respectively and fired at the prosecution party though has not attributed any specific overtact to A.27 against whom PW 1 was not entertaining so much of animosity as in the case of A. 1 and A.2.
Besides attributing the above overtacts, he has averred in the earliest document exhibit Ka 1, that accused Nos. 1 and 2 ex horted and incited his associates to bounce upon the prose cution party and to attack.
On a very close examination of the testimony of PW 1, we are disinclined to place any reliance much less safe reliance on his testimony for more than one reason.
Firstly, PW 1 who is the son of deceased Prabhu Nath Tiwan and grand son of the deceased Tirjugi and nephew of deceased Damodar is not only much interested in the prosecu tion case, but is anemically disposed towards accused party.
The sugar cane crops which was the subject matter for this occurrence was owned by his grand father Tirjugi and his family members.
Secondly, the absence of any injury on his person creates a grave doubt about his presence in the scene of occurrence.
Thirdly, PW 1 has not only given an exagger ated version in exhibit Ka 1 but also deliberately and falsely implicated A. 1, A.2 and A.27 as having actively participat ed and shot at the deceased.
Fourthly, his explanation now offered by him that he gave the names of these three accused persons since he overheard during the occurrence the Other accused shouting "Paras Avo, Sharda Avo, Jangi Babu Avo" which explanation is summarily rejected both by the Trial as well the High Court.
Fifthly, in exhibit Ka 1, PW I has not given the names of the fathers of any one of the accused persons.
Sixthly, even assuming, but not conceding that PW I was present at the scene of occurrence, he when fleeing towards south for his life on seeing the accused party with the strength of nearly 80 90 persons armed with deadly weapons could not have witnessed any part of the occurrence especially when all the accused were moving towards north.
Seventhly, it would not have been possible for PW 1 to prepare Ka 1 on his own, but this document should have been brought into existence on account of some deliberations and consultations with some of the people belonging to his faction.
Eighthly, there is no guarantee to believe even a part of his evidence when he goes to the extent of making 954 deliberate false implication of accused persons who are proved to have been in prison at the time of occurrence.
Ninthly, the entry in the General Diary dated 17.1.1974 marked as exhibit C 1 reveals that the investigating officer recorded the statement of the witnesses only on 15.1.
It may be recalled that the first investigating officer, PW 43 was suspended on 16.1.1974.
It is surprising that though exhibit Ka 1 does not contain the names of the fathers of any one of the accused exhibit Ka 51 (First Information Report) prepared on the basis of exhibit Ka 1 contains the names of the fathers of all the accused per sons.
The only explanation given by the head constable Ram Hausila Pandey is that he incorporated the fathers ' names on an enquiry from others is totally unacceptable.
Some doubt is created about the veracity of exhibit Ka 1 on the basis of certain corrections made thereon.
Though the Trial Court was inclined to rely upon the evidence of PW 1 despite the patent infirmities, the High Court has rejected his evidence in toto for just reasons.
PW 6 is the son of Rajeshwar Tiwari, who was one of the counter petitioners on the side of the prosecution party in the security proceedings.
This Rajeshwar Tiwari is the real brother of Tirjugi, the deceased.
PW 6 was interrogated for the first time by the investigating officer only on 17.1.1974.
The High Court has observed that this witness was thrust into service only at a later stage to serve as an ocular witness.
The accused in their defence has attempted to show on the basis of the evidence of CW. 1 that PWs 1 and 6 were residing far away from the scene of the occurence and that they were not present at the scene.
But as CW. 1 has not supported the prosecution version, much weight was not attached to this evidence.
However, the conduct of PW 6 in not going to the police station and not being available for examination till 17.1.1974 leads to an inference that he would have been made as an eye witness to the occurrence at a belated stage.
This witness too as PW 1 ran towards south and did not sustain any injury.
Hence we are in total agree ment with the High Court that PW 6 is pressed into service to serve as an eye witness.
PW 11 has admitted that her parents used to take loans from Prabhu Nath Tiwari and that she was residing in the house of Rajeshwar Tiwari as his servant.
The evidence of PW 11 is contradictory to that of PWs 3 and 24, in that PW 11 has deposed that PWs 3 and 24 were found going towards east on the road which is not the prosecution case.
Though this contradiction seems to be very trivial, in the context of the case it assumes some signifi cance in examining the presence of the witnesses at the scene.
PW 12 is the mother of deceased Ram Vilas.
She has admitted that her 955 husband 's sister had taken loan from Rajeshwar Tiwari in lieu of which her husband had given 12 bighas of land to Rajeshwar Tiwari.
According to these two witnesses (PWs 11 and 12), the accused persons after firing certain shots did not use their gun, but attacked the victims only with spears, pharsas and lathis.
The High Court has given cogent and convincing reasons to discard the testimony of these two witnesses also.
Now we are left with the testimony of the injured witnesses PWs 3 and 24 on whose evidence Mr. Prithvi Raj, learned counsel appearing for the State placed much reli ance.
PW 4, the Medical Officer has testified to the fact that he examined PW 3 at 9.15 A.M. on 15.1.1974 and noted a punctured wound on the left scapula, an incised wound on the left buttock, two gun shot wounds one on the left knee another on outer side and middle of the left shoulder and an abrasion on the left thigh.
According to the Medical Officer, the injuries were of a day old.
He issued the Wound Certificate exhibit Ka 5.
The same Medical Officer exam ined PW 24 at about 9.30 A.M. on 15.1.1974 and found on his person two abrasions, one contusion, a swealing and three gun shot wounds one on the right scapula region, the other below iliac crest and the third one near the fight elbow.
exhibit Ka 6 is the Wound Certificate.
The very fact that these two witnesses have sustained certain gun shot wounds probabilities the presence of these two witnesses at or about the time of occurrence at the scene.
Therefore, their evidence might command acceptance provided their evidence inspires confidence in the minds of the Court and that the said evidence is free from any in firmity.
PW 3 was a servant of Rajeshwar Tiwari.
According to the prosecution, these two witnesses were standing almost at the centre of the eastern side of the scene field at which point they received injuries and thereafter took shelter in the field of one Hakim.
PW 3 mentions the names of accused Nos. 3, 5 11, 15, 16, 18, 22, 23, 25, 26, 28, 30, 33 37 and 41, the total number of which is 23 of whom 11 have been acquitted by the Trial Court itself.
PW 24 had named six accused persons of whom Jhullar (A. 17) is said to have assaulted him.
A. 17 is acquitted by the Trial Court.
It shows that the Trial Court had not placed complete reliance on the testimony of these two witnesses.
According to him, he and PW 24 were examined by the Sub Inspector, PW 43 and sent for medical examination.
But it is surprising to note that both these 956 witnesses were medically examined after a delay of 21 hours on 15.1.
1974 at about 9.30 A.M.
No explanation is forthcom ing as to why there was such a delay of medical examination of these two witnesses who are said to have been sent to the hospital immediately after examination by PW 43.
The entry exhibit C. 1 in the General Diary of 17.1.1974 evidently made after suspension of PW 43 shows that the statements of witnesses were recorded on 15.1.1974.
This entry is diamet rically in opposition to the evidence of not only of these two witnesses but also of PW 43 who is said to have examined the witnesses at the spot on the evening of 14.1.1974 it self.
PW 24 has admitted that he was suffering from total blindness in his right eye and poor sight in his left eye and he was suffering from eye blindness since 4 5 years.
He admitted that he could not see as to who assaulted whom.
Later on he stated that he had not seen any accused by their face and even the accused named by him were recognised only by their voice.
It is found in the judgment of the High Court that PW 24 was cross examined by the public prosecutor himself which circumstance indicates that PW 24 has not supported the prosecution version.
It is the evidence of the investigating officer that he did not find any blood at the place where these two witnesses were allegedly lying.
It is under these circumstances the High Court was disinclined to place any reliance on the evidence of these two witnesses who are indisputably partisan witnesses.
It is pointed out by the High Court that the entry in exhibit C 1 giving the details of the investigation carried on by PW 43 on 14.1.1974 does not indicate that the investigating officer contacted and interrogated these two witnesses on 14.1.1974 itself.
The only inference that would follow is that these two witnesses even admitting that they had received injuries at the scene field as pointed out by the High Court rightly too in our view might have run away to the village and were contacted by the police only on the next day.
So on safe reliance can be placed on the testimony of these two wit nesses.
When viewed from any angle, we are of the firm view that the reasons assigned by the High Court for disbelieving the testimony of all the ocular witnesses are unreasonable.
The evidence is ambulatory and vasulating besides suffering from insurmountable infirmities and improbabilities.
The totality of the evidence is unworthy of any credence when examined by the standard of yardsticks of credibility.
As we have repeatedly pointed out earlier, there is a deliberate false implication of the accused Nos. 1, 2 and 27 to whom overtacts are 957 attributed in exhibit Ka 1.
In fact, the High Court has gone in great depth into the facts and circumstances of the case and rightly concluded that the prosecution has miserably failed in establishing the guilt of the accused except A.36.
In spite of best efforts and great deal of pondering over the matter, we are unable to disagree with the conclusion ar rived at by the High Court in rejecting the testimony of these witnesses whose evidence lacks the guarantee to in spire the confidence especially when the major portion of the evidence is manifestly false and patently incredible.
No doubt, the circumstances attending the case, namely, the conduct of A. 1, A.2 and A.27 voluntarily getting themselves arrested by A.40 creates suspicion against them.
But that suspicion by itself howsoever strong it may be is not suffi cient to take the place of legal proof and warrant a finding of guilt of these three accused.
It is pertinent to note that even the charge flamed by the Trial Court reads as if all the accused inclusive of A. 1, A.2 and A.27 formed themselves into an unlawful assembly on 14.1.1974 in the village Bali in prosecution of the common object of committing murder of 13 deceased persons and disposing of the dead bodies.
In such a situation, can it be said that there is justification for convicting the rest of the accused barring accused Nos. 1, 2 and 27 for the specific acts attributed to them by the witnesses whose evidence is tainted with patent falsehood.
The observation of the High Court reading "All this indicates that Nitya Nand (PW 1) had not seen the occurrence, that the first information report was not lodged when it purports to have been lodged, and, that it came into existence later on and was ante timed" cannot be said to be perverse.
Similarly yet another observation reading "Once it is established that some of the accused persons named by these witnesses had not participated in the occurrence and have been falsely impli cated by them, it will not be safe to place reliance upon their testimony regarding the complicity of the other ac cused nominated by them without corroboration in material particulars by other reliable evidence, direct or substan tial" also does not call for interference.
We went through the available records placed before us and examined them scrupulously and meticulously with all seriousness and onerous responsibility cast upon us in getting at the truth, but we regret to say that the entire evidence is nothing but a coloured version with concocted story and exaggerated account mixed with falsehood and that the prosecution has miserably failed to make out the charges against all or any of the accused beyond all reasonable doubt except 958 Rambali (A.36) who himself admitted his presence at the scene.
In this connection, we would like to cite a decision of this Court in Balaka Singh & Ors.
vs State of Punjab, ; wherein the following observation is made.
" . . the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the false hood.
Where the grain cannot be separated from the chaff because the grain and chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.
" No doubt, it is true that this heinous offence is dia bolical in conception and executed in gruesome and ghastly manner.
It is shocking that 13 persons have been done away with in a broad day light in the course of the same transac tion.
Nonetheless the Court when satisfied that the evidence adduced by the prosecution is not only unworthy of credence, but also manifestly and inextricably mixed up with falsehood cannot be carried away merely on the fact of multiplicity of victims and on the basis of speculations and suppositions in the confused stream of facts.
In our considered view, the High Court has apprised the evidence in the proper perspec tive and arrived at a correct conclusion which is neither perverse nor unreasonable.
For all the reasons stated above, we see no reason to interfere with the findings of the High Court and dislodge the same.
In the result the judgment of the High Court is confirmed and all the appeals preferred by the State are dismissed.
Y. Lal Appeals dismissed.
959 Annexure 'A ' LIST OF THE ACCUSED PERSONS 1.
Parasnath Tiwari 2.
Sharda Prasad 3.
Hausila Tiwari 4.
Nagendra alias Tara 5.
Bishwanath 6.
Mahendra Tiwari 7.
Anirudha Tiwari 8.
Shukhal 9.
Pramhans 10.
Prahlad 11.
Sudama 12.
Jumarati 13.
Shahid 14.
Birjhan 15.
Suryaman Koiri 16.
Moti Ram 17.
Jhullar 18.
Suryabali 19.
Kumar Kewat 20.
Shanker 21.
Ram Asrey 22.
Jamuna Pasi 23.
Harilal 24.
Banwari 25.
Bindsari 26.
Lachman 960 27.
Jangi 28.
Jhinnu 29.
Samsher 30.
Jetan 31.
Bramhdoo 32.
Jagdish Tiwari 33.
Durga Pandey 34.
Jagat Narain Misra 35.
Sunder 36.
Rambali 37.
Babu Singh alias Bandhoo Singh 38.
Parasnath Pandey 39.
Ram Naresh Pandey 40.
S.D. Dubey 41.
Kailash Note: 1.
Accused Nos. 1 to 33 were tried in Sessions Trial No. A 119/74. 2.
Accused Nos.
34 36 were tried in Sessions Trial No. A 160/74. 3.
Accused Nos.
37 40 were tried in Sessions Trial No. A 265/74. 4.
Accused No. 41 was tried in Sessions Trial No. A 27/75.
| IN-Abs | This appeal has been preferred by the State against an order of acquittal recorded by the High Court in respect of the accused respondent.
According to the prosecution there were two rival factions in village Deotaha (U.P.), one led by the accused respondents and the other by the deceased victims.
There existed bitter enimity between the two fac tions, one faction was out to take the blood of another and due to this deep rooted animosity Accused 1, 2 and 27 hatched a conspiracy with some other associates to murder Prabhu Nath and his men on 14.1.
on which date they were scheduled to cut the standing sugar cane in Plot Nos. 736 and 737.
It is alleged by the prosecution that in pursu ance of this conspiracy, Accused 3 deposited his licensed gun with the arms dealer on 12.1.1974 with a view to screen himself from any prospective accusation and Accused 1, 2 and 27 in order to set up a plea of alibi connived with Accused 40, Travelling Ticket Examiner in the Railways, traveled without ticket, got themselves checked and sentenced to imprisonment by the railway magistrate on 13.1.1974 and were incarcerated in the Gorakhpur jail till 18.1.1974.
According to the prosecution on 14.1.1974, when the deceased 13 per sons and others went for cutting the sugar cane crops raised by one of the deceased.
At about 1 p.m. by which time the cut crop was being loaded in the tractor trolley brought by the deceased persons, Accused persons with their men 80 to 90 in number attacked them with spears, lathes and pharsas and started firing indiscriminately.
The deceased persons and others ran with a view to save their lives; some hid themselves behind the tractor and trolley, and others ran towards north and south directions.
As a result of the attack PWs 3 and 24 received injuries and 13 persons suc cumbed to their injuries instantaneously.
It is alleged by the prosecution that during the course of the occurrence, the deceased Prabhu 940 Nath who had a gun rued at the accused party in self defence and injured Accused 36, Rambali.
Thereafter Accused 10 and 16 covered the dead bodies with sugar cane leaves and sprin kled diesel oil by taking it from the tractor and set fire to the bodies.
Thereafter the accused left the scene of occurrence; accused 32 carried away the gun of the deceased Prabhu Nath.
P.W. 1 thereupon lodged the F.I.R. and the police took up the investigation.
After completing the investigation, P.W. 38 laid the chargesheet in 4 batches which gave rise to 4 different sessions trials which were disposed of by a common judgment by the Sessions Judge.
All the accused pleaded not guilty and denied their complicity with the offence.
Accused 36, Rambali admitted his presence and stated that the sugar cane belonged to one Phunni and not to Tirjugi and his men and while Phunni and his men were cutting the crops, the deceased Prabhu Nath and other de ceased persons attempted to forcibly take away the crops and during the course of such attempt, Phunni and his men at tacked the deceased party and that he was shot by the de ceased Prabhu Nath when he entreated that the sugar cane should not be taken away.
