judgement stringlengths 875 654k | summary stringlengths 200 73.4k |
|---|---|
Appeal No. 118 of 1953.
Appeal from the Judgment and Decree dated the 28th July 1949 of the High Court of Judicature for the State of Punjab at Simla in Civil Regular First Appeal No. 365 of 1946 arising out of the Decree dated the 31st day of October 1946 of the Court of the SubJudge, 1st Class, Pathankot in Suit No. 110 of 1945.
Rajinder Narain, for the appellant.
K. L. Gosain (R. section Narula and Naunit Lal, with him), for the respondent.
January 21.
The Judgment of the Court was delivered by DAS J.
This is an appeal by the plaintiff in a suit for a declaration of his title as collateral within ' four degrees of Gurdial, who was a Sarswat Brahmin, resident of Pathankot in the district of Gurdaspur and the last male holder of the properties in suit.
Gurdial died many years ago leaving certain lands in villages Bhadroya, Kingarian and Pathankot, Tehsil Pathankot in the district of Gurdaspur, and leaving him surviving his widow Musammat Melo and a daughter Musammat Maya Devi, the respondent before us.
Some time in the year 1926, a portion of the land in village Bhadroya was acquired for the Kangra Valley Railway and a sum of Rs. 1,539 7 0 was awarded to Musammat Melo.
On ail objection by the appellant this amount was deposited in the Court of the Senior Subordinate Judge, Gurdaspur, with a direction to pay the interest on this amount to Musammat Melo.
On the 28th September 1944 Musammat Melo died and the Revenue Courts ordered mutations in respect of the lands in the three villages in favour of the respondent as the daughter of Gurdial.
On the 10th March 1945 the appellant filed the suit out of which this appeal arises against the respondent for a declaration that he was entitled to the lands mentioned in the plaint as well as to the sum of 1194 Rs. 1 539 7 0 in preference to the respondent under the custom governing the parties *hereunder the collaterals of the last male holder excluded the daughter.
The respondent contested the suit mainly on the grounds (i) that the suit for a mere declaration was not maintainable (ii)that the parties were governed by Hindu Law and not by custom, (iii)that the appellant was not a collateral of Gurdial at all, (iv)that the properties in suit were not ancestral, and (v) that there was no custom whereunder the collaterals of the father who was the last male holder excluded the daughter from succession to the selfacquired property of her father.
The Subordinate Judge in his judgment pronounced on the 31st October 1946 held (i) that the lands in suit being in possession of tenants, the suit for a declaration of title thereto was maintainable but the suit for a declaration in respect of the sum of Rs. 1,539 7 0 was not maintainable in view of the provisions of the Indian Succession Act relating to succession certificates, (ii)that the parties were governed by custom and not by Hindu Law, (iii)that the appellant was a collateral of Gurdial within four degrees, (iv)that the land in Khata No. 2 of village Kingarian was ancestral while the rest of the lands in suit were non ancestral, and (v) that there was a custom according to which daughter was excluded from inheritance by the collaterals up to the fourth degree with respect to ancestral as well as self acquired property of the last male holder as laid down in the case of Buta Singh vs Mt. Harnamon(1).
In the result, the Subordinate Judge decreed the suit in respect only of the lands in suit and ordered the parties to bear their own costs.
(1) A.I.R. 1946 Lah.
306. 1195 Against this judgment and decree the respondent preferred an appeal to the Lahore High Court.
The appellant preferred cross objections against the order as to costs and against the finding that the lands in the three villages except the land in Khata No. 2 of village Kingarian were non ancestral.
After the partition of India the appeal was transferred to the High Court of East Punjab.
By its judgment dated the 28th July 1949 the East Punjab High Court allowed the appeal and dismissed the cross objections on the following findings: (i) that the suit for declaration of title to the lands was maintainable as all the lands in suit were in the possession of tenants,, (ii) that the lands in suit except the land in Khata No. 2 of village Kingarian were non ancestral, and (iii) that according to the custom prevailing in the Gurdaspur district a daughter was entitled to succeed to non ancestral property in preference to collaterals even though they were within the fourth degree.
The High Court accordingly modified the decree of the Subordinate Judge to the extent that the declaration in the appellant 's favour was made to relate only to the land in Khata No. 2 of village Kingarian which was held to be ancestral.
On an application made by the appellant on the 26th August 1949 the High Court, by its order dated the 5th June 1950, granted him a certificate of fitness to appeal to the Federal Court.
After the commencement of the Con stitution of India the appeal has come before this Court for final disposal.
The first question raised before us but not very seriously pressed is as to whether the lands in suit other than those in Khata No. 2 in village Kingarian were ancestral or self acquired.
Our attention has not been drawn to any material on the record which induces us to take a view different from the view concurrently taken by the Courts below.
We, therefore, see no force or substance in this contention, 153 1196 The main fight before us has been on the question as to whether there is a custom in the Gurdaspur district governing the parties under which a collateral within the fourth degree excludes the daughter of the last male holder from succession to the self acquired property of her father.
The customary rights of succession of daughters as against the collaterals of the father with reference to ancestral and non ancestral lands are stated in paragraph 23 of Rattigan 's Digest of Customary Law.
It is categorically stated in subparagraph (2) of that paragraph that the daughter succeeds to the self acquired property of the father in preference to the collaterals even though they are within the fourth degree.
Rattigan 's work has been accepted by the Privy Council as "a book of unquestioned authority in the Punjab".
Indeed,the correctness of this paragraph was not disputed before this Court in Gopal Singh vs Ujagar Singh(1).
The general custom of the Punjab being that a daughter excludes the collaterals from succession to the selfacquired property of her father the initial onus, there fore, must, on principle, be on the collaterals to show that the general custom in favour of the daughter 's succession to the self acquired property of her father has been varied by a special local custom excluding the daughter which is binding on the parties.
Indeed, it has been so held by the Judicial Committee in Mst.
Subhani vs Nawab(2) and the matter is now well settled.
The appellant claims to have discharged this initial onus in two ways, namely (1) by producing the Riwaj i am of the Gurdaspur district prepared by Mr. Kennaway in 1913 and (2) by adducing evidence showing that the collaterals of one Harnam Singh, who was also a Sarswat Brahmin of the Gurdaspur district and indeed a member of this very family of Gurdial succeeded in preference to his daughter.
It is pointed out that no instance has been proved on the part of the respondent showing that the daughter ever excluded the collaterals from succession to the self acquired property of the father.
The trial Court (1) ; (2) I.L.R. 1197 as well as the High Court took the view that the evidence as to the succession to the property of Harnam Singh was of no assistance to the appellant for the reason that the evidence was extremely sketchy, that it did not appear whether the properties left by Harnam Singh were ancestral or self acquired or whether the properties left by him were of any substantial value at all as would have made it worth while for the daughter to claim the same in addition to the properties gifted to her by her father during his lifetime.
Further, the fact that the daughter did not contest the succession of the collaterals to the properties left by Harnam Singh, even if they were self acquired, might well have been the result, as held by the High Court, of some family arrangement.
We find ourselves in agreement with the Courts below that the instance relied upon by the appellant is wholly insufficient to discharge the onus that was on him to displace the general custom recorded in paragraph 23(2) of Rattigan 's Digest of Customary Law.
The appellant contends that in any case he has fully discharged the onus that was on him by producing in evidence the Riwaj i am recording the custom of the district of Gurdaspur which was compiled by Mr. Kennaway in 1913.
Reference is also made to the earlier Riwaj i ams of the Gurdaspur District prepared in 1865 and 1893.
Answer to question 16 as recorded in the Riwaj i am of 1913 shows that subject to certain exceptions, which are not material for our purpose, the general rule is that the daughters are excluded by the widow and male kindred of the deceased., however remote.
This answer goes much beyond the answers to the same question as recorded in the Riwaj i ams of 1865 and 1893 for those answers limit the exclusion in favour of the male kindred up to certain specified degrees.
The answer to question 17 of the 1913 Riwai i am like those to question 17 of the 1865 and 1893 Riwaj i ams clearly indicates that except amongst the Gujjars of the Shakargarh tehsil all the remaining tribes consulted by the Revenue authorities recognised no distinction as to the rights of the daughters to inherit (i) the immovable or 1198 ancestral and (ii) the movable or self acquired property of their respective fathers.
It is claimed that these answers quite adequately displace the general custom and shift the onus to the respondent to disprove the presumption arising on these Riwaj i ams by citing instances of succession contrary to these answers.
In support of this contention reference is made to the observations of the Privy Council in Beg vs Allah Ditta(1) that the statements contained in a Riwaj i am form a strong piece of evidence in support of the custom therein entered subject to rebuttal.
Reliance is also placed on the observations of the Privy Council in Mt. Vaishno Ditti vs Mt. Rameshri(2) to the effect that the statements in the Riwaj i am might be accepted even if unsupported by instances.
The contention is that on production by the appellant of the Riwaj i am of the Gurdaspur district the onus shifted to the respondent to prove instances rebutting the statements contained therein.
This, it is urged, the respondent has failed to do.
" There is no doubt or dispute as to the value of the entries in the Riwaj i am.
It is well_settled that though they are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom, as recorded, is in accord with the general custom, the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and.
circumstances of each case.
Where, for instance, the Riwaj i am lays down a custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace that presumption; but where, on the other hand, the custom as recorded in the Riwaj i am is opposed to the custom generally prevalent, the presumption will be considerably weakened.
Likewise, where the Riwaj i am affects adversely the rights of the females who had no opportunity whatever of appearing before the Revenue authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it.
[See Khan Beg vs Mt. (1) [1916] L.R. 44 I.A. 89.
(2) Lah.
186; L.R. 55 I.A. 407 1199 Fateh Khatun (1), Jagat Singh vs Mst.
Jiwan The principles laid down in these cases were approved of by the Judicial Committee in Mst.
Subhani 's case supra.
Learned counsel appearing for the appellant contends that even if the presumption as to the correctness of the Riwaj i am be weak, the respondent has not cited a single instance of a daughter having excluded the collaterals from succession to the selfacquired property of her father and has, therefore, failed to discharge the onus that was thrown on her as a result of the production by the appellant of the Riwaj i am of 1913 and, consequently, the appellant must succeed.
This argument overlooks the fact that in order to enable the appellant to displace the general custom recorded in Rattigan 's work and to shift the onus to the respondent the appellant must produce a Riwaj i am which is a reliable and trustworthy document.
It has been held in Qamar ud Din vs Mt. Fateh Bano(3) that if the Riwaj i am produced is a reliable and a trustworthy document, has been carefully prepared and does not contain within its four corners contradictory statements of custom and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be, it would be a presumptive piece of evidence in proof of the special custom ,set up, which if left unrebutted by the daughters would lead to a result favourable to the collaterals.
If, on the other hand, it is not a document of the kind indicated above then such a Riwaj i am will have no value at all as a presumptive piece of evidence.
This principle has been followed by the East Punjab High Court in the later case of Mohammad Khalil vs Mohammad Bakhsh (4).
This being the position in law, we have to scrutinise and ascertain whether the Riwaj i ams of the Gurdaspur district in so far as they purport to record the local custom as to the right of succession of daughters to the self acquired properties of their respective father are reliable and trustworthy documents.
(1) , Lah.
276, 296, 297.
(2) A.I.R. 1935 Lah.
(3) Lah.
(4) A.I.R. 1949 E.P. 252.
1200 Twenty two tribes including Brahmins were consulted by Mr. Kennaway who prepared the Riwaj i am of 1913.
In paragraph 4 of the Preface Mr. Kennaway himself states that many of the questions related to matters on which there really existed no custom and the people had merely stated what the custom should be and not what it actually was.
In Appendix 'C ' are collected 56 instances of mutuations in which the daughter inherited.
In these there are four instances relating to Brahmins.
Answer to question 16, as recorded in this Riwaj i am, has been discredited and shown to be incorrect in at least three cases, namely, Gurdit Singh vs Mt. Malan(1), Kesar Singh vs Achhar Singh(1) and Buta Singh vs Mt. Harnamon(3).
The answer to question 16 as recorded in the 1913 Riwaj i am, it was pointed out, went much beyond the answer given to the same question in the Riwaj i ams of 1865 and 1893.
The answer to question 17 of the 1913 Riwaj i am that no distinction is to be made between ancestral and self acquired property has not been accepted as correct in not less than six cases, namely, Bawa Singh vs Mt. Partap(4), Jagat Singh vs Mt. Jiwan(5), Kesar Singh vs Gurnam Singh(1), Najju vs Mt. Aimna Bibi (7) Gurdit Singh vs Mt. Man Kaur(8), and Labh vs Mt. Fateh Bibi(9).
The statements in a Riwaj i am the truth of which is doubted by the compiler himself in the preface and which stand contradicted by the instances collected and set out in Appendix 'C ' of the same Riwaj i am and which have been discredited in judicial proceedings and held to be incorrect cannot, in our opinion, be regarded as a reliable or trustworthy document and cannot displace the initial presumption of the general custom recorded in Rattigan 's book so as to shift the onus to the daughter who is the res pondent.
The appellant relies on the cases of Ramzan Shah vs Sohna Shah("), Nanak Chand vs Basheshar Nath(11), Mt. Massan vs Sawan Mal(" ') and Kesar Singh vs (1) Lah.
364.(2) A.I.R. 1936 Lah. 68. (3) A.I.R. 1946 Lah. 306.(4) A.I.R. 1935 Lah.
(5) Ibid, 617.
(6) Ibid, 696.
(7) A.I.R. 1936 Lah.
493.(8) A.I.R. 1937 Lah.
(9) A.I.R. 1940 Lah.
436.(10) [1889] 24 P.R, 191.
(11) [19O8]43 P.R. 15.
(12) A.I.R. 1935 Lah.
453, 1201 Achhar Singh(1).
The first three cases are of no assistance to him although the second and third relate to Brahmins of Gurdaspur, for the properties in dispute ' in those cases were ancestral and the respondent does not now dispute the appellant 's right to succeed to her father 's ancestral propertie 'section These cases, therefore, do not throw any light on the present case which is concerned with the question of succession to selfacquired property.
Further, in the last case, the collaterals were beyond the fourth degree and it was enough for the Court to say that irrespective of whether the properties in dispute were ancestral or selfacquired the collaterals in that case could not succeed.
It is also to be noted that the earlier decisions werenot cited or considered in that case.
In our opinion the appellant has failed to discharge the onus that was initially on him and that being the position no burden was cast on the respondent which she need have discharged by adducing evidence of particular instances.
In these circumstances, the general custom recorded in Rattigan 's book must prevail and the decision of the High Court must be upheld.
We accordingly dismiss this appeal with costs.
Applal dismissed. | It is now well settled that the general custom of the Punjab being that a daughter excludes the collaterals from succession to the self acquired property of her father the initial onus, therefore, must, on principle, be on the collaterals to show that the general custom in favour of the daughter 's succession to the self acquired property of her father has been varied by a special local custom excluding the daughter which is binding on the parties.
It is also well settled that though the entries in the Riwaj i am are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom, as recorded, is in accord with the general custom, the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and circumstances of each case.
Where, for instance, the Riwaj iam lays down a custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace that presumption; but where, on the other hand, the custom as recorded in the Riwaj i am is opposed to the custom generally prevalent, the presumption will be considerably weakened, Likewise, 1192 where the Riwaj i am affects adversely the rights of the females who had no opportunity whatever of appearing before the Revenue authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it.
If the Riwaj i am produced is a reliable and a trustworthy document, has been carefully prepared, and does not contain within its four corners contradictory statements of custom, and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be, it would be a presumptive piece of evidence in proof of the special custom setup, which if left unrebutted by the daughters would lead to a result favourable to the collaterals.
If, on the other hand, it is not a document of the kind indicated above, then such a Riwaj i am will have no value at all as a presumptive piece of evidence.
The Riwaj i ams of the Gurdaspur district prepared by Mr. Kennaway in 1913 in so far as they purport to record the local custom as to the right of the daughter to succeed to the self acquired property of her father are not reliable and trustworthy documents.
The answer to question 16 and the answer to question 17 re corded therein do not contain the correct record of custom.
Held, that the appellants collateral within fourth degreea Saraswat Brahmin of Pathankot in the district of Gurdaspur had failed to discharge the onus that initially rested on him that the respondent (the daughter) was excluded by him in respect of the nonancestral property of her father and that therefore no burden was cast on her of adducing evidence of particular instances.
The general custom laid down in para 23 of Rattigan 's Digest of Customary Law that "a daughter is preferred to collaterals in regard to the self acquired property of tier father" was approved by the Supreme Court.
Butta Singh vs Mt. Harnamon (A.I.R. 1946 Lab. 306), Gopal Singh vs Ujagar Singh ( ; , Mst.
Subhani vs Nawab (I.L.R. [1940] Lab.
154), Beg vs Allah Ditta ( [1916] L.R. 44 I.A. 89), Mt. Vaishno Ditti vs Mt. Rameshri ( Lab. 186; L.R. 55 I.A. 407), Khan Beg vs Mt. Fateh Khatun ( Lab.
276), Jagat Singh vs Mst.
Jiwan (A.I.R. 1935 Lab.
617), Qamar ud din vs Mt. Fateh Bano ([1943] I.L.R. 26 Lab. 110), Mohammad Khalil vs Mohammad Bakhsh (A.I.R. 1949 E.P. 252), Gurdit Singh vs Mt. Malan ([1924] I.L.R. 5 Lab.
364), Kesar Singh vs Achhar Singh (A.I.R. 1936 Lab.
68), Bawa Singh vs Mt. Partap (A.I.R. 1935 Lab. 288), Kesar Singh vs Gurnam Singh (A.I.R. 1935 Lab.
696), Najju vs Mt. Aimna Bibi (A.I.R. 1936 Lab. 493), Gurdit Singh vs Mt. Man Kaur (A.I.R. 1937 Lab. 90), Labh vs Mt. Fateh Bibi (A.I.R. 1910 Lab. 436), Ramzan Shah vs Sohna Shah ([1889] 24 P.R. 191), Nanak Chand vs Basheshar Nath ( [1908] 43 P.R. 15) and Mt. Massan vs Sawan Mal (A I R. 1935 Lab. 453), referred to, 1193 |
Special Leave Petition (Civil) No. 10264 of 1988 From the Judgment and Order dated 26.5.1988 of the Karnataka High Court in M.F.A. No. 52 of 1982.
PG NO 886 S.K. Kulkarni and Mrs. Kiran Suri for the Petitioner.
Jagdish G. Yadwad and section Srinivasan for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is a petition for leave to appeal against the judgment and order of the High Court of Karnataka dated 26th of May, 1988.
By the said judgment the High Court affirmed the order of the learned Civil Judge, Hubli.
To appreciate the controversy, a few facts may be necessary.
On or about 18th September, 1972 a partnership firm was constituted which included the petitioner and the respondents Nos. 1 to 9 to run a cinema theatre and Hubli in the State of Karnataka.
The said firm was reconstituted in August, 1973 for a period of 25 years with one partner retiring from the first firm.
In the said reconstituted firm the 1st respondent had 12 paise share.
On 8th November, 1980 the 1st respondent had issued a notice calling for dissolution of the firm alleging mismanagement,loss and exclusion from the management.
In 1981, the 1st respondent filed a suit in the Court of the Civil Judge, Hubli for (i) dissolution of the firm and (ii) accounts.
On 4th November, 1981, the 9th respondent who is defendant No. 7 in the suit filed an application under Section 34 of the .
l944 (hereinafter referred to as 'the Act ') for stay of the said suit.
The learned Trial Judge after referring to the facts and the relevant decisions referred to the order sheet in this matter and observed that there is a clear record in the order sheet that the counsel appearing for the applicant had "sought adjournment specifically for filing written statement The order sheet further recorded that the matter was posted to 4th November, 1981 "for arguments".
The learned Trial Judge was of the view that the petitioner herein who is defendant No. 4 in the suit had sought and secured several adjournments to file a written statement.
In that view of the matter, the learned Trial Judge was of the view that the petitioner had taken steps in the proceedings in the suit by seeking and securing adjournment to file the written statement.
In that view of the matter of declined to exercise his jurisdiction to stay the said suit under Section 34 of the Act.
There was an appeal.
The Division Bench of the High Court was of the view that in view of the facts mentioned in the order of the Trial Judge, it appeared that the petitioner herein had taken steps in the suit and had thereby disentitled himself from asking for the stay of PG NO 887 the said suit.
The High Court, therefore, confirmed the order of the learned Trial Judge.
Aggrieved thereby, the petitioner seeks leave to appeal under Article 136 of the Constitution from the said decision.
Arbitration is an alternative procedure for speedy adjudication of disputes between the parties and should normally be encouraged and parties have bound themselves to have their disputes adjudicated by arbitration, so they should be held bound by the agreement between the parties.
Section 34 of the Act is the statutory provision which deals with the powers to stay legal proceedings where there is an arbitration agreement.
Section 34 of the Act which is relevant for our present purpose is as follows: "34.
Power to stay legal proceedings where there is an arbitration agreement.
Where any part to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings.
" An analysis of the aforesaid section makes it clear that in order to have the proceedings in the suit stayed, there must be an arbitration agreement between the parties covering the disputes in question.
The section stipulates that in order that stay may be granted under the section, it is necessary that the following conditions are fulfilled: (i) The proceedings must have commenced by a party to an arbitration agreement against any other party to the agreement; (ii) the legal proceeding, in this case the suit, which is sought to be stayed must be in respect of a matter agreed to be referred; PG NO 888 (iii) the applicant for stay must be a party to the legal proceeding, the suit in this case.
(iv) the applicant must have taken no steps in the proceeding after appearance; (v) the applicant must satisfy that only the applicant was at the time when the proceedings were commenced, ready and willing to do everything necessary for the proper conduct of the arbitration; and (vi) the Court must also be satisfied that there was no sufficient reason why the matter should not be referred to arbitration.
Several decisions of this Court and the decisions of the High Court have laid down the aforesaid position in law.
See, in this connection, the observations in the "Law of Arbitration" by R.S Bachawat (1st Edn. ) at pages 498 499.
Indisputably, in this case, the proceeding was commenced by a party to an arbitration agreement against the other party to the agreement and the legal proceeding which was sought to be stayed was in respect of a matter agreed to be referred to.
It is also clear that the petitioner is a party to the arbitration agreement.
The only question that was agitated before the learned Trial Judge as well as before the High Court was, whether the petitioner had taken no steps after appearance.
The section requires that the application must he filed before the filing of the written statement or taking any other step in the proceeding.
In the case of State of Uttar Pradesh & Anr.
Janki Saran Kailash Chandra & Anr.,[1974] 1 SCR 31, the palintiff instituted a suit for recovery of damage for breach of contract impleading the State U.P. as the first defendant and the Divisional Forest Officers, Bijnor as the second defendant.
The summons in the said suit issued to the State of U.P. were served on the District Government Counsel.
On 2nd September.
1966 the said counsel filed an appearance slip in the Court and also put in a formal application praying for one month 's time for the purpose of filing written statement.
That prayer was granted.
On 1st October, 1966 the District Government Counsel filed an application under Section 34 of the Act pleading that there was an arbitration clause in the agreement between the parties to the suit and the State of U.P. being willing to refer the matter to arbitration the suit should be stayed.
The trial PG NO 889 court held that the dispute was subject to arbitration clause and since the State of U.P. had not taken any steps in the suit proceedings and had also not filed the written statement the suit was liable to be stayed.
On appeal the High Court held that the action of the District Government Counsel in applying for time to file the written statement amounted to taking a step in the proceedings within the meaning of section 34 of the Act.
On this view, the defendant was held disentitled to claim the stay of the suit.
By special leave, the defendant applied to this Court.
This Court dismissed the appeal and observed at page 37 of the report as follows: "The District Government Counsel in the present case was thus fully empowered to appear and act for and on behalf of the Government and also to make applications on its behalf.
If the said counsel wanted time for the purpose of having fuller instructions, he could have asked for it specifically, for he was not a layman ignorant about the legal position but a professional lawyer retained by the Government for the purpose of acting and pleading on behalf of the Government as a recognised agent.
He, however, chose instead to ask for time specifically for filing written statement and this act he purported to do on behalf of the State Government which he was fully empowered to do.
The State took benefit of his appearance and his successful prayer for adjournment of the case by one month for the purpose of filing the written statement.
In those circumstances, it is hardly open to the State Government to plead that the District Government Counsel was not authorised to seek adjournment on its behalf for this purpose.
An oblique suggestion thrown on behalf of the appellant that the District Government Counsel had merely volunteered to appear without instructions, presumably taking the cue from the decision of the Punjab High Court in the case of Moji Ram, is merely to be stated to be rejected.
A recognised agent like the District Government Counsel can scarcely be considered to appear volutarily in a case On behalf of the Government in the sense of being unauthorised by his client for the simple reason that he is authorised by virtue of statute to appear, act and make applications on behalf of the Government.
Indeed in the present case the District Government Counsel also filed in court the usual appearance slip.
If he wanted time for further consultatioins, he could and should have specifically PG NO 890 made a prayer to that effect.
It is, however, idle to contend that he can be considered to have merely volunteered without authority to appear and ask for time for filing the written statement.
The argument of appearance by a recognised agent as a mere volunteer is extremely difficult to appreciate.
The State, as already observed, took the benefit of the adjournment.
It will be somewhat irrational and perhaps incongruous to permit the State, after having taken the benefit of this adjournment, to plead that the application for adjournment was not made on instructions and was unauthorised.
To accede to the State Government the right to do so would clearly be unjust to the opposite party which could have rightfully objected to the adjournment, had there been any indication that the prayer was not being made on instructions from the State Government.
September 2, 1966 was fixed in the summons for filing written statement.
Failure to do so would have entailed consequences prejudicial to the State Government.
Those consequences were avoided by making an application for extension of time for filing written statement which must have been understood by the opposite party, as also by the court, to be on instructions by the State Government.
" It may be noted that thereafter in U.P. there was amendment which added an explanation which provided that a mere application for time to file a written statement or a mere contest to an interlocutory application for injuction, would not amount to taking any steps in the proceedings.
In the aforesaid view of the matter, without the aid of Explanation 2 added to the U.P. Act, we have to proceed to find out the conditions required to be fulfilled in order to be entitled to stay under section 34 of the Act.
As mentioned hereinbefore, it is imperative to find out whether "any other steps in the proceedings have been taken before making an application for stay of the suit in this case.
In our opinion, proceeding without being embroiled in the facts and the circumstances of the case with the controversy whether the said exprression should be construed ejusdem generis, it i5 necessary to determine whether the party had evinced or indicated any intention to proceed unequivocally with the suit and not to proceed with the arbitration.
This position was examined by this Court in Food Corpn.
of India & Anr.
vs Yadav Engineer & Contractor, ; , where this Court referred to the decision of Uttar Pradesh PG NO 891 vs Janki Saran Kailash Chandra, (supra), and after setting out the provisions of section 34 of the , this Court observed that apart from written statement "some other step" mentioned in the Section, must indisputably be such step as would manifestly display an unequivocal intention to proceed with the suit and to give up the right to have the matter disposed of by arbitration.
Each court must find out from the context of each case whether this has happened or not.
The Court further observed therein that "a step taken in the suit which would disentitle the party from obtaining stay of proceeding must be such step as would display an unequivocal intention to proceed with the suit and to abandon the benefit of the arbitration agreement or the right to get the dispute resolved by arbitration" .
In our opinion, that is a correct position in law as declared by this Court, and it is in consonance with the principles that have been followed under section 4 of the English Arbitration Act, 1889.
At page 106 of the said report this Court observed that the "general words" taking any other steps in the proceedigs ' just follow the specific expression 'filing a written statement ' and both are used for achieving the same purpose".
Hence, this Court was of the opinion that the latter expression must be construed ejusdem generis with the specific expression just preceding to bring out the ambit of the latter.
The expression 'written statement ' is a term of specific connotation ordinarily signifying a reply to the plaint filed by the plaintiff.
The expression 'taking any other steps in the proceeding ' does not mean that every step in the proceedings would come in the way of enforcement of the arbitration agreement.
The step must be such as would clearly and unambiguously manifest the intention to waive the benefit of arbitration agreement.
From the Order sheet in this case and as noted by the learned Trial Judge, it appears that the counsel appearing for the petitioner has sought adjournment "specifically for filing written statement" and obtained time for more than one occasions for such purpose.
It was not only the time taken to consider whether written statement should be filed as a defence to the plaint to enter into an arena of controversy,but it was time taken to have the matter decided by the suit.
The party evinced an intention to have the matter adjudicated by the Court.
If that is the position, then in our opinion, in view of the principle enunciated hereinbefore, the party has disentitled itself to ask for PG NO 892 stay of the said suit.
The High Court was, therefore, right in affirming the order of the learned Trial Judge.
Apart from the same, from the conduct of the petitioner and the narration of the events mentioned hereinbefore, it does not appear that the petitioner was ever keen to have the matter adjudicated by arbitration.
If that is the position then the petitioner cannot have any grievance.
In that view of the matter this application under Article 136 of the Constitution must fail and is accordingly dismissed.
On the prayer of the counsel for the petitioner, we direct that the petitioner would have eight weeks ' time from today for filing the written statement to the plaint.
N.V.K. Petition dismissed. | The petitioner and the respondents in the S.L.P. were partners in a partnership firm.
On 8th November, 1980, respondent No. l issued a notice calling for dissolution of the firm alleging mismanagement, loss and exclusion from the management, and later filed a civil suit for: (i) dissolution of the firm, and (ii) accounts.
On 4th November, 1981, respondent No. 9 who was defendant No. 7 in the suit, filed an application under Section 34 of the for stay of the suit.
The Trial Judge after referring to the order sheet in the matter and noticing that the counsel for the petitioner had taken steps in the proceedings in the suit, by seeking and securing adjournments for filing the written statement, held that there was no jurisdiction to stay the suit under On appeal, the Division Bench of the High Court confirmed the order of the Trial Judge, and held that the petitioner having taken steps in the suit, had thereby disentitled himself from asking for the stay of the said suit.
Dismissing the petitioner 's Special Leave Petition, HELD: 1.
Arbitration is an alternative procedure for speedy adjudication of disputes between the parties and should normally be encouraged as parties have bound themselves to have their disputes adjudicated by arbitration, so they should be held bound by the agreement.
[887B] 2.
Section 34 of the is the statutory provision which deals with the powers to stay legal proceedings where there is an arbitration agreement.
One of PG NO 884 PG NO 885 the requirements is that the application for stay must be filed before the filing of the written statement or 'taking any other steps in the proceedings '.[887C; 888E] 3.
The expression 'taking any other steps in the proceedings ' does not mean that every step in the proceedings would come in the way of enforcement of the arbitration agreement.
The step must be such as would clearly and unambiguously manifest the intention to waive the benefit of arbitration agreement, and display an unequivocal intention to proceed with the suit giving up the right to have the matter disposed of by arbitration.
[891E F;B] 4.
Each Court must find out from the context of each case what has happened, and whether a step was taken in the suit which would disentitle the party from obtaining stay of proceedings.
[891C] In the instant case, it is indisputable that the proceeding was commenced by a party to an arbitration agreement against the other party to the agreement and the legal proceedings which was sought to be stayed was in respect of a matter agreed to be referred to arbitration.
From the order sheet in the case as noted by the Trial Judge, it appears that the counsel appearing for the petitioner had sought adjournment 'specifically for filing written statement ', and obtained time on more than one occasion for such purpose.
It was not only the time taken to consider whether written statement should be filed as a defence to the plaint, but it was time taken to have the matter decided by the suit.
The party evinced an intention to have the matter adjudicated by the Court and not keen to have the matter adjudicated by arbitration.
If that is so, the party has disentitled itself to ask for the stay of the said suit.
The High Court was, therefore.
right in affirming the order of the Trial Judge.
[891F H;892A] State of Uttar Pradesh & Anr.
vs Janki Saran Kailash Chandra & Anr., [1974] 1 SCR 31 and Food Corpn.
of India & Anr.
vs Yadav Engineer and Contractor, ; , referred to.
Law of Arbitration by R.S. Bachawat (Ist Edn.), pp.
498 499, referred to. |
minal Appeal No. 117 of 1971.
Appeal by Special Leave from the Order dated February 11 1971 of the Rajasthan High Court in S.B. Criminal Misc.
Application , No. 152 of 1971.
Sobhag Mal Jain, for the appellant.
K. Balder Mehta, for the respondent.
907 The Judgment of the Court was delivered by Beg, J.
The appellant was convicted under Section 406 Indian, Penal Code and sentenced to six month 's rigorous impnsonment and a find of Rs. 500/ , and, in default of payment of fine, to three months further rigorous imprisonment, by the Munsif Magistrate of Karoli, District Bharatpur, Rajasthan.
On an appeal by him to the Court of Sessions, his conviction was set aside, but ,the Trial Court was directed to proceed with the case afresh from the stage at which the appellant should have been properly examined under Section 342 Criminal Procedure Code.
The appellant was then given a full opportunity, under Section 342 Criminal Procedure Code, to explain the facts and circumstances appearing against him in the case.
Thereafter, he also produced five witnesses in defence.
He was, however, convicted again and sentenced to two years rigorous imprisonment and to pay fine of Rs. 2,000/ , and, in default to undergo one year 's further rigorous imprisonment.
The appellant again appealed to the Court of Sessions which dismissed his appeal.
The appellant then filed a Revision application which was dismissed summarily by the High Court of Rajasthan.
Soon after that, the appellant made another attempt to invoke the inherent jurisdiction of the High Court, by applying under Sec.
561A Criminal Procedure Code, to get at least an illegality in the sentence corrected, but this also failed.
A prayer for a certificate of fitness of the case to appeal to this Court was also rejected by the High Court.
The appellant then applied under article 136 of the Constitution to this Court.
That application was admitted only an the question of the period of imprisonment awarded in default of payment of fine.
It is this question only which has been argued before us.
Section 33 of the Criminal Procedure Code runs as follows "33(1) The Court of any Magistrate may award such terms of imprisonment in default of payment of fine as it authorised by law in case of such default Provided that (a) the term is not in excess of the Magistrate s powers under this Code; (b) in any case decided by a Magistrate where imprisonment has been awarded as part of the substantive, sentence, the period of imprisonment awarded in default of payment of the fine shall not.
exceed one fourth of the period of imprisonment which such Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. 908 (2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 32".
The Munsif Magistrate who convicted the appellant had the powers of a Magistrate 1st Class which are restricted, by Section 32,sub.s(1) (a), to imposing imprisonment for a term not exceeding two years and fine not exceeding Rs. 2,000/ .
Reading Section 32 and 33 together, it was clear that, in the case before us, the Munsif Magistrate could not award more than six months imprisonment in default of payment of fine.
In answer to the appellant 's contention, based on Section 33 of the Criminal Procedure Code, learned Counsel for the State of Rajasthan placed Section 65 Indian Penal Code before us.
This Section reads as follows "65.
The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine".
It will be seen that even where Section 65 Indian Penal Code is applied by a Court the term of imprisonment in default of payment of fine cannot exceed one fourth of the term of imprisonment which is the maximum period which can be awarded for an offence of which an accused is convicted.
An offence under Section 406 Indian Penal Code is punishable with imprisonment which can extend to only three years rigorous imprisonment and a fine.
Thus, even if Section 65 Indian Penal Code could be applied, the period of imprisonment in default of payment of fine could not exceed nine months.
It is clear that Section, 65 only fixes a maximum period of imprisotiment which can be awarded for default of payment of fine whenever any court convicts.
On the other hand, Section 33 Criminal Procedure Code governs specifically the powers of 1st Class Magistrates on this matter.
Section 33 Criminal Procedure Code also contains the principle embodied in Section 65 Indian Penal Code in its application to Magistrates.
Just as a 1st Class,Magistrate trying an offence punishable under Section 406 Indian Penal Code cannot impose the maximum amount of imprisonment prescribed by this Section, because his powers of awarding imprisonment are specifically limited to those conferred to Section 32 Criminal Procedure Code, so also he cannot, by resorting, to Section 65 Indian Penal Code, award a 'period of imprisonment in 909 default of payment of fine on the erroneous assumption that he has the power to award the maximum sentence prescribed by Section 406 Indian Penal Code.
Section 65 of the Indian Penal Code was enacted in 1860.
In 1872 Section 309 of the Criminal Procedure Code 1872 enacted : "where a person is sentenced to fine only the Magistrate may award such terms of imprisonment in default of payment of fine as is allowed by law provided that the amount does not exceed the Magistrate 's powers under this Act",.
It was held in Reg.
vs Muhammad Saib(1), that Section 309 of the Code of 1972 over ruled the provisions of Section 65 Indian Penal Code.
On a parity of reasoning, Section 33 of the Criminal Procedure Code of 1898, with which we are concerned here, would over ride Section 65 Indian Penal Code.
or, to be more accurate, apply more specifically to Magistrates.
In Queen Empress vs Venkatesagadu & Ors.
(2) it was held that Section 33 of the Criminal Procedure Code of 1882 did not authorise a Magistrate to pass sentence in default of payment of fine in excess of the term prescribed by Section 65 Indian Penal Code.
Here, reliance was placed upon a decision of Full Bench of the Allahabad High Court in the Empress of India vs Darba & No case has been cited before us in which an attempt was made to justify an order of a Magistrate, whose jurisdiction to punish is limited by Section 33 Criminal Procedure Code, by applying Section 65 Indian Penal Code.
It is obvious that the two Sections must be harmonised.
This means that, while a Magistrate 's powers are specifically limited by Section 33 Criminal Procedure Code, they must also be so exercised as not to contravene Section 65 Indian Penal Code.
As the sentence of one year 's rigorous imprisonment in default of payment of fine passed by the Munsif Magistrate was in excess of his powers, we allow this appeal to the extent that we reduce only the sentence of one year 's rigorous imprisonment awarded in default of payment of fine to six months rigorous imprisonment The rest of the sentence, which is quite legal, must stand.
We may observe here that it would have been better if this obvious illegality and excess of power could have been corrected by the High Court when the matter was brought to its notice by means of an application under Section 561A Criminal Procedure Code.
V.P.S. (1) I.L.R. 1 mad.
277 (FB).
(2) I.L.R. (3) I.L.R. 1 All. | The appellant was convicted by a first class Magistrate under section 406, I.P.C., and was sentenced to two years regorous imprisonment, a fine of Rs. 2000/ and, in default to one year 's further rigorous imprisonment.
On the question of the period of imprisonment that could be imposed in default of payment of fine, HELD : Even if section 65, I.P.C., could be applied the period of imprisonment in default of payment of fine could not exceed nine months since an offence under section 406 I.P.C. is punishable with imprisonment up to three years.
But reading sections 32 and 33, Cr.
P.C. together the Magistrate could not have awarded more than six months imprisonment in default of payment of fine.
The terms section 33 Cr.
P.C. and section 65 I.P.C., must therefore be harmonised.
Hence it must be held that while a Magistrate 's power are specifically limited by section 33 Cr.
P.C. they must also be exercised so as not to contravene section 65 I.P.C. [908 D G] Therefore, just as a First Class Magistrate trying an offence punishable under section 406 I.P.C., cannot impose the maximum sentence of imprisonment prescribed by the section, because this powers of awarding imprisonment are Specifically limited to a term not exceeding two years by section 32, Cr.
P.C. so also necessary , by resorting to section 65 I.P.C., award a period of imprisonment in default of payment of fine, on the erroneous assumption that he has the power to award the maximum sentence prescribed by section 406 1 P C. [908 G H; 909 A] Hence, three sentence of imprisonment in default of fine cannot exceed six months.
Reg vs Muhammad Sahib, I.L.R. ; Queen Empress vs Venkatesagadu, 1.
L. R. and Empress of India vs Darba, I.L.R.
I All. 46.1, referred to. |
Appeal No. 855 of 1968.
Appeal by Special Leave from the Award dated October 26, 1967 of the National Industrial Tribunal, Calcutta in Reference No. NIT 3 of 1967.
D. N. Mukherjee, for the appellant.
P. section Khera and section K. Nandy, for respondents Nos. 1 and 3.
The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by special leave, is directed against the Award dated October 26, 1967 of the National In dustrial Tribunal, Calcutta in Reference No. NIT 3 of 1967, holding that for the accounting year 1965 66, the quantum of bonus payable by the appellant to its workmen is 20% of the effective salaries or wages with a further direction to set on a sum of Rs. 1,46,252.
The appellant, Indian Cable Company Ltd. (hereinafter to be referred as the Company) occupies a very prominent position in the Cable Industry of India having its Head Office at Calcutta and its factory at Jamshedpur.
It has, branches in Bombay, Madras, New Delhi, Kanpur, Ahmedabad, and Bangalore.
(In addition to insulated cables, the Company manufactures Aluminium Rods, Radio Aerials, Fuse Wires and other products.).
Its paid up capital is Rs. 2,48,65,450.
It employed workmen numberingover 5000.
The gross effective salaries and wages of its employees for the relevant accounting year amounts to Rs. 1,05,32,880.
Its accounting year is from 1st April to 31st March of the succeeding year.
For the accounting year 1964 65, the Company declared and paid bonus at 20% to all employes in accordance with the provisions of the (hereinafter to be referred as the Act).
For the year in question 1965 66, it calculated a sum of Rs. 23,68,785 as available surplus.
This amount was arrived at by the Company after calculating direct tax without deducting the provision for payment of bonus payable to its workmen.
A sum of Rs. 14,21,271 being 60% of the said available surplus was declared as bonus for the year 1965 66.
This amount represented 13 51% of the wage bill.
The workmen were dissatisfied with this offer of bonus at 13.51% and demanded payment of bonus at the maximum rate of 20% as provided in the Act.
In consequence they raised a dispute with the Company.
In view of the agreement dated November 24, 1966 between the parties to refer the claim for additional bonus for adjudication to a Tribunal, the workmen received the bonus at 108 the rate of 13.51% offered by the Company.
The Central Government by order dated June 23 1967 referred for adjudication to the National Industrial Tribunal, Calcutta, the following dispute "What should be the quantum of bonus payable to the Workmen of the Indian Cable Company Limited Calcutta for the accounting year 1965 66" The Unions contended before the Tribunal that the computa tion of allocable surplus by the Company has not been properly made in accordance with the Act and that several items shown in the profit and loss account as expenditure have to be added back to arrive at the actual gross profits.
The Unions further alleged that the Company has spent large amounts for payment of liability for future years with a view to reduce the available and allocable surplus, which in consequence has resulted in, the reduction of percentage of bonus.
The Company on the other hand maintained that it has kept proper accounts which have been audited by a reputed firm of auditors Messrs Lovelock & Lewes and that the computation of allocable surplus has been properly arrived at having due regard to the provisions of the Act.
The Com pany denied the allegations of the Unions that enormous expenditure has been shown with a view to reduce the quantum of bonus.
On the other hand, the Company pleaded that all items of expenditure were justified and those items are deductable in considering, the claim for bonus.
At this stage it may be mentioned that the Unions served interrogatories requiring information on various matters and there is no controversy that the Company furnished all the informations that were 'Called for.
Before the Tribunal the Company required various deductions to be made from the net profits shown in its profit and loss account.
On the other hand, the Unions required various items to be added back.
The Tribunal accepted the contentions of both the parties with regard to certain items.
We will in due course refer to the items which are in dispute before us at the instance of both the Company and the Unions.
The Tribunal computed the, available surplus at Rs. 37,54,713, 60% of this amount being Rs. 22,52,828 was fixed as allocable surplus.
The Tribunal held that a sum of Rs. 21,06,576 being bonus at 20% of the gross effective salaries and wages was payable for the year in question and it directed the surplus amount of Rs. 1,46,252 to be set on.
As the bonus at the rate of 13.51% had already been declared and paid by the Company, the Tribunal directed the payment of the balance 6.49% within the period mentioned 109 in the Award.
One aspect which has to be acted is that (in calculating the available surplus, the Tribunal before calculating the notional direct tax, deducted the bonus payable for the accounting year in question.
The grievance of the Company, as placed before us by its learned counsel Mr. D. N. Mukherjee, relates to three items (1) the method of computation of notional direct tax; (2) disallowance of the deduction from gross profits of the sum of Rs. 2.65 lakhs made as ex gratia payment for the accounting year 1964 65 to employees drawing emoluments exceeding Rs. 750 per mensem; and (3) disallowance of the claim for re 'turn on provision for doubtful debts.
The first contention relates to the principle to be adopted for calculating direct tax when computing the available and allocable surplus for payment of bonus under the Act.
According to the Tribunal, under sections 6 and 7 of the Act, the bonus payable for ,the relevant accounting year has to be deducted from the grossprofits for calculation of direct tax or alternatively rebate for bonus found payable has to be calculated and 60% of the rebate has to be added back as allocable surplus.
The Tribunal took notice of the fact that the Income tax Authorities did not object to deduction of the provision made by the Company for payment of bonus for the accounting year 1965 66.
On this reasoning the Tribunal added back to the gross profits as per the profit and loss account the provision made for payment of bonus.
For coming to this view the Tribunal followed its previous decision in Indian Oxygen Ltd. vs Their Workmen (N.I.T. 1 of 1966).
The Tribunal has also noted that its Award in the Indian Oxygen Ltd. was pending appeal in this Court.
According to Mr. D. N. Mukherjee, this method of calculation of direct tax under the Act, adopted by the Tribunal is contrary to the decisions of this Court.
We are in entire agreement with this contention of Mr. Mukherjee.
In view of the decisions of this Court, to which we will immediately refer, Mr. P. section Khera, learned counsel for the Unions was unable to support the reasoning of the Tribunal on this aspect.
The question of calculation of direct tax under the Act was considered for the first time by this Court in Metal Box Co. of India Ltd. vs Their Workmen.(1) It was held therein that the nationalc tax liability is to be worked out by first working out the gross profits and deducting therefrom the prior charges under section 6, but not the bonus payable to the employees.
Therefore, it is clear from this decision that an employer is entitled to deduct (1) ; 110 his tax liability without deducting first the amount of bonus he would be liable to pay from and out of the amount computed under sections 4 and 6 of the Act.
The same principle, has been reiterated in The Workmen of William Jacks and Company Ltd. Madras vs Management of William Jacks and Co., Madras,(1) Delhi Cloth and General Mills Co. Ltd. vs Workmen(2) and Indian Oxygen Ltd. etc.
vs Their Workmen.
(3) In fact the last decision overruled the decision of the National Industrial Tribunal in Reference No. NIT 1 of 1966, which has been followed by the present Tribunal.
We may also state that after the first decision of this Court, referred to above, the Act was amended in 1969.
The last three decisions of this Court considered the question whether the amendments effected to the Act had made ' any change in the principle laid down by this Court in the first decision.
It was uniformly held in all the three decisions that the amendment has not effected any change in the principle laid down in the earliest decision that the tax liability under the Act is to be worked out first by working out the gross profits and deducting therefrom bonus payable to the employees.
Therefore, it follows that the Tribunal committed an error in law in corrupting, direct tax after deducting bonus.
Therefore, this point will have to be held in favour of the appellant.
The second item relates to the disallowance of Rs. 2.65 lakhs which represented the ex gratia payment made by the Company to certain employees drawing, emoluments exceeding Rs. 750 per mensem for the year 1964 65.
The Company claimed that this amount should be deducted from the gross profits whereas the Unions contended that the same has to be added back to the gross profits shown in the profit and loss account.
The factual position relating to this claim is as follows: From the letter dated February 4, 1966, Ext. 1, written by the Company to one of its officers Mr. section N. Banerjee, it is seen that the Company in appreciation of the officer 's services during the year 1964 65 made an ex gratia payment of Rs. 90.
Mr. Banerjee has given evidence on behalf of the Unions.
He has deposed to the fact that he was drawing about Rs. 1,000 per mensem and that he received the letter Ext.
I as well as the sum of Rs. 90 mentioned therein.
He has further stated that over and above this sum of Rs. 90 he has also, received the bonus payable to him under the Act for the year 1964 65.
He has also deposed to the effect that the ex gratia payment of Rs.( 90 was paid to him in lieu of bonus calculated on the difference in emoluments drawn by him and the ceiling of Rs. 750 per mensem fixed by the Act.
It was (1) ; (2) ; (3) ; 111 the practice of the Company to pay bonus to all the members of its staff without application of any ceiling.
In view of the fact that a ceiling had been fixed under the Act, to make up for the lesser amount that the employees like Mr. Banerjee will get under the Act, this amount of Rs. 2.65 lakhs was paid to all such officers.
The Tribunal accepted the evidence of Mr. Banerjee that the ex gratia amount was paid to keep up the old practice of the Company of paying all the members of the staff without the application of any ceiling.
The Tribunal held that such a payment was not an item which could be deducted from the gross profits under the Act as claimed by the management.
Accordingly, it added back the sum of Rs. 2.65 lakhs to the gross profits shown in the profit and loss account.
Mr. Mukherjee urged that the Company was justified in claiming the above amount by way of deduction.
He referred us to the definition of "employee" in section 2(13) of the Act as also to the employees declared eligible for bonus under section 8.
He also relied on sections 10 and 11 which make it obligatory on an employer to pay the minimum bonus and also the maximum bonus upto 20% respectively.
We are not inclined to agree with the contention of Mr. Mukherjee that the Tribunal committed an error when it added back the sum of Rs. 2.65 lakhs.
From the evidence of Mr. Banerjee, which has been accepted by the Tribunal, read along with the letter Ext.
1, it is clear that Mr. Banerjee received not only bonus due to him under the Act, but also the extra amount of Rs. 90.
Mr. Banerjee was admittedly drawing a salary of Rs. 1000 per mensem.
For a person to be an "employee" under section 2(13), among other things, he is a person drawing a salary or wage not exceeding Rs. 1600 per mensem.
Under section 8, it is provided that every employee is entitled to be paid in an accounting year bonus as per the Act provided he has worked in the establishment for not less than thirty working days in that year.
Section 10, provides for payment of minimum bonus to every employee.
Similarly section 11 provides for payment of bonus to every employee subject to a maximum of 20% of his salary or wage.
According to Mr. Mukherjee there is no prohibition in the Act from paying bonus to officers like Mr. Banerjee, upto a maximum of 20%.
Therefore, when the payment as in Ext.
1, has been made to officers like Mr. Banerjee and others, such amounts have to be computed as an item of expenditure, under the Second Schedule of the Act.
It is no doubt true that an officer drawing a salary not exceeding, Rs. 1600 per mensem is an employee under section 2(13) and he will also be eligible for payment of bonus under section 8 read with sections 10 and 11 of the Act.
But ,the point that is missed by the learned counsel is the limitation 112 contained in section 12.
Though officers drawing salary upto Rs. 1600 per mensem are employees under section 2 (13) and eligible for bonus, still for purposes of calculation of bonus payable under sections 10 and 11, such officers, whose salary exceeds Rs. 750 per mensem, for calculating bonus, the, salary or wages per month will be taken at the maximum of Rs. 750 per mensem.
That is, if an officer is getting, Rs. 1500, per mensem.
he will be eligible for onus; nevertheless for calculating bonus payable to him he will be treated as drawing a salary of only Rs. 750 per mensem.
Therefore, Mr. Banerjee, in the case before.
, us, has admittedly to be paid bonus, which is due to him under the Act for the year 1964 65 on the, basis that his salary is only Rs. 750 per mensem.
What the Company has done was to pay him not only the bonus as calculated under the Act, but also an additional amount.
Such additional amount paid to all such officers totalling Rs. 2.65 lakhs cannot be considered to be an expenditure debited directly to Reserves.
The Tribunal was justified in adding back this amount to the gross profits.
The third item relates to return on provision for doubtful debts.
The Company had calculated return of Share capital and Reserves.
It further claimed a return at 6% on Rs. 2.5 lakhs, which according to it was a revision for doubtful debts.
The amount claimed as return under this head was Rs. 15,000 and the Company claimed to deduct this amount from the gross profits as an item of expenditure.
The Tribunal has rejected this claim of the Company.
It is not necessary for us to dwell on this point at any great length in view of the decision of this Court in Indian Oxygen Ltd. etc.
vs Their Workmen(1), where the decision of the Tribunal directing such an amount to be added back in computing the gross profits has been approved.
The legal position has been dealt with in the said _judgment.
Accordingly, we hold that the Tribunal was justified in adding back the said amount to gross profits.
Mr. P. section Khera, learned counsel for the Unions has contended that the Tribunal was not justified in allowing deduction of certain items from the gross profits for purposes of computing the available and allocable surplus.
The Unions no doubt have not filed any appeal.
In fact in the particular circumstances of this case the could not have filed an appeal because they have been awarded the maximum 20% allowable under the Act.
But, according to Mr. Khera, if the items on which he has relied on had been added back, the Award of the Tribunal can be maintained even on the basis that the principle adopted by the Tribunal in respect of direct tax is found to be erroneous by this Court.
(1) ; 113 The right of parties like the respondents before us even in labour adjudication to support the decision of the Tribunal on grounds which were not accepted by the Tribunal or on other grounds which may not have been taken note of by the Tribunal, has been recognised by this Court in Management of Northern Railway Co operative Society Ltd. vs Industrial Tribunal, Rajasthan etc.
(" ') In fact this decision had to deal with an appeal filed a Co operative Society against the Award of the Tribunal setting aside the order passed by the Society removing from its service an employee.
This Court permitted the Union concerned, which was respondent in the appeal, to support the Award of the Tribunal, directing reinstatement of the employee on grounds which had not been accepted by the Tribunal and also on ground which had not been taken notice of by the Tribunal.
Similarly, in J. K. Synthetics Limited vs J. K. Synthetics Mazdoor Union(1), this Court permitted the Union, which was the respondent in the appeal, to support the decision of the Industrial Tribunal on a method of computation regarding bonus which was not adopted by the Tribunal.
Though 'the management appellant therein challenged the right of the Union to support the award on other grounds without filing an appeal, that contention was rejected by this Court as follows : "On behalf of the management the right of the union to challenge the multiplier and divisor, in the absence of an appeal by it, is strenuously contested but in our view there is little force in this objection.
The appeal by the employer is against the grant of bonus to, the employees which implies that the method of computation of the gross profits, as well as of the available surplus and the rate at which the bonus is granted can subjected to scrutiny.
It is needless to recount the several priorities that have to be deducted and the items in respect of which amounts have to be added, before arriving at the available surplus.
In an appeal, the sevetat steps which have to be taken for computation of the available surplus, either in respect of the actual amounts or the method adopted, can be challenged.
If so, the union, even where it has not appealed against ,the award, can support it on a method of computation, which may not have been adopted by the Tribunal but nonetheless is recognised by the Full Bench formula of this Court so longing in the final result the amount awarded is not exceeded.
We are supported in this view by a decision of this Court in Management of Northern Railway Cooperative Society Ltd. vs Industrial Tribunal, Rajasthan, (1) ; (2) 114 Jaipur and another(1), where it was held that the respondents were entitled to support the decision of the Tribunal even on grounds which were not accepted by the Tribunal or on other grounds which may not have been taken notice of by the Tribunal while they were patent on the face of the record.
" In the said decision this Court also found support for the above view in the decision of Ramanbhai Ashabhai Patel vs Dabhi Ajitkumar Fulsinji and others(1), though the latter decision related to an election appeal.
We will now deal with the items, which, according to ( 'the Unions should not have been allowed to be deducted from the gross profits.
The first item relates to a sum of Rs. 18,24,047 paid by the Company to retired workmen at Jamshedpur Workshop under a Voluntary Retirement Scheme.
This Scheme is exhibit G. and it was framed on August 9, 1965.
The Scheme states that the Company has been suffering, from an acute shortage of imported raw materials in view of the difficulty in getting foreign exchange and as such production could not be maintained for some, considerable time.
In view of these difficulties it is stated that the Company has found it necessary substantially to reduce the number of workers in the Workshop.
The Scheme offered substantial benefits to workmen who choose to retire voluntarily, namely, ex gratia payment equal to retrenchment compensation under section 25 of the Industrial Disputes Act, and gratuity admissible to the workmen.
There is evidence on the side of the Company that about 450 workmen availed themselves of the Voluntary Retirement Scheme and a sum of Rs. 18,24,047 was paid.
This item has been included in the profit and loss account under the heading "Salary, Wages, Bonus and Retirement gratuities.
" The Company gave a break ,up of these items in answer to the interrogatories furnished to it by the workmen.
The contention on behalf of the Unions is that under the Re tirement Gratuity Scheme, which is in force, a workman retires at the age of 60 and normally during the year 1965 66, the payment of gratuity to persons so retired would have come to Rs. 1.21 lakhs.
Therefore, it was argued that the payment of Rs. 18.24 lakhs and odd paid as lumpsum under the Voluntary Retirement Scheme during the year 1965 66 was not proper as that amount would have in the ordinary course been spread over eight or ten years.
The Tribunal has rejected this claim of the Unions, and in ,,our opinion, quite rightly.
If there had been a retrenchment and compensation had been paid to all these workmen, ;the Unions cannot raise any objection in law to the payment of such amount.
(1) ; (2) [1965]1 S.C.R. 712.
115 If retrenchment had been restored, the junior most men under the principle "last come first go" would have been sent out of service.
On the other hand, the Voluntary Retirement Scheme enabled the younger workmen to continue in service while it offered a temptation for the older employees to retire from service.
The Voluntary Retirement Scheme has not been challenged, as mala fides by the Unions.
We are in agreement with the view of the Tribunal that the payment of compensation to induce the workmen to retire prematurely was an item of expenditure incurred by the Company on the ground of commercial expense in order to facilitate carrying on of the business and it was an expenditure allowable under section 37(1) of the Income tax Act.
It was not an expenditure of a capital nature.
The Tribunal was justified in declining to add back this item of expenditure to the gross profits.
The second item, which according to the Unions should have been added back is the sum of Rs. 65,764 which was claimed as extra shift allowance of plants and machinery added during the year.
The consideration of this claim was postponed by the Income tax Officer on the ground that the Company had not furnished the requisite particulars.
The Company claimed a sum of Rs. 36,10,594 as depreciation allowable under section 32(1) of the Income tax Act.
According to the Unions, as the sum of Rs. 65,764 has not been accepted by the Income tax Officer, the Company can claim depreciation only in the sum of Rs. 35,44,830.
The Tribunal did not accept this contention of the Unions on the ground that the amount of Rs. 65,764 has not been disallowed by the Income tax Officer.
It is now stated in an affidavit filed in this Court on March 23, 1972 by the Chief Financial Accountant of the Company that the Company has filed an appeal against the order of the Income tax Officer refusing to allow Rs. 65,764 as extra shift allowance for the year 1965 66.
In our opinion, the rejection of the Unions ' contention in this regard by the Tribunal is justified.
It is seen that the Company has produced figures for depreciation and that has not been subjected to any serious challenge by the Unions.
Hence the objection regarding extra shift allowance has also to be rejected in view of the decision of this Court, in Jabalpur Bijlighar Karamchari Panchayat vs The Jabalpur Electric Supply Co. Ltd. and another.
(1) The third item objected to by the Unions related to the ex penditure shown by the Company for repairs and renewals.
According to the Unions the expenses shown are very heavy and large and that the Company was not justified in incurring 'the same.
In our opinion, this contention also has been properly rejected by the Tribunal.
Apart from the fact that the Unions (1) A.I.R. 1972 S.C.70 116 are not technically entitled to raise this objection, as they have not pleaded the same in their statement of case filed before this Court, this contention can be rejected even on merits.
The Unions had furnished interrogatories requiring the Company to furnish certain particulars.
Mr. R. N. Gupta, the Chief Financial Accountant of the Company filed an affidavit before the Tribunal giving answers to the interrogatories.
He had categorically given details as to how the amount of Rs. 12.94 lakhs has been incurred as expenses for repairs and renewal.
Mr. Gupta had also given evidence about this matter.
In cross examination he had stated that all the vouchers for repairs and renewal were scrutinised by the auditors and this evidence has been accepted by the Tribunal.
Therefore, the Tribunal was justified in rejecting this claim of the Unions.
The last item relates to the claim made by the Unions that after distribution of bonus at 20% for the year 1964 65, there must have been a surplus and it.
should have been set on for the next year, namely, 1965 66.
This amount so set on should be taken into account for computing bonus for the year 1965 66.
This assertion made on behalf of the Unions was controverted by the Company on the ground that there was no surplus left after paying, the maximum 20% bonus for the accounting year 1964 65.
In fact the evidence of Mr. Gupta shows that apart from there not having been any surplus, the Company Raid 20% bonus merely because they had already announced that they will pay the same.
It is clear from his evidence that bon us at 20% could not have been declared for the year 1964 65 and in order to honour the declaration made by the Company, bonus was paid at that percentage.
This evidence of Mr. Gupta has been, in our opinion, rightly accepted by the Tribunal.
No evidence contra has been adduced by the Unions.
Once the evidence of Mr. Gupta is accepted, it is: clear that there was no surplus after paying bonus for 1964 65.
Therefore, the question of set on does not arise.
This plea of the Unions also has to be rejected.
