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1. Appeal by special leave from the judgment and order dated November 8, 1957, of the Deputy Custodian General, Evacuee Property, Now Delhi Revision Petition No. 17 R/55 of 1955. The appellants who are admittedly displaced persons from West Pakistan were granted quasi permanent allotment of 24 standard acres and 15 3/4 units in the village of Raikot in Ludhiana District in 1949. Their father Sardar Nand Singh who was R. 697 dated March 24, 1955 the Central Government decided to acquire all evacuee property allotted to displaced persons by the Custodian under the notification of the Government of Punjab in the Department of Rehabilitation, No. 4892 6 dated July 8, 1949, except certain categories of property specified in the schedule. Sub section 2 of section 12 of the Act (1) I. 0. 333 provides that on the publication of the notification under sub section 1 the right, title or interest of Mr. Achhruram then referred to the "Conditions" on which allotments of land may be made under the notification referred to in sub section10(a) and pointed out that under condition No. 6 the Custodian or rehabilitation authority would be competent to resume or cancel an allotment only on one of the grounds set out in that condition. He said that the cancellation of the allotment in favour of the appellants was impermissible inasmuch as it was not " He points out that in the first place, the rule speaks of land 'entrusted ' to the manager and, therefore would operate only if entrustment is established. He then says that this rule restricts
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C. March 22. 1961. Appeal from the judgment and decree dated April 22, of 1953, of the Patna High Court in Appeal from Original Decree No. 52 of 1957. This appeal by certificate granted is directed against the judgment of the High Court of Judicature at Patna dated April 23, 1953, confirming that of the Subordinate Judge, Dhanbad, dated November 30, 1946. The plaintiffs and the defendant are adjoining colliery owners at Kujama. On August 2, 1,894, Raja of Jharia granted mukarrari lease of the coal and coal L.R 50 Cal 394 6398 point where four villages Pandebera, Jharia Khas, Lodhna and Kujama actually meet. On June 10, 1901, Jugal Kishore Lal, that is, the predecessor in interest of the appellant demised a plot of 96 bighas carved out from his leasehold to Mathews under a deed exhibit C(1). Mathews in turn demised under exhibit D the said land of 36 acres to Walji Khetan representing the appellant. One interesting feature is that a map has been referred to in each of the documents and the said map shows that the line drawn from point A and Marlad Lallad Marlad who It is the duty of a plaintiff to establish the suit within the time of the date when lie first learns in whose possession it is. The question is, on whom the burden to prove the said knowledge lies? The answer will be clear if the article is read as follows: A person having the right to the possession of a property wrongfully taken from him by another can file a suit to recover the said specific moveable property or for compensation for wrongful taking or detaining of the suit property. It is common case that article 48 of the Limitation Act governs the period of limitation in respect of the present suit. I. 502 worked by the appellant by open quarry system. The evidence of this witness has been accepted by the learned Subordinate Judge, and the High Court also accepted his evidence, though in its view it was not very satisfactory. In the cross examination, two suggestions were made to him, namely, that in 1932 there was a survey of the plaintiffs ' and defendants ' coal land by the Mines Department and that Seam Nos. 11 and 12 were (1) Pat. 312. (2) (1869) 12 M.A. 292. He denied that he had any knowledge of the said two facts. He also stated that tiffs with which the Defendant had nothing to do. In paragraph 11 of the plaint, the plaintiffs allege that under the Indian Mines Act and the Rules and Regulations made thereunder the plaintiffs are
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M/s. Daulatram Rameshwarlal, a firm registered under the Indian Partnership Act (referred to later in this judgment as "sellers ") are registered dealers under section 11 of the Bombay Sales Tax Act. In their return of turnover for the period from April 1, 1954 to March 31, 1955, they claimed exemption from Sales Tax in respect of sales of cotton of the total value of Rs. 6,47,509 1 6 on the ground that these sales were oil FOB contracts, under which they continued to be the owners of Control in ship carrying goods is not disputed before us. He relies on three circumstances to convince us that the sellers and their buyers agreed in these sales that the property will pass to the buyer even before shipment. The first circumstance on which he relies is that the bill of lading was taken in the name of the buyer. This, in our opinion, shows nothing. The second circumstance to which our attention has been drawn is that there was no agreement between the buyer and the sellers that the goods would be the buyer 's property at the point of time when they crossed this frontier. It was the sellers who received the 33 that though the sales were on FOB contracts property in the goods would pass to the buyer at some point of time before shipment. Section 10(b) provides for the levy of a purchase tax on the turnover of purchase of goods specified in column I of Schedule B, at the rates, if any, specified against such goods in column 4 of the said schedule, "where a certificate under cl. 133. (b) of section 8 has been furnished in respect of such goods and the purchasing dealer does not show to the satisfaction of the Collector that the goods have been despatched
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Ram Singh appeals, by special leave, against the order of the Allahabad High Court dismissing his appeal and confirming 204 his conviction and sentence of death, under section 302, I.P.C., by the Session Judge, Etawah. The prosecution case, in brief, is that due to enmity, the appellant caused injuries to Sheo Sahai, who was sleeping in his cattle shed in village Bhadurpur Ghar, with " With respect to the learned Judges, these observations are not very consistent. It may be mentioned that Ujagar Singh was on the field, according to his statement, for protecting the crop from the depradations of neel gais. They damage the leaves of the plants and have no partiality for tall plants alone. In fact, the smaller the plants, the easier it must be to graze. The learned Judges have not stated those considerations, if any, in addition to the improbability P. 13, who deposed that Ujagar Singh stated that Ram Singh was taking his bath at night
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J. V. Appeal by special leave from the Award dated March 10, 1959, of the Industrial Tribunal. Kozhikode, in I.D. Civil Appeal No. 50 of 1961. This is an appeal to the Court of the State of Kerala. The brief facts necessary for present purposes are these. The appellant in a saw mill carrying on business in Kozihkode in 824 the State. One Sankaran was in the employ of the appellant as a crosscutter. It is said that on June 21, 1958, sankaran came drunk to they mill and abused the Engineer, the Secretary and others and threatened them with physical violence. He was caught hold of by other workmen and taken outside. On June 22, 1958 he came back to the mill at the same time for taking his wages for that week and abused or attempted to assault either the Engineer or the Secretary or other officers. The same day he was taken out of the mill and to terminate the service of an employee and if the terminataton of service is a colourable exercise of the power or as a result of victimisation or unfair labour praction the industrial tribunal would have the jurisdiction to intervene and set aside such termination. Learned counsel for the appellant however urges that the employer was empowered to take action under r. 18(a) of the Standing orders and having taken action under that rule, there was nothing for it to justify before the tribunal. It satisfied itself by producing two witnesses but withholding the important witnesses on this question. The reason given by the appellant in the order terminating the services of Sankaran of July 8, 1958, namely, that the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank and file of the employees in general and also that maintenance of discipline in the undertaking would be prejudiced if Sankalan were retained in service, cannot be accepted at its face value; so that the necessity for an inquiry intended to be held for misconduct actually charged might be done away with 9. Learned counsel for the appellant also drew our attention to another decision of this Court in 830 The Pat
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I. Appeals by special leave from the judgment and order dated January 20, 1960 of the Allahabad High Court in Criminal Government Appeals Nos. 160 to 162 of 1960. Briefly stated the allegations against the appellant were that he either stole or secreted five registered letters and that he fabricated three receipts showing that the registered letters were received by the addressees. These three appeals arise out of three separate trials before the " The first act referred to in this section is theft. Section 52 of the Act runs thus : "Penalty for theft, dishonest, misappropriation, secretion, destruction, or throwing away of postal articles. Whoever, being an officer of the Post Office, commits theft in respect of, or dishonestly misappropriates, or, for any purpose whatsoever, secretes, destroys or throws away, any postal article in course of transmission by post or anything contained therein, shall be punishable " Before the High Court could take into consideration the circumstance that as between himself and his father the appellant had a better opportunity to procure and get at postal articles it had to find affirmatively that the almirah was in the exclusive possession of the appellant. Dealing with this question, we are of the view that the appellant alone had the opportunity and the means to secure such a large number of postal articles. We cannot, therefore, accept the first part of this contention The appellant was found to be in possession of the
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Amarchand N. Shroff deceased. Appeal from the Judgment and order dated October 10, 1958, of the Bombay High Court in Income tax Reference No. 22 of 1 958. The question referred was answered in the negative and against the Commissioner of Income tax who is the appellant in these appeals, the respondents being the heirs and legal representatives of the deceased. The appeals relate to the assessment years 1950 51, 1951 52, 1952 53, 1953 54 and 1954 55. The order of the High Court stated the facts of the case are as follows : In 1919, when Amarchand was a partner in a firm of solicitors. The firm kept its accounts on cash basis. Thereafter the partnership was carried on by Mangaldas and Hiralal up to November 30, 1949, and 22 (1) or before a notice is served on him under sub sections 2 of section 22 or section 34 then the Income tax Officer may proceed to compute or assess the total income of the deceased person as if the heirs and legal representatives were the assessees Sub section (3) provides that when a person dies before a return is furnished by him under the provisions of section 2 or under section 34, as the case may be, his executor, administrator or other legal representative shall, on the serving of the notice which would have had to be served upon the deceased if he had not died, comply therewith, and the income tax officer may determine the tax payable by him on the basis of such assessment, and for this purpose may by the issue of the,, appropriate notice, or by the publication of the appropriate notice under sub section (2) of Section 22 or Section 34, the Income Tax Officer may require 24B no assessment can be made in respect of the income of a person after his death. Reliance was next placed on certain observations in a judgment of the Bombay High Court in re. Ellis C. Reid vs Commissioner of Income tax, Bombay(1). Any income received in the year subsequent to the previous or the account year cannot be called income received by the person deceased. That was a case where a consulting engineer discontinued his practice as such from February 15, 1938, and he received a sum of money representing the outstanding 'professional fees earned by him prior to the discontinuance of his practice but realised by him during the Calendar year which was the previous year. It was held that this income was taxable. The assessee in that case was still alive when the income (1) (2) , 445. 708 was received by him and section 24B had no application We hold that the income and assets of the deceased Amarchand
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. Appeals, Nos. 95 December 20, 1963. Appeals by special leave from the judgment and order dated May 2, 1960 of the Kerala High Court in Income tax case No. 275 276 of 1963. These two appeals arise out of assessments of the appellant to income tax for the years 1948 49 and 1949 50. The appellant claimed relief under section 25(4) contending that it had transferred its business to a limited company with effect either from November 13. 1947 or February 13, 1948, by an instrument executed on February 7, 1948. The claim was rejected 6. We now proceed to set out the facts of the case in a chronological order. It appears that a firm bearing the same name as that of the appellant, that is, Sait (or Shah) Nagjee Purshotham and Company was started in 1902 and was reconstituted by an agreement of partnership dated December 6, 1918. On the last mentioned date it carried on business in piece goods, yarn, and other articles at Calicut with branches in Madras and Bombay. It also subsequently started a business of manufacture and sale of umbrellas but the precise date of This agreement of Partnershipbetween (1)Nagjee. (2) Narayanjee(3) Maneklal and (4) Hemchand(hereinafter called the partners) witnesseth asfollows: Whereas Partners 1 to 4 have been carrying on a business as partners from the beginning of Samvat 1994 (=October November 1937) in the business of the manufacture and sale of Soaps under the name of 'The Vegetable Soap Works ' Proprietor Sait Nagjee Purushotham & Co., and in the manufacture 1 of annexure C I and contended that itprovided for the continuance of the old firm, that is, thefirm constituted by the instrument of December 6, 1918 and hence no new firm had been created. We think that this contention is without foundation. Clause 1 says that "The Firm shall continue to be of old". The word "old" refers to the partnership orally brought into existence in October/November 1937 to which reference is made in the first recital and to put down the terms of which in writing, annexure c I was executed. There is no mention of the firm which was constituted by annex " Now when the business on which tax was charged under the Act of 1918 which, it is not disputed, happened in this case was discontinued in 1937 it could not have been carried on April 1, 1939. What was then carried on must have been some other business. Annamalai Chettiar vs Commissioner of Income tax, Madras(1) where it was held that when a business carried on in one unit is disintegrated and divided into parts, the parts are not the whole even though all the parts taken together constitute the whole. That was a case of a joint family business which " The terms relevant to our purpose were: 1. Sometime in the year 1932 or thereabout, the firm had started the manufacture and sale of soaps under the name of "The Vegetable Soap Works" Proprietors Sait Nagjee Purushotham & Co. Soap and Umbrella Merchants. In the deed of 1918, it was stated that this firm carried on business in Calicut, having branches at Madras and Bombay. In 1937, one Hemchand a stranger to the family was admitted as a new partner, and on May 30, 1939, two 110 " 2. The question in this case is whether the appellate firm was entitled to the benefits of section 25 (4) of the Income tax Act, and if so, to what extent. The answer to the question depends on (a) whether the business on which tax was paid under the provisions of the Indian Income tax act, 1918 had discontinued at any time before 1948 or (b) whether there was a succession by another person for the person who was carrying on business on April 1, 1939. ' Both deeds provided again that the partnerships would not be dissolved by the death or " Sub section (4) "Where the person who was at the commencement of the Indian Income tax(Amendment) Act, 1939 (VII of 1939), carrying on any business, profession or vocation on which tax was at any time charged under the provisions of the IIT Act, 1918, is succeeded in such capacity by another person, the change not being merely a change in the constitution of a partnership, no tax shall be payable by the 116 first mentioned person in respect of the income, profits and gains of the period between the end of the previous year and the date of such succession, and such Discontinuance of business is not a mere change in the constitution of the partnership without there being a succession. Section 25 provides for discontinu ance of business. A firm discontinuing its business may be assessed in the manner provided by section 25 (1) in the year of account in which it discontinues its business; it may also be assessed under section 26 (2) of the Income tax Act. In either case it is the assessment of the income of the firm. Section 26 recognises the existence of a firm as an asses sable unit and discontinuance. It is only this one entity to which the provisions of section 25 must be applied and in respect of which it must be considered whether there was a discontinuance or a succession at an earlier period. Section 25 (3) and (4) do not apply where the business was not in existence before the Act of 1922 came into force. A clear authority for this proposition is to be found in the decision of the Bombay High Court in Ambalal Himatlal vs Commissioner of Income tax and Excess Profits Tax, Bombay North(1). In that case This court held that sub section(4) of section 25 could not be applied to the case of Figgies 's case. This court observed: "The section does not regard a mere change in the personnel of the partners as amounting to succession and disregards such a change. This Court also pointed out that the position is a little different under the Income tax Act where a firm is charged as an assessable entity distinct from its partners who can also be assessed individually. In other words, though a firm was to be regarded as an entity for the purpose of the Income 38. Says the learned Chief ' Justice in the former case: "It is open to us not merely to look at the documents themselves, but also to consider the surrounding circumstances so as to arrive at a conclusion as, to what was the real nature of the transaction from the point of view of two businessmen who were carrying out this transaction. " ' Judged from this standpoint, the entry of Hemchand was not a dissolution of the firm of Sait Nagjee Purushotham and Co. No doubt he was described as a working partner, but this, term did not mean much. He (1), there is nothing in law to preclude common partners constituting two entirely separate firms in respect of different businesses carried on by them for the purpose of
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(No. 887/1962). March 12, 1964. Appeals Nos. 268 of 1954, 203 of 1955, 4 of 1954 and 27 of 1954. Appeals from the judgment and decree dated May 2, 1960, of the Rajasthan High Court in Civil Second Appeal Nos. 884 887 of 1962. The Judgment of the Court was delivered by WANCHOO, J. K. Kapur and B.A. Garg, for the respondents (in C. G. Modi and R. Achar and K. R. P. Singh, for appellant The State of Rajasthan in respect of the liability of the former State of Dholpur under article 295(2) of the Constitution had been raised in a number of suits. One 178 of the suits, out of which appeal No. 886 has arisen, was ismissed by the trial Court. Then followed three second appeals to the High Court by the State. These second appeals were heard along with the first appeal in the high Court. The State went in appeal in three of the cases to the District Judge. The appeals of the State to District Judge were substantially dismissed while the This Court went on to point out that the Covenant was in whole or in part an act of State and could not be treated as an interim Constitution. It further held that the repeal of all laws in the covenanting States other than patiala and their replacement by the Patiala laws showed that the new sovereign did not recognise the rights of the subjects of the covenanted States arising from any law in force thereafter the State of Pepsu came into existence. After laying down the above principles, this Court proceeded to consider in that decision the particular point raised before it. That point was with respect to a clause in an agreement between the Ruler of (1) [1959] S.C.R. 729. In these circumstances we are of opinion that the new sovereign throughout this process of integration from 1948 to 1950 must be taken to have recognised the rights of the subjects and undertaken the liability, if any, of the old States. This was of course subject to any law passed by the New State provided that law was within its competence and after the Constitution came into force did not transgress the limitations contained therein. Thus by continuing the old laws, till they are repealed, altered or modified, the new State in effect undertook the liability which might arise against it by virtue R.C. 729. We therefore agree with the Full Bench that the liability lay upon the State of Rajasthan because there was recognition of the liability even on the principles enunciate in the Dalmia Dadri Cement Company 's case(1). In this view of the matter we need not express any view on the question whether the expression "Government of the corresponding Indian State" used in Art 295(
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Appeal No. 421 The authority has found that section 2(vi) includes wages prescribed by the Industrial Tribunal, and so, it has rejected the appellants ' contention that the applications made by the respondents were incompetent under section 15 of the Act. On that view, the writ petition filed by the appellant was dismissed. In regard to the question of 'limitation, the authority did not decide the said question as a preliminary question, because it held, and, in our opinion, rightly, that it was a mixed question of fact and law, and that, it had to be tried after recording evidence. It is this order which the appellant seeks to challenge before us by its present appeal by special leave. The appellant challenged the correctness of the conclusion of the authority that the decisions of the tribunal were inapplicable to the case before the Patna High Court by filing a petition under article 226 of the Constitution. The respondent did not appear. Appeal No. 251 of 1963. March 24, 1964. The short question which arises in this appeal is whether the term "wages" in the Act, as defined by section 2 of the (No. 4 of 1936) (hereinafter called 'the Act ') including wages fixed by an award in an industrial dispute between the employer and his employees. This question has to be answered in view of the judgment and order dated March 20, 1957, of the Bihar High Court in Civil Revision No. 40 of 1956. The judgment was delivered by Justice R. C. Setalvad, and R C. 15. The true legal position is that when industrial disputes are decided by industrial adjudication and awards are made, the said awards supplant contractual terms in respect of matters covered by them and are substituted for them. This question appears to have been considered by the Bombay and the Calcutta High Courts. In Jogendra Nath (1) A.I. Godse, Manager, Prabha Mills Ltd., vs R. R. Naick, Inspector, under the Payment of Wages Act(3), the Bombay High Court has interpreted section 2(vi) to include wages prescribed by the award and not as wages directed to be paid by the parties under the provisions of section 23(1)(b) of the Act, and has held that the wages prescribed in the award cannot be treated as wages under the Act before it was amended. In