Accused 1, 2 and 27 denied the charge of conspiracy contending that they were in prison on the date of occurrence consequent upon their conviction by the railway magistrate.
The learned Sessions Judge acquitted 25 accused persons out of the total of 41 accused, viz., 4 6, 11 14, 17 22, 24 26, 28 32, 35 and 39 41 finding them not guilty of any of the charges and convicted the remaining 16 accused for various offences and passed sentences of the prisonment in respect of each accused.
It may be mentioned that Accused Nos. 10 and 16 were convicted under Section 302 read with Section 149 I.P.C. and each of them was sentenced to death, besides their convic tion under Section 307 I.P.C.
All the convicted accused filed Criminal appeals in the High Court.
The reference made by the Trial Court for con firmation of the sentence of death imposed on A I0 and A 16 was heard as Referred Case No. 31 of 1976.
The State pre ferred appeal under Section 378 Cr.
P.C. against the acquit tal of all the 24 acquitted persons.
In the case of A 40, the High Court did not grant leave as required under Section 378(3), Cr.
The High Court disposed of all the appeals inclusive of the State Appeal and the Referred Case by the common judgment whereby all the criminal appeals preferred by the convicted accused except the appeal preferred by Rambali (A 36) was allowed and their sentences were set aside.
The State Appeal was dismissed and the referred case in view of the acquittal of the accused was rejected.
Hence this 941 appeal by the State.
The contention of the State is that the acquittal of the accused is not proper and unwarranted on the basis of the evidence led in the case.
Dismissing the appeals, this Court, HELD: When viewed from any angle, the reasons assigned by the High Court for disbelieving the testimony of all the ocular witnesses are not unreasonable.
The evidence is ambulatory and vasulating besides suffering from insurmount able infirmities and improbabilities.
The totality of the evidence is unworthy of the credence when examined by the standard of yardsticks of credibility.
[956G] There is a deliberate false implication of the Accused 1, 2 and 27 to whom overtacts are attributed in exhibit Ka 1.
In fact, the High Court has gone in great depth into the facts and circumstances of the case and rightly concluded that the prosecution has miserably failed in establishing the guilt of the accused except A 36.
[956H: 957A] Suspicion by itself however strong it may be is not sufficient to take the place of legal proof and warrant a finding of guilt of these three accused.
[957C] The entire evidence is nothing but a coloured version with concocted story and exaggerated account mixed with falsehood and that the prosecution has miserably failed to make out the charges against all or any of the accused beyond all reasonable doubt except Rambali (A 36) who him self admitted his presence at the scene.
[957H; 958A] No doubt it is true that this heinous offence is diabol ical in conception and executed in gruesome and ghastly manner.
It is shocking that 13 persons have been done away with in a broad day light in the course of the same transac tion.
Nonetheless the Court when satisfied that the evidence adduced by the prosecution is not only unworthy of credence, but also manifestly and inextricably mixed up with falsehood cannot be carried away merely on the fact of multiplicity of victims and on the bias of speculations and suppositions in the confused stream of facts.
The High Court has apprised the evidence in the proper perspective and arrived at a correct conclusion which is neither perverse nor unreasona ble.
[958D E] Balaka Singh & Ors.
vs State of Punjab, ; , referred to. 942
|
scellaneous Petition No. 10864 of 1989.
IN Writ Petition No. 13044 of 1984 Etc.
(Under Article 32 of the Constitution of India).
Kapil Sibal, Additional Solicitor General, Dr. L.M. Singhvi, Gobinda Mukhoty, K.K. Venugopal, Ms. Mridula Ray, C.V. Subba Rao, P.R. Seetharaman, Ranjit Kumar, Asru Bose, Gulab Chandra, Sarva Mitter, R. Venkataramani, C. Ramesh, Ms. Urmila Sirur, M.N. Krishnamani, Sunder Rao, K.R. Nagara ja, V.N. Ganpule, J.D. Jain and Chandran Petitioner in person for the appearing parties.
The Judgment of the Court was delivered by SAWANT, J.
In all these cases the relief claimed is the implementation of the recommendations of the High Power Pay Committee in respect of the emoluments to be paid to the officers belonging to Class I and Class II service employed in different public sector enterprises.
Earlier, these employees had approached various High Courts and this Court against the decision of the Central Government to switch them over to the Industrial Dearness Allowance pattern and the incidental steps taken to enforce the said decision.
The main reliefs claimed in those peti tions were that (i) the employees should be permitted to continue to draw the salary in the scales of pay applicable to them along with the Central Dearness Allowance, (ii) they should be granted all the benefits of pay revision and revision of other allowances which may be announced from time to time by the Central Government for its employees, and (iii) there should be no discrimination between them and those directly employed by the Central Government and that they should get the same scales of pay and 1008 allowances for the same types of jobs in accordance with the principle of "equal pay for equal work".
During the course of the hearing, on August 24, 1984, this Court ordered the payment of three additional dearness allowance instalments from August 1, 1983, October 1, 1983 and November 1, 1983 to those employees who were on Central pattern of pay scales and dearness allowance subject to an individual undertaking by each employee that in case such payment resulted in the employee receiving an excess, such excess would be recovered from him from future payments, if the petitions failed.
On February 19, 1986, the Court further ordered that all employees of public sector enterprises following the Central dearness allowance pattern and drawing a basic pay of Rs. 1000 or less, will be entitled to interim reliefs on the same basis and scale as the Government of India employees w.e.f. January 1, 1986.
This was also allowed subject to similar undertaking given by each employee.
When the matters were posted for hearing on March 14, 1986, the Central Government expressed its willingness to refer to High Power Pay Committee the question regarding the revision of payscales, additional dearness allowance, com pensatory and other allowances and such other incidental aspects relating to the employees governed by the Central pattern of pay scales and dearness allowance.
Accordingly, the Court directed the Central Government to constitute a High Power Pay Committee to go into various aspects relating to pay scales and other incidental matters including interim relief to the said employees, viz., the employees governed by the Central Government pattern of pay scales and dearness allowance.
The terms of reference of the High Power Pay Committee were as follows: "I. To examine the present structure of emoluments and conditions of service taking into account the total packet of benefits in cash and kind, available to the workers, clerical staff, supervisors and officers, below the Board level following the Central DA pattern and to suggest changes which may be desirable and feasible.
To examine the variety of allowances and benefits in kind that are presently available to the above noted employ ees in addition to pay and DA and suggest rationalisation, simplification thereof with a view to promoting efficiency.
1009 III.
To examine matters relating to grant of interim relief to the employees of all such public enterprises (belonging to the Government of India and following the Central DA pattern) who are drawing basic pay above Rs. 1000 per month and grant necessary relief to them, if called for.
While making recommendations on the above points, the Committee would keep in view other related factors such as scales of pay, DA and allowances prevailing in other public sector undertakings on Industrial DA formula, economic conditions in the country, resources available at the dis posal of these public enterprises".
The Committee submitted its recommendations by its Final Report of November 2, 1988.
However, the Central Government did not act on the said report expeditiously and hence the present writ petitions were filed on various dates praying for relief in the form of a direction to the Central Government to implement the recommendations made in the Report.
The Government took several adjournments to disclose its stand on the Report and has now ultimately come out with proposals which are incorporated in the additional affidavit dated 17th April, 1990, filed on behalf of the Union of India by Shri Suresh Kumar, Additional Secretary in the Ministry of Industry, Bureau of Public Enterprises.
The affidavit is taken on record.
We heard the parties on the proposals contained in the affidavit and found that there was not much controversy over the proposals except in regard to the date of the implemen tation of the House Rent Allowance.
The employees insisted that the said allowance should be given from 1.1.
1986 whereas the Government contended that it can properly be implemented only w.e.f.
January 1, 1989, since the Report was of 2nd November, 1988.
We, however, direct as follows: (i) The scales of pay and dearness allowance as recommended in the Report will be extended to those employees who have been appointed with specific terms and conditions for grant of Central D.A.
This will be equally applicable to the employees who by rules laid down by the public sector enter prises are being paid Central dearness allowance.
(ii) The employees appointed on or after January 1, 1989, will be governed by such pay scales and allowances as may be decided by the Government in its discretion.
Those appointed earlier 1010 with IDA pattern will continue to be governed in accordance with the terms and conditions of their appointment.
(iii) The pay revision for those employees in respect of whom the recommendations are hereby being directed to be implemented hereafter, will take place only as and when similar changes are effected for the Central Government employees.
These employees will, however, continue to enjoy the option to switch over to the IDA pattern of the scales of pay etc.
on a voluntary basis.
(iv) The various recommendations made in the Report will be implemented with effect from the dates as follows.
These dates are broadly in conformity with those specified in the Report: Item To be implemented w.e .f. 1.
Revised pay scales and 1.1.1986 (Para 16.1) revised D .A. formula 2.
First instalment of 1.6.1983 (Para 16.3) Interim Relief 3.
Second instalment of 1.3.1985 (Para 16.3) Interim Relief 4.
CCA as per revised slabs 1.1.1989 (para 11.6 of Chapter 11 (From 1.1.1986to31.12.1988 CCA of the Report) will be paid at the existing rate at national pay in the revised pay scales(para 11.7 of the report) 5.
House Rent Allowance Ceiling on payment of HRA with percentage rates as per out production or rent receipt BPE 's OM NO.1(3)/83 BPE to be revised from 1.12.1988.
(WC) dated 1.7.83, sub The existing HRA structure to ject to overall ceiling be reviewed by BPE and revised of Rs.1250, 1000, 680, norms and rates fixed from a 340 and 310 for Delhi/ prospective date (Ref.
Para Bombay, A,B1 and B2,C 11.15) and unclassified cities respectively.
1011 6.
Medical facilities in From prospective date to be terms of para 11.21 of decided by the Management of the Report the PSBs 7.
Leave Travel Concession do 8.
Other Allowances and per The quantum of benefits to be quisites as per recommen decided by the Management of dations contained in Cha PSEs should be given effect pters 12 & 13 of the to prospectively in terms Report of para III.
7 part III of the Report (v) The arrears arising on account of pay, DA and other allowances etc., would be adjustable against ad hoe payments made from time to time.
This judgment will govern all the petitions.
The petitions, transferred cases and all interlocutory applica tions, civil miscellaneous petitions and contempt petition are disposed of accordingly with no costs.
P.S.S. Petitions disposed of.
| IN-Abs | The High Power Pay Committee appointed under the direc tions .of this Court in respect of the emoluments to be paid to the officers belonging to Class I and Class II Service employed in different public sector enterprises governed by the Central Government pattern of pay scales and dearness allowance, submitted its report on November 2, 1988.
When the Central Government did not act expeditiously on that report the petitioners filed writs for a direction to imple ment the recommendations.
Disposing of the writ petitions, the Court directed: 1.
The scales of pay and dearness allowance as recom mended in the report would be extended to those employees who have been appointed with specific terms and conditions for grant of Central D.A. and those who were already being paid Central dearness allowance.
[1009G] 2.
The employees appointed on or after January 1, 1989 would be governed by such pay scales and allowances as might be decided by the Government in its discretion.
Those ap pointed earlier with IDA pattern would continue to be gov erned in accordance with the terms and conditions of their appointment.
[1009H] 3.
The pay revision for those employees in respect of whom the recommendations were being directed to be imple mented would take place only as and when similar changes were affected for the Central Government employees.
These employees would, however, continue to enjoy the option to switch over to the IDA pattern of the scales of pay etc.
on a voluntary basis.
[10lOB] 1007 4.
The various recommendations made in the report would he implemented with effect from the dates indicated.
[1010C] 5.
The arrears arising on account of pay, DA and other allowances etc. would he adjustable against ad hoc payments made from time to time.
[1011C]
|
ivil Appeal No. 1188 of 1977.
From the Judgment and Order dated 7.12.1976 of the Allahabad 3 High Court in F.A.O. No. 444 of 1975.
AND Special Leave Petition (C) No. 5344 of 1977.
From the Judgment and Order dated 7.12.1976 of the Allahabad High Court in F.A. (F.O.) No. 458 of 1975.
Praveen Swarup, Pramod Swarup, B.D. Sharma, Smt.
Sushma Suri, and Jitender Sharma for the appearing parties.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal and special leave petition are cross cases in nature and are directed against the judgment and order dated December 7, 1976 passed by a Division Bench of the High Court of Allahabad At Allahabad in F.A.O. No. 444 of 1976.
The facts established before the Motor Accident Claims Tribunal, Bulandshahr and re oriented before the High Court were that Randhir Singh while driving a tempo on October 10, 1972 on a road leading from Bulandshahr to Sikandrabad was hit head on by a speeded truck owned by Ramesh Chandra, as a result of which his tempo was thrown into a nearby ditch whereby he sustained injuries on both his legs and his several bones were fractured as well.
This was followed by lodging of a report at Police Station, Sikandrabad and putting the injured at District Hospital, Bulandshahr where from he was removed to Safdarjung Hospital, New Delhi for final treatment.
The permanent result was that a part of the right foot of Randhir Singh had to be amputated as his toes had become gangrenous.
Randhir Singh moved the Motor Accident Claims Tribunal, Bulandshahr seeking damages to the tune of Rs.1 lakh.
The contestants being Ramesh Chandra the owner of the truck, its driver and the Insurance Company took various defences to negative the claim.
The matter was focussed by the issues framed.
The Tribunal by an elaborate and well reasoned order fixed negligence on the truck driver and held the injured entitled to compensation.
In the measurement thereof the Tribunal took note of the age of the claimant to be 22 years and his expected income as a driver of a motor vehicle at a minimum rate of Rs.300 p.m., expected to be earned for at least 22 years in the coming.
The figure thus arrived was at Rs.79,200 and that 4 being lumpsum payment determined a sum of Rs.55,000 to be adequate compensation for the permanent disability suffered by the claimant.
Besides the Tribunal granted Rs.3,000 on account of expenses of treatment.
Under the head of general damages for pain, suffering and loss of enjoyment of life the Tribunal awarded a sum of Rs.20,000 as compensation.
Thus a total award of Rs.78,000 was made in favour of the claimant.
Rs.50,000 was ordered to be paid by the Insurance Company as its liability was found to be limited to that extent.
The remaining Rs.28,000 was ordered to be paid by the owner.
The claimant also got 3/4th of his costs.
Three separate appeals were filed before the High Court; one by the dissatisfied claimant; the second by the ag grieved truck owner and the third by the aggrieved Insurance Company.
The High Court dealt with the matter in equal elaboration.
It affirmed the view of the Tribunal in grant ing compensation under the three heads aforementioned.
However, the award was improved to the extent that the claimant also got interest at the rate of 6 per cent per annum on the amount of compensation from 11.11.1972, the date on which the claim petition was filed upto the date of the payment thereof; subject of course to suitable adjust ments in the event of any payment having already been made to the claimant.
In Civil Appeal No. 1188 of 1977, preferred by the owner of the truck, leave was granted limited to grounds II & XIX of the Special Leave Petition.
In Ground No. II the question raised was that when the claimant had not claimed interest in the application, and the Tribunal had not awarded any, the High Court was in error in granting interest under Section 110 CC of the where the power of the Court of the Tribunal was discretionary.
In Ground No. XIX the question raised was that a sum of Rs.20,000 on account of mental agony, pain and suffering etc.
was arbi trarily granted, and thus ought to have been taken to be covered up by the compensation granted on account of loss of earning.
In Special Leave Petition No. 5344 of 1977 the claimant has asked for more compensation, interest etc on each count.
We have heard learned counsel for the parties and have perused the appeal papers, in particular regard of the limited nature of appeal of the truck owner.
Section 110 CC, as it stood on the date of the accident, provided that where any Court or Claims Tribunal allows a claim for compensation made under the Act, such Court or Tribunal may direct that in addition to the amount of compensation simple 5 interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.
The caption of the provision is "Award of interest where any claim is allowed".