From what is stated above, it is seen that the only aspect in respect of which the Award of the Tribunal requires modification is in respect of the principle to, be adopted for calculating direct tax.
As we have accepted the contention of the Company in that regard, it follows that recomputation of the available and allocable surplus will have to be made after making a calculation of direct tax without deducting bonus payable for the year 1965 66.
In the original calculation filed by the Company, it calculated tax only in the sum of Rs. 98,10,893.
It has later on corrected this figure by adding a sum of Rs. 1,34, 921 being surtax.
Therefore, the total direct tax will be Rs. 99,45,814.
Here again Mr. 117 Gupta in his affidavit dated March 23, 1972 has given the correct figures.
Therefore the recomputation of the available surplus, allocable surplus and the percentage of bonus for The accounting year 1965 66 on the basis of our judgment will be as follows Rs. Rs. Gross Profit as pier Award 216,16,195 of National Tribunal Less (1) Depreciation admissible under section 32 (1) of I.T. Act. 36,10,594 (2) Development Rebate admissible 6,76,22442,86,818 1,73,29,377 Less: Direct Tax as Per cl. 6 (c) including Di vidend Tax 99,45,814 73,83,563 Less Statutory Deductions Share Capital Rs. 248,65,45021,13,56349,22,387 @ 8 .5%.
Reserves Rs. 46,81,37,73928,08,824 @ 6% (without tak ing into account 6 % of Rs. 250,000/ be ing provision for Doubtful debts) Available Surplus. 24,61,176 Allocable Surplus60% of above 14,76,706 Effective Gross salary 105,32,880 Bonus paid @ 13.51% 14,22,992 Balance .51% 53,714 14.02% 14,76,706 From the above, it will be seen that the workmen will be entitled to bonus at 14.02% of their total salary or wages and the amount will be Rs. 14,76,706 and not Rs. 20% as awarded by the Tribunal.
From this it follows that the further direction in the Award of the Tribunal regarding set on cannot be accepted.
Admittedly, the Company has already declared and paid Rs. 14,22,922 representing 13.51% of the total wages or salary.
Therefore, the balance additional amount that the Company will have to pay by way of bonus to make up the 14.02%, as stated above, is Rs. 53,714.
This amount will be paid by the Company within a period not exceeding two months from today.
The Award of the Industrial Tribunal is accordingly modified and the appeal allowed in part.
Parties will bear their own costs.
G.C Appeal allowed in part. | The appellant company declared bonus for the year 1955 56 at 13.51% The workmen demanded bonus at the rate of 20%, the maximum provided in the Payment.of Bonus Act, 1965.
The dispute about the rate of bonus and calculation of the available surplus was referred to the Industrial Tribunal.
The Tribunal held that a sum of Rs. 21,06,576 being bonus at 20% of the gross effective salaries and wages was payable for the year in question and it directed the surplus amount of Rs. 1,46,252/ to be set on As the bonus at the rate of 13.51 % had already been declared and paid by the Company, the Tribunal directed the payment of the balance 6.49% within a prescribed period.
In appeal to this Court against the Tribunal 's award the appellant company contended : (i) that the Tribunal erred in holding that under sections 6 and 7 of the the bonus payable for the relevant accounting year has to be deducted from the gross profits for the calculation of direct tax, (ii) that the Tribunal erred in refusing to deduct from the gross profits the ex gratia payment made to employees in respect of salary above the ceiling of Rs. 750 fixed by the Act.
(iii) that the Tribunal wrongly refused to deduct the reserve for doubtful debts from the gross profits.
On behalf of the respondent workmen it was urged that the Tribunal was not justified in allowing deduction of certain items from the gross profits for purposes of computing the available and allocable surplus.
HELD : (i) In the case of Metal Box Co., it was held by this Court that the notional tax liability is to be worked out by first working out the gross profits and deducting therefrom the prior charges under section 6, but not the bonus payable to the employees.
It is clear from the above decision that an employer is entitled to deduct his tax liability without deducting first the amount of bonus he would be liable to pay from and out of the amount computed under sections 4 & 6 of the Act.
This principle has been upheld by the Court in later cases.
This Court has also held that the amendment of the Act in 1969 has not effected any change in the earlier decision that the tax liability under the Act is to be workedout firstby working out the gross profits and deducting therefrom bonuspayableto the employees.
It followed that the Tribunal committed anerror inlaw in computing direct tax after deducting bonus.
[109H 110D] Metal Box Co. of India Ltd. vs Their Workmen, [1969]1 S.C.R. 750, The Workmen of William Jacks, and Company Ltd. Madras vs Management of William Jacks and Co. Ltd., Madras, A.I.R. 1971 S.C. 08SupCI/72 106 1821, Delhi Cloth and General Mills Co. Ltd. vs Workmen ; and Indian Oxygen Ltd. etc.
vs Their Workmen; , applied.
(ii) Though officers drawing salary upto Rs. 1600 per mensem are employees under section 2(13) of the Act and eligible for bonus, the salary or wages per month will be taken at the maximum of Rs. 750/ permensem.
What the company had done was to pay such men not only the bonus as calculated under the Act, but also in additional amount representing bonus on the emoluments above the ceiling of Rs. 750/ .
Such additional amount paid to all such officers totalling Rs. 2.5 lakhs could not be considered to be an expenditure debited directly to Reserves.
The Tribunal was justified in adding back this amount to the gross profits.
[12A C] (iii) In view of the decision of this Court in Indian Oxygen Ltd. the Tribunal 's decision adding back the deduction claimed by the appellant on account of return on the provision for doubtful debts must be upheld.
[112E F] (iv) The respondents were entitled to support the decision of the Tribunal even on grounds which were not accepted by the Tribunal or on other grounds which may not have taken notice of by the Tribunal while they were patent on the face of the record.
[113A, 114A B] Management, of Northern Railway Co operative Society Ltd. vs Industrial Tribunal, Rajasthan et. ; ; J. K. Synthetics Limited vs J.K. Synthetics Mazdoor Union, and Ramanbhai Ashabhai Patel vs Dabhi Ajitkumar Fulsinji and others; , , followed.
(v) The Voluntary Retirement Scheme had not been challenged as mala fide by the Unions.
The payment of Compensation.
to induce the workmen to retire prematurely was an item of expenditure incurred by the company on the ground of commercial expense in order to facilitate carying on of the business and it was an expenditure allowable under section 37(i) of the Income tax Act.
It was not an expenditure of a capital nature.
The Tribunal was justified in declining to add back this item of expenditure to the gross profits.
[115B C] (vi) The Company had filed an appeal against the order of the Income tax officer postponing consideration of the company 's claim for extra shift allowance.
The Company had produced figures of depreciation and that had not been subjected to any serious challenge by the Unions.
In the circumstances the Tribunal rightly refused to add back the amount claimed by the Company as extra shift allowance.
[1 15F G] Jabalpur Bijlighar Karamchari Panchayat vs
The Jabalpur Electric Supply Co. Ltd. and another, A.I.R. 1972 S.C.70 applied.
(vii) The amount claimed by the Companyin respect of repairs and renewals was supported by evidence and had been accepted by the auditors.
The contention of the Unions that the Company was not justified in incurring the said expenditure had been rightly rejected by the Tribunal.
[1 15A] (viii) Since from the evidence produced on behalf of the company it was clear that there was no surplus after paying bonus for 1964 65 the question of set on for the next year did not arise.
The plea of the Unions in this regard had to be rejected.
[116F] [After working out the available and allocable surplus on the basis of the above findings the Court fixed the bonus payable at 14.02%]. |
Appeal No. 86 of 1959.
Appeal by special leave from the judgment and order dated March 27, 1957, of the Patna High Court in Appeal from Original Decree No. 359 of 1948.
A. V. Viswanatha Sastri and section P. Varma, for the appellant.
882 H. N. Sanyal, Additional Solicitor General of India, R. Ganapathy Iyer and T. M. Sen, for the respondent.
July, 24.
The Judgment of the Court was delivered by SHAH, J.
Bikhraj Jaipuria hereinafter called the appellant is the sole proprietor of a grocery business conducted in the name and style of "Rajaram Vijai Kumar" in the town of Arrah in the State of Bihar.
In the months of July and August, 1943, the, Divisional Superintendent, East Indian Railway under three " 'purchase orders ' agreed to buy and the appellant agreed to sell certain quantities of food grains for the employees of the East Indian Railway.
The 'following table sets out the purchase prices, the commodities, the dates of purchase orders, the quantities and the rates and the method of supply.
Purchase Date of Kinds Quantity Rates.
Order purchase of of No. orders.
commo commo dity.
dities.
(1) (2) (3) (4) (5) 69.
20 7 1943.
Gram 1st 1000 mds. @ Rs. 15/ quality.
per md.
(plus cost of new bags not exceeding Rs. 75/ per 100 bags) F.O.R. any E.I.Rly.
sta tion in Bihar.
:4 7 1943.
Rice 1000 mds.
@ Rs. 22 8 0 Dhenki (plus cost of Medium bags not ex quality.
ceeding Rs.75 883 (1) (2) (3) (4) (5) per cent) per md.
F.O.R. any station on the division.
Wheat 5000 mds.
@ Rs. 20 8 0 white per md.
with as per bags F.O.R. sample.
any station on E.I.R. on the Division.
24 8 1943.
Rice 15000 mds. @ Rs. 24/ medium per md.
with quality.
out bags F.O.R. E.I. Rly.
station in Bihar.
Purchase orders Nos. 69 and 76 were signed by S.C. Ribbins, Personal Assistant to the Division at Superintendent and purchase order No. 106 was signed by the Divisional Superintendent.
Under the purchase orders delivery of grains was to commence within seven days ' of acceptance and was to ' be completed within one month.
The appellant delivered diverse quantities of foodgrains from time to time but was unable fully to perform the contracts within, the period stipulated.
Between July.), 20, 1943 and August of 4, 1943, he supplied 3465 maunds of rice and between September 1, 1943 and September 19, 1943 he supplied 1152 maunds 35 seers of wheat.
In exercise of the powers conferred by cl.(b) of Sub r.
(2) of r.81 of the Defence of India Rules, the Government of Bihar by notification No. 12691 P.C. dated September 16, 1943 directed that commodities named in column I of the schedule shall not, from and including September 20, 1943 and until further notice, be sold at any primary source of supply or by the proprietor, manager or employee of any mill in the Province of Bihar at prices exceeding those 884 specified in the second column of the schedule.
The controlled rat . of rice (medium) was Rs. 18/ per standard maund, of wheat (red) Rs. 17/ , of wheat (white) Rs. 18/ and of gram Rs. 12 8 0.
The Sub Divisional Magistrate, District Arrah issued on September 21, 1943, a price list of controlled articles fixing the same prices as were fixed for wheat, rice and gram by the notification issued by the Government of Bihar.
By cl.
(2) of the notification, a warning was issued that in the event of the dealers selling controlled articles at rates exceeding those fixed or with holding stocks of such articles from sale, "they will be liable to prosecution under r.81 (1) of the Defence of India Rules.
" By a telegraphic communication dated Sep. tember 28, 1943, the Divisional Superintendent informed the appellant that under the purchase orders, foodgrains tendered for delivery will not, unless despatched before October 1, 1943, be accepted, and barring a consignment of 637 maunds 20 seers accepted on October 7, 1943, the Railway Administration declined to accept,delivery of food grains offered to be supplied by the appellant after October 1, 1943.
The appellant served a notice upon the Divisional Superintendent coraplaining of breach of contract and sold between February la and February 23, 1944 the balance of foodgrains under the purchase orders which were lying either at the various railway stations or in his own godowns.
The appellant then called upon the Railway Administration to pay the difference between the price realised by sale and the contract price and failing to obtain satisfaction, commenced an action (Suit No. 359/48A) in the court of the First Additional Subordinate Judge, Patna for a decree for Rs. 2,89,995 15 3 against the Dominion of India.
The appellant claimed Rs. 2,32,665 12 0 being the difference between the contract price and the price realised, Rs.42,709 10 3 as interest and Rs. 14,620 9 0 as freight, wharf.
885 age, cartage, price of packing material, labour charges and costs incurred in holding the sale.
The appellant submitted that under the terms of the purchase orders, supply was to commence within seven days of the date of receipt of the orders and was to be completed within one month, but it was not intended that time should be of the essence of the contract, and in the alternative that the Railway Administration had waived the stipulation as to time in the performance of the contracts and therefore he was entitled, the Railway Administration having committed breach of ,the contracts, to recover as compensation the difference between the contract price and the price for which the grains were sold.
The suit was resisted by the Dominion of India contending inter alia that the appellant had no cause of action for the claim in the suit, that the contracts between the appellant and the Divisional Superintendent Dinapur were not valid and binding upon the Government of India and that the contracts were liable to be avoided by the Government, that time was of the essence of the contracts, that stipulations as to time were not waived, and that no breach of contract was committed by the East Indian Railway Administration and in any event, the appellant had not suffered any loss as a result of such breach.
By the written statement, it wag admitted that the East Indian Railway through the Divisional Superintendent, Dinapur had by three orders set out in the plaint agreed to buy and the appellant had agreed to sell the commodities specified therein, but it was denied that the Divisional Superintendent had been ""given complete authority to enter into contracts for the supply of foodgrains.
" The trial court held that time was not of the essence of the contracts and even if it was, breach of the stipulation in that behalf was waived.
It further_held that the plea that the contracts were void because they were not in accordance with the 886 provisions of section 175 (3) of the Government of India Act, 1935, could not be.permitted to be urged, no such plea having been raised by the written statement.
Holding that the Divisional Superintendent was authorised to enter into the contracts for purchase of foodgrains, and that he had committed breach of contracts the trial Judge awarded to the appellant Rs. 1,29,460 7 0 with interest thereon at the rate of 6% per annum from October 1, 1943, to the date of the institution of the suit and further interest at 6% on judgment.
Against that decree, an appeal was preferred by the Union of India to the High Court of Judicature at Patna and the appellant filed cross objections to the decree appealed from.
The High Court held that time was of the essence of the contracts, but the Railway Administration having a accepted the goods tendered after the expiration of the period prescribed thereby, the stipulation as to time was waived.
The High Court further held that by the notification under r. 81 of the Defence of India Rules, performance of the contracts had not been rendered illegal but the Divisional Superintendent had no authority to enter into contracts to purchase food grains on behalf of the Railway Administration and that in any event, the contracts not having been expressed to be made by the Governor General and not having been executed on behalf of the Governor General by an officer daily appointed in that behalf and in manner prescribed, the contracts were unenforceable.
The High Court also held that the appellant was not entitled to a decree for compensation because he had failed to prove the ruling market rate on the date of breach viz, October 1, 1943.
The High Court also observed that the trial court erred in awarding interest prior to the date of the suit and in so holding, relied upon the judgment of the Privy Council in Bengal Nagpur Railway Co., Ltd. vs Ruttanji Ramji and others (1).
(1) L. R. (1938) 65 J. A. 66. 887 In this appeal by the appellant, two questions fall to be determined, (1) whether relying upon the purchase orders signed by the Divisional Superintendent which were not made and executed in the manner prescribed by s.175 (3) of the, Government of India Act 1935, the appellant could sue the Dominion of India for compensation for breach of contract, and (2) whether the appellant has proved the ruling market rate on October 1, 1943 for the commodities in question.
, The finding that the Railway Administration had waived the stipulation as to the performance of the contracts within the time prescribed though time was under the agreement of the essence, is not challenged before us on behalf of the Union of India.
If the finding as to waiver is correct, manifestly by his telegraphic intimation dated September 28, 1943, that the foodgrains not despatched before October 1, 1943, will not be accepted the Divisional Superintendent committed a breach of the contract.
Section 175 (3) of the Government of India Act as in force at the material time provided : "Subject to the provisions of this Act, with respect to the Federal Railway Authority, all contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made by the Governor General, or by the Governor of the Province, as the case may be, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor General or Governor by such persons and in such manner as he may direct or authorise.
" The Federal Railway Authority had not come.
into being in the year 1943: it was in fact never set up.
The contracts for the supply of foodgrains were undoubtedly_ made in the exercise of executive 888 authority of the Federation.
The contracts had therefore under section 175(3), (a) to be expressed to be made by the Governor General, (b) to be executed on behalf of the Governor General, and (e) to be execrated by officers duly appointed in that behalf and in such manner as the Governor General may direct or authorise.
But no formal contracts were executed for the supply of foodgrains by the appellant : he had merely offered to supply foodgrains by letters addressed to the Divisional Superintendent and that officer had by what are called "purchase orders" accepted those offers.
These purchase orders were not expressed to be made in the name of the Governor General and were not executed on behalf of the Governor General.
The purchase orders were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant.
In the first instance it has to be considered whether the Divisional Superintendent had authority to contract on behalf of the Railway Administration for buying foodgrains required by the Railway Administration.
By Ex.
M 2 which was in operation at the material time, all instruments relating to purchase or hire, supply and conveyance of materials, stores, machinery, plant, telephone lines and connections, coal etc. could be executed amongst others by the Divisional Superintendent; but contracts relating to purchase of foodgrains are not covered by that authority.
Under item 34 which is the residuary item, all deeds and instruments relating to railway matters other than those specified in items 1 to 33 may be executed by the Secretary of the Railway Board.
It is common ground that there is no other item which specifically authorises the making and execution of contracts relating to purchase of foodgrains; deeds and instruments relating to purchase of food grains therefore fall within item 34.
The Secretary to the Railway Board had not executed these purchase orders : but the trial Court held 889 that the Divisional Superintendent was authorised to enter into contracts with the appellant for the supply of foodgrains.
In so holding, the trial judge relied upon the evidence of Ribbins, Grain Supply Officer and Personal Assistant to the Divisional Superintendent, Dinapur.
The High Court disagreed with that view.
The High Court observed that the authority of the officer acting on behalf of the Governor General "must be deduced from the express words of the Governor General himself expressed by rules framed or by notification issued, under section 175(3).
No notification has been produced in this case showing that the Divisional Superintendent had been authorised by the Governor General to execute such contracts on his behalf, nor has any rule been produced which conferred authority upon the Divisional Superintendent to make such contracts.
" After referring to paragraph 10 of the notification, exhibit M 2 items 1 to 34, the High Court observed: "Therefore this notification rather shows that the Divisional Superintendent had no authority to execute the contracts for the purchase of food grains." In our view, the High Court was in error in holding that the authority under section 175(3) of the Government of India Act, 1935 to execute the contract could only be granted by the Governor General by rules expressly promulgated in that behalf or by formal notifications.
This court has recently held that special authority may validly be given in respect of a particular contract or contracts by the Governor to an officer other than the officer notified under the rules made under section 175(3).
In The State of Bihar vs M/s. Karam Chand Thapar and Brothers Ltd.(,), Venkatarama Aiyar J. speaking for the court observed : (1) ; 890 It was further argued for the appellant that there being a Government notification of a formal character we should not travel outside it and find authority in a person who is not authorised thereunder.
But section 175 (3) does not prescribe any particular mode id which authority must be conferred.
Normally, no doubt, such conferment will be by notification in the Official Gazette, but there is nothing in the section itself to preclude authorisation being conferred ad hoc on any person, and when that is established, the requirements of the section must be held to be satisfied." In that case, an agreement to refer to arbitration on behalf of the Government of Bihar was executed by the Executive Engineer whereas by the notification issued by the Government of Bihar under s.175 (3) all instruments in that behalf had to be executed by the Secretary or the Joint Secretary to the Government.
This Court on a consideration of the correspondence produced in the case agreed with the High Court that the Executive Engineer had been specially authorised by the Governor acting through his Secretary to execute the agreement for reference to arbitration.
Section 175 (3) in terms does not provide that the direction or authority given by the Governor General or the Governor to a person to execute contracts shall be given only by rules or by notifications, and the High Court was in our judgment in error in assuming that such authority can be given only by rules expressly framed or by formal notifications issued in that behalf.
In para 5 of the plaint, the appellant pleaded: " 'That for the purposes and under the authority conferred as noted in the para 3 above in July and August, 1943 the said E. 1.
through its then Divisional Superintendent, Dinapur, by three diverse orders agreed to buy and the plaintiff agreed to sell the following commodities at the rates mentioned against them, 891 By para 3 of the written statement, the Dominion of India accepted the allegations made in para 5 of the plaint.
It is true that by paragraph 1, the authority of the Divisional Superintendent to enter into contract with, trading firms dealing in foodgrains for the supply of foodgrains was denied and it was further denied that the Divisional Superintendent "was invested with complete authority to enter into contracts for the purchase of food supplies and to do all that was necessary in that connection.
" There was some inconsistency between the averments made in paragraphs 1 and 3 of the written statement, but there is no dispute that the purchase orders were issued by the Divisional Superintendent for and on behalf of the East Indian Railway Administration.
Pursuant to these purchase orders, a large quantity of foodgrains was tendered by the appellant: these were accepted by the Railway Administration and, payments were made to the appellant for the grains supplied.
Employees of the Railway Administration wrote letters to the appellant calling upon him to intimate the names of the railway stations where grains will be delivered and about the date when the supply.
will commence.
They fixed programmes for inspection of the goods, kept 'wagons ready for accepting delivery, held meetings on diverse occasions for settling programmes for the supply of grains, rejected grains which were not according to the contract, entered into correspondence with the appellant about the return of empty bags accepted bills and railway receipts and made pay ments, returned certain bills in respect of the grains tendered beyond the period of contract and did diverse other acts in respect of the goods which could only be consistent with the contracts having been made with the authority of the Railway Administration granted to the Divisional Superintendent.
There is also the evidence of Ribbins which clearly supports the vie* that the agreements to purchase foodgrains by the Divisional 892 Superintendent were part of a. scheme devised by the Railway Administration at the time of the, serious famine in 1943 in Bengal.
In cross examination, Ribbins stated: "When the Bengal famine arose in April May 1943, the (necessity for a scheme of) arrangement of supplying foodgrains to E. I. Railway employees arose .
A scheme was drawn up for carrying out this work in writing.
In other words orders were received from Head Office Calcutta about it.
The Deputy General Manager, Grains, Calcutta issued the necessary orders .
The agent or General Manager as he is called appropriated the above functionary.
He must have done so presumably under orders .
The entire scheme did subsequently get the assent of the Railway Board.
From time to time order came with instruction from Head Office.
All such directions should be in the office of D. Supdt., Dinapur.
Some posts had to be created for carrying out this scheme.
Originally one post of Asstt.
Grain Supply Officer was created.
Subsequently, two posts were created one on a senior scale and the other as Asstt.
in Dinapur Dv.
staff had to be appointed to be in charge of the grain shops.
They were exclusively appointed to work the grain shop Organisation.
The Railway made some arrangement in some places for accommodation and additional storage.
Grain shops were located At these places when accommodation was made for additional storage.
" Ribbins was for some time a Grain Supply Officer under the East Indian Railway and he admitted that orders similar.to the purchase orders in question in this litigation were drawn up in cyclostyled forms "as per orders from the Head Office.
" The witness stated that the instructions of the Head Office were "in the office file".
None of these documents were, however, produced or tendered in evidence by the Railway Administration. 893 The evidence on the whole establishes that with a view to effectuate the scheme devised by the Railway Board for distributing foodgrains to their employees at concessional rates, arrangements were made for procuring foodgrains.
This scheme received the approval of the Railway Board and Railway Officers were authorised to purchase, transport and distribute foodgrains.
If, in the implementation of the scheme, the foodgrains were received by the Railway Administration, special wagons were provided and goods were carried to different places and distributed and payments were made for the foodgrains received by the Railway Administration after testing the supplies, the inference is inevitable that the Divisional Superintendent who issued the purchase orders acted with authority specially granted to him.
The evidence of Ribbins supported by abundant docu mentary evidence establishes beyond doubt that the Divisional Superintendent though not expressly authorised by the notification exhibit M 2 to contract for the purchase of foodgrains, was specially authorised to enter into these contracts for the purchase of foodgrains.
The question still remains whether the purchase orders executed by the Divisional Superintendent but which were not expressed to be made by the Governor General and were not executed on behalf of the Governor General, were binding on the Government of India.
Section 175(3) plainly requires that contracts on behalf of the Government of India shall be executed in the form prescribed thereby ; the section however does not set out the consequences of non compliance.
Where a statute requires that a thing shall be done in the prescribed manner or form but does not set out the consequences of non compliance, the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the legislature as disclosed by the 894 object, put pose and scope of the statute.
If the statute is mandatory, the thing done not in the manner or form prescribed can have no effect or validity : if it is directory, penalty may be incurred for non compliance, but the act or thing done is regarded as good.
As observed in Maxwell on Interpretation of Statutes 10th Edition p. 376 : "It has been said that no, rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequences in its disregard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope.
and object of the enactment.
It may perhaps be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is, in the main governed by considerations of convenience and justice, and when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment such an intention is not to be attributed to the legislature.
The whole scope and purpose of the statute under consideration must be regarded.
" Lord Campbell in Liverpool Borough Bank vs Turner(1) observed "No universal rule 'can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience.
It is the duty of Court of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.
" It is clear that the Parliament intended in enacting the provision contained in section 175(3) that (1) ; 895 the State should not be saddled with liability for unauthorised contracts and with that object provided that the contracts must show on their face that they are made on behalf of the State, i. e., by the Head of the State and executed on his behalf and in the manner prescribed by the person authorised.
The provision, it appears, is enacted in the public interest, and invests public servants with authority to bind the State by contractual obligations incurred for the purposes of the State.
It is in the interest of the public that the question whether a binding contract has been made between the State and a private individual should not be left open to dispute and litigation ; and that is why the legislature appears to have made a provision that the contract must be in writing and must on its face show that it is executed for and on behalf of the head of the State and in the manner prescribed.
The whole aim and object of the legislature in conferring powers upon the head of the State would be defeated if in the case of t contract which is in form ambiguous, disputes are permitted to be raised whether the contract was intended to be made for and on behalf of the State or on behalf of the person making the contract.
This consideration by itself would be sufficient to imply a prohibition against a contract being effectively made otherwise than in the manner prescribed.
Itm is true that in some cases, hardship may result to a person not conversant with the law who enters into a contract in a form other than the one prescribed by law.
It also happens that the Government contracts ,ire sometimes made in disregard of the forms prescribed ; but that would not in our judgment be a ground for holding that departure from a provision which is mandatory and at the same time, salutary may be permitted.
There is a large body of judicial opinion in the High Courts in India on the question whether 896 contracts not ill form prescribed by the Constitution Acts are binding upon the State.
The view has been consistently expressed that the provisions, under the successive Constitution Acts relating to the form of contract between the Government and the private individual are mandatory and not merely directory.
In Municipal Corporation of Bombay vs Secretary of State (1), the true effect of section 1 of Si. 22 and 23 Vic.
c. 41 fell to be determined.
The Governor General of India in Council and the Governors in Council and officers for the time being entrusted with the Government were, subject to restrictions prescribed by the Secretary of State in Council, empowered to sell and dispose of real and personal estate vested in Her Majesty and to raise money on such estate and also to enter into contracts within.
the respective limits for the purposes of the Act.
it was provided that the Secretary of State in Council.
may be named as a party to such deed, contract, or instrument and the same must be expressed to be made on behalf of the Secretary of State in Council by or by the order.
of the Governor General in Council or Governor in Council, but may be executed in other respects in like manner as other, instruments executed by or on behalf of him or them respectively in his or their official capacity, and may be enforced by or against the Secretary of State in Council for the time being.
In a suit between the Government of Bombay and the Municipal Corporation of Bombay, the latter claimed that it was entitled to remain in occupation on payment of a nominal rent, of an extensive piece of land because of a resolution passed by the Government of Bombay sanctioning such user.
Jenkins C. J. in delivering the judgement of the Court observed.
"I think that a disposition in 1865 of Crown ' (1) I. L. R. 897 lands by the Governor in Council was dependent for its validity on an adherence to the forms prescribed, and that therefore the Resolution was not a valid disposition of the property for the interest claimed.
" In Kessoram Poddar and Co. vs Secretary of State for India (1), it was held that in order that a contract may be binding on the Secretary of State in Council., it must be made in strict conformity with the provisions laid down in the statute governing the matter and if it is not so made, it is not valid as against him.
The same view was expressed in section C. Mitra and Co. vs Governor General of India in Council (2), Secretary of State vs Yadavgir Dharamgir(3), Secretary.
of State and another vs G. T. Sarin and, Company U. P. Government vs Lala Nanhoo Mal Gupta Devi Prasad Sri Krishna Prasad Ltd. vs Secretary of State (6), and in section K. Sen vs Provincial P. Way D. State of Bihar(7).
But Mr. Viswanatha Sastri on behalf of the appellant contended that this court in Chatturbhuj Vithaldas Jasanth vs Moreshwar Parashram (8) has held that a contract for the supply of goods to the Government which is not in the form prescribed by article 299 (1) of the Constitution which is substantially the same form as section 175 (3) of the Government of India Act, 1935) is not void and unenforceable.
In that case, the election of Chatturbhuj Jasani to the Parliament was challenged on the ground that he had a share or interest in a contract for the supply of goods to the Union Government.
It was found that Jasani was partner of a firm, which had entered into contracts with the Union Government for the supply of goods and these contracts subsisted on November 15, 1951 and (1) I.L.R. I.L.R. , (3) I.L.R. I.L.R. (1930) 11 Lah.375.
(5) A.I.R. (1960) All.
(6) I.L.R. (1941) All. 741 (7) (7) A.I.R. (1960) Pat.
(8) ; 898 February 14, 1952 respectively the last date for filing nominations and the date of declaration of the results of the election.
This court held that Jasani was disqualified from being elected by virtue of the disqualification set out in section 7 (b) of the Representation of the People Act 43 of 1951.
The contracts in that case were admittedly not in the form Prescribed by article 299 (1) of the Constitution, and relying upon that circumstance, it was urged that the contracts were void and had in law no existence.
In dealing with this plea, Bose J. speaking for the court observed : "We feel that some reasonable meaning must be attached to article 299(1).
We do not think the provisions were inserted for the sake of mere form.
We feel they are there to safeguard Government against unauthorised contracts.
If in fact a contract is unauthorised or in excess of authority it is right that Government should be safeguarded.
On the other hand, an officer entering into a contract on behalf of the Government can always safeguard himself by having recourse to the proper form.
In between is a large class of contracts, probably by far the greatest in numbers, which though authorised, are for one reason or other not in proper form.
It is only right that an innocent contracting party should not suffer because of this and if there is no other defect or objection we have no doubt Government will always accept the responsibility.
If not, its interests are safeguarded as we think the Constitution intended that they should be.
" The learned Judge also observed: "It would, in our opinion, be disastrous to hold that the hundreds of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally or through correspondence and that every petty contract must be effect ed by a ponderous legal document couched in a particular form." 899 The rationale of the case in our judgment does not support the contention that a contract on behalf of a State not in the form prescribed is enforceable against 'the State.
Bose J. expressly stated that the "Government may not be bound by the contract, but that is a very different thing from saying that the contract ",as void and of no effect, and that it only meant the principal (Government) could not be sued; but there will be nothing to prevent ratification if it was for the benefit of the Government.
" The facts proved in that case clearly establish that even though the contract was not in the form prescribed, the Government had accepted performance of the contract by the firm of which Jasani was a partner, and that in fact there subsisted a relation between the Government and the firm under which the goods were being supplied and accepted by the Government.
The agreement between the parties could not in the case of dispute have been.enforced at law, but it was still being carried out according to its terms : and the Court held that for the purpose of the Representation of the People Act, the existence of such an agreement which was being carried out in which Jasani was interested disqualified him.
It was clearly so stated when Bose J. observed: "Now section 7 (d) of the Representation of the People Act does not require that the contracts at 'which it strikes should be enforceable against the Government ; all it requires is that the contracts should be for the supply of goods to the Government.
The contracts in question are just that and so are hit by the section".
Reliance was also placed by counsel for the appellant upon cases decided under s.40 of the Government of India Act, 1915, which was continued in operation.
even after the repeal of the Act, 1915, by the 9th schedule to the Government of India Section 40 prescribed the manner in which the business of the Governor General in Council was to be conducted.
It provided that all orders and other proceedings of the Governor General in Council shall be expressed to be made by the Governor General in Council and shall be signed by a Secretary to the Government of India or otherwise as the Governor General in Council may direct and shall not be called in question in any legal proceeding on the ground that they were not duly made by the Governor General in Council.
In J.K. Gas Plant Manufacturing Co., (Rampur) Ltd., vs King Emperor (1), certain persons were accused of offences committed by them in contravention of cls.
(5) and (8) of the Iron and Steel (Control of Distribution) Order, 1941, which order was not expressed to be made by the Governor General in Council as required by section 40(1) of the 9th schedule to the Constitution Act.
The Federal Court held that the scope and purpose of the Act did not demand a construction giving a mandatory rather than a directory effect to the words in section 40: for, in the first instance, the provision that all orders of the Governor General in Council shall be expressed to be made by the Governor General in Council did not define how orders were to be made but only how they are to be expressed; it implied that the process of making an order preceded and was something different from the expression of it.
Secondly, it was observed, the provision, was not confined to orders only and included proceedings and in the case of proceedings, it was still clearly a method of recording proceedings which had already taken place in the manner prescribed rather than any form in which the proceedings, must take place if they are valid.
Thirdly, it was observed, that the provision relating to the signature by a Secretary to the Government of India or other person indicated that it was a provision as (1) 901 to the manner in which a previously made order should be embodied in publishable form, and it indicated that if the previous directions as to the expression of the order and proceedings and as to the signature were complied with, the order and proceedings shall not be called in question in a court of law on one ground only.
The rule contained in section 40 (1) was in the view of the court one of evidence which dispensed with proof of the authority granted by the GovernorGeneral in respect of orders or proceedings which complied with the requirements prescribed : the making of the order or the proceedings was independent of the form of the order or proceedings expressing it.
But it cannot be s aid that the making of the contract is independent of the form in which it is executed.
The document evidencing the contract is the sole repository of its terms and it is by the execution of the contract that the liability ex contracti of either party arises.
The principle of J. K. Gas Plant Manufacturing Co. 's case has therefore no application in the interpretation of section 175 (3) of the Government of India Act, 1935.
Reliance was also placed upon Dattatreya Moreshwar Pangarkar vs The State of Bombay (1) and The State of Bombay vs Purshottam Jog Naik(2).
In both these cases, orders made by the Government of Bombay under the Preventive Detention Act were challenged on the ground that the orders did not comply with the requirements of article 166 of the Constitution.
Article.
166 substantially prescribes the same rules for authentication of the orders of the Governor of a State as section 40 to the 9th schedule of the Government of India Act, 1935 prescribed for the authentication of the orders of the Governor General and the Governors.
In the former case, this court observed that (1) ; (2) ; 902 the Preventive Detention Act contemplates and requires the taking of an executive decision for confirming a detention order under section 11 (1) and omission to make and authenticate that decision in the form set out in article 166 will not make the decision itself illegal,for the provisions in that arti cle are merely directory and not mandatory.
In the latter case, an order which purported to have been made in the name of the Government of Bombay instead of the Governor of Bombay as required by article 166 was not regarded as defective and it was observed that in any event, it was open to the State Government to prove that such an order was validly made.
The court in those cases therefore held that the provisions of article 166 are directory and not mandatory.
, These cases proceed on substantially the same grounds on which the decision in J. k. Gas Plant and Manufacturing Co. 's case , proceeded, and have no bearing on the interpretation of section 175 (3) of the Government of India Act, 1935.
Reliance was also placed upon the State of U.P. vs Manbodhan Lal Srivastava(1) in which case this court held that the provisions of article 320 el.
(3) (e) of the Constitution relating to the consultation with the Public Service Commission before discharging at public servant are merely directory.
The fact that certain other provisions in the Constitution are regarded as merely directory and not mandatory, is no ground for holding that the provisions relating to the form of contracts are not mandatory.
It maybe said that the view that the provisions in the Constitution relating to the form of contracts on behalf of the Government are mandatory may involve hardship to the unwary.
But a person who seeks to contract with the Government must be deemed to be fully aware of (1) ; 903 statutory requirements as to the form in which the contract is to be made.
In any event, inadvertence of an officer of the State executing A contract in manner violative of the express statutory provision, the other contracting party acquiescing in such violation out of ignorance or negligence will not justify the court in not giving effect to the intention of the legislature, the provision having been made in the interest of the public.
It must therefore be held that as the contract was not in the form required by the Government of India Act, 1935, it could not be enforced at the instance of the appellant and therefore the Dominion of India could not be sued by the appellant for compensation for breach of contracts.
We are also of the view that the High Court was right in holding that the appellant failed to prove that he was entitled to compensation assuming that there was a valid and enforceable contract.
The appellant claimed that he was entitled to the difference between the contract price and the price realised by sale of the foodgrains offered after October 1,1943 but not accepted by the Railway Administration.
The High Court rightly pointed out that the appellant was, if at all, entitled only to compensation for loss suffered by him by reason of the wrongful breach of contract committed by the State, such compensation being the difference between the contract price and the ruling market rate on October 1,1943, and that the appellant had failed to lead evidence about the ruling market rate on October 1,1943.
The trial judge held that the "control price list xxx was reliable for ascertaining the measure of damages in the case".
This document was a notification relating to the controlled rates in operation in the district of Arrah, by which the sale of foodgrains at prices exceeding the rates prescribed was made an offence.
The appellant had obviously the option of delivering foodgrains at an railway station F. O. R. in the Province of 904 Bihar, and there is no evidence on the record whether orders similar to exhibit
M 2 were issued by the authorities in other districts of the Bihar State.
But if the grains were supplied in the district of Arrah, the appellant could evidently not seek to recover price for the goods supplied and accepted on and after October 1, 1943, at rates exceeding those fixed by the notification; for, by the issue of the control orders, on the contracts must be deemed to be superimposed the condition that foodgrains shall be sold only at rates specified therein.
If the grains were to be supplied outside the district of Arrah, the case of the appellant suffers from complete lack of evidence as to the ruling rates of the foodgrains in dispute on October 1, 1943.
The High Court was therefore right in declining to award damages.
On the view taken by us, this appeal must stand dismissed with costs.
Appeal dismissed. | In the year 1943 the Divisional Superintendent, East Indian Railway placed certain purchase orders with the appellant for the supply of foodgrains for the employees of the East Indian Railway.
The orders were not expressed to be made in the name of the Governor General and were not "executed on behalf of the Governor General as required by section 175 (3) of the Government of India Act, 1935.
They were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant.
Some deliveries of foodgrain s were made under these orders and were accepted and paid for by the Railway Administration.
But the Railway Administration declined to accept further deliveries of foodgrains.
The appellant sold the balance of foodgrains under the purchase orders and filed a suit to recover the difference between the price realised by sale and the contract price.
The respondent resisted the suit inter alia on the ground that the contracts were not binding on it.
Held, that the contracts were not binding on the respondent and it was not liable for damages for breach of the contracts.
Under s 175 (3) of the Government of India Act, 1935, as it stood at the relevant time, the contracts had: (a) to be expressed to be made by the Governor General, (b) to be executed on behalf of the Governor General and (F) to be executed by officers duly appointed in that behalf and in such mariner as the Governor General directed or authorised.
The 881 authority to a person to execute contracts may be conferred not only by rules expressly trained and by formal notifications issued in this behalf but may also be specially conferred.
The evidence in the case showed that such authority was specially conferred upon the Divisional Superintendent.
But the contracts were not expressed to be made by the Governor General and were not executed on his behalf The provisions of section 175(3) were mandatory.
The object of enacting these provisions was that the State should not be saddled with liability for unauthorised contracts and hence it was provided that the contracts trust show on their face that they were made by the Governor General and executed on his behalf in the manner prescribed by the person authorised.
State of Bihar vs M/s. Karam Chand Thapar and Bros., Ltd. ; , followed.
Liverpool Borough Bank vs Turner, ; , Municipal Corporation of Bombay vs Secretary of State, I. L. R. , Kessoram Poddar and Co., vs Secretary of State for India, I. L. R. section C. Mitra and Co., vs Governor General of India in Council, I.L.R. , Secretary of State vs Yadavgir Dharamgir, I. L. R. , Secretary of State vs G.T. Sarin and Co., 1.
L. R. , U. I '.
Government vs Lal Nanhoo Mal Gupta, A. 1.
R. (1960) All. 420, and Devi Prasad Sri Krishna Prasad Ltd. vs Secretary of State, I. L. R. (1941) All. 741, referred to.
section K. Sen vs Provincial P. W. D., State of Bihar, A. 1.
R. (1960) Pat., Chatturbhui Vithaldas Jasani vs Moreshwar Prashram, ; ,J. K. Gas Plant Mfg., Co. (Rampur) Ltd. vs King Emperor, , Moreshwar Pangarkar vs State of Bombay, ; , State of Bombay vs Purshottam Jog Naik, ; and State of U.P. vs Manbodhan Lal Srivastava, (1958) section C. R. 533, distinguished. |
A. No. 190 and 191 of 1969, and 63 and 64 of 1972.
Appeals by certificate/special leave from the Judgment and Order dated September 9, 1968 of the Gujarat High Court in Criminal Appeals Nos. 486 and 555 of 1966.
Urmila Kapoor, B. D. Sharma for section P. Nayar and Kamlesh Bansal, for the appellant (In all the appeals).
M.V. Goswami, for the respondent (In Cr.
Nos. 190 of 1969 and 63 of 1972).
H.K. Thakur and section K. Dholakia, for the respondent (In Cr.
191 of 1969 and 64 of 1972).
The Judgment of the Court was delivered by Grover, J.
This judgment will dispose of all the four appeals from the judgment of the Gujarat High Court.
Two appeals, i.e. Cr.
No. 190 & 191 of 1969 had been brought by certificate.
The certificates being defective for want of reasons they could not be entertained on that short ground.
However, two petitions for special leave were filed and the same were granted.
Those appeals (Cr.
63 & 64 of 1972) will be dealt with in this judgment.
The facts may be stated.
Manshankar Prabhasbankar Dwivedi was at the material time a Senior Lecturer at the D.K.V. 315 Arts & Science College, Jamnagar which is a Government college.
Vallabhdas Gordhandas Thakkar was a legal practitioner conducting cases before the Income tax and Sales tax Departments.
He was also a resident of Jamnagar.
It was alleged that in April 1964 the Physics practical examination for the first year B.Sc.
was to be held by the Gujarat University.
One of the centres was Surendranagar.
Dwivedi had been appointed as an Examiner for Physics practical.
He, is alleged to have accepted gratification of Rs. 500/ other than legal remuneration for showing favour to a candidate Jayendra Jayantilal Shah by giving him more marks than he deserved in the Physics practical examination.
It is stated that he had obtained that amount through Thakkar.
Dwivedi was charged with commission of offences under section 161, Indian Penal Code and section 5 (2) read with section 5 (1 ) (d) of the Prevention of Corruption Act, 1947, hereinafter called the 'Act.
Thakkar was charged under section 165 A, Indian Penal Code, and section 5(2) of the Act read with section 114 of the Indian Penal Code.
The Special Judge who, tried both these persons found them guilty of the offence with which they were charged.
He imposed a sentence of 2 years ' rigorous imprisonment and a fine of Rs. 1,000/ , (in default further rigorous imprisonment for six months) Oil each of these persons.
Both the convicted persons filed appeals to the High Court '.
The High Court found that the prosecution case had been proved against both Dwivedi and Thakkar on the merits but on the view which the High Court expressed about the ambit and scope of the sections under which the charges were laid they were acquitted, The present appeals have been filed by the State against both these persons who are respondents before us.
It is unnecessary to give the entire prosecution story.
We may only refer to what is the last and final stage of that story.
According, to the prearranged plan it was alleged that Pranlal Mohanlal who was the complainant and who was the brother in law of the student, Jayendra, went to the college, where the examination was to take place, along with a panch witness Shivaji.
Thakkar was in the porch of the college and he demanded the money for being given to Dwivedi Pranlal, however, insisted that the money would be paid after he had talked the matter over with Dwivedi,and the work was done.
Thakkar replied that Dwivedi was busy and would be available after some time.
So they all left.
Thakkar, followed them.
When Pranlal and Shivlal reached the Trolly Station Thakkar came there and asked them to go with him to a place called 'Vikram Lodge ' which they did.
There Thakkar again demanded money but Pranlal gave the same reply which he had given before.
At about 11 A.M. these three persons came back to the college and Went to the first floor where 3 L128SupCI/72 316 the examination hall was situate and stood outside the hall.
There Thakkar brought Dwivedi and Dwivedi said "why are, you delaying.
You are a fool you will spoil the life of the student.
Pay the amount to Thakkar".
Then Pranlal paid Rs. 500/ lo Thakkar in the presence of Dwivedi.
Thakkar counted the money and put it in his pocket.
Dwivedi went back to his room.
Thereafter the signal was given and the raiding party arrived and made the recoveries.
Necessary panchnamas were prepared.
The High Court agreed with the Special Judge that the prosecution case against the present respondents in respect of the demand and acceptance of bribe of Rs. 500/ for the purpose of giving more marks to Jayendra had been proved.
It was, however, argued before the High Court that as regards section 161, Indian Penal Code,, it was necessary that the person committing that offence must be a public servant.
Although Dwivedi was a Senior Lecturer in a Government College the bribe was sought 'to be obtained not in connection with any official act or in connection with the exercise of his official functions as a public servant but in connection with his work as an Examiner of the Gujarat University.
An Examiner of the University did not fall within the definition of a "public servant" as given in section 21 of the Indian Penal Code.
It was maintained on behalf of Dwivedi that although he had abused his position as an Examiner but he had not done so as a government servant in which capacity alone he could be a public servant.
The Special Judge had, however taken the view that even an Examiner was a public servant.
As regards the offence under the Act the Special Judge had held that it was not necessary that the misconduct should be committed in the discharge of the public servant 's duties.
Once it was proved that the payment had been obtained by corrupt or illegal means it was not necessary that the accused should abuse his position as a public servant or that he should have obtained the money while acting as a public servant.
The High Court did not accept the reasoning or the conclusion of the Special Judge on these points.
Section 21 of the Indian Penal Code as it stood at the mate rial time and before the amendments which were made later contained several clauses.
The ninth clause was in the following terms: "Ninth.
Every officer whose duty it is, as such officer to take, receive,, keep or expend any property on behalf of the, Government or to make any survey, assessment or contract on behalf of the Government or to execute any revenue process or to investigate, or to re port on any matter affecting the pecuniary interests of the Government or to make, authenticate or keep any 317 document relating to the pecuniary interests of the Government or to prevent the, infraction of any law for the protection of the pecuniary interests of the Government and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty".
The first question which has to be resolved is whether respondent Dwivedi was a public servant within the meaning of the Ninth clause of section 21, Indian Penal Code, keeping in view the capacity in which and the nature of the duties which he was Performing as an Examiner of University which, it has been found, had no connection with his being a Government servant.
It is well known that Universities appoint Examiners having the requisite academic qualifications who may or may not be government servants.
, For instance, a person having the requisite academic qualifications who is working in a private institution can and usually is appointed an Examiner by the University.
The question that immediately arises is whether an Examiner of a University as such can be regarded as a public servant within the meaning of ninth clause of section 21, Indian Penal Code.
It will be useful to look at the scheme of section 21.
There could be no difficulty about the second, third and 4th clauses which deal with the commissioned offers in the Armed Forces, judges and officers of the Courts of Justice whose duties are as such officers to do various matters mentioned in those clauses.
The Fifth clause brings within the definition every juryman, assessor or member of,;: a panchayat assisting a Court of Justice or public servant.
Under the sixth clause every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice or by any other competent public authority would also fall within the words "public servant".
Seventh and eighth clauses deal with persons who perform mainly policing duties.
The tenth clause covers officers whose duty it is to take receive, keep or expend any property to make any survey or assessment or to levy any rate, or tax etc.
The eleventh clause relates to persons who hold any office by virtue of which they are empowered to prepare, publish etc.
an electoral roll or to conduct an election.
The twelfth clause covers every officer in the service or pay of local authority or corporation engaged in any trade or industry established by the Central, Provincial or State Government or a Government company.
In the illustration given it is stated that a Municipal Commissioner is a public servant.
According to Explanation persons falling, under any.
of the description given in the twelfth clause are public servants whether appointed by the Government or not.
Section 21.
was amended.in 1964.
The ninth clause was retained substantially ,:is it existed previously except that the following words were 318 dropped "and every officer in the service or pay of the Government or remunerated by fee or commission for the purpose of any public duty".
The twelfth clause was recast and the new provision was in these terms : "Twelfth.
Every person (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 601 of the ." Thus sub clause, (a) of the 12th clause, after the amendment corresponds substantially to the last part of the old ninth clause with this change that the expression "every officer" has now been substituted by the words "every person" and after the words "performance of any public duty" it has been added "by the Government.
" The argument which has been addressed mainly on behalf (if the State and which Was pressed before the High Court is that the ninth clause, as it stood, when the offences are alleged to have been committed would cover the case of Dwivedi as he, was an officer in the service or pay of the Government or was remunerated by fee or commission for the performance of a public duty.
Acting as an Examiner, it has been suggested, is the performance of a public duty.
If Dwivedi was remunerated by fee or commission by the University for the performance of that public duty he would be covered by the last part of the ninth clause as it stood at the relevant time.
It is admitted on behalf of the State that after the amendment made in 1964 under the twelfth clause it is only a person in the service or pay of the Government or remunerated by fee or commission for the purpose of any public duty by the Government who would fall within the definition of "public servant" within sub clause (a) of the, Twelfth clause.
But it is argued that the position was different under the ' Ninth clause as the words "fly the Government" did not follow the words "performance of any public duty" although at every other appropriate Place the word "Government" was to be found in the Ninth clause.
The omission of these words show that the clause was wider when it came to the case of an officer who was remunerated by fee or commission for the performance of any public duty and it was not necessary that the remuneration by any of fee or commission should be paid by the Government as is now necessary under subclause (a) of the ' Twelfth clause after the amendment.
319 The High Court gave the, following reasons for holding that tile last part of the Ninth clause, as it stood before the amendment, would not cover the case of Dwivedi: (i) The context of the whole of the Ninth clause indicated that the connection with the Government was necessary either in respect of the payment of remuneration or in respect of the performance of public duty.
(ii)The person to be an officer must hold some office.
The holding of office implied charge of a duty attached to that office.
The person who was remunerated by fee or commission must be an officer.
Therefore the use of the word "officer" read in the, context of the words immediately preceding the last part would indicate that the remuneration contemplated was remuneration by the Government.
(iii)The amendment made in 1964 and in particular the addition of the words "by the Government" in subclause (a) of clause Twelfth showed the legislative interpretation of the material portion of clause Ninth as it stood before the amendment under consideration.
(iv)It is well settled that in a statutory provision imposing criminal liability if there is any doubt as to the meaning of a certain expression or words its benefit should be given to the subject.
It has not been shown to us by the learned counsel for the appellant that the reasoning of the High Court on the above point suffers from any infirmity.
Apart from the other reasons given by the High Court reason No. (ii) seems to have a lot of force.
It is supported by the decision in Ram Krishna Dalmia vs Delhi Administration(1).
There, a Chartered Accountant had been appointed as an Investigator by the Central Government under the to investigate into certain matters and he was to get remuneration for the work entrusted to him.
It was held that he did not become an officer as he did not hold any office.
The could not, therefore, become a public servant within the latter part of Ninth Clause of section 21 of the Indian Penal Code.
It is noteworthy that the work of an Investigator was of a nature which could well be regarded as public duty and the remuneration which was to be paid to him was by the Government.
Yet it was hold that he could not be regarded as holding an office.
On that view it is not possible to put the case of a University Examiner in (1) ; 320 a different category.
A University Examiner cannot be consi dered to hold an office in the sense in which that word has been understood and employed in the Ninth Clause.
It is clear from the provisions of the Gujarat University Act 1949 that there is no such condition that only that person can be appointed as Examiner who is the holder of an office.
Section 20(xxii) provides for appointment of Examiners by the Syndicate.
Section 30 empowers the Syndicate to make Ordinances to provide for all or any of the following matters (iii)"conditions governing the appointment and duties of examiners.
" No such Ordinance has been brought to our notice which restricts the appointment of the examiners to persons in the service of the Government or holders of any particular office.
Suppose for instance there is a private individual who is not in the regular employment or service of either the Government or any public body or authority.
He has the requisite academic qualifications and he is appointed an examiner in a particular subject in which he has attained high academic distinction.
He cannot be said to be holding any office when he is appointed for the purpose of examining certain answer books even though that may fall within the performance of a public duty.
There is another difficulty in regarding an examiner as a holder of an office.
Before the amendment made, in section 21 by Act 40 of 1964 a person who is appointed an examiner and who receives remuneration by fee would fall within the term "public servant" if he is holder of an office.
But persons in the regular service of the University would not be covered by the Ninth Clause.
If at all, it would be the Twelfth Clause which would be relevant in their case.
It is, however, a moot point whether the University is a local authority within the meaning of the first part of the Twelfth Clause before the amendment of section 21.
The expression "local authority" has a definite meaning.
It has always been used in a statute with reference to such bodies as are connected with local self Government e.g., Municipalities, Municipal Corporations, Zila Parishads etc.
As a matter of fact s.3 (31 ) of the defines "local authority" to mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund.
It could never be intended that only such officers of the University should be public servants who are remunerated by fee or commission and not those who are in the regular service of the University.
We concur with the High Court that a University Examiner cannot be held to he an officer.
Once that conclusion is reached, he cannot be covered by the Ninth Clause of section 21 of the Penal Code.
321 The next point which calls for decision is whether appellant Dwivedi was guilty of an offence under s.5 (1) (d) of the, Corruption Act.
That provision, as it stood at the material time, was as follows : "section 5(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty (d)if he, by corrupt or illegal means or by otherwise, abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
" By the Central Act 40 of 1964 the words "in the discharge of hi,, duty" were omitted.
This Court has, however, taken the view in Dhaneshwar Narain Saxena vs Delhi Administration(1), overruling an earlier decision that in order to constitute an offence under clause (d) of s.5(1) of the Corruption Act it is not necessary that the public servant while misconducting himself should have done so in the discharge of his duty.
Section 2 of this Act provides that for its purposes "public servant" means a public servant as defined in s.21 of the Indian Penal Code.
Dwivedi while.
committing the offence under section 5 (1) (d) had two positions .
(1) he was a lecturer in a Government College and (2) he was ' an examiner appointed by the Gujarat University for doing examination work on remuneration paid by the University.
As a lecturer in Government College he certainly fell within the definition of "Public servant" but the act of corruption attributed to him was in his capacity as, an examiner.
A question at once.
arises is whether s.5(1)(d) will apply to case of a Government servant who commits an act punishable under the said provision even though when the act is committed by him he is holding a different position which is not that of a Government servant and in which capacity alone he could fall within the definition of a "public servant.
" The High Court proceeded on the basis that for the purpose of the opening, Part of s.5 (1 ) of the Corruption Act Dwivedi must be held to be a public servant.
It was held that his case did not fall within the clause (d) as he, did not abuse his Position as a public servant although the means employed, were corrupt and illegal.
The argument on behalf of the State is that even if Dwivedi was not punishable under s.161 of the Indian Penal Code with reference to the work in respect of which he accepted an illegal certification he would nevertheless be liable under s.5(1)(d) of the Corruption Act because the liability of a public servant has been made absolute and it is wholly immaterial in what capacity he has committed the offence under sub clause (d) of s.5(1) of the (1) ; 322 Corruption Act.
He need not have obtained for himself any valuable thing, or pecuniary advantage, as a public servant.
Once he is a Government servant and thus falls within the definition of a public servant and if he uses corrupt or illegal means for obtaining a valuable thing, or pecuniary advantage he commits an offence as contemplated by s.5(1)(d).
It need not further be proved that he abused his position as a public servant.
We may refer to the previous decisions of this, Court relating to the interpretation of s.5(1)(d) of the Corruption Act.
In Dhaneshwar Narain Saxena vs Delhi Administration(1) Saxena, who was an Upper Division Clerk, was approached by one Ram Narain, a fireman serving in the Delhi Fire Brigade, for assistance in obtaining a license for a double barreled shot gun which was, in fact obtained.
Saxena was paid certain amount and promise was made to pay him more.
Ram Narain had made a false declaration with regard to his salary in the application for the license.
His allegation was that he had done so on the advice of Saxena.
As Ram Narain 's license had been cancelled it was alleged thathe again approached Saxena who demanded some amounts for helping him in the matter of restoration of the license.
Ultimately a trap was laid and Saxena was caught while the money was being handed over to him.
The main argument in this case centered on the question whether Saxena had committed any misconduct in the discharge of his duty.
Overruling the earlier decision of this Court in the State of Ajmer vs Shivji Lal(2) it was held that it was not necessary to constitute the offence under clause (d) of section 5 (1) that the public servant must do some thing in connection with his own duty and there by obtain any valuable thing or pecuniary advantage.
It observed that "it was equally wrong to say that if a public servant were to take money from a third person by corrupt or illegal means or otherwise abusing his official Position in order to corrupt some other public servant without there being any question of his misconducting, himself in the discharge of his own duty he has not committed an offence under section 5 (1) (d).
It is also erroneous to hold that the essence of an offence under section 5 (2 ) read with section 5 (1) (d) is that the public servant should do some thing in the discharge of his own duty and thereby obtain valuable thing or pecuniary advantage." No such question was argued or decided in that case whether for the commission of an offence under section 5 (1 ) (d) abuse of position as a public servant was of the essence or the essential ingredient of the offence.
It is noteworthy that the High Court had, on.
the evidence produced by the prosecution, come to the conclusion that Saxena taking advantage of his own position as an employee in the Chief Commissioner 's Office and Ram Narain 's ignorance and anxiety to get the license, had induced him to part with the money on (1) ; (2) [1959] Suppl.
2 S.C.R. 739.
323 the promise that he would get the license restored.
It appears, therefore, that it was in that background that the decision of this Court was given.
The case of M. Narayanan Nambiar vs State of Kerala() was clearly one in which there had been abuse by a Government servant of his.
position as a public servant.
The court referred to the preamble which indicates that the Corruption Act was passed as it was expedient to make more effective provisions for the prevention of bribery and corruption by public servants.
The addition of the word "corruption" showed that the legislation was intended to combat other evils in addition to bribery.
The argument on behalf of the accused in that case proceeded on the basis that clause (d) would take in only the case of direct benefit obtained by a public servant for himself or for any other person from a third party in the manner prescribed (herein and did not cover the case of wrongful loss caused to the government by abuse of his power.
While analysing s.5 (1) (d) it was said "Let us look at the clause "by otherwise abusing the position of a public servant", for the argument mainly turns upon the said clause.
The phraseology is very comprehensive.
It covers acts done "otherwise" than by corrupt or illegal means by an officer abusing his position.
The gist of the offence under this clause is that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage.
"Abuse" means misuse i.e. using his position for something for which it is not intended.
That abuse may be by corrupt or illegal means or otherwise than those means.
The word "otherwise" has wide connotation and if no limitation is placed on it, the words "corrupt", "illegal" and "otherwise" mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause.
So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part." The court entertained no doubt that every benefit obtained by the public servant for himself or for any other person by abusing his position as a public servant fell within the mischief of the said clause.
Although in the above decision the question whether the words "abusing his position as a public servant" qualify the word "Otherwise" or also the words "corrupt or illegal means" in section 5 (1) (d) (1) [1963] Suppl.
2 S.C.R. 724.
324 was not discussed directly, the observations made seem to indicate that the word "Otherwise" refers to means other than corrupt or illegal by which a public servant may abuse his position.
There are two ways of looking at the clause on is that the words "corrupt or illegal means" stand by themselves and as soon as it is established that a public servant has by such means obtained any valuable thing or pecuniary advantage he will be guilty of the offence.
The other way of reading this clause is by confining the words "by otherwise" to the means employed.
Thus the means employed may be corrupt or illegal or may be of such a nature as would savour of a dishonest act.
But the abuse of position as a public servant would be essential whether the means are corrupt or illegal or are of the nature covered by the word " otherwise".
The analysis of clause (d) made in Narayanan Nambiar 's(1) case by Sabha Rao J. (as he then was) seems to lend support to the view, taken by the High Court that the abuse of position as a public servant is essential.
The reasoning of the High Court proceeds on these lines.
The second part of cl.
(d) relating to the obtaining of the valuable thing etc.
relates to the object of the public servant, namely, the obtaining of a bribe.
The first part concerns the manner of achieving that object.
"The manner is the use of means and use of position.
As to the use of means the clause expressly mentions corrupt or illegal but the legislature does not want to limit itself to these means only and so goes on to use the word "otherwise.
" If the meaning to be given to the word "otherwise" is, as earlier stated, the words "by corrupt or illegal means" or "by otherwise" form a single clause and do not form two clauses.
If that is so the abuse of position as a public servant that is referred to is the abuse by corrupt or illegal means or by otherwise.
" The High Court also relied on the analysis of section 5 (1) (d) contained in Ram Krishna & Another v The State of Delhi (2) , where it was pointed out that the offence created thereby is of four kinds.