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Workmen of Shaw Wallace & Co. Ltd. Appeal No. 513 of 1963. March 24, 1964. Appeal by special leave from the Award dated December 1961 of the Maharashtra Industrial Tribunal in Reference (I.T.) No. 48 of 1961. The Judgment of the Court was delivered by DAS GUPTA, J. C. Gupte, Additional Solicitor General, C. V. Dudhia, K. L. Setalvad, N. B. Mathur and Ravinder Narain, for the respondent No. 425 M. Dadachanji, O. T. Sule, Atiqur Rahman and K. C., for the appellant No. 426 M. L., and No. 427 A. Hathi and No 4 A. V., A. L, A. (2) it had been urged that the employer was an All India concern and that changing the terms and conditions of service in regard to the age of retirement in one place might unsettle the uniformity and might have serious repercussions in other branches. The Court pointed out that though this was a relevant consideration its effect had to be judged in the light of other material and relevant circumstances, and that one of the important material considerations in this connection would be to find out whether the recent trend in the Bombay region has been to fix the retirement age at 60 years, and whether the trend may be determined on industry cum region basis. The main diffi culty in accepting the Company 's case on this point, viz., the pronouncements of this Court, however, remained. If this Court had er made a mistake in making those pronouncements we would be the first to admit such mistakes and we would 5. On a consideration of all the facts and circumstances disclosed by the
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P. Appeal No. 307 of 1957. Appeal from the judgment and decree dated July 27, 1959 of the Allahabad High Court in Income tax Reference No. 68 of 1964. The Judgment of the Court was delivered by Sikri, J. Gupte, Solicitor General, R. Ganapathy Iyer and R. Sachthey, for the appellant. The question referred by the Appellate Tribunal is: "Whether on a true interpretation of clause (viii) of subsection 3 of section 4 of the indian Income tax Act the sum of Rs. 36,396/ received by the assessee as an allowance during the previous year of the assessment year 1949 50 is revenue income liable to tax under the Indian Income tax act, 1922?" The relevant facts stated in the Statement of the case are as follows: The assessee is a Hindu undivided family headed by one Sri Trivikram Narain Singh who is a descendant of one Sri Babu Ausan Singh who The Privy Council, in Commissioner of Income tax Bihar and vs Raja Bahadur Kamakhaya Narayan Singh and construed the word 'derived ' as :follows: "The word "derived" is not a term of article Its use in the definition indeed demands an enquiry into the genealogy of the product. But the enquiry should stop as soon as the effective source is discovered. And rent is not land within the meaning of the definition." This Court observed in Mrs. Bacha F. Guzdar, Bombay Commissioner of income tax, Bombay(4) as follow: "Agricultural income as in the Act is intended to refer to the revenue received by the land which is used for agricultural purposes and is either assessed to land revenue in British India or subject to a local rate assessed and collected by officers of the Crown as such: . " In Maharajkumar Gopal Saran Narain Singh vs Commissioner of Income tax, Bihar and Orissa( then the income cannot be held to be derived from land within the meaning of the definition in section 2(1)(a) of the Act. Mr. Sastri sought to distinguish those cases on the ground that the allowance here varied from year to year. He says that we must consider the quality of the income and not its periodicity. This is true, but in this case no material has been produced to show that the arrangement was in fact a payment in instalments of the value of the disputed title of the assessee 's predecessor in 1837. It seems to us that where an owner of an estate exchanges a capital asset for a perpetual annuity, it is ordinarily taxable income in his hands. The position will be different
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section V. ivil Appeal No. 325 of 1965. Appeal by special leave from the Award dated September 20, 1963 of the Central Government Industrial Tribunal, Bombay in Reference CG IT 25 of 1962. The Judgment of the Court was delivered by Hidayatullah J. Agarwala, J. B. Dadachanji, O. R. Rajagopalan and K. C. Choudhuri, for the appellants. The respondents to this appeal are the trustees of the Port of Bombay. The appellants are the workmen of the Bombay Port Trust, who are and have been 1. The Union claimed that a 12 hours ' shift should be divided into 8 hours ' work and 4 hours ' overtime as was the case with the Flotilla Crew. This claim was opposed by the Trustees. According to them, there was no breach of the provisions of the . They contended that, regard being had to the number of actual work hours, the case of shore crew at the Prince 's and Victoria Docks and the Butcher Island could not be compared with that of the crew at a Alexandra Docks the same day and that the work hours of the workmen at the Alexandra and Victoria Extra wages for overtime (1) When a worker works in an employment for more than nine hours on any day or of more than forty eight hours in any week, he shall, in respect of overtime work, be entitled to wages, (a) in the case of employment in Agriculture, at one and a half time the ordinary rate of wages; (b) in a case of any other scheduled employment, at double the ordinary standard of wages. (2) A register showing overtime payment shall be kept in form IV. (3) Nothing in this rule shall be deemed to affect the provisions of the ." The controversy Daily 51 "Daily 51 and workers "Daily work shall not be allowed to be more than 12 hours. The Port Trust can say that it will not take more than two hours extra work on any day and specify the remaining two hours as the intervals for rest. A working day of 12 hours is thus made up of hours of work and hours of rest. These periods of rest must not be periods during which the workman is on duty and inaction is due to want of work for him, but they must be pre determined periods of inaction during which he is not called upon nor expected to display physical activity or sustained attention. This determines what It will be noticed that the scheme of the compels the inclusion of an hour of rest in a normal working day. This is achieved by pres cribing that the hours of work in a six day week shall not exceed 48, although on any particular day the hours in a day may go up to 9. What has not been done by the Act or the Rules is to specify that the interval for rest shall break up
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In the two appeals by special leave out the two words of para 5.356 of the National Industrial Tribunal (Bank Disputes) Award of June 1962 (popularly known as the Desai award) and will be dealt with together. Appeals Nos. 1008 and 1009 of 1965. The Judgment of the Court was delivered by Wanchoo, J. C. Solicitor General, K. K. Daphtary, Attorney General, section V. Mehta, V. Das Gupta, for the appellants. S. B. Sagar, H. L. Anand and B. M. Ramamurthi, Counsel for the respondents. It is unnecessary to set out the facts of the second appeals shall be concerned at this stage. It will be sufficient to say that the respondents made applications under section 33 C(2) of the Industrial Disputes Act, No. 14 of 1947, praying for determination and computation of the benefit to which they were entitled under the Desau award as they were not satisfied with the fixation of their pay by the appellant bank under " The dispute between the bank and the workmen in the present , was this. The bank claimed that under cl. (4) and made clause (4 A). "We have already referred to the fact that para.356 of the Desai award was separated by the Labour Appellate Tribunal Decision from cl. 292 of the Sastry award as modified came up for consideration before this Court in the case of Prakash Chand Mehra( ') and this Court interpreted clauses (1) to (4 B) and (4 C) of para. (d) of cl. 901 (ii) Subject to rule (i), a workman 's basic pay in the scale provided in the new scale as modified shall not exceed what point to point adjustment would give him. (iii) In the matter of adjustment, all efficiency bars, whether in the previously existing scales or in the scales provided by the sastry or the new scales as modified should be ignored. We are unable to accept the contention raised on behalf of the respondent that the words "subject to" have not the effect of making what would Cl. (iv) which provides for actual calculations starts with the words "subject to rules (i) to (iii)" and therefore the actual calculations made under cls. (a) of cl. (ii) has to be taken as on January 1, 1959. But as we, have held that in cl. CI/66 11 904 effect that the actual fixation. (d) of the Sastry award as modified is to be as on 1st January 1959. We do not agree with the case of the appellant bank that this is not the case. It is true that the Desai award said that certain changes were being made; but these changes were considered necessary having regard to the lapse of time. We are of opinion that the adjusted basic pay in cls (a), (b) and (c) must be done by the same date as in the cl.CI/6611 904. This follows from the fact that the workman 's basic pay as on the 1st of January, 1959 cannot be reduced and therefore when cl.(i) and cls(ii) speaks of adjusted basic Ram Parkash joined service on April 11, 1949. His salary as on January 1, 1959 was Rs. 100 and his place of posting was Nakodar in area IV of the (1) 906 Sastry award. The thirteenth stage in the Desai award scale is Rs. 106. Therefore, for purposes of sub cl. (i) his salary cannot be fixed below Rs. 85. He would not be entitled to any increments under sub cls. (b) and (c) of cl. 1008 allowed. Under subcl. (iv) he would be
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J. V. Raghaviah and R. Ganapathy Iyer, for the respondents. Appeal by special leave from the judgment and decree dated September 2, 1959 of the Madras High Court in Second Appeal No. 801 of 1963. The Judgment of the Court was delivered by Gajendragadkar, C. T. Tatachari, for appellants. The present appeal was brought to this Court by the appellants against four respondents. The properties involved in the suit consist of agricultural lands situated in Eragudi village, Musiri taluk, Tiruchir 125 Mr. Tatachari for the appellants has raised before us an interesting question of law. In dealing with the question of limitation, the learned Judge took the view that the present suit would be governed 124 by Article 134 B of the Indian Limitation Act. This article has been introduced in the said Act by Amending Act 1 of 1929 and came into force on 1 1 1929. It was conceded before the lower appellate Court that the new article was not retrospective in operation and that if the title of the alienees in regard to 'dharmadlayam properties had been acquired by adverse possession prior to 1 1. Article 134 covers suits brought with a view to recover possession of immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration. These words used in column 1 of article 134 necessarily raise the question as to whether the head of a math is a trustee within their meaning; and Mr. Justice B. K. Mukherjea on 'Hindu Law of Religious and Charitable Trust ' II Edn. (1962) p. 282. In Gnanasambanda 's case, it was held by the Pri L.A. 97. Column 1 of article 134 B provides for suits brought, inter alia, by the manager of a Hindu religious or charitable endowment to recover possession of immovable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration. The period prescribed for such suits is 12 years, and the time from which the period begins to run is the death, resignation or removal of the transferor. In the words of Sir John Edge, who spoke for the Privy Council in Nainapillai Marakayar and of hers vs Ramanathan Chettiar and Others(5), " in the case " What was said by the Privy Council about the impropriety of including an execution sale within the meaning of article 134B can, with equal justification, be said about introducing words of limitation in the said article which alone can exclude transfers made by the previous manager of the Hindu religious endowment on the basis that the property transferred belonged to (1) L.A.R. 77 I. That Article contains the analogous phrase "transferred by the trustee or mortgagee for a valuable consideration", and there was a uniform current of decision mis to the effect that these words were incapable of applying to an We hold that the alienors had been removed from management of the temple, and other persons have taken up the position
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J. BACHAWAT and SHELAT JJ. delivered separate judgments allowing the Appeal. In order to appreciate the arguments addressed before us a brief statement of the relevant facts would be necessary. The Company was registered in the year 1961 and had authorised capital of Rs. 1 crore by the Government of India. Its primary object was to manufacture Barium Chemicals. The Managing Director, Mr. R. C. Shankardass and R. V. Dang, Secretary of the Company Law Board issued an order on behalf of the Board made under section 237 (b) of the appointing 4 persons as Inspectors for investigating the affairs of the Bariumchemicals Ltd., appellant No. 1 and 3 to 7. I before us and to report to the Company law Board inter alia "all the irregularities and contravention in respect of the provisions of the or of any other law for the time being in force and the person or persons responsible for such irregularities and Contravention.” The order was made on May 19, 1965. On June 4, 1965 the Company preferred a writ petition under article 226 of the Constitution in the Punjab High Court for the issue of a writ of mandamus or other appropriate writ, direction or order quashing the order of the Business Board dated May 19. The writ petition is directed against 7 respondents, the first of which is the Chairman of the company, R. K. Shankar. The second respondent T. T. Krishnamachari & Sonswere later a so granted a licence to set up a plant for manufacturing barium chemicals but that on appellant No. 2 Balasubramanian was negotiating with a German firm named Kali Chemie A. of Hanover for obtaining their collaboration. It is said that the firm of M/s. A. Krishnaniachari wanted action to be taken under section 237(b) and had actually obtained approval of Mr. R. Nehru the licence in favour of T. T., but that the company was producing at that time only 25 per cent of its installed capacity but that according to the assurance given by Lord Poole it would yield full production by April, 1966. According to the appellants, before entering into a collaboration agreement with M. Mitchell Ltd., the appellant no. 2 did not agree to this with the result that in the interval some negotiations with Kali ChemIE had been started and had they ended fruitfully the company would have been the sole selling agency for the sale of the products of barium Chemie. The appellants also say that T. A Krishnamagari and his sons were the sole agents in India for some of the barium products and had the company not been granted the licence to manufacture the products the products would not have been sold in India. The suggestion is that as the licence of M. C. Mitchell was granted to the appellant No 2 for the grant of sole selling, agency of the product of the plant to be established " In view of the fact that the Central Government, by virtue of the powers conferred by sections 10 E and 637 delegated its powers under section 237 to them Company Law Board we shall read section 237 as if in place of the words "Central Government" or for brevity 'Board '. According to Mr. Setalvad, cl. (b) of section 237 requires two things: (1) the opinion of the Board and (2) the existence of circumstances suggesting one or more of the matters. To say that the opinion to be formed must be as to the necessity of making an investigation would be making a clear departure from the language in which section 237(b) is couched. The Attorney General disputes this construction and contends that the clause is incapable of a dichotomy and that the subjective process embraces the formation of an opinion that circumstances suggestive of any of the matter comprised in sub cls. (i) to (iii). He contends that though the opinion by the Board is subject to the discretion conferred by section 237, it is a condition precedent to the appointment of an Inspector to investigate the affairs of a company. Therefore, according to him, the Court is entitled to ascertain whether in fact any of those circumstances exists. An examination of the section would show that cl.(a) and (c) of the clause are not the same. The words "in an opinion" and "may do so" are the same, but the word "in the opinion" is not " In paragraph 5 it may be recalled Mr. Dutt has taken the plea that the petition was liable to be dismissed as it had not been made bona fide but for extraneous reasons and to create prejudice with a view to thwart statutory investigation. Then he has set out the circumstances upon which his contention is based. In paragraphs 6 to 8 he has dealt with the legal aspects of the case. The 8th paragraph is the most important amongst them. In this paragraph Mr. Setalvad has founded an argument that the grounds disclosed therein being extraneous the order is invalid. In paragraph 9 Mr.Dutt has categorically stated that the order of May 19, 1965 was passed after careful and independent examination of the material by the Chairman and that it was issued in proper exercise of the powers conferred upon it. He has also said that the Board was aware of the fact that the company had entered into collaboration with M/s. A. L. Mitchell Ltd. for which the 'collaborators had put the responsibility upon the Managing Director, Petitioner No. 2 on account of the manner in which the affairs of the company were being conducted. . but it has no information of any of the other matters and/or negotiations with M&M. These were admitted by Mr Dutt in paragraph 14 of the counter affidavit. Paragraph 20 onwards of the writ petition deals with the action taken by the Board and the various grounds on which according to the appellants the action of the renovation or other similar kind of malfeasance. Now, the first of its conclusion is to the effect that the materials show that there was delay , bungling, faulty planning of the project and that this resulted in double expenditure for which the collaborators had put the responsibility upon the Managing Director, that is, appellant No. 2 done with the ulterior motive of earning profit for himself ? Similarly could not the fact that the company was continuously showing losses since its flotation and that 1/ 3rd of its 326 share : capital had ,been wiped out could have been suggestive of fraud to the Board. , a suspicion having been entertained that all was not well with the company. It is reasonably ,conceivable that the result had been produced by fraud and other varieties of dishonesty or misfeasance. Coming to the third point of Mr. Setalvad about the circumstances being extraneous cannot be accepted. It would be destroying the beneficial effective use of the powers given by the section to say that the Board must first show that a fraud can clearly be said to have.been committed. As we have said, the section gives the exploratory power only. Its object is to find out the facts. The order does not amount to a finding of fraud. The enquiry may reveal that. it has to be borne in mind that what the Board is to be satisfied about is whether the circumstances suggest any of these things and not whether they suggest that a crime has been committed. If the facts [S5SCI 23 328] 4 S.C. 329 of procedure prescribed prescribed February 6, 1964. The Board points out that over a long period beginning from September 1961 the Department had been receiving various complaints in regard to the conduct of the affairs of the Company. One complaint had also been received by the Special Police Establishment and forwarded by it to the Department in November, 1963. It is true that a memorandum was presented to Mr. Krishna machari by four ex Directors containing grave allegations against the two appellants. But it was not solely on the basis of this memorandum that action was taken by the Board. The matter was enquired into by the Regional Director of the Board at Madras and he, in his report, sent to the Board in September 1964 suggested an urgent and comprehensive investigation into the accounts of the company. In taking the decision Mr. Dutt has stated further in paragraph 5(b) as follows: "The material on the file was further examined in the light of the regional Director 's recommendation by the two Under Secretaries of the board (Sarvashri M. Chand, I. section section and K. R. Banerjee C. section) who were present at the meeting held on the last day of September, 1964 at the office of the Chairman of Board in New Delhi and both of them endorsed the recommendation of the Deputy Director to order an investigation." Then again in Mr. Hidayatullah, J. We are concerned in this appeal with the legality of an order of the Chairman, Company Law Board, May 19, 1965, (purporting to be under section 237(b) of the ) declaring that the affairs of the Barium Chemicals Ltd. be investigated. As a consequence Inspectors have been appointed and searches have been made. The Company and its Managing Director filed a petition under article 226 of the Constitution in the High Court of Punjab seeking to quash the order and on failure there, have filed this appeal by special leave of this Court. The action is challenged as without jurisdiction because not the Board but the Chairman alone acted, as mala fide because no honest opinion was formed on the matters which under the section give rise to the power but on irrelevant and extraneous material, and further because the order was passed under the influence and malice of a Minister of Cabinet who was interested in another Company belonging to his sons and sought this means to oust a rival. The facts have been stated already in some detail by my brother Shel and I need not take time in restating them. Bearing