The question of award of interest is dependent on the claim being al lowed.
Should the claim be not allowed, the question of grant of interest would not arise, and if awardable, it is in addition to the amount of compensation.
The Court of Tribunal, in these circumstances, should determine, in the first instance, claim for compensation and in the event of its being allowed can further exercise the discretion to grant simple interest in terms thereof, but as an additive to the amount of compensation.
So the addition of interest to the compensation, by judicial discretion, is sequential in the eye of law and no claim in that regard, in our view, specifically need be laid in so many words in the claim petition.
The grant of interest in our view, is not depend ent on any pleading in that regard and can even be orally asked if the contingency arises.
Thus, in our view, there is no substance in Ground No. II of the Special Leave Petition and the attack to the grant of interest is negatived.
With regard to Ground No. XIX covering the question that the sum awarded for pain, suffering and loss of enjoyment of life etc.
termed as general damages should be taken to be covered by damages granted for loss of earnings is concerned that too is mis placed and without any basis.
The pain and suffering and loss of enjoyment of life which is a resultant and permanent fact occasioned by the nature of injuries received by the claimant and the ordeal he had to undergo.
If money be any solace, the grant of Rs.20,000 to the claim ant represents that solace.
Money solace is the answer discovered by the Law of Torts.
No substitute has yet been found to replace the element of money.
This, on the face of it appeals to us as a distinct head, quite apart from the inability to earn livelihood on the basis of incapacity or disability which is quite different.
The incapacity or disability to earn a livelihood would have to be viewed not only in presenti but in futuro on reasonable expectancies and taking into account deprival of earnings of a conceiva ble period.
: This head being totally different cannot in our view overlap, the grant of compensation under the head of pain, suffering and loss of enjoyment of life.
One head relates to the impairment of a person 's capacity to earn, the other relates to the pain and suffering and loss of enjoyment of life by the person himself.
For these reasons, we are of the considered view that the contentions raised by the truck owner appellant in that behalf must be negatived and we hereby negative them.
6 With regard to further enhancement of compensation and further enhancement of interest, as claimed in the special leave petition by the claimant, we find in the facts and circumstances of this case, no scope in that regard.
As a result of the afore discussion, both these matters are without merit and are accordingly dismissed.
Parties to bear their own costs.
N.P.V. Appeals dis missed.
| IN-Abs | In a claim for damages for the permanent disability suffered by the claimant, the Motor Accident Claims Tribunal awarded compensation under different beads, viz., (a) com pensation for permanent disability (b) expenses of treat ment, and (c) general damages for pain, suffering and loss of enjoyment of life, against the Insurance Company and the truck owner.
On Separate appeals by the claimant, truck owner and the Insurance Company, the High Court, not only affirmed the award but also improved it by granting interest at 6 per cent per annum on the amount of compensation from the date the claim petition was filed upto the date of payment of compensation.
The truck owner filed an appeal, by special leave, before this Court on several grounds including that when the claimant had not claimed interest in the application, and the Tribunal had not awarded any, the High Court was in error in granting interest under Section 110 CC of the , where the power of the Court of the Tribunal was discretionary, and that the grant of damages on account of mental agony, pain and suffering etc.
was arbitrary and ought to have been taken to be covered by the compensation granted on account of loss of earning.
The claimant also filed an appeal, by special leave praying for more compensa tion, interest etc.
on each account.
Dismissing the appeals, this Court, 2 HELD: 1.1 The question of award of interest is dependent on the claim being allowed.
Should the claim be not allowed.
the question of grant of interest would not arise.
and if awardable, it is in addition to the amount of compensation.
The Court of Tribunal, in these circumstances, should deter mine, in the first instance, claim for compensation and in the event of its being allowed can further exercise the discretion to grant simple interest in terms thereof, but as an additive to the amount of compensation.
So, the addition of interest to the compensation, by judicial discretion, is sequential in the eye of law and no claim in that regard, specifically need be laid in so many words in the claim petition.
The grant of interest, is not dependent on any pleading in that regard and can even be orally asked if the contingency arises.
[5B D] In these circumstances, there is no substance in the attack to the grant of interest.
[5D] 1.2 The incapacity or disability to earn a livelihood would have to be viewed not only in presenti but in futuro on reasonable expectancies and taking into account deprival of earnings of a conceivable period.
This head being totally different cannot overlap the grant of compensation under the head of pain, suffering and loss of enjoyment of life.
One head relates to the impairment of a person 's capacity to earn, the other relates to the pain and suffering and loss of enjoyment of life by the person himself.
[5F G] In the instant case, the pain and suffering and loss of enjoyment of life is a resultant and permanent fact occa sioned by the nature of injuries received by the claimant and the ordeal he had to undergo.
This, on the face of it is a distinct head, quite apart from the inability to earn livelihood on the basis of incapacity or disability which is quite different.
If money be any solace, the grant of Rs.20,000 to the claimant represents that solace.
Money solace is the answer discovered by the Law of Torts.
No substitute has yet been found to replace the element of money.
[5E F] 1.3 In the facts and circumstances of this case, there is no scope for further enhancement of compensation and further enhancement of interest.
|
vil Appeal Nos.
2833 35 of 1987.
From the Judgment and Order dated 19.9.1986 of the Calcutta High Court in A.F.O. No. 102 of 1984 in M.A. Nos. 3036 and 3062 of 1983.
Soli J. Sorabjee, Attorney General and N.S. Hegde, Additional Solicitor General, Gopal Subramanium, Ms. A. Subhashini and P. Parmeshwaran for the Appellants.
S.S. Khanduja, Y.P. Dhingra and B.K. Satija for the Respondents.
30 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
This appeal by special leave arises from the judgment and order of the Division Bench of the High Court of Calcutta dated 19th September, 1986.
The Indian Independence Act, 1947 (hereinafter referred to as 'the Act ') was passed by the British Parliament.
This Act came into force on and from 15th August, 1947, which was the appointed day and under the Act, as from the appointed day, two independent dominions were to be set up in place of the existing India known, respectively as 'India ' and 'Pakistan '.
Two independent dominions were set up in place of the existing Indian Union.
Section 3(1) of the Act pro vided, inter alia, that as from the appointed day the Prov ince of Bengal as constituted under the Government of India Act, 1935 shall cease to exist and in lieu thereof two new provinces known respectively as 'East Bengal ' and 'West Bengal ' shall be constituted under section 3(3) of the Act.
Under section 3(3) of the Act, it was provided that the boundaries of the new provinces as aforesaid shall be such as may be determined whether before or after the appointed day by the award of a Boundary Commission appointed or to be appointed by the Governor General in that behalf.
On 30th June, 1947, the Governor General made an announcement that it had been decided that the Province of Bengal and Punjab shall be partitioned.
Accordingly, a Boundary Commission was appointed, inter alia, for Bengal consisting of Sir Cyril Radcliffe as the Chairman.
So far as Bengal was concerned, the material terms of reference provided that the Boundary Commission should demarcate the boundaries of the two parts of Bengal on the basis of, inter alia, the contiguous areas of Muslims and non Muslims.
The Commission held its enquiry and made an award on August 12, 1947, i.e., three days before the appointed day.
The Chairman gave his decision regarding the demarcation of boundary line in respect of District of Darjeeling and Jalpaiguri in para 1 of Annexure 'A ' which provided that a line was to be drawn in a particu lar manner.
The Award directed that the District of Darjeel ing and so much of the District of Jalpaiguri as lies north of the said line shall belong to West Bengal but the Thana of Phatgram and any other portion of Jalpaiguri District, which lies to the East or South, shall belong to East Ben gal.
Problem arose subsequently regarding the Berubari Union No. 12 Which was situated in the Police Station Jalpaiguri in the District of Jalpaiguri, which was at the relevant time a part of Raisahi Division of Bengal.
After the parti tion, Berubari Union formed part of the State of West Bengal and had been governed as such.
The Constitution of 31 India was declared to be passed on 26th November, 1949.
As provided by Article 394 of the Constitution, only certain Articles came into force as from that date and the remaining provisions came to be in force from January 26, 1950.
Arti cle 1 of the Constitution provided that India, that is, Bharat shall be a Union of States and that the States and the territories thereof shall be the States and their terri tories specified in Parts A, B and C of the First Schedule.
West Bengal was shown as one of the States in Part A.
It was further provided that territories of the State of West Bengal shall comprise the territory which immediately before the commencement of the Constitution was comprised in the Province of West Bengal.
As already pointed out in view of the said award, Berubari Union No. 12 was treated as part of the Province of West Bengal and as such has been treated and governed on that basis.
Subsequently, certain boundary disputes arose between India and Pakistan and a Tribunal was set up for the adjudication and final decision of the said disputes.
However, the same had nothing to do with the present case and the question of Berubari Union or the Cooch Behar enclaves or Pakistani enclaves in the east was not the subject matter of the same.
But the said question was raised by the Government of Pakistan in the year 1952.
Admitted position is that during the whole of this period, the Beru bari Union continued to be in the possession of the Indian Union and was governed as part of West Bengal.
Near about 1952, Pakistan alleged that under the Award, the Berubari Union should really have formed part of East Bengal.
In September, 1949, Cooch Behar had become part of the territo ry of India and was accordingly included in the list of Part C States at Serial No. 4 in the First Schedule to the Con stitution.
On the 31st December, 1949, the States Merger (West Bengal) Order, 1949, was passed.
It was provided in the said order, inter alia, that Indian state of Cooch Behar would be administered in all respects as if it was a part of the Province of West Bengal, on and from the 1st January, 1950, thereby the erstwhile State of Cooch Behar was merged with West Bengal and began to be governed as if it was a part of West Bengal.
The State of Cooch Behar was thereafter taken out of the list of Part C States, in the First Sched ule to the Constitution and added West Bengal in the same Schedule.
Certain areas which formed part of the territories of the former Indian State of Cooch Behar and which had subsequently become part of the territories of India and then of West Bengal became after the partition enclaves in Pakistan.
Similarly, certain Pakistan enclaves were found in India.
Dahagram and Angarpota (now Bangladesh), were the Pakistani enclaves in India.
The Prime Ministers of two countries entered into an agreement settling certain dis putes including the Bernbari Union and the enclaves in 32 the East Pakistan in 1958.
Two items in Para 2 of the said Agreement were items 3 and 10.
These were as follows: "Item No. 3: Berubari Union No. 12 "This will be so divided as to give half the area to Paki stan, the other half adjacent to India being retained by India.
The Division of Berubari Union No. 12 will be hori zontal, starting from the north east corner of Debiganj Thana.
The division should be made in such a manner that the Cooch Behar enclaves between Pachagar Thana of West Bengal will remain connected as at present with Indian territory and will remain with India.
The Cooch Behar Enclaves lying between Boda Thana of East Pakistan and Berubari Union No. 12 will be exchanged along with the general exchange of enclaves and will go to Pakistan.
" Item No./O: "Exchange of old Cooch Behar Enclaves in Paki stan and Pakistan Enclaves in India without claim to compen sation for extra area going to Pakistan, is agreed to.
" Subsequently, there was doubt as to whether the imple mentation of the 1958 Agreement relating to Berubari Union and the exchange of Enclaves requires any legislative action either by way of a suitable law of the Parliament relatable to Article 3 of the Constitution or in accordance with the provisions of Article 368 of the Constitution or both.
Accordingly, in exercise of the powers conferred upon him by clause (1) of Article 143 of the Constitution, the President of India referred the following three questions, to this Court for consideration: (1) Is any legislative action necessary for the imple mentation of the agreement relating to Berubari Union? (2) If so, is a law of Parliament relatable to Article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary in addition or in the alterna tive? (3) Is a law of Parliament relatable to Article 3 of the Constitution sufficient for implementation of the agree ment relating to the exchange of Enclaves or is an amendment of the Constitution in accordance with article 368 of the Constitution 33 necessary for the purpose in addition or in the alternative? This Court answered the questions as follows.
So far as question No. 1 Was concerned, it was answered in affirma tive.
So far as second question was concerned, this Court answered it by saying that a law of Parliament relatable to article 3 of the Constitution would be incompetent and a law of Parliament relatable to article 368 of the Constitution is competent and necessary and also by saying that a law of Parliament relatable to both Article 368 and article 3 would be necessary only if Parliament chooses first to pass a law amending article 3 as indicated above; in that case Parliament may have to pass a law on those lines under Art 368 and then follow it up with a law relatable to the amended article 3 to implement the agreement.
Question NO. 3 was also answered as aforesaid.
The said decision is reported in Re.
The Berubari Union and Exchange of Enclaves 250.
Ninth Amendment to the Constitution was made thereafter.
The Objects and Reasons of the Constitution (Ninth Amendment) Act, 1960 stated that the Indo Pakistan agreements dated September 10, 1958, October 23, 1959, and January 11, 1960, which settled certain boundary disputes relating to the borders of the State of Assam, Punjab and West Bengal, and the Union Territory of Tripura involved transfer of certain territories to Pakistan after demarcation.
The Act amended the Constitution to give effect to the transfer of those territories.
After setting out the title of the Act, which was called the Constitution (Ninth Amendment) Act, 1960, it provided the definitions and amendments to the First Sched ule to the Constitution.
In 1966, writ petitions were filed challenging the validity of the proposed demarcation as also raised the question as to whether the proposed transfer of Berubari Union would result in deprivation of citizenship and property without compensation.
The writ petitions were dismissed eventually by this Court.
The said decision is reported in Ram Kishore Sen & Ors.
vs Union of India & Ors.
, [1966] 1 SCR430.
In 1971, a sovereign independent State known as 'Bangla desh ' came into existence which comprised of the territory previously known as East Pakistan or East Bengal.
On or about the 16th May, 1974, an agreement was entered into by and between the Prime Ministers of India and Bangladesh regarding the land boundary and related matters including transfer of enclaves.
Article 1 para 12 of the said Agree ment provided that Indian enclaves in Bangladesh and Bangla desh enclaves in India should be exchanged expeditiously excepting the enclaves mentioned in para 14 without claim to compensation for the additional area, going to Bangladesh.
Thereafter, an understanding was reached 34 in October, 1982, between the two Governments in connection with the "lease in perpetuity" in terms of item 14 of Arti cle 1 of the 1974 Agreement.
In 1983, writ petitions were filed in the Calcutta High Court.
In September, 1983, the learned Single Judge of the Calcutta High Court dismissed the writ petitions holding, inter alia, that the implementa tion of the 1974 and 1982 agreements did not involve cession of Indian territory to Bangladesh.
The said judgment in Sugandha Roy vs Union of India & Ors., is reported in AIR 1983 Cal.
at p. 483.
It was held therein that there being no Gazette Notification fixing any "appointed day" within the meaning of Ninth Constitution Amendment in respect of the Eastern India, particularly the Berubari Union and the Pakistani enclaves, and no Gazette Notification having yet been issued, it was clear that 9th amendment so far as it related to exchange of the enclaves in Eastern India has not come into effect by virtue of the said Ninth Amendment in view of the fact that it was expressly provided in the said 9th Amendment that only from the "appointed day" the Sched ule to the Constitution shall be amended and there being no "appointed day" in respect of the territories in the Eastern India, the First Schedule to the Constitution remained unamended in so far as eastern India is concerned particu larly the Berubari Union and the enclaves of the Dahagram and Angarpota and, as such, neither in fact nor in law there was any accession to India in respect of the two enclaves and they remained part of Pakistan (now Bangladesh) as they were before in spite of 1958 Nehru Noon Agreement and Ninth Amendment.
Therefore, the implementation of the 1974 and 1982 Agreements which provided, inter alia, that the two enclaves would not be exchanged would not amount to cession of any Indian territory which would require any Constitu tional amendment.
Even if one proceeded on the basis of the 1958 agreement entered into by India and Pakistan so far as it related to the territories of eastern India remained effective and valid after the emergence of Bangladesh.
1t was open to India and Bangladesh to enter into a fresh treaty modifying the 1958 agreement and that was actually what had happened in the present case.