Bribery as defined in s.161 of the Indian Penal Code, if it is habitual, falls within clause (a).
Bribery of the kind specified in section 1 65, if it is habitual, is comprised in clause (b) Clause (c) contemplates criminal breach of trust by a public servant.
For that section 405 of the Indian Penal Code has to be looked at.
An argument was advanced in that case that clause (d) seems to create an independent offence distinct from simple bribery.
This is what the court observed: "In one sense, this is no doubt true but it does not follow that there is no overlapping of offences.
We have primarily to look at the language employed and give effect to it.
One class of cases might arise where corrupt or illegal means are adopted or pursued by the public servant to gain for himself a pecuniary advantage .
(1) [1963] Supp, 2 S.C.R. 724.
(2) ; 325 The word "obtains" on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receivers One may accept money, that if offered, or solicit payment of a bribe, or extort the bribe by threat or coercion; in each case, lie obtains a pecuniary advantage by abusing his position as a public servant." Thus in clauses (a), (b) and (c) the abuse of position as a public servant is clearly implied.
Clause (e) also carries the same implication.
It would, therefore, be reasonable to put on clause (d) a construction which is consistent with the other clauses of the sub section.
According to the, High Court such a construction would also keep, the offence within the limitation and the object of the Act.
The abuse of the position would be the necessary ingredient of the offence; the abuse being either by corrupt or illegal means or by other means of the nature mentioned in Narayanan Nambiar 's(1) case.
Counsel for the State has.
not been able to satisfy us that the various reasons given by the High Court as also the observations made in the previous judgments of this Court are not sufficient to sustain the construction or interpretation of section 5 (1) (d) which commended itself to the High Court.
As Dwivedi was not a public servant when he was acting as an examiner it could not be said that there had been any abuse by him of his position as a public servant.
It was never the case of the prosecution that he had been guilty of any abuse of his position as a lecturer of the Government College.
If Dwivedi was not guilty, Thakkar could not be held to be guilty of the offences with which he was charged.
We would accordingly uphold the decision of the High Court and dismiss both the appeals.
G.C. Appeals dismissed. | D, a Lecturer in a Government College, was appointed as examiner of a physics practical examination held by the Gujarat University.
He allegedly took Rs. 500 from a candidate at the examination for showing him favour .
He was charged with offences under section 161 Indian Penal Code and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act 1947.
The Sessions Judge held him to be a 'public servant ' within the meaning of cl. 9 of section 21 as it stood before its amendment by Act 40 of 1964, and held him guilty under section 161 of the I.P.C. He was also held guilty under the 1947 Act.
In, appeal the High Court held (1) that in is capacity as examiner of Gujarat University lie was not a public servant and therefore not guilty under, section 161 I.P.C.; (ii) that though a public servant in his capacity as lecturer in a Government College he had not abused his position as such public servant and ' therefore was not guilty under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act.
The State appealed to this Court.
HELD : (i) As rightly held by the High Court a public servant within the meaning of cl. 9 of section 21 as it stood at the relevant time must be an officer of the Government and the fee or commission must be payable by the Government.
A University Examiner cannot be considered to hold an office in the sense in which that word has been understood and employed in the Ninth Clause even though examining answer books may fall within the performance of a public duty.
A private individual who has no employment may be appointed an examiner because of his high academic qualifications.
He cannot be said to be holding any office.
An examiner who is in the regular service of a University also cannot be said to be a public servant since a University is not a local authority within the meaning of clause 12(b).
Since the appellant was not a public servant under section 21 I.P.C. he was rightly acquitted of the offence under section 161 I.P.C. [319 F 320 H] Ram Krishna Dalmia vs Delhi Administration, [1963] 1 S.C.R. 253, applied.
(ii)It was never the case of the prosecution that D had been guilty of any abuse of his position as a lecturer of the Government College.
As he was not a public servant when he was acting as an examiner it could not be said that there had been any abuse by him of his position as a public servant.
He was therefore rightly acquitted by the High Court of the offence, under section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act 1947.
[325 E] 314 There are two ways of looking at clause 5(1)(d).
One is that the words "corrupt or illegal means" stand by themselves and as soon as it is established that a public servant has by such means obtained any valuable thing or pecuniary advantage he is guilty of the offence.
The other way of reading this clause is by confining the words "by otherwise" to the means employed.
Thus the means employed may be corrupt or illegal or may be of such a nature as would savour of a dishonest act.
But the abuse of position as a public servant would be essential whether the means are corrupt or illegal or are of the nature covered by the word "otherwise".
The analysis of clause (d) made in Narayanan Nambiar 's case seems to lend support to the view taken by the High Court that the abuse of position as a public servant is essential.
[324 A D] In clauses (a), (b) and (c) of section 5(1) the abuse of position as a public servant is clearly implied.
Clause (e) also carries the same implication.
It would, therefore, be reasonable to put on clause (d) a construction which is consistent with the other clauses of the sub section.
[325 C] M.Narayanan Nambiar vs State of Nerala, [1963] Suppl.
2 S.C.R. 724 and Rain Krishna & Another vs The State of Delhi, ; , applied.
Dhaneshwar Narain Sexana vs Delhi Administration,[1962] 3 S.C.R. 259, distinguished.
State of Ajmer vs Shivji Lal, [1959] Suppl.
S.C.R. 739, referred to. |
No. 46 of 1972.
S, K. Bagga, for the, petitioner.
Prodyot Kumar Chakravarty and G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by Khanna, J.
This is a petition through jail under article 32 of the Constitution for issuing a writ of habeas cot pus by Kanu Biswas, who has been ordered by the District Magistrate 24Parganas to be detained under section 3 of the (Act 26 of 1971) "with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
" The order of detention was made by the District Magistrate on November 13, 1971.
The petitioner was arrested in pursuance of the detention order on November 14, 1971 and was served the same day with the order as well as the grounds of detention together with vernacular translation thereof.
On November 18,1971 the District Magistrate sent report to the State Government about the passing of the detention order along with the grounds of detention and other necessary particulars.
The State Government considered the matter and approved the detention order on November 24, 1971.
Necessary report was also sent on that day by the State Government to the Central Government.
On December 13, 1971 the State Government placed the case of the petitioner before the Advisory Board.
In the meanwhile, on December 12, 1971 the State Government received a representation of the petitioner.
The representation was considered by the State Government and was rejected on January 11, 1972.
The representation was thereafter forwarded to the Advisory Board.
The Board, after considering the, material placed before it, including the petitioner 's representation, and after hearing the petitioner in person, sent its report to the State Government on January 14, 1972.
Opinion was expressed, by the Board that there was sufficient cause for the detention of the petitioner.
On February 2, 1972 the State Government confirmed the order for the detention of the petitioner.
Communication about the confirmation of the order was thereafter sent to the petitioner.
Affidavit of Shri B. Mukhopadhya, District Magistrate of 24 Parganas, who passed the impugned order, has been filed in opposition to the Petition.
Mr. Bagga has argued the case amicus curiae on behalf of the petitioner, while the State has been represented by Mr. Chakravarti.
548 It has been argued on behalf of the petitioner that the particular acts on account of which the order for the detention of the petitioner has been made were not germane to the maintenance of public order and, as such, the order for his detention could not be validly made for preventing him from acting in a manner prejudicial to the maintenance of public order.
In this respect we find that according to the grounds of detention, the order for the petitioner s detention was made on the ground that he had been acting in a manner prejudicial to the maintenance of public order as evidenced by the particulars given below; taken separately or collectively "That on 26 9 71 at about 18.30 hours while Baidyanath Bandopadhya of Champapukur, P.S. Basirhat, District 24 Parganas along with his wife were travelling ill a 3rd class compartment of Up Basirhat local train from Barasat, You along with your associates attacked him and his wife with open knives between Champapukur R/s and Basirhat R/S and robbed them of Wrist Watch, Gold Ornaments, Cash valued at Rs. 725// by putting them in fear of death.
By your such activities you created terror and panic among the travelling passengers and public order was disturbed thereby.
On 4 11 71.
at about 21.40 hours, you and your associates armed with bombs, daggers, knives and iron rods etc.
attacked police on the platform at Beliagliata railway station with a view to take their lives and to intimidate the public you charged two bombs which exploded with terrible sound endangering the on duty police.
Your such action was so violent that it created panic and confusion among the passengers there then.
YOU have thus action in a manner prejudicial to the maintenance of public order.
" It would appear from the above that the petitioner and his associates attacked a husband and wife with open knives in the, third class compartment of a running train and robbed them of valuable property, including wrist watch, gold ornaments and cash by putting them in fear of death.
The grounds of detention further show that the above act of the petitioner and his associates created terror and panic among the travelling passengers and thereby disturbed public order.
The second incident which took place at 9.40 p.m. on November 4, 1971 related to the attack by the petitioner and his associates on a police party on the platform of Belighata railway station with a view to kill them.
The petitioner and his associates are stated to have been then armed with bombs.
daggers, knives and iron rods and they exploded two bombs 549 with terrible sound.
It is further stated that the above act of the petitioner and his associates created panic and confusion among the passengers and thus disturbed public order.
Each one of the above two incidents of September 26, 1971 and November 4, 1971, in our opinion, affected public order and not merely law and order.
The distinction between the concept of public order and that of law and order has been adverted to by this Court in a number of cases.
In the case of Dr. Ram Manohar Lohia vs State of Bihar(1), Hidayatullah J. (as he then was) said that any contravention of law always affected order, but before it could be said to affect public order, it must affect the community at large.
He considered three concepts, law and order, public order and the security of the State, and observed that to appreciate the scope and extent of each one of them, one should imagine the concentric circles.
The largest of them represented law and order, next represented public order and the smallest represented the security order, just asan act might affect public order but not the security of the State.
In the subsequent case of Arun Ghosh vs State of West Bengal 2 the Court dealt with the matter in the following words: "Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality.
Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance, of public tranquility.
It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether thedisturbance amounts only to a breach of law and order.
Take for instance, a man stabs another.
People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act.
Take another case of a town where there is communal tension.
A man stabs a member of ' the other community.
This is an act of a very different sort.
Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order.
An Act by itself is not determinant of its own gravity.
In its quality it may not differ from another but in its poten tiality it may be very different." (1)[1966] 1 S.C.R. 709. (2) 550 The question where a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance ,of the public order, according to the dictum laid down in the above case is a question of degree and the extent of the reach of the act upon the society.
Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order.
The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above ,,case, is : Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order ,or does it affect merely an individual leaving the tranquility of the society undisturbed ? The principle enunciated above has been followed by this Court in the case of Nagendra Nath Mondal V. State of West Bengal(1) and Nandlal Roy Ca, Nonda Dulal Roy @ Pagla vs State of West Bengal (WP No. 15 of 1972, decided on March II, 1972.) In the light of what has been observed above, we have no doubt that each one of the incidents of September 26, 1971 and November 4, 1971 was prejudicial to the maintenance of public order.
When two passengers are robbed at the point of knife while travelling in a third class compartment of a running train, the act of the miscreants affects not only the passengers who are deprived ,of their valuables but also the other passengers who watch tile whole thing in fear as helpless spectators.
There is bound to be consequent terror and panic amongst the travelling public.
Like wise, attack directed against a police party on the platform of railway station by exploring bombs is bound to create panic an.
confusion among the passengers at the railway station.
The act ' in question in the very nature of things would adversely affect the even tempo of life of the community and cause a general disturbance of public tranquility.
Reference has been made on behalf of the petitioner to the ,case of Sudhir Kumar Saha vs Commissioner of Police, Calcutta & A nr.
The petitioner in that case along with others committed various acts on three occasions.
On the first occasion lie attached the people of a locality with a knife and by hurling bottles at them. ' On the other two.occasions he attacked the people of another locality by hurling bombs at them.
It was held that the incidents were not interlinked and could not have prejudiced tile maintenance of public order.
As against the above solitary decision, Mr. Chakravarti on behalf of the respondent State has referred to the principle laid down in the case of Arun Ghosh vs State of West Bengal (supra) as well as in the case of Nagendra Nath Mondal V. State of West ,Bengal (supra).
Apart from those two cases, we find that in the (2) ; (1) [1972] I S.C.R. 498.
551 case of Tapan Ku mat ' Mukherjee and Ors.
vs State of West Bengal(1) the allegation against the detenu was that he along with other associates committed robbery in respect of a fat, and a watch at the point of dagger in a running train, and this created disturbance of public order.
Contention was raised that the act of the detenu and his associates related only to law and order and not to public order.
This contention was repelled and it was observed that the innocent passengers would be terror stricken by the acts of the detenu and his associates.
Another incident which was referred to in that case related to throwing of bombs on a shop.
The bombs exploded and as a result of the panic so caused in the locality, all the shops and houses around the place were closed.
The above round was held by this Court to be germane to the disturbance of public order.
In case of Nandlal Roy (supra), the ground of detention recited that the detenu and his associates while committing theft of rice from a wagon threw bombs upon the members of the Railway Protection Force.
One member of the Railway Protection Force was injured.
The explosion of the bombs was stated to have created panic in the station, area and the adjoining locality.
It was held that the activity of the petitioner created not merely a question of the maintenance of law and order but created a disturbance which would be comprehended by the, expression " order publique".
The detention order was consequently upheld.
In section K. Kedar vs State of West Bengal (WP No. 35 of 1972 decided on May 2, 1972) the allegation against the detenu was that he and his associates while removing railway material charged bombs and ballast upon R.P.F. party as a consequence of which the members of R.P.F. party fired in self defence.
The activity of the petitioner was considered to be prejudicial to the maintenance of public order and the detention order was upheld.
The facts of the present case are much more akin to those of Tapan Kumar Mukherjee and Ors.
vs State of West Bengal (supra).
The past activities of the petitioner as revealed in the grounds of detention, in our opinion, showed a propensity to disturb public order.
The authority concerned, in the circumstances, could have validly made the order for the detention of the petitioner to prevent him from acting in a manner prejudicial to the maintenance of public order.
The petition consequently fails and is dismissed.
V.P.S. Petition dismissed. | The petitioner and his associates attacked a husband and wife with open knives in the third class compartment of a running train and robbed them of valuable property by putting them in fear of death on one occasion, and on another occasion, attacked a police party on the platform of a railway station with bombs.
dagger$, knives and iron rods and exploded bombs with a view to kill the police party.
The petitioner was detained by an order under section 3 of the with a view to preventing him from acting in any manner Prejudicial to the maintenance of public order, and the 'grounds of detention were that the two incidents created terror and panic among passengers and disturbed public order.
The, petitioner challenged the order of detention in this Court.
Dismissing the petition.
HELD : Both the incidents referred to in the order affected public order and not merely law and order.
[550 E F] The question whether a man only committed a breach of law and order or has act ad in a manner likely to cause disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society.
The test to be adopted in determining whether an act affects law and order or public order is : Does it lead to disturbance of the current of life of the community so as to amount to a ,disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed ? When two passengers are robbed at the point of knives while travelling in a third class compartment of a running train the act affects riot only the passengers who are deprived of their valuables but also the other passengers who are watching in fear as helpless spectators.
Likewise, the attack against the police party on the platform of a railway station by exploding bombs is bound to create panic and confusion among the passengers at the railway station.
Consequently, there is bound to be terror and panic amongst the travelling public.
Therefore, the acts in question, in the very nature of things, would adversely affect the even tempo of life of the community and cause a general disturbance of public tranquillity.
[550 A F] Tapan Kumar Mukherjee and ors.
vs State of West Bengal, A.I.R. 1972 S.C. 840. followed.
Dr. Ram Manohar Lohia vs State of Bihar, [1966] 1 S.C.R. 709, .Arun
Ghosh vs State of West Bengal, [1970] 3 S.C.R. 288, Nagendra Nath Mondal vs State of West Bengal, ; , Nandlal Roy @ Nonda Dulal Roy @ Pagla vs State of West Bengal, W.P. No. 15 of 1972, decided on March 11, 1972.
Sudhir Kumar Saha vs Commissioner of Police Calcutta and Anr., ; and section K. Kader vs State of West Bengal, W.P. 35 of 1967 decided on May 2, 1972, referred to. 547 |
Appeals Nos. 702 and 703 of 1967.
Appeals from the judgment and order dated September 28, 1960 of the Madhya Pradesh High Court in Misc.
First Appeals Nos. 12 and 16 of 1958.
M. C. Chagla, Rameshwar Nath and Swaranjit Ahuja, for the appellant (in both the appeals).
section T. Desai and D. N. Mukherjee, for respondent No. 1 (in both the appeals).
I. N. Shroff, for respondents Nos. 2 and 3 (in C.A. No. 703 of 1967) and respondent No. 2 (in C.A. No. 702 of 1967).
The Judgment of the Court was delivered by Grover, J.
These appeals which have been brought by cer tificates from a common judgment of the Madhya Pradesh High Court arise out of certain acquisition proceedings.
The facts may be stated.
Plots Nos. 670, 671 and 735 situate in Madan Mahal Extension area, Jabalpur were acquired by the State Government under the Land Acquisition Act 1894, hereinafter called the 'Act ', for constructing the Home Science College.
In the present appeals we are concerned mainly with Plot No. 670.
On August 31, 1940, a deed of lease had been executed on behalf of the Municipal Corporation granting a lease free of premium to the Hitkarini Sabha, Jabalpur, which is the appellant before us.
The laese was in respect of 10 Acres of land comprising Plot No. 670 and another strip of land measuring 0.621 Acres as described in the deed and delineated in the plan annexed thereto.
The period of the lease was 30 years and the purpose for which the land was to be used was for locating and running the Hitkarini City College.
Amongst other terms and conditions the, appellant was to pay a yearly rent of Rs. 5 / , for 1 0 acres and Re. 1 / for the other strip of land besides, paying, and discharging all rates and taxes etc.
The appellant, on the expiry of the lease, was entitled 495 to have the same renewed on , such terms and conditions as might be agreed between the parties.
The appellant had built a, college hostel on the aforesaid land and had also used the attached ground as playground for students.
The Collector of Jabalpur, by his award dated July 18, 1955 dealt with the claims filed by the appellant and the Municipal Corporation and after disposing of certain preliminary objections he assessed the compensation for the lands in all the three plots at As.0/8/ per sq.
According to the Collector the appellant was not merely a lessee or tenant at will as contended by the Corporation but was a lessee for the term mentioned in the lease deed dated August 31, 1940, the lease having been made for a specific purpose, i.e. for locating and running a City College.
As regards Plot No. 670 the apportionment was made between the appellant The appellant and the Corporation were dissatisfied with the award of the Collector.
Applications for reference were made under section 18 (1) of the Act.
The Additional District Judge held that the price should be 10 As.
per sq.
and that the appellant and the Municipal Corporation were entitled to equal compensation for plot No. 670.
The Corporation and the appellant filed appeals to the High Court.
The decision of the Additional District Judge, fixing the price of the land at As.
0/8/ per sq.
ft. was affirmed.
As regards the dispute regarding apportionment the High Court held, following a decision of a Division Bench of the same court in Dagdulal vs Municipal Committee, Burhar(1), that the lease deed having been executed by the Administrator during the time when the Corporation stood superseded was ineffective to convey the lease hold interest to the appellant.
However, the appellant had been paving refit at the stipulated rate which had been accepted for a long time by the Corporation.
It amounted, therefore, to the creation of a tenancy by necessary implication and the relationship of landlord and tenant came into existence.
On the character of tenancy, whether it should be deemed to be from year to year or whether it should be on terms contained in the lease deed, the High Court held that the tenancy continued on the terms contained in the lease deed.
The High Court then proceeded to say : "The lease deed in this case was executed on 31 8 1940 and was for a period of thirty years.
It was, therefore to remain in force for 15 years more after the date of acquisition.
There is a renewal clause which has been already quoted above.
The lessee is entitled for renewal "on such terms and conditions as, may be agreed to between the parties".
It appears to.
us that the clause (1) 496 is uncertain and vague and does not form a valid contract for renewal of the lease.
Normally in a covenant for renewal there is an express agreement that the lease would be continued on the same terms and conditions subject to a reservation that the rent way be enhanced under certain circumstances.
In the instant, case, ill the terms and conditions have been left to the agreement of patties which may not take place at all.
Although a renewal is contemplated no terms on which it can be granted have been fixed between the parties.
Under section 29 of the Indian Contract Act such a contract cannot be enforced.
, It has been held in Ramaswami vs Rjajagopala (I.L.R. I I Mad. 260) that a lease whereby a tenant agreed to pay whatever rent the Landlord might fix was void for uncertainty".
The apportionment was made on acturial basis between the appellant and the Corporation in the ratio of 1038 : 962.
Before us two matters have been sought to be raised.
One one relates to the quantum of compensation awarded by the learned Additional District Judge and the other to the apportionment between the appellant and the Corporation.
We shall first deal with apportionment.
It has been argued that since the High Court had held that the tenancy continued on the terms contained in the lease deed benefit should have been given of the renewal clause also.
The High Court had taken the view that that clause was uncertain and vague and did not form a valid contract for the renewal of the lease.
Our attention has been invited to a judgment of the Mysore High Court in H. V. Rajan vs C. N.Gopal & Others.(1) There the relevant portion of the renewal clause was "lessee shall have the option of five years but subject only to such terms and conditions as may be mutually agreed upon".
It was observed that ordinarily the renewal clause in a lease deed was an important term of the agreement and the courts would be reluctant to ignore that clause on the ground that it was vague unless on a reasonable construction no meaning could be attached to it.
An agreement to renew the lease, without more, must be deemed to be an agreement to renew as per the original terms.
Even if the renewal provided was dependent on the agreement between the parties the clause merely provided for an agreement on reasonable terms.
If the parties could not agree as to those terms the courts could step in.
In our judgment it is altogether unnecessary to decide the true scope and effect of the renewal clause contained in the deed executed on August 31, 1940.
At the time the lease was executed (1) A.I.R. 1961 Mys.
497 there used to be a Municipal Committee in Jabalpur Aparently it became a Corporation later.
The Committee was superseded in Charge of the Committee Jabalpur as also Secretary of the Municipal Committee had signed the lease on behalf of that Committee.
In the decision of the Madhya Pradesh High Court in Dagdulal 's(1) case the view had been expressed that so long as Municipal Committee was not reconstituted the ownership of the property stood transferred by operation of law to the State Government and therefore the Administrator had no power whatsoever to sell the property which had vested in the Government.
The Additional District Judge had observed that the lease deed had been executed in pursuance of a resolution which had already been passed by the Municipal Committee.
The High Court, however, found on the evidence produced before the Additional District Judge that the final resolution passed by the Municipal Committee was only for the grunt of a license and not a lease to the appellant.
The deed of lease, therefore, was, held to be ineffective for conveying any lease hold interest to it.
But still the High Court held that the tenancy was to last for a period of thirty years.
We are wholly unable to comprehend how any lease could be spelt out of the deed dated August 31, 1940 for a period of 30 years containing the renewal clause which has already been mentioned.
If the officer who executed the lease deed had no power to lease out the property in question the grant of the lease was wholly null and void.
It is true that by acceptance of the rent from the appellant the relationship of landlord and tenant came into existence between the parties but Mr. Chagla for the appellant has not been able to show how a lease for a period of 30 years together with a renewal clause could be held to have been created or to have come into existence.
It may be mentioned that we are not concerned with the period of 30 years which has already been taken into consideration by the High Court because no appeal has beep filed on that point by the Corporation.
The only matter which requires determination is whether the High Court, while deciding the question of apportionment, should have given due affect to the renewal clause.
In our opinion the High Court could riot have done so.
If the so called deed of lease dated August 31, 1940 was wholly ineffective and void for the purpose of demising the land for a period of 30 years one could only look at the provisions of the Transfer of Property Act for determining the term for which the tenancy came into existence.
Under section 106 of that Act the ,tenancy, in the present case, could be only from month to month because the immovable property had not been leased out (1) 498 for agricultural or manufacturing purpose in which case the lease would have been from year to year.
We are therefore unable to accede to the contention that the renewal clause in the lease deed dated August 31, 1940 was effective and should have been taken into consideration while making the apportionment between the appellant and the Corporation.
The next question relating to quantum can be disposed of shortly.
The sole criticism of Mr. Chagla is that the potential value of the plot in question was not taken into consideration.
It is true, as pointed out in Raja Vyrigherla Marayana Gajapatiraju vs The Revenue Divisional Officer Vizagapatam(1) that where the land to be valued possesses some unusual or unique features as regards its position or its potentialities the court determining the market value will have to ascertain as best as it can from the materials before it what a willing vendor might reasonably expect to obtain from a willing purchaser for the land in that particular position and with those particular potentialities.
It has been urged that Plot No. 670 had a special situation or position in view of its size, locality, nearness to business centre and the Madan Mahal Station.
But the value which was fixed by the Additional District Judge and the High Court was fixed by reference to sales of plots of comparable nature.
The following portion of the judgment of the High Court shows how the matter was dealt with "We may observe that the two witnesses relied upon by the appellants purchased small plots at the rate of Re. 1/ per sq.
As the map of the Wright Town Madan Mahal Extension area produced by the Corporation before us shows, these plots are in a fully developed lay out having roads and drains round about.
We had asked the Corporation to calculate how much area out of the acquired sites would be required to be left open for roads and drains and they have calculated that about 70,000 sq.
ft. would have to be left open for this pur pose.
Obviously, therefore, it is only the remaining plot which would have value as building sites.
Besides leaving so much area open, costs will have to be incurred in developing the roads, and drains for which the Corporation has estimated the cost to be Rs. 8,500/ .
Considering all these factors and also calculating the built up area in the lay outs surroundings the acquired land, we find that it is only eighty per cent of the land which can be sold as building site.
On these calculations if the average price of the plots sold in the locality is taken to be /12/ per sq.
the (1)66 I.A. 104.
499 overall price of the acquired land without roads and drains would work out to a little less than / 9/ per sq.
To put the matter, in a different way, the value of / 10/ per sq.
found by the Additional Judge would work out to a little over /12/ per sq.
ft., if only the area which could be built upon is considered saleable as building site.
We,therefore, find that the price at /10/per sq.
allowed by the Additional District judge, is not unreasonable; if anything it errs on the generous side".
We have no manner of doubt that the High Court had taken all the factors into consideration while assessing the value.
In the result the appeals fail and are dismissed.
There will be no order as to costs.
Appeals dismissed. | The Municipal Corporation of Jabalpur purporated to grant a leave of certain land to the appellant Sabha.
According to the document the period of lease was 30 years.
The appellant was entitled on the expiry of the lease to, have the same renewed on such terms and conditions as might be agreed between the parties, The appellant made a college hostel on the aforesaid land and had also used the attached ground as playground for students.
A portion of the said land was sought to be acquired by the State Government under the Land Acquisition Act, 1894 for constructing the Home Science College.
The Collector of Jabbulpur by his award dated July 18, 1955 dealt with the claims filed by the appellant and the Municipal Corporation and assessed the compensation at As.
/8/ per sq.
Apportionment was made between the appellant and the Corporation on the footing that the appellant was not merely a tenant at will as contended by the Corporation but was a lessee for the terms mentioned in lease.
The appellant and the Corporation made applications for reference under section 18(1) of the Act.
The Additional District Judge held that the price should be As. /10/ per.
sq ft.
and that the appellant and ' the Municipal Corporation were entitled to equal compensation.
The Corporation and the appellant filed appeals to the High Court.
The decision of the Addl.
District Judge fixing the price of the land As. /10/ per sq.
ft. was affirmed.
As regards the dispute regarding apportionment the High Court held that the lease deed having been exempted by the Administrator during the time when the Corporation stood superseded was ineffective to convey the leasehold interest to the appellant.
However, the appellant was paying the rent which had been accepted for a long time by the Corporation.
there was thus a tenancy by necessary implication.
The High Court further held that the lease was to continue for the period of 30 years mentioned in the deed but there was no valid contract for renewal of least because the clause relating to that was vague and uncertain.
The apportionment was made on acturial basis between the appellant and the Corporation in the ratio of 1038 : 962.In appeal before the Court the quest ions relating to quantum of compensation and the apportionment between the appellant and the Corporationfell for consideration.
HELD : (1) No lease could be spelt out of the deed dated August 31, 1940 for a period of 30 years containing the renewal clause.
If th officer who executed the lease deed had no power to lease out the property in question the grant of the lease was wholly null and void.
It is true that by the acceptance of rent from the appellant the relationship of landlord and tennant came into xistence.
But that did not show that a lease deed for a period of 30 years with a renewal clause had come into existence.
[497E] Since the lease deed was ineffective the lease could be under the provisions of section 106 of the 'transfer of 'Pro@y Act, only from.
mouth 494 to month because the immovable property had not been leased out for agricultural or manufacturing purpose in which case it would have been from year 'Lo year.
Therefore the :contention that the renewal clause was effective and should have been taken into consideration while making the apportionment between the appellant and the Corporation could not be accepted.
(The question whether the High Court was right in holding that the period of lease was 30 years was not gone into because the Corporation had filed no appeal against that portion of the decision.
[497H] Dagdulal vs Municipal Committee, Burhar, (19 '60) M.P.L.J. 627 and H. V. Ranan vs G. N. Gopat & Ors.
A. I. R. 1961 Mys. 29, referred to.
(2) The value which was fixed by the Addl.
District Judge and the High Court was fixed by reference to sales of plots of comparable nature.
There was no doubt that the High Court had taken all the factors into consideration while as essing the value and there was no reason to interfere in this regard.
[499A C] Raja Vyigheria Narayana Gajapatiraju vs The Revenue Divisional Officer Vizagapatam, 66 I.A. 104, referred to. |
minal Appeals Nos.
36 of 1969 and 202 of 1970.
Appeal from the judgment and order dated January 17, 1969 of the Rajasthan High Court in D.B. Criminal Appeal No. 376 of 1965.
A. section R. Chari and Sobhagmal Jain, for the appellant (in, Cr. A. No. 36 of 1969).
K. B. Mehta for the respondent (in Cr. A. No. 36 of 1969) (in Cr. A. No. 202 of 1970).
section C. Gupta, Ramesh Chand, section Bhandare and P. H. Parekh, for the respondent (in Cr. A. No. 202 of 1970).
The Judgment of the Court was delivered by Khanna, J.
This judgment would dispose of criminal appeal No. 36 of 1969 Bhagat Ram vs State of Rajasthan and criminal appeal No. 262 of 1970 State of Rajasthan vs Ram Swaroop.
Both the appeals have been filed on certificate granted by the Rajasthan High Court.
Bhagat Ram during the year 1962 was posted as circle ins pector of police at Ganganagar.
Ancestral village of Bhagat Ram is Mehna in Tehsil Moga, District Ferozepur.
Ram Swaroop also belongs to that village.
Both Bhagat Ram and Ram Swaroop were tried in the court of special judge, Ganga nagar for offenses under section 120B IPC for conspiring to ,extort bribe of Rs. 2,000 from P W I Niranjan Dass of Moga.
Charges were also framed against Bhagat Ram for offenses under sections 161, 218, 347 and 389 Indian Penal Code as also section 5 (1) (a) read with section 5 (2) of Prevention of Corruption Act.
Additional charge under section 165A Indian Penal Code was framed against Ram Swaroop.
Both Bhagat Ram and Ram Swaroop were acquitted by the special judge, Ganganagar in respect of all the charges.
The State of Rajasthan filed an appeal against the acquittal of the two accused.
The appeal was heard by a Division Bench consisting of Tyagi and Lodha, T.T. 305 The Division Bench dismissed the said appeal against the acquittal of Ram SwarooP.
The appeal of the State against Bhagat Ram in so far as it related to his acquittal for offenses under sections 347, 218, 389 and 120B IPC was also dismissed.
There was, however, a difference of opinion between the two learned judges on the point as to whether the acquittal of Bhagat Rain for offenses under section 161 IPC and 5(1) (a) of Prevention of Corruption Act should be maintained.
According to Tyagi, J., the case against Bhagat Ram for the above mentioned two offenses had not been proved and the State appeal in that respect also was liable to be dismissed.
As against that Lodha, J. took the view that Bhagat Ram was guilty of offenses under section 161 Indian Penal Code and section 5 (1) (a) of Prevention of Corruption Act.
He accordingly passed an order for the conviction of Bhagat Ram for the above mentioned two offenses.
In view of the difference between the two judges regarding the acquittal of Bhagat Ram for offenses under section 161 IPC and 5 (1) (a) of Prevention of Corruption Act, the case was placed under section 429 of the Code of Criminal Procedure before Jagat Narayan, J. Jagat Narayan, J. came to the conclusion that the material on record showed that Ram Swaroop and Bhagat Ram had entered into an agreement to extort bribe, from Niranjan Dass and, as such, were guilty of an offence under section 120A punishable under section 120B of Indian Penal Code.
The learned judge, however, felt that in view of the decision of the Division Bench, he could not set aside the acquittal of Ram Swaroop.
As regards Bhagat Ram, the learned judge came to the conclusion that he could set aside the acquittal of Bhagat Ram for offenses under sections 120B, 218 and 347 IPC.
Bhagat Ram was found guilty by Jagat Narayan, J. of the offenses under sections 120B, 161, 218 and 347 IPC.
For the offence under section 161 IPC, Bhagat Ram was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 5001 or in default to undergo rigorous imprisonment for a further period of three months.
For the offenses under sections 218 and 347 IPC, Bhagat Ram was sentenced to undergo rigorous imprisonment for a period of one year on each count.
These sentences were ordered to run concurrently with the sentence imposed under section 161 IPC.
No sentence was awarded for the offence under section 120B IPC.
Bhagat Ram has filed criminal appeal No. 36 of 1969 against his conviction and sentence, while the State of Rajasthan has filed appeal No. 202 of 1970 against the acquittal of Ram Swaroop.
The prosecution case is that a case under sections 408 and 420 IPC was registered on June 14, 1962 at police station Ganganagar on a report made by the general manager of Ganganagar 306 Sugar Mills against Ramesh, an employee of the sugar mills.
Bhagat.
Ram, who was circle inspector of Ganganagar, took over the investigation of the above case.
Bhagat Ram during investigation came to know that Ramesh had sent the misappropriated amount to his brother Puran Chand at Ludhiana.
Bhagat Ram also came to know that Puran Chand had entered into a transaction for the purchase of a truck from PW Niranjan Dass of Moga for a price of Rs. 22,000.
Niranjan Dass received Rs. 7,000 from Puran Chand in that connection.
As Puran Chand could not pay the balance of the purchase price, the bargain regarding the purchase of the truck was cancelled and the amount received by Niranjan Dass was stated to have been returned to Puran Chand.
It seems that Bhagat Ram took the stand that part of Rs. 7,000 had been kept by Niranjan Dass with himself.
Bhagat Ram, therefore.
summoned Niranjan Dass to police station Ganganagar.
In obedience to the summons, Niranjan Dass went with his brother Manohar Lal PW to Ganganagar police station on July 27, 1962.
Niranjan Dass and Manohar Lal could not meet Bhagat Ram on that day but met him on the following day.
Bhagat Ram then behaved in an unduly rude and harsh manner to Niranjan Dass and kept him at the police station.
Manohar Lal apprehending trouble, returned to Moga and took with him Ram Swaroop accused and some other persons.
Manohar Lal and his companions reached Ganganagar on July 29, 1962.
In the meanwhile, Bhagat Ram had gone to Hindumalkot.
Accompanied by Niranjan Dass, Ram Swaroop and others, Manohar Lal went to Hindumalkot Dak bungalow where Bhagat Ram was staying.
It is stated that Ram Swaroop went inside the room in which Bhagat Ram was present, while others stayed outside.
After ' some time Ram Swaroop came out of the room and told Niranjan Dass and Manohar Lal not to feel worried.
Niranjan Dass was asked to give a statement which was thereafter recorded by Bhagat Ram.
Bhagat Ram then produced three documents relating to the agreement for the sale of truck and the receipt which Niranjan Dass had obtained from Puran Chand.
for the refund of Rs. 7,000.
Bhagat Ram then told Niranian Dass to go back to Moga.
It was also mentioned by Bhagat Ram that if the presence of Niranjan Dass was required for further investigation, he would be summoned again.
About 10 or 15 days after that, it is stated, Bhagat Ram went to Moga in a jeep and stayed at the house of Niranjan Dass and Manohar Lal for the night.
While leaving Moga early next morning, Bhagat Ram told Niranjan Dass and Manohar Lal that they should have a talk with Ram Swaroop and act according to Ram Swaroop 's instructions.
After Bhagat Ram had left Moga, Ram Swaroop met Niranjan Dass and informed him that Bhagat Ram Wanted Rs. 21,000 as bribe for having helped Niranjan Dass 307 to get out of the trouble and that otherwise, Niranjan Dass would be again entangled in the case.
Niranjan Dass then told Ram Swaroop that he would consult a lawyer and give a reply.
Ram Swaroop, according to the prosecution case, came to Niranjan Dass in the first week of October 1962 and showed letter P. 2 which had been sent by Bhagat Ram to Ram Swaroop from Alwar.
In the course of that letter it was stated Kindly kindness send that thing to Alwar.
This is very important and please do not be careless and slack in the matter.
" Ram Swaroop told Niranjan Dass that the words "that thing" in the letter referred to Rs. 2,000 and demanded that amount from Niranjan Dass, so that it could be passed on to Bhagat Ram.
Niranjan Dass expressed his inability to accede to this demand.
The letter was, however, retained by Niranjan Dass.
A few days thereafter Ram Swaroop again came to Niranjan Dass and showed him telegram P.3A dated October 19, 1962.
The telegram had been addressed by Bhagat Ram to Ram Swaroop and it was stated therein that Ram Swaroop should ask Niranjan Dass to see Bhagat Ram and that otherwise , warrants of arrest would be issued against him.
This telegram too was kept by Niranjan Dass, with himself.
On December 26, 1962, it is stated, Niranjan Dass came tos know that warrants for his arrest had been received by the Moga police in the above mentioned case registered at Ganganagar.
Niranjan Dass then consulted a lawyer and sent complaint dated December 26, 1962 to the Inspector General of Police, Special Police Establishment.
A case was thereafter registered on the basis of the above complaint by DSP Umaid Singh of AntiCorruption Department.
After necessary investigation, Bhagat Ram and Ram Swaroop were sent up for trial.
In his statement under section 342 of the Code of Criminal Procedure, Ram Swaroop admitted that he knew Bhagat Ram and that he had gone to him on July 29, 1962 with Manohar Lal and Niranjan Dass at Hindumalkot.
Ram Swaroop denied that Bhagat Ram had made any demand through him for illegal gratification.
According to Ram Swaroop, Bhagat Ram had asked him to realise the embezzled amount from Niranjan Dass.
The other allegations made against him were denied by Ram Swaroop.
he, however, admitted having received letter P. 2 and telegram P. 3A from Bhagat Ram and having handed over those documents to Niranjan Dass.
Ram Swaroop added that he had asked Niranjan Dass to pay the embezzled amount which was with him.
Bhagat Ram admitted that he had been entrusted with the investigation of the case against Ramesh and that he had called Niranjan Dass to Ganganagar in that connection.
Bhagat Ram 308 denied having maltreated Niranjan Dass or having kept him under unlawful detention.
Bhagat Ram admitted that Niranjan Dass and Ram Swaroop had met him on July 29, 1962 at Hinau malkot but he denied having made any demand through Ram Swaroop for the payment of Rs. 2,000 as bribe.
It was admitted by Bhagat Ram that he had gone to Moga but the demand for any illegal gratification from Niranjan Dass at Moga was denied by Bhagat Ram.
Bhagat Ram admitted having sent letter P. 2 and telegram P. 3A to Ram Swaroop.
As regards the words "that thing", Bhagat Ram stated that they referred to the embezzled amount which had been retained by Niranjan Dass.
The trial court, as stated earlier, acquitted both the accused, while the High Court maintained the acquittal of Ram Swaroop.
As regards Bhagat Ram, there was a difference between the two judges.
On the matter being referred to the third judge, Bhagat Ram was convicted and sentenced as above.
Arguments have been addressed in the two appeals by Mr. Mehta on behalf of the State of Rajasthan, Mr. Chari on behalf of Bhagat Ram and Mr. Gupta on behalf of Ram Swaroop.
After hearing the learned counsel, we are of the opinion that the appeal filed by the State of Rajasthan merits dismissal, while that filed by Bhagat Ram should be allowed.
It would appear from the resume of facts given above that both Bhagat Ram and Ram Swaroop were acquitted by the spe cial judge.
On appeal filed by the State of Rajasthan against the acquittal of the two accused, Tyagi and Lodha, JJ. maintained the order relating to the acquittal of Ram Swaroop.
As regards Bhagat Ram, though there was a difference between the two judges regarding the correctness of his acquittal for offenses under section 5(1) (a) of Prevention of Corruption Act and section 161 of Indian Penal Code., they concurred with regard to the acquittal of Bhagat Ram in respect of the charges under sections 120B. 218, 347 and 389 IPC.
The State appeal against the acquittal of Bhagat Ram was dismissed to that extent.
The order which was made by the learned judges of the Division Bench reads as under : "BY THE COURT The result is that the appeal of the State against the order of acquittal of respondent Ram Swaroop is dismissed.
The appeal of the State so far as it relates to the acquittal of respondent Bhagat Ram under sections 347, 218, 389 and 120B Indian Penal Code is also dismissed.
In view of the difference of opinion about the acquittal of Bhagat Ram under section 161 Indian 309 .lm15
Penal Code and section 5 (1) (a) of the Prevention of Corruption Act, the matter may be laid before Hon 'ble the Chief Justice for referring it to the third judge.
" In view of the fact that the State appeal against the acquittal of Bhagat Ram for offenses under sections 120B, 218, 347 and 389 I P C had been dismissed by the Division Bench, it was, in our opinion, not permissible for the third judge to reopen the matter and convict Bhagat Ram for offenses under sections 347, 389 and 120B IPC.
The matter had been referred under section 429 of the Code of Criminal Procedure to Jagat Narayan, J. because there was a difference of opinion between Tyagi, J. and Lodha, J. regarding the correctness of the acquittal of Bhagat Ram for offenses under section 161 IPC and section 5(1) (a) of Prevention of Corruption Act.
Jagat Narayan, J. could go only into this aspect of the matter and arrive at his conclusion.
The present was not a case wherein the entire matter relating to the acquittal or conviction of Bhagat Ram had been left open because of a difference of opinion between the two judges.
Had that been the position, the whole case relating to Bhagat Ram could legitimately be considered by Jagat Narayan, J. and he could have formed his own view of the matter regarding the correctness of the order of acquittal made by the trial judge in respect of Bhagat Ram.
On the contrary, as mentioned earlier, an express order had been made by the Division Bench upholding the 'acquittal of Bhagat Ram for offenses under sections 120B, 218, 347 and 389 IPC and the State appeal in that respect had been dismissed.
The above decision of the Division Bench was binding upon Jagat Narayan, J. and he was in error in convicting Bhagat Ram for offenses under sections 120B, 218 and 347 IPC despite the order of the Division Bench.
It was, in our opinion, not within the competence of the learned judge to reopen the matter and pass the above order of conviction in the face of the earlier order of the Division Bench whereby the order of acquittal of Bhagat Ram made by the trial judge in respect of the said three charges had been affirmed.
The order of the Division Bench unless set aside in appeal to this Court, was binding and conclusive in all subsequent proceedings between the parties.
The principle of res judicata is also applicable to criminal proceedings and it is not permissible in the subsequent stage of the same proceedings or in some other subsequent proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded.
The plea of autrefois acquit as a bar to prosecution embodied in section 403 of the Code of Criminal Procedure is based upon the above wholesome principle.
310 In the case of Sambasivam vs Public Prosecutor, Federal of Malaya(1), Lord MacDermott observed: "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence.
To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
The maxim res judicata pro veritate accipitur ' is no less applicable, to criminal than to civil proceedings.
Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any steps to challenge it at the second trial." "The above observations were quoted with approval by this Court in the case of Pritam Singh vs State of Punjab(2).
We are, therefore, of the opinion that the judgment of Jagat Narayan, J. in so far as he has convicted Bhagat Ram for offenses under sections 120B, 218 and 347 IPC cannot be sustained.
The matter can also be looked at from another angle. 'The, charge under section 120B IPC related to , conspiracy between Bhagat Ram and Ram Swaroop for extorting Rs. 2,000 as illegal gratification from Niranjan Dass.
When Ram Swaroop was acquitted of the charge under section 120B IPC, the basis of the charge against Bhagat Ram for conspiracy between him and Ram, Swaroop disappeared.
It is not the case of the prosecution that Bhagat Ram bad conspired with another person and even though the identity of the other person has not been established.
Bhagat Ram would still be guilty for the offence under section 120B IPC.
On the contrary, the case of the prosecution was that Bhagat Ram had conspired with Ram Swaroop to extort Rs. 2,000 as illegal gratification from Niranjan Dass.
Once Ram Swaroop was acquitted in respect of the charge relating to conspiracy, the charge against Bhagat Ram for conspiracy must necessarily fall to the ground.
So far as the State appeal against the acquittal of Rain Swaroop is concerned, we find that there are concurrent findings of the trial court and the High Court that the evidence on record had failed to prove that he was guilty of offenses under sections 120B and 165A IPC.
Nothing has, been brought to our notice at the (1) (2) 311 hearing of the appeal as may justify interference with those concurrent findings by a fresh appraisement of that evidence.
We are, therefore, of the view that the State appeal against the acquittal of Ram Swaroop is liable to be dismissed.
As regards the conviction of Bhagat Ram for the offence under section 161 IPC, we find that it is not the prosecution case that Bhagat Ram had made any demand directly to Niranjan Dass for payment of illegal gratification.
On the contrary, the High Court found that Bhagat Ram had not demanded bribe directly from Niranjan Dass.
The case set up by the prosecution is that Bhagat Ram attempted to obtain illegal gratification from Niranjan Dass through the instrumentality of Ram Swaroop.
In view of the acquittal of Ram Swaroop, it is not possible to maintain the conviction of Bhagat Ram.
The acquittal of Ram Swaroop would necessarily lead to the conclusion that the prosecu tion allegation about Ram Swaroop having made a demand of illegal gratification from Niranjan Dass for Bhagat Ram has not been proved.
The case, in the circumstances, against Bhagat Ram for asking for bribe through Ram Swaroop must consequently fail.
It would indeed be incongruous and inconsistent to acquit Ram Swaroop, for offenses under sections 165A and 120B IPC and, at the same time, to convict Bhagat Ram for the offence tinder section 161 IPC for asking for bribe from Niranjan Dass through the instrumentality of Ram Swaroop.
We, therefore, accept the appeal of Bhagat Ram and set aside .his conviction and acquit him.
The appeal of the State of Rajasthan against the acquittal of Ram Swaroop is dismissed.
V.P.S. Appeal allowed. | An Inspector of Police was charged with offenses under sections 120B, 161, 218, 347 and 389 I.P.C. and also under section 5(1) (a) read with section 5(2) of the Prevention of Corruption Act.
Another accused was charged along with him for offenses under sections 120B and 165A, I.P.C. The trial court acquitted both the accused.
in appeal to the High Court a Bench of two judges confirmed the acquittal of the second accused and the acquittal of the Inspector with respect to offenses under sections 120B, 218, 349 and 389, I.P.C., but with respect to offenses under section 161, I.P.C. and section 5(1) (a) of the Prevention of Corruption Act, the two Judges differed and the matter was referred to a third Judge.
The third Judge held that the Inspector was guilty of the offenses under section 161 and also under sections 120B. 218 and 347 I.P.C.
In appeal to this Court by the Inspector and by the State against the acquittal of the second accused, HELD : (1) As regards the second accused there was nothing to justify an interference with his acquittal.
1310 H] (2) It was not permissible for the third Judge to reopen the matter and.
convict the Inspector for offenses under sections 120B, 347 and 389 I.P.C., because it was not a case where the entire matter had been left open for the opinion of the third Judge.
The difference of opinion between the two Judges was only with respect to the offenses under section 161 I.P.C. and section 5(1)(a) of the Prevention of Corruption Act and the third Judge could only go into that aspect of the matter.
[309 B D] The Division Bench had upheld the acquittal of the Inspector of Police for offenses under sections 120B, 347 and 389 and the State appeal in that respect had been dismissed by the Division Bench.
That order.
unless set aside in appeal to this Court, was binding and conclusive in all subsequent proceedings between the parties.
The principle of res judicata is also applicable to criminal proceedings and it is not permissible in the subsequent stage of the same proceedings or in some other subsequent proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded.
[309 F H] Pritam Singh vs State of Punjab, 1956 S.C. A.I.R. 415, followed.
Further when the second accused was acquitted of the charge under section 120B I.P.C. the basis of the charge against the Inspector for conspiracy 7 LS879 jp.
Cl/72 304 between him and the second accused disappeared.
It was not the case ,of the prosecution that he had conspired with some other person whose identity had not been established.
[310 E F] In view of the acquittal of the second accused it is also not possible to maintain the conviction of the Inspector under section 161 I.P.C. since it was not the prosecution case that he had made any demand directly for payment of illegal gratification.
On the contrary, the prosecution case was that the Inspector had attempted to obtain such gratification through instrumentality of the second accused.
[311 B C] |
o. 749 and 750 of 1967.
Appeals by certificate from the judgment and decree dated 19th October 1965 of the Kerala High Court at Ernakulam in Second Appeal No. 400 of 1961.
section T. Desai and A. Sridharan Nambiar for the appellants.
P. Ram Reddy and A. V. V. Nair for respondent No. 1.
The Judgment of the Court was delivered by Hegde, J.
In these appeals by certificate only one question arises for decision and that is whether Chandu, the undivided younger brother of Kelu or the grand children of Kelu through his daughter were the legal heirs of Kelu.
Before going into that question we may dispose, of the con tention advanced on behalf of the appellants that there is no satisfactory evidence to show that Chandu was the undivided brother of Kelu.
The pleadings in this case proceed on the footing that Chandu and Kelu were the members of an undivided family.
The evidence also discloses that fact.
The judgments of the courts below proceed on that basis.
Hence the appellants cannot now be permitted to raise the contention in this Court that Chandu is not proved to be the undivided brother of Kelu.
In considering the question formulated above, we shall proceed on the basis that Kelu and Chandu were the members of an undivided family.
758 Kelu was a Thiyya resident of Calicut Taluk (at present known as Kozhikode Taluk).
He was governed by the customary law known as Makkathayam.
He died on November 15, 1935 leaving behind him besides his two brothers Chandu and Chekku, his widow Manikka, daughter Ichira and Ichira 's son and daughter who were the appellants before the High Court.
He left behind him three items of immovable property which are the subject matter of the present appeals.
Kelu 's widow Manikka and his daughter Ichira as well as his brother Chekku died prior to 1944 long before the institution of the suits from which these appeals arise.
It is not necessary to go into the history of the long litigation.
As mentioned earlier, the only question for decision is as to who were the legal heirs of Kelu.
It is now established that the suit properties are the self acquired properties of Kelu.
There is no dispute about it now.
The High Court came to the conclusion that under the Makkathayam rule, Chandu succeeded to the estate of Kelu in preference to his wife, daughter and daughter 's children.
The said conclusion is challenged in these appeals.
The contesting parties are Hindus.
As mentioned earlier, they are governed by Makkathayam rule.
If the Hindu law as in force in South India had governed the succession with which we are concerned, the wife of Kelu should have succeeded to the estate of her husband in preference to the other heirs.
The claims of the son and daughter of Ichira could come in only later.
Therefore the principal question that we have to decide is whether the wife of Kelu succeeded to the estate of Kelu on his death.
Mr. section T. Desai, appearing for the appellants contended that Makkathayam rule being a rule of customary law can only derogate the ordinary Hindu law to the extent it is satisfactorily established; in other respects the ordinary Hindu law should prevail; the contesting respondents having not established by positive evidence the claim put forward by them i. e. that Chandu was a preferential heir to Kelu, they must fail.
On the other hand it was contended by Mr. Rama Reddy on behalf of the respondents that Kelu was governed by a customary law i. e. Makkathayam law and not by ordinary Hindu law.
Hence all that we have to see is whether the customary law pleaded is well established on the basis of the decisions of courts.
According to him the custom pleaded is of a community and not of any family.
He urged that the custom in question to the extent relevant for our present purpose is well settled.
The law relating to Thiyyas of the former Calicut taluk had come up for decision before the Madras High Court in several cases.
The approach to be adopted in spelling out the same is 759 laid down in the decision of the Madras High Court in (Parambarathil) Pattukkayal Chakkutti and ors.
vs Kothembra Chandukutti(1).
Therein the Court observed : "We think the Makkathayam Thiyyas are governed by what is called the customary law and that when a question arises as to what is the rule of law governing them on any particular matter what we have to see is what is the rule of customary law obtaining amongst them in that matter and in cases which are not sufficiently governed by prior decisions, the question will have to be determined with reference to the evidence in the case.
" In Parichan vs Perachi and ors.(2) the High Court of Madras came to the conclusion that a community following Makkathayam rule must not be taken to be necessarily governed by the Hindu law of inheritance with all its incidents.
On the basis of the evidence in that case, the court held that when a member of the Thiyya community in Calicut following that rule alleged and proved a custom that undivided brother succeeded to the selfacquired property in preference to widow, the court must give effect to it.
Therein the competition was between the widow and the brother of the deceased who was a member of an undivided Tarwad and the property in dispute was the self acquisition of the deceased.
In Rama Menon vs Chathunni (3) the High Court of Madras held that the ordinary rule of Marurnakatayam against compulsory partition is equally applicable to Tiyans who follow Makkatayam, no custom to the contrary having been made out.
In Imbichi Kandan and ors.
vs Imbichi Pennu and ors.(4) the High Court held that on the death of a Thiyya of South Malabar following Makkathayam rule of inheritance, his mother, widow and daughter are entitled to succeed to his self acquired properties in preference to his father 's divided brothers.
In the course of the judgment, this is what the learned judges observed: "The decision of the subordinate judge is entirely in accordance with the principles laid down in Parichan vs Perachi and Rama Menon vs Chathunni (supra).
it has been decided that the rule of impartibility applies to Makkatayam Tiyans of Calicut, and in Parichan vs Perachi following the principle that self acquired property lapses to the tarwad, it was held that the undivided brother succeeded in preference to the widow.
(2) I.L.R. (1) (3) I.L.R. (4) I.L.R. 760 But the case is quite, different when the brothers are divided and have no community of interest as in this case, Here it is found that the only property in which plaintiffs and Kelukutti ever had a common interest is in the family burying place, which will certainly not constitute then an undivided tarwad.
That being so, the mother, wife and daughter of Changaran who certainly belong to his tarwad are preferential heirs to his uncle who did not belong to his tarwad at all and had no community of interest with him.
" From these decisions it is clear that Thiyyas of former Calicut Taluk were governed by the customary law known as Makkathayam.
Further as per the Makkathayam rule of inheri tance an undivided brother of a deceased person succeeded to the self acquired property of the deceased in preference to the wife and daughter of the deceased.
If that is so the daughter 's son who comes after them under the general Hindu law cannot have a 'superior claim unless a custom to that effect is pleaded and proved.
Such a custom is neither pleaded nor proved.
No other contention was raised before us.
In the result these appeals fail and they are dismissed.
But in the circumstances of the case we direct the parties to bear their own costs in this Court.
S.C. Appeals dismissed. | The Thiyyas of the former Calicut, Taluk are governed by the customary law known as Makkathayam and as per the Makkathayam rule of inheritance an undivided brother of a deceased person succeeds to the self acquired property of the deceased in preference to the wife and daughter of the deceased.
Therefore, the daughter 's son who comes after them under the general Hindu Law cannot have a superior claim unless a custom to that effect is pleaded and proved.
[760C] Parambarathial Pattukava Chakkutti and Ors.
vs Kothembra Chandukutti, Paricham vs Perachi a Ors.
I.L.R. Rama Menon vs Chathunni I.L.R. 17 Mad.
184 Imbichi Kandan & Ors.
vs Imbichi Pennu & Ors.
I.L.R. referred to. |
Appeal No. 2461 of 1968.
Appeal by certificate from the judgment and order dated June 6, 1968 of the Mysore High Court in W.P. No. 769 of 1966.
section V. Gupte, for the appellant.
Respondent did not appear.
857 The Judgment of the Court was delivered by Hegde, J.
This appeal arises from certain land acquisition Proceedings.
The Government of Mysore notified the lands belonging to the respondent for acquisition.
The notification under section 4 of the Land Acquisition Act, 1894, was published in the official gazette on August 17, 1961, but no notices as required by that section were published in the locality till November 1 and 9, 1961.
The respondent filed.
his objections only on December 4, 1961.
The question for consideration is whether the notification issued under section 4 is a valid notification.
The respondent challenged the validity of the notification before the High Court of Mysore by means of a writ petition under article 226 of the Constitution.
The High Court came to the conclusion that the impugned notification was invalid and consequently quashed the same.
As against that decision this appeal has been brought after obtaining certificate under article 13 3 ( 1 ) (b) of the Constitution.
We shall now read section 4(1) of the Land Acquisition Act, 1894.
It says : "4.
(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.
" The section prescribes two requirements, namely, (1) a notification to be published in the Official Gazette, and (2) the Collector causing to give public notice of the substance of that notification at convenient places in the concerned locality.
Now, we may turn to section 5A(1) of the Act which says "5A. (1) Any person interested in any land which has been notified under section 4, sub section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be." Section 5A empowers the interested person to object to the acquisition of any land but his objection should be filed within thirty days from the date of the issue of the notification.
Any objection filed thereafter need not be considered as the same is filed after the time stipulated in section 5A(1).
With the above background we have to consider the scope of section 4(1).
Under certain circumstances publication in the Official Gazettes are presumed to be notice to all concerned.
858 But in the case of a notification under section 4 of the Land Acquisition Act the law has prescribed that in addition to the publication of the notification in the Official Gazette the Collector must also give publicity of the substance of the notification in the concerned locality.
Unless both these conditions are satisfied, section 4 of the Land Acquisition Act cannot be said to have been complied.
The publication of the notice in the locality is a mandatory requirement.
It has an important purpose behind it.
In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprived of the right of representation provided under section 5A, which is very valuable right.
This very question came up for consideration before the High Court of Mysore in Gangadharaiah vs State of Mysore and Ors.(1), and the High Court ruled that section 4(1) requires that there should both be a notification in the gazette as also a public notice in the locality in which the property proposed to be acquired is situate.
It is only when the notification is published in the Official Gazette and it is accompanied by or immediately followed by the public notice, that a person interested in the property proposed to be acquired can be regarded to have had notice of the proposed acquisition.
We are entirely in agreement with the rate laid down by that decision.
The impugned notification has not complied with the require ment of the law. ' Hence the High Court was justified in quashing the proceedings taken.
In the view that we have taken, it is not necessary for us to consider either the applicability or the scope of the Mysore Act 17 of 1961 to the present proceedings.
In the result the appeal fails and the same is dismissed. '.Me respondent is not represented before this Court.
Hence there will be no order as to costs.
G.C. Appeal dismissed. | A notification under section 4 of the Land Acquisition Act, 1894 in respect of land belonging to the respondent was published in the official gazette of the Government of Mysore on August 17, 1961.
But no notice as required by that section were published in the locality till November 1 and 19 of 1961.
Under section 5A of the Act the time limited for filing objections is thirty days from the issue of the notification.
The respondent filed his objections only on December 4, 1961.
In his writ petition under Article 226 of the Constitution the respondent contended that the notice under section 4 was invalid.
The High Court upheld the contention and quashed the impugned notification.
The State of Mysore appealed to this Court with certificate.
HELD: Under certain circumstances publication in the official gazette is presumed to be notice to all concerned.
But in the case of a notification under. 4 of the Land Acquisition Act the law has prescribed that in addition to the publication of the notification in the official gazette the Collector must also give publicity to the substance of the notification in the concerned locality.
Unless both these conditions are satisfied section 4 of the Land Acquisition Act cannot be said to have been complied with.
no publication of the notices in the locality is a mandatory requirement.
In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprived of the right of representation provided under section 5A which is a valuable right.
Under section 4 it is only when the notification is published in the official gazette and it is accompanied by or immediately followed by Public notice that a person interested in the property proposed to be acquired can be regarded to have had notice of the proposed notification.[857H 858D] The impugned notification did not comply with the requirement of the law since it was not accompanied by or immediately followed by public notice.
The High Court was, therefore, justified in quashing the proceedings taken.
[858E] The appeal must accordingly fail.
Gangadharaih vs State of Mysore & Ors., (1961) Mys.
L.J. 883, referred to. |
Appeal No. 1920 of 1968.
Appeal from the judgment and decree dated April 15, 1968 of the Madhya Pradesh High Court in Letters Patent Appeal No. 21 of 1962.
M. C. Chagla, A. K. Verma, B. Datta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants.
562 Jagdish Swarup, Solicitor General of India, section N. Prasad and B. D. Sharma, for the respondent.
The Judgment of the Court was delivered by Ray, J.