in mind that the maxim delegatus non potest delegare sets out what is merely a rule of construction, sub delegation can be sustained if permitted by an express provision or by necessary impli cation. Where, as here, what is sub delegated is an administrative power and control over its exercise is retained by the nominee of Parliament, that is, here the Central Government, the power to make a delegation may be inferred Section 237(b) of the Companies (Amendment) Act, 1963 gives the power to the Central Government to appoint inspectors to investigate and report if the company by a special resolution or the court by order declares that the affairs be investigated. This section is in two parts. (a) of sub section(1) of section 637 read by sub section undermin(1), of section 10E of the , the central Government delegated its powers and functions to the Board under section 237. The section may be read here: "10E. Constitution of Board of Company Law Administration. (1) The Company Law Board shall consist of such number of members, not exceeding five, to be appointed by that Government by notification in the Official Gazette. Simultaneously acting in exercise of the powers conferred by Sub section 642 read with sub section=-=-=-=-=-=-=-=-(1)(1) and (2) of Section 10E, the Board shall be subject to the control of the Government of India. (3) One of the members shall nominate the Chairman of the Board. When ' members apply they must support their application by evidence and give security for costs of investigation. The second part which is (b) gives a discretionary power, As this dis 332 cretionary power was in fact exercised this is a convenient place to read part (b)(2) and part (c) of this section. It reads: "237. Without prejudice to its powers under section 235, the central government may do so (i.e. appoint one or more competent in this case to merit interference at our hands. I shall now consider the question of mala fides. The question naturally divides itself into two parts. The first is whether there was any personal bias, oblique motive or ulterior purpose in the act of the chairman. The second is what are the powers of the Board in this behalf and whether they have been exercised contrary to the requirements of the Act. In dealing with this problem the first point to notice is that sub section (4A) is a substantive provision. It is quite clear that its absence would give rise to the argument accepted by me, which argument is unanswerable in the absence of a provision such as the new sub section. Such an enactment has been framed in relation to the honest formation of an Board. The statute, as it was formerly, gave no authority to delegate it differently or to another person or persons. The lacuna in the Act must have been felt, otherwise there was no need to enact sub section(4A). The argument of the learned Attorney General that sub part(4) was ?lot needed at all, does not appeal to me. I agree with him entirely on this point. In view of my decision on the issue of delegation it is hardly necessary to decide this question but since contradictory opinions have been expressed on it by my brethren Mudholkar and Shelat. What is the Board, is not a question which admits of solution by procedural rules but by the enactment of a substantive 3rd 1 has been which Chairman may 21 Petition 2, 1964 presented by certain ex directors and also stated that from September 1961 complaints were being received in regard to the conduct of the affairs of the Company, and one such complaint was received from Special Police Establishment in November 1963. There was considerable delay in taking up the matter and this was explained as occasioned by the language riots, and other more pressing occupation. The nature of the complaints was not disclosed but in reference to the memoranda "were supported by documentary evidence and details of the impugned transactions and the signatories offered to produce witnesses with knowledge of these transactions". This was followed by an enquiry by the Regional Director of the Board at Madras (Shri R.A. section Ramamurthi, I.S.) who made a report in September 1964. The report was next considered by two Under Secretaries arid by the Secretary of the company Law board who all agreed "that there was need for a deeper probe into the affairs the Company". The matter was then placed before the Chairman who formed the opinion that there were "circumstances leading to an inference of the kind contemplated by section 237(b) and that there was a need for action under the provisions of the Act". The Chairman in his affidavit referred to the reports of the Under Secretary and the Secretary as well as to the Memoranda received by the Board and also referred to other documents which were not mentioned in paragraph 5 and other examination it appeared inter alia that: ( Mr. Dang I find that he merely repeats what was stated in the affidavit of the Chairman. In other words, he has not disclosed anything from which it can be said that the inference which he has drawn that the Company was being conducted with intent to defraud its creditors, members and other persons or persons concerned in the management of the affairs of the Company were guilty of fraud, misfeasance and misconduct towards the company and its members was based on circumstances present before him. This is indicated by the enumeration of the four circumstances, I have extracted from his affidavit and I proceed to analyse them. 339 The first circumstance is "delay, bungling and faulty plan ning" resulting in "double expenditure" for which the collaborators had put the responsibility on the second appellant. The second and the third circumstance merely establish that there was loss in making this project work and that a part of capital had been lost. The last circumstance does not also bear upon the subject of fraud and acts done with intend to Defraud. This was admitted by the appellants who pointed out that after considerable negotiations they induced Lord Poole, the President of the collaborating firm, to invest a further sum of pound 25,000. The affidavits which were filed in answer to the petition do not disclose 340 even the prima facie existence of these circumstances. The other affidavits also run the same way and it is not, therefore, necessary to refer to them. We are concerned really with the affidavits of 4. Under sections 10E(1) and 637(1)(a), the Central Government has power to constitute a Company, Law Board and to delegate its functions to the Board. The Board can consist of such number of persons not exceeding five as the Government thinks fit. One of the members of the Board has to be appointed a Chairman and this necessarily implies that the Board shall consist of at least two members. Prima facie, the Board must act as a whole and cannot delegate its function to one of its members. If a statute entrusts an administrative function involving the exercise of a discretion to a Board consisting of two or more persons it is to be presumed that each member of the board should act in the manner of his own judgment on the matter and all, the other members of its Board should act together and arrive at a joint decision. In Cook vs Ward(1), the Court held that where a drainage board constituted by an Act of Parliament was authorised by it to delegate their powers to a committee, the powers so delegated to the committee must be exercised by them acting in concert and it was not competent to them to apportion those powers amongst themselves and one of them acting, alone, pursuant to such apportionment, could not justify his acts under the statute. Lord Coleridge, C. J. said at p. 262: "It was not incompetent to the Committee to delegate powers, which required the united action of the three, to be exercised according to the unaided judgment an agreement between the appellant company and L.A. Mitchell Ltd., of Manchester was signed where under the latter agreed to put up the plant on the appellant party agreeing to pay them pound 184,500. The 2nd appellant did not agree. He then started negotiations with Kali Cliemle of Hannover, West Germany to collaborate with him in setting up a plant. While he was so negotiating, M/s., ,T. T. K. Krishnamachari & Co., who were the sole selling agents of the said German Company, approached the Government for a licence for manufacture of barium chemicals. On August 25, 1959 and September 23, 1960 appellant No. 2 was appointed a, Minister without portfolio and rejoined the Cabinet which lie had left ' earlier owing to certain circumstances which are not relevant for the present. Both were considered by the Licensing Committee. On a representation by M / section T. T K. &.Co., the Committee reconsidered the matter and recommended the grant of licence to M /s. T / K. Chemicals Private Limited. The second appellant once more protested, this time to the Prime Minister but that was rejected. On November 27, 1961, the Government granted a licence to the company for the import of machinery. On July 28, 1961. the second appellant was appointed as the managing director of the company and the company was incorporated as a public limited company with its registered office at Ramavaram in Andhra Pradesh. On December 5, 1960 K. T. K. Mitchell Ltd. was agreed to be continued and consequently the negotiations with the German company and M/s. A.T. & Co., were not to proceed further. On May 7, 1965 representatives of the appellant company and of Kali Chemie met at Stuttgart when proposals for an agreement were discussed. Before however these negotiations could take concrete shape, Lord Poole came over to India. A meet ing was held on May 10, 1965 between him and the directors of the company. Certain proposals were discussed and it was decided
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Appeal Nos. 931 and 1149 of 1965. These appeals arise out of an election to a seat in the West Bengal Legislative Assembly from the Khargram Murshidabad constitutency reserved for members of the Scheduled Castes. The contestants at this election were Abhoy Pada Saha and excluding Saha. Now, the point in issue is, whether the appellant satisfied the description "Sunri excluding Saha" in item 40 of the President 's Order. To decide that point, the description has first to be properly interpreted and understood. There is no doubt that Sunri is a caste. Nobody disputes that. We are, however, Mookerjee, J. said, "it has not been proved that the respondent (appellant here) belonged to any separate Saha caste or to any Saha Sunri sub
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the question of law involved in this appeal is whether the purchaser of business carried on by a dealer as defined in the Madras General Sales Tax Act, 1939 (Madras Act No. IX of 1939), hereinafter called the 'Act ', can be made liable for arrears of sales tax due from the dealer in respect of transactions of sale which took place before the, transfer of the business under Rule 21 A of the Rules framed in exercise of the powers conferred on the State Government by section 19 of the Act. The respondent 6 63 denied liability to pay sales tax but his contention was over ruled by the Deputy Commercial Tax Officer. The Division Bench consisting of section Ramachandra Iyer, C. Ganapatia Pillai, J. Ram Reddy and A. R. Rangam, for the appellant. Appeal No. 10 of 1962. This appeal is brought, by special leave, from the judgment of the Division Bench of the Madurai High Court dated September 13, 1963 in Writ Appeal No 696 of 1966. The Judgment of the Court was delivered by Ramaswami, J., and Ramakrishnan, J, in the opinion of the division bench consisting of Ramachandran, C., Ganapathy Iyer and R. V. Ranga Rao, in arguments of the appellant and the respondent. The judgment was delivered in the judgment by the division benches consisting of R. Ramachandan, C, R.V. and Rangarajan, R., in the opinions of the respondent and the appellant, respectively. The question to be answered is whether Section 10 of the Madras General Sales tax (3rd amendment) Act, 1956 (Act No. XV of 1956) read as follows "The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment, not being less than fifteen days from the date of service of the notice. In default of such payment, the whole of the then remaining due tax under the Act shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax under this act. It was then submitted by Mr. Ram Reddy that Rule 21 A may be supported by the language of section 10(1) of the Act which states "10. Payment and recovery of tax. Section 19(2)(c) deals with the assessment to tax of businesses which are discontinued or the ownership of which has changed. It is true that the word "assessment" in the scheme of sales tax and income tax legislation is a term of varying import. The word is used sometimes to mean the computation of income, sometimes the determination of the amount of tax payable, and sometimes the whole procedure laid down in the Income tax Act for imposing liability on the tax payer. As the Judicial Committee, however, said in Badridas Daga vs C.I.T. Bihar(1), the Federal Court pointed out, relying upon the decision of the House of Lords in (1) , 21 1. (2) , 665 Whitney vs Commissioners of Inland Revenue("), that the liability to tax does not depend upon assessment P.S. It was next argued on behalf of the appellants that upon a true construction of the registered instrument dated October 5, 1956 the respondent undertook to pay not only Sch. I liabilities but also other liabilities like sales tax imposed in regard to the business. We accordingly reject the argument of the appellantants on this aspect of the case and hold that Rule 21 A is ultra vires of the rule making power of the
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" On January 26, 1963, a public notice was issued under r. 3(b) of the Maharashtra Village Panchayats Taxes and Fees Rules, 1960 hereinafter referred to as the Fees Rules. The meeting considered the question of imposition of octroi duty. In order to appreciate the points raised before us it is necessary to give the relevant facts and statutory provisions. Section A. Nerkar, for respondent No. 1. section K. N. Sachthey, section P. L. Dhebar, and section A. M. Mathur, for respondents No. 2. section Bobde, G. B. Agarwala and section B. K. Nayar for R. H. Sastri, R. A. 6. The learned counsel for the appellant contends before us (1) that r. 5 of the Fees Rules was intraviress (2) that the Standing Committee had no jurisdiction to decide the appeal on merits as the appeal to the Panchayat Samiti was barred by limitation; (3) that, at any rate, the levy was good after the octroi limits were fixed on January 14, 1964; (4) that there was no reason to believe that the tea was imported into the village limits for consumption, use or sale on or before the date specified in the notice, published under clause (b). (d) On or after the date of publication of the notice to be in the office of the " Rules 30, 31, 32 and 33 deal with refund of octroi. The scheme of the Fees Rules accordingly seems to be that the general procedure for levying taxes or fees is laid down and then this procedure is made applicable to the levy of various taxes mentioned in the other parts of the Rules. Rule 7 which deals with tax on buildings and lands also prescribes that the panchayat shall follow the procedure prescribed in rr.3 and 4 before levying a tax on building and lands. Rule 71 which dealswith tax on professions also contains a reference to rrr. 3 and 4 appli cable. Similarly, r.3(b) does not require the Panchayat to pass a resolution on the subject of tax or fee. Rule 3(c) has to be similarly read. 124(5) of the Panchayat Act, the fixing of the commencement of the period of limitation as the date of publication of the notice under r.5 is read in the setting in which it occurs. This date shows that r. 5 is dealing only with appeals against levy of any tax and not with the assessment or imposition of a tax or any other matter. Rule 5 follows imme diately rr.3 and 4 and is headed "Appeal against levy in the form of tax or fee". The notice under Rule 5 is published in accordance with the Rules under section 124(5). It is true
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Appeal No. of this appeal are as follows. This is an appeal by a certificate granted by the High Court at Calcutta from a judgment and decree in Second Appeal passed by that court in January, 1961. On the 18th June 1948, the plaintiff, the appellant before us, instituted Suit No. 292 of 1948 for ejectment of three Persons, namely, Abdul Rahim, Abdul Hamid and Abdul Gaffur, from the property in suit (a parcel of land about 1 cottah 8 chittaks " The section has two provisos one of which laid down that no thika tenant Shall be ejected from his holding on any of the grounds specified in cls. '(iv) and (v) of _. The six grounds mentioned are: (i) failure to pay an arrear of rent due to the landlord in respect of the holding; (ii) failure on the part of the tenant to dispose of the land comprised in the holding in a manner when rendered it unfit for either of the purposes mentioned in cl. (5) of section 2 ( T he could not have done because of the passing of the Act after the filing of his suit. The only qualification was that even if the suit had been filed before the Act but was not disposed of by that date, the landlord had to establish that be was entitled to possession because of any of the grounds mentioned in section 3. It is however 'clear that the benefit of section 28 was available only if the decree or order for the recovery of possession had been made before the date of the commencement of this Act but the tenant had lost possession of such holding had not been recovered from him. He was however not Sub section(1) of section 5 made the Act, as amended by the Ordinance, applicable to all cases pending before a court or a controller. In such a case, if it was found that the person applying was a thika tenant, the court before whom the proceedings were pending had to remit the case to the controller and if the authority before whom was made was a controller, he had to re open the case and pass a new order. If the matter was in appeal, the appellate court had to exercise jurisdiction Section 3 of the Act which cuts down the right of the landlord to recover possession except on the grounds therein specified musi be held to apply to all suits even though filed before 28th February 1949. The language of the section leaves no room for doubt as to this. It expressly states that notwithstanding anything contained in any other law for the time being in force or in any contract, a thika tenant shall be liable to ejectment on ground specified and not otherwise. Before the Act had come into force, the landlord could not possibly know that his suit R. 182 We cannot speculate as to why the legislature thought fit to omit sections 28 and 29 from the Act of 1949. The effect of omission of section 28 has been considered by this Court in Mahadeolal Kanodia vs Administrator General of West Bengal(1) where it was held that a thika tenant against whom proceedings for execution of the decree for eviction were pending and who had applied for relief under section 28 lost the protection of that section as a result of the Amending Act of 1953. There being no provision for transfer of the proceedings of Mr. Bhargava, J. In the result, as the landlord has not established any of the grounds specified in section 3 entitling him to ejectment
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Officers was posted as superintendent and legal remembrancer in March 1962 Shri K.K. Bose, addl. district and sessions judge was posted in the law department in the same month. He worked in that capacity till February 1965. Thereafter, Shri B.N. Patro one of the district and Sessions. judges, was posted on 31 1 March 1965. (1) ; 157 Shri J.C. Bindra, G.M. Daphtary, Attorney General, N.S. Rath and R.J. Sachthey, for the appellant (in all the appeals). Sarjoo Prasad and S.Krishnan, for respondents Nos. 5 to 7 (in C.As. Nos. 625 and 629 of 1967) and respondents Nos Nos. 8, 23, 8 ' and 5 ( in C.A. No. 627 of 1967). 156 The Judgment of the Court was delivered by Hegde, J.M., R.N K.C. Panda who was attached to the commission of enquiry in connection with students ' (1) ; 158 agitation, as law secretary to the government of Orissa, (b) Shri B.K. Patro, the then law secretary as district and sessions judge of Ganjam Boudh, (c) Y. K. Misra and Shri P.B. Dey, district and Sessions judge, Mayurbhanj Keonjhar, as superintendent and legal remembrance and ex officio additional law secretary and member sales tax tribunal, respectively, on and after October 10, 1966, and (2) Sh. B. Bose, the Chief Secretary to the Government of Orisha, as the law secretary, the Home Secretary to Orissa and the Secretary of the State of the Orissa. The government as well as the concerned officers in the returns made by them justified the action taken by the government. Soon after that decision was rendered and without any further dialogue with government in the ' light of that decision, the High Court took the precipitate step of (1) ; (2) ; 161 namely, whether the power to transfer District Judges is included in the 'control ' exercisable by the High Court over District Courts under article 235, or in the power of 'appointment of persons to be and the posting and promotion, of district judges ' which is to be exercised by the Governor under article 233, albeit in consultation with the high court. In the course of that judgment, this Court observed (at page 459 of the report): "The question we have posed resolves itself into a question of a very different but somewhat limited form. The right approach is, therefore, to enquire what is meant by 'posting ' and whether the term does not mean the initial posting of a District Judge on appointment or promotion to a vacancy in the cadre, permanent or temporary. If the sense of the matter be the former, then the high Court and if the latter, the Governor, would possess that 'power. then the transfer of District Judges already appointed or promoted and posted in the Cadre must necessarily be outside the a cadre consisting essentially ,of officers under the direct control of the High Court. The question of law considered in that decision was as regards the scope of the expression "control over district court" in article 235. It was in that context this Court spoke of the cadre. The cadre with which we are concerned in this case consists of three parts i.e., (1) presiding officers of district courts, (2) the Registrar of the high Court and (3) the judicial officers working in the secretariat. No doubt all these officers belong to the judicial service of the State and they were before 1962 presiding over district courts or courts subordinate to them and as such were under the control of a High Court, but they were no longer under its control in 1962. It must be presumed that they were taken over by the government with the consent of the government. Hence the reference by this Court not only to the service of judicial officers in the State but also to the way in which they were transferred to administrative posts in the state secretariat is a reference to C. Appeals allowed in part. Though we hold that the orders of the High Court posting Shri B.K. Panda as law secretary, Shri T.S. Bose and Shri P.