India and Bangladesh had, by the said 1974 and 1982 agreements and to the extent indicated therein terminated and/or modified the earlier Treaty of 1958 in respect of inter alia, southern portion of Bernbari Union and the two enclaves in question.
In such a case, even if it could be said that it was the obligation of the Government of India to make endeavour to foster respect for the 1958 treaty as contemplated by Article 5 i(c) that did not prevent the Government of India from entering into the 1974 and 1982 agreements and modifying the earlier treaty particularly having regard to the fact that the 1958 agreement so far as it related to transfer of 35 southern portion of Berubarl Union and the exchange of enclaves in question was not given effect to any time and the Ninth Amendment to that effect was never brought into force.
The Court, further, held that when by 1974 agreement read with 1982 agreement Bangladesh Government had been given the facility of using the Indian area known as "Teen Bigha" in the manner contemplated by those agreements to be discussed in detail later, the implementation of those two agreements would not involve cession of any territory to Bangladesh in respect of Teen Bigha.
Not merely that no exclusive possession of that area was sought to be trans ferred to Bangladesh and no legal possession at all was being transferred.
There was no question of transfer of sovereignty, wholly or partially, in respect of the said area.
What had merely been done was to enable the Government of Bangladesh and its nationals to exercise certain rights in respect of the said area, i.e., Teen Bigha, which other wise they would not have been entitled to do.
That was being so allowed because instead of exchange of these enclaves along with others as contemplated by 1958 Agreement, it was agreed that these two enclaves would remain as part of Bangladesh.
The Court, further, held that it was clear that the reason was that in spite of the 1958 agreement and in spite of the Ninth Amendment, which had not been given effect to, the southern portion of Berubari Union had to be retained by India.
As these two enclaves were to remain as part of Bangladesh territory, these two agreements had made some provisions to enable Bangladesh to exercise its sover eignty in full over these two enclaves.
This is also clear by 1982 agreement, the Court held.
Thus, the implementation of these two agreements, so far as Teen Bigha was concerned, did not amount to cession of the said territory or transfer of sovereignty in respect of the same and did not require any constitutional amendment.
There was an appeal before the Division Bench of the High Court.
The Division Bench referred to the relevant authorities and the interpretation of 1974 and 1982 agree ments made by the learned Single Judge which were not dis puted before the Division Bench.
The Division Bench in judgment under appeal affirmed the decision of the learned Single Judge.
The findings and interpretation of the agree ments of 1974 and 1982 were also not disputed before us.
We are also of the opinion that that is the correct position in law and on facts.
As mentioned hereinbefore, on or about 16th May, 1974, an agreement was entered into by and between Government of India and the Government of the People 's Republic of Bangla desh.
The said agreement was signed by late Smt.
Indira Gandhi, as the then Prime 36 Minister of India for and on behalf of the Government of India and Sheikh Mujibar Rehaman, the then Prime Minister of Bangladesh, signed the said agreement for and on behalf of the Government of People 's Republic of Bangladesh.
It was recorded in the preamble of the agreement that the same concerned the demarcation of the land boundary between India and Pakistan and related matters, and that the two Govern ments were aware that friendly relations were existing between the two countries and that it was desired to define the boundary more accurately at certain points and to com plete the demarcation thereof.
Items 12 and 14 of Article 1 of the Agreement relevant to the proceedings before us, as mentioned before, were as follows: "Item No. 12: The Indian enclaves in Bangladesh and the Bangladesh en claves in India should be exchanged expeditiously, excepting the enclaves mentioned in paragraph 14 without claim to compensation for the additional, area going to Bangladesh.
" Item No. 14: "India will retain the southern half of south Berubari Union No. 12 and the adjacent enclaves, measuring an area 2.64 square miles approximately, and in exchange Bangladesh will retain the Dahagram and Angarpota enclave, India will lease in perpetuity to Bangladesh and area of approximately 178 metres x 65 metres near 'Tin Bigha ' to connect Dhagram with Panbari Mouza (section Patram) of Bangladesh.
" Article 5 provided that the agreement shall be subject to notification by the Government of India and Bangladesh and Instruments of rectification shall be exchanged as early as possible.
It may, however, be stated as was noted by the Division Bench of the Calcutta High Court that the agreement dated 11th May, 1974 was also not implemented.
Subsequently, letters passed between the Ministry of Foreign Affairs, Government of Bangladesh and the Ministry of External Af fairs, Government of India, both dated the 7th October, 1982 in which it was recorded that with reference to the earlier agreement between Government of Bangladesh and the Govern ment of India concerning the demarcation of land boundary between the two countries, signed on the 16th May, 1974, the following understanding 37 had been reached between the two Governments in respect of lease in perpetuity by India of the said area of 178 metres x 85 metres near 'Teen Bigha ' to connect Dahagram with Mouza Panbari in Bangladesh.
The understanding recorded was as follows: "Clause 1: "The lease in perpetuity of the aforementioned area shall be for the purpose of connecting Dahagram and Angarpota with Panbari Mouza (P.S. Patgram) of Bangladesh to enable the Bangladesh Government to exercise her sovereignty over Dahagram and Angarpota.
" Clause 2: "Sovereignty over the leased area shall continue to vest in India.
The rent for the lease area shall be Bangladesh Re. 1 (Bangladesh Taka one) only per annum.
Bangladesh shah not however be required to pay the said rent and Government of India hereby waives its right to charge such rent in respect of the leased area." Clause 3: "For the purposes stated in para 1, Bangladesh shall have undisturbed possession and use of the area leased to her in perpetuity." Clause 4: "Bangladesh Citizens including Police, Para Military and Military personnel along with their arms, ammunition equip ment and supplies shall have the right of free and unfet tered movement in the leased area and shall not be required to carry passports or travel documents of any kind.
Movement of Bangladesh goods through the leased area shall also be free.
There shall be no requirement of payment of customs duty tax or levy of any kind whatsoever or any transit charges.
Clause 5: "Indian citizens including police, par Military and 38 Military personnel along with arms ammunition equipment and supplies shall continue to have right of free and unfettered movement in the leased area in either direction.
Movement of Indian goods across the leased area shall also be free.
For purpose of such passage the existing road running across it shall continue to be used.
India may also build a road above and or below the surface of the leased area in an elevated or subway form for her exclusive use in a manner which will not prejudice free and unfettered movement of Bangladesh citizens and goods as defined in para 1 and 4 above.
Clause 6: "The two Governments shall co operate in placing permanent market along the parameters of the leased area and put up fences where necessary.
" Clause 7: "Both India and Bangladesh shall have the fight to lay cables, electric lines, water and sewerage pipes etc.
over or under the leased area without obstructing free movement of citizens or goods of either country as defined in parts 4 and 5 above.
Clause 8: "The Modalities for implementing the terms of the lease will be entrusted to the respective Deputy Commissioners of Rangpur (Bangladesh) and Cooch Behar (India).
In case of Differences, they refer the matter to their respective Governments for resolution.
Clause 9: "In the event of any Bangladesh/Indian national being involved in an incident in the leased area, constitut ing an offence in law, he shall be dealt with by the respec tive law enforcing agency of his own country, in accordance with its national laws.
In the event of an incident in the leased area involving nationals of both countries the law enforcing agency on the scene of the incident will take necessary steps to restore law and order.
At the same time immediate steps will be taken to get in track with the law enforcing agency of the other country.
In such cases, any Indian national apprehended by a Bangladesh law enforc 39 ing agency shall be handed over forthwith to the Indian side and Bangladesh national apprehended by an Indian law enforc ing agency shall be handed over forthwith to the Bangladesh side.
India will retain residual jurisdiction in the leased area.
" It was further confirmed by the letters that the same would continue as an agreement between the two Governments and would be an integral part of the earlier agreement of 1974 concerning the demarcation of land boundary between India and Bangladesh and other related matters.
Construing clauses 2 and 3 of the agreement of 1982, the learned Single Judge in the Calcutta High Court in the judgment under appeal had held that there was no question of lease or exclusive possession of Bangladesh of the said area.
The undisturbed possession and use of the said area granted to Bangladesh under the said agreement of 1982 had to be read in the background of the purpose of the agree ment, namely, connecting Dahagram and Angarpota with Panbari Mouza of Bangladesh to enable the Bangladesh Government to exercise sovereignty over Dahagram and Angarpota.
The learned Single Judge had further held that such undisturbed possession and use did not mean exclusive possession but merely meant that there would be no interference with the exercise of rights conferred by the agreement on Bangladesh Government and its nationals.
The learned Single Judge had held that no transfer of possession of the area was contem plated under the agreement.
Construing clause 9 of the agreement, the learned Single Judge had held that under the said clause where persons were involved in any criminal offence in the said area, if they were all Indian nationals, the matter would be taken up by the Indian law enforcing agency.
If the same involved only Bangladesh nationals the same would be dealt with by the Bangladesh law enforcing agency only.
But where both Bangla desh and Indian nationals were involved in any incident, the law enforcing agency of each State would take up the matter to the exclusion of the other.
The learned Single Judge had held that the said clause conferred certain important rights to Bangladesh and took away some important rights of the Government of India, its law enforcing agencies, the courts in India and Indian citizens.
At present, the law enforcing agencies of India and the Indian Courts alone had exclusive jurisdiction in respect of such matters.
The learned Single Judge had held that if the agreement was implemented the existing Indian law 40 and the machinery for enforcing such law would not be avail able in the area so far as Bangladesh nationals were con cerned.
India would have no jurisdiction over Bangladesh nationals in respect of any offence committed in the area.
The learned Single Judge, however, held that conferment of this power under the agreement to Bangladesh and abdication of any such power by India, by itself did not amount to transfer of sovereignty in respect of the area.
But the learned Judge noted that merely by virtue of the agreement and without any amendment of existing Indian law it might not be legally possible to take away existing jurisdiction of the law enforcing agencies of India or the Indian courts.
The Division Bench of Calcutta High Court correctly noted that the learned Single Judge came to the following conclusions: (a) Implementation of the agreements of 1974 and 1982 did not involve cession of any Indian territory to Bangla desh.
(b) No exclusive or legal possession of Tin Bigha was being transferred to Bangladesh.
(c) There was no question of transfer of sovereignty of India wholly or partially in respect of the said area.
(d) Certain privileges only had been conferred on Ban gladesh and its nationals under the said agreements which otherwise they would not have.
(e) As Dahagram and Angarpota would remain as pans of Bangladesh territory, the agreements were necessary to enable Bangladesh to exercise its sovereignty in full over the said enclaves.
(f) In spite of the said agreements India would retain its sovereignty, ownership and control over Tin Bigha.
It was contended before the Division Bench that the agreement between India and Bangladesh of 1974 provided specifically that the same would be suitably ratified.
But it had not been ratified.
It was urged that in the absence of any ratification of the agreement of 1974, India and Bangladesh could not enter into the said subsequent agree ment in 1982 on the basis of the agreement of 1974.
It was submitted that the said agreement of 1982 could not stand by itself.
Learned Advocate had submitted before the Division Bench that under clause 41 14 of the agreement of 1974, it was clearly recorded that India would lease in perpetuity to Bangladesh the said area of Teen Bigha to connect Dahagram with the Panban mouza in the main land of Bangladesh.
The subsequent agreement of 1982 was entered into between the two countries for imple menting the earlier agreement of 1974 and had to be con strued in the background of the latter.
Several other con tentions were urged on behalf of the Union of India and the appellants before the Division Bench.
All the contentions were noted by Mr. Justice D.K. Sen, as the learned Chief Justice then was, who delivered the main judgment of the Division Bench in the judgment under appeal.
He also noted the decision of this Court in Associated Hotels of India Ltd. vs R.N. Kapoor, ; on the question of lease and licence and also the decision of this Court in the Presidential Reference noted above.
The decision of this Court in Maganbhai Ishwarbhai Patel vs Union of India & Anr., ; , which dealt with the cession of Rann of Kutch to Pakistan, was also noted.
This Court had reiter ated there that a treaty really concerned the political rather than the judicial wing of the State.
When a treaty or an award after arbitration comes into existence, it had to be implemented and this can only be if all the three branch es of Government to wit the Legislature, the Executive and the Judiciary, or any of them, possess the power to imple ment it.
On the question of 'sovereignty ', reliance was placed before us on 'A Concise Law Dictionary ' by P.G. Osborn, 5th Edition, p. 297, where 'sovereignty ' has been defined as "the supreme authority" in an independent political society.
It is, essential, indivisible and illimitable.
However, it is now considered and accepted as both divisible and limita ble, and we must recognise that it should be so.
Sovereignty is limited externally by the possibility of a general re sistance.
Internal sovereignty is paramount power over all action within, and is limited by the nature of the power itself.
At p. 94, J.G. Starke in 'Introduction to International Law ', 9th Edition, explains the position as under: "Normally a State is deemed to possess independence and 'sovereignty ' over its subjects and its affairs, and within its territorial limits 'Sovereignty ' has a much more re stricted meaning today than in the eighteenth and nineteenth centuries when, with the emergence of powerful highly natio nalised States, few limits on State autonomy were acknowl edged.
At the present time there is hardly a State 42 which, in the interests of the international community, has not accepted restrictions on its liberty of action.
Thus most States are members of the United Nations and the Inter national Labour Organisation 'ILO ', in relation to which they have undertaken obligations limiting their unfettered discretion in matters of international policy.
Therefore, it is probably more accurate today to say that the sovereignty of a State means the residuum of power which it possesses within the confines laid down by international law.
" In a practical sense, it has been noted, sovereignty would be largely a matter of degree.
Reference, in this connection, has been made to the following authorities on the following aspects of international law: International Law, D.P.O. Connell, 2nd Edn.
I page 552.
Customary Restraints on Sovereignty: "A survey of actual servitudes is instructive when approach ing the more general question or customary restraints on sovereignty in the interests of neighbourly relations, because they disclose the categories of situations suscepti ble of customary law treatment.
With the exception of fish eries, those treaties instanced as servitudes all give effect to the notion of freedom of access or of transit.
The subject matter may be broken down into a consideration of the general principles of access and transit, and then specific investigations of rivers and canals as media of transit. ' ' Freedom of access and transit: "The classical writers from Vittoria on were unanimous in their view that a State must permit others to trade with it, and hence must grant them access and right of transit, and the opinion was maintained in spite of a mercantilis theory of trade.
" Access to enclaves: "There is cogency in the argument that a State has a right of access across alien territory to its enclaves area and in 43 fact enclaves have only survived because of the grant of necessary facilities, so that all enclaves are servitudes.
Whether, in the absence of actual agreement there is a right of access was undecided by the International Court of Jus tice in the rights of passage case because it found that existing practice in the instant situation was the appropri ate guide and it was unnecessary to resort to general inter national law.
The lesson on the face is that free access means in fact limited access, but the fact remains that even though the territorial State has a discretion to regulate and authorise the exercise of rights these none the less remain rights.
" In the actual case the Court allowed a latitude of discre tion to India which narrowed down, in some respects almost to vanishing point, the admitted right of access.
In partic ular there was a dissent on the question whether armed forces were entitled to access.
"The Development of International law, by International Court Sir Herson Lauterpacht, 1958".
"A number of cases decided by the Court are instructive not so much as pointing to a restrictive interpretation of rights of sovereignty as, in affirming its divisibility and capacity for modification, in denying to it and rigid quali ty of absoluteness.
The result in accordance with what is the essence of the system of mandates and trusteeship is to stress the func tional divisibility of sovereignty and, then, the absence from it, notwithstanding doctrinal logic, of any rigid element of absoluteness.
However, it is believed that the recognition by the Court of such situations, involving as they do the separation of some functions and attributes of sovereignty from others, is bound, apart from affirming the relative nature of sover eignty, to be beneficial for the development of internation al law and the peaceful adjustment of territorial and polit ical problems.
Unless autonomy and delegated exercise of sovereignty are made distinguishable both in fact and in law from outright cession of territory, it may be 44 difficult to secure for them the place to which they are entitled as an international institution rendering possible territorial arrangements and adjustments short of cession.