This is an appeal by certificate from the judgment dated 15 April, 1968 of the High Court of Madhya Pradesh up holding the judgment and decree passed by Nevaskar, J. of that High Court.
The Union filed a suit against the appellant in the Court of Small Causes Judge at Indore in the year 1953 and claimed a decree for Rs. 83 12 0.
The claim in the suit represented coal production cess levied under Ordinance No. XXXIX of 1944 on coal and coke dispatched from collieries in the then British India to the appellant.
The only question which falls for consideration in this appeal is whether the Union could make a valid claim for the amount.
Counsel on behalf of the appellant contended that the appellant was at the material time a resident at Indore in the then Holkar State and the Ordinance passed in the then British India would have no territorial operation to reach him.
The Ordinance was called the Coal Production Fund Ordinance of 1944.
It extended to the whole of the then British India.
Section 2 of the Ordinance provided inter alia as follows : ( 1 ) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf, there shall be levied and collected as a cess for the purposes of this Ordinance, on all coal and coke dispatched from collieries in British India a duty of excise at such rate not exceeding one rupee and four annas for ton, as may from time to time be fixed by the Central Government by notification in the official gazette; Provided that the Central Government may, by notification in the official Gazette, exempt from liability to the duty of excise any specified class or classes of coal or coke.
(2) ** ** ** (3)A duty levied under this section shall be in addition to any other duty of excise or customs for the time being leviable under any other law.
563 (4)The., duties imposed by this section shall, subject to and in accordance with the rules made under this Ordinance in this behalf, be collected on behalf of the Central Government by such agencies and in such manner as may be prescribed by the rules.
" Section 5 of the Ordinance conferred power on the Central Government to make rules and to provide for inter alia the manner in which the duties imposed by this Ordinance shall be collected, the persons who shall be liable to make the payments, the making of refunds, remissions and recoveries, the deduction of collections agencies, of a percentage of the realizations to cover the cost of collection, and the procedure to be followed in remitting the proceeds to the credit of the Central, Government.
The Coal Production Fund Rules, 1944 were made by the Central Government, in exercise of powers conferred by section 5 of the Coal Production Fund Ordinance 1944.
Rule 3 related to recovery of excise duty.
Rule 3(1) was as follows "Recovery of excise duty : (1) The duty of excise imposed under sub section (1) of section 2 of the Ordinance on coal and coke shall, when such coal or coke is dispatched by rail from collieries or coke plants, be collected by the Railway Administrations by means of a surcharge on freight, and such duty of excise shall be recovered (a) from the consignee if the freight charges are being prepaid at the destination of the consignment; (b) from the consignee if the freight charges are collected at the destination of the consignment; (c) from the party paying freight if the consignment is booked on the "Weight Only" system".
The Coal Production Fund Ordinance 1944 was repealed by the Coal Production Fund (Repealing) Ordinance, 1947.
The Repealing Ordinance of 1947 for the avoidance of doubts declared that the provisions of section 6 'of the General Clauses Act, 1887 applied in respect of such repeal.
Therefore the repeal of the 1944 Ordinance did not affect the right of the railway to recover the surcharge on freight or the liability of the appellant to pay and the remedy in respect of the right and liability.
The claim of the Union related to coal production cess on three several consignments of coal dispatched in the months of 564 December, 1946, January 1947 and February, 1947 from three different collieries at Mohuda, Unwia and Burhar respectively in the then British India to the, appellant the consignee at Indore.
Each consignment was under a railway invoice and a railway receipt.
Freight was payable on each consignment.
Coal production cess was under the 1944 Rules to be collected by means of a surcharge on freight.
Freight and the coal production cess as a surcharge thereon were payable at the destination at Indore by the consignee.
The appellant paid freight but did not pay the coal production cess by way of surcharge.
The Union therefore sued the appellant for the sums of Rs. 27 8 0, Rs. 27 8 0 and Rs. 28 12 0 aggregating Rs. 83 12 0 in respect of the aforesaid surcharge on the three several consignments.
The validity of the Ordinance came up for consideration by this Court in R. C. fall vs Union of India(1).
In that case suit was filed in the year 1953 at Chhindwara for recovery of coal cess on 3 consignments, of coal despatched from collieries in the then British India in the months of January/February, 1947 to the consignee at Indore.
This Court held that coal cess was levied and collected with the authority of law.
This Court however did not decide two contentions sought to be raised in that case.
These were first, that coal cess is a fee and not a tax or duty and secondly, that the consignee was a non resident and therefore the Ordinance not having extra territorial operation could not reach him.
Counsel on behalf of the appellant contended that the, appellant was at the material time a resident of Indore and was therefore not bound by the revenue law of the then British India and no suit could be filed for enforcing recovery of revenue dues against the appellant.
Reliance was placed in support of the contention on the decision of the House of Lords in Government of India, Ministry of Finance vs Taylor and Anr.(2).
In Taylor 's(2) case the Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax including capital gains tax, which arose on the sale of the company 's undertaking in India.
It was held by the majority opinion that although under section 302 of the English Companies Act, 1948 a liquidator was required to provide in the liquidation of the company for liabilities of the company the tax claims would not be a liability within the meaning of section 302 of the English Companies Act.
The unanimous opinion was that the revenue claims would not be enforceable in relation to assets in England.
The ratio of the decision in Taylor 's(2) case is that India being a foreign Government could not sue tile liquidator (1) [1962] Supp. 3 S.C.R. 436.
(2) ; 565 taylor in England for income tax levied and declared to be payable under the Indian law.
A foreign State cannot enforce a claim for revenues against a foreigner in his home country.
The ' reason is that a foreign court will not be an agency for tax gathering.
The decision in Taylor 's(1) case is of no aid to the appellant in the present case.
The Union in the present case did not either sue or enforce any revenue law in a foreign court.
The Coal Production Cess was levied on coal despatched from collieries in the then British India.
Under the Rules the excise duty was to be collected by the railway administration as a surcharge on freight and was to be recovered from the consignee if the freight charges were to be collected at the destination.
The fact found in the present case was that the coal was despatched from the collieries within the then British India.
The appellant was the consignee.
Freight charges were to be collected at the station of destination, namely, Indore.
The appellant also paid the freight charges on the consignments.
The levy of cess which is the taxable event happened within the then British India.
The duty of excise is determined by reference to goods despatched from collieries.
The tax is on the production of coal.
The liability to pay cess is on the goods.
The cess is a tax on goods and not on the sale of goods.
This Court examined the true character of the cess in Jall 's(2) case and Subba Rao, J. speaking for the Court said at page 451 of the Report : "Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country.
It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer.
Therefore, subject always to the legislative competence of the taxing authority, the said tax can be levied at a convenient stage so long as the character of the impost, that is, it is a duty on the manufacture or production, is not lost.
The method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience. . .
A perusal of the provisions of the Ordinance clearly demonstrates that the duty imposed is in essence excise duty and there is a rational connection between the said tax and the person on whom it is imposed".
The ruling in gall 's(2) case establishes two propositions.
First, that the cess is a duty on the manufacture or production of coal and secondly, the method of collection does not affect the essence of the excise duty.
(1) [1955] A C 491 (2) [1962] Supp. 3 S.C. P. 43 6. 566 The transaction of sale is a composite transaction consisting of agreement of sale, passing of title, delivery of goods and payment of price and costs charges of transportation.
The cess formed surcharge on the freight.
The appellant being the consignee was liable for the same.
The cess became a part of the freight for purposes of collection but in essence the cess remained a tax on goods.
The machinery for collection of the duty is not to be confused with the duty itself.
Once the duty attaches to the goods these became impressed with the liability and the purchaser, namely, the consignee in the present case was affixed with the liability to pay.
The liability arose at the colliery.
The collection was to be at Indore.
The appellant became liable to pay the cess along with the payment of the freight charges.
The suit was filed in the year 1953 when Indore was within India and the right of the Union to claim as well as the liability of the appellant to pay the cess was valid and subsisting.
The Union was therefore entitled to a decree against the appellant.
Counsel on behalf of the appellant sought to raise an addi tional ground that there was no cause of action against appellant No. 2. 'Notice of the application for urging additional ground was given on 22 January, 1972.
We did not allow this additional ground to be raised at this late stage.
If the appellant had raised this question at the trial of the suit the respondent would have dealt with the same.
We therefore thought that it would not be fair and proper to allow this ground to be raised.
For these reasons the judgment of the High Court is affirmed.
The appeal is dismissed with costs. | Coal was despatched from colleiries within British India in December 1946 and January and February 1947, to the appellant in Indore.
The respondent filed a suit in 1953 for recovery of coal production cess levied under the Coal Production Fund Ordinance, 1944, and r. 3(1) of the Coal Production Fund Rules, 1944.
On the question whether the Ordinance had no territorial operation to reach the appellant, because, he was a resident of a Princely State at the time of dispatch of the coal.
HELD:In R. C. Jall vs Union of India, [1962] Supp. 3 S.C.R. 436,.
it was held that the cess was an excise duty on the manufacture or production of coal and that the method of collection did not affect the essence of the duty.
The coal production cess was on the production of coal and was levied on coal dispatched from collieries in the then British India, that is, the taxable event happened within the then British India.
Under the Rules, the duty was to be collected by the railway administration as a surcharge on freight and was to be recovered from the consignee if the freight charges were to be collected at the destination.
The appellant was the consignee and the freight charges were to be collected from him at the destination, namely, Indore.
The cess thus became a part of the freight for purposes of collection but in essence remained a tax on goods.
Once the duty attaches to the goods they became impressed with the liability and the consignee was liable to pay.
The suit was filed in 1953 when Indore was within India and the right of the Union to claim, as well the liability of the appellant to pay, the cess, was valid and subsisting.
It was not a case of the Union seeing or enforcing any revenure law in a foreign court.
Therefore, the Union was entitled to a decree against the appellant.
[565D H; 566B D] Govt.
of India, Ministry of Finance vs Taylor, [1955] A.C. 491; , distinguished. |
vil Appeal No. 1630 of 1988.
From the Judgment and Order dated 21.1.
I988 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No .
232 1/83 BI in Order No .
18/ ]988 'B ' G. Ramaswamy, Additional Solicitor General, K. Swami and Mrs. Sushma Suri for the Appellant.
Ravinder.
Narain.
P.K. Ram and D.N. Misra for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal against the decision and order of the Customs, Excise and Gold (Control) Appellate Tribunal under Section 35L(b) of the (hereinafter called 'the Act ').
The respondent is the manufacturer of electric fans, and brought into it9 factory nameplates under tariff item 68 of the erstwhile Central Excise Tariff.
The nameplates were affixed to the fans before marketing them.
The respondent claimed the benefit of proforma credit in terms of PG NO 1000 Notification No. 201/79 dated 4th June, 1979, which was for the purpose of relief on the duty of excise paid on goods falling under Tariff Item 68, when these goods are used in the manufacture of other excisable goods.
The said notification stated in supersession of the notification No. 178/77 of the Central Excise, dated 18th June, 1977, all excisable goods on which duty of excise is leviable and in the manufacture of which any goods falling under Item No. 68 (hereinafter referred to as 'the inputs ') have been used, are exempt from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs.
It enjoins that the procedure set out in the Appendix should be followed; and further that nothing contained in the said notification shall apply to the said goods which are exempted from the whole of the duty of excise leviable thereon or are chargeable to nil duty.
It further stipulated that the credit of the duty allowed in respect of the inputs shall not be denied or varied on the ground that part of such inputs is contained in any waste, refuse or by product arising during the process of manufacture of the said goods irrespective of the fact that such waste, refuse or by product is exempt from the whole of the duty of excise leviable thereon or is chargeable to nil rate of duty.
or is not mentioned in the declaration referred to in the Appendix to this notification.
Provided, also that nothing contained in any notification should apply to the said goods on which duty of excise is paid through bandrols.
The Appendix provides the procedure.
The benefit of proforma was claimed for the said goods on the plea that the goods were intended to be used (as inputs) in the manufacture of electric fans.
The Asstt.
Collector, Central Excise, Calcutta XV Division, disallowed proforma credit to the said goods on the ground that nameplates ale not essential ingredients or raw materials in the manufacture of finished goods i.e. electric fans and thus cannot be considered as inputs in terms of the notification No. 20l/79 dated 4.6.1979.
The respondent preferred an appeal against the decision before the Collector (Appeals) Central Excise, Calcutta, and the same was allowed holding, inter alia, that para 8 of the supplement to the manual of Departmental instructions on electric fans, has clarified the utility of the use of "nameplate" on eleectric fan and, hence, viewed from this PG NO 1001 angle, the said goods should be treated as 'inputs ' in terms of the notification No. 201/79 dated 4th June, 1979.
The Collector, therefore, set aside the order of the Asstt.
Collector.
There was an appeal to the Tribunal.
The Tribunal in its order noted that the short point requiring decision in this case was: whether the nameplate could be considered as component part of the electric fan, so as to be eligible for proforma credit under the exemption notification.
The Tribunal further noted that no electric fan was removed from the factory for being marketed without the nameplate.
The Tribunal also noted that even though it could be said that electric fans could function without the nameplates, for actual marketing of the fan, the affixation of the nameplate was considered as essential requirement.
The Tribunal further noted that it was an essential requirement even from the point of view of the Excise Tariff because the rate of duty on different types of electric fans, depended on their variety and the sweep size of the fan.
This information was given in the nameplate only.
It appears that the Department 's own instructions in their Commodity Manual made it obligatory for every manufacturer to affix the nameplates on the fans.
In those circumstances, namely, for marketing the nameplates, these were essential.
In other words, they could not be marketed without the nameplates.
The relevant particulars of the fan for the determination of duty, depended on the particulars which are contained only in the nameplates.
The Department 's instruction requiring every manufacturer to affix the nameplates on the fans.
indicate that nameplate was an essential ingredient to complete the process of manufacture for marketable electric fans.
It those circumstances, in our opinion, the Tribunal was right in arriving at the conclusion that the nameplate was not a piece of decoration without the nameplate, the electric fans as such, could not be marketed; and that the dealer was entitled to the benefit of the notification No. 20l/79 CE for the purpose of obtaining proforma credit.
Fans with nameplates, have certain value which the fans without the nameplates, do not have.
If that be so, then the value added for the accretion of nameplate was entitled to proforma credit in terms of the said notification.
It is true that an electric fan may perform its essential functions without affixation of the nameplate, but that is not enough.
Electric fans do not become marketable products without affixation of nameplates.
PG NO 1002 In that view of the matter, it appears to us that the Tribunal followed the correct principles applicable in this case.
All the relevant and material factors were taken into consideration.
The approach of the Tribunal was right.
The decision arrived at on that basis appears to be correct.
In the premises the appeal fails and is according dismiseed S.K.A. Appeal dismissed. | The respondent is the manufacturer of electric fans.
The company brought into its factory nameplates under Tariff Item 68 of the Central Excise Tariff.
The nameplates were affixed to the fans before marketing them.
The respondent claimed the benefit of proforma credit in terms of Notification No. 201/79 dated 4 6 1979 which stated that all excisable goods on which duty of excise was leviable and in the manufacture of which any goods falling under Tariff Item No. 68 being 'the input6 ' had been used, were exempt from so must of the duty of excise leviable thereon was equivalent to the duty of excise already paid on the inputs.
The respondent claimed the benefit of proforma credit for the goods i.e nameplates on the plea that the goods were intended to be used as inputs in the manufacture of electric fans.
The Asstt.
Collector, Central Excise disallowed the proforma credit.
The respondent preferred an appeal before the Collector (Appeals) Central Excise, and the same was allowed treating the said goods as inputs in terms of the June l979 Notifications.
The Department appealed to the Customs, Excise and Gold (Control) Appellate 'Tribunal which held that even though electric fans could function without the nameplates, no electric, fan was removed from the factory for being marketed without the nameplates, as the Affixation of the nameplate was considered an essential requirement from the point of view of the Excise Tariff.
The Department therefore filed an appeal under Section 35 L(b) of the before this Court.
Dismissing the appeal, this Court.
PG NO 998 PG NO 999 HELD: 1.
The Department 's instructions requiring every manufacturer to affix the nameplates on the fans, indicate that nameplate was an essential ingredient to complete the process of 'manufacture ' for marketable electric fans.
[1001E] 2.
The Tribunal was right in arriving at the conclusion that the nameplate was not a piece of decoration.
Without the nameplates, the electric fans as such, could not be marketed; and that the dealer was entitled to the benefit of the Notification No. 201/79 CE for the purpose of obtaining proforma credit.
[1001F G] 3.
Fans with nameplates, have certain value which the fans without the nameplates, do not have.
If that be so, then the value added for the accretion of nameplate was entitled to proforma credit in terms of the said notification.
It is true that an electric fan may perform its essential functions without affixation of the nameplate, but that is not enough.
Electric fans do not become marketable products without affixation of nameplates.
[1001G H] |
Appeal No. 2016 of 1969.
Appeal by Special Leave from the judgment and order dated April 27, 1967 of the Madras High Court in Tax Case No. 75 of 1963.
section C. Manchanda, B. D. Sharma and R. N. Sachthey, for the appellant.
M. C. Chagla, Janendra Lal and B. R. Agarwala, for the respondent.
The Judgment of the Court was delivered by Hegde, J.
This appeal by special leave arises from a decision of the Madras High Court in a reference under section 66 (1) of the Indian Income Tax, 1922 (to be hereinafter referred to as the Act).
As demanded by the assessee the Tribunal submitted the statement of the case to the High Court seeking its opinion on the question "whether on the facts and in the circumstances of the case, the loss of Rs. 1,93.750/ was an allowable deduction under section 10 of the Income tax Act?" 461 Material facts are these The assessee respondent was a member of a Hindu undivided family which carried on money lending business in India and abroad.
In the course of such money lending business, properties were taken over in settlement of debts as and when occasion arose.
The family was disrupted on March 28, 1939.
The assessee received some shares in some companies, properties and gardens and certain other items in Malaya.
Even after the partition the assesses continued the money lending business in Malaya.
During the war, in general with others, the assessee suffered damages to these properties on account of Japanese bombing.
This loss occurred on account of bombing in December, 1941, a date falling within the accounting period ending on April 12, 1942, relevant for the assessment year 1942 43.
This loss was claimed as a business loss.
The Income Tax Officer rejected that claim.
The Appellate Assistant Commissioner affirmed the order of the Income Tax Officer .
The assessee did not succeed before the Tribunal as well.
The Tribunal rejected the claim of the assessee on the sole ground that bombing, which caused the loss, was not incidental to the business of the assessee.
The Tribunal held that the loss in question was a loss of stock in trade.
That finding of the Tribunal has not been challenged.
Hence we have to proceed on the basis that the loss caused to the assessee was a loss of stock in trade.
It was contended on behalf of the department that the loss in question cannot be given deduction to, as a business loss, in computing the net income of the assessee under section 10(1).
According to the department that was not a loss incidental to the business carried on by the assessee.
We are unable to appreciate the contention of the department.
It is established that the assessee was carrying on business in Malaya when the war was going on.
Malaya was within the war zone and, therefore, there was every possibility of that area being bombed.
If the assessee had earned any profits out of his business during the war, the department undoubtedly would have considered those profits as assessable income.
It is strange that when loss had occurred in such a situation the department should contend that the loss in question was not a business loss.
In our opinion, taking into consideration the facts and circumstances of the case, the loss occurred must be held to be a loss incidental to the business carried in by the assessee in Malaya during the war.
We are fortified in our conclusion by the decision of the Bombay High Court in Pohoomal Bros. vs Commissioner of Income Tax, Bombay City(1).
The facts of that case are some (1) 462 what similar to the facts before us.
The assessee therein, which had its head office in Bombay and branches in various parts of the world, claimed deduction of the losses resulting from the destruction of its stock in trade in three foreign branches, at Manila, Saigon and Kuala Lumpur, by enemy invasion, in computing its profits and gains for the purpose of income tax.
The department resisted that claim but the High Court held that the losses in question were trading losses.
This decision of the High Court was cited with approval by this Court in Commissioner of Income Tax, U.P. vs Nainital Bank Ltd. (1), In this connection we may also refer to two English decisions.
The first case is Green vs J. Gliksten(2).
The facts of that case were as follows : A fire occurred on the company 's premises in August, 1921, and destroyed timber the written down value of which in the company 's books was pound 160,824; the company 's valuation of its stock based on cost or market value whichever was the lower, had been accepted for purposes of taxation.
The timber had 'been insured for many years and the company had been allowed to deduct the insurance premises in computing its assessable profits.
In due course the company received from the insurers a sum of pound 477,838 representing the replacement value of the destroyed timber, but only a small part of this timber was in fact replaced because the current demand was for timber of a different character.
The company accordingly credited in its profit and loss account as a trading receipt only pound 160,824 of the insurance payment; the balance did not appear in the profit and loss account but was entered as a reserve in the balance sheet.
The Special Commissioners held that no part of the sum of pound 477,838 recovered from the insurers was a trading receipt.
But the House of Lords held that the whole sum recovered was trading receipt to be taken into account in computing the profits assessable to Income Tax under case 1 of Schedule D and to Corporation Profits Tax.
This court in Nainital Bank 's case (supra) quoting that decision with approval observed.
"If receipt from an insurance company towards loss of stock was a trading receipt, conversely to the extent of the loss not so recouped it should be trading loss.
" Next we shall refer to the decision of the Court of Appeal in London Investment and Mortgage Co., Ltd. vs Inland Revenue Commissioners.(3) The facts of that case were as follows : The assessee were paying compulsory war damage contributions during the war in respect of the properties in which they were dealing.
They received payments under the War Damage Act, 1943, in respect of the properties damaged by enemy action.
(1) (2) 14 Tax Cases 364.
(3) [1957] 1 All England Reports 377.
463 They disposed of some of the properties but retained others as part of their stock in trade and either were having them rebuilt or would have them rebuilt.
Under the War Damage Act, 1943, contributions made and indemnities given under Part I were to be treated for all purposes as outgoings of a capital nature and expenditure on making good war damage was not deductible in computing profits for income tax purposes.
On the question whether the value payments should be included in the receipts of the taxpayers ' trade for the purpose of their assessments to income under Case 1 of Schedule D and to profit tax, the Court of Appeal held that the value payments should properly be treated as part of the taxpayers ' trading receipts, since they were money into which their stock in trade had been converted.
This decision is an authority for the proposition that the compensation received in lieu of loss, of stock in trade as a result of enemy action is a trading receipt conversely a loss of stock in trade occasioned by enemy action must be considered, as a trading loss.
For the reasons mentioned above we agree with the conclu sions reached by the High Court and see no merit in this appeal.
It is accordingly dismissed with costs.
K.B.N. Appeal dismissed. | The assessee, who was carrying on business in Malaya which was within the war zone, suffered damages to property during the war on account of bombing.
The loss in question was loss of stock in trade.
On the question whether the loss could be given deduction to as a business loss in computing the net income of assessee under section 10 (1) of the Income tax Act, 1922.
HELD : On the facts and circumstance of the case the loss occurred must be taken to be a loss incidental to the business carried on by the assessee during the war.
If the assessee had earned any profits cut of his business during the war the department undoubtedly have to consider those profits as assessable income.
When loss had occurred in such situation the department cannot contend that the loss in question must not be a business loss.
A loss of stock in trade occasioned by enemy action must be considered as a trade loss.
[461 F] Bombay High Court in Pohoomal Bros. vs Commissioner of Income tax, Bombay City, , Commissioner of Income tax, U.P. vs Nainital Bank Ltd., , Green vs J. Glikstan, 14 Tax Cases 364 and London Investment and Mortgage Co. Ltd, vs Inland Revenue Commissioners [1957] 1 All England Reports.
377, referred to. |
minal Appeal No. 240 of 1960.
Appeal by special leave from the judgment and order dated November 25, 1958, of the Punjab High Court in Criminal Appeal No. 114 of 1954.
Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellant.
N. section Bindra, R. H. Dhebar and D. Gupta, for respondent.
August 30.
The Judgement of the Court was delivered by SARKAR, J.
The appellant Payare Lal was the Tehsildar of Patiala.
He and Bishan Chand, a Patwar. clerk of the Tehsil Office, were prosecuted for offences under s.5(2) of the Prevention of 330 Corruption Act, 1947.
The Criminal Law Amendment Act, 1952 (Act XLVI of 1952), to which it will be convenient hereafter to refer as the Act, required the trial to be held by a special Judge appointed under it and in accordance with certain provisions of the Code of Criminal Procedure mentioned in section 8 of the Act.
The Principal question in this appeal turns on the construction of sub section
(1) of this .section which we will later set out.
The trial commenced before section Narinder Singh the special Judge, Patiala.
He heard the evidence but before he could deliver a judgment he was transferred and was succeeded by section Jagjit Singh.
section Jagjit Singh did not recall the witnesses and hear the evidence over again, but proceeded without any objection from either side, with the trial from the stage at which his predecessor had left it and having heard the arguments of the advocates for the parties, delivered his judgment convicting both the accused of the offences with which they had been charged and passed certain sentences on them.
The accused appealed against their conviction to the High Court of Punjab.
The appeals came to be heard by Mehar Singh J., who,, though no point had been taken by the accused, himself felt considerable difficulty as to whether section Jagjit Singh had the power to decide the case on the evidence recorded by his predecessor and referred the matter to a larger bench taking the view that if the course followed was defective, the defect would be one of jurisdiction of the Court and could not be cured by the consent of parties.
The case was thereupon heard by a bench of that High, Court constituted by Gurnam Singh and Mehar Singh JJ.
who took different views.
Gurnam Singh J. held that section 350 of the Code applied to the trial before a special Judge in view of section 8(1) of the Act and under the terms of section 350, which we will later set out, section Jagjit Singh was entitled to proceed on the evidence recorded by his predecessor 331 section Narinder Singh, while Mehar Singh J., was of the opinion that section 8(1) of the Act did not make section 350 of that Code applicable to such a trial.
He also held that what section Jagjit Singh had done was not a matter of mere irregularity curable under section 537 of the Code.
The matter was then referred to Passey J., who agreed with Gurnam Singh J. On the question of section 537 of the Code, Gurnam Singh and Passey JJ.
expressed no opinion in the view that they had taken of section 8(1) of the Act.
The appeals were thereafter heard on the merits by Tek Chand J. who upheld the conviction of the appellant but reduced the sentence passed on him.
He,, however, acquitted the other accused Bishan Chand giving him the benefit of doubt.
The appellant has now come up to this Court in further appeal with special leave.
There is no appeal by the State against the acquittal of Bishan Chand.
There is no covntroversy that the general principle of law is that a judge or magistrate can decide a case only on evidence taken by him.
Section 350 of the Code is a statutory departure from this principle.
That section so far as material was at the date section Jagjit Singh decided the case in these terms : section 350.
Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdictions, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself or be may resumption the witnesses and recommence the inquiry or trial It is only if this provision was available to section Jagjit Singh that the course taken by him can be supported.
332 As we have said earlier, section 8 of the Act makes certain provisions of the Code applicable to the proceedings before a special Judge The question is whether section 350 of the Code.
was one of such provisions.
The answer to this question will depend on the construction of sub ss.(1) and (3) of section 8 of the Act the material portions of which we now set out.
section 8 (1) A special judge may take cognizance of offences without the accused being committed to him.
for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 . for the trial of warrant ' cases by magistrates.
(3) Save as provided in sub section (1) . . the provisions of the Code of Criminal Procedure, 1898, shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge ; and for the purposes of the said provisions, the Court of the special judge shall be deemed to be a Court of session trying cases without a jury or without the aid of assessors. . . .
In substance these sub sections provide that a special Judge shall follow the procedure prescribed by the Code for the trial of warrant cases by magistrates and save to this extent.
, the provision ,, of the Code applicable to a Court of session, shall govern him as if he were such a Court subject to certain qualifications which are not relevant for the present case.
There is no controversy that section 350 of the Code is applicable only to magistrates and not a Court of session and cannot therefore be applied to a special Judge under sub section
(3) as it makes only those provisions of the Code applicable to him which would apply to a Court of session.
The only controversy is whether that section is applicable to a special Judge under sub s.(1) of section 8 of the Act.
If it is so applicable, it must be applied 333 though under sub section
(3) it is not applicable, for this sub section, is to have effect " 'Save as provided in subsection (1)".
The real question is, what is meant by the words "the procedure prescribed by the Code . . . for the trial of warrant cases by magistrates" In section 8(1) of the Act ? Does section 350 of the Code prescribe one of the rules of such procedure ? It is necessary however to point out that by an amendment made in the Act after judgment had been delivered in this case by section Jagjit Singh, it has been expressly provided that section 350 of the Code applies to the proceedings before a special Judge.
On the amended Act, therefore, the question that has arisen in this case, would no longer arise.
For reasons to be hereafter stated, this amendment clearly does not govern the proceedings before section Jagjit Singh and this case has to be decided without reference to the amendment.
Is was once held by the Madras High Court in In re, Vaidyanatha Iyer (1) that section 350 of the Code prescribed a rule of procedure for the trial of warrant cases as mentioned in section 8 (1) of the Act.
This seems to be the only reported decision taking that view.
All other decisions which have been brought to our notice take the contrary view.
Even in Madras, in In re Fernandez (2), a Full Bench of the High Court has now hold that section 350 of the Code was not applicable to a special Judge and has overruled In re Vaidyanatha Iyer (1).
That appears to be the position on the authorities.
It is true that section 350 of the Code is a provision applying to all magistrates and therefore, also to a magistrate trying a warrant case.
That however does not in our opinion decide the question.
We think it 'relevant to observe that it is a right of an accused person that his case should be decided by a judge who has heard the whole of it and we agree with the view expressed in Fernandez 's case(2) (1) ; A.I.R. (1954) Mad.
(2) 334 that very clear words would be necessary to take away such an important and well 'established right.
We find no such clear words here.
We turn now to the word used.
When sub section
(1) of section 8 of the Act talks of a procedure prescribed by the Code for the trial of warrant cases by magistrates it is reasonable to think that it has the provisions and the language of the Code in view.
When we look at the Code, we find that ch.
XXI is headed "of the.
Trial of Warrant Cases by Magi strates".
This chapter consists of sections 251 to 259.
Section 251 is in these terms : section 251 In the trial of warrant cases by Magistrates, the Magistrate shall, (a) in any case instituted on a police report, follow the procedure specified in section 251A; and (b) in any other case, follow the procedure specified in the other provisions of this Chapter.
The Code, therefore, expressly refers to sections 251 259 as containing the procedure specified for the trial of warrant cases by magistrates; this then,, is the procedure it prescribes for the trial of such cases.
It would be legitimate, therefore, to think that the Act in using the words "procedure prescribed by the Code. for the trial of warrant cases by magistrates" also meant only these sections of the Code and did not contemplate section 350 of the Code as a procedure so prescribed, though that section is applicable to the proceedings before a magistrate trying a warrant case.
It does not seem to us that the words "the procedure prescribed by the Code. . for the trial of warrant cases by magistrates" meant a procedure which may be followed by magistrates in all cases.
Further more section 350 occurs in a chapter of the Code which deals with general provisions relating to inquiries and trials and is not a provision which has been specifically prescribed by the Code for application to the 335 trial of warrant cases by magistrates, as are sections 251 to 259.
Again, section 350 of the Code cannot, without doing violence to the language used in it, be applied to the proceedings before a special Judge Clearly it cannot be, applied where its terms make such application impossible.
Now the section can be applied only when one magistrate succeeds another.
It lays down what the succeeding magistrate can do.
Now suppose one special Judge succeeds another.
How can he exercise the powers conferred by the section ? The section applies only when the predecessor is a magistrate.
The predecessor in the case assumed is however a special Judge.
Such a Judge is not a magistrate for the purpose of the Act, nor does the Act require that he is to be deemed to be such.
Section 8 (1) of the Act which only requires a special Judge to follow the procedure for the trial of a warrant case, cannot justify the creation of a fiction making the predecessor special Judge, a magistrate.
It is of some interest to note here that the amendment to the Act which expressly makes section 350 of the Code applicable to proceedings before a special Judge also provides that for the purposes of so applying the section, "a special Judge shall be deemed to be a magistrate".
Clearly, the legislature thought that unless such a fiction was created, the application of the section to the proceedings before a special Judge would create difficulties or anomalies.
Therefore also, the Act could not in our view, have intended that section 350 of the Code would be available to a special Judge as a rule, of procedure prescribed for the trial of warrant cases.
For all these reasons, we would prefer the opinion expressed by Mehar Singh J.
We think that under the Act, as it stood before its amendment as aforesaid, section 350 of the Code was not available when one special Judge succeeded another. 'we hold that section Jagjit Singh had no authority 336 under the law to proceed with the trial of the case from the stage at which section Narinder Singh left it.
The conviction by section Jagjit Singh of the appellant cannot be supported as he had not heard the evidence in the case himself The proceedings before him were clearly incompetent.
It is then said that this defect was a mere irregularity and the conviction of the appellant can, if sustainable on the evidence, be upheld under EA.
537 of the Code.
In regard to this section, it was said by the Privy Council in Pulukuri Kotayyam vs King Emperor (1), "When a trial is conducted in a manner different from that prescribed by the Code (as in N. A. Subramania Iyer 's case, 1901 L.R. 28 I.A. 257), the trial is bad, and no question of curing an irregularity arises but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive, provisions of the Code".
It seems to us that the case falls within the first category mentioned by the Privy Council.
This is not a case of irregularity but want of competency.
Apart from section 350 which, as we have said, is not applicable to the present case, the, Code, does not conceive of such a trial.
The trial offends the cardinal principle of law earlier stated, the acceptance of which by the Code is clearly manifest from the fact that the Code embodies an exception to that principle in section 350.
Therefore, we think that section .537 of the Code has no application.
It cannot be called in aid to make what was incompetent, competent.
There has been no proper trial of the case and there should be one.
(1) (1947) L.R. 74 I.A. 65, 75.
337 'Then it is said or,.
behalf of the appellant that we should not send the case back for a fresh trial but decide it ourselves on the evidence on the record.
Coming from the appellant, it is a somewhat surprising contention.
According to him, a point which we have accepted, there has realy been no proper trial of the case.
It would follow from this that there has to be one.
In the absence of such a trial we cannot even look at the evidence on the record.
Lastly, we have to say a few words on the amendment of the Act expressly making section 350 of the Code applicable to the proceedings, before a special Judge.
The amendment came long after the decision of the case by section Jagjit Singh and had not expressly been made retrospective.
It was said on behalf of the respondent, the prosecutor, that the amendment being 'in a procedural provision was necessarily retrospective, and, therefore, no exception can now be taken to the action taken by section Jagjit Singh.
Assuming that the rule contained in section 350 of the Code is only a rule of procedure, all that would follow would be that it would be presumed to apply to all actions pending as well as future : Kimbray vs Draper (1).
Such a retrospective operation does not assist the respondent 's contention.
Nor do we think it an argument against sending the case back for retrial that the special Judge now hearing the case would be entitled to proceed on the evidence recorded by section Narinder Singh in view of the amendment.
Whether he would be entitled to do so or not would depend on whether the amended Act would apply to proceedings commenced before the amendment.
It has to be noted that the impugned part of the proceedings was concluded before the amendment.
On this question, we do not propose to express any opinion.
In any event, under section 350 as it now stands a succeeding magistrate (1) 338 liar, power to resummon and examine a witness further.
We cannot speculate what the special Judge who tries the case afresh will think fit to do if section 350 of the Code is now applicable to the proceedings before him.
For all these considerations, we think it fit to send the case back for retrial.
We therefore, allow the appeal and set aside the conviction of the appellant and the sentence passed on him.
The case will now go back for retrial According to law. | The appellant and another were prosecuted ' for offences under section 5(2) of the Prevention of Corruption Act, 1947.
The trial commenced before the special judge who heard the evidence but before he could deliver judgment was transferred and was succeeded by another special judge.
The latter did not recall the witnesses and did not hear the evidence over again, but proceeded with the trial without any objection from either side from the stage at which his predecessor had left.
He convicted both the accused.
On appeal, the Punjab High Court held that section 350 Criminal procedure Code applied to the trial before a special judge in view of section 8(1) of the Criminal Law Amendment Act, 1952, and the succeeding special judge was entitled to proceed on the evidence recorded by his predecessor.
The controversy is whether section 330 of the Code of Criminal Procedure is applicable to a special judge under sub s.(1) ,of section 8 of the Criminal Law Amendment Act, 1952, though it is not applicable under sub section
(3) of the Act.
Therefore the question is what is meant by the words "The procedure prescribed by the court. for the trial of warrant cases by magistrate" in sub s.(1) of section 8 of the Act, and whether section 350 of the Code prescribe one of the rules of such procedure.
The Act was since amended and therein it is expressly provided that s.350 of the Code applies to the proceedings before a special judge.
The amendment does not govern the present proceeding as the impugned part of the proceedings was concluded before the amendment.
Held, that the Criminal Law Amendment Act, 1952, did not intend that section 350 of the Criminal Procedure Code would be available as a rule of procedure prescribed for the trials of warrant cases, to a special judge as the special Judge was not a magistrate for the purpose of the Act not did the Act require before the amendment that he was to be deemed to be such.
329 The Act in using the words "procedure prescribed by the Code. for the trial of warrant cases by magistrate" meant only the sections 251 to 259 of the Criminal Procedure Code as expressly referred in the code as containing the procedure St specified for the trials of warrant cases by magistrate and did not contemplate section 350 of the Code as a procedure so prescribed.
Held, further, that where in a case there is want of competency and not a mere irregularity, section 537 of the Code of Criminal Procedure has no application.
It cannot be called in aid to make what was incompetent, competent.
Held, also, that it is the right of an accused person that his case should be decided by a judge who has heard the whole of it and that very clear words would be necessary to take away such an important and well established right.
In the present case the succeeding special judge had no authority under the law to proceed with the trial of the case from the stage at which hi , predecessor in office left it, and the conviction of the appellant cannot be supported as he had not heard the evidence in the case himself.
The proceeding before the succeeding special judge were clearly incompetent.
There has been no proper trial of the case and there should be one.
In re Vaidyanatha Iyer, (1954) 1 M. I,.
cable.
Pulukuri Kotayya vs King Emperor, (1947) L. R. 74 I A. 65 and Kimbray vs Dapper, , referred to In re Fernandez.
(1958) 11 M. L. J. 294, approved,. |
A. No. 2020 of 1972.
Appeal by certificate from the judgment and order dated March 28, 1968 of the Rajasthan High Court at Jodhpur in Income tax ' Reference No. 1 1 of 1963.
N. D. Karkhanis and A. G. Ratnaparkhi, for the appellant.
section C. Manchanda, P. L. Juneja, section P. Nayar and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.
This appeal is by special leave against the judgment of the High Court of Rajasthan in I an income tax reference under section, 66 (1 ) by which it answered the two questions referred to it in the negative.
Before this appeal was filed, Appeal No. 1238/1969 had been filed on a certificate but that is dismissed without costs because this Court had in several cases ' held that in Income tax references if the High Court does not give any reasons while granting the certificate, the certificate can be revoked.
The assessee, a firm carrying on mining business at Udaipur with a branch at Mandal, had pursuant to an invitation to tender for mica mining in accordance with the terms and conditions prescribed in the Mineral Concession Rules, tendered for certain areas for Rs. 1,57,150/ of which Rs. 3,360/ was payable towards the mica scrap lying on the surface.
The lease was for 20 years and the areas which were offered had been worked by other Private companies for 15 years.
This offer of the appellant was accepted and the lease was granted to it.
In the relevant assessment year 1952 53 for which the previous year for the head office ended on October 30, 1951 and for the branch ended 362 on March 30, 1952, the appellant claimed Rs. 7,857/ being the 1/20th of the tender money as revenue expenditure incurred during that year.
The claim of the assessee was rejected by the Income tax Officer on the ground that the money was paid for the value of the land which it had acquired because the mine granted to the assessee had already been worked by the private companies.
In an appeal against this order, the Appellate Assistant Commissioner confirmed the disallowance of the expenditure as in his view, it was a capital nature expended for the acquisition of a, capital asset.
Against this order, an appeal was filed to the Appellate Tribunal.
The Tribunal however allowed Rs. 3,360/paid for mica scrap lying on the surface as a revenue expenditure incurred in the acquisition of stock in trade, but disallowed the claim for the balance of Rs. 1,53,800/ which was paid under the tender as a capital expenditure.
The assessee had also claimed Rs. 3,200 as the fee paid by it a the rate of Re. 1/ per acre per year for prospecting licence.
The income tax Officer disallowed this amount under section 10(2) (xv) of the Indian Income tax Act, 1922 (hereinafter called the 'Act ') on the ground that the licence was obtained by the assessee only that year, that the fee was paid in addition to the royalty payable on the value of the emeralds excavated and sold and that it was an initial expenditure for procuring a right to respect mines.
The Appellate Assistant Commissioner in an appeal by the assessee negatived the claim on the ground that under that licence the assessee had a right to win and commercially exploit the minerals which the assessee actually carried out.
The Tribunal while dismissing the appeal filed against the order of the Appellate Assistant Commissioner observed that the prospecting licence fee cannot be equated to a payment made for the purchase of stock in trade, that it was not based, on any quantity of minerals, that the minerals had to be won and extracted from the earth and the term "prospecting licence" shows that the mine had not yet started working as a mine and that the payment was to initiate the business.
It also held that the period of on, year for which the licence was obtained cannot justify the fee paid as a revenue expenditure.
The assessee thereafter filed ' application under section 66(1) of the Act and as in its opinion a question of law did arise, the, Tribunal referred the following two questions to the High Court for its opinion : 1.
Whether on the facts and in the circumstances of the case, the prospecting licence fee of Rs. 3,200/is allowable as revenue expenditure ? 2.
Whether on the facts and in the circumstances of the caste the appropriate Part of Rs. 1,53,800/ was allowable as revenue expenditure ? 363 Taking the second question first, it is contended before us by the learned advocate for the appellant that Rs. 1,53,800/ paid for pillars of mica standing in the land leased out after the other private companies had worked it was a revenue expenditure because the tender which was given and accepted was on the basis of the calculations in the Indian Mining Hand Book for a specific quantity of mica in the mines which was the assessee 's stock intrade.
The revenue however submits that the amount of the lease was a capital outlay incurred for the initiation of the business, and that the pillars of mica cannot be stock in trade unless the mica was excavated, and brought to the surface.
A large number of cases decided in this country and in England, dealing with different topics were referred and arguments addressed before us dealing with many analogies of one kind or other, tendu leaves mangoes, apples, sand, brickearth, lime and other commodities all with a view to persuade us to ascertain what is the true test to be applied to the particular facts of this case ' We do not however propose to refer to cases dealing with variety of topics except perhaps to determine the nature of the expenditure incurred in this case by the assessee.
This Court in Pingle Industries Ltd. vs Commissioner of Income tax, Hyderabad(1) had occasion to examine exhaustively the relevant Indian and English cases for determining what is a capital expenditure and what is a revenue expenditure.
That was also a case of mining where the assessee obtained leases for excavating Shahabad stones for a period of 12 years for which an annual payment of Rs. 28,000 was agreed upon.
The majority of Judges, Kapur, J. and Hidayatullah, J. (as he then was) (section K. Das, J. dissenting) held that the assessee acquired by his long term lease the right to win stones, that the stones in situ were not its stock in trade in a business sense but a capital asset from which after extraction it converted the stones into its stock in trade.
It was also held that the payment was neither rent nor royalty but a lump payment in instalments for acquiring a capital asset of enduring benefit to its trade; the amounts being out goings on capital account, were therefore not allowable deductions.
The proposition as qualified by Lord Cave in Atherton vs British insulated and Helsby Cables.
Ltd.(2) that in the absence of any special circumstances leading to the 'opposite conclusion, when an expenditure is made, not only once and for all, but with a view to bringing it into existence an asset or advantage for the enduring benefit of a trade, has been applied, explained and varied from time to time as the circumstances of the particular case required.
The application of these principles to the various cases and the conclusions reached by courts in those cases often (1) (2) ,213.
6 L498Sup CI/73 364 lead to irreconciliable results.
It is because the topic itself is a troublesome one and is not rendered any the less difficult by resorting to principles.
"It is not always easy" observed Romer, L.J. in (;olden Horse Shoe (New) Ltd. vs Thurgood (H. M. Inspector of Taxes(1) "to determine whether a particular asset belongs to one category or the other" nor does it depend in any way "on what may be the nature of the asset in fact or in law.
" In our own Court this difficulty has been put very tersely,.
if we may say so with respect, by Hidayatullah, J. (as lie then was) in Abdul Kayoom vs Commissioner of Income tax(2) when he said: ". none of the tests is either exhaustive or universal.
Each case depends on its own facts, and a close similarity between one case and another is not enough, because even A single significant detail may alter the entire aspect.
In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo.
The nature of the Judicial Process, p. 20) by matching the colour of one case against the colour of another.
To decide, therefore, on which side of the line a case falls, its broad resemblance to another case is not at all decisive.
What is decisive is the nature of the business, the nature of the expenditure, the nature of the right acquired, and their relation inter se, and this is the only key to resolve the issue in the light of the general principles, which are followed in such cases.
" The determining factor will depend largely on the nature of the tract , in which the asset is employed.
The several cases which do not deal with the mining leases but are concerned with different assets are of little help in the same way as in Mohanlal Hargovind vs C.I.T.(3), cases relating to the purchase or leasing of mining quarries, deposits of brick earth were considered not to be of assistance by the Privy Council in case of a contract for collecting and removing tendu leaves.
The principles enunciated for determining the nature of the expenditure have been sought to be applied to different situations arising on the facts of each case, but the difficulty in matching them with the seeming irreconciliabiliiy are perhaps explicable only on the ground that the determination in any particular case is dependent on the character of the lease or agreement, the nature of the asset, the purpose for which the expenditure was incurred and such other factors as in the facts and circumstances of that case would indicate.
If we confine our attention to the mining leases, what appears to us (1) (3) (2) at 703.
36 5 to be an empirical test is that where minerals have to be won, extracted and brought to surface by mining operations, the expenditure incurred for acquiring such a right would be of a capital nature.
But where the mineral has already been gotten and is on the surface, then the expenditure incurred for obtaining the right to acquire the raw material that is the mineral, would be a revenue expenditure laid out for the acquisition of stock in,trade.
An expenditure incurred for acquiring a right to take away sand from the surface of river beds has been treated as if the sand was stock in trade, M.A. Jabbar vs Commissioner of Income tax(1) in the same way as tendu leaves have been treated by the Privy Council in Mohanlal Hargovind 's case.
In the former case, Bhargava, J. indicated a number of factors which led to the conclusion that the expenditure incurred by the assessee in obtaining the lease was revenue expenditure for the purpose of obtaining stock in trade and not capital expenditure which were : (1) that the lease was for a very short period of 11 months only; (2) that the sole right which was acquired by the assessee under the lease deed was to take away the sand lying on the surface of the leased land where no question of raising, digging or excavating for the sand before obtaining it was involved.
In other words, no operation had to be performed on the land itself and "is not a case where the gravel is in any true sense" as appointed out in Golden Horse Shoe (New) Ltd. 's case "was won from the soil . it is merely shovelled up where it lies.
" In the latter case the Privy Council said that the leases for the right to collect and remove tendu leaves under which a certain sum was payable by instalments as a consideration for the grant of that was a revenue expenditure it pointed 'Out that the contracts were short term contacts, that the picking of the leaves had to start at once or practically at once and to proceed continuously and that under the contract it is tendu leaves and nothing but tendu leaves that are acquired.
At page 478 while comparing that case with the case of Kauri Timber Co. Ltd. I.,.
Commissioner of Taxes(2 )where the company 's business consisted in cutting and disposing of timber and it had in some cases acquired timber bearing lands and in other cases it purchased the standing timber, the lease itself being for 99 years, the Privy Council observed "In the present case the trees were not acquired nor were the leaves acquired until the appellants had reduced them into their own posse ssion and ownership by picking them.
The two cases can, in their Lordshops ' opinion, in no sense be regarded as comparable.
If the tendu leaves had.
been stored in a (1) (2) [1913] A.C. 771.
366 merchant 's godown and the appellants had bought the right to go and fetch them and so reduce them into their possession and ownership it could scarcely have been suggested that the purchase price was capital expenditure.
Their Lordships see no ground in principal or reason for differentiating the present case from that supposed.
" The analogy referred to in the above passage is sought to be applied to the facts of this case but in our view there is hardly any justification for such a conclusion having regard to the findings of the Tribunal and the income tax authorities.
The learned advocate for the assessee contends that the Income tax Officer, the Appellant Assistant Commissioner and the Tribunal, each of them had given different findings for coming ,to the conclusion that the expenditure was of a capital nature while the High Court gave yet another reason to answer the questions against the assessee.
Inasmuch as the correctness or otherwise of the order depends greatly upon what has been found as facts.
of this case, it would be useful to examine the respective orders.
The Income tax Officer, as we have earlier stated held that the money was paid for the value of the land which the assessee had acquired because the mine granted to the assessee had already been worked by other private companies.
This finding, according to the learned advocate, is contrary to the facts set out in the statement of the case by the Tribunal in which a reference was made to paragraph 5 of the invitation to tender.
It reads "As the area has been worked by a private com pany during the past fifteen years, all the known mines and quarries and prospecting pits have acquired a value which can be determined on the principles of 'mine valuation '.
Intending applicants are therefore requested to visit the area before April 15, 1950 and assign their own value and offer it.
According to the assessee, as already pointed out, it had offered Rs. 1,57,150/ after the mica had been valued on the principles of mine valuation which represented a payment of stock in trade.
The Appellate Assistant Commissioner has rejected the claim of the assessee with these observations : "On merits the appellant 's claim cannot be sustained because the circumstances detailed above, clearly indicate that the payment of tender money was for the acquisition of capital asset and not, as sought to be made out, for the stock of ores.
The stock was not 367 here on the surface but it was still embedded with the only difference that its availability could be more definitely gauged than in the case of an unworked area.
It would not make any material difference whether the miner acquires a lease on ordinary terms for an area which does not give a clear indication of the possible existence of ore or he acquires on more expensive terms an area which is in such a condition that it gives definite indication about the possibility of existence of ore therein and also broadly the extent thereof.
Acquisition in either case would be of a capital asset and payment therefore, small or large, a capital expenditure.
" Earlier the Appellate Assistant Commissioner had stated that when the lease was allotted to the appellant by the Mining Department "it was made clear that any mica scrap left by the predecessor exploiters M/s. Duduwala & Co., on the surface would be removed either by these exploiters within three months or if not so removed it would stand forfeited to the Rajasthan Government in any case it was not to come to the appellants.
" In the light of what has been stated, it is clear that the Appellate Assistant Commissioner made a distinction between mica that has been ,excavated and brought it; the surface and the mica which was still embedded and had to be excavated even though it was more easily avail able because of the labour already expanded in the working out of the mine by the other private companies.
The conclusions of the Tribunal are set out in the following passage . "In our opinion, the amount paid cannot be equated to payment for raw materials.
The raw materials have to be won and extracted before they could be said to be stock in trade.
The sum represents the price that was paid by the assessee for obtaining the right to, extract and win emerald and mica in an area which had already been worked and developed by a predecessor for 15 years.
If the assessee had to start running a mine, it had to incur similar expenditure.
In this case, the amount had been incurred and was paid for by the assessee.
Thus this amount in our opinion represents capital expenditure incurred for the purpose of obtaining certain benefits of a capital nature.
This is not in the nature of any royalty or rent paid by the assessee to the authorities.
In this connection, reference was made on behalf of the assessee to the provisions of Rule 51 of the Mineral Concession Roles which prohibits premium being paid for obtaining such a licence.
This rule occurs in Chapter 5 which applies to grant 368 of mineral concessions by Private persons and we do not consider that the rule is relevant for considering the question in issue before us where the grant is by the State.
We do not also think that this is in the nature of any premium.
This is merely for the purpose of getting benefits of certain structures and other works carried out in the area which had already been worked as a mine previously.
This cannot be equated to a premium that is contemplated by rule 5 1.
We therefore agree with the authorities below in holding that the assessee has not made out the claim for de duction of the amount.
" The finding of the Tribunal given in the above excerpt is clear and consistent with that given by the Income tax Officer and the Appellate Assistant Commissioner in that all of them distinguished between raw materials which had already been extracted and brought to the surface and those that have still to be extracted.
Apart from the objection that no question was formulated by which the findings of the Tribunal were challenged on any admissible grounds, there are, in our view, no contradictions in the fin ding of the Tribunal as submitted by the learned advocate for the assessee because what the Tribunal was dealing with in the latter part of the passage cited above, were the contentions urged on behalf of the assessee, firstly, that the amount was a royalty or rent 'paid to the authorities and secondly, what was paid was in the nature of premium.
While rejecting these contentions the Tribunal gave its reasons but that is not to say that the conclusion that the amount was a capital expenditure was not based on the finding that mica had to be extracted and brought to the surface before it could be considered as the assessee 's stock in trade.
In our view the principles which have been applied in the Pingle Industries ' case are equally applicable to the facts and circumstances of this case.
The test for ascertaining whether the amount spent is of a capital nature is, whether it was spent for obtaining a right of an enduring character which in the case of mining leases is to acquire rights over land for winning the mineral.
In other words, where the mineral is part of the land and some mining operations have to be performed to extract it from the earth, the amount paid to acquire a right over or in the land to win that mineral is of an enduring character and hence a capital expenditure.
In this case the mica pillars which have been exposed by the mining operation of other private companies had no doubt enhanced the value of the right which was leased 369 to the appellant but nonetheless.the appellant still had to carry out some mining operations to extract the mineral from the pillars which was embedded in the land.
If the private companies before the mica was exposed had taken the lease, they would have paid a much lesser amount which nonetheless would have been a capital expenditure.
It is the labour and expense which the private companies expanded that has enured for the benefit of the Government and enhanced the capital value of the lease.
This is not a case as is contended, of mica having been given so as to form part of the stock in trade of the assessee as in the case of Golden Horse Shoe (New) Ltd. vs Thurgood (H. M. Inspector of Taxes) (1) In that case the company had acquired rights in certain dumps of 'tailings ' or residuals that remained after the extraction of gold from ore taken from certain gold mines.
It was contended on behalf of the revenue that the company 's rights in tailings and dumps were part of the undertaking which the company was formed to acquire and any sum paid therefore was capital expenditure, and that the company 's rights in the dump was the purchase of a wasting asset.
This contention was negatived and it was held that the purchase price of, the tailings was an admissible deduction in computing the company 's profits for income tax purposes .
Lord Hanworth, M.R. at page 298 observed "After careful consideration of, the present case, in the course of which my mind has fluctuated on either side, I think it is to be decided upon its own facts that none of the tests suggested affords a strict rule of guid ance.
It seems, then, that the Company bought these dumps which were no longer in a natural but in an artificial condition; which were in such a state that they would not have passed under a lease of "beds opened, or unopened, minerals", see Boileau vs Heat Ch.
D. 301) for the purpose of treating them as the stock in trade, lying stored and ready to their hand, at a fair price of pound 122,750, and their intention was to use them up and make what they could of them by and after treatment.
They had not to win them from the soil; they had been gotten already.
If the metaphor of working a mine be applied, it might be said that the purchase of the dumps was a capital outlay.
If the metaphor of making gas or coke from coal, or of a miller making flour from wheat, be applied, it may be said that it was an outlay to be placed in the profit and loss account.
But metaphors do not provide exact definitions and are often misleading.
It is safer (1) 370 to give an interpretation to the facts of this case as found in the case stated and upon the law relevant to them. " This passage at once indicates the difficulties which he in common with other Judges have felt When called :upon determine the nature of the expenditure.
The lease in this case was for a long period it conferred a right to excavate the mica because on the findings of the Tribunal mica had to be extracted from the mine though, the ,earlier working out of the those mines by other companies had made it much easier to perform the final operations and because of it a higher amount had to be paid.
Nonetheless the amount paid was for acquiring a right of enduring nature to extract and remove the mica to bring it to the surface, grade it and pay royalty to the Government in accordance with the quality of Leach grade of mica extracted.
We accordingly hold that the ,expenditure incurred is a capital expenditure and that the second question has been rightly answered.
On the first question whether the prospecting licence fee of Rs. 3,200/ is allowable as revenue expenditure, the contention on behalf of the assessee is that it is a licence fee, not a lease amount nor does it create an interest in the land.
The Income tax Officer, the Appellate Assistant Commissioner and the Tribunal have all held that the fee paid for prospecting licence was not ,of a revenue nature.
It was submitted before the Tribunal that under a prospecing licence issued under Chapter 3 of the Mineral Concession Rules, 1943 the licensee had a right to win and carry away the minerals for commercial purposes, and for that reason the amount should be treated as in the nature `of a purchase price of a stock in trade.
In support of this contention the provisions of T. 23 were referred to but the Tribunal rejected that contention because in its view the amount was paid, as and by way of prospecting fees which was for initiation of a business as in the case of other minerals and that the character of the licence did not change merely because the licensee had certain rights over the minerals obtained under the prospecting licence nor was it based on any quantity ' of minerals.
The minerals had to be won and extracted from the earth and the term 'prospecting licence ' shows that the mine has not yet started working as a mine.
It was a fee paid irrespective of the quantity of minerals obtained which demonstrated clearly that the object of the payment was to initiate the business.
That apart, the period for which the licence was obtained viz., one year, does not also make it a revenue payment and consequently it held that the authorities Tightly disallowed the amount.
The finding by the Income tax ;authorities as well as the Tribunal that it was a payment for 371 initiating the mining operations was a finding of fact.
In oar view also the, fee was paid to obtain a licence to carryout, investigate, search and find the mineral with the objectof conducting the business of extracting ore from the earth.
It is therefore clear that the fee was paid for initiating the business and is of a capital nature.
By no stretch of argument can the fee paid for a prospecting licence be equated to a payment made for the purposes of stock in trade.
We think that the Income tax authorities, the Tribunal and the High Court are right in coming to that conclusion.
Our answer to the first question is, therefore also in the negative.
The two questions having been answered against the assessee, the appeal is dismissed with costs.
V.P.S. Appeal dismissed. | The assessee, a firm carrying on mining business, took on lease for 20 years certain areas which had been worked previously by.
others, and in which mica pillars had been exposed by those earlier mining operations.
Mica scrap was also lying on the surface.
The assessee paid a sum of money, part of which was towards the mica scrap lying on the surface.
The assessee also paid at Re. 1 / per acre per year as fee for prospecting licence., The assessee claimed the 1/20th part of the money paid for the lease as well as the fee paid for the prospecting licence as revenue expen diture for purposes of income tax.
The Tribunal allowed the money paid for the mica scrap lying on the surface as revenue expenditure, but disallowed the other claims.
The High Court also, on reference, held against the assessee (appellant).
Dismissing the appeal to this Court, HELD : The expenditure incurred for the lease, as well as the fee paid for the prospecting licence, were not allowable as revenue expenditure.
[362G H; 371C] (1)The test for ascertaining whether the amount spent for the lease is of a capital nature, is whether it was spent for obtaining a right of an ,enduring character, which, in the case of mining lease is to acquire rights over land for winning the mineral.
In other words, where the mineral is part of the land and some mining operations have to be performed to extract it from the earth, the amount paid to acquire a right over, or in the land, to win that mineral, is of an enduring character, and hence, a capital expenditure.
But where the mineral has already been gotten and is on the surface, then the expenditure incurred for obtaining the right to acquire the raw material, that is, the mineral would be a revenue expenditure laid out for the acquisition of a stock in trade.
[365A B; 368G H] In the present case, the findings of the Tribunal are clear and consistent with those given by the Income tax Officer and the Appellate Assistant Commissioner, in that, all of them distinguished between the raw materials which had already been extracted and brought to the surface, and those that are still to be extracted.
The mica pillars which had been exposed by the earlier mining operations, had enhanced the value of the right which was leased to the appellant, but none the less, the appellant still had to carry out some mining operations to extract the mineral from the pillars which were embedded in the land.
The lease was for a long period and it conferred a right to excavate the mica.
The amount paid was therefore for acquiring a right of an enduring nature to extract and remove the mica, to bring it to the surface, grade it, and pay royalty to the Government in accordance with the quality of each grade of mica extracted.
[368C D, H; 369A C; 370B D] Pingle Industries Ltd. vs Commissioner of Income tax Hyderabad, , followed.
361 Artherten vs British Insulated and Helsby Cables Ltd. , 213, Kauri Timber Co. Ltd. vs Commissioner of Taxes, [1913] A.C. 771, Golden Horse Shoe (New) Ltd. vs Thurgood (H.M. Inspector of Taxes), 18T.C. 280, Abdul ayoom vs Commissioner of Income Tax, at 703, Mohanlal Hargovind vs C.I.T., and M.A. Jabbar vs Commissioner of income Tax, , referred to.
(2)The term prospecting licence ' shows that the mine has not yet started working as a mine.
The finding by the authorities and the Tribunal that the fee paid for the prospecting licence was a payment for initiating the mining operations was a finding of a fact.
It was, in fact, a fee paid irrespective of the quantity of minerals obtained showing that the object of the payment was to initiate the business.