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direction shall be made under sub section (1) for the trial of an offence for which an accused person was being tried at the commencement of this Act before any court but, save assaid, such direction may be made in re spect of the offence, whether the offence was committed before the court of special procedure or not, or whether the " Before considering whether section 5(1) infringes, to any and what extent, the constitutional prohibition under article 14, it is necessary to ascertain the true scope and intendment of the impugned provision. As the very object of the Act was to provide for speedier trials by instituting a system of special courts with a simplified and shortened 118 U.S. 356, 369. 295 Texas(1)) Mr. Justice McKenna posed a problem and proceeded to answer it. "It seems like a contradiction to say that a law having equality of operation may yet give equality of protection. Viewed rightly, however, the contradiction disappears. Government is not a simple thing. It encounters and must deal with " These decisions seem, to my mind, to reveal a change of approach marked by an increasing respect for the State 's regulatory power in dealing with equal protection claims and underline the futility of wordy formulation of so called "tests" in solving problems presented by concrete cases. For instance, in Atchison Topeka & Santa Fe " On the contrary, it is to be presumed that a public authority will act honestly and reasonably in the exercise of its statutory powers, and that the State Govern ment in the present case will, before directing a case to be tried by a Special Court, consider whether there are special features and circumstances which might unduly protract its trial under the ordinary procedure The Court should not insist in such cases on what Holmes J. called "delusive exactness" (Truax vs Corrigan, supra). All that the court is expected to see, in dealing with equal protection claims, is whether the law impugned is "palpably discriminatory", and, in considering such a question great weight ought to be I have come to the conclusion that these appeals should be dismissed, and since that is also the conclusion which has been arrived at by several of my col leagues and they have written very full and elaborate judg ments in support of it, I shall only supplement what they have said by stating briefly how I view some of the crucial points arising in the case 1. In the course of the arguments, it was suggested that the Act is open to criticism on two different and distinct grounds, these being , (1) that it involves excessive delegation of legislative authority amounting to its abdication in so far as it gives unfettered discretion to the executive, without laying down any standards or rules of guidance, I had the advantage of reading the judgment prepared by my brother Mukherjea and I am in respectful agreement with his opinion. Section 5 of the West Bengal Special Courts Act is hit by article 14 of the Constitution inasmuch as it mentions no basis for the differential treatment prescribed in the Act for trial of criminals in certain cases and for certain offences. In " They could be told that the law regards persons guilty of offences against the security of the State as a class in themselves. The Code of Criminal Procedure has by the process of classification prescribed different modes of procedure for trial of different of fences. Minor offences can be summarily tried, while for grave and heinous offences an elaborate mode of procedure has been laid Mr. Anwar Ali Sarkar, who is the respondent in Appeal No. 297, along with 49 other persons, were the accused in what is known as Dum Dum Factory Raid case, where crimes of the utmost bru tality were committed by an armed gang of men on the factory of Messrs. S.N. Jessop and Company at Dum The said class shall be referred to in the course of the arguments. The learned Attorney General, appearing in support of the appeal, has put forward his contentions under two dif ferent heads. His first line of argument is that quite apart from the question of classification there has been no infringement of article 14 of the Constitution in the present case. K. Gopalan vs The State of Madras ; (2) Weaver: Constitutional Law, page 407. These decisions, in my opinion, have no bearing on the present case. I am not at all impressed by the argument of the learned Attorney General that to enable the respondents to invoke the protection of article 14 of the Constitution it has got to be 1 with unamble the Calcutta Special Courts Act, the learned Attorney General has made a number of important changes in the Act. One of the most important departures is that the trial by the Special Court is without the aid of jury or assessors. The first line of argu ment adopted by the learned attorney General cannot, there fore, " A point was made by the Attorney General in course of his arguments that the equality rule is not violated simply because a statute confers unregulated discretion on officers or on administrative agencies. We were referred to a number of authorities on this point but I do not think that the authorities really support the proposition of law in the way it is formulated. In the (1) of the West Bengal Special Courts Act is invalid for being in conflict with the equal protection clause, and the question as to how it is actually worked out may not neces sarily be a material fact for consideration. It may be that in making the selection the authorities would exclude from the list of offences other offences of a cognate character in N. The meaning, scope and effect of 334 article 14 of our Constitution have been discussed and laid down by this Court in the case of Chiranjit Lal Chowdhury vs The Union of India and Others (1). Although Sastri J., as he then was, and myself differed from the actual deci sion of the majority of of particular classes of cases, as the impugned Act refers to four sub-classes of offences or cases or classes of offences, which are to be tried by a Special Court or by a special Court of the State. The different sec tions of the Act have been analysed and the important dif ferences have been clearly indicated by the learned The learned Attorney General, on the other hand, argued that the preamble of the Act, for the purpose of which it is recited, is a key to the understanding of it. He first draws our attention to the fact that the Act is inti tned "An Act to provide for the speedier trial of certain offences" and " In order to be a proper classification so as not to offend against the Constitution it must be based on some intelligible differentia which should have a reason able relation to the object of the Act as recited in the preamble. The part of sub section 5(1) which I am now examining confers a power on the State government to make J. CHAND The Constitution of 1950, being opposed to the provisions of article 14 of the Laws of the State of India and the laws of the Union of India, the laws being passed by the Government of India in pursuance of the Constitution, shall be opposed to Article 14. It is not a question of an unconstitutional administration of The points of prejudice against the ac cused which appear in the challenged Act have been pointed out in detail in the judgment of Trevor Harries C.N. vs Pinson(1) "We must remember that the machinery of government could not work if it were not allowed a little play in its joints. Almost every piece of legislation has got a "The principle of equality does not take away from the State the power of classifying persons for legitimate purposes. Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be " The case cited in support of this view, Plymouth Coal Co. Co. vs Pennsylvania(1), is really on authority for (1) 46 354 any such position. In that case, the statute provided that it was "obligatory on the owners of adjoining coal proper ties to leave, or cause to be left, a pillar of coal in " Now I yield to none in my insistence that plain unambiguous words in a statute, or in the Constitution, must having regard to the context, be interpreted according to their ordinary meaning and be given full effect. But that predicates a position where the words are plain and unambiguous. I am clear that that is not the case here. We are Par ordi nary reasonable man of law which is no single man but a composite of many men whose reasonableness can be measured and gauged even though he can neither be seen nor heard nor felt? With the utmost respect I cannot see how these vague generalisations serve to clarify the position. To my mind they do not carry us It is not necessary to travel far afield to find out what according to them, had always been the law handed down by custom and tradition, they nevertheless had to draw for their material on a nebulous mass of undefined rules which, though they existed in fact and left a vague awareness in man 's minds, nevertheless were neither clearly definable, nor even Inter Agent. It is not enough that justice should be done. Justice must also be seen to be done and a sense of satisfaction and confidence in it engendered. That cannot be when Ramchandra is tried by one procedure and Sakharam, similarly placed, facing equally serious charges,
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112 of 1965. The relevant facts are these. On September 2, 1963, Yashoda, son of Raj Kumar, filed a complaint before the Nyaya Panchayat, Jokha Khas, against Jagdeo, Mahabir and Laxvas case alleging that he had been abused and be laboured and his property worth Rs. 40/ damaged. The case was adjourned to December 25, 1963. On December 13, 1963 a petition was moved in the Court of Shri R.D.M., Deoria, alleging that "writ petition has been admitted and a stay order has been issued. An urgent copy of the order was applied for and obtained on that very day and the counsel sent a telegram in the following words "Allahabad He 20 Baldeopd cashier Trust Sdr G. A. Chari, M. K. Goyal, V. Ramamurthi, Vineet Kumar and Shy The High Court held that "in spite of the knowledge of the interim stay dated 20 12 63 passed by the Hon 'ble High Court the Sarpanch, the Opposite Party No. 1 and the members of the Bench, Opposite Parties Nos. 2 to 5 disobeyed the order of the High Court and disposed of the case on 25 12 63 and thereby committed contempt of court. The main allegation, apart from reciting the facts which we have already detailed above, was that "the Nyaya Panchayat was not satisfied for want of evidence by way of proper affidavit etc." The High Court disbelieved the explanation of the Panchas given before it because no mention of these was made in the order sheet dated December 25, 1963. In the order, it was stated that the Nyaya panchayats were not satisfied with the contents of the application, and affidavit of Mahabir. Phagu Prasad. in his statement, stated "As the paper the application and affidavit was not good, S.K. The learned counsel for the State contends that we should not reappreciate the facts, but, with respects, it seems to us that the High Court, while dealing with the evidence, has not kept in mind the principles which we have mentioned above. Contempt of court is a serious matter and a High Court should be chary of finding a judicial officer guilty of contempt of court for disobeying its orders unless there is unimpeachable evidence that the judicial officer had knowledge
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Workmen vs. workmen of Orient Paper Mills Ltd., Brajrajnagar, have come up in this appeal by special leave against an award of the Industrial Tribunal, Orissa. Appeal No. 390 of 1966. An industrial dispute between these workmen and the management of Orient paper Mills Ltd. Limited. (hereinafter referred to as "the Company") was referred by the State Government under section 10(1) (c) and (2) of the Indian Industrial Disputes Act, 1962, and (3) (1) of Section 10(2) (d) of that Act, and to the Orissa Industrial Dispute Tribunal, Cuttack for adjudication by the Tribunal enumerating 30 different items of dispute. The special leave in this Court was sought and granted in respect of two matters covering some of these items. The first matter related to fixation of wages, including minimum wages, and this was covered by items Nos. 1, 3, 4, 22 and 26 in the Schedule attached to the Order of Reference. The second matter in the appeal related to bonus covered by item No. 2 of that Schedule. The Tribunal gave its " In the light of these views which were brought to the notice of the Tribunal, the Tribunal proceeded to consider the minimum wages paid by three Collieries, Orient Colliery, Ibe Colliery and Himgiri Rampur colliery, the Rourkela Steel Plant, the Cement Factory at Rajgangpur and the Indian Aluminum Company, Hirakud which the Tribunal found were situated not very far away from the place where the Company had its factory. The workmen in their written statement had relied on the wage structure in these concerns obviously on the basis that they were comparable. The Tribunal mentioned that, according to the Coal Award, the minimum wage in the collieries at the then existing Price Index was Rs. 90 in almost all the cases. In other industries, which are comparatively close to the paper industry at (1) [1963] Supp. 671 Brajrajnagar, the average wage of the lowest paid worker in the Paper Mills of Orissa is above Rs. 93 7 0; in the Colliery Rs. 95.88; in Ibe and Ibe-Rampur Colliersies Rs. 96.84 nP. In the Collierie at the present Price Index Rs. 97. compared with the Company for the purpose of fixation of the minimum wage Consequently, we do not think that there is any justification for departing from the figure of Rs.95 which is the average minimum wage payable by those industries (1) [1963] Supp. 673 We may, at this stage, take notice of the fact that, in con sidering the question of minimum wage, the Tribunal had in view the total wage packet to be received by each workman and, in the opinion of the Tribunal, it consisted of three elements. These elements are basic wage, dearness allowance and production bonus. Thus, the total minimum wage packet which a workman should be entitled to receive was fixed by the Tribunal at Rs. 95. The Tribunal, in its award, held that minimum wage in so far as it consists of basic wage and dearness allowances,, should be fixed at three at the same time as the wage packet of the workmen in the Company 'at Rs. 73 and there should be paid, in addition, production bonus to the extent ofRs. 11 in each case. It was also urged that the wages payable in the " In the present case, the Tribunal chose the course of leaving it to the workmen to ask for increase in minimum wage on any further rise in Price Index and did not consider it advisable to link the wages with it. It was urged that this would cast a heavy burden on the Company. Reference in this connection may be made to the decision of this Court in Hydro (Engineers) Pvt. Ltd. vs The Workmen,(x) where also the Court did not hold that it was compulsory to link minimum wage with the cost of living index and only envisaged that such linking may be permissible by holding that : "It is thus clear that the concept of minimum wage, does take in the factor of the prevailing cost of essen (1) ; 675 tial commodities whenever such minimum wage is to be fixed. It appears to us that an Industrial Tribunal has the discretion, in appropriate cases, of making a direction linking the dearness allowance element of a wage to the Price Index; but, at the same time, the tribunal is entitled to choose the alternative course of making the wage at the prevailing Price Index or, if necessary, leaving the labour to raise a fresh demand and, if R.C. 925. that this dispute was raised by the workmen 'before the expiry of the year 1962 63. Initially, there was an attempt that the dispute be referred to the Industrial (1)[1959] S. 677 Tribunal under section 10(2) of the Act on the basis of an agreed enumeration of subjects of dispute drawn up by the parties and the Company together. The reference was made by the Government on the 4th October, 1962. In fact, the reference included a dispute even for the year 1963 64 which year had not even started running. On the face of it, at the time of the reference, there could be no question of applying the Full Bench Formula for calculation of surplus, because there were no completed accounts for the two years 1962 63 and 1963 64. The balance sheet and the profit and loss. account of that year could only be prepared after the closure of the Year on 31st March, 1963. Further, the Tribunal was expected to decide the dispute only as referred to it and, in the circumstances that, according to the pleadings of the 'tribunal, the dispute was not and there could possibly not be a P.S. Appeal allowed in part. Since, in this
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section K. Chatterjee and section P. Nayar, for the appellant. Appeal No. 647 of 1966. Appeal by special leave from the judgment and decree dated June 19, 24, 1963 of the Gujarat High Court in appeal No. 704 of 1960 from Appellate Decree. The Judgment of the Court was delivered by Sikri, J. N. Shroff, for respondent No. 1. Dholakia and Vineet Kumar, for Respondent No. 2. The appeal is now before us. The learned counsel for the state of Maharashtra , contends ,first, that the High Court erred in holding that there had been a breach of article 311(2) of the Constitution, as, according to him, there was no duty to supply a copy of the report of the enquiry held against the plaintiff. He contends that the State of Maharashtra should not be liable for the payment of arrears of pay due to the appellant (plaintiff) upto the date of the suit. Secondly, he contends that he should not have been dismissed from service, and that the (1) in Union of lndia vs H. C. Goel(1), "the enquiry report along with the evidence recorded constitute the material on which the Government has ultimately to act. That is the only purpose of the enquiry held by competent officer and the report he makes as a result of the said enquiry". It is true that the question whether reasonable opportunity has or has not been afforded to the Government servant must depend on the facts of each case, but it would be in very rare cases indeed in which it could be said that the State of Maharashtra is not prejudiced by the non supply of the report of the Enquiry Officer. Moreover, as pointed out by the High Court, the Inspector General of Prisons had the report before him and the tentative conclusions arrived at by the enquiry officer were bound to influence him, and in depriving the plaintiff of a copy of a report he was handicapped is not knowing what material was influencing the inspector General of prisons. If the report was in his favour, in his representation to the State, he would have put such arguments or material as he could to dissuade the Government from coming to a contrary conclusion " The Lord Chancellor in the course of the speech observed "A point was made before your Lordships which does not appear to have been made in the Court below, that there was no contract with the Crown at all here. It was then said that there were not here concurrent contracts. It will be remembered that the Privy Council had said in Reilly vs R(2) that "their Lordships are not prepared to accede to this view of the contract, if contract there be. The authorities cited_go no further than to say that when there is an engagement between the Crown and a military or naval officer the Crown is always entitled to determine it at pleasure, and that no obligation contrary to that would be recognized or valid in law." Even Lord Goddard, C.J., in Terrell vs Secretary of State for the Colonies(3) observed that "the case (Reilly vs R.) (2) shows
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Ms. Sardar Ali Khan, P. Rajendra Chaudhuri and C. V. Rangam, for respondent No. 36, G. A. Choudhury, K. N. Setalvad and R. C. Sachthey, for respondents No. 37, A. Raghubir and A. B. Dadachanji, for res pondent No. 46. The Judgment of the Court was delivered by Hidayatullah, C.A. Ramachandra, Rao, Advocate General, Andhra Pradesh, A M. Pillai, H. M. Duda and J. R. Ranga Rao, for the petitioners. section Gururai Rao and Subodh Markandeya, for Respondents Nos constitution is to continue in force until altered or repealed or amended by Parliament. The intention here is make every office or employment open and available to every citizen, and inter alia to make offices or employment in one part India open to citizens in all other parts of India. The first clause emphasises that ware shall be in India equality of opportunity for all citizens in matters of employment or appointment to any office under the late. The second clause then specifies a prohibition against discrimination only on the grounds of religion, race, sex, descent, place of birth, residence or any of them. The third clause then makes an exception. The exception, therefore, must be viewed narrowly and not carried to excess by interpretation. Parliament can make any law which prescribes. any requirement as to residence within the State Section 3 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telengana (and we say nothing about the other parts) is ultra vires the Constitution. We accordingly reject the contention of Mr.