The convenience of a rigid dichotomy of full sovereignty and the entire absence thereof is probably deceptive." In the fight of authorities on International Law as noted above, and the factual findings noted above, we are of the opinion that the Division Bench came to the correct conclusion that the decision to allow Bangladesh to retain Dahagram and Angarpota under the agreements of 1974 and 1982 would not amount to cession of any part of the territory of India in favour of a foreign State.
The Division Bench after examining the record came to the conclusion that both defac to and dejure Dahagram and Angarpota remained part of the East Pakistan and subsequently Bangladesh.
If that is the position, then undiputedly there was no question of cession of any part or any territory by the agreements of 1974 and 1982.
This is a finding which is factually concluded.
We are of the opinion, that it is factually correct, and not dis puted before us by the respondents.
The Division Bench next considered whether by reason of the agreement of 1958 between India and Pakistan, which was sanctioned by the Ninth amendment to the Constitution, there was automatic exchange of the Pakistan enclaves in the eastern part of India with the Indian enclaves in eastern Pakistan.
The Division Bench did not accept this position.
The Division Bench noted that so far as the western border of India and Pakistan is concerned, the agreement of 1958 between India and Pakistan has been given effect to.
By an official notification, 17th January, 1961 was appointed as the day for the transfer of the territories of India by way of exchange with the territories of Pakistan in the western region.
No further appointed day was notified so far as the eastern border of India was concerned and the provisions of the 1958 agreement so far as the eastern region of India was concerned remained unimplemented.
The Division Bench held that there was no automatic transfer of Dahagram and Angar pota to India under the 1958 agreement between India and Pakistan in the absence of a notified appointed day.
We are of the opinion that the Division Bench was pre eminently right in the conclusion it arrived.
It is not also disputed before us that legally that was the position.
Ninth amend ment had not become part of the Constitution as no appointed date was notified.
In this connection, reliance may be placed on the decision of this Court in A.K. Roy, etc.
vs Union of India & Anr.
, ; Consequently, Dahagram and Angarpota remained 45 and still remain part of the territory of East Pakistan and subsequently Bangladesh.
This position has been recognised by both the Governments of India and Bangladesh in the two subsequent agreements of 1974 and 1982.
In the aforesaid view of the matter, the decision to allow Bangladesh to retain Dahagram and Angarpota does not amount to cession of Indian territory in favour of Bangladesh.
This is well settled.
The Division Bench has so held in the judgment under appeal.
No argument was advanced before us challenging the aforesaid finding.
Having regard to the facts found and the position of law, we are of the opinion that the High Court was right in this aspect of the conclusion.
The next question that falls for consideration is wheth er the agreement of 1958 between India and Pakistan which was sanctioned by the Ninth Amendment to the Constitution in 1960 became a final treaty binding on India and Bangladesh.
It was also accepted that neither India nor Bangladesh has formally terminated the said treaty of 1958 and as such it was contended before the Division Bench that in so far as the provisions of the said agreement of 1958 concern Beru bari Union No. 12 and the Cooch Behar enclaves including Dahagram and Angarpota were concerned, they could not be given a go by in the manner purported to have been done.
It appears, as the Division Bench found, that the said agree ment between India and Pakistan in 1958 was never implement ed so far as the border between West Bengal and East Bengal was concerned.
The Division Bench held that it was always open to States to enter into new treaties or to vary or modify existing treaties by fresh agreements.
To the extent the 1958 agreement between India and Pakistan remained unimplemented, the Division Bench held that it was open to India and Bangladesh to enter into a new treaty and to modify such unimplemented provisions of the earlier treaty and this had been done by the subsequent agreements entered into between India and Bangladesh in 1974 and 1982.
Under the said two later agreements, the provision of the earlier agreement of 1958 stood partially modified and superseded.
This view was supported by the statement of law by D.P.O 'Connell in 'International Law ', 2nd Edition, Vol.
I, pages 272,278 and 279.
The Division Bench has so held.
We are in agreement with this view.
No contrary view was can vassed before us.
As mentioned hereinbefore, it is clear from the said agreements of 1974 and 1982 that the transfer of territories which were sanctioned under the Ninth Amendment of the Constitution will not be given effect to.
Bernbari No. 12 which was intended to be given to East 46 Pakistan would not be given to Bangladesh and Dahagram and Angarpota which were intended to be transferred to India would be retained by Bangladesh.
The question, is, whether to the extent as aforesaid, a further amendment to the Constitution was necessary.
The Division Bench was of the view that the subsequent agreements of 1974 and 1982 provid ing for exchange of territories would have to be noted in the relevant Schedules to the Constitution before any ap pointed day could be notified in respect of the territories to be transferred to Bangladesh.
This was necessary in order to retain Berubari in India, according to the Division Bench.
Learned Attorney General has contended before us that this was not necessary and it was not conceded before the Division Bench that such amendment of the Constitution was called for.
We are of the opinion that learned Attorney General is right in his submission.
After having perused the entire judgment it appears to us that what the learned Attorney General had conceded before the Division Bench was that if the agreements of 1974 and 1982 amounted to cession of territory that would have required constitutional sanc tion or amendment.
In view of the position in International law for the reasons mentioned hereinbefore, the Division Bench has held that there was no cession of territory.
If that is the position and we are of the opinion that it is so, and further in view of the fact that no appointed day was notified and the Ninth Amendment to the Constitution has remained a dead letter and had not become effective, no constitutional amendment was required for the arrangements entered into either by the agreements of 1974 and 1982.
The Division Bench, in our opinion, was in error in expressing a contrary view.
A question had been raised before the Division Bench that as the agreement between India and Bangladesh of 1974 specifically and categorically required ratification, wheth er India and Bangladesh could have entered into the subse quent agreement of 1982 recording their understanding on the earlier agreements regarding Teen Bigha.
This point, accord ing to the Division Bench was of little substance.
The later agreement of 1982 between India and Bangladesh by itself includes therein certain clarifications.
The agreement between two countries might be ratified not only by a subse quent formal agreement but by actual implementation or by conduct and read properly, in our opinion, these two subse quent agreements did ratify the previous agreement.
The submission that the agreement between India and Bangladesh of 1974 was a personal treaty between late Smt.
Indira Gandhi and Late Sheikh Mujiber Rahaman and by reason of their 47 deaths, the said treaty came to an end, was of no substance was rejected by the Division Bench and was not pressed before us.
The agreement of 1974 was a treaty between two sovereign countries, India and Bangladesh and real treaty as understood in International law.
The expression 'lease in perpetuity ' used in the two agreements of 1974 and 1982 occurring in the recital is binding on the parties to the said document.
Odgers Con struction of Deeds and Statutes had been cited as an author ity in support of this contention.
But it has to be borne in mind that the expression 'lease in perpetuity ' has to be understood in the context of and with reference to the objects of the agreements concerned.
The meaning attributed to the expression 'lease in perpetuity ' in private law can not be properly imported for the purpose of construing a document recording an agreement between two sovereign States acting as high contracting parties, where neither of them is bound by the private law of the other.
For the same reason, it is not necessary to decide whether the said agreements of 1974 and 1982 amounted to or resulted in the grant of a licence by India in favour of Bangladesh under Indian law or within the meaning of the Indian Easement Act.
This question has to be examined on the terms and conditions recorded in the said agreements and in the context of International Law to determine what rights are being conferred on the respec tive States thereunder.
In that view of the matter, the nomenclature used and the expressions recorded would not by themselves be of much significance.
This view is supported by the observations of Ian Brownlie in 'Principles of Public International Law ', 2nd Edition.
The use of the expression 'lease in perpetuity ' in the recital of the agreement of 1982 and whether such recital operates as an estoppel against the parties is not of par ticular significance.
In any event, the Division Bench held that the recital in a deed could not operate as an estoppel against the specific terms and conditions thereof.
On a construction of the agreement, the Division Bench came to the conclusion that the agreements of 1974 and 1982 together in their entirety keeping in view the background must be judged.
An important and significant fact in the background of which the said agreements had been entered into between India and Bangladesh was that the two areas Dahagram and Angarpota, now intended to be retained by Bangladesh, were enclaves wholly encircled and enclosed by the territories of India.
If Bangladesh had to retain and exercise its sover eignty over these areas, her access to the said areas was imperative and necessary.
It is with that object, namely, to allow access to Bangladesh to Dahagram and Angarpota for the purpose of exercise of her sovereignty over and in 48 the said areas, the said agreements had been entered into.
It must be understood in that light and appreciated in the background of desire to maintain friendly and neighbourly relationships between two sovereign States.
In the agreement of 1974, it was only recorded that India would lease in perpetuity to Bangladesh the said area at Teen Bigha to connect Dahagram and Panbari Mouza of Bangladesh.
Terms and conditions of the intended lease were not set out in the agreement of 1974.
In the subsequent agreement of 1982, it was clarified by the two Governments as to what would be the said 'lease in perpetuity '.
The object of the said lease had again been specifically set out in clause 1 of the agreement of 1982.
The other clauses of the said agreement which recorded also the terms and conditions of the transaction have to be understood in the background and context of the said object.
In clause 3 of the agreement of 1982, no doubt it was recorded that Bangladesh shall have undisturbed possession and use of the area leased but the said clause also categorically recorded that such possession and use would be for the purposes stated in clause 1.
In clause 2 of the agreement of 1982, it was specifical ly recorded that sovereignty over the leased area would continue to vest in India.
This meant that Bangladesh would not exercise sovereignty over the said area.
This is a specific declaration by the two States and there was no reason why this particular clause should be ignored or overlooked and the effects and implications thereof mini mised.
Clause 2 further indicated that under the said agree ment only limited rights were being granted to Bangladesh and not all or all absolute rights over the territory in volved, which would result in the surrender of sovereignty over the area by India.
No right to administer the said territory had been given to Bangladesh.
The specific rights which had been given to Bangladesh under the said agreements were, inter alia, the right of free and unfettered movement over and across for passage through the leased area.
This right would be available to Bangladesh citizens including police, para military, and military personnel who would be entitled to move to the leased area with supply and equip ment including arms without passport or travel documents.
A further right of movement of goods over and through the area without payment of customs duties or other similar tax or levy has been conferred by the agreement.
Having examined the rights in the agreements, we are of the opinion that this did not amount to lease or surrender of sovereignty as understood in the international law.
In the Panama Canal 's case (See Hudson, Cases.
Cases & Other Materials on Interna tional Law, 3rd Edition, 1951, pp. 222 3.
See also lan Brownlie 's Principles of Public International Law, 3rd Edn., p. 116) a lease was 49 granted to the United States in perpetuity.
The United States was given the occupation and control of the area concerned over and below the surface for the construction and protection of the canal.
Moveover, the United States was allowed under the lease to exercise over the canal zone all rights, power and authority which it would possess if it were the sovereign of the territory.
These are not the terms of the agreement before us.
In the instant case, the major right which had been conferred on Bangladesh was the right of free movement over the area.
The right of undisturbed possession and use of the area under the agreement of 1982 has to be understood in the context of the right of free movement.
It appears to us that it is not possible to hold that Bangladesh would have a right to occupy permanently the area or to construct buildings and fortification therein or to lay railway lines through the area.
If such rights are sought to be exercised by Bangladesh in the area, the same would interfere with rights of free movement in the area of Indian citizens and of Indian goods.
As the right to free movement over the area by both the countries are being retained or granted, therefore, neither country and in particular, Bangladesh can generally occupy or block any part of the area.
The Division Bench held that under the said agreements, specific and limited rights were being granted to Bangladesh.
Such rights were not exclusive and the aggregation thereof would not amount to a lease, as is commonly understood in favour of Bangladesh.
We are of the opinion that the Division Bench was right in the view it took.
A fortiorari, the said transaction did not amount to cession of the said area of Teen Bigha in favour of Bangla desh.
Cession as understood in international law would result in an actual and physical transfer of the said area to Bangladesh following which Bangladesh would have the exclusive right to treat the said transferred territory as part of its own territory and exercise full control, domin ion and right over the same.
This is not the position or the situation which is contemplated under the agreements.
The rights intended to be conferred on Bangladesh under the said agreements, would amount to what is known as "servitude" in International law.
Certain restrictions had been imposed on India over its absolute sovereignty in the area to serve purpose in favour of and in the interest of Bangladesh.
These are, however, serf imposed restraints.
On a proper construction of the agreements of 1974 and 1982 and the individual clauses, it cannot be said that as a result of the said agreements, India had surrendered its sovereignty over the said area of Teen Bigha in favour of Bangladesh or that Bangladesh has become the sovereign over the said territory to 50 the exclusion of India.
Sovereignty is a quality of right.
It is a bundle of rights.
It depends on the facts and the circumstances of each case.
Apart from anything else, the specific clause in the agreement of 1982 that sovereignty over the area shall continue to vest in India stands in the way of a contrary construction.
This clause distinguishes the concessions in the instant case from the grant in favour of the United States in Panama case (supra), where the United States received all right, powers and authority within the zone of lease which it could possess and exercise if it were the sovereign of the territory leased.
The state ments on the relevant aspect of International law in the authoritative text books noted earlier indicated that in the present and modern context sovereignty has and must have a more restrictive meaning that it had in the earlier cen turies when on the emergence of individual national States, no limits on the power of states were acknowledged.
See 'Introduction to International Law ' by Strake (supra).
Any State in the modern times has to acknowledge and accept customary restraints on its sovereignty inasmuch as no State can exist independently and without reference to other States.
Under the general international law the concept of inter dependence of States has come to be accepted.
Even without the said agreements of 1974 and 1982, so long as Dahagram and Angarpota remain part of Bangladesh, the latter under the general International law and customs would have a right to access to the said enclave through the territory of India.
It is this international practice and customs which has been recognised in the said agreements except that the military, paramilitary and police of Bangladesh with arms, ammunitions and equipments have also been given a right of passage through the area.
The concessions given to Bangla desh over the said area might amount to servitudes suffered by India in its territory, as known in international law.
See the observations of Oppenheim, 8th Edition, p. 537 538 and also Max Sorensen in Manual of Public International Law, 1968 Edition, which states that the acceptance of servitudes does not represent any negation of sovereignty.
The term "servitude" means nothing more than accepted restrictions and grant of servitude does not amount to cession of terri tory.
The Division Bench was unable to accept the contention that the use of the expression 'residual jurisdiction ' in clause 9 of the agreement of 1982 indicates that India only retained residual sovereignty over the area and the defacto and real sovereignty in the said area has been surrendered to Bangladesh.
The said expression in clause 9 refers to nothing more than the jurisdiction to be exercised by India in respect of incident occurring in the said territory involving law and order, which may or may not amount to.
51 commission of a criminal offence.
The fact that certain old disputes between India and Pakistan regarding the said 12 thanas in the Sylhet District of Assam have not been settled with Bangladesh by the said agreements of 1974 and 1982 and that might remain pending is of no relevance to the legality and validity of the said agreements.
The Division Bench expressed the view that perhaps the letters of the two countries will take remedial measures.
On clause 9, it was submitted that the Bangladesh national committing an offence in the said area of Teen Bigha involving another Bangladesh national would be dealt with by the law enforcing agency of Bangladesh in accordance with the laws of Bangladesh.
If the said territory remains a part of the territory of India, then in such cases, the law enforcing agency and the courts in India would not exercise their normal jurisdiction in respect of an offence committed by a Bangladesh national in the territory of India.
This may necessitate suitable changes in the laws of India.
The Division Bench for the reasons indicated above, made the following order: "The respondents before implementation of the said agree ments of 1974 and 1982 are directed: (a) To amend the Constitution of India suitably so that the Berubari Union is not transferred to Bangladesh along with the other territories as contemplated by the 9th Amendment of the Constitution.
The agreements of 1974 and 1982 are directed to be suitably noted or recorded in the relevant Schedules to the Constitution authorising the transfer of the territories to Bangladesh and not Pakistan.