The period for which the licence was obtained, namely one year, does not also make it a revenue payment.
The fee paid to obtain the licence to carry out, investigate, search and find the mineral with the object of conducting the business of extracting ore from the earth, is a fee paid for indicating the business and therefore, is of a capital nature and could not be equated to a payment for the purposes of stock in trade.
[370D H; 371A B] |
Appeal No. 1192 and 1193 of 1967.
Appeal by special leave from the order dated January 13, 1969 of the Punjab and Haryana High Court, at Chandigarh, in L.P.A. No. 6 of 1969.
699 B. Sen and G. D. Gupta, for the appellant.
V. C. Mahajan and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by GROVER, J.
These two appeals by certificate from a judgment of the Allahabad High Court must succeed on the short ground that the provisions of section 4(1) of the Land Acquisition Act, 1894, were not complied with.
In C.A. 1192/67 a notification was issued under section 4 of the Act on October 15, 1960 for acquisition of the land in dispute.
Under section 17 (4) of the Act the provisions of section 5A were dispensed with.
On October 28, 1960 the notification under section 6 was issued.
The appellant was directed to be present before the Collector in pursuance of a notice under section 9 on December 4, 1960.
On December 5, 1960 the appellant filed a petition under article 226 of the Constitution challenging the acqui sition proceedings.
The petition, was dismissed by a single judge of the High Court whose judgment was affirmed in Special Appeal by the Division Bench.
Section 4(1) of the Act is in the following terms "Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be, needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality"; It is common ground that the Collector did not cause public notice of the substance of the notification to be given at convenient places in the locality where the land sought to be acquired was situated.
In other words there was no compliance whatsoever with the second part of sub section
( 1 ) of section 4.
The law as settled by this Court is that.
such a notice under second part of section 4(1) is mandatory and unless that notice is given in accordance with the provisions contained therein the entire acquisition proceedings are vitiated.
We may refer in this connection to Khub Chand & Others vs The State of Rajasthan, & Ors.
In that case this Court pointed out that the object is to give intimation to a person whose land is sought to be acquired of the intention of the officer to enter the land.
Under section 4(2) such a notice is a necessary condition for the exercise of the power of entry noncompliance with that condition makes the entry unlawful.
In State of Mysore vs Abdul Razak Sahib(2) no notices as required by section 4(1)of the Act were published in the locality till after the lapse of about 10 weeks.
The question for consideration ' (1) ; (2) C. A. 2361 of 1968 dt.
August 11.
700 was whether the notification issued under section 4 was a valid one.
This Court held that in the case of a notification under section 4 the law has prescribed that in addition to publication of a notice in the official gazette the Collector must also give publicity: of the substance of the notification in the concerned locality.
Unless both these conditions are satisfied section 4 of the Act cannot be said to have been complied with.
The purpose behind such a notice was that interested persons should know that the land is being acquired so.
as to prefer any objections under section 5 A which confers a valuable right.
Learned counsel for the State has, however, contended that according to these decisions it is only when the persons interested can file objections under section 5 A that the, public notice of the substance of the notification under section 4(1) by the Collector would be necessary whereas in the present case the, applicability of the provisions of section 5 A have been dispensed with under section 17(4) of the Act at the same time the notification under section 4(1) was issued.
It is wholly unnecessary that the interested parties should have the requisite information of the acquisition proceedings as they are not entitled to file objections under section 5A.
We are unable to accept such a contention.
In our judgment the provisions of section 4(1) cannot be held to be mandatory in one situation and directory in another.
Section 4(1) does not contemplate any distinction between those proceedings in which in exercise of the power under section 17 (4) the appropriate government directs that the provisions of section 5 A shall not apply and where such a direction has not been made dispensing with the applicability of section 5A.
It lays down in unequivocal and clear terms that both things have to be simultaneously done under section 4(1), i.e., a notification has to be published in the official gazette that the land is likely to be needed for any public purpose and the Collector has to cause notice to be given of the substance of such notification at convenient places in the locality in which the land is situated.
The scheme of section 4 is that after the steps contemplated under sub section
(1) have been taken the officer authorized by the Government can do the various acts set out in sub section
It is not required under section 17(4) of the principal Act that when a notification under section 4(1) is issued the direction should be made simultaneously if the State Government so desires.
Such an order or direction can be made even at a later stage.
The effect of the direction made under section 17(4) is that a declaration can be made under section 6 in respect of the land at any time after the Publication of the notification under section 4(1) and thereafter the Collector can take possession.
But as mentioned before in a given case the appropriate government may not consider it necessary to take action under section 17(4) simultaneously with the notification under section 4(1) and it may choose to invoke its provisions only at a later stage in view of any urgency that may crop 701 up.
Thus the construction of section 4(1) cannot be made to depend upon any action or direction which the State Government may choose to make under section 17 (4) of the principal Act.
In our opinion section 4 (1) has to be read as an integrated provision which contains two conditions; the first is that the notification in the official gazette must be published and the second is that the Collector has to cause public notice of the substance of such notification to be given.
These two conditions must be satisfied for the purpose of compliance with the provisions of section 4(1).
In the above view of the matter the appeals which involve the same point must succeed.
They are consequently allowed and the acquisition proceedings in question in both the appeals shall stand quashed.
The appellants will be entitled to costs in this Court One hearing fee.
S.B.W Appeals allowed. | A notification was issued under section 4 of the Land Acquisition Act on October 15, 1960 for acquisition of the land in dispute.
The Collector did 'not.
cause Public notice of the substance of the notification to be announced at convenient places in the locality where the land sought to be acquired was situate, as required by the second part of section 4(1).
Under section 17(4) of the Act the provisions of section 5A were dispensed with.
On October 28, 1960 the notification under section 6 was issued.
The appellant was directed to be present before the Collector in pursuance of a notice under Sec. 9 on December 4, 1960.
On December 5, 1960 the appellant filed a petition under article 226 of the Constitution challenging the acquisition proceed ings.
The petition was dismissed by a single Judge of the High Court whose judgment was affirmed in Special Appeal by the Division Bench.
Allowing the appeals, HELD : (i) The law as settled by this Court is that such a notice under second part of section 4(1) is mandatory and unless that notice is given in accordance with the provisions contained therein the entire acquisition proceedings are vitiated.
Under section 4(2) such a notice is necessary condition for the exercise of the power of entry.
Non compliance with that condition makes the entry unlawful.
The purpose behind such a notice is that interested persons should know that the land is being acquired so as to prefer any objections under section 5 A which confers a valuable right., [699G] Khub Chand and Others vs The State of Rajasthan and Ors. ; and State of Mysore vs Abdul Razak Sahib, C.A. 2361 of 1968 dt.
August 11, 1972 referred to.
(ii)The construction of S.4(1) cannot be made to depend upon any action or direction which the State Govt.
may choose to make under section 17(4) of the principal Act.
section 4(1) has to be read as an integrated provision which contains two conditions both being mandatory.
, Requirement of public notice in the locality cannot be rendered directly by a notification under section 17(4) dispensing with hearing under Sec.
5A. [700H] |
Appeal No. 2262 of 1971.
Appeal by, special leave from the judgment and 'Order dated November 25, 1969 of the Mysore High Court in Writ Petition No. 6201 of 1969.
C. K. Daphtary and R. B. Datar for the appellant.
B. Sen and M. Veerappa for the respondent.
200 The Judgment (A the Court was delivered by MUKHERJEA, J.
This appeal by special leave is directed against a judgment of the High Court of Mysore by which that High Court disposed of several writ petitions in which the principal ,,question at issue was a common question of law.
The appellant was an officer of the old State of Mysore.
After the States Reorganisation Act of 1956, he entered service of the new State of Mysore constituted under that Act.
The question that has arisen is : what is the superannuation age of the appellant ? It is admitted that the appellant was entitled to the benefits of the service rules which obtained before his transfer to the new State of Mysore.
The relevant rules are the Mysore Services, Regulations as they stood on 1 November 1956.
According to the appellant the age of superannuation is 60 years while according to the respondent the age of superannuation is 55 years.
Difficulty has arisen for two reasons.
First,, there are two versions of the pre1956 Service Regulations, one to be found in the Seventh Edition of the Regulations published in 1945 and the other to be found in the Eighth Edition published in 1953.
Secondly, there are three decisions of this Court, two of which namely Al. Narasimha ,char vs The State of Mysore(1) and State of Mysore vs Padmanabhacharya (2) interpreting article 294 of the Eighth Edition have held that 55 years is the age of superannuation while the third decision in Union of India and ors.
vs R. V. Sadasiva Murthy etc.(3) dealing with article 305 of the Seventh Edition which incidentally corresponds to article 294 of the Eighth Edition has held that the age of superannuation is 60 years.
According to the High Court the latest decision of this Court in Union of India and ors.
vs R. V. Sadasiva Murthy etc.
( 3 ) which has supported the petitioners ' case of 60 years being the age of superannuation rested on the effect of clause (c) of the old article 305.
On behalf of the appellant, however, it was urged that the latest decision of this Court in Sadasiva Murthy 's ( 3 ) case in the correct decision to be followed in interpreting article 294 of the Eighth Edition as well as article 305 of the Seventh Edition.
It is necessary at the outset to set out article 305 of the Seventh Edition as well as article 294 of the Eighth Edition one after the other for making an effective comparison of these two Articles.
It is also of some importance in this connection to set out the provisions of article 428 of the Seventh Edition.
article 305 of the Seventh Edition "(a) An officer in superior service, who has attained the age of fifty five years, may be required to retire, (1) [1960] 1 S.C.R. 981.
(2) 11966] 1 S.C.R. 994.
(3) Civil Appeals Nos.
476 to 478 of 1969.
: Judgment delivered on 15 July, 1969 201 unless Government considers him efficient, and permits him to remain in the service.
But as the premature retirement of an efficient officer imposes a needless charge on the State, this rule should be worked with discretion.
And in cases in which the rule is enforced, a statement of the reasons for enforcing it shall be placed on record.
Note x x x (b) x x x "(c) The following ruling should be kept carefully in view in applying the rules regarding compulsory retirement 'As some misapprehension appears to exist on the subject of the rule regarding the compulsory retirement of officers after the age of fifty five years, it is desirable to state that not only do Article 305 and Article 428 of these Regulations read together, not require the compulsory retirement of any efficient officer of whatever age, but that though the Articles authorise the Heads of Departments, at their discretion, to presume that an officer is inefficient at fifty five years of age conditionally, at sixty years of age absolutely, yet the whole tenor of the rules is that such presumption shall be exercised with careful consideration both for the individual who would suffer by being deprived of his appointment while capable of ' discharging its duties.
and for the finances of the country, which would suffer we 're offi cers, still efficient prematurely thrown upon the pension list., article 428 of the Seventh Edition "If an officer in superior service, whose age is less than sixty years, is required to retire under Article 305 (a), the Head of his office must certify in the column for any other remarks on the third page of the application for his pension, the cause of the applicant 's inefficiency, and quote the order of Government or of any officer to whom power under Article 308 (a) (2) may have been delegated.
sanctioning the applicant 's retirement as superannuated.
If the officer wishes to retire of his own accord under Article 310, the fact should be stated.
" article 294 of the Eighth Edition "294(a) A Government servant in superior or inferior service, who has attained the age of fifty five years, may be required to retire, unless the Government 202 considers him efficient, and permits him to remain in the service.
But as the premature retirement of an efficient Government servant imposes a needless charge on the State, this rule should be worked with discretion And in cases in which the rule is enforced, a statement of the reasons for enforcing it shall be placed on record.
NOTE l.
It is trusted that the Heads of Departments will always be disposed to extend to this rule a very liberal interpretation, so that the State may, in no case, be deprived of the valuable experience of really efficient Government servants by the untimely exercise of the powers of compulsory retirement on pension.
NOTE (b) These rules apply to all Government ser vants without reference to their nationality.
(c) Heads of Departments are authorised to retire all non gazetted Government servants under them when they attain the age of fifty five, and to grant extension of service for a period not exceeding six months only in very exceptional cases if the Government servant is considered to be efficient and such extension is considered absolutely necessary in the interest of public service.
In no case.
extension be given beyond six months without orders of Government.
" The first case that came up to this Court for interpretation of these Regulations was the case of M. Narasimhachar vs The State of Mysore(1).
In that case this Court was called upon to construe the effect Art.294(a) of the Eight Edition of Mysore Services Regulations.
The petitioner, who was retired from service from a particular date on the ground that he had attained superannuation on that date, challenged the order of compulsory retirement on various grounds.
One of the grounds was that the order was contrary to article 294(a) of the Regulations.
The petitioner, in particular, relied on article 297 of the Mysore Services Regulations which laid down that a government servant in superior services who has attained the age of 55 years, may at his option retire from the service on his superannuation pension.
The petitioner urged that article 297 indicated clearly that the option is with the public servant whether he retires at the age of 55 years or not.
This court rejected that contention and held : first, that under article 294(a) the age of retirement is 55 years and, secondly, article 297 which is complementary to article 294(a) allows the government servant, if the Government wants to keep him in service after 55.
to opt for retirement.
Wanchoo J. (1) [1960]1 S.C.R. 981 203 observed that article 297 did not mean that Government cannot retire him at the age of 55 years if he does not exercise the option.
The next case that came up before this Court was the case of State of Mysore vs Padmanabhacharva(1).
In that case, Padmanabhacharya who was a trained teacher completed the age of 55 years on 3 February 1958 and was ordered to be retired from service from that date on the ground of superannuation.
Padmanabhacharya challenged the validity of the order in a writ petition before the High Court of Mysore and contended that Rule 294(a) of the Mysore Services Regulations which prescribed the age, of retirement fixed the normal age of superannuation at 58 years instead of 55 years as the result of an amendment made in April 1955.
The State of Mysore raised two contentions : First, that even after the amendment of 1955 the age of superannuation in, the case of trained teachers continued to be 55 years though it was open to the State to allow them upto the age of 5 8 years if they were fit and efficient and, secondly that a notification issued by the Governor on 25 March 1959 under article 309 of the Constitution validated the action of retiring Padmanabhacharya and certain other officers on their, attaining the age of 55 years.
The High Court rejected both these two contentions and allowed the petition.
On appeal, this Court held with regard to the first contention that under Rule 294(a) as it was before 29 April 1955, the normal age of retirement was 55 years for all including trained teachers but it gave discretion to the Government to extend the service of efficient government servants beyond the age of 55 years.
The position, however, was changed in regard to trained, teachers as a result of the addition of Note 4 to Rule 294(a) which entitled them to continue in service till the age of 58 years.
unless the Government came to the conclusion that they did not have a good record of service and were not upto the mark.
The net effect of this decision was that apart from trained teachers, the, normal age of superannuation was 55 years unless Government decided to extend it upto 58 years on the ground of fitness.
This Court was called upon to construe the effect of article 305 ' of the Seventh Edition of the Mysore Services Regulations in Union of India vs R. V. Sadasiva Murthy(3).
In that case Sada siva Murthy was a "superior service" employee of the Mysore, State Railways.
After the merger of the State of Mysore with the Indian Union he became an employee of the Indian Railway Administration.
On 5 January 1969 he received an order compulsorily retiring him from service.
Sadasiva Murthy moved a writ petition in the High Court of Mysore in which he asked for a, declaration that the Indian Railway Administration was bound to continue him in service till he attained the age of 60 years.
His, (1) ; (2) C. As.
476 478 of 1969 decided on 15 7 1969.
204 contention was upheld by the High Court and the order of compulsory retirement was quashed.
Upon an appeal from that decision this Court confirmed the decision of the High Court.
The appellant before us strongly relied on this latest decision of this 'Court.
Before the High Court an attempt was made on behalf of the .State to explain the difference between the latest decision of this 'Court and the two earlier decisions by pointing out that article 305 of the Seventh Edition contained a ruling of the Government which indicated that article 305 and article 428 should be, read together.
It was contended that article 428 suggests that an officer in the superior service could be, retired before reaching 60 years only on the ground of inefficiency.
The argument was that this clause (c) which attracts the operation of article 428 was omitted in the Eight 'Edition and article 294 of that Edition standing by itself indicated 5.5 years to be the age of superannuation.
In our opinion, it is not necessary for us, to examine the question whether article 428 of the Seventh Edition which is essentially a rule regarding pension supports the contention that the normal age of superannuation is 60 years.
So far as the instant case is concerned, we consider the two . earlier decisions to be more apposite for two reasons.
First, it appears from the judgment of the High Court of Mysore that it was a common ground of the parties to the instant case that the conditions of service governing the services of the appellant are those contained in the Eighth Edition.
Since in the two earlier decisions it was the rule of the Eighth Edition which was construed those are the decisions with which we are concerned directly in the instant case.
Secondly, the decision in the latest case may be supported on an entirely different ground.
Rule 2046 of the Indian Railway Fundamental Rules as amended on 11 January 1967 provided, inter alia, that if a ministerial railway servant, who entered Government service on or before 31 March 1938 and held on that date (i) a lien or a suspended lien on a permanent post, or (ii) a permanent posit in a provisional substantive capacity and continued to hold the same without interruption until be was confirmed in that post, he was to be retained in service till he attains the age of 60 years.
This rule was modified on 23 December 1967 so that the expression "Government service" in that rule included service rendered in a former provincial Government and in ex Company and ex State Railway, if the rules of the Company or ' of the State had a similar provision.
In the facts of the case of Sadasiva Murthy, he, it appears, completely answered the description of a ministerial railway servant given in Rule 2047.
Therefore he could claim 60 years to be his age of retirement.
From that point of view the judgment in Sadasiva Murthy 's case is un 205 exceptionable.
On facts, however, that case is entirely distinguishable from the facts of the present case in which the petitioner appellant is not a Railway officer and does not, therefore, claim the benefit of Rule 2046 of the Indian Railway Fundamental Rules.
Apart from the considerations we have just mentioned, in our opinion article 294 does not leave any room for doubt on this point.
The discretion to retire an officer whether of the superior service or of the inferior service at 55 years has been given in clear unmistakable language to Government.
All officers attaining that age "may be required to retire".
It is clear that the officers themselves have no option in the matter.
If Government decides to retire them, they must go out.
At the same time, however, the Government has been given.
the discretion to retain them in service if the Government considers them to be fit and efficient.
There is nothing in the language of article 294 which makes it incumbent on Government to give this extension after the age of 55 years.
In these circumstances we do not think there is any merit in the appeal which is accordingly dismissed.
We do not, however, make any order as to costs.
G.C. Appeal dismissed. | The appellant was an officer of the old State of Mysore.
A the States Reorganisation Act of 1956, he entered service of the new State of Mysore constituted under that Act.
The appellant was entitled to the benefits of the service rules which obtained before his transfer to the.
new State of Mysore, the relevant rules being the Mysore Services Regulations as they stood on 1 November, 1956.
According to the State of Mysore the appellant was due to retire at the age of 55 years.
He claimed however in a writ petition before the High Court that the age of superannuation under the rules was 60 years.
The High Court rejected the petition.
In appeal before this Court it was common ground between the parties that it was the Eighth Edition of the Regulations published in 1953 that was applicable to the case.
HELD : article 294 of the Eighth Edition does not leave any room for doubt on the point at issue.
The discretion to retire an officer whether of the superior service or of the inferior service at 55 years All officers attaining that age 'may be required to retire. 'It is clear that the officers themselves have no option in the matter.
If Government decides to retire them, they must go out.
At the same time, however, the Government has been given the discretion toretain them in service if the Government considers them to be fit and efficient.
There is nothing in the language of article 294 which makes it incumbent on Government to give this extension after the age of 55 years.
[205BC] There was therefore no merit in the appeal which must accordingly be dismissed.
M.Narasimhachar vs The State of Mysore, [1960] 1 S.C.R. 981 and State of Mysore vs Padmanabhacharya, [1966] 1 S.C.R. 994, applied.
Union of India and Ors.
vs R. V. Sadasiva Murthy etc., Civil Appeals Nos.
476 to 478 of 1969; Judgment delivered on 15 July 1969.
distinguished. |
Appeal No. 1240 of 1967.
Appeal from the judgment and order dated June 24, 1964 of the Assam and Nagaland High Court at Gauhati in Civil Rule No. 57 of 1963.
D. N. Mukherjee, for respondents Nos. 1 to 3.
B. D. Sharma and section P. Nayar, for respondent No. 4.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
This is an appeal by special leave against the judgment of the High Court of Assam allowing the petition filed by respondents questioning the validity of the order dated 27 6 1962 issued by the Deputy Commissioner, Khasi Jaintia Hills on behalf of the Government of Assam that their application for renewal of the mining lease granted to their father must be deemed to have been refused under sub rule (3) of Rule 24 of the Mineral Concession Rules, 1960.
171 The lease in question was granted by the Crown Representative on 29th April, 1942 to Bhagirath Mohta the father of the respondents for a period of 20 years to operate the coal mines.
Bhagirath Mohta died on 18 5 1961 and on 3 8 1961 the respondents applied for renewal of the lease.
By his order earlier mentioned the Deputy Commissioner informed the respondents that the application for renewal must be deemed to have been refused.
On 22 10 1962 the respondents filed a revision petition to the Central Government under Rule 54 of the Mineral Concession Rules, and this was rejected on 8 2 1963.
On 7 5 1963 the respondents filed a petition before the High Court of Assam for quashing the order dated 27th June, 1962 and for a writ of Mandamus directing the renewal of the lease.
The appellants contended that the rights of the respondents, if any, were wholly contractual and based on disputed facts and they could only establish them by.
filing a regular suit in a Civil Court.
The High Court of Assam allowed the petition filed by the respondents holding that Rule 24(3) of the Mineral Concession Rules, under which the application by the respondents was deemed to have been rejected, was unreasonable and ultra vires of Section 8 of the Mines & Minerals (Regulation and Development) Act, 1957, and the deemed refusal of the application for renewal had no legal effect, that the explanation to Rule 54 should also be struck down as repugnant to the main sections of the Act.
It, therefore, quashed the order of the Deputy Commissioner dated 27th June, 1962 and issued a writ of Mandamus to the State Government to deal with and dispose of the application of the petitioners dated 3 8 1961 for renewal.
The first question to be decided, therefore, is whether Rule 24(3) and the explanation to Rule 54 are repugnant to the provisions of Section 8 of the Act and, therefore.
liable to be struck down.
We may first set out the relevant provisions.
Rule 24 reads as follows : "24.
Disposal of application for mining lease.(1) An application for the grant of a mining lease shall be disposed of within nine months from the date of its receipt.
(2)An application for the renewal of a mining lease shall be disposed of within ninety days from the date of its receipt.
(3)If any application is not disposed of within the period specified in sub rule (1), of sub rule (2), it shall be deemed to have been refused.
" 172 Rule 54 reads as follows: "Application for revision. (1) Any person aggrieved by any order made by the State Government or other authority in exercise of the powers conferred on it by the Act or these rules may, within two months of the date of communication of the order to him, apply to the Central Government in duplicate in Form N for revision of the order.
The application should be accompanied by a treasury receipt showing that a fee of Rs. 100 has been paid into a Government treasury or in any branch of the State Bank of India doing the treasury business to the credit of the Central Government.
Provided that any such application may be entertained after the said period of two months, if the applicant satisfies the Central Government that he had sufficient cause for not making the application within time.
(2)In every application under sub rule (1) against the order of a State Government refusing to grant a prospecting licence or a mining lease, any person to whom a prospecting licence or mining lease was granted in respect of the same area or for a part thereof, shall be impleaded as a party.
(3)Along with the application under sub rule (1), the applicant shall submit as many copies thereof as there are parties impleaded under sub rule (2).
(4)On receipt of the application and the copies thereof, the Central Government shall send a copy of the application to each of the parties impleaded under sub rule (2) speci fying a date on or before which he may make his representations, if any, against the revision application.
Explanation.
For the purpose of this rule, where a State Government has failed to dispose of an application for the grant or renewal of a prospecting licence or a mining lease within the period specified in respect thereof in these rules.
the State Government shall be deemed to have made an order refusing the grant or renewal of such licence or lease on the date on which such period expires.
(1) The period for which a mining lease may be granted shall not (a) in the case of coal.
iron ore or bauxite, exceed thirty years; and 173 (b) in the case of any other mineral, exceed twenty years.
(2) A mining lease may be renewed (a) in the case of coal.
iron ore or bauxite, for one period not exceeding thirty years; and (b) in the case of any other mineral, for one period not exceeding twenty years : Provided that no mining lease granted in respect of a mineral specified in the First Schedule shall be renewed except with the previous approval of the Central Government.
(3)Notwithstanding anything contained in subsection (2), if the Central Government is of opinion that in the interests of mineral development it is necessary so to do, it may, for reasons to be recorded, authorise the renewal of a mining lease for a further period or periods not exceeding in each case the period for which the mining lease was originally granted.
" From a reading of Section it is difficult to see how exactly the rules referred to above can be said to be contrary to the provisions contained in that Section.
Let us, therefore, consider the scheme of the Act.
It is an Act to provide for the regulation of mines and the development of minerals under the control of the Union.
Section 4 lays down that no person shall undertake any prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a prospecting licence, or as the case may be, a mining lease, granted under this Act and the rules made thereunder.
Section 5 lays down certain restrictions in the matter of granting prospecting licences or mining leases.
Section 6 lays down the maximum area for which a prospecting licence or mining lease may be granted.
Section 7 lays down periods for which prospecting licences may be granted or renewed.
Section 8 lays down the periods for which mining leases may be granted or renewed.
Section 10 lays down the procedure for applying for prospecting licences or mining leases.
Section 11 lays down the preferential rights of certain persons to the grant of prospecting licences and mining leases.
Section 13 enables the Central Government to make rules for regulating the grant of prosecuting licences and mining leases.
Among the clauses contained in subsection (2) of that Section, which specify the purpose for which rules may be made, are clauses (g) and (r) which are as follows (g)the terms on which.
and the conditions subject to which, any other prospecting licence or mining lease may be granted or renewed; 174 (r)any other matter which is to be, or may be prescribed under this Act.
Section 19 lays down that any prospecting licence or mining lease granted, renewed or acquired in contravention of the provisions of this Act, or any rules or orders made thereunder shall be void and of no effect.
Section 20 lays down that the provisions of the Act and the rules made thereunder shall apply in relation to the renewal after the commencement of this Act of any prospecting licence or mining lease granted before such commencement as they apply in relation to the renewal of a prospecting licence or mining lease granted after such commencement.
Section 30 enables the Central Government of its own motion or on application made within the prescribed time by an aggrieved party, revise any order made by a State Government or other authority in exercise of the powers conferred on it by or under the Act.
The first Schedule to the Act contains a list of minerals in respect of which no prospecting licence or mining lease shall be granted except with the previous approval of the Central Government.
The Mineral Concession Rules, 1960 were made under this Act.
Chapter 11 of the rules contains provisions regarding certi ficate of approval.
Chapter III deals with grant of prospecting licences in respect of land in which the minerals vest in the Government.
Chapter IV deals with grant of mining leases in respect of land in which the minerals vest in the Government.
Rule 24 is found in this Chapter.
Chapter V deals with procedure for obtaining a prospecting licence or mining lease in respect of land in which the minerals vest in a person other than the Govern ment.
Chapter VI deals with grant of prospecting licences and mining leases in respect of land in which the minerals vest partly in Government and partly in a private person.
Chapter VII deals with revision.
Rule 54, the explanation to which has been held void by the Assam High Court, is found in this Chapter.
It is not necessary for the purpose of this discussion to refer to Chapters VIIII and DC.
The Act and the Rules thus contain the complete code in res pect of the grant and renewal of prospecting licences as well as mining leases in lands belonging to Government as well as lands belonging to private persons.
The main point to be kept in mind is the fact that the mining lease in question is in a land belonging of Government and it is for a mineral included in the First Schedule to the Act in respect of which no mining lease can be granted without the previous approval of the Central Government.
Normally the Government like any other owner of property is entitled to choose with whom it shall deal and what sort of a contract it will enter into, but being a public authority its 175 acts are necessarily regulated by certain rules.
The Act and the rules in this case are intended to regulate the development of mines and minerals under the control of the Union and contain the provisions necessary for that purpose.
No person can claim any right in any land belonging to Government or in any mines in any land belonging to Government except under and in accordance with the Act and the Rules or any right except those created or conferred by the Act.
There is no question of any fundamental right in any person to claim that he should be granted any lease or any prospecting licence or mining lease in any land belonging to the Government.
It is necessary to bear this in mind because some sort of vague right was claimed on behalf of the respondents as though there is a right of renewal of the mining lease in question even apart from the rules.
The original lease in favour of the father of the respondents contained a clause that if the lessee were desirous of taking a renewed lease for a further term of years he should give six calendar months ' previous notice in writing to that effect and the Crown Representative will deliver a renewed lease for a further term of 20 years.
Now as a result of the provisions of Section 19 and 20 of the Act renewal of the lease granted to the father of the res pondents is governed by the Act and the Rules.
Rule 24(3) provides that an application for the grant of a mining lease shall be disposed of within ninety days from the date of its receipt, and if it is not so disposed of it shall be deemed to have been refused.
A later amendment omitted the words "or sub rule (2)" found in that sub rule with the result that the sub rule (3) now reads as follows : "If any application is not disposed of within the period specified in sub rule (1) it shall be deemed to have been refused.
" This might seem a little confusing.
Does it mean that the period specified in sub rule (1) applies not merely to the grant of a mining lease mentioned in sub rule (1) but also to the renewal of a mining lease mentioned in sub rule (2) ? But we think that it will be a reasonable interpretation to hold that the effect of this amendment would be that while the provision regarding disposal within 90 days of an application for renewal still stands, the provision for deeming it to have been refused is no longer there.
But this does not dispose of the matter because the "plantation to rule 54 lays down that for the purposes of that rule, where a State Government has failed to dispose of an application for the grant or renewal of a prospecting licence or a mining lease within the Period specified in respect thereof, the State Government shall be deemed to have made an order refusing the grant or renewal on the date on which such period expires.
So the explanation 176 has two purposes (i) to state the effect of the failure to dispose of the applications referred to in Rule 24, sub rule (1) & (2) within the periods specified in those sub rules, as also (ii) to provide the starting point for the purpose of computing,the period of two months within which an application for revision under Rule 54 must be preferred.
It has been urged vehemently that a provision to the effect that if the State Government does not dispose of an application for renewal within 90 days it should be deemed to have been refused is an unreasonable one and should, therefore, be struck down.
As we have already mentioned it cannot be said that the respondents had any right apart from the rights conferred on them by the Act and the Rules.
Their right, if any, is a creation of, and only flows from, the Act and the Rules.
They cannot claim any right de hors the Act and the Rules.
So if the Act and the Rules provide that an application not disposed of within 90 days should be deemed to have been refused, they have to abide by the Rules and take the consequences.
There is no question of any contravention of any rights of the respondents in the making of these rules.
It is said that there is no way of the respondents knowing what has been done about their application for renewal and if the concerned officer or authority neglects to take any action with regard to their application they should not be penalised.
We do not see how, if that is the Legislative policy, it can be ques tioned.
It cannot be said to be in contravention of any provision of the Constitution.
Nor is there any question of the principles of natural justice having been violated.
Indeed there may be some purpose in such a provision.
It is well known that in almost all statutes regarding local bodies it is provided that applications for building licences that are not disposed of within a specified period should be deemed to have been granted.
It has never been argued in those cases that it is unfair to the local bodies concerned.
That is the provision of law.
Let us assume that in a case like the present rule 24(2) did not exist.
Let us assume that the officer or authority dealing with the application for renewal simply sleeps over it for years.
The applicant will then be in a worse position.
Apparently the idea was that the officer or authority dealing with an application for renewal must dispose of it quickly and if he did not it should be deemed to have been refused thus giving an opportunity to the aggrieved party to approach the Central Government to exercise its powers of revision under Rule 54.
Under Rule 55 the Central Government can call for the records from the State Government and after considering any comments made on the petition by the State Government or other authority, may confirm, modify or set aside the order or Pass such other order in relation thereto as the Central Government may deem just and proper.
It also provides for an opportunity to the 177 applicant to make his representation against the comments, if any, received from the State Government or other authority.
Thus the fact that the application for renewal is deemed to have been refused as a result of Rule 24(2) does not prohibit the Central Government from passing any order it may deem just and proper including an order granting renewal.
In this case the respondents did not file an application for renewal within two months of the Deputy Commissioner 's informing them that their application should be deemed to have been rejected, though that letter of the Deputy Commissioner itself was issued nearly nine months after their date of application.
Indeed they could have filed an application.
for revision when they failed to get a reply within 90 days of their application for renewal.
It means that it is the respondents that were not alert.
We can see nothing unreasonable in the order passed by the Central Government.
It has been mentioned in that order that after careful consideration of the facts stated in their review application it was rejected as being time barred.
The application to the Central Government preferred by the respondents contained all the facts.
The applications for revision have to be in form (L) appended to the Rules.
It has to specify the minerals for which the revision application is filed.
the details of the area in respect of which the revision application is filed and a map or plan for the area has also to be attached.
There is no reason to assume that the Central Government did not apply their minds to these facts.
We are unable to see how Rule 24 (3) and explanation to Rule 54 can be said to contravene the provisions of Section 8 of the Act.
They are within the rule making powers of the Government.
Clause (g) of Section 13 too enables the Government to make rules regarding the terms on which and conditions subject to which any prospecting licence or mining, lease may be granted or renewed.
It includes the power to make rules regarding conditions subject to which they may be refused.
We do not see how the provision of Rule 26, which lays down that 'where the State Government passes any order refusing to grant or renew a mining lease, it shall communicate in writing the reasons for such order militates against this conclusion.
In view of the provisions of Rule 24 and 54 the only reason which the State Government can give under Rule 26 is that because 90 days are over the application should be deemed to have been refused.
The High Court 's view that Rule 24(3) and the explanation to Rule 54 are in contravention of Section 8 is vitiated by its assumption that every order to be 'Passed on an application for renewal should be approved by the Central Government.
This is not correct.
Only renewal cannot be granted without the Central Governments approval and not rejection.
L631Sup CI/73 178 The only relevant decisions of this Court are reported in ; , Shivji Nathubhai vs Union of India & others and the, decision in C.A. No. 657 of 1967 dated 17 8 67.
In both of them it was held that the power of the Central Government under Rule 54 is a quasi judicial power.
They do not deal with the nature of the power exercised by the State Government in granting or refusing mining leases renewals thereof.
The decisions or in Seeta Ramaiah vs State of Andhra Pradesh(1) and Shivji Nathubhai vs Union of India(2) more or less take the same view of the matter as we have.
We do not feeld called upon to deal with the question whether as a result of the order passed by the Central Government there has been a merger and the application by the respondents before the High Court, which did not ask for setting aside the order of the Central Government, cannot succeed as that point was not taken before the High Court; nor it is necessary to deal with the question in the view that we have taken of this case in its other aspects.
In the result we hold that the High Court was in error in holding that Rule 24(3) and the explanation to Rule 54 of the Mineral Concession Rules 1960 are contrary to the provisions of the Act and should be struck down.
The appeal is allowed and the order of the High Court is set aside.
The respondents will pay the appellant 's costs.
S.B.W. Appeal allowed.
(1) A.I.R. 1963 A.P. 54.
(2) A.I.R. 1959 Punjab 510. | On 29 4 1942, a mining lease was granted by the Crown Representative to the father of the respondents for a period of 20 years to operate the coal.
mines.
The father died on 18 5 1961.
On 3 8 61, the respondents applied for renewal of the lease.
By his order dated 27 6 62, the Deputy Commissioner Khasi Jayantia Hills informed the respondents that the application for renewal must be deemed to have been refused.
On 22 10 1962.
the respondents filed a revision petition to the Central Government under Rule 54.
This was rejected on 8 2 1963.
On 7 5 63, the respondents filed a writ petition before the High Court for quashing the order dated 27 6 62 and for a writ of mandamus directing the renewal of the lease.
The High Court allowed the petition filed by the respondents holding that Rule 24(3) of the Rules under which the application by the respondents was deemed to have been rejected was unreasonable and ultra vires of Sec. 8 of the Act, and the deemed refusal of the application for renewal had no legal effect that the explanation to Rule 54 should also be struck down as repugnant to the main sections of the Act.
On appeal by special leave to this Court, HELD : (i) The Act and the Rules contained the complete code in respect of the grant and renewal of prospecting licence as well as mining lease in lands belonging to the Government, as well as the lands belonging to private persons.
The mining lease in question is in a land belonging to Government and it is for a mineral included in the First Schedule to the Act in respect of which no mining lea ,P. can be granted without previous approval of the Government.
Normally, the Government like any other owner of property is entitled to choose with WhoM it shall deal and what sort of a contract it will enter into, but being a public authority, its acts are necessarily regulated by certain Rules.
The Act and Rules in this case are intended to regulate the development of mines and minerals under the control of the Union an contained the provisions necessary for that purpose.
No person can claim as of right any lease or prospecting licence in any land belonging to Government or in any mines in anv lands belonging to Government except under and in accordance with the Act at the Rules or any right except these created or conferred by the Act.
[174G H] As a result of the provisions of Sections 19 and 20 of the Act, renewal of the lease granted to the father of the respondents is governed by Act and the Rules.
Rule 24(3) as amended.
has the effect that while the provisions regarding disposal within 90 days of an application for renewal still stands, provision for deeming it should have been 170 refused is no longer there.
The explanation to Rule 54 has two purposes : (i) to state the effect of the failure to dispose of the applications referred to in Rule 24 sub rule (1) and (2) within the periods specified within these sub rules as also (ii) to provide the starting point for the purpose of computing the period of two months within which an application for re vision under Rule 54 must be preferred.
[175D, G & 176A] (ii)There is nothing unreasonable in the order passed by the Central Government.
It has been mentioned in that order that after careful considerations of the facts stated in that review application, it was rejected as time barred.
The application to the Central Government preferred by the respondents contained, all the facts.
There is no reason to assume that the Central Government did not apply their minds to these facts.
[177 DE] (iii)Rule 24(3) and the explanation to Rule 54 cannot be said to contravene the provisions of Section 8 of the Act.
They are within the rule making powers of the Government and in view of the provisions of Rule 24 and 54, the only reason which the State Govt.
can give under Rule 26 is that because 90 days are over, the application should be deemed to have been refused.
The High Court 's view that Rule 24(3) and the explanation to Rule 54 are in contravention of Sec. 8 is vitiated by its assumption that every order to be passed on an application for renewal should be approved by the Central Government.
This is incorrect.
Only renewal cannot be granted with the Central Govt 's approval and not rejection.
[177 F H] Shivji Nathubhai vs Union of India & Others, [1960] 2S.C.R. 775, Supreme Court judgment dated 7 8 1967 in C.A. 657/67 distinguished.
Seeta Ramaiah vs State of Andhra Pradesh, A.I.R. 1963 A.P. 54, Shivaji Nathubhai vs Union of India, A.I.R. 1959 Punjab 510 referred to. |
minal Appeal No. 197 of 1972.
Appeal by special leave from the judgment and order date 24th day of February 1972, of the Delhi High Court in Cr.
Rev. No. 469 of 1970.
section C. Agarwala and A. K. Gupta for the appellant.
D. P. Bhandari and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by DUA, J.
This appeal by special leave is directed against the judgment and order of a learned single Judge of the High Court, of Delhi dated February 24, 1972 rejecting the appellant ' revision petition under sections 430 and 561 A of the Code of Criminal Procedure.
In that revision he had prayed, that the charge framed.
:against him by a Magistrate, First Class, New Delhi on July 3, 1969 under section 9 of the Punjab Security of State Act (Punjab Act No. 12), 1953 (hereinafter called the Act) be quashed.
The special leave petition originally came up for preliminary hearing before a bench of this, Court on August 18, 1972 when notice to show cause was issued.
On September 19, 1972 the hearing was again adjourned for a week to enable the petitioner 's counsel to file ' a writ petition.
It appears that no writ petition was filed but on September 26, 1972 this Court granted special leave on usual terms.
The appeal was also directed to be heard on the existing paper book with liberty to the parties to file such additional documents as they wished to file, from the record.
The appeal was directed to be listed for hearing in the second week 'of January, 1973.
Sometime in January, 1973 the appellant presented criminal miscellaneous petition No. 32 of 1973 seeking permission to urge additional grounds.
In that application the constitutional ' Validity of section 9 of the Act was questioned.
The said section, according to the averment in that Petition, 'infringes the fundamental.
, right of speech.
guaranteed under article 19(1) (a) of the Constitution.
It is alleged by the prosecution that the appeal ant had addressed a public meeting of the employees of the Defence Department on 535 October 9,,1968 and in the course of his speech he had incited the said employees to commit offences prejudicial to the security of the State, or to the maintenance of public order.
The Magistrate had, on perusal of the documents filed under section 1973, Cr.
P.C. framed a charge against the appellant punishable under section 9 of the Act.
According to the judgment of the High Court the offending portion of the speech which had been delivered in Hindi reads as follows : "There will be hunger strike at Chavan Sahib 's kothi No. 1 Race Course Road.
If Chavan Sahib thinks that they will be in position to crush us with the, assistance of C.R.P. and B.S.F. then that is his misunderstanding.
Chavan Sahib when the Britishers had to leave this country then the same military and police will push you out.
Because these children of military and.
police personnels are also hungry they also require bread for eating.
Therefore, the day has to come when after their unity these workers will send you out.
Comrades the Government suffered the moral death when it promulgated the ordinance.
Because we had no idea of starting any violance, when we demanded bread, clothes and house.
This struggle of ours will continue.
If Government servants die then other labourers.
will take this struggle ahead.
One thing more I want to tell you that if there will be no celebration of Diwali in the house of our fifty thousand people, then there shall be darkness in the houses of these ministers.
I want to tell you Chavan Sahib that if your repression continued in the same way, one Udham Singh will be born amongst these labourers who will not live you live as Udham Singh killed Dyre after going to London.
Annexures I and II attached to the petition under article 136 of the Constitution stated in para 4 thereof to be the English translation of the statements of the two police officers on the basis of which.
the charge sheet had been filed in court contained a couple of more ' sentences which do appear to be of some importance.
But we consider it unnecessary for our present purposes to refer to them.
The High Court, considered the part of the speech reproduced above and after referring to the decisions of this Court in State of Bihar vs Shrimati Shailbala Devi(1), Rain Manohar Lohia vs State of Bihar ( 2 ) and Sudhir Kumar Saha vs The Commissioner of Police(3) dismissed the revision holding that prima facie the remarks made by the appellant in his speech amounted to an offence under section 9 of the Act.
It was, however, added that it was open to the petitioner either by cross examination of the prosecution (1) A.I.R. 1952 S.C. 320.
(2) ; (3) ; 536 witnesses or by adducing evidence in defence to show that in the circumstances under which these remarks were made they did not amount to an incitement to an offence prejudicial to the security of the State or the maintenance of public order.
The High Court felt that at that stage it could not be said.that there was no prima facie case against the petitioner under section 9 of the Act.
In this Court Shri section C. Agarwal questioned the vires of section 9 of the Act, contending that this section is violative of the fundamental right guaranteed by article 1 0 ( 1 ) (a) of the Constitution.
No doubt, this point was not raised in the High Court and in this Court also it was specifically sought to be raised only in the subsequent applications presented in January, 1973 but as the speech in question was itself sought in para 5 of the petition for special leave to be protected by article 19(1) (a) and as it was a pure question of law raising the constitutionality of section 9 of the Act we permitted the counsel to raise it.
Section 9 of the Act reads "9.
Dissemination of rumours, etc.
Whoever (a) makes any speech, or (b) by words, whether spoken or written, or by signs or by visible or audible representations or otherwise publishes any statement, rumour or report, shall, if such speech, statement, rumour or report undermines the security of the State, friendly relations with foreign States, public order, decency or morality, or amounts to contempt of Court, defamation or incitement to an offence prejudicial to the security of the State or the maintenance of public order, or tends to overthrow the State, be punishable with imprisonment which may extend to three years or with fine or with both." This section on its own plain reading taken within its fold all the objectionable matters which had been taken by sub article (2) of article 19 out of the guaranteed freedom of speech and expression Protected by cl.
(a) of article 19(1).
In order to fully understand the freedom of speech and expression guaranteed by the Constitution it is necessary to reproduce article 19 (1) (a) and (2): Right to Freedom 19(1) AR citizens shall have the right (a) to freedom of speech and expression; (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the 537 State from making any law, in so far as such law imposes reasonable restriction on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence".
It may appropriately be pointed out here that sub article
(2) was amended in 1963 so as to include in the limitation contained therein reasonable restrictions in the interest of the sovereignty and integrity of India.
This limitation was not in this sub Article in 1953 but as it does not affect the question raised in this case we need say nothing more about it.
Reading section 9 of the Act and article 19(2) of the Constitution it is obvious that the only matter specifically contained in section 9 in addition to those stated in article 19(2) relate to the offending speech, words or other publications which "tends to overthrow the State".
Now this matter would clearly also fall within the sweep of the expression "incitement to an offence prejudicial to the security of the State" contained in section 9 and within article
19(2) where it speaks of "reasonable restrictions . in the interest of. the security of the State".
Anything tending to overthrow the State must necessarily be prejudicial to the security of the State and, therefore, a law can be made placing reasonable restrictions on the right of freedom of speech and expression in this respect in the interests of security of State.
Prima facie, therefore, section 9 clearly falls within the express language of article 19(2).
On behalf of the appellant great stress was laid on Superintendent of Central Jail, Fatehgarh vs Ram Manohar Lohia(1) where this Court struck down as unconstitutional section 3 of the U.P. Special Powers Act (U.P. Act 14 of 1932).
That section reads "3.
Whoever by word, either spoken or written or by signs, or by, visible representations or otherwise, instigates, expressly or by implication, any person or class of persons not to pay or to defer payment of any liability, and whoever does any act with intent or knowing it to be likely that any words, signs or visible representations containing such instigation shall thereby be communicated directly or indirectly to any person or class of persons, in any manner whatsoever, shall be punishable with imprisonment which may extend to six months, or with fine, extending to Rs. 250, or with both.
" On the face of its plain language this section is materially different from section 9 of the Act.
It therefore does not require.
elaborate argu (1) 538 ment for distinguishing this decision.
Section 3 of the U.P. Act is clearly hit by.
article 19 (1) (a) and can on no reasonable or rational argument be saved by article, 19(2).
There being absolutely no similarity between that section and section 9 of the Act with which we are concerned, the ratio of that decision cannot serve as a precedent for invalidating section 9 of the Act.
The appellant 's learned counsel then drew our attention to Kedarnath Singh vs State of Bihar (1) in which sections 12A and 505, I.P.C. were held to be in the interest of public order and within the ambit of constitutional limitations contemplated by article 19 ( 1 read with article 19 (2).
On analogy of section 124A as construed in than decision it was contended that in order to bring section 9 of the Act within the constitutional limits of article 19 (2) it must similarly be construed narrowly so that the fundamental, freedom of speech and expression is not 'unduly restricted.
The operation of section 9 of the Act, it was sub mitted, should be limited only to such matters as involve incitement to violence.
or intention or tendency to create public disorder or cause disturbance of public peace.
The fundamental right guaranteed by article 19 (1) (a) and the interest of public order protected by article 19 (2) according to Shri Agarwal 's submission, must be, properly adjusted and a correct balance struck between two.
In our opinion, the principle governing the construction of article 19 ( 1 ) (A) read with article 19 (2) is well crystallised by now in various decisions of this Court and it is unnecessary to cover the whole round over again by going through them extensively.
We of course agree with Shri Agarwal that the fundamental right guaranteed by article 19(1) (a) and the interest of public protected by article 79(2) must be.
properly adjusted and reasonable balance struck between the two.
There can be no dispute that there is no such thing as absolute of unrestricted freedom of speech and expression wholly free from restraint for that would amount to uncontrolled licence which would tend to lead to disorder and anarchy.
The right to freedom of speech and expression is undoubtedly a valuable and cherished right possessed by a citizen in our Republic.
Our governmental set up being elected, limited and responsible we need requisite freedom of animadversion, for our social interest ordinarily demands free propagation of views.
Freedom to think as one likes, and to speak as one thinks are, as a rule, indispensable to the discovery and spread of truth add without free speech discussion may well be futile.
But at the same time we can only ignore at our peril the vital importance of our social interest in, inter alia, public, order and security of our State.
It is for this reason that our Constitution has rightly attempted to strike a proper balance between the various competing social in (1) [1966] Supp. 2 S.C.R. 769.
539 terests.
It has permitted.
imposition of reasonable restrictions on the citizen 's right of freedom of speech and expression in the interest of, inter alia, public order, security of State, decency or morality and impartial justice, to serve the larger collective interest of the nation as a whole.
Reasonable restriction in respect of matters specified in article 19(2) are essential for integrated development on egalitarian, progressive lines of any peace loving ' civilised society.
Article 19(2) thus saves the constitutional validity of 9 of the Act.
The analogy between section 124A, I.P.C. and section 9 of the Act is wholly misconceived and in view of the comprehensive of article 19(2) 'we are unable to restrict section 9 of the Act only to those speeches and Expressions which.
incite or tend to incite Violence.
Learned counsel also tried to refer us to some American decisions for developing the argument that the guaranteed freedom of speech and expression should be broadly construed but we did not consider it necessary to go into the American decisions, notwithstanding the fact that in Express Newspapers (P.) Ltd. vs Union of India(1) it was observed that American decisions were relevant for the purpose of understanding the scope of article 19 (1) (a).
In our opinion, it is, hardly fruitful to refer to, the American decisions particularly when this Court has more than once clearly enunciated scope and effect of article 19 (1) (a) and 19 (2).
The test of reasonableness of the restriction has to be considered in each case in the light of the nature of the right infringed, the purpose of the restriction, the extent and the nature of the mischief required to be suppressed 'and the prevailing social and other conditions at the time.
There can be no abstract standard or general pattern of reasonableness.
Our Constitution provides reasonably precise, 'general guidance in this matter.
It would thus be misleading to construe it in the light of American decisions given in different context.
(Section 9 of the Act is, in, our view, plainly within the legislative competence of the Punjab Legislature and it would be for the court in which the appellant is being tried to decide as to how far the appellant 's speech is covered by this section.
Shri Agarwal made a strenuous effort to persuade us to cons true the offending portion of the speech as reproduced in the judgment of the High Court and express our opinion whether or not the charge against him has been lawfully framed.
The charge reads as under : "That you, on or about the 9th day of October, 1968 at 4.30 to 5.55 p.m. near the Railway Pathak in the area of Delhi Cantt.
made a speech at a public meeting organised by Delhi Defence employees in which you (1) 540 demanded or caused incitement to an offence prejudicial to the security of the State or the maintenance of public order and therein committed an offence punishable I under section 9 of the P.S. Act and within my cognizance.
" The appellant, it may be pointed out, had approached the sessions Court on revision to have this charge quashed.
That court apparently did not agree with the appellant.
He then approached the High Court on revision where also he failed.
The impugned judgment of the High Court does not show any serious legal infirmity resulting in failure, of justice which should induce this Court to interfere under article 136 of the Constitution.
The submission that.at this Court has already granted special leave we: must decide the question of the legality of the charge on the merits has not appealed to us.
Even at the final hearing of an appeal by special leave this Court has to apply the same test which is attracted at the preliminary stage, when the leave to appeal is asked for.
After leave the scope of the appeal is not enlarged and even at that stage the appellant cannot as of right claim adjudication on the merits 'if this Court feels that there is no grave injustice done to the appellant as a result of any serious legal, infirmity.
We are unable find any such infirmity in the impugned judgment.
The additional factor against our interference in this case in the interlocutory character of the order sought to be quashed.
We have, however, no doubt that the learned Magistrate trying the appellant 's case will deal with all the points raised before him oil the merits with,out being, influenced by the tentative view expressed by the High Court which the appellant himself invited.
We also hope that this case which relates to a speech said to have been delivered in October, 1968 and in, which the prosecution was initiated as far back as January, 1969 when the charge was put into court, would be disposed of with due dispatch and without avoidable delay.
This appeal fails and is dismissed.
S.B.W. Appeal dismissed. | The appellant was prosecuted under section 9 of the Maintenance of Punjab Security of State Act for addressing a public meeting in which it was alleged that he had incited the defence employees to commit offences prejudicial to security of the.
State or to, the maintenance of public order.
Sec. 9 of the Act prohibits speeches or statements etc.
which have effect of undermining the security of the.
State, friendly relations with foreign States, public order decency or :morality or which amount to contempt of court, defamation or.
incitement to an offence prejudicial to the security of the State or the maintenance of public order or which tends to over throw the State.
On perusal of the documents filed section 173 of the Cr.
P.C., the Magistrate cam to the conclusion that the prima facie case was established.
The appellant unsuccessfully challenged the said interlocutory order before the Sessions Court and then in the High Court.
On appeal by special leave, the appellant raised the question.
of constitutional validity of Sec. 9 of the Act.
The appellant contended : (i) that Sec. 9 of the Punjab Security of State Act was violative of the fundamental right guaranteed under article 19(1) (a) of the Constitution, and (ii) in the alternative, the operation of Sec. 9 should be limited only to such matters as involve incitement to violence or intention or tendency to create public disorder or cause disturbance to public peace.
In dismissing the appeal.
HELD : (i) Except the words "tends to over throw the State" the rest of the provisions of Section 9 reproduce the provisions of article 19(2) of the Constitution.
The prohibition relating to offending speech, wods or the other publications which tend to over throw the State clearly fall within the sweep of the expression "incitement to an offence prejudicial to the security of the State".
Restriction, therefore, is.
Prima facie reasonable restriction.
[537 C E] Superintendent of Central fail, Fatehgarh vs Ram Manohar Lohia , distinguished on facts.
(ii) Reasonable restrictions in respect of matters specified in article 19(2) are essential for integrated development on egalitarian.
progressive lines of any peace loving civilised society.
article 19(2) thus saves the constitutional validity of Sec. 9 of the Act.
The analogy between s.124(1)IPC and Sec.
9 of the Act is wholly misconceived and in view of the comprehensive sweep of article 19(2).
Sec. 9 of the Act cannot be restricted to those speeches and expressions which incite or tend to incite violence only.
Sec. 9 cannot be interpreted in a restricted L 761 SupCI/73 534 manner Sec.
124(1)IPC was interpreted in Kedarnath Singh vs State of Bihar [1966 Supp. 2 S.C.R. 7691] [539 A C] (iii) The Supreme Court may allow the question of law effecting the constitutional validity of an Act for the first time to be 'raised in Supreme Court.
In an appeal by special leave under article 136 of the Constitution, the scope, of the appeal is not enlarged after leave and the appellant cannot as of right claim adjudication on merits.
The, Court would not pronounce its opinion on the merits of the charge framed against the appellant.
[540 C E] |
iminal Appeals Nos.
161 to 163 of 1970.
Appeals by certificate from the.
judgment and order dated May 23, 1969 of the Assam and Nagaland High Court at Gauhati in Cr.
Rev. Nos. 36, 39 and 46 of 1968.
82 0 D. Mookherjee, Avtar Singh, G. Das, section P. Nayar and R. N. Sachthey, for the appellant.
Nuruddin Ahmad and N. N. Keswani, for the respondent.
Harbans Singh, for the respondents.
V. M. Tarkunade, A. L. Arora and D. D. Sharma, for the respondent.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
Two of the appellants, Major Lala and Lt. Col. Khanna are Army officers and the appellant in the 3rd appeal, Gupta, is a businessman of Gauhati.
All of them were put up for trial before the Special Judge appointed under the Criminal Law Amendment Act 1952.
One charge which was ,common to all the three of them was that between June 1962 and January 1963 all of them agreed to commit or cause to be committed offences under section 5(2) of the Prevention of Corruption Act, and of cheating punishable under section 420 of the Indian Penal Code, and these offences having been committed in pursuance of a conspiracy were punishable under section 120B of the Indian Penal Code read with section 5 (2) of the Prevention of Corruption Act and section 420 I.P.C. Mr. Gupta, the businessman was charged under section 420 I.P.C. as well as section 511 read with section 420 I.P.C.
The two Army officers were also charged with offences under section 420 read with section 5 (1) (d) of the Prevention of Corruption Act.
The case was filed before the Special Judge on 28 6 1963 and the charge was framed on 13 2 65.
After about 18 out of the 52 witnesses cited by the prosecution had been examined the three respondents filed petitions under section 561A read with section 439 of Code of Criminal Procedure before the High Court of Assam & Nagaland on 28 3 68, 1 4 68 and 10 4 68 respectively for quashing the charges.
A learned Single Judge allowed these petitions on 23 5 1969 and quashed the charges and the proceedings before the learned Special Judge.
He did this on three grounds (1) that the officer who investigated the case was not competent to do so; (2) that the offences that were being tried were noncognizable and the Special Judge could not have taken cognizance of them without sanction under section 196A of the Code of Criminal Procedure, and (3) that in view of the enormous length of time between 2 2 63, the date on which the case was 821 registered and 1 4 68, upto which date some witness had been examined, the last witness having been examined on 15 1 67, it entailed undue harassment to the accused persons and the proceedings have to be quashed to prevent further harassment, abuse of the process of the court and vexation to the accused persons.
These three appeals have, therefore, been filed by the Union of India by certificate granted by the High Court.
We shall first of all deal with the question whether the officer who investigated into these cases was not properly authorized to do so.
The officer was an Inspector of the Delhi Special Police Establishment.
Under section 5A of the Prevention of Corruption.
Act, before it was amended in 1964, no officer below the rank of the Deputy Superintendent of Police could investigate into offences punishable under sections 161, 165 and 165A of the Indian Penal Code or under section 5 of the Prevention of Corruption Act without the order of a Presidency Magistrate or a Magistrate of the First Class.
In this case the Inspector concerned had obtained the order of the First Class Magistrate of Tezpur.
The argument before the High Court, which was accepted by the learned Judge, was that as the offences of conspiracy were alleged to have been committed both at Tezpur as well as at Gauhati, the investigation based on the order of the Tezpur Magistrate alone was not a proper one.
In other words, the argument was that unless the Inspector had been authorized to investigate not only by the First Class Magistrate of Tezpur but also by the First Class of Gauhati district, he could not have done so.
The learned Judge referred to and relied upon the decision in Chinnappa vs State of Mysore(1).
It was decided in that case that any First Class Magistrate appointed in a district can issue orders under section 5A of the Prevention of Corruption Act for investigation of a case.
From this the learned Single Judge drew the conclusion that in respect of an offence said to have been committed at Gauhati as well as at Tezpur the order of the Tezpur Magistrate was not enough.
He also relied upon the decision of the High Court of Assam and Nagaland in Chatterjee vs Delhi Special Police Establishment ( 2 ) .
This decision has been upheld by this Court in Union of India vs B. N. Ananthapadmanabhiah(3).
But that was a case of a Delhi Magistrate sanctioning an investigation of offences committed in Assam and it was held that such an order was not valid.
That decision is.
no authority for the proposition that where an offence is committed in more than one place the order of every Magistrate within whose.
jurisdiction the offence or part of the offence was committed was necessary in order to (1) A. I. R. (2) I. L. R. 1969 Assam & Nagaland 275.
(3) A. I. R. 822 enable the investigation to be carried on.
All that is necessary is that the Magistrate who makes the order under section 5A should have territorial jurisdiction over the place where any part of the ingredients of the offence took place.
That criterion is amply satisfied in this case.
On principle also such a contention seems to be devoid of any substance.
The offence of conspiracy or for that matter any other offence might consist of a series of acts and incidents spread over the whole country.
Very often one conspirator or one of the offenders might, not have even met the other conspirator or offender.
To accept this contention would be to hold that the Police should go to every Magistrate within whose jurisdiction some part of the conspiracy or one of the ingredients of the offence has taken place.
We have no hesitation in rejecting it.
He also seemed to have had some doubt as to whether the order of the Magistrate of Tezpur produced before him was a genuine one.
To say the least, the attitude of the learned Judge is most surprising.
To put it in his own words : "It does not appear that any order of a Magistrate form part of the record.
But at the time of hearing, such an order was placed before me on behalf of the Prosecution.
The application on which the order is said to have been passed by the Magistrate appears to have been addressed to the Court of the Magistrate first class at Tezpur, wherein it was stated that for preoccupation of the Deputy Superintendent of Police, the investigation was sought to be made by an Inspector (A Police.
The petition is unnumbered undated.
What appears curious is that although the application was made before a Magistrate of the first class, the order passed is supported by a seal of the District Magistrate, Darrang.
The order of the Magistrate runs as follows : "Paper and F.I.R. seen.
Shri H. B. D. Baijal, Inspector is permitted to investigate the case.
" There is an illegible signature with date 4 2 63 and below the signature the official designation has not been stated.
It appears that no order sheet of the Magistrate has been produced in this regard and in above circums tances, it cannot be unequivocally said that this document wag obtained in due course of business in compliance with section 5A of the Prevention of Corruption Act.