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1. Filmistan Distributors (India) Private Ltd. 1. A building in the town of Ahmedabad used as a cinematograph theatre belonged originally to Messrs. Popatlal Punjabhai. R. M. Amin, P. N. Desai and I. B. Kapur, for respondents Nos. 2 and 3. estate of the owners and on August 19, 1954, the receivers in insolvency of the theatre, against Raval and Faraqui, against Tejabwala and also against Baldevdas Shivlal who claimed to be the owner of the Theatre. By an agreement dated November 27, 1954 and dated November 28, 1954 the theatre was leased by the receivers to a company called "Filmistan" for a period of five years. By a lease agreement dated December 1, 1955 and dated December 28, 1955, the Company was granted a lease of the premises for a term of ten years. On September 1, 1963, Filmistan filed suit No. 1465 of 1963 in the Court of Small Causes at Ahmedabad, inter alia, for a declaration that as sub lessee or as lessee under law it was entitled to obtain and remain in possession of the screen of the cinema and to exhibit cinemaatograph films and to hold "entertainment performances" etc. in the theatre It is not open to any Court of law to try an issue over again or reopen the same if an earlier decision operates as res judicata. When the case reached hearing and the evidence of a representative of Filmistan was. being recorded, counsel for the defendants asked in cross examination the question whether the "agreement between the plaintiff and defendant Nos. 5 and 6 was a commercial transaction and was not a lease ?" The question was objected to by counsel appearing for Filmistan. Thereafter elaborate arguments were advanced and the Trial Judge passed an order disallowing the objection. Filmistan feeling dissatisfied with the order invoked the revisional jurisdiction of the High Court of Gujarat under section 115 of ' the Code of Civil Procedure. The objection was raised as 439 an attempt to reopen the previous decision of the trial court on the basis of which it had refused to try issues Nos. 11, 12 & 13 as preliminary issues. A revision application against that order was also filed by Filmistan, which contended that it was a violation of the rights of the parties under the agreement dated November 27, 1954, and that the parties were entitled to a revision of the agreement. The revision petition was entertained and elaborate arguments been advanced at the Bar. The High Court referred to a number of authorities and observed that the correctness of the findings of the Trial (1) that the expression "case" is a word of comprehensive import : it includes a civil proceeding and is not restricted by anything contained in section 115 of the Code to the entirety of the proceeding in a civil court. A case may be said to be a decision of the Court in the course of a suit, if the parties in a suit are satisfied that the Court is disposed of the matter in dispute in the suit, and if the Court has the right or obligation to decide the matter. A matter in contest in a case may operate as res judicata only if there is an adjudication by the Court : the terms of section II of the code leave no scope for a contrary view. A consent decree, accord ing to the decisions of this Court, does not act as a judgment by consent , because a consent decree is merely the record of a contract between the parties to a suit and to which is superadded the seal of the court. 441 In the present case the Court of Small Causes had only decided that a question seeking information about the true legal relationship arising out of the document could be permitted to 'be put to the witnesses for Filmistan. The
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2,68,385 1 3 In the assessment for income tax of the appellants for the assessment year 1952 53 relevant to the account year Samvat 417 2007 all item of Rs. 2,03,147 8 O in the, account of the, Bombay was disallowed by the Income tax Officer, but in appeal the amount was allowed. M/s Amarchand Sobhachand 'a firm registered under the Indian Income tax Act, 1922, carried on business at Madras in drugs, chemicals, mercury, camphor and silk yam and as money lenders. There were two partners of the firm Mohanlal Sagmal and Seshmal Sobkachand, and Ramniklal and Lakshmichand minors were admitted to the benefits of the partnership " The two branches of the question as reframed then are (1) Whether the debt or any part thereof is in respect of loans made by the Bombay firm in the ordinary course of money lending business of the appellants; and (2) whether the debt and any part of the debt is in the course of the business of one or more of the other business of appellants. We are of the view that before the question may be answered, it is necessary to call for a supplementary statement of the case from the Tribunal. The Tribunal 's order is very brief : it gives no reasons in support of the conclusions. The statement submitted by the Tribunal is also inadequate. The argument based on the first part of section 10(2) (xi) that the debts were due in respect to the business or money lending was not The assessee is a Chemists and Druggist in the State of Madras. The assessee had dealings for several years with a firm known as "Bhojaji Sobhachand" (to be hereinafter referred to as the Bombay firm). Sobhachiand Amarchand, a partner in question earlier year, is the father of Seshmal, Ramaniklal and Lakshmichand and he was having sixteen percent share in the Bombay firms. The Bombay firm owed certain amount to the assessee. That firm became insolvent in April 1952. In the assessment of income tax of the appellant for the assessment year 1952 53, relevant to the account year Samvat 2008, the Assessee claimed a deduction of Rs. 2,68,385/
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M/s. Tarapore & Company hereinafter called the plaintiffs applied in Suit No. 118 of 1967 for an interim injunction restraining the Bank of India Ltd. the first defendant in the suit from taking any steps in pursuance of a letter of credit opened in favour of M/s M. Setalvad. V/O Tractors Export, Moscow, the second defendant. M.A. Ramamurthi, J., by order dated April 12, 1968, granted an intermediate injunction restraining encashment of the letters of credit pending disposal of the suit. Appeals from the judgment and order elated October 9, 1968 of the Madras High Court under section 205 of the Government of India Act under O.C. section Mohan Kumaramangalam. Petitions Nos. 401/and 4012 of 1968. AND Civil Appeals Nos. 2183 and 2184 of R. Mukherjea, J., in interpreting the expression "judgment, decree or final order" in section 205 of the Government of India Act, 1935, in Mohammad Amin Brothers Ltd. and others vs Dominion India and others ( 3 ) observed: "The expression "final order" has been used in contradistinction to what is known as "interlocutory order" . . If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive and has got to be tried in the ordinary way, no finality could attach to the order." In Mohammad Amin Bros ' case(3) an issue was decided by the trial court in a petition for winding up of a Company as to the maintainability of a claim for recovery of income tax dues. Against the order deciding the issue, an appeal was preferred to this Court with certificate granted by the High Court under article 132 " In our judgment an order passed by the High Court in appeal which does not finally dispose of a suit or proceeding and do not determine the rights and obligations of the parties for determination in the case or proceeding from which appeal has arisen, is not final within (1) (2) E[1958] S.C. 705 he meaning of article 133(
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J. May 28. 196 of 1954. Under article 32 of the Constitution of India for the enforcement of fundamental rights. The principal question canvassed in this case is whether certain sections of the Taxation on Income (Investigation Commission) Act, 1947, i.e., Act XXX of 1947, have The Commission shall also have power to administer oaths, and shall have all the powers of a civil court under the Code of Civil Procedure, 1908, for the purposes of taking evidence on oath, enforcing the attendance of witnesses and of persons whose cases are being investigated, compelling the production of documents and issuing commissions for the examination of witnesses. The powers possessed by the Commission while After considering the report, the Central Government shall by order in writing direct that such 456 proceedings as it thinks fit under the Indian Income tax Act, 1922, the Excess Profits Tax Act, 1940, or any other law, shall be taken against the person to whose case the report relates in respect of the income of any period commencing after the 31st The learned Solicitor General combated all these arguments and contended that the Act was based on a broad and rational classification, that it only dealt with a group of persons who had evaded income tax from the, beginning of the war, 1st January, 1939, to the period ending with 1st September, 1948, as a consequence 4) of the Indian Income tax Act. Classification means segregation in classes which have a systematic relation, usually found in common proper ties and characteristics. The State can by classification determine who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject, but the classification permissible must be based on some real and substantial distinction When an assessment on escaped or evaded income is made under the provisions of section 34 of the Indian Income tax Act, all the provisions for arriving *at the assessment provided under section 23(3) come into operation and the assessment has to be made on all relevant materials and on evidence and the assessee ordinarily has the fullest right to inspect the 5. For the reasons given above we are of the
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S. Appeal from the judgment and decree dated March 31, 1965 of the Madras High Court in Appeal No. 276 of 1962. The appellant 'brought the suit in O.K. No. 3 of 1961 in the Court of Subordinate Judge, Nagapattinam for setting aside the order dated May 10, 1960 of respondent No. 1 the Commissioner of Hindu Religious and Charitable Endowments, Madras who had affirmed earlier the order of the second respondent, the Deputy Commissioner, holding that the trusteeship of the Kumaran Koil in Manjakollai village was not hereditary. According to the appellant the temple was founded more than two hundred years ago by the members of his community and since then the management of the temple and is affairs was always vested in the community of the Sengunatha Mudaliars and no person other than the elected trustee had at any time the right of management and control of the priest and the priest had the right to appoint the trustees and the trustee was elected for a period of one year each at a meeting of the members " It is true that the artificial definition of hereditary trustee in section 6(9) of the Act would include even such cases. But the election to the office of trustee in the present case is for a fixed period of one year and not for life. The possibility of A being the successor A himself is not merely an anomaly, it is an impossible legal position. No man can succeed to his own office. It is not possible to say that there is a succession of As office to another when on the efflux of the period for which A was appointed
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No. 721 Appeal by special leave from the judgment and order dated January 24, 1967 of the High Court of Mysore in Criminal Appeal .No. 87 of 1967. , These are 14 appellants who appeal against their conviction under section 395 of the Indian Penal Code and sentences of 5 years ' rigorous imprisonment and fine of Rs. 1,000/ passed on them. Originally 20 persons were tried and convicted for the same offence and received a like sentence. The incident which took place on July 28, 1962 was theft by dacoity of certain cotton pieces from two carts within the limits of Lingsugar Police Station at about 11 30 p.m. The facts are that two traders in cloth sent their wares in carts for sale. The cartmen halted after the market was over on the way for food. Thereafter six carts left for Mudgal at about 10 p. m. It appears that four out of the six carts escaped, but two carts were looted. When the carts reached a Nala called Heri Halla about three miles from Lingsugur at about the time of the theft of the pieces from the carts and pelted stones. It was a dark night and the assailants were not identified. The police investigated the case and arrested the 20 persons who were accused in the case as being the culprits involved in this incident. Searches took place between July 30, 1962 and August 17, 1962. The accused were convicted on the sole evidence of having in their possession pieces of cloth which were later identified to belong to the traders. The High Court, and the Court below drew from this the conclusion that the appellants were themselves the dacoits, and convicted them accordingly under section 391 of Indian Penal code and sentenced them to ' 5 years ’ rigorous imprisonment. The Judgment of the Court was delivered by Hidayatullah, C. A. Chari and R. C. It must not be forgotton that the offence was committed at night by as many as 20 persons or more. The houses of 20 persons were searched and large quantities of the stolen goods were found in their houses. (It is, impossible to think that within the short time available, these goods could have been easily disposed of to receivers of stolen property or could be placed in the custody of friends till such time as the original offenders could take them away.) The time gap in some cases is as short as two days and in some others it is not more than five days. In two cases only
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J. D. Chaliha Income Tax Officer, Ward A, Muzaffarpur. Appeal No. 1311 of 1967. This is an assessee 's, appeal by special leave against the judgment of the High Court of Patna dismissing in limini its writ petition under Arts 226 and 227 of the Constitution of India. The assessee is having construction contracts under the Railways as well as the Government. It is a partnership firm. For the assessment year 1960 61, relevant to the accounting year 1959 60, after the assessee submitted its income tax return, it was asked by the Income tax Officer during the income tax assessment proceedings to produce before him its books of account and the other relevant papers. The Assessee produced before him all the relevant papers, including the books of accounts of the firm and of the company. The assessment was made on the basis of the income declared in the return of the Assessee. After enquiry, the Assessees income was assessed at Rs. 69,886/ . On June 3, 1966, the 1st respondent (Income tax Officer Ward 'A ',, Muzafarpur) issued to the assesse a notice under section 148 of the Indian Income tax Act, 1961. The material portion fit case for the issue of notice under section 148. In his report he vaguely refers to certain communications received by him from the C.I.T., Bihar and Orissa. He does not mention the facts contained in those communications. All that he says is that from those communications "it appears that these persons (alleged creditors) are name lenders and the transactions are bogus". He has not even come to a prima facie conclusion 447 that the transactions to which he referred are not genuine transactions. He appears to have had only a vague feeling that they may be bogus transactions. Further his report mentions : "Hence proper investigation regarding these loans is necessary In other words his conclusion is that there is a case for investigating as to the truth of the alleged transactions. Such a conclusion 'does not fulfil the requirements of section 151(2). What that provision requires is that he must give reasons for issuing a notice under sections 148. That is not the same thing as saying that there are reasons to issue notice under Section 148; it is saying that the Income tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year. Before issuing a note to the Commissioner of Income tax, he must be satisfied that he could
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No. 448 This is an appeal by the Union of India by way of special leave. Appeal No. 1653 of 1967. Appeal from the judgment and order dated February 23, 1967 Of the Delhi High Court in C. No. 403 D of 1959. The judgment, reproduced below, was drafted by the late Mr. Justice Roy and we all had subscribed to it. We beard the matter formally again on November 19, 1971. We adopt the judgment as our own. The facts leading to his removal are as follows : Rao was a commissioned officer in the Indian Army and was attached to the Army Ordnance Corps Training Centre, Secundrabad. It was alleged that on April 4, 1958, he committed acts of .gross misconduct. On April 9, 1959, the Central Government directed removal from service of Capt. Rao under r. 14 of the Army Rules, 1954. Rao thereupon filed a petition under article 226 of 18 "Every person subject to this Act shall hold office during the pleasure of the President." Offenses under the have been dealt with in sections 34 to 70 in Ch. VI, of which section 45 is as follows : section 45 "Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court martial, if he is an officer, be liable to be cashiered or to suffer such less punishment
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when taken along with other circumstances, to establish his guilt, and accordingly convicted him both under section 465 and section 409 of the Indian Penal Code. The appellant was a Sub Divisional Officer in the Public Works Department, Pepsu, and was, at the material dates,, in charge of certain works at a place called Karhali. It was part of his duties to disburse the wages to the workmen employed in the works, and the procedure usually followed was ), the question arose directly with reference to section 197(1) of the Code of Criminal Procedure. There, the accused was charged under section 161 with taking bribes, and under section 120 B with conspiracy. It is conceded for the respondent that on the principle above enunciated, sanction would be required for prosecuting the appellant under section 465, as the charge was in respect of his duty of obtaining signatures or thumb impressions of the employees before wages were paid to them. But he contends that mis The question whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a pubic servant. An attempt to answer the question in a generalized way has been responsible for loose language used in some of the cases cited before us. The decisions in Hori Ram Singh vs Emperor(1), and Albert West
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P. 70. Appeal by certificate under Article 134(1)(c) of the Constitution of India from the judgment and order dated 18 3 1969 of the Andhra Pradesh High Court in Criminal Revision Case No. 34 of 1970. The Judgment of the Court was delivered by ALAGIRISWAMI, J. (1970) A. V. Nariman, Additional Solicitor General of India and A. Rangam, for the appellants. The Full Bench speaking through Jaganmohan Reddy, C. L. N. Sinha and K. F. Nair, for counsel for the respondents, was delivered in the presence of R.V. Narasimha Rao, Additional Advocate General, A.R. Narayana Rao, Advocate General of Andhra. This is an appeal. It arises out of a complaint filed against the 1st respondent company and its directors for failure to file with the Registrar of Companies on or before 30 10 1967 the balance sheet and profit and loss account of the company as required under section 220(1) and that the company and the officers were bound to perform their duties under the provisions of section (1) (2) (3) A.I.R. 1918 Calcutta 486. (4) I.L. 1937 Madras 341. If no balance sheet is laid before a general body, there can be no question of that balance sheet not being adopted nor of complying with the requirements of the Sub section (2" of Section 134 of the Old Companies Act or Section 220 of the Act as the case may be, while wilful omission to call the general body meeting and omit to lay the balance sheet and profit and loss account can be filed even though the default may be wilful. The intention is made further clear by the provision under sub section (1) of the respective sections of both the Acts that if the balance sheets is not adopted at the general meeting before which it is laid, a statement of that fact and of the reasons therefore have to be annexed to the balance Sheet and to the copies thereof required to be filed with the Registrar. The same court in Bhagirath vs Emperor(10) took the same view. The decision in Ballav Dass vs Mohan Lal Sadhu(9) did not refer to the wording of the 1) that the balance sheet and profit and loss account, as the case may be, have been laid before the company at the general meeting. This was what the learned Solicitor General was fair enough to point out with regard to the difficulty of working out the daily penalty under section 162 after the thirtieth day mentioned in section 220(1) of the 1.956 Act. He pointed out that where no meeting has been held it was not possible to calculate the penalty in terms of 30 days specified in that section and it might perhaps have been contended with some force that it is impossible to calculate a continuing penalty from a day which has never come into existence. But it appears to us that there is a very clear distinction between sections 32 and 133 on the one hand and section 134 on the other. The difference in language is very clear and pointed. Section 32 relates to the preparation of a list of members of the company and of persons who have ceased to be members as well as a summary, and also provides that it shall be completed within 21 days after the day of the first or only ordinary general meeting in the year. Under section 133 the failure to comply with section 131 is made punishable. It also provides S. The observations which we have extracted earlier will show that the submission on behalf of the prosecution that provisions (1) I.E. 417 of section 26 show that it is a continuing offence and that the obligation to file the
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P. 531 D of 1964. Appeal No. 1604 of 1967. Whether the Federation of Indian Chambers of Commerce and Industry, New Delhi (Respondent 1) is a "commercial establishment" within the meaning of s.2(5) of the Delhi Shops ,and Establishments Act, 1954 (for short the Act) is the sale question that falls for determination in this appeal by certificate directed against the judgment dated February 8, 1967 of the High Court of Delhi. The Judgment of the Court was delivered by SARKARIA J. P. Pai, P. C. Rao and R. G. Mathur, for respondents nos. 1 & 2. The facts bearing on this question may now be stated: Respondent 1 (hereinafter referred to as the Federation) Is a Company registered under section 26 of " 352 It was then contended that the activities of the Federation carried on in the premises in question amounted to "work in connection with, or incidental or ancillary" to trade or business in general within the latter part of the definition of "commercial establishment". This contention was also rejected with the observation that since the earlier part of a definition refers to "some particular business or trade carried on" in a premises, and the later part refers to the activity carried on by the Federation in relation to the trade or trade in general, and not to the work carried on at the premises of the Association, the words "any work in connection or necessary thereto" obviously refer to "trade or business or profession" in the first Counsel, which was more the nature of the Act and not the Act itself. The controversy centres round the questions whether or not the activity of Mr. Jagnmohan Reddy J. speaking for the Court,. posed the question for decision thus : "In our view the linch pin of the definition of 'industry ' is to ascertain the systematic activity which the organization is discharging namely, whether it partakes the nature of a business or trade; or is an undertaking or manufacture or calling of employers". (emphasis added) The answer given to this question has been correctly summed up, in the head note of the Report, as under: "The above being the position in law the were fact that the appellant Federation had charitable aims and objects would not take it out of the determination of industry. The fact of the matter is that the Respondent is a Federation of Federations and not an association of any individual traders, industrialists or businessmen. In R. K. Mittal In R. K. Mittals case, (supra) we would hold that the activities of the Federation are a business activity. It helps businessmen and industrialists by securing for them the services of expert technical men (vide clauses (f) and (k) of the Memorandum of Association). It undertakes regular publication of periodicals, bulletins, Reviews etc. and issues the same to member businessmen and traders. These publications are available on payment of subscription or price even to individual businessmen or traders who are not members of the federation. It will bear repetition that the Federation also