(b) To take steps for acquisition and acquire the land owned by Indian Citizens in the said area in accordance with law; (c) To consider and effect suitable amendment of Indian Law and in particular, the Indian Penal Code and the Criminal Procedure Code as presently applicable in the said area of Tin Bigha.
The appeals are disposed of as above.
There will be no order as to costs.
" 52 We are of the opinion that so ' far as clause (a) of the ordering portion of the judgment is concerned, this was not warranted.
There was no need to amend the Constitution of India so that the Berubari Union No. 12 is not transferred to Bangladesh along with other territories as contemplated by the Ninth Amendment to the Constitution.
Ninth Amendment to the Constitution has not come into effect.
Therefore, the agreements of 1974 and 1982 did not require to be suitably notified or included in that official gazette.
The Division Bench has held that there was no cession of territory.
There was no abandonment of sovereignty and, therefore, no consti tutional amendment was necessary in view of the facts men tioned hereinbefore.
Justice Monjula Bose delivered a separate but concurring judgment.
She held that sovereignty over the area, in fact, continued to be vested in India.
She further held that there was no intention on the part of India to give Bangladesh either occupation or possession of Indian territory as such, but merely "undisturbed possession" and for the express purpose of "connecting Dahagram with Panbari Mouza of Ban gladesh to enable Bangladesh to exercise sovereignty over Dahagram and Angarpota and for no other purpose.
We reiter ate the views of the said learned Judge that the complex ities of modern developed societies need peaceful co exist ence, if the world is to survive.
Amicable and peaceful settlement of boundary disputes are in the interests of the international community.
The older and absolute ideas of sovereignty and independence has thus necessarily to be modified in the dawn of the 21st century.
A perpetual right of passage and other incidental rights given to Bangladesh for the limited purpose for exercising the sovereignty over her own two enclaves within the territory of India and/or if imposed restrictions on itself by India does not tantamount to transfer of interest in land.
No constitutional amendment was necessary in view of the fact that 9th amendment had not come into effect as there was no appointed day fixed by the Parliament and the principles enunciated by the decision of this Court in A.K. Roy 's case (supra).
Learned Attorney General submitted that the Division Bench was in error in directing changes and constitutional amendment as it has purported to do.
In A.K. Roy 's case (supra), this Court indicated the contention at p. 272 of the report that the Government would be compelled to exercise its power to issue notification as to at what date the law has to come into effect.
There under section 1(2) of the 44th Amendment Act, it shall come into force on such date as the Central Govern ment may, by notification in the Official Gazette appoint and different dates may be appointed for different provi 53 sions of the Act and thus leaving, to the Government to fix date in this case cannot be interfered and since the ap pointed day had not been fixed, the Ninth Amendment has not come into force.
In that view of the matter, the directions by the Court to amend the law cannot and should not be given.
See in this connection the observations of this Court in State of Hima chal Pradesh & Anr.
vs Umed Ram Sharma & Ors., [1986] 2 SCC 68.
In State of Himachal Pradesh vs A parent of a Student of Medical College, Simla & Ors., [1985] 3 SCR 676, this Court at p. 684 of the report reiterated that the Court cannot group the function assigned to the executive and the legis lature under the Constitution and cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervi sory role over the law making activities of the executive and the legislature.
The Court having held that 9th Amend ment to the Constitution has not come into effect and there being no cession of any part or territory or abandonment of sovereignty, there was no cause to direct the legislature to amend or pass suitable laws.
The Division Bench transgressed its limits to that extent.
See in this connection the obser vations of this Court in State of Himachal Pradesh vs Umed Ram Sharma, (supra) at pp.
78 and 79 of the report.
We are of the opinion that the directions of the Divi sion Bench of the Calcutta High Court to that extent may be deleted in clause (a) of the ordering portion.
So far as to take steps for acquisition and to acquire the land owned by Indian citizens in the said area in accordance with laws is concerned, it was wholly unnecessary because there was no land owned by the Indian citizens which was required to be acquired.
So far as clause (c) of the ordering portion is concerned, the Government has already taken steps and has agreed to take steps to amend the law.
But the implementa tion of the agreements is not dependent on such steps being taken.
While we modify the judgment and order of the Division Bench, we must observe that this was really a fight over non issue.
The Division Bench categorically held that there was no cession of territory and no lease in perpetuity.
If that is so, without the change in the law or change in the Constitution, the agreement should have been implemented fully and we hope that will be done for the restoration of the friendly relations between India and Bangladesh.
54 Before we conclude, we must observe that Mr. Khanduja, counsel for respondent submitted that if the will of the people expressed that such agreement should be implemented then his client has no objection to such implementation.
That is the good attitude to adopt.
The appeal is disposed of in the aforesaid light and deleting the aforesaid directions of the Division Bench and the appeal is allowed to the extent.
There will be no orders as to costs.
R.S.S. Appeals disposed of.
| IN-Abs | The Indian Independence Act, 1947 had set up two inde pendent dominions known as 'India ' and 'Pakistan '.
A Bound ary Commission was appointed to determine the boundaries of the two dominions, As a result of its Award, certain areas of India became, after the partition, enclaves in East Pakistan.
Similarly, certain East Pakistan enclaves were found in India.
Dehagram and Angarpota were two such Pakis tani enclaves in India.
In view of the Award, Berubari Union No. 12 was treated as part of the Province of West Bengal.
Near about 1952, Pakistan alleged that under the Award the Berubari Union should really have formed part of East Bengal.
Eventually, in 1958 the Prime Ministers of India and Pakistan entered into an agreement settling certain boundary disputes.
The agreement inter alia provided for the division of Berubari Union No. 12 between India and Pakistan and exchange of Indian enclaves in Pakistan and Pakistan enclaves in India.
Doubts arose regarding the implementation of the 1958 agreement.
Therefore, in exercise of the powers conferred upon him by clause (1) of Article 143 of the Constitution, the President of India referred the matter to the Supreme Court.
In the light of the opinion rendered by the Supreme Court in Re: The Berubari Union and Exchange of Enclaves, 250, the Constitution (Ninth Amendment) Act, 1960 was passed to give effect to the transfer of the terri tories as envisaged in the 1958 agreement.
25 By an official notification, 17th January 1961 had been appointed as the day for the transfer of the territories of India by way of exchange with the territories of Pakistan in the western region.
No further appointed day was notified so far as the eastern border of India was concerned.
In 1966, writ petitions challenging the validity of the transfer of territories as stipulated in the Ninth Amendment were dismissed by this Court in Ram Kishore Sen & Ors.
vs Union of India; , On or about the 16th May, 1974 an agreement was entered into between the Prime Ministers of India and Bangladesh.
This agreement inter alia provided that India will retain half of Berubari Union No. 12, which under the 1958 agree ment was to be transferred to Pakistan, and in exchange Bangladesh will retain the Dahagram and Angarpota enclaves.
The agreement further provided that India will lease in perpetuity to Bangladesh a small area near 'Tin Bigha ' for the purpose of connecting Dahagram and Angarpota with Pan bari Mouza of Bangladesh.
The 1974 agreement, however re mained unimplemented.
Thereafter, in October 1982 an understanding was reached between the two governments in respect of 'lease in perpetu ity ' by India of the said area near 'Tin Bigha ' to enable the Bangladesh government to exercise her sovereignty over Dahagram and Angarpota.
It was further agreed that the 1982 agreement would be an integral part of the earlier agreement of 1974.
It was also agreed that the sovereignty over the leased area shall continue to vest in India.
Clause 9 of the 1982 agreement provided that India would have no jurisdiction over Bangladesh nationals in respect of any offence committed in the area, and the same shall be dealt with by the Bangladesh law enforcing agency only.
In 1983, Writ Petitions were filed in the Calcutta High Court challenging the validity of the agreement.
The learned Single Judge dismissed the writ petitions (Sugandhra Roy vs Union of India, A.I.R. 1983 Cal.
The learned Single Judge held that (i) Ninth Amendment in so far as it related to exchange of the enclaves in eastern India had not come into being; (ii) implementation of the agreements of 1974 and 1982 did not involve cession of any Indian territory to Bangladesh; (iii) no exclusive or legal possession of Tin Bigha was being transferred 26 to Bangladesh; (iv) there was no question of transfer of sovereignty of India wholly or partially in respect of the said area; (v) certain privileges only had been conferred on Bangladesh and its nationals under the said agreement which otherwise they would not have; (vi) as Dahagram and Angarpo ta would remain as parts of Bangladesh territory, the agree ments were necessary to enable Bangladesh to exercise its sovereignty in full over the said enclaves; and (vii) in spite of the said agreements India would retain sovereignty, ownership and control over Tin Bigha.
Regarding clause 9 of the 1982 agreement, the learned Single Judge held that the conferment of this power under the agreement to Bangladesh and abdication of any such power by India, by itself, did not amount to transfer of sover eignty in respect of the area.
The learned Single Judge, however, noted that merely by virtue of the agreement and without any amendment of the existing Indian law it might not be legally possible to take away existing jurisdiction of the law enforcing agencies of India or the Indian courts.
An appeal was filed before the Division Bench.
It was contended before the Division Bench that (i) the 1974 agree ment specifically provided that the same would be suitably ratified but it had not been ratified; (ii) in the absence of any ratification of the agreement of 1974, India and Bangladesh could not enter into the subsequent agreement in 1982 on the basis of the agreement of 1974; (iii) by reason of the agreement of 1958 between India and Pakistan, which was sanctioned by the Ninth amendment to the constitution, there was automatic exchange of the Pakistani enclaves in the eastern part of India with the Indian enclaves in east ern Pakistan; (iv) neither India nor Bangladesh had formally terminated the treaty of 1958 and as such in so far as the provisions of the said agreement of 1958 concern Berubari union No. 12 and the Cooch Behar enclaves, including Daha gram and Angarpota, they could not be given a go by in the manner purported to have been done, and a further amendment to the Constitution was necessary; and (v) the use of the expression 'residual jurisdiction ' in clause 9 of the agree ment of 1962 indicated that Indian only retained residual sovereignty over the area and the defacto arid real sover eignty in the area had been surrendered to Bangladesh.
The Division Bench repelled these contentions.
The Bench however was of the view that the agreements of 1974 and 1982 providing for exchange of territories would have to be noted in the relevant schedules to the Constitution before any appointed day could be notified in 27 respect of the territories to be transferred to Bangladesh.
According to the Division Bench, this was necessary in order to retain Berubari in India.
Disposing of the appeal, this Court.
HELD: (1) The Division Bench came to the correct conclu sion that in so far as the eastern border of India was concerned, the Ninth Constitutional amendment had not become part of the Constitution as no appointed day had been noti fied, and in that view of the matter, the decision to allow Bangladesh to retain Dahagram and Angarpota under the 1974 and 1982 agreements did not amount to cession of Indian territory in favour of Bangladesh.
[45A B] A.K. Roy, etc.
vs Union of India & Anr., [1982] 2 S.C.R. 272: Maganbhai Ishwarbhai Patel vs Union of India & A nr.; , , referred to.
(2) The Division Bench was pre eminently right in arriv ing at the conclusion that there was no automatic transfer of Dahagram and Angarpota to India under the 1958 agreement in the absence of a notified appointed day, and consequently both defacto and dejure these enclaves remained part of East Pakistan and subsequently Bangladesh.
[44G H] (3) The Division Bench had held that the agreements of 1974 and 1982 did not amount to cession of territory or abandonment of sovereignty.
If that is the position, no constitutional amendment was required for the arrangements entered into either by the agreement of 1974 or 1982.
The Division Bench was therefore in error in expressing a con trary view.
[44B C] (4) In that view of the matter, the agreements of 1974 and 1982 did not require to be suitably notified or included in the official gazette.
Therefore, there was no cause to direct the legislature to amend or pass suitable laws.
[52B] State of Himachal Pradesh vs Umed Ram Sharma, ; ; State of Himachal Pradesh vs A parent of a Stu dent of Medical College, Simla & Ors., [1985] 3 S.C.R. 676, referred to.
(5) The expression 'lease in perpetuity ' has to be understood in the context of and with reference to the objects of the agreement.
The object of the lease was to allow access to Bangladesh to Dahagram and 28 Angarpota for the purpose of exercise of her sovereignty over and in the said areas.
Having examined the rights in the agreements, these do not amount to lease or surrender of sovereignty as understood in the international law.
[47B D] Associated Hotels of India Ltd. vs
R.N. Kapoor; , , referred to.
(6) The Division Bench rightly held that the recital in a deed could not operate as an estoppel against the specific terms and conditions thereof.
On a construction of the agreements, the Division Bench came to the correct conclu sion that the agreements of 1974 and 1982 together in their entirety must be judged.
[47F] (7) An agreement between two countries might be ratified not only by a subsequent formal agreement but by actual implementation or by conduct, and read properly, the subse quent agreement did ratify the previous agreement.
[46G H] (8) The Division Bench rightly held that under the said agreements, specific and limited rights were being granted to Bangladesh.
Such rights were not exclusive and the aggre gation thereof would not amount to a lease, as is commonly understood in favour of Bangladesh.
[49D E] (9) Certain restrictions had been imposed on India over its absolute sovereignty in the area to serve the purpose in favour of and in the interest of Bangladesh.
These are, however, self imposed restrictions.
On a proper construction of the agreements of 1974 and 1982 and the individual clauses, it cannot be said that as a result of the said agreement, India had surrendered its sovereignty over the said area of Teen Bigha in favour of Bangladesh or that Bangladesh has become the sovereign over the said territory to the exclusion of India.
[49G H] (10) Sovereignty is a quality of right.
It is a bundle of rights.
It depends on the facts and the circumstances of each case.
Apart from anything else, the specific clause in the agreement of 1982 that sovereignty over the area shall continue to vest in India stands in the way of a contrary construction.
[50A B] Panama Canal 's case Hudson Cases & Ors.
Materials on international Law, 3rd Edition, 1951 pp 222 3, distin guished.
29 (11) `Sovereignty ' has been defined as "the supreme authority ' in an independent political society.
It is essen tial, indivisible and illimitable.
However, it is now con sidered and accepted as both divisible and limitable.
Sover eignty is limited externally by the possibility of a general resistance Internal sovereignty is paramount power over all action, and is limited by the nature of the power itself.
[41E F] (12) In the present and modern context sovereignty has and must have a more restrictive meaning than it had in the earlier centuries when on the emergence of individual na tional States, no limits on the power of States, were ac knowledged.
Any State in the modern times has to acknowledge and accept customary restraints on its sovereignty inasmuch as no State can exist independently and without reference to other States.
Under the general international law the con cept of interdependence of States has come to be accepted.
Even without the said agreements of 1974 and 1982, so long as Dahagram and Angarpota remain part of Bangladesh, the latter under the general international law and customs would have a right to access to the said enclose through the territory of India.
[50C E] (13) Amicable and peaceable settlement of boundary disputes are in the interests of the international communi ty.
The older and absolute ideas of 'sovereignty and inde pendence has thus necessarily to be modified in the dawn of the 21st century.
A perpetual right to passage and other incidental rights given to Bangladesh for the limited pur pose for exercising the sovereignty over her own two en claves within the territory of India and/or if imposed restrictions on itself by India does not tantamount to transfer of interests in India [52E F]
|
ivil Appeal No. 5052 of 1985.
From the Judgment and Order dated 5.7.1989 of the Rajas than High Court in Regular Civil Second Appeal No. 240 of 1978.
B.D. Sharma for the Appellants.
D. Bhandari for the Respondent.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
1.
The appellants had leave under 9 Article 136 to appeal against the judgment and decree of the High Court of Rajasthan at Jaipur Bench in Second Appeal No. 240 of 1978 dated July 5, 1985 reversing the decrees of the Courts below and decreeing the suit for ejectment of the appellants from the demised shop in Jaipur.
The facts lie in a short compass: that Smt.
Anandi, wife of the first appel lant and the mother of the second appellant, Nand Kishore had lease of the demised premises for 11 months from May 1, 1964 on payment of monthly rent of Rs. 18 which expired on March 31, 1965.