Even assuming that the order is free from doubt, learned counsel appearing for the petitioners has urged before me that since the venue of the offences has been clearly stated in the charge, the permission given by the Magistrate for investigation of the offences at Gauhati is not valid." 8 23 If he had any doubts about the genuineness of the order of sanction it was his duty to have gone into the matter thoroughly and satisfied himself whether the order was genuine, or not.
It was his duty to have given a categorical finding regarding the matter.
There should have been no room allowed for any doubt or suspicion of any underhand dealing and unfair conduct in a matter of this kind.
It was even alleged on behalf of the, respondents that an order was produced for the first time before the learned Judge and it was taken back by the prosecution.
If that was so it proves a woeful lack of care on the part of the learned Judge.
He should have retained the order on file and called for the necessary records and information in order to find out whether the order was a genuine one or not.
We have before us the order of the Superintendent of the Special Police Establishment dated 2 2 63 entrusting the investigation to Inspector Baijal and directing him to obtain the necessary permission from a competent Magistrate for doing so.
We have also been shown the papers relating to the prosecution, papers given to the accused under section 173 of the Code of Criminal Procedure.
Item 71 of those papers relates to the order of sanction dated 4 2 1963 given by the Magistrate of Tezpur authorizing the Inspector of the S.P.E. to investigate.
Thus, there is no doubt at all that Inspecor Baijal had been authorized to investigate into, this case.
It only shows rather superficial way the learned Judge chose to deal with this matter.
The next question is whether offences under section 161, 165 and 165A of the Indian Penal Code and section 5 (2) of the Prevention of Corruption Act are cognizable or non cognizable offences.
This becomes important for the purpose of deciding whether a sanction under section 196A is necessary.
The sanction necessary under section 6 of the Prevention of Corruption Act and section 197 of the Code of Criminal Procedure has been accorded by the Government of India.
What was contended by the respondents before the, High Court and was accepted by that Court was that these offences being non cognizable offences a sanction under section 196A(2) is necessary and that prosecution without such sanction is bad.
Cognizable offence is defined in section 4(1) (f) of the Code of Criminal Procedure as an offence for which a police officer, within or without the presidency towns, may in accordance with the second schedule, or under any law for the time bring in force, arrest without warrant.
The argument which appealed to the learned Judge of the High Court was that as under section 5A of the Prevention of Corruption Act no officer below the rank of Deputy Superintendent of Police could investigate or make any arrest without a warrant in respect of offences punishable under section 161, 165 or 165A I.P.C. and section 5 of the Prevention of Corruption Act, they were not offences for which any police officer can arrest without warrant, and therefore, 824 they are not cognizable offences.
The same argument was repeated before this Court 'by Mr. Tarkunde, emphasising that "a police officer" means "any police officer" and as any police officer cannot, under section 5A of the Prevention of Corruption Act, arrest without warrant but only officers of and above the rank of Dy.
Superintendent, the offences mentioned in that section are noncognizable offences.
If we pursue the same line of argument and look at the definition of non cognizable offence in section 4(1) (n) which defines non cognizable offence as an offence for which a police officer, within or without a Presidency town, may not arrest without warrant, it might mean that as these are cases where i police officer of the rank of Dy.
Superintendent and above can arrest without warrant these are not non cognizable offences either.
How can there be a case which is neither cognizable nor cognizable ? It was sought to be argued that these offences would 'be cognizable offences when they are investigated by the Deputy Superintendents of Police and superior officers and non cognizable when they are investigated by officers below the rank of Deputy Superintendents.
We fail to see how an offence would be cognizable in certain circumstances and non cognizable in certain other circumstances.
The logical consequences of accepting this argument would be that if the offences are investigated by Deputy Superintendents of Police and superior officers no sanction under section 196A(2) would be necessary but sanction would be necessary if they are investigated by officers below the rank of Deputy Superintendents of Police.
One supposes the argument also implies that the fact that an officer below the rank of a Deputy Superintendent is authorized by a Magistrate under the provisions of section 5A would not make any difference, to this situation.
We, do not consider that this is a reasonable interpretation to place.
Under Schedule It of the Code of Criminal Procedure offences under sections 161 to 165 of the Indian Penal Code are shown as cognizable offences.
At the end of that Schedule offences punishable with death, imprisonment for life or imprisonment for 7 years and upwards are also shown as cognizable offences.
Under section 5 (2) of the Prevention of Corruption Act the sentence may extend to seven years.
Therefore, an offence under section 5 of the Prevention of Corruption Act is according to the provision in Schedule II to the Code of Criminal Procedure a cognizable offence.
Therefore, the mere fact that under the Prevention of Corruption Act certain restrictions are placed as to the officers who are competent to investigate into offences mentioned in section 5A would not make those offences any the less cognizable offences.
Tile words "notwithstanding anything contained in the Code of Criminal Procedure" found at the beginning of section 5A(1) merely carve out a limited exemption 'from the provisions of the Code of Criminal Procedure in so far as they limit the class of persons who 82 5 are competent to investigate into offences mentioned in the section and to arrest without a warrant.
It does not mean that the whole of the Code of Criminal Procedure.
including Schedule II thereof, is made inapplicable.
Under section 5 of the Code of Criminal Procedure all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions therein contained.
Also, all offences under any other law (which would include the Prevention of Corruption Act) shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions but subject to any enactment for the time bring in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing, with such offences.
Section 5A of the Prevention of Corruption Act should be related to this provision in section 5 (2) of the Code of Criminal Procedure, which limits the application of the provisions of that Code to be subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
The only change which section 5A of the Prevention of Corruption Act makes is with regard to officers competent to investigate and arrest without warrant; in all other respects the Code of Criminal Proce dure applies and, therefore, there is no doubt that all offences mentioned in section 5A of the Prevention of Corruption Act are cognizable offences.
The Assam High Court seems to have taken a line of its own in this matter.
In G. K. Apte vs Union of India(") curiously enough the Bench, of which the learned Judge who dealt with this case was a member, took the view that though an offence under section 161 is a cognizable offence, if investigations were made under section 156 of the Code of Criminal Procedure there would be no need for a sanction under section 196A of the Code of Criminal Procedure, and there can be a conviction under section 161 of the Indian Penal Code, but if the investigation is made under section 5A of the Prevention of Corruption Act it will be an investigation into a non cognizable offence and there should be a sanction under section 196A for the trial following such investigation.
For this conclusion the decision of this Court in H. N. Rishbud & Inder Singh vs The State of Delhi (2) was relied upon.
We can see nothing in that case to support this conclusion.
Nor are we able to see how if the investigation into an offence of misconduct punishable under section 5(2) is done by a police officer of high rank the offence is cognizable and if investigated by ail officer of a lower rank it is non cognizable.
That cannot be a proper criterion for deciding whether an offence is cognizable or non cognizable.
Unless there are clear and compelling reasons (1) A.I.R 1980 Assam & nagaladd 43.
(2) A. I. R. 5 L797Sup.
C. 1./73 826 to hold otherwise the division of offences given in the Code of Criminal Procedure as cognizable and non cognizable should be given effect to.
When the same Code makes sanction under section 196A necessary for trial of non cognizable offences it clearly contemplates non cognizable offences as defined in the Code.
There is no justification for relying upon extraneous considerations and far fetched reasoning in order to get over the effect of these provisions.
We may now refer to certain decisions of various High Courts on this point.
In Taj Khan vs The State(") it was held "The fact that the power to investigate or to arrest without warrant has been circumscribed by certain conditions (which conditions were clearly provided for the purpose of safeguarding public servants from harassment at the hands of subordinate police officers) under the proviso.
to section 3 of the said Act cannot lead to the conclusion that such offence is non cognizable." In Ram Rijhumal vs The State ( 2) it was held : "The provisions of section 3, Prevention of Corruption Act can only have one meaning, and the meaning is that an offence under section 165A of the Penal Code has to be deemed to be a cognizable offence for the purpose of ,the Code of Criminal Procedure.
It is only because the Legislature enacted section 5 A of the Prevention of Corruption Act that, so far as the Presidency town of Bombay was concerned, no police officer below the rank of a Superintendent of Police could in the case of an offence under section 165 A of the Penal Code, investigate it without the order of a Presidency Magistrate.
There is nothing in the language of section 5 A which would suggest that an offence under section 165 A of the Penal Code is not to be treated as a cognizable offence." In Gulabsingh vs State() it was held that "offence under section 161, I.P.C. is a cognizable offence.
Its nature is not Affected by either section 3 or section 5A of the Prevention of Corruption Act.
The requirement that in a cognizable offence, a police officer should be able to arrest without warrant, is without any limita tion and section 5A cannot be split.
up to mean that an offence can be cognizable in reference to one officer and not in reference to another." (1) A. I R. (2) A. I R. 1958 Bombay 125.
(3) A.
I R. 1962 Bombay 263.
8 2 7 The learned Judges specifically dissented from the decision in Union of India vs Mahesh Chandra(").
In Public Prosecutor vs Shaik Sheriff (2) it was held that "these offences cannot be treated as non cognizable offences when investigated by an officer below the rank of Deputy Superintendent of Police simply on the ground that such investigation cannot be done without the order of a Presi dency Magistrate or a Magistrate of the First Class.
In the same way, offences under section 5 of the Act cannot be treated as non cognizable even when investigated by a low rank officer.
Thus, the provision in section 5A is of the nature of a special provision which applies to offences specified therein which are cognizable offences including those under section 5 under all circumstances.
" They also referred to the decision in Union of India vs Mahesh Chandra (supra) to the effect that an offence under section 161 I.P.C. and under sub.
section 2 of section 5, Prevention of Corruption Act is cogni zable so far as officers of the rank of a Deputy Superintendent of Police and above are concerned, but so far as the officers below the rank of Deputy Superintendent of Police are concerned the said offences are non cognizable in so far as they cannot investigate them without the permission of a Magistrate of ' the First Class, and held that : "the learned Judges only intended to emphasise the provision in S.5 A and chose to refer to it as a non cognizable aspect of the offences comprised in the Act and to describe that aspect also as non cognizable for the limited purpose of the provision in section 5 A." Thus, the preponderance of opinion of the various High Courts is in favour of the view we are taking.
We are, therefore, clearly of opinion that the offences under sections 161, 165 and 165A of the Indian Penal Code and section 5 of the Prevention of Corruption Act are cognizable offences and there is no question of their being cognizable if investigated by a Deputy Superintendent of Police and non cognizable when investigated by an Inspector of Police.
Nor can there be any question of those offences being cognizable if they are investigated under section 156 of the Cr.
P.C. but not when investigated in accordance with the provisions of section 5A of the Prevention of Corruption Act.
The question, therefore, of the need for a sanction under section 196A does not arise.
Consequently, the need to order re investigation or to begin the trial again after the sanction under section 196A is obtained, and the consequent inordinate delay and harassment of the officers concerned, reasons that weighed with the learned Single Judge for quashing the charges, does not arise.
It may incidentally be mentioned that the respondents took nearly three years before they moved the High (1) A. 1.
R. 1957 Madhya Bharat 43.
(2) A. 1.
R. 828 Court for quashing the charges and are, thus, to a considerable extent responsible for the delay.
On behalf of Mr. Gupta it was argued that he cannot be tried along with the two Army officers.
Under section 6 of the Criminal Law Amendment Act 1952 the Special Judge may try any conspiracy to commit or any attempt to commit or any abetment of any of the offences punishable under section 161, 165 or 165A of the Indian Penal Code or sub section (2) of section 5 of the Prevention of Corruption Act, and under sub section(3) of section 7 of the same Act a special judge, when trying any case, may also try any offence other than an offence specified in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial.
Under section 235 of the Code of Criminal Procedure if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence, and under section 239 persons accused of the same offence committed in the course of the same transaction, as well as persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence, may be charged and tried together.
In The State of Andhra Pradesh vs Kandimalla Subbaih & Anr.(1) this Court observed : "No doubt, the offence mentioned in charge No. 1 is alleged to have been committed not by _just one person but by all the accused and the question is whether all these persons can be joint tried in respect of all these offences.
To this kind of charge section 239 would apply.
This section provides that the following persons may be charged and tried together, namely : (1) persons accused of the same offence committed in the course of the same transaction; (2) persons accused of an offence and persons accused of abetment or an attempt to commit such an offence; (3) persons accused of different offences committed in the course of the same transaction.
Clearly, therefore, all the accused persons could be tried together in respect of all the offences now comprised in charge No. 1.
" In that case the first accused was a public servant and the other accused were private individuals to whom the first accused was alleged to have sold transport permit books intended to be issued (1) 829 to Central Excise Officers for granting permits to persons applying bona fide for licences to transport tobacco.
This Court also pointed out that "sub section
(3) of section 7 provides that when trying any case, a special judge may also try any offences other than an offence specified in section 6 with which the accused may under the Code of Criminal Procedure, 1898 be charged at the same trial, and clearly, therefore, accused No. 1 could be tried by the Special Judge for offences under section 120B read with sections 466, 467 and 420 J.P.C., and similarly the other accused who are, said to have abetted these offences could also be tried by the Special Judge.
" There is, therefore, no objection to Mr. Gupta being tried along with the two Army officers.
Though in the revision petitions filed before the High Court the question as to whether on the evidence produced before the Special Judge the offences with which the respondents had been charged could be said to have been prima facie established, was raised, the learned Single Judge has not dealt with that question apparently because it was not argued before him.
We do not, therefore, propose to say anything about the merits of the case.
It is not necessary to refer to the, decision in Madan Lal vs state of Punjab(1) and Bhanwar Singh vs Rajasthan(2) which are relied upon on behalf of the appellants in the view that we have taken that all the offences with which the, accused are charged are cognizable offences, and therefore, the question whether charges which require sanction under s, 196A could be tried alongwith charges which did not require such sanction and the entire charges are vitiated for want of sanction, as held by the learned Single Judge, does not arise.
The appeals are allowed and the order of the learned Single Judge is set aside.
The Special Judge will now proceed to deal with the cases and dispose of them as expeditiously as possible as the matter has been pending for a long time.
V.P.S. Appeals allowed. | Two army officers and a businessman were put up for trial before the Special Judge under the Criminal Law Amendment Act, 1952.
They were all charged with offences of conspiracy under section 120B, I.P,.
C. read with section 5(2) of the Prevention of Corruption Act and section 420 I.,P.C. The businessman was charged under s.420 and sections 420 and 511, I.P.C.
The two army officers were also charged with the offences under section 420 I.P.C. read with section 5(1)(d) of the Prevention of Corruption Act.
After some witnesses were examined by the prosecution, on a petition by the three accused, the High Court quashed the charges and the proceedings on the grounds, (1) that the officer who investigated the case was not competent to do so; (2) that the offences were non cognizable and hence the Special Judge could not take cognizance of them without sanction under section 196A, Cr.
P.C.; and (3) in view of the enormous length of time that elapsed between the date the registration of the case and the examination of the witnesses (about 4 1/2 years), to proceed further with the case would be an abuse of the process of Court causing harassment to the accused.
Allowing the appeal to this Court, HELD : (1) (a) Under section 5A of the Prevention of Corruption Act, before it was amended in 1964, no officer below the rank of Deputy Superintendent of Police could investigate into offences punishable under Ss. 161, 165, 165A I.P.C., or under section 5 of the Prevention of Corruption Act, without the orders of a Presidency Magistrate or the Magistrate First Class.
Where an offence is committed in more than one place the order of every Magistrate within whose jurisdiction the offence or part of the offence was committed was not necessary to enable the investigation to be carried on.
All that is necessary is that the Magistrate who makes the order under section 5A should have territorial jurisdiction over the place where any part of the offence took place.
In the present case, the offence of conspiracy was alleged to have been committed both at Tejpur as well as at Gauhati and the Inspector concerned had obtained the order of the First Class Magistrate, Tejpur.
[821H; 822A C] Chinnappa vs State of Mysore, A.I.R. , Chatterjea V. Delhi Special Police Establishment I.L.R. 1969 Assam and Nagaland 275 and Union of India vs B. N. Ananthapadmanabbiah, A. I.,R. , referred to.
(b) The High Court expressed doubt whether the order of the Magistrate of Tejpur was a genuine one.
If he had any such doubt it was the duty of the Judge to have gone into the matter thoroughly and satisfied 819 himself whether the order was genuine or not, and given a categorical finding on the matter.
There should have been no room allowed for any doubt, or suspicion of any underhand dealing or unfair conduct, in a matter of this kind.
[823A C] (2) Under Schedule 11 of the Criminal Procedure Code offences under Ss. 161 to 165, I.P.C. and offences punishable with imprisonment for life or imprisonment of 7 years and upwards are shown as cognizable offences.
Under section 5(2) of the Prevention of Corruption Act the sentence may extend to 7 years.
Therefore, an offence under section 5 of the Prevention of Corruption Act is a cognizable offence.
The words 'notwithstanding anything contained in the Code of Criminal Procedure, in the section merely carve out a limited exemption from the provisions of Criminal Procedure Code in so far as they limit the class of persons who are competent to investigate, and to arrest without a warrant.
The mere fact that under the Act certain restrictions are placed as to the officers who are competent to investigate into the offences mentioned in section 5A would not make those offences any the less cognizable.
Therefore, the offences under section 161, 165 and 165A of the I.P.C. and section 5, Prevention of Corruption Act, are cognizable offences and there is no question of their being cognizable if investigated by a Deputy Superintendent of Police and non cognizable when investigated by an Inspector of Police; nor can there be any question of these offences being cognizable if investigated under section 156, Cr.
P.C. but not when investigated under section 5A, Prevention of Corruption Act.
It is illogical to say that offences would be cognizable in certain circumstances and non cognizable in certain other circumstances.
Therefore, the reed for a sanction under section 196A, Cr.
P.C. does not arise.
[824A H; 825A D; 827] Union of India vs B. N. Ananthapadmanabhiah, A.I.R. , Union of India vs Mahesh Chandra, A.I.R. 1957 Madhya Bharat 3 and Public Prosecutor vs Sheikh Shariff, A.I.R. 1965 A.P. 372, referred to.
Taj Khan vs The State, A.I.R. , Ram Bijhumal vs The State, A.I.R. 1958 Bombay 125 and Gulabsingh vs State, A.I.R. 1962 Bombay 263, approved.
G. K. Apte vs Union of India, A.I.R. 1970 Assam & Nagaland 43, disapproved.
(3)The need to order re investigation or to begin the trial again after the sanction under section 196A is obtained, and the consequent inordinate delay and harassment of the officers concerned, do not arise at all.
Hence, there is no question of quashing the charges on that ground.
[827G H] (4) Under section 6 and 7(3) of the Criminal Law Amendment Act, 1952, and Ss. 235 and 239, Cr.
P.C. the businessman (private individual) and the two army officers, (public servants) could be tried together.
[829A C] The State of Andhra Pradesh vs Kandimalla Subbaiah & Anr. , followed. |
iminal Appeal.
No. 44 (N) of 1970.
Appeal by special leave from the judgment and order dated December 2, 1969 of the Punjab & Haryana High Court in Criminal Revision No. 612 of 1968.
section K. Dhingra, for the appellant.
Harbans Singh and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by MATHEW, J.
The appellant was charged by the Chief Judicial Magistrate, Sangrur, with an offence under section 9(a) of the Opium Act.
He was found guilty of the offence and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 2,000/and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months.
The appellant appealed against the decision to the Sessions Judge, Sangrur.
He dismissed the appeal.
The appellant filed a criminal revision before the High Court against the order of the Sessions Judge.
The revision was also dismissed.
This appeal, by special leave, is from the judgment of the High Court.
The case against the appellant was as follows.
The appellant presented Railway Receipt No. 641154 dated September 22, 1967, for consignment of a parcel of apples purporting to be from one Uchara Das of Solan to one Sham Lal of Dhuri and endorsed to him by the consignee, to the parcel clerk at the Railway Station, Dhuri, and got delivery of the consignment.
Head Constable Shiv Ram Singh got 217 secret information at the Railway Station Dhuri that there was opium in the consignment.
He organised a raid with the help of Pritam Singh and Mohinder Singh and stood in front of the parcel office under the bridge.
While the accused was carrying the parcel, the Head Constable intervened and questioned him.
The parcel was thereafter opened and it contained 4,350 gms. of opium along the apples.
The opium was seized and its samples were put in separate containers and sealed with the seal of the Head Constable.
When the report was received that the sample was opium, the appellant was challaned.
The prosecution examined Pritam Singh (PW 1), Bal Mukand, Parcel Clerk (PW 2), Mohinder Singh, Luggage Porter (PW 3), Ramji Dass, Octroi Moharrir (PW 4) and Shiv Ram Singh,.
Head Constable (PW 5).
PW 1, PW 3 and PW 4 did not support the prosecution c se.
But on the evidence of the parcel clerk (PW 2) and the Head Constable (PW 5), it was found by the, Judicial Magistrate that the appellant was in actual possession of opium and has committed an offence under section 9 of the Act.
This finding was confirmed in.
appeal and also in revision.
The question is whether the conviction of the appellant on basis of this finding for an offence under section 9(a) was justified.
Sections 9 and 10 of the Opium Act provide : "9.
Any person who, in contravention of this Act, or of rules made and notified under section 5 or section 8, (a) possesses opium, or (b) transports opium, or (c) imports or exports Opium, or (d) sells opium, or (e) omits to warehouse opium, or removes or "does any act in respect of warehouse opium, and any person who otherwise contravenes any such rule, shall, oil conviction before a magistrate, be Punishable for each such offence with imprisonment which may extend to three bears, with or without fine; and, where a fine is im posed, the convicting magistrate shall direct the offender to be imprisoned in default of payment of the fine for a term Which may extend to six months, and such imprisonment shall.
be in excess of any other imprisonment to which he may have been sentenced.
In prosecutions under section 9, it shall be presumed, until the contrary is proved, that all opium for which the accused person is unable to account satisfactorily is opium in respect of which be has committed an offence under this Act.
" It was argued that unless otherwise provided, it must be presumed that the legislature will not make an act an offence unless it is accompanied by mens rea.
In Brend vs Wood(1) Lord Goddard, C.J. said "It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind, that, unless a statute, either clearly or by neces (1) 218 sary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind." In Sherras vs De Rutzen(1) it was held that section 16(2) of the Licensing Act, 1872, which prohibits the supplying by a licensed person of liquor to a constable on duty, did not apply where the licensed person bona fide believed that the constable was off duty.
Wright, J. said at p. 921 : "There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered : Nichols vs Hall See also the decision Sweet vs Paraley(2) Normally, it is true that the plain ordinary grammatical meaning of the words of an enactment affords the best guide.
But in cases of ,this kind, the question is not what the words mean but whether there are sufficient grounds for inferring that Parliament intended to exclude the general rule that mens rea is an essential element in every offence.
And, the authorities show that it is generally necessary to co behind the words of the enactment and take other factors into consideration.
So, in the context it is permissible to look into the object of the legislature and find out whether, as a matter of fact, the legislature intended anything to be proved except the possession of the article as constituting the element of the offence.
Even if it be assumed that the offence is absolute, the word 'possess ' in section 9 connotes some sort of knowledge about the thing possessed.
So we have to determine what is meant by the word 'possess ' in the section.
The question is whether the possessor of a parcel is necessarily in possession of everything found in it.
The, word 'possess ' is not crystal clear.
There is no clear rule as to the mental element required.
In Reg.
vs Ashwell(3) it was held that a person who received a sovereign thinking it to be a shilling cannot be said to possess 'he sovereign until the mistake was discovered.
It is necessary to show that the accused had the article which turned out to be opium.
In other words, the prosecution must prove that the accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it.
It is not necessary to show in fact that he had actual knowledge of that which he had (see the observations of Lord Morris in Reg.
vs Warner ( 4 ).
Lord Justice Parker said in Lockyer vs Gib (5): "In my judgment it is quite clear that a person cannot be said to be in possession of some article which he or she (1)IQ.
B. 918.
(2) (3) (4) , 289.
(5) , 248.
219 does not realise, is, for example, in her handbag, in her room, or in some other place over which she has control.
That I should have thought is elementary; if something were slipped into your basket and you had not the vaguest notion it was there at all, you could not possibly be said to be in possession of it." In Reg.
vs Warner(1), the House of Lords was concerned with the question whether the appellant there was in unauthorised possession of a scheduled drug and it was held that it is not necessary to prove mens rea apart from the knowledge involved in the possession of the article.
Lord Reid dissented.
The majority decision would show that in a case of this nature, it is not necessary for the prosecution to prove that the accused had consciousness of the quality or the nature of the thing possessed and that it would be sufficient if it is proved that a person was knowingly in possession of the article.
Lord Morris of Borth y Gest said : "Must the prosecution prove that an accused had a guilty mind ? It is a declared purpose of the Act to prevent the misuse of drugs.
If actual possession of particular substances which are regarded as potentially damaging is not controlled there will be danger of the misuse if Them by those who possess them.
They might be harmfully used; they might be sold in most undesirable ways.
Parliament set out therefore to 'penalise ' possession.
That was a strong thing to do.
Parliament proceeded to define and limit the classes and descriptions of people who alone could possess.
All the indications are that save in the case of such persons Parliament decided to forbid possession absolutely".
We think that the only question for consideration here is whether the appellant was in possession of opium.
It was held in a number of rulings of the various High Courts that if possession of an article is made an offence, then there must be proof that the accused was knowingly in possession of the article.
gee the decisions in Emperor vs Santa Singh(2), Sahendra Singh vs Emperor(3), Abdul Ali vs The State(4), Pritam Singh and Others vs The State(5) and Sub Divisional Officer and Collector, Shivasagar vs Shri Gopal Chandra Khaund and Another(6).
It is true that prosecution has not adduced any evidence to show that the appellant was knowingly in possession of 'opium.
The appellant took the endorsement of the Railway Receipt from the consignee, and presented it before the parcel clerk and obtained the parcel.
(1) (2) A. I. R. 1944 Lahore 339.
(3) A. I. R. 1948 Patna 222.(4) A. I. R.1950 Assam 152.
(5) (6) A. I. R. 22 0 There is, strictly speaking, no evidence that the appellant was aware that the parcel contained any contraband substance, much less opium.
But it is said on behalf of the prosecution that in most cases of unauthorised possession of opium the prosecution will never ' be able to prove that the accused was knowingly in possession of the article and that the burden to prove that he was not in conscious possession is upon the accused by virtue of section 10 of the Act.
That section seems to proceed on the assumption, if it is proved that the accused had something to do with opium, then the burden of proof that he has not committed an offence will be upon the accused.
In other words, when once it is proved in a ' prosecution under section 9 of the Act that the accused was in physical custody of opium, it is for the accused to prove satisfactorily that he has not committed an offence by showing that he was not knowingly in possession of opium.
It would, therefore, appear that the prosecution need only show that the accused was directly concerned in dealing with opium.
If the prosecution shows that the accused had physical custody of opium, then, unless the accused proves by preponderance of probability that he was not in conscious possession of the article the presumption under section 10 would arise.
We do not think that the language of section 10 would warrant the proposition that for the presumption mentioned in the section to arise it is necessary for the prosecution to establish conscious possession.
In our opinion section 10 would become otiose if it were held that prosecution must prove conscious possession before it can resort to the presumption envisaged in the section.
As we said Section 10 proceeds on the assumption that a person who is in any way concerned with opium or has dealt with it in any manner, must be presumed to have committed an offence under section 9 of the Act, unless the person can satisfactorily prove by Preponderance of probability either that he was not knowingly in possession or other circumstances which will exonerate him.
The burden to account Will arise only when the accused is in some manner found to be concerned with opium or has otherwise dealt with it.
In State vs Sham Singh and Others(1), Gurdev Singh, J. speaking about section 10 observed "Section 10 of the Opium Act, in my opinion, implies that a person who is in any way concerned with opium that forms the subject matte r of prosecution or has otherwise dealt with it in any manner go as to render him accountable for it will be presumed to have committed an offence under section 9 of the Opium Act unless he can 'account satisfactorily" for it." (1) I. L. R. (1971) 1 Punjab and Haryana 130.
221 in Sheo Raj Singh vs Emperor(1), it was held "Section 10 expressly throws upon the accused the burden to account for opium in respect of which he is alleged to have committed an offence." Practically the same view was taken in Syed Mehaboob All vs State(2).
In the last analysis, therefore, it is only necessary for the Prosecution to establish that the accused has some direct relationship with the article or has otherwise dealt with it.
If the prosecution proves detention of the article or physical custody of it, then the burden of proving that the accused was not knowingly in possession of the article is upon him.
The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made, the legislature think that if the onus is placed on the prosecution, the object of the Act would be frustrated.
It does not follow from this that the word 'possess ' in section 9 does not connote conscious possession.
Knowledge is an essential ingredient of the offence as the word 'possess ' connotes, in the context of section 9, possession with knowledge.
The legislature could not have intended to make mere physical custody without knowledge an offence.
A conviction under section 9 (a) would involve some stigma and it is only pro per then to presume that the legislature intended that possession must be conscious possession.
But it is a different thing to say that the prosecution should prove that the accused was knowingly in possession.
It seems to us that by virtue of section 1 0, the onus of proof is placed on the accused when the prosecution has shown by evidence that the accused has dealt with the article or has physical custody of the same, or is directly concerned with it, to prove by preponderance of probability that he did not knowingly possess the article.
In his statement under section 342, the appellant totally denied having anything to do with the parcel.
He had no case that to his knowledge the parcel contained anything other than apples.
He never put forward the case that he bone fide believed that the parcel contained only apples.
He was in physical custody of opium.
He had no plea that he did not know about it.
We are, therefore, inclined to confirm the conviction and we do so.
As regards the question of sentence, in view of the fact that the appellant has already undergone a part of the sentence of rigorous imprisonment and was on bail from March 3, 1970, we do not think it proper to send him to jail again.
In the circumstances we think that the period of imprisonment already undergone by him together with a fine of Rs. 2,500/ would be adequate sentence.
If the fine is not paid, the appellant will be liable to imprisonment for a period of six months.
The appeal is allowed only to the extent indicated but dismissed in all other respects.
G.C. (1) A. I. R.(31) 1944 Oudh 297. | The appellant obtained possession of a parcel purporting to contain apples after presenting before the railway authorities a railway receipt endorsed in his favour by the consignee.
The parcel on being opened was found to contain a considerable quantity of opium besides apples.
At his trial for an offence under section 9(a) of the Opium Act 1878 he however denied that he had anything to do with the parcel.
There was no evidence that the appellant was aware that the parcel contained opium.
He was convicted by the trial court and the conviction was upheld on appeal by the Sessions Judge and on revision by the High Court.
In appeal by special leave, this Court had to consider the effect of section 10 of the Act which provide that in a prosecution under s 9 "it shall be presumed until the contrary is proved, that all the opium for which the accused is unable to account satisfactorily is opium in respect of which he has committed an offence under this Act.
" The appellant contended that unless otherwise provided, it must be presumed that the legislature will not make an act an offence unless it is accompanied by mens rea.
HELD : (1) Normally, it is true that the plain ordinary grammatical meaning of the words of an enactment affords the best guide.
But in cases like the present, the question is not what the words mean but whether these are sufficient grounds for inferring that Parliament intended to exclude the general rule that mens rea is an essential element in every offence.
The authorities show that it is generally necessary to go behind the words of the enactment and take other factors into consideration.
in the context it is permissible to look into the object of the legislature and find out whether.
as a matter of fact.
the legislature intended anything to be proved except the possession of the article as constituting the element of the offence.
[218D] Brend vs Wood, , Sherras vs De Rutzen, I Q.B. 918 and Sweet vs Parsley, ; , referred to.
Even if it be assumed that the offence is absolute, the word possess ' in section 9 connotes some sort of knowledge about the thing possessed.
It is necessary to show that the accused had the article which turned out to be opium.
It is not necessary to show in fact that he had actual knowledge of that which he had.
[218E F] Reg. V. Ashwell, and Reg.
vs Warner, , 289, relied on.
(ii) Section 10 proceeds on the assumption that a person who is in any way concerned with opium or has dealt with it in any manner, must be presumed to have committed an offence under section 9 of the Act, unless the person can satisfactorily prove by preponderance of probability either that he was not knowingly in possession or other circumstances which exonerate him.
The burden to account will arise only when the accused is in some manner found to be concerned with opium or has otherwise dealt with it, [220D] 373SupCI/74 216 In the last analysis it is only necessary for the prosecution to establish that the accused has some direct relationship with the article or has otherwise dealt with it.
If the prosecution proves detention of the article or physical custody of it.
then the burden of proving that the accused was not knowingly in possession of the article is upon him.
The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the legislature think that if the onus is placed on ',he prosecution, the object of the Act would be frustrated.
[221C] Lockyer vs Gibb, , 246, Emperor vs Santa Singh, A.I.R. 1944 Lahore 339, Sahetzdra Singh vs Emperor, A.I.R. 1948 Patna 222, Abdul Ali vs The State, A.I.R. 1950 Assam 152, Pritam Singh and Others vs The State, 1966 P.L.R. 200, Sub Divisional Officer and Collecor Shivasagar vs Shri Gopal Chandra Khaund and Another. , State vs Slzam Singh and Others, I.L.R. [1971] 1 Punjab and Haryana, 130, Sheo Rai Singh vs Emperor, A.I.R. (31) 1944 Oudh 297 and Syed Mehaboob Ali vs State [1967] Cr. L.J. 1727, referred to.
(iii) In his statement under section 342 the appellant totally denied having anything to do with the parcel.
He never put forward the case that he bona fide believed that the parcel contained only apples.
He was in physical custody of opium.
He had no Plea that he did not know about it.
Accordingly the conviction must be confirmed.
[sentence altered [221F] |
minal Appeal No. 223 of 1972.
Appeal by special leave from the judgment and order dated February 10 & 11, 1972 of the Bombay High Court at Bombay in Cr. A. No. 1416 of 1971.
M. L. Srivastava, for the appellant.
H. R. Khanna and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
Khashaba Maruti Shelke (33) along with eight others was tried in the court of Sessions Judge Sangli for offences under section 302/34, 307/34, 324/34 and 333/34 Indian Penal Code, section 25 of Arms Act read with section 34 Indian Penal Code, section 27 Arms Act read with section 34 Indian Penal Code, section 3 Explosive Substances Act read with section 34 Indian Penal Code, section 4 Explosive Substances Act read with section 34 Indian Penal Code, section 5 Explosive Substances Act read with section 34 Indian Penal Code and section 6 Explosive, Substances Act read with section 34 Indian Penal Code.
In the alternative, there were charges against the accused for the above offences read with section 149 Indian Penal Code.
Learned Sessions Judge acquitted the other eight accused and convicted the appellant for offences under section 3102 Indian Penal Code on two counts for causing the death of Head Constable Yesade (45) and Smt.
Balkabai (70) and sentenced him to death on each count.
The appellant was further convicted under section 307 Indian Penal Code for attempt to murder PSI Mardur and was sentenced to undergo rigorous imprisonment for a period of seven years.
The ap pellant was also convicted under section 333 Indian Penal Code for causing injuries to police constable Madane and was sentenced to undergo rigorous imprisonment for a period of three years.
Conviction was also recorded against the appellant under section 332 Indian Penal Code for causing injuries to police constable Huzare, Havaldar.
Savant and More and he was sentenced to undergo rigorous imprisonment for a period of two years on that count.
The appellant was convicted under sections 25 and 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for a period of one year on each count.
Conviction *as also recorded against the appellant under sections 3 and 4(b) of the Explosive Substances Act and he was sentenced to undergo imprisonment for life on each count.
In addition to that, the appellant was convicted under section 5 of the Explosive Substances Act and he was sentenced to undergo rigorous imprisonment for a period of three years.
The sentences of imprisonment, if necessary, were ordered to run concurrently with the sentence imposed upon the appellant in another case under section 307 Indian Penal Code.
On appeal and reference to the High Court, the judgment of the learned Sessions Judge was affirmed.
The appellant thereafter has I come up in appeal to this Court by special leave.
The prosecution case is that the appellant was wanted in two murder cases of 1962 and 1966 but he could not be apprehended as he was absconding from 1962.
From March 1967 to May 1971 Sub 268 Inspector Ramchandra Mardur (PW 58) was posted in Sangli District and his main duty was to trace the absconding accused and to detect the offenders involved in property offences.
On July 24, 1970, it is stated, an informant informed Sub Inspector Kumbhar of police, station Radhanagari in Kolhapur District that the appellant, who is a resident of village Kameri, was present in village Kavathe Piran in District Sangli.
Kavathe Piran is seven miles, from Sangli.
Sub Inspector Kumbhar thereupon left for Sangli to inform the Superintendent of Police.
On July 25 Head Constable Naik (PW 18) of Police station Radhanagari along with three others went to village Kavathe Piran and met the informant there.
They concealed themselves inside a house and through the chinks of a door saw the appellant going on the road.
The appellant was then carrying a gun and a bandoleer containing cartridges.
Head Constable Naik and others thereafter went to Sangli and informed Superintendent of Police Krishna about the, whereabouts of the appellant.
On July 26, 1970 Sub Inspector Mardur was directed by Superintendent of Police Krishnan to arrange a raid party for the apprehension of the appellant.
A party of 30 armed constables along with a tear gas squad of three constables then went to the outskirts of village Kavathe Piran and reached there at 9 p.m.
At about 10 p.m. the members of the police party.
were informed that the appellant had fired at Jaising Patil (PW 21) of village Kavathe Piran at the latter 's house and thereafter had run away.
Superintendent of Police Krishnan then split the police party into three groups.
Two groups were sent in other directions, while the third group headed by Sub Inspector Mardur proceeded towards the house of Ananda in village, KavathePiran.
Ananda too was arraigned as an accused at the trial along with the appellant but was acquitted.
The group headed by Sub Inspector Mardur contained Head Constables Yesade deceased, Naik (PW 18) and Lavate (PW 55) and 10 Police constables, including Madane (PW 30),, Huzare (PW 29), Savant (PW 47), Havaldar (PW 44) and Pimpri (PW 45).
Head Constable Lavate was directed to keep a watch on the back door of Ananda 's house.
Sub Inspector Mardur went to the cattle shed of the house of Ananda and called out Ananda.
Ananda came out and soon thereafter the door of the house was closed from inside.
On Sub Inspector Mardur 's enquiry, Ananda replied that his mother only was inside the house,.
Sub Inspector Mardur, however.
heard some foot steps and a whispering sound from inside.
This aroused the suspicion of Sub Inspector Mardur.
He accordingly after alerting the other members of the police party kicked open the door.
As soon as the door ' was opened Sub Inspector Mardur heard the sound of firing from inside the house.
It was dark inside The Sub Inspector had a torch in his left hand and he flashed it while holding a revolver in the right hand.
Head Constable Yesade then entered a" room of the house.
Sub Inspector Mardur was following Head Constable Yesade when there was an explosion and the Sub Inspector.
saw huge flames.
The Sub Inspector felt that he had been injured.
He accordingly returned to the cattle shed and asked the police party to lire, The members of the police party then fired two 269 rounds into the house.
The Sub inspector also heard reports of firing from inside.
Blood then started, coming out of the injuries of Sub Inspector Mardur and he also felt giddy.
The Sub Inspector then came out of the house and took shelter behind a wall.
As the Sub Inspector was seriously injured, he directed the members of the party to stop firing and to watch if some one came out of the house of Ananda.
During the course of this occurrence, Head Constable Lavate, who had been posted on the backside of the house, saw one man emerging out of the house from the back door.
Head Constable Lavate, directed a police cotistable to fire at that man, but that man escaped without being hit.
Another man thereafter emerged from the back door of Ananda 's house and escaped.
Superintendent of Police Krishnan then arrived at the house of Ananda and took steps to send Sub Inspector Mardur to the hospital for medical treatment.
The police constables,, who too were injured, were also sent along with Sub Inspector Mardur.
Under the directions of Superintendent of Police Krishnan teargas shells were burst out inside the, house of Ananda for flushing out inmates.
Ananda and one other person then came out of the house.
Superintendent of Police then entered Ananda 's house and saw Head Constable Yesade lying injured in a small room adjoining the cattle shed of the house.
Yesade was brought out for Medical treatment but he breathed his last in a short while.
Balkabai, mother of Ananda accused, was also found lying dead in a room of the house.
On the following morning at about 9 a.m. Head Constable Naik made report exhibit 52 at the police station regarding the present occurrence.
On the night of occurrence Appa Kesre (PW 23) was present in his house.
Appa Kesre 's house is at a distance of two houses from that of Ananda in village Kavathe Piran.
At about 1 1 or 1 1.30 p.m. Appa Kesre heard some tumult and got up.
After the tumult had subsided, Appa Kesre saw the appellant and Ramchandra who too was an accused in the. case, come inside the house of Appa Kesre.
The appellant on arrival disclosed his identity and told Appa Kesre not to make noise.
The appellant and Ramchandra thereafter con cealed themselves inside the house of Appa Kesre.
On the following morning Appa Kesre went out to ease himself.
His wife also went out from the house.
Enquiries were made by the police from Appa Kesre regarding the whereabouts of the appellant but when Appa Kesre pleaded ignorance, he was detained.
The appellant and Ramchandra were later appre hended from the house of Appa Kesre at about 1.30 p.m.
The appellant was found to have abrasions on his person and his underwear had stains of blood.
The underwear was taken into possession.
Sub Inspector Sadashiv (PW 64), who investigated this case, found that some tiles of the roof of the central room of Ananda 's house had been removed in the south east corner.
A 303 rifle exhibit article 9 was found dangling in the roof.
Its butt was broken.
Three empty cartridges were also found in the room.
An iron pin too was seen lying in one of the rooms.
The house of Ananda was examined by Senior Inspector of Ex plosives Birendranath De (PW 53) on July 30.
The Senior Inspector 270 of Explosives took into possession the various articles lying there and, came to the conclusion that a handgrenade had been exploded there. ' The handgrenade was of service origin and was of fragmentation type used by service people only.
It had been manufactured in 1964.
Post mortem examination of the dead bodies of Head Constable Yesade and Balkabai was performed by Dr. Govind Jathar (PW 48) on July 27, 1970.
Balkabai was found to have 12 lacerated wounds besides a large number of abrasions on the various parts of her body.
There was blackening at the site of the different injuries.
The injuries, in the opinion of the doctor, could have been caused by material flying as a result of the explosion of a hand grenade.
Yesade had three lacerated wounds besides a large number of abrasions.
The doctor extracted one metal piece from the cavity of the chest of Yesade.
Aorta of Yesade was found to have been punctured.
The injuries of Yesade could be caused by hard and blunt substance flying with velocity.
There was no bullet injury on the bodies of Balkabai and Yesade.
Dr. Chokakakar (PW 52) examined the injuries of Sub Inspector Mardur as well as those of police constables Madane, Huzare, Savant, Havaldar and More.
Those injuries, in the opinion of the doctor, were the result of an explosion.
Five of the injuries of Sub Inspector Mardur were found to be dangerous to life.
The appellant and Ananda accused were also examined by Dr. Chokakakar.
The appellant had seven abrasions on the different parts of his body.
The above injuries could be caused by a hard and blunt substance.
Ananda had four punctured wounds which could be caused by splinters in an explosion.
At the trial the plea of the appellant was denial simpliciter.
According to the appellant, he had left his village because be was afraid of one Shankar Bhima Patil.
Shankar Bhima Patil was stated to be a relation of an accused in a murder case and the father of the appellant had appeared as a prosecution witness against that accused.
As regards the injuries on his person, the appellant stated that he was apprehended by the police in a field at about noon time on July 27, 1970.
It was stated that the injuries on the person of the appellant had been received by him during the course of.
grappling with the police officials.
No evidence was"produced in defence, The trial court convicted the appellant as mentioned above because it was of the view that the appellant had exploded the hand.
grenade and had caused the different injuries.
The High Court on appeal and reference substantially agreed with the trial court.
We have heard in appeal Mr. Srivastava on behalf of the appellant and Mr. Khanna on behalf of the State, and are of the view that the case has not been proved against the appellant beyond all reasonable doubt.
The fact that a hand grenade was exploded in the house of Ananda when the police party headed by Sub Inspector Mardur arrived there with a view to apprehend the appellant cannot be disputed.
Likewise, it cannot be disputed that Yesade and Balkabai received fatal injuries and Sub Inspector Mardur and other police officials received serious injuries as a result of that explosion.
The 271 crucial question which arises for determination in the present case is whether the appellant possessed the, hand grenade in question and exploded the same, as a result of which injuries were caused to the two deceased persons and the different police officials.
There is no direct evidence on this point as none of the witnesses has deposed about his having seen the appellant carrying a hand grenade or about his having exploded the hand grenade.
The High Court in maintaining, the conviction of the appellant has relied upon the following pieces of circumstantial evidence (1) The fact that the appellant was absconding before the occurrence in two murder cases.
(2) The fact that the appellant was seen carrying a gun and cartridges in village Kavathe Piran by Head Constable Naik on July, 25, 1970.
(3) The fact that the appellant fired at Jaising at 9 p.m. on July 26, 1970 in village Kavathe Piran.
(4) The fact that the appellant sought shelter in The house of Appa Kesre at about mid night hour after the explosion of the handgrenade.
(5) The fact that the appellant had abrasions on his person at the time of his arrest and his underwear was found to be stained with blood.
In our opinion, the circumstances enumerated above taken singly or cumulatively do not go to show that it was the appellant who exploded the hand grenade.
It is in the evidence of Jaising (PW 21) that the appellant on the night of occurrence was accompanied by four other persons, namely, Ramchandra, Mane Shankar and Sadashiv.
Out of them, Shankar and Sadashiv were strangers.
Ramchandra and Mane were also charged for the various offences for which the appellant was charged, but they were acquitted.
There is nothing to rule out the possibility of the hand grenade having been exploded not by the appellant but by one of his companions.
The fact that the appellant was an absconder in two earlier cases would not necessarily show that it was the appellant who exploded the hand grenade and not one of his companions.
For even the appellant was interested in preventing his apprehension and might have for that object exploded the hand grenade, it is equally possible that the explosion ' of the handgrenade might have been the work of one of the companions of the appellant with a view to prevent the apprehension of the appellant and facilitate his escape.
The presence of abrasions on the person of the appellant or of the blood stains on his underwear would not also show that it was the appellant and not one of his companions who had exploded the hand grenade.
The further fact that the appellant and Ramchandra accused later sought shelter in the house of Appa Kesre would not also lead to the inference that it was the appellant and not one of big companions who had exploded the hand grenade.
Likewise, no inference can be drawn from the fact that the appellant had fired at Jaising earlier on that night, that the hand grenade too was exploded by him, 272 Reference has been made by Mr. Khanna to the fact that Jallandar, brother of the appellant, was previously employed in the army and that Jallandar is untraceable since July 26, 1970 when the present occurrence took place.
It is pointed out that the hand grenade was of service origin. 'Ibis circumstance, in our opinion, is far from showing that the appellant alone could be in possession of the handgrenade and that it was he who exploded.
the same.
If one was out to procure a service hand grenade by illegal means, it was not necessary for one to have a brother in the army to secure such a handgrenade.
One might as well have obtained such a hand grenade through other sources.
Reference has also been made by Mr. Khanna to police entry exhibit 139 and entry in crime handbook exhibit 162, according to which intelligence had been collected that the appellant carried a handgrenade.
The contents of these documents cannot be of much value as there is nothing to show that the person who made these entries had any direct knowledge of the possession of hand grenades by the appellant.
On the contrary, the entries show that the above information had been derived from some other persons.
Those persons have not been exanuned as witnesses in the case.
There is no substantive evidence of any one on the record that he had seen the appellant carrying a hand grenade.
The two documents referred to above, in our opinion, can be no substitute for the substantive evidence of witnesses on the point that the appellant had in his possession a hand grenade.
The appellant was convicted on August 23, 1971 by Additional Sessions Judge Sangli for an offence under section 307 Indian Penal Code in connection with the incident relating to the firing at Jaising on the night of July 26, 1970.
A sentence of rigorous imprisonment for a period of seven years was awarded to the appellant on that count.
The appellant was also convicted for offences under sections 25 and 27 of the Arms Act in that connection and was sentenced to undergo rigorous imprisonment for a period of one year and three years for those offences.
As the appellant has already been convicted for the offences under the Arms Act for being in possession of the rifle and the cartridges, he cannot be convicted again for being in possession of the same rifle and cartridges on that day.
It also cannot be said that the appellant caused any injury with the, rifle to the two deceased persons or the other police officials because no bullet injury was found on any one of them.
It may be mentioned that though the prosecution seeks the conviction of the appellant on the allegation that he exploded a handgrenade, in the first information report relating to the present occurrence which was lodged by Head Constable Naik there is no reference to a hand grenade much less to the explosion of a hand grenade by the appellant, although there is a reference in it to the bursting of tear gas shells by the police party.
It appears that the police party was taken by surprise when the hand grenade exploded and no one realised as to what had happened and how the different persons had been injured.
This apparently accounts for the fact that there is no mention 273 of the explosion of a hand grenade or a bomb in the first information report lodged by Head Constable Naik.
AR that was mentioned in the said report was that there was firing from inside even though me at evidence reveals that there was no bullet injury on any of the injured persons.
It 'is rather unfortunate that in a case like the present wherein two persons were killed and a number of others were injured, no, direct evidence could be produced as to who had exploded the handgrenade which caused the injuries to the deceased persons and other members of the police party.
The difficulty in procuring the direct evidence can be traced to the fact that the police chose to arraign as accused the different inmates of Ananda 's house.
None of them could consequently be examined as a witness although those inmates could be in a position to depose as to who had exploded the hand grenade.
In order to base the conviction of an accused on circumstantial evidence the court must be certain that the circumstantial evidence is, of such a character as is consistent only with the guilt of the accused.
If, however, the circumstantial evidence admits of any other rational explanations, in such an event an element of doubt would creep in and the accused must necessarily have the benefit thereof.
The circumstances relied upon should be of a conclusive character and should exclude every hypothesis other than that of the guilt of the accused.
In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
The circumstances must show that within all reasonable probability the impugned act must have been done by the accused.
If two inferences are possible from the circum stantial evidence, one pointing to the guilt of the accused, and the other, also plausible, that the commission of the crime was the act of someone else, the circumstantial evidence would not warrant the conviction of the accused.
In case the circumstantial evidence relied upon by the High Court for maintaining the conviction of the accused for an offence entailing capital punishment does not satisfy the above requirement, an interference would be called for by this Court.
It would be apparent from what has been discussed above that the circumstantial evidence relied upon by the 'prosecution in this case is not of such a character as can be held to be consistent only with the guilt of the appellant.
We, therefore, accept the appeal, set aside the conviction of the appellant and acquit him.
S.C. Appeal allowed. | The appellant was convicted by the Sessions Judge for offences under section 302 I.P.C. on two counts for causing the death of a Head Constable and another and sentenced to death on each count.
The appellant was further convicted under section 307 I.P.C. for attempt to murder a P.S.I. and was sentenced to undergo rigorous imprisonment for a period of 7 years.
He was also convicted under sections 333, 332 I.P.C. and sections 25 and 27 of the Arms Act and sections 3, 4 (b) and 5 of the Explosive Substances Act and separate sentences were passed, On appeal and reference to the High Court, the judgment of the learned Sessions Judge was affirmed.
The High, Court maintained the conviction of the appellant relying upon circumstantial evidence.
The appellant came before this Court by special leave.
The prosecution case was that a hand grenade was exploded in the house of one A when the police party headed by a Sub Inspector arrived there with a view to apprehend the appellant and as a result of the explosion two persons, including a Head Constable, received fatal injuries and other police officials received serious injuries.
The question was whether the appellant possessed the hand grenade in question and exploded the same.
as a result of which, injuries were caused to the two deceased persons and the different police officials.
Allowing the appeal, HELD : (i) The case against the appellant had not been proved by the prosecution beyond all reasonable doubt and the conviction of the accused, therefore, must be set aside.
(ii) There is no direct evidence as to the fact that the appellant was seen carrying a hand grenade or that he exploded the hand grenade.
The circumstances relied upon by the High Court in convicting the appellant do not singly or cumulatively show that it was the appellant who exploded the handgrenade.
From the evidence, there is nothing to rule out the possibility of the hand grenade having been exploded not by the appellant but by one of his companions.
There is no direct evidence as to who exploded the hand grenade.
(iii) Further, in the F.I.R. there was no mention of a hand grenade.
All that was mentioned in the said report was that there was firing from inside; but the medical evidence revealed that there was no bullet injury on any of the injured persons.
(iv) In order to base the conviction of an accused on circumstantial evidence, the Court must be certain that the circumstantial evidence is of such a character as is consistent only with the guilt of the accused.
The circum stances must show that within all reasonable probability, the impugned act must have been done by the accused.
If two inferences are possible from the circumstantial evidence The pointing to the guilt of the accused and the other, also plausible, that the commission of the crime was the act of someone else the circumstantial evidence would not warrant the conviction of the accused.
[273D] 267 |
Petition (crl) Nos. 353 and 491 of 1988.
(Under Article 32 of the Constitution of India).
A.S. Pundir for the Petitioners.
PG NO 1025 V.C. Mahajan, Mrs. A. Katiyar, Dalveer Bhandari and Ms. Subhashini for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These two petitions under Art, of the Constitution are for issue of a writ of Habeas Corpus for the release of Ram Ratan and Hawa Singh, who have been detained under sec.
3(2) of the of 1980.
Ram Ratan was a Head Constable and Hawa Singh was a Constable in the Security Unit of Delhi Police.
While on duty, they were together said to have committed a cognizable Offence under Sec.
392/34 of IPC along with a member of the public.
Immediately thereafter they were arrests and placed on suspension.
The Court.
however released them on bail While the case was under investigation the Commissioner of Police, Delhi (Mr. Vijay Karan) thought fit the detam them under the .
Accordingly.
he made them orders which are impugned herein.
Subsequently.
they have been summarily dismissed from service under Article 3 11(ii)(b) of the Constitution.
The principal contention urged for the petitioners relates to the oft repeated question that the ground of detention has no nexus to the `public order ' but purely a matter for "law and order".
In order to appreciate the contention urged in this regard it will be necessary to have regard to the orders of detention.
The orders passed against the two detenu are on different dates,but are similar in terms and it may be sufficient if we refer to one of the orders.
The ground of detention in each case relates to one incident which has been stated as follows: That on 22.7.88, one Shri Jasbil Singh S/o Shri Inder Singh R/o 5869/3 Ambala City (Haryana) reported that on 21.7.88 he purchased some T.V. parts from Lajpat Rai Market.
After purchase, he loaded the TV parts on rickshaw and asked the rickshaw puller Shanker S.o Shri Vasudev R/o Old Lajpat Rai Market.
Near Hanuman Mandir, who was known to him to take the parts to Patiala Transport near Libra Service Station G.T.K. Road.
He himself went alone to Patiala Transport and waited for the rickshaw puller.
At about 11.00 pm.
the rickshaw puller informed him that two police PG NO 1026 personnel namely H.C. Ram Ratan and Constable Hawa Singh who were previously posted in P.S. Kotwali along with a member of the public Prabhu Dayal who he knew has stopped his rickshaw near B block, Industrial Area, G.T.K. Road.
Head Constable Ram Ratan caught him and started beating him and asked for a receipt for the goods.
Constable Hawa Singh and Prabhu Dayal removed the parts and loaded in a TSR and went away.
" It was also stated that those T.V. parts were recovered from the detenu and the case was registered under sec.
392/34 IPC in which the investigation was progressing.
There then, it was said: From the above criminal activity of Shri Ram Ratan it is clear that he, being a Police Officer and bound to provide security and safety to the public, has himself committed a heinous offence which has created a sense of insecurity in the minds of public at large and is pre judicial to the maintenance of public order.
Keeping in view the above criminal activity of the said Head Constable Ram Ratan, it has been felt necessary to detain him u/s 3(2) of the National Security Act, 1981 so that his such activity which is prejudicial to the maintenance ot public order could be stopped.
xxx xxx.xxx xxx Sd/ (Vijay Karan) COMMISSIONER OF POLICE: Delhi As is obvious from the order, the Commissioner was satisfied with the need to detain the person, firstly because, the person being a police officer was bound to provide security and safety to the public and secondly, the offence committed was "heinous" which has created a sense of insecurity in the minds of the public at large.
The same was highlighted before us by Shri Mahajan, learned counsel for the respondents justifying the detention orders.
The Counsel argued that though the incident in question was a simple case of robbery, since it was PG NO 1027 committed by persons belonging to the disciplined police force, it would certainly disturb the public safety in the life of the community with a sense of Insecurity in their minds.
It is true that the detenu belonged to the police force in the national capital.
Public look for the police for safety.
Society regards them as their guardian for its protection.
Society needs a properly trained and well disciplined police force whom it can trust in all respects.
They are the real frontline of our defence against violence.
They have to maintain law and order.
They have to safeguard our freedoms and liberty.
They have to prevent crime and when crime is committed, they have to detect it and bring the accused to justice.
They must be available at all hours.
They are always expected to act and indeed must act properly.
it is reprehensible if they themselves indulge in criminal activities.
We are not, as we cannot, be unmindful of the danger to liberties of people when guardians of law and order themselves indulge in undesirable acts.
But the law of preventive detention is not different to police personnel.
It is the same law that we apply to police as well as to public.
We cannot, therefore, apply a different standard in respect of acts individually committed by any police officer.
The subjective satisfaction of the detaining authority with respect to the person sought to be detained should be based only on the nature of the activities disclosed by the grounds of detention.
The grounds of detention must have nexus with the purpose for which the detention is made.
The question in this case is whether the crime in question has any impact on `public order as such.
Courts have strived to give to this concept a narrower construction than what the literal words Suggest.
In the Superintendent, Central Prison, Fatehgarh vs Ram Manohar Lohia Subba Rao, J., as he then was, observed (at 833): "But in lndia under article 19(2) this wide concept of public order is split up under different heads.
It enables the imposition of reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the security of the State, friendly relations will foreign States, public order, decency or morality.
or in relation to contempt of court, defamation or incitement to an offence.
All the grounds mentioned therein can be PG NO 1028 brought under the general head public order" in its most comprehensive sense.
But the juxtaposition of the different grounds indicates that, though sometimes they tend to overlap, they must be ordinarily intended to exclude each other.
"Public order is therefore something which is demarcated from the others.
In that limited sense, particularly in view of the history of the amendment, it can be postulated that `public order is synonymous with public peace, safety and tranquility.
" The impact on public order" and law and order" depends upon the nature of the act, the place where it is committed and motive force behind it.
If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only.
But where the gravity of the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the public order.
This is precisely the distinguishing feature between the two concepts.
Sometimes as observed by Venkatachaliah, J. in Ayya Alias Ayub vs The State of U.P. & Anr.
Judgment today 1988 Vol.
4 p. 489 (at 496): `what might be an otherwise simple law and order situation might assume the gravity and mischief of a public order problem by reason alone of the manner or circumstances in which or the place at which it is carried out.
Necessarily, much depends upon the nature of the act the place where it is committed and the sinister significance attached to it.
As for example dare devil repeated criminal acts.
open shoot out throwing bomb at public places.
committing serious offences in public transept, armed persons going on plundering public properties of terrorising people may create a sense of insecurity in the public mind and may have an impact on public order.
Even certain murder committed by persons in lonely places with the definite object of promoting the cause of the party to which they belong may also affect the maintenance of public order .
In Abdul Aziz vs The Dist.
Magistrate Burdwan & Ors. ; this Court has stated so.
There two grounds were furnished to the detenu in justification of the order of detention.
It was stated: "firstly, that the petitioner and his associates were members of an extremist party (CPI ML), that on 16th August 1971, they armed themselves with lethal weapons like PG NO 1029 firearms, choppers and daggers with a view to promoting the cause of their party, that they raided the house of one Durgapada Rudra and murdered him and that the aforesaid incidents created a general sense of insecurity, as result of which the residents of the locality could not follow their normal avocations for a considerable period.
The second ground of detention is that on 22nd May, 1971 the petitioner and his associates raided the house of Smt.
Kshetromoni Choudhury and murdered one Umapada Mallick who was staring in that house.
This incident is also stated to have created a general sense of insecurity amongst the residents of the locality.
" Repelling the connection in that case that the two incidents referred to above are but simple cases of murder germane to law and order but could have no impact on public order Chandrachud, J. as he then vas, said (at p. 648): "A short answer to this contention is that the murders are stated to have been committed by the petitioner and his associates with the definite object of promoting the cause of the party to which they belonged.
These, therefore, are not stray or simple cases of murder as contended by the learned counsel.
Such incidents have serious repercussions not merely on law and order but On public order.
In Mohd. Dhana Ali khan vs State of West Bengal this Court had an occasion to consider the detention of a person under the maintenance of Internal Security Act, 1971 regarding a single instance of theft in a running train at night.
The acts attributed to the detenu in that case were that on 3.8.1973.
between 2110 and 2120 hrs.
, the detenu and his associate being armed with daggers boarded a 3rd class compartment of SL 257 UP train of E. Railway Sealdah Division at Gocharan Railway Station.