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S.A. Civil Appeal No. 159 of 1974. From the Judgment and Order dated 4 4 1973 of the Punjab and Haryana High Court at Chandigarh in R. N. Goswamy and Arvind Minocha, for the appellant. The Judgment of the Court was delivered by MATHEW, J. Kapil Sibbal and D. Probir Mitra, for respondents. The appellant brought the suit on the allegation that there was one Shiromani Nirankari Dera at Patiala, that this institution had two branches one at Landeke in Moga Tehsil and the other at Nanga Kheri in the erstwhile patiala State, and that he, as mahant in charge of the Shiamani Dera, had the right to recover possession of the properties attached to the Dera. The suit was filed on the basis that the appellant as the lawfully appointed mahant was entitled to manage the properties of the Dera and that the defendant was unlawfully claiming to be the mahant of the dera. The prayer in the plaint was for recovery of possession of properties of Dera and the dera. Som Dass, the defendant, contended that he was not the Mahant of any Dera as he was elected by Shiam Dass as his Chela and for impleading him. As already stated the contention of the claimant was that though the properties belonged to the Deras, he was its lawfully appointed Mahant. The correctness of the date of death of the Dass was contested by Shiom Dass. The trial Court, after taking evidence, found that Som DASS died on 13 10 1970. Thereafter the appellant prayed before the High Court that his application dated 1 2 1971 might be treated as an application for " We also see no reason why the High Court should not have granted leave to the appellant to prosecute the appeal. We allow the appeal but, in the circumstances, make no order as to costs. We are of the view that devolution of the interest in the subject matter of the suit took place when Shiam Dass was elected as mahant of the Dera after the death of Som Dass. In the result we reverse the decree of the court below and direct the High court to dispose of the appeal on merits. Appeal allowed. V.S. 22, R.P. 3 Civil Procedure Code. The Court said that where some of the trustees die or retire during the pendency of a suit and new persons are elected to fill their place and the elected persons can be added as parties under Order 22, rule 10 notwithstanding that the period of limitation for impleading them had expired. In Thirumalai vs Arunachella (2) the Court held that a succeeding trustee of a trustee who filed a suit but thereafter died during its pendency was not legal representative of the predecessor in office. In Roshan Lal vs
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young brother. Appeal by Special Leave from the Judgment and order dated the 22nd July 1974 of the Madras High Court at Madras in Criminal Appeal No. 425 1974. This appeal by special leave is directed against the 4 judgment and order of the, High Court of Madras convicting the appellant (hereinafter to be described as the accused) under section 302 IPC and sentencing him to death. The facts are in a brief compass. The deceased, Viswanatham Pillai, was the village Munsif (Headman). On April 26, 1971, at about 10.00 P.M. he was sleeping on a bench outside his cattle shed in the open space, which is shown in the site plan (exhibit P15) at No. 9. The younger brother of the deceased, Pandurangam (PW 4), who is a leper, was also sleeping on the eastern parapet of the sluice of the north We find that the High Court has not considered the intrinsic quality of the evidence of PW 4. ordinarily in an appeal under article 136 of the Constitution we would have hestitated to go into the facts to reappreciate the evidence. It is, however, not possible to adopt that course in this case where the testimony of the sole witness has been rejected with reference to the 1 second accused who was on the same boat with the appellant. Apart from that we find that there is considerable doubt as to this testimony with regard to seeing the deceased running away from the place where he was sleeping. If the witness is absolutely reliable there can be no infirmity in convicting the accused. If his statement in court that he saw PWs 1, 2 and 3 chasing Karunakaran while running away after the assault is true, it is difficult to appreciate that he would not mention about this
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T. Appeals by Special Leave from the Judgment and order dated the 19 1 1970 of the Andhra Pradesh High Court in Tax Revision Cases Nos 46 and 47 of 1969. The Judgment of the Court was delivered by BEG, J. Ram Reddy and P. P. Rao for the Respondents. The short question before us in these appeals by special leave", is whether sales of Arc carbons, known as "Cinema Arc Carbons", manufactured by the appellant company, were rightly subjected to sales tax for two assessment years 1965 66 and 1966 77 on the ground that they fall under entry No. 4 of the 1st Schedule of the andhra Pradesh General Sales Tax Act, 1957, (hereinafter referred to as 'the Act '). This entry reads as follows: "cinematographic equipment, including cameras, projectors, and sound recording and reproducing equipment 562 lenses films and parts and accesories required for use their with As indicated above Andhra Pradesh High Court. The entry No. 4 occurs in a schedule in which descriptions of goods to be taxed indicate that the expression "required for use there with" has been employed for equipment or accessories connected with the main purpose. We find that the term "accessories" is used in the schedule to describe goods which may have been manufactured for use as an aid or addition. A sense in which the word accessory is used is given in Webster 's Third New International Dictionary as follows: "all objects or device that is not essential in itself but that adds to the beauty, convenience, or effectiveness of something else". Other meanings given there are: "supplementary or secondary to something of
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Civil Appeal No. 1231 of 1968. Appeal by special leave from the judgment and order dated the 20th December 1962 of the High Court of Judicature at Bombay in Civil Appeal No No. 151 of 1960. The question of oral leave is whether Shri Vithal Sukhamai Sansthan at Amalner, (East Khandesh) was a private Devasthan or a public religious trust. The word 'Buwa ' means saint. There was a saint endowed with spiritual powers by the name of Sakharam Maharaj in the year 1817 and he built a temple on the premises of the said saint. The Mr. Bal submits that there is absolutely no evidence in this case about dedication to the public or public user of the temple as a matter of right. Apart from that the temple was shown to have a Manager and not an owner as such. Since the grievance of the appellant is directed against the High Court 's absolute failure to consider all the documentary evidence, we may deal with that aspect first. The earliest document produced in this place is a 'Sanad ' (exhibit 42) of November 1, 1863. This Sanad was granted by the then British Government during the reign of Queen Victoria in favour of "Devasthan Shri Vith The next document is Vyavasthapatra (exhibit 41) of April 25, 1897. Although the High Court has not dealt with this document, there is a reference in its judgment to the contents of the same as being similar to exhibit 35. The donor, an old agriculturist of a different Taluka viz. Erandole, writes: "I give the gift deed in writing as follows: With the object of giving possible help through me to the above sansthan, I have given in gift my ancestral immovable property. Now all our movable and immovable estate is partitioned orally. " The said gift deed was in favour of Arch In Tilkayat Shri Govindlji Maharaj vs The State of Rajasthan and others this Court had to consider about a Hindu temple being private or public and observed as follows: "Where evidence in regard to the foundation of the temple is not clearly available sometimes, judicial decisions rely on certain other facts which are treated as relevant. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. Are the members of the public entitled to an entry in the temple ? Are they entitled to take part in offering service and taking Darshan in the The evidence of the constituted attorney Ramkrishna Deshpande that they "cannot prevent people from going to the temple as the temple is meant for the Darshan in public and not for the puja performed by the devotees under the auspices of the Sansthan" adds to the effect of the documentary evidence produced by the appellant in this case in favour of the same conclusion. It has to be remembered that the founder Sakharam Maharaj was a celibate and the successive disciples who succeeded as Adhikaris of the Gadi were also celibates. From exhibit 35, the first Varaspatra of February 28, 18 R.B. (4) More than a century ago the temple in its own name was recipient of land by Royal grant and the same has been managed
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C.A. 631 of 1976 Appeal by Special leave from the Award of the Industrial Tribunal, Gujarat in Ref. (II) No. 1951/75 and Res. 30 of 1974, pub lished in the Gujarat Govt. Gazette dated 23 10 1975 and Civil Appeal No. 1(1) C.C.631/76. Appeal by special leave in reference (I) no. 1951 of 1975 is directed against the award of the industrial Tribunal Gujarat, dated September 24, 1975, in the dispute between the Alembic Glass Industries Ltd., Baroda, and its workmen, while appeal No. 2(2) is directed in respect of the award the Tribunal made to the workmen of Jyoti Limited, Baroda. These two are companion appeals by special leaves. They have been heard together at the in stance. of the learned counsel for the parties, and will be disposed by a common judgment. The Judgment of the Court was delivered by SHINGHAL, J.S. The demand was resisted by the Companies in both cases. Speaking broadly, the dispute " The matter came up again for consideration by this Court in Technological Institute of Textiles vs Its Workmen and others(2) and it was held as follows with specific reference to the first proviso to section 49 of the Act according to which a person qualified to claim sickness benefit is not enti tled to it for the initial waiting period of two days except in the case of continuous illness of the nature mentioned therein, "With regard to sick leave, the argument on behalf of the appellant was that benefits were granted by the , but .that is not a bar to the demand of the workmen for sick leave. The argument was raised in the Tribunal, but was rejected. It is apparent that the Employees ' State Insurance Scheme does not cover all contingencies of sickness and in any event the first two waiting days are not covered. In our opinion, the tribunal was, there fore, justified in its view that 7 days ' sick leave with wages on pro duction of a medical certificate. A similar question arose for consideration in The Hindustan Times Ltd., New Delhi vs Their Workmen(1) and was answered as follows by the Court, " T. S. Desai has raised the argument, in the case of Jyoti Ltd., Baroda, that the Tribunal laboured under a misconception that 86 the sickness benefit would be lost for the first two days of sickness under the first proviso to section 49 of the Act, that it should not, in any view of the matter, have given the benefit of 7 days sick leave, and that the workmen did not deserve anything more than sickness benefit for the second two days also. According to him, what has been awarded by the Tribunal is additional privilege leave for 7 days in the garb of sick leave. As against this, the Tribunal has examined the financial capacity of the two companies in question, and has given adequate rea sons for holding that they are in good financial position and can bear the additional burden of sickness leave. Learned coun sel for the appellants have invited our attention to the case between the Textile Labour Association
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D.S. Tewatia of the Punjab and Haryana High Court visited the session division of Bhiwani and inspected the Courts from 14 February 1975 to 19 February 1975. He also accepted the hospitality of the Technological Institute of Textiles (Mills) people who also took him for a sight seeing from Dadri to Pilani. Later on he had some pri vate political discussion with the local C.M. leaders. When the members of the Bar who had gone to meet the learned Judge in the P.W. Rest House, BhiWani he discussed politics with " The Full Bench of the High Court consisting of Justice Surjit Singh Sandhawalia, Justice Prem Chand Jain and Jus tice Bhupinder Singh Dhillon extracted portions from the affidavit of the appellants to which references has been made. The deponent most respectfully submits that the contents of the letter which he and others addressed to the President of India cannot be construed as scandalising the Hon 'ble Judge or the Court in any manner to weaken people 's faith in the administration of justice. The letter does not interfere much less substantial ly with due course of justice or proper administration of law by the courts. It was intended R. In view of the fact that the High Court proceeded on the basis that the allegations in the letter were unchallenged we are of opinion that the
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" It is apparent that the petitioner re spondent was claiming relief against the final Inter State seniority list although he was given due opportunity to object to the provi sional list. (Appeal by Special Leave from the Judgment and Order dated 14 6 1967 of the Mysore High Court in Writ Petition No. 3 1338SCI/76 828 The Judgment of the Court was delivered by BEG, J. Narayana Nettar, for Respondents 4 and 5. Shyamala Pappu and Girish Chandra, for the Appellant. The judgment under appeal after certificate of fitness of the case under Article 133(1)(c) of the Constitu tion of India, is very short as it purports to follow the ratio decidendi of Union of India vsG. Shankariah & Ors. Civil Appeal No. 1969 p.1 (C.R. 440/65). Mrs. Shanarras case (supra) in which the petitioner, was given, in the final integration list, a c. 1973 'S.R. 831 "In our opinion the contentions of the learned Additional Solicitor General are well founded. The Central Government, under Sec. 115 of the Act, has to determine the princi ples governing equation of posts and prepare a common gradation list by integration of services. To assist it in the task of inte gration of services and for a proper consid eration of representations, the Central Gov ernment is empowered to establish the validity of the final list. In P.K. Prabhavalkar & Ors. (1) where it was held by this Court (at p. 2102 at 2106. In that particular case, the fist had been prepared without due regard to the particular important points which had to be considered before finalisation. It would, therefore, be quite fair to give a person affected an 'oppo rtunity to be heard against the proposed fist before it is finalised so that any possible mistakes, either on facts relating to his particular case or of law in applying the rules governing seniority to
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J. DAS ACTG. 270 of 1955. Under Article 32 of the Constitution of India for a Writ in the nature of Habeas Corpus. The facts which are not in dispute may be shortly stated as follows. The said Govindji Deoji Halai (hereinafter referred to as the "assessee") is the sole proprietor of a business carried on under the name and style of Indestro Sales and Service Co. at No. 50 52, Lohar Chawl Street in the City of Bombay. Two private limited companies, namely, Indestro India Ltd., and Indestro Eastern Ltd., also carry on business and have their respective offices in the same premises. The assessee is said to have some connection with the two companiesThe nature of which, however, is not quite clear on the record before us 46 tax Act which is impugned before us runs as follows: "46. (a): Section 46(2) of the Indian Income tax Act. (1). The Income tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue: Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1908 (Act V of 1908), a Civil Court has for the recovery of an amount due under a decree. The first objection to the above sub section is that it 893 A. A cursory perusal of the provisions of the different Acts referred to above will at once show that in the matter of recovery of arrears of land revenue the different States have prescribed different machinery, some obviously harsher than others. A Collector in West Bengal proceeding to recover the certified amount under the Bengal Public Demands Recovery Act, 1913 (Bengal Act III of 1913) cannot, under section 31 of that Act, direct the detention of the defaulting assessee in prison for more than six months if the amount is more 896 than Rs. 50. The Assam Land and Revenue Regulation, 1886 (Reg. I of 1886) does not insist on imprisonment at all. The State laws prescribe the procedure for the recovery of income tax as if it were an arrear of land. Section 148 of the U.P. Land Revenue Act) 1901 (U. P. Act R.C. 869. The meaning, scope and effect of the article in question have been explained by this Court in a series of decisions beginning with that in Chiranjit Lal Chowdhury vs The Union of India(1) and ending with the decision of this Court (1) [1950] S. 899 that article 14 condemns discrimination not only by a substantive law but also by a law of procedure". The respective contentions now put forward as to the validity or otherwise of section 46(2) of the Indian Income tax Act have to be judged in the light of the principles so laid down by the Full Court. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from The State of Rajasthan vs Rao Manohar Singhji(2) which is relied on by learned counsel for the petitioner is easily (1) ; ; (2) ; 902 distinguishable on facts for, the law impugned in that case for the first time imposed certain disabilities on Jagirdars of a certain area of the State and there was no evidence that those Jagirdar were in any way different from the Jagirdrs of the other areas of the state. We do not, however, find it necessary to express any opinion on the extreme contention urged by the learned Attorney General, on the authority of that decision, that a mere territorial classification, by itself and without anything else, is enough to place the law beyond the operation of the equal protection clause. For the purposes of this case it will suffice to say that the discrimination complained " This amendment is nothing less than an enactment of a new provision. It lays down a new law which is similar to the law laid down by section 157 of the Bombay Land Revenue Code, 1879. It is true that the warrant of attachment of the property was issued on the 24th March 1954 but the sale proclamation was issued and the sale was actually held after the date of amendment. It was faintly suggested that as the assessment proceedings had been started and the certificate had been issued by the Income tax Officer to the Additional Collector of Bombay and the additional Collector issued a notice of demand and actually attached the properties prior to the amendment, the assessee must be governed by section 13 as it originally stood and not by it as subsequently amended. We do not think there is any substance in this contention. The law was not dead. The defaulting assessee might have paid up the dues in which Mr. Speaker, I am not in a position to comment on the merits of the present law. But the law as it now stands can be supported on the grounds mentioned by my
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Whether the Custodian of Evacuee Property to cancel a lease granted by him under section 12 of the (XXXI of 1950), hereinafter referred to as the Act. Messrs Abdul Karim and Brothers owned, along with certain other properties which are not the subject matter of the present appeal, three mills with bungalows and chawls at Ambernath in Thana District and the Bobbin Factory at Tardeo in Bombay. The appellants are displaced persons, and on 30 8 1952 the respondent entered into an agreement with them, Exhibit A, which is, as aptly characterised by learned counsel for the appellants, of a composite character, consisting of three distinct matters. There was, firstly, a lease of the properties, Exhibit B, under which the mills and the factory in question were But the notice in terms refers firstly to the lease which it is proposed to cancel, and secondly to the movables in respect of which certain directions were given. In their petition under article 226, was the validity of the notice. We must accordingly bold that the respondent was acting within his authority in 'issuing Exhibit C in so far as it concerned the lease granted in favour of the appellants. Section 5 of the Administration of Evacuee Property (Amendment) Act, 1954 (XLII of 1954) enacts the following Explanation to section 12 of Act XXXI of 1950: "In this sub section 'lease ' includes a lease granted by the Custodian and 'agreement ' includes an agreement
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1 (Deft. 2) Khandappa died on June 27, 1960 leaving him surviving his wife Hirabai who is the plaintiff, two sons Gurupad and Shivapad, who are defendants 1 and 2 respectively, and three daughters, defendants 3 to 5. On November 6 , 1962 Rangubai filed special civil suit No. 26 of 1963 in the court of the Joint Civil Judge, Senior Division, Sangli for partition and separate possession of a 7/24th share in two houses, a land, two shops and a number of movables on the basis that these properties belonged to the joint family consisting of her husband, herself and their two sons. Defendants 2 to 5 admitted the plaintiff 's claim, the suit having been contested by defendant 1, who had filed a cross objection to the plaintiff's claim. He contended that the suit properties did not belong to the permanent joint family and that they were Khandappas self requisitions and that, on the date of Khandppa 's 764 death in 1960 there was no joint family in existence. The trial court by its judgment dated July 13, 1965 rejected defendant 1 's case that the properties were khandappa 's self acquisitions and that he had partitioned them during his lifetime. There was, therefore, no question of a fresh partition. As against that decree, defendant 1 filed first appeal No. 524 of 1966 in the Bombay High Court, while the plaintiff filed cross objections. By a judgment dated March 19, 1975 a Division Bench of the High Court dismissed defendant 1 ’s appeal and allowed the plaintiff ‘s cross objections by holding that the suits were not the property of the permanent family, that there was a partition and that the plaintiff is entitled to a 1/4th share each. That, in short, is the case of defendant 1. It will be easier, with the help of the following pedigree to understand the point involved in this appealKhandappa Sangappa Magdum Bhagirathibai Dhundubai Dhapad (Plaintiff) Gurupadi Biyawwa Bhagibai Shivabad (Defendant 1) (De 4. The Hindu Succession Act came into force on June 17, 1956, Khandappa having died after the commencement of that Act, to wit in 1960, and since he had at the time of his death an interest in Mitakshara coparcener shall be deemed to be a partition of the property, the pre conditions of section 6 are satisfied and that section is squarely attracted. Testamentary successive is out of question as the deceased had not made a testamentary disposition though under the explanation to section 30 of the Act, the interest of a male Hindu has in a Mitakshare coparcenary property is capable of being disposed of by a will or other Testamentary disposition. The next step, equally important though not equally easy to work out, is to find out the share which the deceased was entitled to at 766 the time he died. Two things become necessary to determine for the purpose of giving relief to the plaintiff. One, her share in her husband 's share and two, the share of the deceased in his own share. The proviso to section 6 contains the formula for fixing the share and Explanation 1 contains a formula for deducing the share in the interest which her husband had. The plaintiff 's suit, based as it is on the proviso, has to be determined according to the terms of the testamentary instrument, if any, made by the deceased and since there is none in the instant case, by the application of the rules of intestate succession contained in sections 8, 9 and 10 of the Hindu Successulation Act. The deceased had an interest which he had in the coparcenery property at 7 and a share of that interest would have been allotted to the surviving members of that property under section 10 read with Rules 1 and 2 of that section. As between them the two sons, the three daughters and the widow will take equally, each having one share in that property and not in accordance with the provisions of section 8(a) read with the 1st clause of section 9, they take simultaneously and to the exclusion of other heirs. The son, daughter and a widow are mentioned as heirs in class I of the Schedule and therefore, by reason of the provisions thereof, they will be entitled to the same share as the other heirs in the property and to be equally entitled to that share. R.C. Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. Whether a partition had actually taken place between the plaintiff 's husband and his sons is beside the point for the purposes of Explanation. That Explanation compels the assumption of a fiction that in fact "a partition of the 'property had took place", the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share. In order to ascertain the share of heirs in the coparcenary property, it is necessary in the very nature of things, and as the very first step, to ascertaining the share, of the deceased and his coparceners. For, by doing that alone can one determine the extent of the claimant 's share. The assumption which the statute requires to be made that partition had in fact taken place during the course of the life of a deceased and that the share had been allotted by the deceased to the heirs of that deceased, must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. That assumption, once made, is irrevocable. In other words, the assumption having been made, one cannot go back on that assumption and ascertain the amount of the share. What is therefore required to be assumed is that a partition which had actually take place in the life and death of one of the persons in the possession of the estate of the Hindu Mitkshara Coparcener, which would be allotted to the heir of that estate in the manner that would be deemed by one to be, made for the purpose of giving due and full effect to the fiction created by section 18A(9) (b). In our case it is really what was meant by Lord Asquith in his famous passage in East End Dwellings Co. Ltd. vs Finsbury Borough Council. (1) He said if you are bidden to treat an imaginary state of affairs as real, you I. The Hindu Succession provides by section 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as a full owner thereof and not as a limited owner. By restricting the operation of the fiction created by Explanation I in the manner suggested by the appellant, we shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu Woman to acquire an equal status with males in matters of property. We are happy to find that the view which we have taken above has also been taken by the Bombay High Court in Rangubai