The respondent landlord terminated the lease by a notice under section 106 of Transfer of Property Act but she remained in possession and enjoyment of the shop carrying on small kirana business.
She died in September, 1966.
The demised premises are governed by the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act 26 of 1950 for short the 'Act ').
Section 13(1) thereof, postulates that "notwithstanding anything contained in any law or a contract, no court shall pass any decree or make any order in favour of the landlord, whether in execution of a decree or otherwise evicting the tenant so long as he is ready and willing to pay rent thereof to the full extent allowable by the Act" unless the landlord proves to the satisfaction of the court any one of the grounds enumerated in Clauses 'a ' to 'k ' thereof.
The action for ejectment was initiated by the respondent on the premise that on the death of the tenant, the appellants have no right to continue in occupation of the demised premises.
The findings recorded by all the courts are that Smt.
Anandi was the tenant.
The appellants during her life time, had not carried on the business with her till date of her death.
The Trial Court dismissed the suit on the ground that Smt.
Anandi paid and the respondent accepted the rent after determination of the lease.
So she was a tenant holding over.
During the pendency of the appeal, the Act was amended through Rajasthan Prem ises (Control of Rent and Eviction) Ordinance 26 of 1975 which was replaced by Act 14 of 1976 (for short the 'Amend ment Act ').
Therein the definition of 'Tenant ' was amended by Section 3(ii) of the Amendment Act introducing to Section 3 Clause (vii), thus: "(vii) "tenant" means (a) The person by whom or on whose account or behalf rent is, or, but for a contract express or implied, would be payable for any premises to his landlord including the person who is continuing in its possession after the termi nation of his tenancy otherwise than by a decree for evic tion passed under the provisions of this Act; and 10 (b) In the event of death of the person as is referred to in sub clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applica ble to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death.
" Consequently, the appellants amended the written state ment adding therein paragraphs Nos. 16 and 17 contending that they have been jointly carrying on the business in the demised premises alongwith Smt.
Anandi Bai, therefore, they are entitled to the continuance of the tenancy.
The amend ment was allowed by the Appellate Court and it called for a finding from the Trial Court in that regard.
After giving an opportunity to both the parties to adduce evidence afresh the Court recorded the finding in the negative.
On its receipt and consideration thereof the appellate court af firmed the finding but confirmed the decree of the Trial Court on other grounds.
The High Court held that. as the appellants had not carried on the business with the tenant during her life time as family business they were not enti tled to the benefit of the amended definition of the tenant.
Accordingly decreed the suit.
(2) The contention of the learned counsel for the appel lants is that the lease hold right is an heritable estate and on death of the tenant in September, 1966, the succes sion thereto was opened and the appellants, being Class I heirs under the inherited by intestate succession the lease hold estate in the tenancy rights held by Smt.
Anandi.
The said right received express recognition under the Amendment Act which is not in deroga tion to the personal law.
The High Court, thereby, committed manifest error of law.
Shri Dalveer Bhandari, learned coun sel for the respondent, on thorough preparation of the case, has vehemently resisted the contention.
He also circulated written arguments.
According to him preceding the Amendment Act the commercial or business tenancy was not heritable as held in J.C. Chaterjee vs Sri Kishan. ; by the High Courts of Rajasthan, Punjab and Haryana and Delhi.
For the first time the right to succession has been created under the Amendment Act.
The finding recorded by all the courts is that during the life time and till the date of death of the tenant, Smt.
Anandi, the appellants did not carry on business with her as family business in the 11 demised premises.
On determination of tenancy the appellants became trespassers.
Thereby the appellants became disenti tled to remain in possession of the demised premises.
It is seen that Section 13(1) of the Act engrafts non obstenti clause, namely, "notwithstanding anything contained in any law or contract no court shall pass any decree of eviction against the tenant so long as the tenant is ready and will ing to pay rent therefore to the full extent allowable by the Act" unless one or other ground or grounds specified in Clauses 'a ' to 'k ' of sub section (1) of Section 13 are established.
Admittedly, the settled legal position preced ing the amendment act, prevailing in the State of Rajasthan was that the lease hold rights of the tenanted premises for commercial or business purposes governed by the Act is not heritable.
It is a personal right to the tenant.
A reading of the amendment to the definition of 'tenant ' in Section 3 Sub Clause (vii)(b) makes the legislative intent manifest that from the date of the Amendment Act came into force, on the death of the tenant, his surviving spouse, son, daughter and other heir, in accordance with personal law as applica ble to him, who had been, in the case of the premises leased out for residential purposes, ordinarily residing and, in the case of premises leased out for commercial or business purposes, ordinarily had been carrying on business with him/her in such premises as members of his/her family upto his/ her death.
Therefore, under the amended definition of tenant, if one seeks to make avail of the benefit of statu tory tenancy under the Act, he must establish to the satis faction of the court that the surviving spouse, son or daughter and other heir, in case of residential purposes, he/she/they ordinarily had been residing in the premises along with the tenant and continued to do so till date of death of the tenant.
Similarly, in respect of premises leased out for commercial or business purposes it must be established that the surviving spouse or son or daughter and the heir as the case may be ordinarily had been carrying on the business during the life time of the tenant as members of the family in the demised premises and continued to do the business till date of the death of the tenant.
In other words to avail of the statutory right under section 3(viii)(b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc.
The break in either of the links snaps off the right denuding the continuity of the statutory tenancy.
(3) Every tenancy is rounded, initially, upon a con tract.
The contractual tenant has an estate or property in the lease hold interest of the tenancy and his heritability is an incidence of the tenancy.
Despite termination of the tenancy this Court ecologised the resultant consequences in Damadilal & Ors.
vs Parashram & Ors., [1976] Suppl.
12 SCR 645 in which three Judges Bench held that: "It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation.
" The facts in that case were that the tenancy of business premises was governed by the Madhya Pradesh Accommodation Control Act, 1961.
The contracted tenancy was determined and a suit for eviction from a shop was laid in the Civil Court against the tenant.
During its pendency he died and his legal representatives were sought to come on record which was resisted.
The word 'tenant ' had been defined under sec tion 2(1) of that Act, thus: "a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied would be payable for any accommodation and includes any person occupying the accommodation as a subtenant and also any person continuing in possession after the termina tion of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made" he definition is the same as in the present case on hand under Clause (a) of Sec.
3(vii) of the Rajasthan Act.
It was contended that the tenancy came to a terminus with its determination by issuance of notice under section 106 of Transfer of Property Act and the legal representatives do not succeed to the estate of the deceased tenant so as to prosecute the proceedings.
While repelling that contention, noticing the definition referred to above, Gupta, J. speaking for the court held that: "The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists.
The incidents of such tenancy and a contrac tual tenancy must, therefore, be the same unless any provi sion of the Act conveyed a contrary intention.
That under this Act such a tenant retains an interest in the 13 premises, and not merely a personal right of occupation, will also appear from section 14 which contains provisions restricting the tenant 's power of subletting .
There is nothing to suggest that this section does not apply to all tenants as defined in Section 2(i).
A contractual tenant has an estate or interest in premises from which he carves out what he gives to the sub tenant.
Section 14 read with section 2(i) makes it clear that the so called statuto ry tenant has the right to sub let in common with a contrac tual tenant and this is because he also has an interest in the premises occupied by him." Accordingly it was held that they succeeded as legal representatives to the lease hold interest of the commercial premises.
(4) How to resolve the controversy between the ratio therein and that of majority contra view taken in Anand Niwas (Pvt.) Ltd. vs Anandji Kalvanji Pedhi & Ors., ; and Jagdish Chander Chaterjee & Ors.
vs Sri Kishan & Anr., (supra), the later case on which heavy reliance was placed by Mr. Dalveer Bhandari that arose directly under the Rajasthan Rent Control Act, referred to the Constitution Bench in Smt.
Gian Devi Anand vs Jeevan Kurnar & Ors.
, The facts therein were that the defini tion of tenant under the unamended Delhi Rent Control Act, similar to Section 3(vii)(a) of the Act was in vogue in the Delhi Rent Control Act, 1958.
The premises in question therein was commercial premises.
The definition of tenant was amended with retrospective effect.
The contention raised was that the amended Act accords heritability to residential tenancy while omitting the benefit to commercial or business tenancy.
The legal representatives of the deceased tenant, did not acquire heritable interest in the commercial tenancy under that Act.
A.N. Sen, J. speaking for the Constitution Bench surveyed the case law in extenso and upheld the view in Darnadilal 's case.
It was held at p. 24 to 25 thus: "For an appreciation of the question it is necessary to understand the kind of protection that is sought to be afforded to a tenant under the Rent Acts and his status after the termination of the contractual tenancy under the Rent Acts.
It is not in dispute that so long as the contrac tual tenancy remains subsisting, the contractual tenan cy creates heritable rights; and, on the death of a 14 contractual tenant, the Heirs and legal representatives step into the position of the contractual tenant, and in the same way on the death of a landlord the heirs and legal represen tatives of a landlord become entitled to all the rights and privileges of the contractual tenancy and also come under all the obligations under the contractual tenancy.
The Rent Acts seek to preserve social harmony and promote social justice by safeguarding the interests of the tenants mainly and at the same time protecting the legitimate interests of the landlords.
Though the purpose of the various Rent Acts appear to be the same, namely, to promote social justice by affording protection to tenants against undue harassment and exploitation by landlords, providing at the same time for adequate safeguards of the legitimate interests of the landlords, the Rent Acts undoubtedly lean more in favour of the tenants, for whose benefit the Rent Acts are essentially passed.
It may also be noted that various amendments have been introduced to the various Rent Acts from time to time as and when situation so required for the purpose of miti gating the hardship of tenants . .
Though provisions of all the Rent Control Legislation is that a contractual tenant on the termination of the contractual tenancy is by virtue of the provisions of the Rent Acts not liable to be evicted as a matter of course under the ordinary law of the land and he is entitled to remain in possession even after determination of the contractual tenancy and no order or decree for eviction will be passed against a tenant unless any ground which entitles the landlord to get an order or decree for possession specified in the Act is established.
In other words, the common feature of every Rent Control Act is that if affords protection to every tenant against evic tion despite termination of tenancy except on grounds recog nised by the Act and no order or decree for eviction shall be passed against the tenant unless any such ground is established to the satisfaction of the Court . " (5) The seven Judges Bench of this Court reported in V. Dhanpal Chettiar vs Yesodai Ammal.
; while considering the effect of termination of the tenancy under Section 106 of Transfer of Property Act vis a vis right of the tenant under T.N. Buildings (Lease & Rent) Control Act, 1960 held that 'various State Rent Control Acts make serious encroachment in the field of freedom of 15 contract.
It does not permit the landlord to snap his rela tionship with the tenant merely by his act of serving a notice to quit on him.
In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and at the same time is deemed to be under all the liabilities such as payment of rent etc., in accordance with law.
Similarly while considering the lan guage of Section 10(1) of the A.P. Building (Lease, Rent and Eviction Control) Act, 1960 similar to Section 13(1) of the Act, whether the statutory lease is to be terminated by issuance of notice under Section 106 of the Transfer of Property Act, it was further held at p. 352 B that "even a special provision is provided by way of abundant precaution only that without this a tenant continuing in possession after the termination of the contractual tenancy and until an eviction order is passed against him, continues on the same terms and conditions as before and he cannot be evicted unless a ground is made out for his eviction according to the State Rent Act".
In Gian Devi Anand 's case the Constitu tion Bench further held at p. 32 F that: "The termination of the contractual tenancy in view of the definition of tenant in the Act does not bring about any change in the status and legal position of the tenant, unless there are contrary provisions in the Act; and the tenant no with standing the termination of tenancy does enjoy an estate or interest in the tenanted premises.
This interest or estate which the tenant under the Act, despite termination of the contractual tenancy, continues to enjoy creates a heritable interest in the absence of any provision to the contrary . at p. 33E to G it was held that: As the status and rights of a contractual tenant even after determination of his tenancy when the tenant is at times described as the statutory tenant, are fully protected by the Act and the heirs of such tenants become entitled by virtue of the provisions of the Act to inherit the status and position of the Statutory tenant on his death, the LegislatUre which has created this right has thought it fit in the case of residential premises to limit the rights of the heirs in the manner and to the extent provided in Sec tion 2(1) (iii).
It appears that the Legislature has not thought it fit to put any such restrictions with regard to tenants in respect of commercial premises in this Act." 16 at p. 35D to G, it was observed that: So long as the contractual tenancy of a tenant who carries on the business continues, there can be no question of the heirs of the deceased tenant not only inheriting the tenancy but also inheriting the business and they are entitled to run and enjoy the same.
We have earlier held that mere termination of the contractual tenancy does not bring about any change in the status of the tenant and the tenant by virtue of the definition of the 'Tenant ' in the Act and the other Rent Acts continue to enjoy the same status and posi tion unless there be any provisions in the Rent Acts which indicate to the contrary.
The mere fact that in the Act no provision has been made with regard to the heirs of tenants in respect of commercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, does not indicate that the legislature intended that the heirs of the tenants of commercial premises will cease to enjoy the protection afforded to the tenant under the Act . . at p. 36 B to 37 A it was concluded that: We are of the opinion that in case of commercial premises governed by the Delhi Act, the Legislature has not thought it fit in the light of the situation at Delhi to place any kind of restriction on the ordinary law of inheritance with regard to succession.
It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a whole.
It might have been open to the Legislature to limit or restrict the right of inheritance with regard to the tenancy as the Legislature had done in the case of the tenancies with regard to the residential houses but it would not have been open to the Legislature to alter under the Rent Act, the Law of Succes sion regarding the business which is a valuable heritable right and which must necessarily devolve on all the heirs in accordance with law.
The absence of any provision restrict ing the heritability of the commercial tenancies notwith standing the determination of the contractual tenancies will devolve on the heirs in accordance with law and the heirs who step into the position of the deceased tenant will continue to 17 enjoy the protection afforded by the Act and they can only be evicted in accordance with the provisions of the Act.
There is another ' significant consideration which, in our opinion, lends support to the view that we are taking.
Commercial premises are let out not only to individuals but also to Companies,.
Corporation or anybody with juristic personality, question of the death of the tenant will not arise.
Despite the termination of the tenancy, the Company or the Corporation or such juristic personalities, however, will go on enjoying the protection afforded to the tenant under the Act.
It can hardly be conceived that the Legisla ture Would intend to deny to one class of tenants, namely, individuals the protection which will be enjoyed by the other class, namely, the Corporations and Companies and other bodies with juristic personality under the Act.
If it be held that commercial tenancies after the termination of the contractual tenancy of the tenant are not heritable on the death of the tenant and the heirs of the tenant are not entitled to enjoy the protection under the Act, an irrepara ble mischief which the Legislature would never have intended is likely to be caused.
" (6) On the facts of the case it was held that the tenant who continues to remain in possession even after the termi nation of the contractual tenancy till a decree for eviction against him is passed, continues to have an estate or inter est in the tenanted premises and tenancy rights in respect of commercial premises are heritable.
There is no provision in the Act regulating the rights of its heirs to inherits the tenancy rights of the tenanted commercial or business premises.
The tenancy rights devolved on the heirs under the ordinary law of succession.
Accordingly it was held that the tenancy rights of Wasti Ram devolved on all the heirs of Wasti Ram on his death.
The ratio with equal force applies to the facts of this case.
The unamended definition of tenant under section 3(vii) of the Act reads thus: "tenant" means the person by whom the rent is, or but for a contract express or implied would be, payable for any prem ises and includes any person holding or occupying the prem ises as a sub tenant, or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act.
" 18 This definition is mutatis mutandis same as the one defined under Madhya Pradesh Act and also the Delhi Rent Act.
Equally it would be tile same under the amended clause 'a ' of section 3(vii) with slight elongation.
Under the heirs of the deceased tenant are entitled to succeed, not only to his business, but also to his tenan cy rights under the Rent Act which protects the heirs from ejectment except in accordance with that Act.