They put the passengers of the compartment to fear of death and snatched away a wrist watch and a gold necklace from one Nirmal Chatterjee and his wife in between Gocharan and Surajpur Railway Stations.
The they decamped with booty from the running train at Suryapur Railway Station.
It was contended in that case that the said single incident referred to have not even casual connection with the disturbance of public order.
Fazal Ali.
while rejecting that contention said (at 126).
`From a perusal of this we are unable to accept the PG NO 1030 contention of the petitioner that this ground has no nexus with the disturbance of public order.
It is true that the ground contains a single incident of theft of valuable property from some passengers travelling in a running train and may amount to robbery.
But that does not by itself take the case out of the purview of the provisions of the Maintenance of Internal Security Act.
There are two pertinent facts which emerge from the grounds which must be noted.
In the first place the allegation is that the petitioner had snatched away a wrist watch and a gold necklace after putting the passengers of the compartment to fear of death.
Secondly, the theft had taken place at night in a running train in a third class compartment and the effect of it would be to deter peaceful citizens from travelling in trains at night and this would undoubtedly disturb the even tempo of the life of the community.
" We have carefully examined the act complained of in the present case in the light of the principles stated above.
It is an isolated criminal case with no sinister significance attached to it.
The offence was committed by two misguided police men under the cover of darkness with the assistance of a member of the public.
It was certainly suicidal to those two police personnel.
But it seems to have no connection whatsoever to disturb the `public order having regard to the circumstances of the case.
The last contention urged for the petitioners that the detention would be illegal in view of dismissal of detenu from service is really without merit.
The subsequent order of dismissal is not germane to of examine the validity of the detention.
In the result the rule is made absolute.
The orders of detention impugned in these cases are quashed.
The detenu Ram Ratan and Hawa Singh be set at liberty forthwith.
M.L.A. Petitions allowed. | The detenu, in the writ petitions filed by the petitioners under Article 32 of the Constitution, belonged to the Security Unit of Delhi Police.
While on duty, they were alleged to have stopped a rickshaw puller who was carrying some goods to a transport company.
They caught hold of him and started beating him and asked for a receipt for the goods.
Thereafter they removed the goods from the rickshaw and went away in a T.S.R. The aforesaid goods was recovered from their possession and a case under Section 392/34 I.P.C. was registered against them.
Thereafter they were arrested and placed under suspension.
The court, however, released them on bail.
While the case was under investigation.
the Commissioner of Police, Delhi detained them u/s 3(2) of the on the ground that the above criminal activity of the detenu has created a sense of insecurity in the minds of public at large and is pre judicial to that maintenance of public order.
It was contended on behalf of the petitioners that the said orders are bad in law, since the ground of detention has no nexus to the`public order ', but purely a matter for `law and order '.
Counsel for the respondents, on the other hand argued that though the incident in question was a simple case of robbery, since it was committed by persons to longing to the disciplined police force, it would of certainly disturb the public safety in the life of the community with a sense of insecurity in their minds and therefore the detention orders were justified.
Allowing the writ petitions, HELD: (1) The orders of detention are quashed.
The detenu Ram Ratan and Hawa Singh are set at liberty forthwith.
[1030F] PG NO 1023 PG NO 1024 (2) The law of preventive detention is not different to police personnel.
It is the same law that is applied to police as well as to public.
Therefore, this Court cannot apply a different standard in respect of acts individually committed by any police officer.
[1027D] 3(i) The subjective satisfaction of the detaining authority with respect to the persons sought to be detained should be based only on the nature of the activities disclosed by the grounds of detention.
The grounds of detention must have nexus with the purpose for which the detention is made.
[1027E] 3(ii) The impact on `public order ' and `law and order ' depends upon the nature of the act, the place where it is committed and motive force behind it.
If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be matter of law and order only.
But where the gravity of the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the `public order '.
What might be an otherwise simple `law and order ' situation might assume the gravity and mischief of a `public order ' problem by reason alone of the manner of circumstances in which or the place at which it is carried out.
Necessarily, much depends upon the nature of the act, the place where it is committed and the sinister significance attached to it.
[1028C E] In the instant case, the offence was committed by two misguided police men under the cover of darkness with the assistance of a member of the public.
It is an isolated criminal case with no sinister significance attached to it.
It way certainly suicidal to those two police personnel.
But it seems to that 110 connection whatsoever to disturb the public order ' having regard to the circumstances of the case.
[1030D E] Superintendent, Central Prison, Fatehgarh vs ram Manohar Lohia, ; Ayya Alias Ayub vs The State of U.P, Aziz vs The Distt.
Magistrate Burdwan & Ors., ; and Mohd. Dhana Ali Khan vs State of West Benal,.
[1975] Suppl.
SC 124 followed. |
iminal Appeal No. 16 of 1970.
Appeal by special leave from the judgment and order dated the 12 9 69 of the Allahabad High Court, in Criminal Appeal Nos. 1096 and 1097 of 1966.
Nuruddin Ahmed and U. P. Singh, for the appellants.
O. P. O. P. Rana, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal by special leave by Lalji (23), Mahabir (45), Nar Singh (30), Paras Nath (27) and Ram Naresh (30) against the judgment of the Allahabad High Court affirming on appeal the conviction and sentence of the appellants.
Lalji has been convicted under section 304 Part I and section 148 Indian Penal Code 368 and has been sentenced to undergo rigorous imprisonment for a period of ten years on the first count and rigorous imprisonment for a period of two years on the, second count.
Lalji has, in addition to that, been convicted for offences under section 324 read with section 149, section 325 read with section 149 and section 323 read with section 149 and has been sentenced to undergo rigorous imprisonment for a period of two years, 21 years and one year respectively.
Mahabir, Nar Singh, Paras Nath and Ram Naresh have been convicted under section 147, section 304 Part I read with section 149, section 324 read with section 149, section 325 read with section 149 and section 323 read with section 149 Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for a period of 18 months, five years, 18 months, 21 years and one year respectively.
The sentences in the case of each of the appellants have been ordered to run concurrently.
Budhdhu (50) and Munni Lal (20) were tried along with the appellants.
Munni Lal was acquitted by the trial court, while Budhhu was acquitted by the High Court.
The appeal arises out of an occurrence which took place at 7 a.m. on March 29, 1965 in Nawagarh near village Shahpur Nawada at a distance, of five miles from police station Chandauli in Varanasi district.
As a result of that occurrence, Pancham (45) received fatal injuries and later died at 11 a.m. Injuries were also received by Nand Lal (PW 1), Munshi (PW 2), Jhuri (PW 3), Potan (PW 5) and Bhaggan on the side of the complainant.
On the side of the accused, Lalji, Mahabir, Paras Nath and Ram Naresh received in juries.
Both parties rushed be the police station and lodged reports.
On the side of the complainant, report was lodged by Nand Lal PW at 8.30 a.m., while on the side of the accused, report was lodged by Mahabir at 8.35 a.m.
On the basis of those reports, two cases were registered and both parties were sent up for trial.
The trial court convicted the accused appellants and Budhdhu in the present case, and Nand Lal.
Munshi, Jhuri, Bbaggan and one Sheo in the cross case.
Lalji accused is the son of Budhdhu accused.
Ram Naresh, Paras Nath and Nar Singh accused are the maternal uncle 's sons of Mahabir accused.
The prosecution case is that Nand Lal PW is the owner of plot No. 129/2.
Mahabir accused, who is a collateral of Nand Lal PW. owns the adjoining plot.
Mahabir had put up a hut on his own plot.
There is a mend (dividing ridge) between the plots of Nand Lal and Mahabir, On the morning of March 29, 1965, it is stated, Pancham deceased and Nand Lal PW saw that Budhdhu and Mahabir were digging earth and thus extending the frontage of Mahabir 's hut.
Ram Naresh armed with a gandasa, Lalji and Munni Lal armed with spears and Nar Singh and Paras Nath armed with lathis were standing close to Mahabir with a view to help him.
Pancham raised a Drotest against the act of the accused party whereupon Mahabir and Budhhu picked up lathis and those two accused along with the other accused started beating Pancham and Nand Lal with their respective weapons.
Jhuri and Munshi then came there, but they too were attacked.
Potan and Bhaggan also tried to intervene, but injuries were caused to them also by the accused party.
369 During the course of this occurrence, Lalji thrust his spear in the abdomen of Pancham who fell down on the ground.
Nana Lal, Jhuri, and others on the side of the complainant used their lathies, and in the process the accused were injured.
Bhaggan on medical examination was found to have two 'injuries caused by blunt weapon.
One of those injuries was grievous as it had resulted in the fracture of humerus bone of the left forearm.
Jhuri, Munshi and Nand Lal PWs had nine, seven and nine simple injuries respectively caused by blunt weapon.
Potan PW had four simple injuries, out of which three had been caused by blunt weapon and one with sharp edged pointed weapon.
Post mortem examination of Pan cham revealed that he had six injuries, out of which one was a stab, wound, one was an incised wound, three were contusions and one was an abrasion.
The fatal injury was the stab wound in the abdominal cavity measuring 2" x 1 Omentum and about 12" long portion of small intestines was protruding out of this wound.
Death of Pancham was due to shock and haemorrhage resulting from cutting of small intestines, mesentery and blood vessels by some sharp edged pointed weapon.
The accused were examined by Dr. K. P. Rai and subsequently by Dr. K. A. Khan in jail.
The trail court and the High Court have relied upon the medical examination of the accused by Dr. Rai.
According to Dr. Rai, he found nine injuries on Mahabir Nar Singh, Paras Nath and Ram Naresh accused had four injuries each on their persons while Lalji had one injury.
The injuries on the persons of the accused were simple and had been caused by blunt weapon.
The defence version was that there was sugar can crop in the plots of Mahabir, Ram Naresh and Nar Singh accused.
Those fields used to be irrigated from the well of the accused which was close to the hut of Mahabir.
A water channel ran over the intervening ridge between the plots of Mahabir and Mand Lal.
On the day of occurrence, it is stated, Mahabir and Ram Naresh accused had started repairing the water channel by digging earth from a portion of Mahabir 's plot.
Part of the water channel had been repaired with that earth when Pancham, Nand Lal, Munshi, Jhuri, Bhaggan, Sheo and Sotan appeared on the scene.
Pancham and others were all armed at that time.
Bhaggan then demolished the water channel which had been repaired by Mahabir and Ram Naresh.
When Mahabir protested, the party of the complainant attacked them.
Mahabir and Ram Naresh then picked up agricultural implements and wielded the same in self defence.
The other appellants too arrived at the spot and they too wielded lathis in exercise of the right of private defence Ram Naresh accused came into, the witness box and gave evidence in support of the defence version.
The trail court on scrutiny of the evidence came to the conclusion that the witnesses on both sides had stated only the half truth and resorted to exaggeration, twisting and embellishment of the true account of the occurrence.
It was further held by the trail court that the well near the hut of Mahabir was being used for irrigation pur 370 poses, that the channel through which the water from this well used to be taken was along the disputed ridge and that on the day of occurrence the party of the accused was digging and putting earth on the ridge in order to repair and reconstruct the water channel.
The trial court in this context referred to the evidence of the investigating officer, according to whom earth had been taken by the party of the accused from a pit in Mahabir 's plot.
The trail court did not accept the evidence of the prosecution witnesses that Pancham and Nand Lal first went to the spot and thereafter Jhuri and Munshi arrived there and after that Bhaggan, Potan and Sheo appeared there.
In the view of the trail court, all the members of the complainant 's party reached the place of occurrence almost simultaneously.
The prosecution allegation that the other accused Were standing nearby when Mahabir and Budhdhu were digging the earth and repairing the water channel was not accepted.
In the opinion of the trial court, these persons were present at the hut which was only 15 or 20 paces from the ridge in question.
As regards the actual assault, the trial court came to the conclusion that no attack was made immediately by either party on the arrival of the complainant 's party.
At first there was remonstrance and counter remonstrance.
A fight thereafter ensued when the complainant 's party insisted that they would not allow the earth to be put on the disputed ridge and the party of the accused claimed that they must put the earth and reconstruct the water channel.
The intransigence of the parties, in the opinion of the trial court, led to a free fight and none of them could therefore plead the right of private defence.
The accused, other than Lalji, in the opinion of the trial court, were armed with lathis only.
The High Court in appeal held that the conclusions reached by the trial court were substantially correct and were based upon reasonable appreciation of evidence.
In appeal before us Mr. Nuruddin on behalf of the appellants has :argued that the present is not a case wherein the accused party can be said to be members of the unlawful assembly or wherein the injuries caused by Lalji to Pancham can be said to have been caused in prosecution of the common object of the accused appellants.
Although Mr. Rana on behalf of the State has controverted the above contention, we find considerable force in the same.
The trial court has found that Mahabir accused had been using water from the well near his hut for irrigation purposes and that he along with Ram Naresh was repairing the old water channel on the ridge when the party of the complainant came there and stopped Mahabir and Ram Naresh from further repairing the water channel.
The other accused who were present in the hut nearly.
at a distance of 15 or 20 paces from the ridge.
then came there.
There was remonstrance and counter remon strance which resulted in a fight.
The trial court has also found that there was no premeditation on the part of Lalji or any other accused to cause Pancham 's death and that the fight was a sudden affair and was the result of heated passion.
In the circumstances, in our opinion it cannot be said that the appellants who were present in front of 371 their hut formed an unlawful assembly.
An assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing that assembly is to do any of the acts mentioned in the five clauses of section 141 Indian Penal Code.
According to the explanation to that section, an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly.
The, facts found by the trial court and the High Court and the circumstances of the case do not show that the appellants formed a common object to do any of the acts mentioned in the five clauses of section 141.
Reference has been made to clause (4) of section 141, according to which an assembly of five or more persons.
would be unlawful if the common object of the persons composing that assembly is to enforce any right or supposed right by means of criminal force or show of criminal force.
This clause cannot be of much avail because it cannot be said that the common object of the appellants was to enforce any right or supposed right by means of criminal force or show of criminal force.
As mentioned earlier, no party attacked the members of the opposite party at the commencement of the occurrence.
There was only at that stage remonstrance and counter, remonstrance.
Someone then started the fight and, according to, the trial court, it could not definitely be determined s to which of the two parties struck the first blow.
The circumstances of the case show that lathis were then wielded by the appellants, other than.
Lalji, not with a view to enforce any right or supposed right in respect of the water channel but because of the fact that a fight had, started and the complainant 's party was found to be armed.
As there was no premeditation and the occurrence was a sudden affair, each of the appellants, in our opinion, should be held to be liable for hi& individual act and not vicariously liable for the acts of others.
Lalji gave the spear blow in the abdomen of Pancham.
His conviction should, therefore, be maintained for the offence under section 304 Part I Indian Penal Code.
The sentence of rigorous imprisonment for a period of ten years awarded to Lalji for the injury caused to, Pancham cannot be held to be excessive.
As regards the other appellants, we find that they caused simple hurt with their lathis.
There is no doubt that one grievous injury was caused to Bhaggan with blunt weapon, but on the material on record it cannot be said as to who caused the said injury.
We would accordingly maintain the conviction of Mahabir, Nar Singh, Paras Nath and Ram Naresh for the offence under section 323 Indian Penal Code.
The conviction of Lalji for offences other than that under section 304 Part 1, and of the other four appellants for the offences other than that under section 323 ' Indian Penal Code is set aside.
Lalji is sentenced to undergo rigorous imprisonment for a period of ten years for the offence under section 304 Part 1.
As regards the other four appellants who have been convicted under section 323 Indian Penal Code, their sentence of imprisonment is reduced to the period already undergone.
V.P.S. Conviction and sentence modified. | As a result of a fight between the members of the accused party and the party of the complainants the accused were tried and convicted for various offences.
The first.
appellant was convicted of the offence under section 304, Part 1, and of offences under Ss. 148, 323, 324 and 325 read with 14.
The appellants were convicted of the offences under Ss. 147 and 04, 323, 324 and 325 read with section 149.
The High Court, in appeal, while acquitting one of the accused, observed that the conclusion reached by the trial court were substantially correct and were based upon reasonable appreciation of the evidence.
In appeal to this Court, HELD : On the findings of the trial court neither party attacked the members of the opposite party at the commencement of the occurrence.
There was at that stage remonstrance and counter remonstrance only.
Someone then started ,a fight, and according to the trial court it could not definitely be determined as to which of the two parties struck the first blow.
There was no premeditation :and the occurrence was a sudden affair.
The circumstances of the case do not ,show that the appellants formed a common object to do any of the acts mentioned in the 5 clauses of section 141.
Section 141 (4), I.P ' C., could not be relied upon by the prosecution because, it could not be said that the common object of the accused was to enforce any right or supposed right by means of criminal force or show of criminal force.
The circumstances of the case show that the lathis were weilded by the accused not with a view to enforce any right or supposed right but because of the fact that a fight had started and the complainants ' party was found to be armed Therefore, it should be held that each accused was liable for his individual act and not vicariously liable for the acts of the others.
Hence, the first appellant could be convicted only of the offence under section 304, part 1, I.P.C. and his conviction for offences other than that should be set aside.
As regards the other appellants they caused simple hurt with their lathis and they could be convicted only of the offence under a. 323 I.P.C. One grievous injury was caused to a member of the complainants ' party but, on the material on record, it could not be said who caused that injury.
[371B H] |
minal Appeal No. 101 of 1972.
Appeal by special leave from the Judgment and order dated the 25th February, 1972 of the Rajasthan High Court at Jodhpur in section B. Criminal Revision No. 52 of 1972.
B. D. Sharma, section K. Bagga, section Bagga, Rani Arora and Yash Bagga, for the appellant.
section M. Jain, for respondent No. 1.
section N. Prasad, for respondent No. 2.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
The appellant filed a complaint against the 2nd respondent before the Add.
Munsiff Magistrate of Jodhpur City under sections 323 and 504 I.P.C.
The 2nd respondent was the Post Master General, Rajasthan and the appellant a clerk in the Head Post Office 560 at Jodhpur.
He was also the, Divisional Secretary of National Union of Postal Employees.
The relevant portion of the complaint is as follows "4, That the accused came on tour to Jodhpur on 25 10 1971.
He arrived at the Head Post Office Jodhpur, in connection with the inspection at 5.45 P.M.
The complainant reached to submit his representation to the accused for cancelling his transfer, when.
the accused just sat in his jeep and the complainant started narrating his story '.
That the accused being enraged by this complaint, kicked him in his abdomen and abused him by saying "Sale, Goonda, Badmash, on one hand you are complaining and on the other hand you are requesting for the cancellation of transfer.
That the complainant became very much enraged over this incident but he suppressed his anger because of being responsible citizen and to avoid any further disturbance.
That after kicking and abusing the complainant the accused ran away in his jeep.
" The 2nd respondent filed an application under section 197 of the Code of Criminal Procedure praying that the court should not take cognizance of the offence without the sanction of the Government as the acts alleged, if at all done by the accused, were done while discharging his duties as a public servant.
The Munsiff Magistrate dismissed the application but Justice Mehta of the Rajasthan High Court allowed the revision petition filed by the 2nd respondent and set aside the order of the lower court holding that the 2nd respondent could not be prosecuted unless prior sanction of the Central Government had been obtained.
This appeal is against that order.
The law regarding the circumstances under which sanction under s.197 of the Code of Criminal Procedure is necessary is by now well settled as result of the decisions from Hori Ram Singh 's(1) case to the latest decision of this Court in Bhagwan Prasad Srivastava vs N. P. Misra.
(2) While the law is well settled the difficulty really arises in applying the law to the facts of any particular case.
The intention behind the section is to prevent public servants from being unnecessarily harassed.
The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention.
Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned.
Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty.
The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty.
The test appears to be not that the offence is capable of being committed only, by a (2) [1971] (1) section C. R. 317.
(1) 561 public servant and not anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty.
The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty,.
Nor need the act constituting the ,offence be so inseparably connected with the official duty as to form part and parcel of the same transaction.
What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty.
It does not apply to acts done purely in a private capacity by a public servant.
Expressions such as the "capacity in which the act is performed", "Cloak of office" and "professed exercise of office" may not always be appropriate to describe or delimit the scope of the section.
An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty.
In Hori Ram Singh 's case (supra) Sulaiman, J. observed : "The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty.
Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same trans action.
" In the same case Varadachariar, J. observed "there must be something in the nature of the act complained of that attaches it to the official character of the person doing it." In affirming this view, the Judicial Committee of the Privy Council observed in case: "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty.
The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office." In Matajog Dobey vs H. C. Bhari(2) the Court was of the view that the test laid down that it must be established that the act complained of was an official act unduly narrowed down the scope of the protection afforded by section 197.
After referring to the earlier cases the court summed up the results as follows : "There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
" Applying this test it is difficult to say that the acts complained of i.e. of kicking the complainant and of abusing him, could be said to (1) 1948 L R. 75 1.
A. 41.
(2) [1955](2) section C. R. 925.
562 have been done in the, course of performance of the 2nd respondent 's duty.
At this stage all that we are concerned with is whether on the facts alleged in the complaint it could be said that what the 2nd respondent is alleged to have done could be said ' to be in purported exercise of his duty.
Very clearly it is not.
We must make it clear, however, that we express no opinion as to the truth or falsity of the allegations.
We must also make it clear that this is not the end of the matter.
As was pointed out in Sarjoo Prasad vs The King Emperor(1), referring to the observations of Sulaiman, J. in Hori Ram Singh 's case (supra) the mere fact, that the accused proposes to raise a defence of the act having purported to be done in.
execution of duty would not in itself be sufficient to justify the case being thrown out for want of sanction.
At this stage we have only to see whether the acts alleged against the 2nd respondent can be said to be in purported execution of his duty.
But facts subsequently coming to light during the course of the judicial inquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction.
Whether sanction is necessary or not may have for depend from stage to stage.
The necessity may reveal, itself in the court of the progress of the case (see observations in Matajog Dobey vs H. C. Bhari (supra) In Bhagwan Prasad Srivastaval vs N. P: Misra (supra), also it was pointed out that it would be, open.
to the appellant (.the 2nd respondent in this case) to place the material on record during the course of the trail for showing what his duty was and also that the acts complained of were so interrelated with, his official duty, so as to attract the protection afforded by s.197, Cr.
This appeal is, therefore allowed and the order of the learned Judge of the High Court is set aside.
S.B.W. Appeal allowed. | The appellant filed a complaint against respondent No. 2, his superior officer, in the Postal Department, under sections 323 and 502 of I.P.C. alleging that when the appellant went with a certain complaint to the second respondent, the second respondent kicked him,in his abdomen and abused him by saying "Sale, gunde, badmash.
" The second respondent filed an application under section 197 of the Cr.
P.C. praying that the Court should not take cognizance of the offence without the sanction of the Government, as required by Section 197 of the Cr.
P.C. it was further contended that the alleged acts, if at ail done by the accused were done while discharging his duties as a public servant.
The trial Magistrate dismissed the application.
The 'High Court allowed the revision application of second respondent.
Allowing the appeal, HELD : (1) At this stage, the Court is concerned only with one point, whether on facts alleged in the complaint, it could be said that the acts were done in purported exercise of his duties.
Applying the test laid down in the decisions of the Federal Court and Supreme Court to acts complained of, viz., licking the complainant and abusing, cannot be said to have been done in the course of the performance of the duty by the second respondent.
[561H] (2) The facts subsequently coming to light during the course of the judicial enquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction.
It may be possible for the second respondent to,place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter related with his official duty, so as to attract the protection afforded by sec.
197 of the Cr.
Whether sanction is necessary or not may have to depend from stage to stage.
[562D] Horiram Singh, , Bhagwan Prasad Srivastava vs N. P. Mshra, [1971] 1 S.C.R. 317, Matajog Dobey vs H. C. Bhari ; and Sarjoo Prasad vs The King Emperor.
relied upon. |
vil Appeal No. 1248 of 1967.
Appeal by certificate from the judgment and order dated April 7, 1966 of the Punjab High Court at Chandigarh in Letters Patent No. 296 of.
section K. Mehta, K. R. Jagaraia and M. Qamaruddin, for the appellants.
H. K. Puri, R. L. Roshan and section K. Dhingra, for respondents Nos.
3 5, 9 & 10.
199 The Judgment of the Court was delivered by ALAGIRISWAMI, J.
This is an appeal by certificate against the judgment of a Division Bench of the Punjab High Court 'in a Letters Patent Appeal.
The question for decision in this appeal depends upon the interpretation of clause (ccc) added to the proviso to sub section (1) of section 60 of the Code of Civil Procedure by Punjab Relief of Indebtedness Act 7 of 1934 as amended by Punjab Acts 12 of 1940 and 6 of 1942 exempting from attachment "One main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment debtor other than an agriculturist and occupied by him : Provided that the protection afforded by this clause shall not extend to any proper ty specifically charged with the debt sought to be ' recovered.
" The facts giving rise to this appeal are as follows.
The appellants are two brothers and their sons.
They constituted a firm called Jahangiri Mal Kalu Ram.
On 19 11 1956 they were declared insolvents and the Official Receiver took possession of all their properties including the building in dispute.
On 21 11 1956 the appellants filed an objection petition under section 60 of the Code of Civil Procedure read with section 4 of the Provincial Insolvency Act in respect of taking the possession of the building in dispute basing this upon clause (ccc) above referred to.
The Official Receiver contended that the property in dispute is not a residential house but a shop and that the back portion of the building which consists of a kitchen and raised platform etc., for placing water was given in trust to the petitioners for residential purposes at the time of taking the possession of the shop.
The creditors also contended that the property in dispute is a shop and not a residential house, even though the appellants were admitted to be using the back portion of the shop as their residence.
The Trial Court held that ". .the entire building consists; of two distinct units, the one opening in the chowk of themandi being distinct business premises as a shop while theother structure on the back thereof is exclusively a residence hours .
The unit which is a shop has the, main hallwhich has two.
apartments on account of the arched columns 'inthe middle, and the kotha immediately behind the said half.
I consider this kotha to be an integral part of the shop because there is no indication at the spot that it was an essential part of the residen tial house.
To the contrary, the staircase leading from the hall on to the roof of that kotha and the steps from the roof of that kotha leading to the roof of the hall and to the room on a portion thereof, show that the said kotha is an integral part of the shop itself.
The two units being the 200 property of the same persons naturally we would expect connecting doors between these two units.
He, therefore, upheld the objection petition of the appellants in respect of the portion BCDE in the plan and the upper storey thereon, and dismissed it in respect of the rest of the building.
On appeal by the insolvents the learned District Judge of Hissar held that there was no manner of doubt that the building in question is the main residential house of the insolvents and allowed the appeal.
On appeal by the creditors a learned Single Judge observed "Accepting the.
finding of the Insolvency Judge that the shop has a separate access of its own it cannot be denied that the residential portion is connected with it.
The shop is in the ground floor and there is an opening in the Mandi but it is connected with the residential portion on the same floor.
The other portion of the building is entirely devoted to residential purposes.
" In the result he held "It is only a portion of the ground floor which has been used for shops.
In my opinion, the view adopted by the lower appellatecourt is in conformity with the intent and language of theLegislature and is also in accord with the authorities of this Court.
" On a further appeal under the Letters Patent the Division Bench purporting to follow the Full Bench decision of that Court in Ude Bhan & Ors.
vs Kapoor Chand & Ors.
(1), where it was held that if out of the main residential house belonging to a non agriculturist judgment debtor a portion is let out by him to a tenant, the whole house could not be said to be in his occupation, allowed the appeal and set aside the judgments.
of the I earned Single Judge as well as the District Judge and restored the order of the Insolvency Judge.
We have carefully considered the facts of this case and are in agreement with the view of the learned District Judge as well as the learned Single Judge of the High Court that the building is a single one with a portion of it in the down stairs being used as a shop.
That portion opens on the chowk Mandi Dabwali and there is another opening for regular entrance from a public street.
There is no evidence that any portion of the upstairs is being used for the purpose of the shop.
Therefore, there is no warrant for the finding of the Insolvency Judge that the building is in two distinct portions.
Indeed the learned Judges of the Division Bench did not differ from the finding of the first appellate court and the second appellate court on this point.
They seem to accent this finding and proceed on that basis.
Their reasoning was that if a portion of the main residential house of a judgment debtor ceases to enjoy immunity from attachment, in case that portion is let out by the, judgment debtor to a tenant, it (1) I.L.R. 1966 (2) Punjab 400.
201 would necessarily follow that the.
shop portion of a building, the other part of which is being used for residential purpose would not be exempt from attachment.
It appears to us that this conclusion does not follow from the judgment of the Full Bench or from the language of the statute.
It is obvious that what clause (ccc) exempts is the main residential house.
There is no doubt that the building is the main residential house of the insolvents.
The judgment of the Full Bench proceeds on the basis that when a portion of even a main residential house is let out to a tenant by the judgment debtor that portion is not occupied by him and as occupation of the residential house by the judgment debtor is one of the requirements of the statute is order to qualify for exemption from attachment the portion let out cannot be said to be occupied by the judgment debtor and therefore does not qualify for exemption.
Therefore, the decision of the Full Bench gives no guidance in interpreting the question that has to be considered in this case.
The question for decision in this case is whether if a portion of the residential house is occupied by the judgment debtor himself for the purposes of a shop that portion ceases to be part of the residential house.
It appears to us clear that 'it does not.
In the circumstances and social conditions of this country it would be difficult to justify the conclusion that where a part of a residential house is used in connection with the business or profession of the owner of that house that portion ceases to be part of the residential house.
As is well known, very often a lawyer might have his office room in his house, a doctor might have a consulting room in his house, an advocate 's library might occupy one of the rooms of his house.
The room where the lawyer works or his library is located cannot be said to cease to be part of his residential house.
The Punjab Court has taken the same view at least from the year 1951.
In Agha Jafar Ali Khan V. Radha Kishan(1) it was held that "where the whole building is being used for the purposes of residence, the mere fact that there is a shop on the ground floor will not convert the building into something different from a residential house".
The judgment of the Full Bench mentions that it is not clear in that case whether the shop portion of the building was in the possession of the judgment debtor or was rented out by him.
A careful reading of the judgment shows that there was no question in that case of the shop portion of the building being in the possession of anybody except the owner.
In Firm Ganga Ram vs Firm Jai Ram(2) where the ground floor of a building with three floors was being used for commercial purposes and the first and the second floors for residential purposes it was held that the judgment debtor can claim immunity from attachment or sale, with respect to the entire house under the provisions of section 60(1) clause (ccc), where it is the (1) A.I.R. 1951 Punjab 433.
(2) A.I.R. 1957 Punjab 293.
202 only residential house belonging to them and occupied by them It is instructive to refer to a portion of the discussion "The conditions in our country are such which admit of a composite user of the same building.
A part of the same house is used for dwelling, and the other part is meant for commercial or business purpose and sometimes even the later portion, particularly after the business hours, is used for dwelling. ".
Having regard to the mode of living of the people in this country, their habits and customs, it is not possible generally to designate a particular building as one, which is used exclusively for a residential purpose in contradiction to a commercial purpose.
On this basis, residential building of a medical practitioner, will not be exempt from liability to attachment or sale, if in a portion he receives or treats his patient.
_ "Similarly, where in his house, an iron smith works on his forge, a shoes maker maker shoes on his last, a potter turns his wheel, or any other artisan spreads his tools, to make a living, or a petty trader keeps his wares for sale, according to the interpretation, which the learned counsel for the respondent, asks me to put on the words occurring in the Code, the provisions will be powerless in extending any effective protection.
This construction will result in defeating the very purpose of the law.
" We completely agree with the learned Judge 's observations.
It is interesting to note that in Punjab Mercantile Bank Limited (in liquidation) Jullundur City vs Messrs General Typewriter Co., Jullundur City() Tak Chand, J. who gave the above judgment held that where the judgment debtor was residing in the greater part of the house two chabaras on the first floor let out to tenants were not exempt from attachment and sale.
To the same effect is the judgment of the Full Bench relied on by the Division Bench in this case.
Tek Chand, J. has kept clear in his mind the distinction between a case where a portion of the residential house is let out and a portion used by the owner himself, though for a purpose other than residential.
Such use does not make the residential house cease to be a residential house or the portion so used as not part of the residential house.
(1) 8 1.
203 There is no doubt that this was the main residential house of the insolvents and it was occupied by them.
The facts of the case bring it squarely within the scope of the section and the whole building is, therefore, exempt from attachment.
The appeal is, therefore, allowed, the judgment of the Division Bench set aside and the judgments of the learned Single Judge and the learned District Judge are restored.
The respondents will pay the appellants ' costs.
S.B.W. Appeal allowed. | The appellants.
two brothers and their sons, constituted a firm.
They were declared insolvent and the Official Receiver took possession of all their properties including the building in dispute.
The appellants filed an objection petition under Sec.
60 of the Code of Civil Procedure read with Sec. 4 of the Provincial Insolvency Act in respect of taking possession of the building in dispute basing this upon cause (ccc) of the, Proviso, subsection (1).
The Trial Court held that the entire building consists of two distinct units, the one being distinct business premises as a shop, while the other structure, on the back thereof, exclusively used a residential premises, and, therefore, upheld the objection petition of the appellants in respect of the residential portion and the upper storey thereon and dismissed it in respect of the rest of the building on appeal the Dist.
Judge and the Single Judge of the High Court held in favour of the appellants.
On a further appeal under the Letters Patent.
the Division Bench purporting to follow the Full Bench Decision of that Court in Ude Bhan and Ors.
vs Kapoor Chand and Ors.
allowed the appeal and set aside the judgments of the learned single Judge and restored the order of the Insolvency Judge.
On appeal by certificate, allowing the appeal, HELD : (1) If a portion of the residential house is occupied by the Judgment debtor himself for the. purpose of a shop that portion does not cease to be part of the residential house.
In the circumstances and social conditions in this country it would be difficult to justify the conclusion that where a part of a residential house is used in connection with the business or profession of the owner of that house that portion ceases to be part of the residential house.
The Punjab High Court has taken the same view at least from the year 1951.
The contrary view taken by the impugned judgment does not flow form the full bench judgment or the language of the Section [201D] Ude Bhan & Ors.
vs Kapoor Chand & Ors., I.L.R. 1966 (2) Punjab 400, Agha Jafar Ali Khan vs Radha Kishore, A.I.R. 1951 Punjab 433, distinguished.
Firm Ganga Ram vs Firm Jia Ram, A.I.R. 1957 Punjab 293 followed.
Punjab Mercantile Bank Limited (in liquidation) Jullundur City vs Messers General Typewriter Co. Jullundur City, , referred to.
(2) There is no doubt that the building in question was the main residential house of the appellants and it was occupied by them.
The facts of the ' case bring it squarely within the scope of the section and the whole building is, therefore, exempt from attachment.
[2O3A] |
s Nos. 39 & 92 of 1969.
Under Article 32 of the Constitution of India for the enforcement of Fundamental rights.
V.M. Tarkunde, G.R. Chopra and C.M. Kohli for the petitioners.
Gobind Das and section K. Nayar, for the respondents (in W.P.No. 39/69) and respondents Nos.
1 4 (in W.P. No. 92/69).
P.K. Chatterjee and G.S. Chatterjee, for respondents Nos.
5 6 (in W. P No. 92/69).
Judgment of the Court was delivered by MATHEW, J. These are petitions filed under article 32 of the Constitution praying for issue of appropriate direction or order for the enforcement of the fundamental right of the petitioners under article 31(1) of the Constitution.
The question raised in the petitions is that we propose to deal with Writ Petition No. 39 of 1969 decision there will govern and dispose of Writ No. 92 of 1969.
The petitioner is a company incorporated under the Indian Companies Act, 1913.
It has its registered office in Calcutta and a branch office at Binani House, Khundi Katra, Mirzapur, U.P.
The petitioner is an importer and a dealer in non ferrous metals like zinc, lead, copper, tin, etc.
and is on the approved list of registered suppliers to the Directorate General of Supplies and Disposals, hereinafter referred to as DGS&D.
It is also a registered dealer in the State of West Bengal under the Bengal Finance Act, 1941 and the .
The petitioner used to procure nonferrous metals from various countries and also from within the country for fulfilling its contracts with the Government of India through _the DGS&D.
The import of non ferrous metals was under Open General Licence till June 30, 1957.
Thereafter, a licensing systems was introduced by the Government of India and the established traders including M 602 Sup CI/74 622 the petitioner were asked to get their quotas fixed on the basis of their past imports.
On April 2, 1958, the Government of India promulgated the Non Ferrous Metals Control Order, 1958 under the Essential Commodities Act, 1951 by virtue of which free sale of copper was banned.
Any import of copper by the established licence holders was to be distributed under the directions of the Controller of Nonferrous Metals.
Under the Non Ferrous Metals Control Order, 1958.
and also under the Import Trade Regulations, the established importers were not free to sell the metals imported by them against their quota licences even to the DGS&D.
The petitioner, in order to effect supplies to the DGS&D had to obtain additional import licence.
Under the Import Trade Control Policy, the established importers including the petitioner obtained quota licences for import of non ferrous metals for the licensing period upto April, 1964 March, 1965, but the imports mentioned here were to be distributed only under the directions of the Controller of Non Ferrous Metals or the Import Trade Control Authority.
On September 14, 1965, the Government of India promulgated the Scarce Industrial Materials Control Order, 1965, under the Defence of India Rules.
Stocks of non ferrous metals including incoming imports were thus frozen.
The Non Ferrous Metals Control Order, 1958, was repealed.
The Scarce Industrial Materials Control Order, 1965 was also repealed on June 6, 1966.
The Government of India, in placing orders with the petitioner used to grant import licences in terms of the contract.
The petitioner had been importing and supplying non ferrous metals to respondents 1, 2 and 3 during the last 19 years.
Respondent No. 2 had agreed to pay and was paying the Central Sales Tax and/or West Bengal Sales Tax whichever was applicable to the petitioner in terms of the contract.
In 1966, this Court held in K.G. Khosla and Co. vs Deputy Commissioner of Commercial Taxes(1) hereinafter.
referred to as the Khosla Case, that the sale by Khosla & Co. to DGS&D in India of axle box bodies manufactured in Belgium by their principal occasioned the movement of goods in course of import and sales tax was not exigible on the transaction in view of section 5(2) of the .
On the basis of this judgment, respondent No. 2 issued an order.
(Annexure P 1) to all the authorities concerned including respondent No. 4, namely, the Pay and Accounts Officer, Ministry of Works, Housing and Supply directing that sales tax should not be allowed in respect of supply of stores which has been specifically imported against licences issued by the Chief Controller of Imports and Exports on the basis of Import Recommendation Certificates issued by the DGS&D or other authorities like the State Trading Corporation for supplies against contracts placed by the DGS&D.
The Pay and Accounts Officer, acting on Annexure P 1 deducted the amounts of sales tax paid by the respondents under all the old contracts from the current bills which were submitted by the petit ioner to him.
Respondent No. 4 actually deducted a sum of Rs. 60,780/ from the bills which were pending payment and also threatened to recover Rs. 2,35,130 01 being the amount paid by respondent No. 2 as sales tax in respect of (1) ; 623 contracts which had, already been executed.
The assessments on the petitioner upto the year ending October, 27, 1962, were completed prior to the date of judgment in Khosla Case and the issue of the order at Annexure P 1.
The petitioner, when it came to know of Annexure P 1 Order, approached the Sales Tax authorities in West Bengal and filed revised returns in the pending assessments and claimed refund of taxes paid on the sales, treating the sales as having been made in the course of import on the basis of the judgment in Khosla Case.
The West Bengal Sales Tax authorities took the view that there were two sales involved in the transactions in question, namely, sale to the petitioner by the foreign sellers and sale by the petitioner to the DGS&D, that there was no privity of contract between the DGS&D and the foreign sellers, that the petitioner, under the import licences granted to it, was entitled to import the goods from any person or country and that the import licences issued as against the contracts with the DGS&D imposed no obligation on the petitioner to supply the goods to the DGS&D after they had been imported.
They, therefore, held that tax was exigible on the sales by the petitioner to the DGS&D.
The questions which arise for consideration are, whether, on the basis of Annexure P 1 Order, respondent No. 4 was entitled to deduct Rs. 60 780/ from the amount due to the petitioner in respect of pending bills and whether the claim of the respondents to recover a further sum of Rs. 2,35,130.01 from the petitioner is justified.
It was contended on behalf of the petitioner that the transactions in question, namely, the sales which the petitioner made to DGS&D were not the sales which occasioned the movement of the goods in the course of import and as those sales were separate and distinct from the contracts of purchase made by the petitioners with the foreign sellers which alone occasioned the movement of goods in the course of import, tax was exigible upon the transactions of sale by the petitioner to DGS&D and, therefore, the decision in Khosla Case has no application to facts here.
Article 286(1)(b) provides: "286.
(1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (b) in the course of import of the goods into, or export of the goods out of, the territory of India".
In State of Travancore Cochin & Others vs The Bombay Co. Ltd. (1) Patanjali Sastri, C.J. said that a sale by export involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea and that such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export form parts of a single transaction.
Of these two integrated activities which together (1) ; 624 constitute an expert sale, whichever first occurs can well be regarded as taking place in the course of the other.
In State of Travancore Cochin & Others vs Shanmugha Vilas Cashew Nut Factory and Others (1), it was observed by the same learned Chief Justice that the phrase 'integrated activities ' was used in the previous decision to denote that 'such a sale ' (i.e. a sale which occasions the export)"cannot be dissociated from the export without which it cannot be effectuated ', and the sale and the resultant export form parts of a single transaction" and that it is in that sense that the two activities the sale and the export were said to be integrated.
There was no definition of the expression 'in the course of import ' before the Sixth Amendment of the Constitution.
By that Amendment, Parliament was given power to formulate the principles for construing the expression.
And, in s.5(2) of the , Parliament has given a legislative meaning to the expression "5(2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India.
" In Ben Gorm Nilgiri Plantations Company V. Sales Tax Officer(2), the question was whether the sales of the tea chests at auctions held at Fort Cochin were exempt from levy of sales tax by virtue of article 286(1)(b).
The nature of the transaction was as follows: A manufacture obtains from the Tea Board allotment of export quota, the manufacturer then puts the tea in chests which are sold in public auctions; bids are made by agents or intermediaries of foreign buyers; agents and intermediaries then obtain licences from the Central Government for export.
This Court found nothing in the transaction from which a bond could be said to spring between the sale and the.
intended export linking them as parts of the same transaction.
The sellers had no concern with the export, the sale imposed or involved no obligation to export and there was possibility that the goods might be diverted for internal consumption.
The Court considered the sales as sales for export and not in the course of export.
The Court observed that to occasion export there must exist such a bond between the contract of sale and the actual exportation, that each link is in extricably connected with the one immediately preceding it and that without such a bond, a transaction of sale cannot be called a sale in the course of export of goods out of the 'territory of India.
The Court further said that in general where the sale is effected by the seller, and he is not connected with the export which actually takes place, it is a sale for export and where the export is the result of the sale, the export being inextricably linked up with the sale so that the bond cannot be dissociated without a breach of the obligation arising (1) ; ,63.
(2) ; 625 by statute, contract or mutual understanding between the parties arising from the nature of the transaction, the sale is in the course of export.
In the Khosla Case, the assessee entered into a contract with the DGS&D, New Delhi, for the supply of axle box bodies.
The goods were to be manufactured in Belgium according to specifications and 'the DGISD, London or his representative had to inspect the goods at the works of the manufacturers and issue an inspection certificate.
Another inspection was provided for at Madras.
The assessee was entitled to be paid 90 per cent.
after inspection and delivery of the stores to the consignee and the balance of 10 per cent.
was payable on final acceptance by the consignee.
In the case of deliveries on f.o.r.
basis the assessee was entitled to 90 per cent.
payment after ins pection on proof of despatch and balance of 10 per cent.
after receipt of stores by the consignee in good condition.
The assessee was entirely responsible for the execution of the contract and for the safe arrival of the goods at the destination.
The contract provided that notwithstanding any approval or acceptance given by an Inspector, the consignee was entitled to reject the goods, if it was found that the goods were not in conformity with the terms and conditions of the contract in all respects.
The manufacturers consigned the goods to the assessee by ship under bills of lading and the goods were cleared at the Madras Harbour by the Assessee 's Clearing Agents and despatched for delivery to the Southern Railway in Madras and Mysore.
The question was whether the sales by the assessee to the Government departments were in the course of import and export from taxation under s.5(2) of the .
Sikri, J. (as he then was), delivering the judgment of the Court said after referring to s.5(2) of the that the movement of goods to India was occasioned by the contract of sale between the appellant (Khosla & Co.) and the DGS&D, that if the movement of goods is the result of a covenant or incidental to the contract of sale, it is quite immaterial that the actual sale took place after the import was over.
In Coffee Board vs Joint Commercial Tax Officer (1), hereinafter referred to as Coffee Board Case, the Coffee Board claimed that as certain sales of coffee to registered exporters in March and April, 1963 were sales made 'in the course of export ',it could not be taxed under the Madras General Sales Tax Act, 1959.
The rules framed by the Coffee Board provided that only dealers who had registered themselves as exporters of coffee with the Coffee Board or their agents and who held permits from the Chief Coffee Marketing Officer in that behalf would be permitted to participate in the auction , and after the bidding comes to an end, the payment of price would take place in a particular way.
Condition No.26 he added "export guarantee" provided that it was an essential condition of the auction that the coffee sold thereat shall be exported to the destination stipulated in the Catalog of lots, or to any other foreign country outside.
India as may be approved by the Chief Coffee Marketing Officer, within three (1) ; 626 months from the date of Notice of Tender issued by the Agent and that it shall not under any circumstances be diverted to another destination, sold, or be disposed of, or otherwise released in India.
Condition 30 stated that if the buyer failed or neglected to export the coffee as aforesaid within the prescribed time or within the period of extension, if any granted to him, he shall be liable to pay a penalty calculated a Rs. 50 per 50 kilos which shall be deductible from out of the amount payable to him as per condition 31.
And Condition 31 provided that no default by the buyer to export the coffee aforesaid Within the prescribed time or such extension thereof as may be granted, it shall be lawful for the Chief Coffee Marketing Officer, without reference.
to the buyer, to seize the un exported coffee and take possession of the same and deal with it as if it were part and parcel of Board 's coffee held by them in their Pool stock.
The case of the petitioners before this Court was that the purchases at the export auctions were really sales by the Coffee Board in the course of export of coffee out of the territory of India since the sales themselves occasioned the export of Coffee and that the coffee so sold was not intended for use in India or for sale in the Indian markets.
The case of the Sales Tax Authorities, oil the other hand, was that these sales were not inextricably bound up with the export of coffee and that the sales must therefore be treated as sales taking place within the State of Tamil Nadu liable to sales tax under the Madras General Sales Tax Act.
This Court held that the Board was not entitled to the exemption claimed.
The Court said that the phrase 'sale in the course of export ' comprises three essentials, namely, that there must be a sale, that goods must actually be exported and that the sale must be a part and parcel of the export.
The Court further said that the sale must occasion the export and that the word 'occasion ' is used as a verb and means 'to cause ' or 'to be the immediate cause of '.
The Court was of the view that the sale which is to be regarded as exempt from tax is a sale which causes the export to take place or is the immediate cause of the export, that the introduction of an intermediary between the seller and the importing buyer breaks the link, for, then there are two sales, one to the intermediary and the other to the importer, and that the first sale is not in the course of export, for the export begins from the intermediary and ends with the importer.
According to the Court the test was that there must be a single sale which itself causes the export and that there is no room for two or more sales in the course of export, The Court, therefore, held that though the sales by the Coffee Board were sales for export, they were not sales in the course of export, that there were two independent sales involved in the export programme: the first sale by the Coffee Board to the export promoter, and the second sale by the export promoter to a foreign buyer which occasioned the movement of goods and that the latter sale alone could earn the exemption from sales tax as being a sale the in the course of export.
Khosla Case, it might be recalled that Khosla and Co. entered into.
the contract of sale with the DGS&D for the Supply of axle bodies manufactured by its Principal.
in Belgium and the goods were to be 627 inspected by the buyer in Belgium but under the contract of sale the goods were liable to be rejected after a further inspection by the buyer in India.
It was in pursuance to this contract that the goods were imported into the country and supplied to the buyer at Perambur and Mysore.
From the statement of facts of the case as given in the judgment of the High Court it is not clear that there was a sale by the manufacturers in Belgium to Khosla & Co., their agent in India.
it would seem that the only sale was the sale by Khosla & Co. as agent of the manufacturer in Belgium In the concluding portion of the judgment of this Court it was observed as follows : ".
It seems to us that it is quite clear from the contract that it was incidental to the contract that the axle box bodies would be manufactured in Belgium, inspected there and imported into India for the consignee.
Movement of goods from Belgium to India was in pursuance of the conditions of the contract between the assessee and the Director General of Supplies.
There was no possibility of these goods being diverted by the assessee for any other purpose.
Consequently we hold that the sales took place in the course of import of goods within s.5(2) of the Act, and are, therefore, exempt from taxation.
" As already stated, there was to be an inspection of the goods in Belgium by the representative of the DGS&D but there was no completed sale in Belgium as, under the contract, the DGS&D reserved a further right of inspection of the goods on their arrival in India.
Be that as it may, in the case under consideration we are concerned with the sales made by the petitioner as principal to the DGS&D. No doubt, for effecting these sales, the petitioner had to purchase goods from foreign sellers and it was these purchases from the foreign sellers which occasioned the movement of goods in the course of import.
In other words, the movement of goods was occasioned by the contracts for purchase which the petitioner entered into with the foreign sellers.
No movement of goods in the course of import took place in pursuance to the contracts of sale made by the petitioner with the DGS&D.
The petitioner 's sales to DGS&D were distinct and separate from his purchases from foreign sellers.
To put it differently, the sales by the petitioner to the DGS&D did not occasion the import.
It was purchases made by the petitioner from the foreign sellers which occasioned the import of the goods.
The purchases of the goods and import of the goods in pursuance to the contracts of purchases were, no doubt, for sale to the DGS&D.
But it would not follow that the sales or contracts of sales to DGS&D occasioned the movement of the goods Into this country.
There was no privity of contract between DGS&D and the foreign sellers.
The foreign sellers did not enter into any contract by themselves or through the agency of the petitioner to the DGS&D and the movement of goods from the foreign countries was not occasioned on account of the sales by the petitioner to DGS&D.
It was contended on behalf of the Central Government that the contracts of sale between the petitioner and the DGS&D envisaged 628 the import of goods for fulfilling the contracts and it was for that reason that there was first the recommendation for issue of import licences by DGS&D and then the actual issue of import licences and, as the contracts of sale visualised the import of goods for fulfilling them, the movement of goods in the course of import was occasioned by the contracts of sale to the DGS&D, and, therefore, the sales to the DGS&D were the sales which occasioned the movement of goods in the course of import.
There was no obligation under the contracts on the part of the DGS&D to procure import licences for the petitioner.
On the other hand, the recommendation for import licence made by DGS&D did not carry with it any imperative obligation upon the Chief Controller of Imports and Exports to issue the import licence.
Though under the contract DGS&D undertook to provide all facilities for the import of the goods for fulfilling the contracts including an Import Recommendation Certificate, there was no absolute obligation on the DGS&D to procure these facilities.
And, it was the obligation of the petitioner to obtain the import licence.
Therefore,even if the contracts envisaged the import of goods and their supply to the DGS&D from out of the goods imported, it did not follow that the movement of the goods in the course of import was occasioned by the contracts of sale by the petitioner with DGS&D.
We see no reason in principle to distinguish this case from the decision in the Coffee Board Case though that case was concerned with the question when a sale occasions the movement of goods in the course of export.
In the result, we quash Annexure P 1 order so far as the petitioners are concerned and allow the writ petitions with costs.
S.C. Petitions allowed. | In W. P. No. 92 of 1969, the Petitioner Company prayed for issue of appropriate direction or order for the enforcement of its fundamental rights guaranteed under article 31(1) of the Constitution.
The facts are as follows: The petitioner company was a dealer in non ferrous metals and was a registered supplier to the Directorate General of Supplies and Disposals.
The company was also a registered dealer in the State of West Bengal.
The petitioner used to procure non ferrous metals from various countries and also from within the country for fulfilling its contracts with D.G.S. & D.
The import of non ferrous metals was under open General licence till June, 30, 1957.
Thereafter, a licensing system was introduced by the Government of India and the petitioner was asked to get their quotas fixed on the basis of their past imports.
On April 2, 1958, the Government of India promulgated the Non ferrous Metals Control Order, 1958 by virtue of which free sale of copper was banned.
Any import of copper by the licence holders was to be distributed under the directions of the Controller of Non ferrous metals.
Under the Non ferrous Metals Control Order, 1958, and also under the Import Trade Regulations, the established importers were not free to sell the metals imported by them against their quota licences even to D.G.S.& D. The petitioner, in order to effect supplies to D.G.S. & D. had to obtain additional import licence.
The petitioner obtained quota licences for import of non ferrous metals for the licensing periods upto April 1964, March 1965; but the imports were to be distributed only under the directions of the Controller.
On Sept. 14, 1965, the Govt.
of India promulgated the Scarce Industrial Materials Control Order 1965, under the Defence of India Rules.
Stocks of non ferrous metals including incoming imports were thus frozen.
The Non ferrous Metals Control Order 1958 and the Scarce Industrial Materials Control Order 1965 were both repealed.
The Government of India in placing orders with the petitioner used to grant import licences in terms of the contract.
The petitioner had been importing and supplying non ferrous metals to respondents 1,2 and 3 during the last 19 years.
Respondent No. 2 had agreed to pay and was paying the Central Sales Tax and/or West Bengal Sales Tax, whichever was applicable to the petitioners in terms of the contract.
In 1966, the Supreme Court held in K. G. khosla and Co. vs Deputy Commissioner of Commercial tax ; that the sale by Khosla & Co. to DGS & D in India of axle box bodies manufactured in Belgium by their principal, occasioned the movement of goods in the course of import and sales tax was not exigible on the transaction in view of Sec.
5(2) of the , and article 286 of the Constitution.
Thereafter, respondent No. 2 issued an order to respondent No. 4 that Sales Tax should not be allowed in respect of supply of stores which had been specifically 620 imported against contracts placed by D.G.S. & D. Respondent No. 4, acting in terms of the order, deducted Rs. 60,780/ being the Sales Tax already paid from the pending bills of the petitioner and also threatened to recover more than Rs. 2 lakhs being the amount paid by respondent No. 2 as Sales Tax in respect of contracts which had already been executed.
The petitioner, thereafter, approached the Sales Tax Authorities in W. Bengal and filed revised returns in the pending assessments and claimed refund of taxes paid on the sales, treating the sales as having been made in the course of import on the basis of the judgment in Khosla 's case.
The West Bengal Sales Tax Authorities took the view that there were two sales one, to the petitioner by the foreign seller and the other, by the petitioner to D.G.S. & D. and that there was no privity of contract between D.G.S. & D. and the foreign sellers, that the petitioner under the import licences granted to it, was entitled to import the goods from any person or country and that the import licences issued as against the contracts with the Directorate General of Supplies & Disposals imposed ,no obligation on the petitioner to supply the goods to the D.G.S. & D after they had been imported, they therefore, held that tax was exigible on the sales by.
the petitioner to the D.G.S. & D.
The questions which arose for consideration were: (i) whether on the basis of the order, respondent No.4 was entitled to deduct Rs. 60,780 from the amount due to the petitioner and (ii) Whether the claim of the respondent to recover a further sum of more than Rs. 2 lakhs from the petitioner was justified.
The petitioner contended that the sales which the Company made to D.G.S. & D. were not the sales which occasioned movement of any goods in the course of import as those sales were separate and distinct from the contracts of purchase made by the Company with the foreign sellers which alone occasioned the movement of goods in the course of import, tax was exigible upon the sales by the petitioner to D.G.S & D. and therefore, the decision in Khosla 's Case has no application to the facts here.
Allowing the writ petitions, HELD : (i) article 286(1) (b) provided that no law of a State shall impose a tax on the sale or purchase of goods where such sale or purchase takes place in the course of the import or export of the goods in India.
A sale by export involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea and that such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale or resultant export from parts of a single transaction of these two integrated activities which together constituted an export sale, whichever occurs first can well be regarded as taking place in the course of the other.
[623H] State of Travancore Cochin and Ors.
vs The Bombay Co. Ltd. ; 12, referred to (ii) The words, 'Integrated activities ' were used in the earlier case to denote that such a sale ' (i.e. a sale which occasions the export) ' cannot be dissociated from the export without which it cannot be effectuated, and the sale and the resultant export form parts of a single transaction ', and in that case the sale and the export were said to be integrated.
[624B] per Patanjali Sastri C.J. in State of Travancore Cochin and Ors.
vs Shamugha Vilas Cashew Nut Factory and Ors. ; referred to .
(iii) There was no definition of the expression 'in the course of import ' before the Sixth Amendment of the Constitution.
Later Parliament gave legislative meaning to the expression in section 5(2, of the which provides that a sale or purchase of goods in the course of the import into India, shall be deemed to take place if the sale or purchase either occasions such import or is effected by a transfer of documents of title before the goods have crossed the customs frontiers of India.
[624C] 621 (iv) In the present case, the petitioner as principal made the sale to the D.G.S. & D. 'For effecting the sales, the petitioner had to purchase goods from foreign sellers and it was these purchases from the foreign sellers which occasioned the movement of goods in the course of imports.
In other words, the movement of goods was occasioned by the contracts for the purchase, which the petitioner entered into with the foreign sellers.
No movement of goods in the course of import took place in pursuance to the contracts of sales made by the petitioner with the D.G.S. & D. The petitioner 's sales to D.G.S. & D. were distinct and separate from his purchases from foreign sellers.
There was no privity of contract between the D.G.S. & D. and the foreign sellers.
The foreign sellers did not enter into a contract by themselves or through the agency of the petitioner to the D.G.S.& D. and the movement of goods through foreign countries was not occasioned on account of the sales by the petitioner to D.G.S. & D.
Even if the contracts between the petitioner and the D.G.S. & D. envisaged the import of goods, and their supply to the D.G.S. & D. from out of the goods imported, it did not follow that the movement of the goods in the course of import was occasioned by the contracts of sale by the petitioner with the D.G.S. & D.
The present case, therefore, cannot be distinguished from the decision in the Coffee Board 's case though that case was concerned with the question when a sale occasioned the movement of goods in the course of export.
The order issued by respondent No. 2, was, therefore, quashed.
, [627E 628E] |
Appeal No. 1825 of 1967.
Appeal by special leave from the judgment and order dated the 18th May, 1967 of the Punjab and Haryana High Court in L.P.A. No. 158 of 1967.
Naunit Lal and Lalit Kohli, for the appellant O.P. Verma, for the respondent The Judgment of the Court was delivered by ALAGIRISWAMI, J.
The property in dispute in this appeal belonged to Wadhawa Singh, the father of the respondent.
After his death in the year 1933 his widow, who succeeded to the estate, made a gift of the property in favour of her daughter, the respondent, in.
April, 1933.
The appellants filed a suit as reversioners to the estate of Wadhawa Singh questioning the gift.
The suit was decreed and the decree was confirmed on appeal.
After coming into force of the on 17 6 1956 the widow again made a gift of the same lands to the respondent.
She died in 1963.
The appellants then filed the suit, out of which this appeal arises, for possession of the lands alleging that the second gift was void.
The Trial Court decreed their suit but on appeal the respondent succeeded in the first Appellate Court as well as the High Court on second appeal.
There is no doubt that Wadhawa Singh 's widow had no right to male a gift of the property which she inherited from her husband in 1933 and the decree obtained by the appellants, who were reversioners to her husband 's estate would bind the respondent who was also a party, to that suit.
The question then is whether the coming into force, of the Hindu succession Act and the subsequent gift made by the widow in favour of the respondent make any difference.
Had not the widow made the gift to the respondent in 1933, she would have become an absolute owner of the property as a result of section 14 of the and the gift made by her subsequently in favour of the respondent could not have been questioned.
But having made the gift in 1933 she was not in possession of the property inherited by her from her husband and, therefore, did not become a full owner, with the result that the subsequent gift made by her in favour of the respondent was of no effect.
This point that unless the limited owner is in possession of the property section 14 does not apply has now been settled by decisions of this Court beyond dispute.
What then is the effect of the provision of section 8 of the in the circumstances of this case. 'The Punjab High Court in its decisions in Banso vs Charan Singh (AIR 1961 Punjab 45), and Kuldip Singh vs Karnail Singh (AIR 1961 Punjab 573), where the facts 530 were similar to the present case, has taken the view that when a widow dies after the coming into force of the the next heir to her husband is to be determined in accordance with the law prevailing on the date of the death of the widow and not in accordance with the law prevailing at the time of the death of her husband and held that the daughter succeeded in preference to the reversioners.
The Mysore High Court on the other hand in Kempiah vs Girigamma (AIR has held that on the death of the widow succession would be governed by the Hindu Law which was in force when the last mate holder actually died.