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C. The Brief Facts The respondent (husband) married the appellant (wife) as a second wife, way back in 1956, and a few years later had a son by her. The respondent divorced the appellant around July 1962. Thereafter, again they separated, became entranged. A suit relating to a flat in which the husband had housed the wife resulted in a consent decree which also settled the marital disputes. There was a clause in the compromise: G "The plaintiff declares that she has now no claim or right whatsoever against the defendant or against the estate and the properties of the defendant." And another term in the settlement was that the appellant had by virtue of the compromise become the absolute owner of the flat and various deposits in respect of the said flat made with the cooperative housing society. The appellant, finding herself in financial straits and unable to maintain herself, moved the magistrate under section 125 of the Criminal Procedure Code, 1973, for a monthly allowance for the maintenance of herself and her child. 77 M. N. Bhandare, A. L. Karkhanis, Miss Malini Panduval and Mrs. G. K. Verma for Respondent No. N: Criminal Appeal No. 1 379/75. She proceeded on the footing that she was still a wife while the respondent rejected this status and asserted that she is a divorce and therefore ineligible for maintenance. This protracted and fluctuating litigation misfortune has leu to the appeal, by special leave, before this Court. Appeal by Special Leave from the Judgment and order dated 20 10 75 of the Bombay High Court in Criminal Application No. 332 of 1977. The High Court deigned to bestow little attention on the matter and summarily dismissed a revision petition. The Judgment of the Court was delivered by A Prefatory statement KRISHNA IYER, J. M. Sanghi and A. C. Shroff for respondent No. 2. The questions Mooted The appellant contended that the judgment of the High Court had been wrong and that the Courts below had surprisingly forgotten the plain provision in the Explanation (b) of section 125(1) of the Code, which reads: "wife shall be entitled to a monthly maintenance of Rs. 5,000/ and 'iddat ' money, Rs. 400/ for the mother for their subsistence, taking due note of the fact that the 15(3) has compelling, compassionate relevance in the context of section 125 and the benefit of doubt. Ill used wives and desparate divorcees shall not be driven to material and moral dereliction to seek sanctuary in the streets. This traumatic horror animates the amplitude of s.127. Protection against moral and material abandonment manifest in article 39 is part of social and economic justice, specificated in article 38, fulfilment of which is fundamental to the governance of the country (Art.37). From this coign of vantage we must view the printed text of the particular Code. The meaning of meanings is! derived from values in a given society and its legal system. In this generous jurisdiction, a broader perception and appreciation of the facts and their bearing must govern the verdict not chopping little logic or tinkering with burden of proof. Art. 80 section 125 requires, as a sine qua non for its application, neglect by husband or father. The compulsive conclusion from a divorce by a husband and his provision of a separate residence as evidenced by the consent decree fills the bill. The magistrate 's order proceeds on neglect to maintain; the sessions judge has spoken nothing to the contrary; and The High Court has not spoken at all. Moreover, the husband has not examined himself to prove that he has been giving allowances to the divorced wife. Obviously, he has no case of non neglect. His case, on the contrary, is that she has forfeited her claim because of divorce. His plea is his right to ignore. So we must deal with the dual sub heads of the third ground. The next submission is that the absence of mutual consent to live separately must be made out if the hurdle of s 125(4) is to be over come. We see hardly any force in this plea. If law has nexus with life this argument is still born. The last defence, based on mehar payment, merits more serious attention. But what was the amount of mehar ? Rs. 5000/ , interest from which could not keep the woman 's body and soul together for a day, even in that city where 40% of the population are reported to live on pavements, unless she was ready to sell her body and give up her soul ? The point must be clearly under stood that the scheme of the complex of provisions in Chapter IX has a social purpose. The consent decree of 1962 resolved all disputes and settled all claims then available But here is a new statutory right created as a projection R. The conclusion that we therefore reach is that the appeal should be allowed
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W. 365 The deceased Subhadramma was the wife of the appellant. They were married about one and a half years before the occurrence. The accused used to visit his wife and often used to stay in the house of the deceased 's mother. The house consisted of only one room. His mother in law P.W. 2 and her grand mother P. W. 3 were all sleeping in the room. After dinner all of them went to sleep. In the middle of the night P.Ws. Ws. 1 to 3, the neighbourers P. 1, 2 and 3 were awakened by the cry "Amma" raised by Subhadra. They found the deceased bleeding profusely from the left side of her chest. On waking up they saw the accused sitting by the side of the dead with a knife in his hand. They caught hold of the accused and tied him to a pole in front of the house by means of a rope. Some of the villagers who had gathered there also gave a beating to the accused P.O. 1 put his foot on the hand in which the accused was holding the knife. Attracted by the cries raised by the P. O. 1 and M. M. 9 the Village Munsif and reported the occurrence to him. Thereafter, P.M. 9 then proceeded to the police station at Chittoor and informed the Inspector of Police W. was substantiated by what was mentioned in exhibit P. 15 the wound certificate given by P. 13 the Medical officer in respect of the injuries which he found on the person of the accused. The location of the injury was 6 cms. below the arm pit on the left side. The injury was inflicted with great force and its direction was upward. According to the accused the deceased received the injury when she placed herself between P. Ws. 1 and himself. The High Court also concluded from the medical evidence that it was more probable that the deceased was stabbed when she was lying down. We do not think that an injury of the nature received by the deceased could have been caused in the manner suggested by the accused and we do not believe that the accused was capable of giving a version of the circumstances in which the injured was received. We may also refer here to the comment of the learned Sessions Judge. He thought that the prosecution had made an attempt to improve its case which was originally based on circumstantial evidence to made it appear as if P.W. 1 to 3 which was corroborated by the evidence of P. 3 had also seen the stabbing. He commented on the failure of the Police to seize the mat or bedding on which the accused had been sleeping. He urged that the knife was not seized by the Police under any seizure Memo nor was the knife sent to any finger print I. (1) 61 I. 389. (2) A. R.l. v The State of A.C. 1971 S.R. 460. The learned Counsel for the appellant advanced the usual argument submitted in all cases where an order of acquittal is reversed, namely, that where two views of the evidence are possible, the accused is entitled to the benefit of the doubt arising from the two views and that where the Trial Court has taken a possible view and acquitted the accused, the Appellate Court should not interfere with the order of the High Court merely because another view is also possible. The principles are now well settled. If two reasonably probable and evenly balanced views of evidence are not possible, one must necessarily concede the existence of a reasonable doubt. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason"(4). As observed by Lord Denning in Miller vs Minister of pensions(
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Madhya Pradesh Municipal Corporation (Preparation, Revision and Publication of Electoral Rolls and Selection of Councillors) Rules, 1963 (hereinafter referred to as 'the Rules ') promulgated under the Act by the Madhya Pradesh State Government and issued a public notice under Rule 4(1) of the Rules calling upon persons whose names had not been included in the electoral roll and who claimed to be included in i.e. and persons who had any objection to the inclusion of the name of any person in the said electoral roll to submit their claims and/or objections within 20 days from the date of the publication of the said notice before Shri K. K. Pande, Deputy Collector, Raipur who had been authorised to pass orders on such claims or objections. It was also notified that all such claims and objections would be considered in accordance with the provisions of the Act and the Rules. For the purpose of holding election to the office of the Mayor of the Municipal Corporation of the District of Jabalpur in the month of December, 1978 in the 44 constituencies of the district and to the Office of the Chairman of the Board of Directors of the Corporation, the District Council of the City and District Councils of the State of India, and to conduct the election to this office under the provisions and Rules of this Municipal Corporation Act, 1956 (No. 23 The petitioners contended that on October 19, 1978, they had approached the Deputy Collector requesting him to receive their applications for inclusion of their names in the electoral roll on October 20, 1978. The Collector published the notice under Rule 4(1) of the Rules on September 30, 1978 and also called upon interested persons to prefer claims and/or objections thereto within a period of 20 days. In paragraph 7 of the notice, it was mentioned that claims and objections received beyond the prescribed period would not be considered. It was notified that the nominations could be filed on and after Collector drawing the Returning officer on December 25, 1978 on the date of publication of the said notice. It is not the case of the petitioners that they did not know immediately after the publication of such notice that in the same notice it had been mentioned in its preamble as the period within which the claims or objections were to be preferred and in paragraph 7 thereof it was stated that any such claim or objection filed beyond that period was liable to be rejected. If they felt that the notice suffered from any illegality, they could have brought it to the notice of the Collector immediately 496 thereafter. They further pleaded that the authorities would have taken action to correct the error in the notice issued under Rule 2(3) and Rule 4 (3) of Rules granting 20 days to all the persons who were interested in preferring claims or objection to the It was also stated in the news item that the Minister of State for Home Affairs had met the Collector, Raipur Division, on October 21, 1978 and that the Collector had informed him about the error in the electoral roll. It is difficult to place any reliance on the above news item for the purpose of concluding that it was only on December S, 1978 for the first time that the attention of the Collector was drawn to the said error. The other documents produced alongwith the writ petition referred to omissions of certain names from the electoral rolls. They do not show that any 497 of the petitioners had raised any objection with
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Whereas the Government of Bombay is satisfied with respect to the person known as Shri Lawrence Joachim Joseph DeSouza of Bombay, that with a view to preventing him from acting in any manner prejudicial to the relations of India with the Portuguese Government and to the Security of India, it is necessary to make the following Order: Now, therefore, in exercise of the powers conferred by sub clause (1) of clause (a) of sub section (1)( If you wish to make a representation against the order under which you are detained, you should address it to the Government of Bombay and forward it through the Superintendent, Arthur Road Prison, Bombay. To appreciate the points thus raised, it is necessary to have an idea of the grounds of detention as furnished. They are to be found from the relevant communication to the detenue which is as follows: "In pursuance of section 7 of the (Act IV of 1950) you are hereby informed With the financial help given by the Portuguese authorities, he is carrying on espionage on behalf of the Portuguese Government with the help of underground workers. 1.He is collecting intelligence about the security arrangements on the border area and making such intelligence available to the British authorities. 2.He has been involved in the activities of the Goan National Movement. 3.The right to be afforded the earliest opportunity of making a representation against his detention (1) ; ,184. 391 which implies, the right A. A faint suggestion has been made in the course of the arguments before us that the decision not to disclose particulars is mala fide and that such m
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Tata Consultant Engineers Ltd. Appeal by Special Leave from the Award dated 20 12 1978 of the Industrial Tribunal Maharashtra in Reference (IT) No. 292 of 1975, published in Maharashtra Government Gazette dated 15th February, 1979. Civil Appeals Nos. 2299 and 2300 of 1979. This appeal by special leave has been preferred by Tata Consultancy Engineers against an award dated 20th December, 1978, in which the State Government made a reference of the dispute under section 10(1) (d), Industrial Tribunal, Bombay revising the wage scales of certain categories of employees and granting various other benefits. The Reference was numbered I. B. PATHAK, J. H. Dadachanji, O. G. Pai, Manick K. Tarkunde, P. M. Mathur and K. V. John for the Appellants in CA No. 2 299 and Respondents in CA 2300/79. The appellant is a subsidiary of Tata Sons Limited. It functions as a consulting organisation and a service industry, and does not manufacture any product or carry on trade. Its work force consists of engineers and supervisors and different categories of workmen. Out of 665 employees at Bombay, the draftsmen and the administrative staff number 306. These workmen are members Draughtsman Rs. 760 40 1000 50 Rs. 530 40 730 50 Supervisor/ 1020 EB 50 1320. 60 1700. II Driver/Asstt. Assist./ Administrative Assist./Personnel Asstt./Comm. Optr./Recep tionist/Assist. Caretaker. III Jr. Clerk cum Rs. 660 EB 25 785. 800 EB 30 950. IV Sr.Clerk/Steno/ Rs. 550 25 675 30 Record Keeper/ 30 860 EB 35 1000. Operator/ Xerox Operator V Office Astt./ Rs. 1000 50 1300 Rs. 1230 EB 60 1530. Surveyor/(Diploma Holder). VII Junior Architect Rs. 860 50 1160 (Engineering 1300. Graduate) VIII Sr. Mechanic/ Jr. Librarian. Rs. 975 EB 40 1175. 70 1690 80 2010. The Tribunal also noted that after the salaries of the employees had been fixed in the respective scales, senior employees would have to be given some more increments in the new scales according to their completed years of service. Taking all these factors into consideration, it made an award dated 20th December, 1978 prescribing the following revision in the existing scales of wages: Grade & Category Existing Grade/ Revised " The jurisdiction given to the Tribunal by rule 31 is closely circumscribed. Rule 31 provides: "31. The Labour Court, Tribunal or Arbitrator may correct any clerical mistake or error arising from an accidental slip or omission in any award it or he issues. It must not be a mistake that calls for rectification by modification of the conscious adjudication on the issues involved. It is a clerical error which can be rectified only by the Labour Court or Tribunal under rule 31 of the Industrial Disputes (Bombay) Rules, 1957. Is the instant case one where the amendment made by the Tribunal in the original award can be said to correct a mere clerical mix or error in the award? To answer the question, it is necessary to examine the basis of the award and the intent which flows from that basis. Considering the appeal of Tata Consulting Engineers first, the contention of learned counsel for the appellant is that having regard to the financial capacity of the appellant the Tribunal erred in making the wage scales retrospective and, in any event, in ranging the retrospectivity back to 1st January, 1976. We have been taken through some of the material on the record in the attempt to support the contention, but after giving careful thought to the matter, I think there is ample justification for what the Tribunal did. The Tribunal has referred to various " 177 And the clinching circumstances of all is that the award was made on the basis that the overall financial load according to paragraph 33 of the award would be to the tune of about Rs. 5 lakhs. It was that figure which the Tribunal had in mind against the backdrop of the gross annual figures when it made the revised pay scales retrospective from 1st January, 1976. Even when considering the range of permissible retrospectivity the Tribunal stated in the award: "In view of the revision of the wage scales, there would be consequent increase in the dearness allowance and the house rent allowance. This liability taken with the liability accruing on the need to increase the salaries of the other staff determined the Tribunal 's deliberations in regard to the several features of the order, including the grant of increments related to completed periods of service, the expansion of the span from 15 years to 20 years for earning increments, and other benefits. It cannot be the case of the Union that the figure of Rs. 150/ and Rs. 75/ per month were given to individual workmen of all categories the total increase would be Rs. 7,64,256/ . The statement then goes on to indicate that if a flat increase of Rs 100/ was added to the pay of each individual workman, including Draughtsmen, the 299 was placed on The Hindustan Times Ltd., New Delhi vs Their Workmen where it was observed by this Court that dearness allowance should not remain fixed at any figure but should be on a sliding scale in order to neutralise a portion of the increase in the cost of living. Reference was also made to Bengal Chemical & Pharmaceutical Works Limited vs Its Workmen. The Tribunal, in the present case, considered the matter and found it sufficient and in accord with justice that the wage scales should be restructured with suitable increments provided therein. The award is a composite document in which the several elements of increased wage scales, larger increments, longer span of 20 years for earning increments, dearness allowances at 10% of the basic wage, besides several other benefits, have been integrated into a balanced arrangement in keeping with what the Tribunal has found to be the financial capacity of the appellant. It was open to the Tribunal to adopt the position which it did. In the result, Civil Appeal No. 2299 of 1979 is allowed in part insofar that the order dated Appeal No Industrial Tribunal, Maharashtra Bombay is quashed to the extent that it modifies the original award dated 20th December, 1978, and the corrigendum made consequent thereto is also quashed. It is not possible to maintain one part of the award The Tribunal made an order on the same day in the following terms: "There can be no doubt that a flat increase of Rs. 150/ to each of the employees in the category of Draftsmen and the other categories has been granted under my award. Since the award has been already signed, I do not think anything further can be added to this award". This order was made in the presence of Shri Manak Gagrat, Advocate for the Company and Shri N. P. Mehta. The primary and basic question considered by the Industrial Tribunal, in making the award dated December 20, 1978 was the question of revision of the wage scales. The same has been made clear in paragraph No. 23, but it appears that the words "to each employee" after the figure "Rs. 100/ " were omitted. Similarly, the same words "the salary of each employee in the other category" were omitted in the same paragraph. When the award is sent for publication, a necessary corrigendum be made to the award and the aforesaid words after the figures Rs.150/ and Rs.100/ be added. This in our opinion is a clear indication of the fact that the issue of wage scales is elementary and fundamental to the jurisdiction of the Industrial The employer might contend that the Tribunal had only revised the wage scales by increasing the salary on entry into the service and res 184 tructuring the scale of pay and never granted any ad hoc increase of salary to all employees. We are unable to see how it can be held to be otherwise. Immediately after the award was pronounced, while the iron was still hot as it were, the employees apparently realised that the employer might take advantage of the circumstance that it was not clearly mentioned in the award that all the employees were to get additional pay of Rs. 150/ and Rs. 100/ above the existing wage scales. Therefore, they filed an application before the Tribunal for correcting the award so as to bring out what was intended. We have already indicated that we agree with our brother Pathak, J., that the appeal (Civil Appeal No. 2300 of 1979) filed by the workmen should also be dismissed. While workmen raising industrial disputes for revision of wage scales are certainly minded about their future prospects in the matter of wages, they, surely would
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M.T. Desai, A.K. Garg, Mrs. Urmila Sirur and Shiv Pujan Singh, for the Respondents. S. Sampath, Mukul Mudgal and Raju Ramachandran for the Appellants. ivil Appeal No. 196 of 1 970. (b) of clause (I) of Article 133 of the Constitution granted by the Allahabad High Court against its judgment and decree dated April 21, 1969 disposing of appeals out of a suit for declaration and possession. Math Sauna is an old Math situated in the village of that name in Tehsil Saidpur in the district of Ghazipur. One of the earliest Mahants of the Math Mahant Gokaran Yati, raised a temple in the premises of the Mat and installed a deity acclaimed by the name of "Gokarneshwar Mahadeo". On his death he was succeeded by Mahant Shivbaran Yati who executed a waqf deed on November 12, 1892 dedicating various properties to the deity with the intent that arrangements for bhog, deepdan and other expenses be met from them. These properties included properties in village Amauli. It was claimed that in the event of Mahant Sadashiva Yati being found out of possession a decree for possession should be made. The suit was contested by the first defendant, Kedar Nath Chaubey, also referred to as Uma Shanker Yati. The plaintiffs filed a suit claiming that the property in dispute belonged to the Math Math or the deity Sri Thakur Gok Karneshwar 661 Mahadeoh Ji, that the Amaulis were owned by Mahants Shivshanker and Sadashiv Yati as Mahant and Sarbarakar of the deity. The learned Civil Judge decreed the suit but included a finding in his judgment that Sad On his death in 1917, the fund passed to Mahant Shivshankar Yati, who in 1921 employed it for the purchase of the Amauli properties. It is urged for the appellants that where a nucleus of dedicated property exists, the acquisition of additional property should be attributed to the application of the nucleus and must, therefore, be regarded as property belonging to the Math or the deity. As has been observed, there can be no presumption either way. All the facts and circumstances must be taken into consideration and on a balancing of the entire evidence it has to be determined whether the property can be said to belong to a Math or deity or is the personal property of the Mahant, the burden of proof resting on the party who makes the claim. In the present case, it is difficult to conclude from the material before us that the total income from the properties belonging to Math and the deity left any appreciable surplus after meeting the expenditure on account of bhog, arpan, deepdan, daily and annual puja and the other obligations specified in the waqf deed.