Therefore, despite the termination of the tenancy, the tenancy rights are heritable and the heirs of the tenant are entitled to enjoy the protection of the Act.
(7) The ratio in Bhavarlal Labhchand Shah vs Kanaiyalal Nathalal Intawala, does not help the re spondent.
The facts therein was that the tenant by testimen tary disposition "will" bequeathed his occupancy rights in the tenanted property in favour of the stranger legatee.
The question was whether such a legatee is entitled to the benefit of continuance of tenancy under Bombay Rents, Hotel and Lodging House Rules Control Act.
It was held that since the bequest was in favour of the third party, the testator thereby, cannot confer rights under the provisions the Rent Act on the stranger who was not a member of the family.
The march of law culminated in Gian Devi Anand 's case knocked of the bottom of A.C. Chaterjee 's ratio.
Simi larly the foundation in Sita Ram vs Govind, [1969] Weekly Law Notes p. 108; Balkesh and another vs Shanti Devi and others, reported in 1972 Rent Control Tribunal p. 285 and Mohan Lal vs Jaipur Hosiery MIlls Pvt. Ltd. reported in 1974 Rent Control Journal p. 240 has been shaken and no longer remain to be good law.
(8) Admittedly Smt.
Anandi was inducted into possession of the demised property under a contract of tenancy which was determined by issuance of notice under Section 106 of Transfer of Property Act.
Even thereafter she continued to remain in possession as statutory tenant under the Act.
The finding of Trial Court as affirmed by the first appellate court is that the respondent landlord after termination of tenancy received the rent from her and thereby she became tenant holding over till date of her death.
Anandi enjoyed the status as a statutory tenant of the premises even after the determination of the tenancy.
Notwithstanding the termination of the contractual tenancy the jural relationship of the landlord and tenant between the respondent and Smt.
Anandi under the Act was not snapped off.
The heritable property or interest in the lease hold right in the tenancy continued to subsist in the tenant Anandi.
19 On her death, the rights to succession to an estate of the deceased owner vested immediately on his/her than near est heirs and cannot be held in abeyance except when a nearer heir is then in the womb.
The vested right can not be divested except by a retrospective valid law.
The appellants by virtue of intestate succession under , being Class I heirs, succeeded to the heritable inter est in the lease hold right of a demised premises held by Smt.
Anandi.
They, thereby, stepped into the shoes of the tenant.
They continued to remain in possession as on the date of the suit as statutory tenants.
Thereby, they are entitled to the protection of their continuance as a statu tory tenant under the Act.
The succession having been opened to the appellants and succeeded in September, 1966 to the estate of the tenant without any hiatus and restriction on the heritable interest in the lease hold right held by the tenant Smt.
Anandi, the Amendment Act being admittedly prospective in operation, does not apply to the facts of the case and does not have the effect of divesting their vested rights in the lease hold held by the tenant.
They are enti tled to enjoy the tenancy rights without any restrictions or hedge put by the Amendment Act.
We, thereby, hold that the Amending Act does not apply to the facts of this case.
But the appellants succeeded to the heritable interest in the lease hold right in the demised premises governed by the Act subject to the rights and limitations prescribed under the Act and also subject to the rights in favour of the respond ent created under section 13(1) (a) to (k) and other provi sions of the Act.
(9) Accordingly, we have no hesitation to hold that the appellants are entitled to remain in possession of the demised shop in question till the appellants are duly evict ed in accordance with the provisions of the Act as amended from time to time.
The appeal is accordingly allowed and the decree and judgment of the High Court is reversed and that of the Trial Court is restored.
The suit, accordingly, stands dismissed but in the circumstances, each party is directed to bear their own costs throughout R.N.J. Appeal dis missed.
| IN-Abs | Anandi Bai wife of Appellant No. 1 and mother of Appellant No. 2 had a lease of suit shop in Jaipur for a period of 11 months beginning May 1, 1964 wherein she was carrying on small kirana business.
The Respondent landlord terminated the lease by a notice issued under section 106 of the Transfer of Property Act at the end of the term of the lease.
However Anandi Bai continued to remain in possession and the landlord went on accepting the rent even after the termination of her tenancy and thus she became a statutory tenant.
She died sometime in September 1966.
Respondent landlord initiated action for ejectment of her heirs the appellants herein from the demised shop on the ground that on the death of Anandi Bai the appellants have no right to continue in occupation of the premises.
The trial court dismissed the suit on the finding that Anandi Bai paid and the respondent accepted the rent after the determination of the lease, so she was holding over.
The first appellate court confirmed the decree of the trial court though on different grounds.
Second appeal by the plaintifflandlord was allowed by the High Court holding that since the heirs of the tenant had not carried on the business with Anandi Bai during her life time as family business they were not entitled to the benefits of the definition of 'tenant ' as amended by Section 3(ii) of the Rajasthan Premises (Control) of Rent and Eviction) Amendment Act, 14 of 1976 and accord ingly reversing the decrees of the courts below, the suit for ejectment of the appellants from the demised shop was decreed.
Allowing the appeal by special leave against the Judg ment and Decree of the High Court preferred by the heirs of the tenant Anandi Bai, this Court, HELD: Under Hindu Succession Act the heirs of the de ceased tenant are entitled to succeed, not only to his/her business but also to his/her tenancy rights under the Rent Act which protects the 7 8 heirs from ejectment except in accordance with that Act.
Therefore, despite the termination of the tenancy, the tenancy rights are heritable and the heirs of the tenant are entitled to enjoy the protection of the Act.
[18A B] Admittedly Smt.
Anandi Bai was inducted into possession of the demised property under a contract of tenancy which was determined by issuance of a notice under Section 106 of Transfer of Property Act.
Even thereafter she continued to remain in possession as statutory tenant under the Act.
The finding of the Trial Court as affirmed by the First Appel late Court is that the respondent landlord after termination of tenancy received the rent from her and thereby she became tenant holding over till the date of her death.
[18F G] The appellants by virtue of intestate succession under Hindu Succession Act, being Class I heirs, succeeded to the heritable interest in the lease hold right of the demised premises held by Smt.
Anandi Bai.
They, thereby, stepped into the shoes of the tenant.
They continued to remain in possession as on the date of the suit as statutory tenants.
Thereby, they are entitled to the protection of their con tinuance as a statutory tenant under the Act.
[19B C] J.C. Chaterjee vs Sri Kishan, ; ; Damadi lal & Ors.
vs Parashram & Ors.
, ; Anand Niwas (Pvt.) Ltd. vs Anandji Kalyanji Pedhi & Ors., ; ; Smt.
Gian Devi Anand vs Jeevan Kumar & Ors., ; V. Dhanpal Chattiar vs Yesodai Ammal, ; Bhavarlal Labhchand vs Kanaivalal Nathalal Intawala, , referred to.
|
ivil Appeal No. 1416 of 1975.
From the Judgment and Order dated 2.12.
1974 of the Madhya Pradesh High Court in M.P. No. 565 of 1974.
Sakesh Kumar and S.K. Agnihotri for the Appellants.
S.S. Khanduja, Y.P. Dhingra and B.K. Satija for the Respondents.
J. This is an instance of how a resourceful mind can find ingenious method to circumvent the law.
The first respondent in this case is the Home Decorators & Finance (P) Ltd. of which the second respondent is the Managing Director.
The appellant Government collects enter tainment tax under the Entertainment Duty and Advertisement Tax Act, 1936 (hereinafter referred to as the 'Act ') from the organisers of the entertainment programmes whenever the entries to such programmes are charged.
The entertainment tax is recovered at the rate of 36 per cent of the fee charged.
In order to evade this tax, the respondents evolved a stratagem and organised two 1002 performances called "Mahendar Kapoor Nite" in a local audi torium, namely, Manas Bhawan Hall Wright Town Jabalpur, on 7th and 8th July, 1974.
Although the Articles and the Memo randum of Association of the 1st Respondent did not permit them to do so, with a view both to bring the said programmes within the scope of the Articles of Association and to evade the payment of the tax, the respondents issued advertise ments of the programmes in a local newspaper giving out that the programmes were being arranged to encourage savings.
The scheme was that all those who wanted to attend the programme will become members of a group which they called "Nav Nirman Group" by paying an admission fee of Rs.2 which was non refundable and a membership subscription of Rs. 10 which was refundable after 10 years.
The advertisements also stated that since there was an overwhelming demand, the performance would be staged on two dates, namely, the 7th and 8th July, 1974 and that the membership forms would be available at the site on the dates concerned and that the entry to the pro gramme would be strictly on the production of the invitation card as well as the membership card.
It appears that on July 7, 1974 and July 8, 1974, as many as 3189 and 4649 gullible persons respectively fell victims, and paid both the admis sion fee as well as the membership subscription.
The re spondents collected both the membership forms as well as the receipts for payment from the said persons at the time of giving them the entry to the programme.
The result was that the persons concerned were left neither with the membership form nor with the receipts for the money they had paid.
Needless to say that although the promise was that such performances would be repeated for 10 years hence, and the members concerned would have an entry to the programmes on the basis of the membership cards, neither the membership cards were issued, nor the admission fee or the membership subscription were returned to the members, nor the perform ances were staged.
In effect, the respondents made good with the money they had collected ostensibly for promoting sav ings.
Thus both the members of the public were defrauded of their moneys as well the State Government of their taxreve nue.
The District Excise Officer who was also the Enter tainment Tax Collector under the said Act, sensing the ploy had, however, taken precaution to check, on both the said dates, the receipts and the amounts received by the respond ents and had dexterously prepared a panchnama at the spot.
He determined the amount of tax recoverable on the said collections, and issued to the respondents two separate 1003 notices on July 9, 1974 demanding the tax along with the dutysurcharge thereon for the collections made on 7th and 8th July, 1974 respectively.
The total amount so demanded by both the notices was Rs.35,429.76.
The respondents challenged the notices by a writ petition under Article 226 of the Constitution before the High Court.
The High Court by the impugned decision held that the assessment of the tax made by the Officer was arbitrary because, firstly, there was no allegation that the invitation cards which were issued were sold, and secondly, the subscription fee of Rs. 10 recovered from each member was not divided by 10 which it was necessary to do, for the entertainment tax could be collected only on Re. 1 per year for the next 10 years.
The High Court, therefore, allowed the writ petition and quashed the notices.
It also appears that the respondents had paid Rs.5,000 in part payment of the amount demanded under the notices.
The High Court, therefore, also directed the appellants to refund the said amount as being "exacted" from the respondents.
We are afraid ,.
the High Court completely missed the crucial point and, therefore, mis directed itself.
The admitted facts as stated above were that the respondents had collected in all Rs. 12 from each of the members out of which Rs.2 were non refundable being the so called admission fee and Rs. 10 were refundable only after 10 years.
The "members" were not issued the membership cards nor were they left either with any trace of their membership forms or receipts for the payments they had made.
Instead they were handed over entrance slips during interval which were col lected at the door.
The result was that even if the "mem bers" were to claim an entry for programmes, if any in future, they would not have been able to do so.
As it hap pened further, in fact, no programmes were ever staged at any time thereafter.
The so called 'Nav Nirman Group" did not have any legal existence.
It was an amorphous body.
The rules and regulations framed for the said body further showed some interesting features as follows: "For the purpose of Prizes there shall be Five Sub groups of one lakh members each.
After every Sub group of one lakh members there shall be total 4280 prizes divided into 20 half yearly draws and valuing total amount of Rs.5 lakhs.
The date of the First Draw will be announced through News papers.
Every member, irrespective of whether he has received any 1004 prize(s) or not shall be entitled to the refund of his deposit of Rs. 10 after the maturity of the duration of the group, i.e., 10 years, along with a bonus of Rs.2 on surren der of the official Receipt cum Membership Evidence issued by the Company.
Duration of the Group shall be commenced from the date of the 1st Draw.
x x x x x x For the purposes of Bumper Draw there shall be 50 SubGroups of 10,000 continued members each and after every such sub group there shall carry various valuable prizes to the tune of about Rs.2,50,000.
Members of incomplete subgroup of 10,000 continued members shall be given an extra bonus of Rs.25 in the shape of articles, the list of which shall be declared nearing maturity of the Group, instead of partici pating in Bumper Draw.
X X X X X X Every member will be issued a receipt while being admitted as a member and the number of such receipt shall be his membership Number also.
No separate pass book will be is sued.
The receipt itself shall be treated as final and conclusive evidence of membership.
X X X X X X After the completion of 1st sub group one lakh members the First Draw shall be conducted, but in case total membership of the sub group does not attain the target necessary to form the sub group before date of the draw (which shall be announced through Newspapers) then the remaining membership number of the sub group shall be treated as the Company 's membership numbers and any prize/benefit accruing through these numbers as a result of the draw shall remain the Company 's property.
The Company may allot such membership numbers subsequently to the new applicants for the remaining period with the subsequent benefits only.
The same rule shall apply to every further sub group of one lakh members.
X X X X X X 1005 Membership of the Group for 10 years and cannot be cancelled or withdrawn by the member before maturity of the Group.
Prizes and Film Star show are added incentive and not Part of the Scheme and are not binding on the Company under circumstance beyond control.
X X X X X X The management may change any article of the declared prize looking to the time and circumstances prevailing at the time of the particular draw.
X X X X X X The management of the Company reserves the right to add, alter, or amend the rules and regulations as and when neces sary for the efficient and proper conduCt of the group as well as in compliance with the Government rules and regula tions which may come in force hereafter and the same shall be binding on all the members.
" It will be apparent from the Scheme that it was not meant for promoting music.
It was a pure business preposition meant to collect money and earn profits, and it was to be used as a device to evade the entertainment duty.
The re ceipts and/or the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door.
In the circumstances, whatever be the description given to the receipts/cards they were liable to the enter tainment duty.
The impugned notices were, therefore, proper ly issued by the appellants.
We are, therefore, unable to accept the reasoning of the High Court that Rs. 10 collected by the respondents were the membership subscription or that the duty could not have been collected at a time on Rs. 10.
Hence, we allow the appeal and set aside the impugned decision with costs.
T.N.A. Appeal allowed.
| IN-Abs | The respondents organised two music programmes by formu lating an ostensible savings scheme under which the entry to the programme was open to persons on becoming members of the scheme by paying an admission fee of Rs.2, non refundable, and membership subscription of Rs. I0, refundable after 10 years.
The entry to the programme was strictly on the pro duction of invitation card as well as membership card.
Many persons paid the admission fee and the membership subscrip tion.
At the time of giving entry to the programme, the respondents collected the membership forms and money re ceipts from the persons concerned as a result of which they were left neither with membership form nor with the money receipts.
Although the promise was that such programmes would be repeated for 10 years yet no such performances were arranged.
The result was that members of the public were defrauded of their money and the State Government of its tax revenue.
The Entertainment Tax Collector checked the receipts of the respondent on both the dates of performances and accord ingly issued notices to them demanding the tax and the duty surcharge thereon under the Madhya Pradesh Entertain ments Duty and Advertisement Tax Act, 1936.
The respondents challenged the validity of the notices by filing a writ petition in the High Court which allowed the petition and quashed the notices by holding that the assessment of tax was arbitrary because (i) there was no allegation that the invitation cards were sold; and (ii) 1001 membership subscription of Rs. I0 was not divided by 10 since the entertainment tax could be collected only on Re. 1 per year for the next 10 years.
Hence this appeal by the State.
Allowing the appeal and setting aside the decision of the High Court.
this Court.
HELD: The Scheme was not meant for promoting music.
It was a pure business preposition meant to collect money and earn profits.
and it was to be used as a device to evade the entertainment duty.
The receipts and the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door.
Therefore.
whatever be the description given to the receipts or cards they were liable to the entertainment duty.
The impugned notices were proper ly issued by the appellants.
Since the High Court completely missed the crucial point and, therefore, mis directed it self, it is not possible to accept its reasoning that Rs. 10 collected by the respondents were the membership subscrip tion or that tile duty could not have been collected at a time on Rs. 10.
[1005E F; 1003D]
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