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Civil Appeal No. 213 of 1979 6 Appeal by special leave from the judgment and order dated the 15th April, 1978 of the Madhya Pradesh High Court in Misc. Petition No. 555 of 1977 filed by it in the High Court of the Constitution. The Judgment of the Court was delivered by CHANDRACHUD, C. L. Sinha, Attorney General, R.J. Datar and Miss A. Subhashini for the Appellants. Civil Appeals Nos. 1025 and 1026 of 1978 are by Western Coalfields Ltd. Petition o. ivil Appeal Nos. 61 and 62/78 respectively. Petition Nos. 63 and 64 of 1978 were filed by the Government of India. The appellant, Bharat Aluminium Company Ltd., is a Government Company incorporated under the Indian Companies Act, 1956, with the entire share capital being owned by the State of India, and the shares of the Company in the Company being held in trust for the benefit of the State Government, with a portion of the shares being held by the Company and the remainder of the Shares and the remaining shares and shares in trust being held for the Benefit of the Government and the Company, with all the shares, the entire shares and the whole share capital of the entire Company being owned and the entire Share capital being a part of Government of the India. Civil Appeal no. 555 was filed out of Misc. Industrial Corpn. Ltd. of Delhi. Appeals No. 61/78 and No. 62/79 were filed out from Misc. Commercial Corpn Ltd. Ltd., of Delhi 9 The Madhya Pradesh Municipalities Act, 1961 empowers a municipal council to impose, in the whole or any part of the municipality, "a tax payable by the owners of houses, buildings or lands situated within the limits of Municipality with reference to annual letting value of the house, building or land called property tax". The corresponding provision in the Madhya Uttar Pradesh Municipal Corporation Act, 1956 in respondent Rs 1977 for 1977 respondent Rs the city is section 132 (1)(a). It says that "the Corporation shall charge, levying and paying for each financial year a tax on the lands or buildings or both situate in a municipality other than class IV municipality at the rate specified in the table below: (i) where the annual letting 6 per centum value exceeds Rs. 1,800 of the annual but does not exceed letting value. (ii) X X X O X X (iii)X X O O OO OO (iv) X OO X OOOO OOO (v)X O OOO OOOO (vi) XOO XO XX X (vii)XO X XOX XX (viii) XX OOOX X XXX (ix)XX OOXXOX (xX) (xx) The property tax levied under sub section (1) shall not be leviable in respect of the following properties, namely: 10 (a) building and lands owned by or vesting in the Union Government, not the City Council; (b) land owned by the Company; (c) property owned by it; and (d) property which is in the possession of it provided it is A. Petitions Nos. 13211 of 1979 and 3767 of 1980 are for intervention by the Jammu and Kashmir State Agro Industries Corporation Ltd. and the Delhi Municipal Corporation respectively. The Writ Petitions (61 and 62 of 1978) filed by it were dismissed by the High Court, following the judgment delivered in the Writ Petition filed by the Bharat Aluminium Company Ltd. In Special Leave Petition No. 10688 of 1979 filed against the judgment, the question raised is whether the property of a public corporation owned wholly by the State Government and the Union Government is exempt from taxes by reason of articles 285 and 289 of the Constitution. The learned Attorney General, who appears on behalf of the appellants, has raised four or five principal points, any one of which, if accepted, will result in the success of these appeals. However, we are unable to accept any of these. We have allowed both the parties to intervene in this appeals. The first contention of the learned Attorney general is that respondent I can exercise only such powers to levy property tax as the Municipal Corporation or the Municipal Council had under the Madhya Pradesh Municipalities Corporation Act, 1956, or the North Indian Municipalities Act, 1961, as these Acts stood on 12 February 27, 1976, when clause (d) was inserted in its present form in section 69 of the Act of 1973. Section 127A and section 135 which, by their own force, create and levy the charge of property tax were inserted in the municipalities of North India and North India respectively with effect from April 1, 1976. Relying on this, it is argued that respondent 1 was incompetent to exercise the powers of the Municip 1 Section 69(d) of the Act of 1973 must accordingly be read to mean that respondent 1 shall have all the powers of taxation which a Municipal Corporation or a Municipal Council has for the time being, that is to say, at the time when respondent 1 seeks to exercise those powers. It provides that, for the purpose of taxation, the Special Area Development Authority shall have both be on lands and buildings. The learned Attorney General contends it is not possible to bring to mind the taxing authority where it wants to be on land or the buildings. This contention is devoid of substance. As observed in Nathella Sampathu Chetty, there is a distinction between a mere reference to or a citation of one statute in another and an incorporation which in effect means the bodily lifting of the provisions of one enactment and making them part of another, so much so that the repeal of the former leaves the latter wholly untouched. A reading of the reference to the two earlier Municipal Acts as a reference to those Acts as they stand at the same time when the power of taxation is sought to be exercised by respondent 1, will not, possibly, cause repugnancy between the two previous Acts on one hand and the act of 1973 on the other, nor indeed will it cause any confusion in the practical application of the earlier Acts. The case therefore is not one of incorporation but of mere reference and not of incorporation. The first contention of the Attorney General must therefore fail. It rests content by pointing its finger to the provisions contained in the two Municipal Acts. Apart from this the position is put beyond doubt by the language of sections 129 and 133 of two Acts. Section 129 of the Madhya Pradesh Municipalities Act presc " In Heavy Engineering Mazdoor Union vs The State of Bihar & Ors., the Heavy Engineering Corporation Limited was incorporated under the and its entire share capital was contributed by the Central Government. Under section 5(1) of the Coal Mines (Nationalisation) Act, 26 of 1973, which applies in the instant case, the right title and interest of a nationalised coal mine vest, by direction of the Government, in the Government company. It was therefore a Government Company under section 617 of the . On the question as to whether the Corporation carried on an industry under the authority of the central Government within the meaning of section 2(a) and whether it was a legal entity under the , it was held by this Court that an incorporated company has a separate existence and the law recognises it as a juristic person, separate and distinct from its members. Property of the Company is not the property of the shareholders. A shareholder has merely an interest in the Company arising under its Articles of Association, measured by a sum of money for the purpose of liability, and by a share in the profit. In Rustom Cavasjee Cooper vs Union of India (The Banks Nationalisation case) it is stated that there are only two decided cases where the court has disregarded the separate legal entity of a company and that was done because the company was formed or used to facilitate the evasion of legal obligations. Gajendragadkar, C. J., while speaking for the Court, referred to the judgment of Lord Denning in Tamlin vs Hansaford in which the learned Judge observed: "In the eye of the law, the corporation is its own master and Development powers and duties of Mines and Minerals (Development and Regulation) Act, 1957. Section 68 defines the functions of the Special Area Development Authority, one of which, as prescribed by clause (v), is to provide the municipal services as specified in section 123 and 124 of the Madhya Pradesh Municipalities Act, 1961, and Section 69, which provides for the constitution of the special areas, lays down by sub section (3) that: Notwithstanding anything contained in the Madhyamik Municipal Corporation Act, 1956, the State Municipals Act, 1962, the local Government to be constituted under Section 5 Section of the Act of 1973, or any other Act of the State Legislature, or the Panchayats Act, as the case may be, shall, in relation to the special area and as from the date the Special area Development Authority undertakes the functions under clause (iv) or clause (vi) of section 68 cease to exercise the powers and perform the function and duties which the Special Agency Development Authority is competent to exercise and perform under the Act Of 1973. Section 64 of the M.P. Act, under which Special Areas and Special Area development Authorities are constituted afford an effective answer to the Attorney General 's contention. Apart from the fact that there is no data before us showing that the property tax constitutes an impediment in the achievement of the goals of the Coal Mines Nationalisation Act, the provisions of the S.A.D. Act provide that those powers are conferred the State Government, not the Parliament, and that the purpose of this Act is to ensure the rational, coordinated and scientific development and utilisation The decision of a Constitution Bench of this Court in The Ishwari Khetan Sugar Mills (P) Ltd. vs The State of Uttar Pradesh & Ors., is even more to the point. In that case, under the terms of a mining lease, the lessee worked the mines and bound himself to pay a dead rent if he used the leased land for the extraction of iron ore and to pay surface rent in respect of the surface area occupied or used by him. The proceeds of the land cess were required to be credited to the District fund which had to be used for everything necessary for or conducive to the safety, health, convenience or education of the inhabitants or the amenities of local area concerned. The decision of the Madras District Boards Act, 1920 was held to have been repealed by the Central Act viz. the Mines and Minerals (Regulation and Development) Act, 1958, and the . This contention was repelled by this Court by holding that sections 78 and 79 of the District Boards Government Act had nothing to do with the development of mines and minerals or their regulation. It was further held by the Court that under the provisions of the Act, the State Government had no power to regulate or develop mines or minerals and that the mining leases were subject to the legislative competence of the State Legislature. Demands were made upon the land lessee for successive years for the payment of land cess under the amended section 10(2) of the Bihar Land Reforms Act, 1950. Those demands were challenged on the ground, inter alia, that the provision imposing the land tax quoad royalty under the Mining leases was not within the jurisdiction of Parliament. This Court held that the pith and V. Appeals dismissed. We adopt, particularly, the reasoning of the High Court that in the meeting of January 29, 1976, respondent
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C. The Central Health Service was formed more than two decades ago and was intended to replace the Indian Medical Service, but the recruitment rules were not framed till the year 1963. The Service was constituted for providing doctors for manning the medical, public health and medical research and teaching posts in the Central Government hospitals, dispensaries scientific research institutions and institutions of higher education. Under r.309 of the Constitution, the President on May 1, 1963 made the Central Heath Service Rules, 1963 which came into force 18 on May 5, 1963. By a notification dated January 1 The Third Pay Commission observed that the present structure of the Central Health Service is in the public interest and is essential for the maintenance of efficiency. It accordingly recommended a structural reorganization of the cadre of Specialists to get over these difficulties and to ensure that the GDOS Grade I, Hospital Specialists and Teaching Specialists have reasonable 21 promotional opportunities in their respective fields. The Commission also recommended a scheme of special merit promotion for the medical services on the following lines: "Doctors in Specialists ' Grade I in the revised grade of Rs. 1800 2250 and Dr. Asim Kumar Bose Radiologist, Irwin Hospital, New Delhi. As a consequence of a successful academic career as a teacher of post graduate courses in the Christian Medical College & Hospital, Vellore, the appellant was appointed as a Lecturer in Radiology under the West Bengal Health Scheme and held that post from January 2, 1961 to January 12, 1963. The State Government of West Bengal were pleased to depute him for the task and he apparently performed and fulfilled his duties to the entire satisfaction of the authorities. On January 14, 1963 the It is a fortuitous circumstance that a medical graduate regularly as a doctor is also permitted by the Government of India in the Ministry of Health & Family Planning to take up a teaching assignment in the Medical College, Rohtak. The medical graduates who opt for a teaching career, join a cadre different from that of the career of Doctors. In the words of the High Court, "they tie down their fate to the teaching career and expect promotions to various posts in their channel of promotion i.e. in the cadre of teachers. The appellant assailed the impugned order by " It is somewhat strange that alongwith the aforesaid note, the Ministry had produced a letter of the Dean, Maulana Azad Medical College dated January 25, 1982 addressed to the Secretary, Ministry of Health & Family Welfare which tends to show that Dr. Bose while performing his duties as Radiologist was not lecturing to the students as an Associate Professor is required to do. The letter is self explanatory and reads : "With reference to the telephonic conversation with Sri R.L. Tewari with respect to the question received from the Supreme Court regarding Dr. A " Instances are not uncommon where Specialists have been promoted as Professors of their concerned speciality. One instance of this as given by the appellant is of his immediate predecessor Dr. O.P. Bhardwaj, Radiologist cum Reader in Radiology ex officio) in the Irwin Hospital who was appointed as Professor of Radiology in the Maulana Azad Medical College; and presently is Dean, Jawaharlal Institute of Post Graduate Medical Education & Research, (JIPMER), Pondicherry. The other instances that we could gather " We must first deal with certain amendments in the Rules prescribing the mode in which the posts of Professors and Associate Professor can be filled in. By amendments dated February 21, 1968 and September 18, 1971, paragraphs 2 (b) and 3 of Annexure I to the Second Schedule and sub r. 8 were inserted respectively. These amendments have brought about a change inasmuch as there is now a vertical channel of promotion to the teaching posts upto the post of Associate Professor. Normally, a Professor or an Additional Professor in a medical college or teaching institution can (2A) of r. 8 contains a non obstante clause and it reads : "Notwithstanding anything contained in sub r.(2) the vacancies in the post of Associate Professor and Assistant Professor in the medical colleges and teaching institutions shall be filled by the appointment of Assistant Professors and Lecturer respectively in the Specialists ' Grade, possessing the qualifications and experience prescribed in Annexure I to the Second Schedule for the respective post, on the recommendation of a Departmental Promotion Committee. Provided that if no suitable officer is available for appointment to R. 8 (2A) and paragraph 3 of Annexure I to the Second Schedule must be interpreted in a broad and liberal sense as it would otherwise work great injustice to persons in Specialists Grade II like the appellant who, while holding a non clinical post in a teaching hospital like the Irwin Hospital, has been actually teaching the students of the Maulana Azad Medical College to which it is affiliated. We find it rather difficult to support the impugned action of the Government of India in the Health Ministry in holding that the teaching experience gained by the appellant as Radiologist cum
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" We now proceed to state in this judgment the reasons in support of our aforesaid conclusion 579 In July, 1966, the appellant Ved Gupta decided to embark upon a venture to construct and operate an air conditioned Cinema in a plot of land which he proposed to take on lease in Gandhi Nagar, Jammu, in Collaboration with two osher persons, namely, Todar Mal and Kishan Kumar. Thereafter, under a deed dated July 15, 1969, the aforesaid three persons entered into a partnership along with 11 others under the name and style "Metro Theatres" for carrying on the business of constructing and running a modern air conditioned cinema in the proposed site, a detailed description of which was furnished in the plan annexed to the application. Shri Ved Gupta was informed by the District Magistrate of Jammu by his Memo (Annexure B) that the Government had approved the construction of a Cinema Hall at the said site and had granted the requisite permission in his favour as per letter dated September " Soon thereafter, on December 3, 1975, Todar Mall who had retired from the firm and Krishan Kumar who continued to be a partner jointly issued a notice to the District Magistrate, Jammu, claiming that their names should also be included in the licence issued to Ved Gupta in respect of the Apsara Theatre. Subsequently, on January 26, 1976 he addressed a communication to the Magistrate stating that he had not actually signed the notice sent by the firm, but that he was the 582 property of the firm by virtue of clauses 13 and 18 of the deed and since Ved Gupta had been expelled from the partnership had thereby be connected with the partnership and the said notice may, therefore, be treated as fictitious. Strangely, after the expiry of nearly two years thereafter, Krishan Kum submitted an application for the renewal of the licence in the name of Ved Gupta. Notice of the said application was issued by the District magistrate to Shri Ved Gupta and a detailed order was passed by him to both sides were heard 9. In being served with the order of injunction, Ved Gupta wrote to the District Magistrate on September 24, 1980 that it had become impossible for him to operate the Cinema licence in view of the temporary injunction issued by the District Court and since it is only the licensee who is held responsible under the Act and the Rules for due compliance with all the terms and conditions of the licence and answerable to the licensing authority for all commissions and omissions in the Cinema premises, he may be saved from any prosecution or other action under law in the capacity of licensee of the Apsara Theatre in respect of any illegal acts or offences committed by others in the said premises. City by his letter No. 1/Conf.A No. 16.80 has intimated that there was exhibition of films on 25th September, 1980, in Apsar Theatre by persons other than the licensee; And whereas under the provisions of the Cinematograph Act, read with rules, none other than licensee is permitted to exhibit films during the currency of the license without permission of the licensing Authority; Now, therefore, I, A. Mir, J.P. Sahasranaman, Magistrate, Jammu, hereby order M.P. No. 2611 A of 1981 has been preferred against the order passed by the Division Bench C.M. 454 of 1981 that the Letters Patent Appeal will stand allowed in conformity with the view taken by the Acting Chief Justice in his judgment. Aggrieved by the decision of the High Court, Ved Gupta has filed these appeals after obtaining special leave from this Court. The sole question raised in C. M. 4 54 of 1981 relates to the legality and correctness of the procedure adopted by the High Chief in allowing the Letter Patent Appeal in the manner indicated above. The learned Judges took the view that Rule 23 of the Jammu and Kashmir High Court Rules, 1975, squarely covered the situation that had arisen before them. Rule 23 is in the following terms: "23 (1) In the event of a difference of opinion among the judges composing any bench of the court, the decision shall be in accordance with the opinion of the majority of the Judges. (2) If the Judges composing the bench are equally divided on any point, they shall state the 6 F. From the facts set out above, it becomes manifest that rightly or wrongly, the licensing authority had granted the licence in respect 588 of the Apsara Theatre to Ved Gupta treating him as the sole licensee. The renewal of the licence by the District Magistrate under the Act and the Rules was granted to him in his individual capacity and he alone was the licensee. No steps were taken by Krishan Kumar to challenge the said order passed by the D Magistrate. In the view of the preceding factual history of the case, there was no scope in law for countenancing any contention being advanced on behalf of the firm that Ved Gupta had obtained the licence and had been holding the same for the benefit of the partnership. The challenge raised by Todar Mal against the refusal by the Magistrate to include the names of himself and Krishan in the licence was rejected by the High Court as well as by this Court. Hence the factual situation was that the licence granted by the Department of Cinematography and the licensing Authority was in favour of Ved Gupta in his own individual capacity. In proceedings to which the licensed authority was a The learned Acting Chief Justice of the Supreme Court of India has held that the District Magistrate of Jammu and Kashmir had no authority to suspend the licence of Apsara Theatre in the capacity of Ved Gupta in his personal and individual capacity. This finding is based largely, if not wholly, on the premise that the firm of partners had derived a "right and interest in the licence" and that "the revocation or suspension of the licence has the potential of seriously affecting the proprietary and business interests of the partnership". We have already recorded our conclusion that Ved Gupta was the sole licensee in respect of the Theatre and that the firms of partnership could not be regarded either as licensees or persons having an interest in licence. It is now relevant to recall that what has happened in this case is that in a suit filed by Krishan Kumar along with 11 other partners, an order of temporary injunction was issued on September 23, 1980, restraining Ved Gupta from interfering in any manner with the running of the theatre by the plaintiffs. The effect of the order was to make the licensee responsible to the authorities under the statute for the due discharge of the obligations P. No. 261 l A of 1981, is directed against the order passed in C.M. Civil Appeal No. 2611 of 1981 and setting aside the judgment of the Division Bench. As already observed by us, the impugned order is not one suspending the licence issued in respect of the Theatre. What was done thereunder is to suspend the exhibition cinematograph films in the Theatre by persons other than the licensee. No legal right or legitimate expectation of the firm or its partners can be said to have been affected by the said order passed by the District Magistrate, for the simple reason that no person can be recognised as having a right to contravene the provisions of the statute prohibiting exhibition of cinematographic films in public by any one other than its authorised representative. The writ petitioners could not also have any legitimate expectation that they will be allowed to run
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