The Patna High Court in Renuka Bala vs Aswini Kumar (AIR 1961 Patna 498) was disposed to take a similar view though the case before it was concerned with succession to the property of a female under s.15.
The Madras High Court in Sampathkumari vs Lakshmi Ammal (AIR 1963 Madras 50) also took the view that in such circumstances section 8 of the would not apply.
But the case before that Court was one where two widows who had succeeded to the estate of their husband were in possession, and therefore, section 14 was applicable.
Lastly, we have the decision of this Court in Eramma vs Verrupanna In that case this Court after setting out the provisions of section 6 of the observed: "It is clear from the express language of the section that it applies only to coparcenary property of the mate, Hindu holder who dies after the commencement of the Act.
It is manifest that the language of section 8 must be construed in the context of section 6 of the Act.
We accordingly hold that the provisions of section 8 of the are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act section 8 of the Act will have no application.
" Interpreted literally this dicision would seem to accord with the decisions of all the other High Courts except the Punjab High Court.
But it should be noticed that the problem that we are faced within the present appeal and in the cases before the Punjab and Mysore High Courts did not arise before this Court on the earlier occasion.
The decisions of the Madras High Court and the Patna High Court are not directly in point.
In the case before this Court the two women were in possession of property whose last male holder, who had died before coming into force of the , was their step son.
They were not, therefore in legal possession of the properties of the last male holder.
The question that had to be decided was whether because of the coming into force of the they were entitled to succeed under section 8, and the further question whether section 14 would be attracted as they were actually in possession.
It was held that as they were not legally in possession s, 14 would not apply, It was in that context that it was said that where a male Hindu died before the; Act came into force i.e., where succession opened before the section 8 of the Act will have no application, The point that succession 531 might open not only when the male Hindu died but also subsequently again when a limited owner who succeeds him dies was not taken into account.
There was no need and no occasion to consider such a contingency in that case.
There was the further fact that the last male holder was succeeded on his death by persons who were then.
his nearest heirs and the property vested in them could not be divested by the coming into force subsequently thought this fact was not adverted to in the judgment.
This Court had, therefore.
also no occasion to consider the effect of the earlier decisions on the question as to what happens when a female limited owner, whether she is a widow, mother or daughter who succeeds the last male bolder, dies.
That position may now be considered.
It was authoritatively laid down by the Privy Council in its decision in Moniram Kolita vs Keri Kaliteni (ILR 5 Calcutta 776 at 789) that : "According to the Hindu Law, a widow who succeeds to the estate of her husband in default of male, issue, whether she succeeds by inheritance or survivorship as to which see the S hivagunga case (1) does not take a mere life estate in the property.
The whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a qualified interest.
Her estate is an anomalous one, and has been compared to that of a tenant in tail.
It would perhaps, be more correct to say that she holds an estate of inheritance to herself and the heirs of her husband.
But whatever her estate is, it is clear that, until the termination of it, it is impossible to say who are the persons who will be entitled to succeed as heirs of the husband (2).
The succession does not open to the heirs of the husband until the termination of the widow 's estate.
Upon the termination of that estate the property descends to those who would have been the heirs at the husband if he had lived up 'to and died at the moment of her death (3).
" In the subsequent decision in Duni.
Chand vs Anar Kali (AIR the Privy Council observed: ". during the lifetime of the widow, the reversioners in Hindu Law have no vested interest in the estate but have a mere spes succession is or chance of succession, which is a purely contingent right which may or may not accrue,that the succession would not open out until the widow died, and that the person who would be the next reversioner at that time would succeed to the estate and the alteration in the rule of the Hindu Law brought about by the Act would then be in full force.
(1) 9 Moore 's I.A., 604.
(2) Id., 532 In the argument before their Lordships, reliance was placed upon the words "dying intestate" in the Act as connoting the future tense, but their Lordships agree with the 'view of the Lahore High Court in at p. 367, that the words are a description of the status of the deceased and have no reference and are not intended to have any reference to the time of the death of a Hindu male.
The expression merely m eans "in the case of intestacy of a Hindu male".
To place this interpretation on the Act is not to give a retrospective effect to its provisions, the materials point of time being the date when the ,.succession opens, namely, the death of the widow.
On the position of reversioners in Hindu Law, opinions have been expressed by this Board from time to time with which the views of the learned Chief Justice in 58 All.
1041(2) mentioned above, are in agreement.
It was said, for instance, that until the termination of the widow 's estate, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband; (3) at p. 604.
The succession does not open to the heirs of the husband until the termination of the widow 's estate.
Upon its termination, the property descends to those who would have been the heirs of the husband If he had lived uP to and died at the moment of her death 7 I. A. 115 (4) at 154.
" It would be noticed that the Privy Council interpreted the words "dying intestate" as merely meaning "in the case of intestacy of a Hindu male" and said that to place this interpretation on the Act is not to give retrospective effect to its provisions.
Those are the very words found in section 8.
These may be contrasted with the words of section 6 "where a male Hindu dies after the commencement of this Act.
" Here the reference is clearly to the time of the death.
In section 8 it is only to the fact of intestacy.
The material point of time, as pointed out by the Privy Council, is the date when the succession opens, namely, the death of the widow.
It is interesting to note that the Privy Council was interpreting the provisions of the Hindu Law of Inheritance (Amendment) Act, 1929 where the two contrasting expressions found in the are not found. ' The case for the interpretation of the words "dying intestate" under the is stronger.
The words "where a male Hindu dies after the commencement of this Act" in section 6 and their absence in section 8, are extremely significant.
Thus two propositions follow: (1) Succession opens on the death of the limited owner.
and (2) the law then in force would govern the succession.
Now if this proposition is correct, as we hold it is, that where a female heir succeeds to an estate, the person 'entitled to succeed on the basis as if the last male holder had lived up to and died at the (1) Mt. Rajpali Kunwer vs Surju Rai (58 All. 1041).
(2) Shakuntala Devi vs Kambsalya Devi (3) Katam Natchiar vs Rajah of Shiva Gunga , (4) Monirain Kolita vs Kerry Kolitang (7 IA 115: 533 death of the limited owner, succession to Wadhawa Singh 's estate in the present case opened when his widow died and it would have to, be decided on the basis that Wadhawa Singh had died in 1963 when his widow died.
In that case the succession to his estate would have to, be decided on the basis of s.8 of the .
The various High Courts which have held otherwise seem to have been oppre ssed by the feeling that this amounted to giving retrospective effect to section 8 of the whereas it is only prospective.
As the Privy Council pointed out it means no such thing.
The accepted position under the Hindu Law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day.
It would be unreasonable to hold that in such a circumstance the law as it existed at the time when the last male holder actually died should be given effect to.
If the person who is likely to succeed at the time of the limited owner 's death is not, as happens very often, likely to be the person who would have succeeded if the limited owner had not intervened, there is nothing unreasonable in holding that the law as to the person who is entitled to succeed on the limited owner 's death should be the law then in force and not the law in force at the time of the last full owner 's death.
The Madras High Court thought that the decision of the Privy Council in Duni Chand vs Anar Kali (supra) was based upon a legal fiction and that fiction cannot be given effect to except for a limited purpose.
The Mysore High Court also thought that the death referred to in section is actual death and not fictional death.
In East end Dwellings Co., Ltd. vs Finsbury Borough Council 132) lord Asquith of Bishopstone observed :.
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so,. also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.
One of those in this case is emancipation from the 1939 level of rents.
The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs".
This observation was cited with approval by this Court in Venkatachalam vs Bombay Dyeing & Mfg. Co., Ltd (1959 S.C.R. 703) If, therefore, succession opens and is to be decided on the basis of the last full owner dying on the date of death of the limited owner the inevitable corollary is that it is only the law in force at the time of the death of the limited owner that should govern the case.
To hold that the old Hindu Law applies to such a case is to allow your imagination to boggle.
In the case decided by the Privy Council in Duni Chand vs Anar Kali (supra) if this principle had been applied the new heirs 534 introduced by the Hindu Law of inheritance (Amendment) Act, 1929 could not have then come in.
We are not impressed with the reasoning of the Patna High Court that because the change brought about by that Act is different from the change brought about by the a different conclusion follows.
We should consider that if even the limited change in the area of succession effected by the Hindu Law of Inheritance (Amendment) Act, 1929 is to be given effect to as the law applicable on the date of the death of the limited owner, it is all the more reason why the which makes a much more radical change in the Hindu Law should have similar application.
The Mysore High Court thought that the not being a mere declaratory Act, retrospective effect should not be given to it so as to impair existing rights and obligations.
But the reversioners ' right being a mere spes succession is there is no question of impairing existing rights by adopting the interpretation we place on section 8 apart from the fact that, as earlier pointed out, the interpretation does not amount to giving retrospective effect to section 8.
of course, if the property had already vested in a person under the ,old Hindu Law it cannot be divested.
We must also point out that the classes of cases where such a question is likely to arise is very limited.
Where a widow, mother or daughter was in possession of the estate on the coming into force of the she would become full owner under the provisions of the section 14 of the Act.
Even if a widow was in possession of the share belonging to her in the joint family estate tinder the pro visions of the Hindu Women 's Right to property Act, 1937, she would become a full owner under section 14.
In both those cases section 8 would have no operation.
It is only in rare cases, like the present, that the question is likely to arise at all and we can see no reason either in principle or on authority why the principle consistently followed under the earlier Hindu Law that on the death of the limited owner succession opens and would be decided on the basis that the last male owner died on that day, should not apply even after coming into force of the Hindu ,Succession Act, Mr. Naunit Lal appearing for the appellant argued that the result ,of the decision of this Court in Eramma vs Verrupanna (supra) is that on the death of Wadhawa Singh 's widow it is the old Hindu Law that applied and therefore under the custom in force in Punjab under which a daughter was not entitled to succeed to the ancestral property of the father in preference to the reversioners should apply and the appellants are entitled to succeed.
There is no doubt about the position under the Customary Law of Punjab before coming into force of the .
In Rattigan 's Digest of the Customary Law ' published by the University Book Agency (14th Ed.), paragraph 23 at age 132 it is stated: " 23.(1) A daughter only succeeds to the ancestral landed property of her father, if an agriculturist, in default : (1) Of the heirs mentioned in the preceding paragraph and 535 (2) Of near male collaterals of her father, provided that a married daughter sometimes excludes near male collaterals, especially amongst Muhammadan tribes : (a) where she has married a near collateral descendant from the same common ancestor as her father; or (b) where she has, with her husband continuously lived with her father since her marriage; looking after his domestic wants, and assisting him in the management of his estate; or (c) where being married to a collateral of the father 's family, she has been appointed by her father as his heir.
(2) But in regard to the acquired property of her father,the daughter is preferred to collaterals.
" It is on the basis of this Customary Law that the reversioners succeeded in the suit filed by them questioning the gift made by the respondent 's mother to her.
There is no doubt that Rattigan 's work is an authoritative one on the subject of Customary Law in Punjab, This Court in Mahant Salig Ram vs Musammat Maya Devi at 1196) said : "Customary rights of succession of daughters as against the collaterals of the father with reference to ancestral and non ancestral lands are stated in paragraph 23 (if Rattigan 's Digest of Customary Law.
it is categorically stated in sub paragraph (2) of that paragraph that the daughter succeeds to the self acquired property of the father in preference to the collaterals even though they are within the fourth degree.
Rattigan 's work has been accepted by the Privy Council as "a book of unquestioned authority in the Punjab".
Indeed the correctness of this paragraph was not disputed before this Court in Gopal Singh vs Ujagar Singhi (1).
It is not now open to the respondent to show whether any of the circumstances mentioned in sub paragraph (2) of paragraph 23 of Rattigan 's Digest of Customary Law is present here as the previous decision is resjudicata between the parties and in any case it has not been attempted to be shown in this case.
But in the view we have taken that it is section 8 of the that applies and not the Customary Law the appellants cannot succeed in this appeal.
In the result the appeal is dismissed.
The appellants will pay the respondent 's costs.
section B. W. Appeal dismissed. | The respondent 's father, W, who owned the suit property died in 1933.
His widow, who succeeded to the estate, gifted the property to her daughter, the respondent.
The appellants filed a suit as reversioners of W questioning the gift.
The "it 'as decreed and the decree was confirmed on appeal.
After coming into force of the on 17 6 1956, the widow again made a gift of the same, lands to the respondent.
She died in 1963.
The appellants then filed the suit, out of which this appeal arose, for possession of the lands.
alleging that the second gift was void.
The trial court decreed their suit but on appeal the respondent succeeded in the first Appellate Court as well as in the High Court on second appeal.
On appeal by special leave to this Court, Dismissing the appeal, HELD (1) Following the decisions of the Privy Council in Moniram Kolita vs Keri Kolitani, I.L.R. 5 Calcutta 776 at 789 and Duni Chand vs Anar Kali, A.I.R. 1946 P.C. 173, (infra) the words "dying intestate in Sec.
8 of the Act must be interpreted as merely meaning "in the case of intestacy of a Hindu male" and to place this interpretation on the Act is not to give retrospective effect to its provisions.
The reference is only to the fact of 'intestacy.
The material point of time is the date when the succession opens, namely, the death of the widow.
Thus this propositions follow (i) Succession opens on the death of the limited owner, and (ii) the law then in force would govern the succession.
[532D G] Moniram Kolita vs Keri Kolitani, I.L.R. 5, Calcutta 776 789 and Duni Chand vs Anar Kali, A.I.R. 1946 P.C. 173, followed.
Eramma vs Verritpatina, , explained and distinguished.
Banso vs Charan Singh, A.I.R. 1961, Punjab 45 and Kuldip Sing vs Karnail Singh, A.I.R. 1961, Punjab, 573, approved.
Kempiah vs Giriganima, A.I.R. , overruled.
Renuka Bala vs Aswini Kumar A.I.R. 1961, Patna 498 and Sam pathkumari N. Lakshmi Ammal, A.I.R. 1963 Madras, 50, distinguished.
(ii)Succession to W 's estate in the present cage opened when his widow died and it would have to be decided on the basis that W died in 1963 when his widow died.
in that case succession to his estate would have to be decided on the basis of section 8 of the .
The accepted position under the Hindu law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day.
If, therefore, succession opens and is to be decided on the basis of the last full owner dying on the date of the death of the limited owner it is only the law in force at the time of the death of the limited owner that should govern the case.
To hold that the old Hindu law applies to such a case is to allow your imagination to boggle.
[533 A C, G H] Eastend Dwellings Co. Ltd. vs Finsbury Borough Council, , 132, per Lord Acsquit and Venka tachalam vs Bombay Dyeing & Mfg. Co. Ltd., ; , referred to.
The reversioners ' right being a mere spes successions there is no question of impairing existing rights by adopting the interpretation we place on section 8 apart from 529 the fact that it does not amount to giving retrospective operation to section 8.
Of course,, if the property had already vested in a person under the old Hindu Law, it cannot be divested.
We can see no reason either in principle or on authority why the principle consistently followed under the earlier Hindu law that on the death of the limited owner succession opens and would be decided on the basis that the last male owner died on that day, should not apply even after coming into force of the Act.
In the view we have taken it is section 8 of the Act that applies and not the Customary Law.[534C D,E F.535G] |
minal Appeal No. 248 of 1960.
Appeal by special leave from the judgment and order dated October 31, 1960, of the Rajasthan High Court in D. B. Criminal Appeal No. 290 of 1960 and D. B, Criminal Murder Reference No 7 of 1960.
591 R. L. Anand, C. L. Sareen and B. L. Kohli, for the appellants.
S.K. Kapur and T. M. Sen, for the respondent 1961.
September.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave from the judgment of the Rajasthan High Court.
It arises out of an incident in which Bhimsen was murdered on May 8, 1959 at Mandi Pili Bangan shortly before 3 P.m.
The prosecution story briefly was, that there was bad blood between Ramratan appellant and the members of the family of Bhimsen on account of panchayat elections in which they had supported rival candidates.
Another cause for.
enmity was that some time before the occurrences Ramratan appellant was prosecuted under section 307 of the Indian Penal Code and Bhimsen was cited as a prosecution witness in that case and Ramratan did not like that.
Bhimsen and his father brought some gram for sale on the night between May 7/8, 1959, to Pili Bangan.
Bhimsen returned to the village to bring more grain and came back at about10/11 A.M. on the 8th on his tractor trolly along with his brother Ram Partap.
The gram was to be sold 'through Roopram and was stacked in front of his shop in the mandi.
Ram Partap was apparently not interested in the sale; and had wandered away leaving his father Jawanaram and his brother Bhimsen at the shop.
Shortly before 3 p.m. while the gram was being weighed by Lekhram weighman, the three appellants and two others (namely, Moman and Ramsingh) came up there armed with ,guns.
Ramratan shouted that the enemy should not be allowed to escape as Bhimsen was trying to enter the shop of Roopram to save himself on seeing these persons.
Before, however, Bhimsen could enter the shop of Roopram, Ramratan came in between and fired at him from a distance 592 about 5 feet.
Bhimsen got injured and fell down and died soon after.
Jawanaram raised his hands and asked the assailants not to kill Bhimsen but Hansraj appellant fired at him causing a wound on his left hand,.
which resulted in a compound fracture.
Maniram also fired at.
Jawanaram but he dropped on the ground and pellets hit Lekhram weighman who was standing behind Jawanaram.
Thereafter all the assailants ran away.
Roopram had shut up his shop when the incident took place and he only came out When everything was over.
Jawanaram asked him to send telegram to police station Suratgarh and told him the names of the five assailants.
Thereafter jawanaram started for the police outpost in Pili Bangan to make a report; but Ramsingh constable met him on the way at a short distance from the shop of Roopram.
Thereupon Jawanaram made a report (exhibit P 1) to Ramsingh then and there.
While this report was being recorded, Ram Partap also turned up.
After the report had been recorded, Jawanaram was sent to the hospital where his injuries were examined at 3 30 P.m.
Ramsingh constable went to the spot after recording the report and found the dead body of Bhimsen lying in front of Roopram 's shop It appears that head constable gone outside and returned at 5 P.M. and started investigation thereafter.
The Sub inspector arrived on the scene at about 6 p.m. and took over the investigation and.
completed it.
Thereafter the three appellants and two others who have been acquitted by the Sessions Judge were prosecuted for this murder.
The case of the appellants was that they had not committed this offence and that they had been implicated on account of enmity They examined no evidence in defence.
The main prosecution evidence consisted of the statements of Jawanaram, his son Ram Partap, Roopram and Lekhram as to what happened at the spot.
Jawanaram related the whole story as given above, Ram Partap said that he had come near 593 the spot on seeing the assailants going that way and hid himself at some distance and saw the incident from there.
Roopram 's statement was that he shut up his shop as soon as he heard some noise outside and did not see the assailants.
When he came out, however, he was told by Jawanaram the names of the five assailants and saw Bhimsen lying dead.
He had also heard three reports of gunshots from inside his shop.
He saw Jawanaram and Lekhram were also there injured and Jawanaram went away shortly after for making the report.
Sometime thereafter the police came to the spot and started investigation.
Lekhram stated that he was there weighing the gram.
Four or five persons armed with guns came there and shouted and fired two or three times with the result that Bhimsen, Jawanaram and he were injured and Bhimsen died immediately.
But he was unable to say whether the five persons in the dock were the assailants.
Because of certain answers that he gave in cross examination this witness was treated as hostile by the prosecution.
The Sessions Judge relied on the statement of Jawanaram and convicted the three appellants.
He however, gave the benefit of doubt to the other two assailants and acquitted them.
He did not rely on the statement of Ram Partap as he was of the view that Ram Partap did not arrive in the Mandi till about 6 P.m.
He also did not rely on the statement of Lekhram, which in any case was useless in so far as the connection of the appellants with the crime was concerned.
As to Roopram he held that his statement that Jawanaram had told him the names of the assailants immediately after the incident was over when he came out of his shop could not be used as corroborate on of the statement of Jawanaram under section 157 of the Indian Evidence Act, as Jawanaram had not said in his statement in Court that he had told Roopram the names of the five assailants He was also doubtful whether the report (exhibit P 1) was 594 recorded at 3 P.m. and thought that it might have been recorded any time up to 6 P.m.
But even so he placed full reliance on the evidence of Jawanaram only and convicted the three appellants, sentencing Ramratan to death and the other two to imprisonment for life.
This was followed by an appeal to the High Court by the convicted persons.
The Sessions Judge also made a reference for the confirmation of the sentence of death passed on Pamratan.
The High Court dismissed the appeal.
It also accepted the evidence of Jawanaram in the main.
The High Court was further of opinion that Ram Partap was in Pili Bagan when the incident took place having come there with his brother Bhimsen at about10/11 A.M.; but the High Court did not think it fit to rely on his evidence as to the actual incident, for it thought that he had not been able to see it properly from where he said he was hiding.
Further the High Court did not consider the evidence of Lekhram of much value as if, did not connect the appellants with the crime.
But the High Court was of the opinion that Roopram 's statement that Jawanaram had told him immediately after the occurrence the names of the five assailants was admissible in evidence and could be used to corroborate the statement of Jawanaram.
The High Court thought that this statement of Roopram was admissible under section 6 as well as under a. 157 of the Evidence Act.
The High Court therefore upheld the conviction on the evidence of Jawanaram corroborated as it was by the evidence of Roopram.
The High Court having refused to grant a certificate, the appellants applied to this Court for special leave which was granted; and that is how the matter has come up before us.
Two main contentions have been urged before, us on behalf of the appellants.
In the first place, it is urged that the High Court was not right in the view that the statement of Roopram was 595 admissible under section 6 and section 157 of the Indian Evidence Act and went to corroborate the statement of Jawanaram.
Secondly, it is urged that once the statement of Roopram is ruled out as inadmissible there is only the statement of Jawanaram left to connect the appellants with the crime and in the circumstances of this case that solitary evidence should 'De held insufficient to bring home the guilt to the appellants.
The first question therefore that arises in the appeal is whether the statement of Roopram to the effect that Jawanaram told him immediately after the incident, when he came out of his shop that the appellants and two others were responsible for the murder of Bhimsen and the injuries to Lekhram and himself, is admissible, either under section 6 or under section 157 of the Indian Evidence Act.
We (lo riot think it necessary to consider whether this statement of Roopram is admissible under section 6 of the Evidence Act and shall confine ourselves to the question.
whether it can be admitted under section 157 as corroboration of Jawanaram 's state ment.
Learned counsclfor the appellants in this connection relies on Mt. Misri vs Emperor (1), and Nazar Singh vs The State (2) which support him and lay down that unless the witness to be corroborated says in his statement in court that be, had told certain things immediately after the incident to another person, that other person cannot give evidence and say that the witness bad told him certain things immediately after the incident.
The argument is that the corroboration that is envisaged by section 157 is of the statement of the witness in court that he had told certain things to the person corroborating the witness 's statement, and if the witness did not say in court that he had told certain things to that person, that person cannot state that the witness had told him certain things immediately after the incident and (1) A.I.R. 1934 Sind 100, (2) A.I.R. 1931 Pepsu 66.
596 thus corroborate him.
We are of opinion that this contention is incorrect.
Section 157 is in these terms: ",In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, or at about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
" It is clear that there are only two things which are essential for this section to apply.
The first is that a witness should have Riven testimony with respect to some fact.
The second is that he should have made a statement earlier with respect to the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact.
If these two things are present, the former statement can be proved to corroborate the testimony of the witness in court.
The former statement may be in writing or may be made orally to some person at or about the time when the fact took place, if it is made orally to some person at or about the time when the fact took place, that person would be competent to depose to the former statement and corroborate the testimony of the witness in court.
There is nothing in section 157 which requires that before the corroborating witness deposes to the former statement the witness to be corroborated must also say in his testimony in court that he had made that former statement to the witness who is corroborating him.
It is true that often it does happen that the witness to be corroborated says that he had made a former statement about the fact to some person and then that person steps into the witness box and says that the witness to be corroborated had made a statement to him about the fact at or about the time ",hen the fa ct took place.
But in our opinion it is not necessary in view of the words of section 157 that in order to make corroborating evidence admissible, the witness to be corroborated must also say in his evidence that he had made such 597 and such statement to the witness who is to corroborate him, at or about the time when the fact took place.
As we have said already what section 157 requires is that the witness to be corroborated must give evidence in court of some fact.
If that is done, his testimony in court relating to that fact can be corroborated under section 157 by any former statement made by him relating to the same fact, and it is not necessary that the witness to be corroborated should also say in his statement in court that he made some statement at or about the time when the fact took place to such and such person.
The words of section 157 are in our opinion clear and require only two things indicated by us above in order to make the former statement admissible as corroboration.
We are therefore of opinion that the Sind and Pepsu cases were wrongly decided.
Now let us see what happend in this case.
Jawanaram was examined in court and stated about a certain fact (namely, that the assailants of Bhimsen, Lekhram and himself were five persons whom he named).
The testimony of Jawanaram to be corroborated is his statement in court with respect to the fact that five persons attacked Bhimsen, Lekhram and himself.
Section 157 makes his former statement with respect to the same fact admissible provided that the statement was made at or about the time when the fact took place or before any legal authority competent to investigate the fact.
In this case we are concerned with the first of the two conditions necessary, namely, whether he had made that former statement relating to the same fact.
at or about the time when the fact took place.
The former statement which can be used as corroboration must be about the fact namely that Jawanaram had seen five persons attacking Bhimsen, Lekhram and himself and must have been made at or about the time when the fact took place i. e., when the attack was made.
Now Roopram says that Jawanaram 598 had made the statement immediately after the incident was over that five persons including the three appellants had attacked Bhimsen, Lekhram and himself.
This was therefore a former statement of Jawanaram at or about the time when the fact took place, namely, the attack by five persons on Bhim sen and others.
This former statement can be proved by the person to whom it was made and can be used as corroboration of the evidence of Jawanaram.
It was not necessary before the statement of Roopram as to what he heard from Jawanaram can be admissible for Jawanaram also to say in his testimony in court that he bad told Roopram immediately after the incident the names of the five assailants of Bhimsen and others.
The former statement which can be used as corrobo ration is the, statement at or about the time the fact took place about which evidence has been given in court by the witness to be corroborated.
Section 157 does not contemplate that before the; former statement can be proved in corroboration, the witness to be corroborated must also say in his testimony that he had made the, former statement.
Of course if the witness to be corroborated also says in his testimony that he had made the former statement to someone that would add to the weight of the evidence of the person who gives evidence in corroboration, just as if the witness to be corroborated says in his evidence that he had made no former statement to anybody that may make the statement of any witness appearing as corroborating witness as to the former statement of little value.
But in order to make the former statement admissible under section 157 it is not necessary that the witness to be corroborated must also, besides making the former statement at or about the time the fact took place, say in court in his testimony that he had made the former statement.
We are therefore of opinion that even though Jawanaram did not say in his statement in court that he had told Roopram the names of the five assailants, Roopram 's 599 evidence that Jawanaram had made such a statement would be admissible under section 157 in corroboration of Jawanaram 's testimony as to the fact that five persons had attacked Bhimsen and others.
As to the value to be attached to this corroboration in the present case, it is enough to say that Roopram is an independent witness and even though Jawanaram may not have said in evidence that he had told the names of the assailants to Roopram (perhaps by inadvertence as the High Court seems to think), we agree with the High Court in accepting the statement of Roopram that Jawanaram had immediately named the five persons who had attacked Bhimsen, Lekhram and himself.
Thus the statement of Roopram corroborates the statement of Jawanaram in two ways : firstly, that there was an incident in front of his shop in which Bhimsen was murdered and Jawanaram and Lekhram were injured, arid secondly, proves the former statement of Jawanaram as to the persons who took part in the incident, thus corroborating his statement in court under s.157.
This is not therefore a case where there is no corroboration of the testimony of Jawanaram, even if he were the solitary witness of the incident itself.
As to the second point, namely, that we should not accept the solitary testimony of Jawanaram in the circumstances of this case, learned counsclrelies on Vemireddy Satyanarayan Reddy vs The State of Hyderabad (1).
In that case there was the solitary testimony of one witness and it was urged that he was an accomplice.
This Court hold that he was not an accomplice but remarked that "we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as it would be unsafe to hang four people on his sole testimony unless we feclconvinced that he is speaking the truth.
" The reason why this Court said so in that (1) ; 600 case was that though the witness was not an accomplice his position was considered somewhat analogous to that of an accomplice though not exactly the same.
It was in those circumstances that this Court said that corroboration in material particulars would be required in the circumstances of that case.
We are of opinion that those observations cannot be divorced from the context of that case.
In the present case Jawanaram is neither an accomplice nor anything analogous to an accomplice; he is an ordinary witness who was undoubtedly present at the time the incident took place. '.rho case of such a solitary witness was considered by this Court in Vadivelu Thevar vs The State of Madras (1) and after referring to the earlier case it was held that as a general rule a court may act on the testimony of a single witness, though uncorroborated.
It was further held that unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cages where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, and that the question whether corroboration of the testimony of a single witness was or was not necessary, must depend upon facts and circumstances of each case.
These are the general principles which we have to apply in the case of the testimony of a single witness, like Jawanaram.
But as we have held that in the present case there is corroboration of Jawanaram 's statement by his former statement deposed to by Roopram, it is not a case of altogether uncorroborated testimony of a single witness.
In any case the evidence of Jawanaram has been considered by both the Sessions Judge and the High Court, and the Sessions Judge was prepared to convict the appellants on the sole testimony of Jawanaram while the High Court has also accepted that testimony, though it has added that it is corroborated by the statement of Roopram.
In (1) ; 601 the circumstances when the evidence of Jawanaram has been accepted by both the courts, with or without corroboration, we see no reason to disagree with the conclusion of the two courts as to the value of Jawanaram 's evidence.
The criticism made against the acceptance of the evidence of Jawanaram has been considered by the two courts and in spite of that criticism the two courts have come to the conclusion that the evidence of Jawanaram is reliable.
We agree with the estimate of that evidence by the two courts and hold that Jawanaram 's evidence can be relied on in the circumstances of this case.
Two main points are urged in this connection to shake the testimony of Jawanaram.
It is said that Jawanaram has introduced Ram Partap in the first information report and that the Sessions Judge at any rate did not believe that Ram Partap was in Pill Bangan before 6 P.m. though the High Court held otherwise.
Secondly, it is said that Jawanaram did not make the first report at about 3 P. M. and the Sessions Judge at any rate held that the report could have been made at any time upto 6 P.m. though the High Court held otherwise.
We have been taken through the evidence in this connection and we agree with the High Court that even though Ram Partap might not have actually seen the incident he had definitely come to Pili Bangan at about II A.M. with his brother Bhimsen.
There is the evidence of Ram Singh constable who says that Ram Partap came there when the report (exhibit P 1) was being written at about 3 P.m., which is supported by the fact that Ram Partap 's presence is mentioned in the report.
The defence relied on a statement in the inquest report (Ex.
P 4) in which it is mentioned at the end that Ram Partap son of Jawanaram also arrived during the course of the completion of the inquest report and was sent along with the corpse.
This means that Ram Partap was not present when the inquest proceedings began and arrived there when they 602 were coming to an end.
From this it cannot be inferred that Ram Partap was not in Pili Bangan at all before 6 P.m.
There.
is ample evidence, which the High Court has rightly believed, to show that Ram Partap had come to Pili Bangan at about 10 or 11 A. M.
The other criticism with respect to the time when the report (exhibit P.1) was made is also in our opinion unjustified and the High Court was right in the view it took in that connection.
There is no doubt that Jawanaram reached the hospital at 3 30 P.m. as deposed to by Dr. Sudershan Singh and that he was sent by the police.
It is obvious therefore that Jawanaram had contacted the police before 3 30 P.m.
It stands to reason that if he had contacted the police before 3 30 P.m. be must have made a report of the incident also and that is what exactly Ram Singh constable deposes.
We agree with the High Court that in the circumstances there is no reason to disbelieve the statement of Ram Singh constable.
The Sessions Judge was doubtful of the evidence of Ram Singh because he was of the view that documentary evidence from the police outpost at Pili Bangan had not been produced in support of Ram Singh 's statement.
Ram Singh was asked about it and stated that though exhibit P 1 did not bear the despatch number as it was not sent to the outpost at all, he must have made entries in the diary of the outpost about his starting from there and his return and also about the occurrence, though he did not remember about it.
After this statement of Ram Singh, the Sessions Judge was not right in disbelieving him because of the non production of the entries from the outpost.
It would have been better if the prosecution had produced those entries ; but even if the prosecution rested upon the oral testimony of Ram Singh, the Sessions Judge could and should himself have sent for those entries, if he was inclined to disbelieve the oral testimony of Ram Singh constable who appears 603 to be a reliable witness.
In the circumstances we are of opinion that the view of the High Court that the report was written at 3 P. m. as stated by Ram Singh constable is correct.
The evidence of Jawanaram therefore cannot be rejected on these two grounds.
Lastly it was urged that Jawanaram bad named five assailants and at least two have been acquitted, and that shows that Jawanaram is not wholly reliable.
It is enough to point out that the Sessions Judge gave the benefit of doubt so far as two accused persons were concerned.
He did not hold that Jawanaram 's evidence was false with respect to those two persons.
Apparently those two persons did not take any active part in the incident and that may have led the Sessions Judge to give them the benefit of doubt; that is, however, no reason for disbelieving the testimony of Jawana ram.
We are therefore of opinion that the two courts below were right in relying on Jawanaram.
His evidence is corroborated undoubtedly by other witnesses to the extent that the incident did take place at the shop of Roopram; his statement that the three appellants and two others were the assailants is corroborated by his former statement made immediately after the incident was over and deposed to by Roopram.
In the circumstances we are of opinion that the appellants have been rightly convicted.
Two of the appellants (namely, Maniram and Hansraj) have been sentenced to imprisonment for life while Ramratan has been sentenced to death.
The reason why Ramratan has been sentenced to death is that he was the man who shot Bhimsen.
He was also the leader of this group and the enmity was directly between him and the members of the family of Jawanaram.
We agree with the High Court that there are no extenuating 604 circumstances which would justify the reduction of sentence of death passed on Ramratan.
The appeal therefore fails and is hereby dismissed.
Appeal dismissed. | The appellants were convicted on a charge of murder on the sole testimony of one witness.
Another prosecution witness deposed that the former witness told him immediately after the incident that the appellants were responsible for the murder.
The question which arose was whether it was necessary for the former witness also to depose in Court that he had told the names of the murderers to the other witness immediately after the occurrence or whether his former statement be proved under s.157 of the Indian Evidence Act to corroborate his.
testimony without his deposing about it in Court.
Held, that it was not necessary under section 137 of the Evidence Act that the witness to be corroborated must also say in his testimony in court that he had made the former statement to the witness who was corroborating him.
What s.157 required was that the witness to be corroborated must give evidence in court of some fact and if that was done his testimony in court relating to that fact could be corroborated by any former statement made by him relating to the same fact.
Mt. Misri vs Emperor, A.I.R. 1934 Sind 100 and Nazar Singh vs The State, A.I.R. 1951 Pepsu 66, held as wrongly decided.
As a general rule a court may act on the testimony of a single witness, though uncorroborated and the question whether corroboration of the testimony of a single witness was or was not necessary must depend on the circumstances of each case.
Vemireddy Satyanarayan Reddy vs The State of Hyderabad, ; , distinguished.
Vedivelu Thevar vs The State of Madras, ; , followed. |
l Appeal No. 1827 of 1967.
Appeal by special leave from the judgment and order dated the '29th April 1966 of the Rajasthan High Court at Jodhpur in D. B. ,Civil Regular First Appeal No. 57.
U. N. Trivedi and Ganpat Rai, for the Appellants.
Sobhagmal Jain, for the respondent.
The Judgment of the court was delivered by MATHEW, J.
This is an appeal by special leave against the judgment and decree of the High Court of Rajasthan, setting aside decree for recovery of damages under the Patel Accidents Act, 1855 hereinafter referred to as the 551 Navneetlal was a resident of Udaipur.
He was in the employment of the State of Rajasthan and was, at the material time, working in the office of the Executive Engineer, Public Works Department, Bhilwara as a Store Keeper.
In connection with the famine relief works undertaken by the department he was required to proceed to Banswara.
For that purpose he boarded truck No. RJE 131 owned by the department from Bhilwara on May 19, 1952 and reached Chittorgarh in the evening.
Besides himself, there were Fateh Singh Fundilal and Heera Singh, the driver, cleaner and a stranger in the truck.
On May 20, 1952, they resumed the journey from Chittorgarh at about 11 A. M. and reached Pratapgarh in the same evening.
The truck started from Pratapgarh to Banswara at about 10 A.M. on May 21, 1952.
After having travelled for 4 miles from Pratapgarb, the engine of the truck caught fire.
As soon as the fire was seen the driver cautioned the occupants to jump out of the truck.
Consequently, Navneetlal and the other persons jumped out of the truck.
While doing so, Navneetlal struck against a stone lying by the side of the road and died instantaneously.
Parwati Devilwidow of Navneetlal brought a suit against the State of Rajasthan for damages under the provisions of the Act, The plaintiff alleged that it was on account of the negligence of the driver of the truck that a truck which was not road worthy was put on the road and that it caught, fire which led to the death of Navneetlal and that the State was liable for the negligence of its employees in the course of his employment.
The plaint also alleged that the decreased had left behind him his widow, , namely, the plaintiff, two minor sons,one minor daughter and his parents.
The plaintiff claimed damages to the tune of Rs. 20,000./ and prayed for a decree for that amount.
The State contended that the truck was quite in order when it started from Bhilwara and even when it started from Pratapgarh to Banswara and that if it developed some mechanical troubles suddenly which resulted in its catching fire, the defendant was not liable as there was no negligence the part of the driver.
The trial court found that the act of the driver in putting the truck on the road was negligent as the truck was not roadworthy and since the driver was negligent, the, State was vicariously liable for his act.
The Court assessed the damages at Rs. 14,760/ and granted a decree for the amount to this plaintiff.
It was against this decree that the State appealed to the High Court.
The High Court came to the conclusion that the plaintiff had not proved by evidence that the driver was negligent, that the mere fact that the truck caught fire was not evidence of negligence on his part and that the maxim res ipsa loquitur had no application.
The Court said that the truck travelled safely from Bhilwara to Pratapgarh and that the engine caught fire after having 552 travelled a distance of 4 miles from Pratapgarh and that there was nothing on record to show that the engine of the truck was in any way defective or that it was not functioning properly.
The Court was of the view that the mechanism of an automobile engine is such that with all proper and careful handling it can go wrong while it is on the road for reasons which it might be difficult for a driver to explain.
The Court then discussed the evidence and came to the conclusion that no inference of negligence on the part of the driver was possible on the basis that the engine of the truck got heated of and on and that water was put in the radiator frequently, or that it took considerably long time to cover the distance between Bhilwara and Chittorgarh and that between Chittorgarh and Pratapgarh.
The High Court therefore, allowed the appeal.
The main point for consideration in this appeal is, whether the fact that the truck caught fire is evidence of negligence on the part of the driver in the course of his employment.
The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant.
The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering damage,,, if the proper inference to in drawn from the circumstances which are known is that it was caused by the negligence of the defendant.
The fact of the accident may, sometimes, constitute evidence of negligence and then the maxim res ipsa loquitur applies.
The maxim is stated in its classic form by Erle, C. J. " Where the thing is to shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
" The maxim does not embody any rule of substantive law nor a rule of evidence.
It is perhaps not a rule of any kind but simply the caption to an argument on the evidence.
Lord Shaw remarked that if the phrase had not been in Latin nobody would have called it a principle (2).
The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebutting from the defendant, without having to allege and prove any specific act or omission on the part of the defendant.
The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the dependent responsible for it, even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the defendant.
But though the parties ' relative access to evidence is an influential factor, it is not controlling.
Thus the fact that (1) See SCOtt vs London St. Katherine Docks ; , 601.
(2) See Ballard vs North British Railway Co. 1923 section C. (H.L.) 43.
553 the defendant is as much at a loss to explain the accident or himself died in it, does not preclude an adverse inference against him if the odds otherwise point to his negligence (see John G. Fleming, The Law of Torts, 4th ed., p. 264).
The mere happening of the accident may be more consistent with the negligence on the part of the defendant than with other causes.
The maxim is based on common sense and its purpose is to do justice when the facts bearing on the causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant (see Barkway vs section Wales Transport(1).
The plaintiff merely proves a result, not any particular act or.
omission producing the result.
If the result in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquitur is said to apply, and the plaintiff Will be entitled to succeed unless the defendant by evidence rebuts that probability.
The answer needed by the defendant to meet the plaintiff Is case may take alternative forms.
Firstly, it may consist in a positive explanation by the defendant of how the accident did in fact occur of such a kind as to exonerate the defendant from any charge of negligence.
It should be noticed that the defendant does not advance his case inventing fanciful theories, unsupported by evidence, of how the event might have occurred.
The whole inquiry is concerned with probabilities and facts are required, not mere conjecture unsupported by facts.
As Lord Macmillan said in his dissenting judgment in Jones vs Great Western (2) "The dividing line between conjecture and inference is often a very difficult one to draw.
A conjecture may be plausible, but it is of no legal value, for it sessense is that it is a mere guess.
An inference, inthe, legalsense, on the other hand,is a deduction from the evidence, and if it is are a sonable deduction it may have the validity of legal proof.
The attribution of an occurrence to a cause is, I take it, always a matter of inference.
The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability.
Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved.
" In other words, an inference is a deduction from established facts.and an assumption or a guess is something quite different but not necessarily related to established facts.
(1) [1950] 1 All England Reports 392, 399.
7 M 45 Sup CI/75 (2) 554 Alternatively, in those instances where the defendant is unable to explain the accident, it is incumbent upon him to advance positive proof that he had taken all reasonable steps to avert foreseeable harm.
Res ipsa loquitur is an immensely important vehicle for importing strict liability into negligence cases.
In practice, there are many cases where res ipssa loquitur is properly invoked in which the defendant is unable to show affirmatively either that he took all reasonable precautions to avoid injury or that the particular cause of the injury was not associated with negligence on his part.
Industrial and traffic accidents and injuries caused by defective merchandise are so frequently of this type that the theoretical limitations of the maxim are quite overshadowed by its practical significance (1).
Over the years, the general trend in the application of the maxim has undoubtedly become more sympathetic to plaintiffs.
Concomitant with the rise in safety standards and expanding knowledge of the mechanical devices of our age less hesitation is felt in concluding that the miscarriage of a familiar activity is so unusual that it is most probably the result of some fault on the part of whoever is responsible for its safe performance (see John, G. Fleming, The Law of Torts,4th ed., p. 260).
We are inclined to think the learned District Judge was correct in inferring negligence on the part of the driver.
Generally speaking, an ordinary road worthy vehicle would not catch fire.
We think that the driver was negligent in putting the vehicle on the road.
From the evidence it is clear that the radiator was getting heated frequently and that the driver was pouring water in the radiator after every 6 or 7 miles of the journey.
The vehicle, took 9 hours to cover the distance of 70 miles between Chittorgarh and Pratapgarh.
The fact that normally a motor vehicle would not catch fire if its mechanism is in order would indicate that there v as some defect in it.
The District Judge found on the basis of the evidence of the witnesses that the driver knew about this defective condition of the truck when he started from Bhilwara.
It is clear that the driver was in the, management of the vehicle and the accident is such that it does not happen in the ordinary course of things.
There is no evidence as to how the truck caught fire.
There was no explanation by the defendant about it.
It was a matter within the exclusive knowledge of the defendant.
It was not possible for the plaintiff to give any evidence as to the cause of the accident.
In these circumstances, we think that the maxim res ipsa loquitur is attracted.
It was, however, argued on behalf of the respondent that the State was engaged in performing a function appertaining to its character as sovereign.
as the driver was acting in the course of his employment in connection with famine relief work and therefore, even if the driver (1) See Millner : "Negligence in Modern Law".
555 was negligent, the State would not be liable for damages.
Reliance was placed on the ruling of this Court in Kasturilal Ralia Ram Jain vs State of Uttar Pradesh (1) where this Court said that the liability of the State for a tort committed by its servant in the course of his emp loyment would depend upon the question whether the employ ment was of the category which could claim the special characteristic of sovereign power.
We do not pause to consider the question whether the immunity of the State for injuries on its citizens committed in the exercise of what are called sovereign functions has any moral justification today.
Its historic and jurisprudential support lies in the oftquoted words of Blackstone(2) : "The king can do no wrong.
The king, moreover, is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing : in him is no folly or weakness".
In modern times, the chief proponent of the sovereign immunity doctrine has been Mr. Justice Holmes who, in 1907, declared for a unanimous Supreme Court(3) : "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.
" Today hardly anyone agrees that the stated ground for exempting the sovereign from suit is either logical or practical.
We do not also think it necessary to consider whether there is any rational dividing line between the so called sovereign and proprietary or commercial functions for determining the liability of the State.
We are of the view that, as the law stands today, it is not possible to say that famine relief work is a sovereign function of the State as it has been traditionally understood.
It is a work which can be and is being undertaken by private individuals.
There is nothing peculiar about it so that it might be predicated that the State alone can legitimately undertake the work.
In the view we have taken on the merits of the case, we do not think it necessary to canvass the correctness of the view expressed by the High Court that the appeal by the State before the High Court did not abate even though the legal representatives of the plaintiff respondent there were not impleaded within the period of limitation.
In the result, we set aside the decree of the High Court, restore the decree and judgment passed by the District Judge and allow the appeal with costs.
S.B.W. (1) ; (2) Blackstone, Commentaries (10th ed., 1887) (3) Kawananaka V. Polyblank, ; , 353.
Appeal allowed. | The deceased, who was at the material time in the employment of the State of Rajasthan in the Public Department, was required to proceed from his office at Bhilwara to Banswara, in connection with famine relief work undertaken by the department.
For that purpose, he boarded a truck owned by the department from Bhilwara on May 19, 1952 with six others.
Throughout the journey the radiator of the truck was getting heated frequently and the driver was pouring water into it after every 6 or 7 miles of journey.
The truck took nine hours to travel the distance or seventy miles.
After having travelled four miles from Peragraph, the engine of the truck caught fire.
As soon as the fire was seen, the driver cautioned the occupants to jump out of the truck.
Consequently, they did so, The deceased struck against a stone lying by the side of the road and died instantaneously.
The widow of the deceased brought a suit for damages against the State of Rajasthan under the provisions of the Act.
The plaintiff alleged, inter alia, that it was on account of the negligence of the driver of the truck that a truck which was notroad worthy was put on the road and that it caught fire which led to the death of her husband and that the State was liable for the negligence of its employee in the course of his employment.
The plaint also alleged that the deceased had left behind him his widow namely, the plaintiff, two minor sons, one minor daughter and his parents.
The plaintiff claimed damages to the tune of Rs. 20,000/ and prayed for a decree for that amount.
The state resisted the claim denying negligence of the driver and pleading sovereign immunity.
The trial Court relied on the maxim res ipsa loquitur, found that in putting the truck on the road the driver was negligent as the truck was not road worthy and since the driver was negligent, it held that the State was vicariously liable for his act.
The court assessed the damages at Rs. 14,760/ and granted a decree for the amount to the plaintiff.
Against this decree the state appealed to the High Court on the evidence on record, the High Court held that the principle of res ipsa loquitur had no, application to the facts of the case.
Accordingly, the High Court allowed the appeal.
On appeal by special leave to this Court.
HELD : (1) Generally speaking an ordinary road worthy vehicle would not catch fire.
The driver was negligent in putting the vehicle on the road.
From the evidence, it is clear that the radiator was getting heated frequently and that the driver was pouring water in the radiator after every 6 or 7 miles of journey.
The vehicle took 9 hours to cover the distance of 70 miles between Chittorgarh and Paragraph The fact that normally a motor vehicle would not catch fire if its mechanism is in order would indicate that there was some defect in it.
The Distt.
Judge found on the basis of evidence of witnesses that the driver knew about this defective condition of the truck when he started from Bhilwara.
[554D F] It is clear that the driver was in management of the vehicle and the accident is such that it does not happen in the ordinary course of things.
There is no evidence as to how the truck caught fire.
There was no explanation by the defendant about it. ' It was a matter within the exclusive knowledge of the defendant.
It was not, possible for the plaintiff to give any evidence as to the cause of the accident.
these circumstances, the maxim ipsa loquitur is attracted.
[514F G] 550 The maxim does not embody many rule of substantive law nor a rule of evidence.
It is perhaps not a rule of any kind but simply a caption to an arguments on the evidence.
The maxim is only a convenient label to apply to a set of circums tances, in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege any specific act or omission on the part of the defendant.
Its principal function is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and 'the dependent responsible for it, even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the defendant.
The maxim is based on commonsense and its purpose is to do justice when the facts bearing on causation and on care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant.
[k52F 553 C] The plaintiff merely proves a result, not any particular act or omission producing the result.
If the result, in circumstances which he proves it makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquacious is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability.
Res display loquitur is an immensely important vehicle for importing strict liability into negligence cases.[583 C D, 584 F] Scott.
vs London & St. Catherine Docks ; , 601, (1923) section C. (HL) 43, Barkway vs South Wales Transport [1950]1 All E.R. 392, Jones vs Great Western, , referred to.
(11)As the law stands today, it is not possible to say that famine relief work is :.it sovereign function of the State as it has been traditionally understood.
It is a work which can be and is being undertaken by private individuals.
There is nothing ,peculiar about it so that it might be predicated that the State alone can legitimately undertake the work.
[555 E F] Kasturilal vs State of Uttar Pradesh [1965] 1 S.C,.
R. 375, referred to.
Quaere : (a) Whether the Immunity of the State for injuries on its citizens committed in the exercise of what are called sovereign functions has any moral justification today; (b) whether there is any rational dividing line between the so called sovereign and proprietary commercial functions for determining the liability of the state.
1555 B C, E] Sensable : The modern sovereign immunity doctrine which is based on the ground that there can be no legal right as against the authority that makes the law on which the right depends, for exempting the sovereign from suit is neither logical nor practical.
[555 D E]. |
Appeal No. 1991 of 1971.
From the Judgment and, Order dated the 29th March, 1971, of the Bombay High Court and Bombay in Appeal No. 87 of 1970.
V.M. Tarkunde and Rameshwar Nath for the appellant K.S. Ramamurthy and B.R. Agarwal for the respondent.
The Judgment of the Court was delivered by RAY, C. J.
This is an appeal by certificate from the judgment dated 29th March, 1971 of the High Court of Bombay.
The appellant filed this suit on 2 September, 1964 in the High Court of Bombay and claimed six months salary in lieu of notice and gratuity for 16 years of service.
In the year 1965 the appellant asked for discovery by the respondent of documents relating to pension scheme for foreign employees.
The application for discovery was dismissed in the month of November, 1965.
On 16 December, 1969 the appellant took out a Chamber Summons for amendment of the plaint.
The proposed amendments were twofold.
The first set of amendment related to averments in support of the claim for gratuity which had already been alleged in the plaint.
553 The second set of amendment related to averments in support of a claim for Rs. 850 per month by way of pension as and from 1 February, 1964 during the life time of the appellant.
By an order dated 19 January, 1970 the appellant was allowed to amend the plaint in respect of the claim for gratuity.
The appellant 's proposed amendment in support of the claim for pension was refused.
By summons dated 27 April, 1970 the appellant sought an amendment of.
the plaint claiming Rs. 68,000 as damages in relation to his right to pension.
By an order dated 6 July, 1970 the appellant was allowed to amend the plaint as prayed for.
The respondent preferred an appeal against the order dated 6 July, 1970.
The High Court by judgment dated 29 March, 1971 allowed the appeal and set aside the order dated 6 July, 1970 allowing the amendment.
The appellant repeated the contentions which had been advanced before the High Court.
First, it was said that no appeal could lie against an order of amendment because it was not a judgment within the meaning of clause 15 of the Letters Patent.
Secondly, it was said that an order allowing the amendment was a discretionary cider.
Therefore, the appellate court should not have interfered with the discretion.
Counsel for the appellant submitted that 'judgment ' means a decision finally adjudicating the rights between the parties.
It was emphasised that a judgment would be a decision on substantive rights of parties. 'Amendment ' was submitted to be a procedural right.
Counsel for the appellant relied on the decision in Dayabhai vs Murrugappa Chettiar I. L. R. 13 Rang.
457 and Manohar vs Baliram I.L.R. 1952 'Nag. 471 in support of the proposition that 'judgment ' means and is a decree in a suit by which the rights of the parties in the suit are determined.
The locus classics is the decision of the High Court of Calcutta in Justice of the Peace for Calcutta vs Oriental Gas Company 8 Bengal L.R. 433 where Sir Richard Couch, C. J. said "We think that 'judgment ' means a decision which affects the merits of the question between the parties by determining some right or liability.
It may be either final or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined.
" This Court in Asrumati Debi vs Kumar Rupendra Deb Raikot & Ors. ; dealt with the question as to whether an order of transfer of a suit filed in the Jalpaiguri Court to the High Court to be tried in its Extraordinary Original Civil Jurisdiction was a judgment within the meaning of clause 15 of the Letters Patent.
it was held that an order for transfer of a suit is not a judgment within the meaning of clause 15 of the Letters Patent as it neither affects the merits of the 554 controversy between the parties in the suit itself nor terminates or disposes of the suit on any ground.
This Court in Asrumati Debi 's case (supra) said that a judgment within the meaning of clause 15 of the Letters Patent would have to satisfy two tests.
First, the judgment must be the final pronouncement which puts an end to the proceeding so far as the court dealing with it is concerned.
Second, the judgment must involve the determination of some right or liability though it may not be necessary that there must be a decision on the merits.
In this context this Court referred to observation of the Full Bench of the High Court of Madras in Tuljaram vs Alagappa I.L.R.
The test formulated by the Madras decision is not the form of the adjudication but its effect on the suit or proceeding in which it is made.
The Madras High Court said "if the effect is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, the adjudication is a judgment".
It may be stated here that the Madras High Court spoke of 'judgment ' on an application in a suit.
The decision of the Madras High Court in Tuljaram 's case (supra) was on an order for transfer of a suit under clause 13 of the Letters Patent.
This Court also noticed the view expressed by the Madras High Court in Tuljaram 's case (supra) that adjudication on an application, which is nothing more than a step towards obtaining a final adjudication in the suit, is not a judgment within the meaning of the Letters Patent.
In Asrumati Debi 's case (supra) this Court noticed the argument advanced that if an order refusing to rescind leave to sue granted under clause 12 of the Letters Patent was a 'judgment ' under clause 15 of the Letters Patent there was no difference in principle between an order of that description and an order transferring the suit under clause 13 of the Letters Patent.
This Court did not express any opinion excepting observing that if leave under clause 12 of the Letters Patent was rescinded, the suit would come to an end and if an order was made refusing to rescind the leave the result would be on a vital point adverse to the defendant and it would go to the root of the suit and become final and decisive against the defendant so far as the Court making the order was concerned.
In finding out whether any decision is a judgment within the meaning of clause 15 of the Letters Patent each case must be looked into, in order to find out as to whether there is a decision determining the right or liability of the parties affecting the merits of the controversy between the parties.
It is in that light that this Court in Asrumati Debi 's case (supra) described the order refusing to rescind leave to be within the category of a judgment as laid down in the Calcutta cases though no final opinion was expressed as to the propriety of that view.
The present appeal concerns an application for amendment of the plaint.
The suit was filed in the year 1964.
The application for amendment of the plaint in regard to damages for the right to pension was made in the year 1970.
An amendment, if allowed ', would relate 555 to the date of the institution of the suit.
The respondent contended before the trial Court entertaining the application for amendment of the plaint that the amendment should not be allowed inter alia on the ground that the alleged claim was barred by limitation in 1970.
The High Court in the present case relied on the decision of the High Court at Calcutta in M.B. Sarkar & Sons vs Powell & Co. A.I.R. 1956 Cal. 630.
In that case an amendment was allowed on Chambers Summons substituting in place of the original defendant which was described as a firm a defendant converted into a company in that name.
The company so proposed to be substituted complained that the amendment took away from it a valuable right which had accrued to it by efflux of time, and, therefore, the amendment should not be allowed.
The contention of the defendant was not accepted by the learned Chamber Judge.
The High Court on appeal set aside the order.
It was not held to be a case of mis description of the defendant.
A mis description of a party impleaded can arise when the party really intended to be impleaded had always been the same and such intention appeared clearly from the body of the plaint in spite of the inaccurate mis description in the cause title.
In such a case, it would not be adding a new party or substituting a new party for the original one, but perfecting the identity of the party originally impleaded clearing or rectifying the inaccurate description.
When the same person, whether an individual or a legal entity, remains the defendant but only the name is altered, it would be a case of mis description.
Where a new legal entity is substituted, it was held in the M. B. Sarkar case (supra) that substitution of a company for a firm would be a change of a substantial character affecting the right of a party.
The effect of the amendment in the M. B. Sarkar case (supra) was to substitute a new party for the party originally impleaded and the consequence was to take away from the new party so substituted his defence of limitation that a suit brought on the date of the amendment would be barred by time.
Chakravartti, C.J. in the M. B. Sirkar case (supra) said that an order for amendment of the plaint there decided a vital question concerning the merits of the case and the rights of the newly impleaded party and therefore became a judgment within the meaning of clause 15 of the Letters Patent.
The right to claim that an introduction of a cause of action by amendment is barred by limitation is founded on immunity from a liability.
A right is an averment of entitlement arising out of legal rules.
A legal right may be defined as an advantage or benefit conferred upon a person by a rule of law.
Immunity in short is no liability.
It is an immunity from the legal power of some other person.
The correlative of immunity is disability.
Disability means the absence of power.
The appellant in the present case because of the limitation of the cause of action has no power to render the respondent liable for the alleged claim.
The respondent has acquired by reason of limitation immunity from any liability.
The views of the High Courts at Calcutta and Madras with regard to the meaning of 'judgment ' are with respect preferred to the meaning of 'judgment ' given by the Rangoon and Nagpur High Courts.
556 We are in agreement with the view expressed by the High Court at Calcutta in the M. B. Sirkar case (supra) as to when an order on an application for amendment can become a judgment with in the meaning of clause 15 of the Letters Patent.
If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise farther contentions in the suit, but it is not decided whether the contentions are right.
Such an amendment does nothing more than regulate the procedure applicable to the suit.
it does not decide any question which touches the merits of the controversy between the parties.
Where, on the other hand, an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent.
The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation.
It is the final decision as far as the trial court is concerned.
In finding out whether the order is a judgment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability.
The right or liability is to be found out by the court.
The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability.
The appellant made an application in December, 1969 for amendment of the plaint to claim pension.
Those amendments were disallowed by the learned Chamber Judge.
Four months thereafter the appellant sought to amend the plaint by adding certain paragraphs and those amendments were in relation to the appellant 's alleged claim for pension.
The appellant submitted that the second application for amendment in regard to the claim for a mortised amount of damages in relation to pension was not the same as the first application.
It was said on behalf of the appellant that if the learned Judge allowed the application the appellate court should not have interfered with the discretionary order.
The amendment order is not purely of discretion.
Even with regard to discretionary orders the appellate court can interfere where the order is insupportable in law or is unjust.
The High Court considered the second application for amendment to be a new claim based on the new set of facts which became barred on the date of the application for amendment.
In exceptional cases an amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the court found that consideration of lapse of time is out weighed by the special circumstances of the case.
(See Charan Das vs Amir Khan 47 I.A. 255).
The High Court rightly found that there were no special circumstances to entitle the appellant to introduce by amendments such claim.
For these reasons, the judgment of the High Court is upheld.
The appeal is dismissed with costs.
V.P.S. Appeal dismissed. | The appellant filed the suit against the respondent in 1964, on the original side of the High Court, claiming six months salary in lieu of notice and gratuity.
An application for amendment of the plaint in regard to damages for the right to pension was made in 1970.
The respondent contended that the amendment should not be allowed on the ground inter alia that the alleged claim was barred by limitation in 1970.
The trial Court allowed the amendment, but in appeal under Cl. 15 of the Letters Patent, the order was set aside.
The High Court considered the application for amendment to be a new claim based upon a new set of facts which became barred on the date of the application for amendment.
In appeal to this Court, it was contended that: (1) the order of the trial Court was not a judgment and hence not appealable under Cl. 15, and (2) the order was a discretionary order and the appellate Court should not have interfered with the exercise of discretion.
Dismissing the appeal, HELD : (1) A judgment within the meaning of Cl.
15 would have to satisfy two tests, (a) it must be the final pronouncement which puts an end to the proceeding so far as the Court dealing with it is concerned; and (b) it must involve the determination of some right or liability though it may not be necessary that there must be a decision on the merits.
[554 B] In finding out whether any decision is a judgment within the meaning of Cl. 15, each case must be looked into in order to find out whether there is a decision determining the right or liability of the parties affecting the merits of the controversy between the parties.
It is not the form but the nature of the order that has to be examined in order to ascertain whether there has been a determination of any right or liability.
If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right.
Such an amendment does nothing more than regulate the procedure applicable to the suit and does not touch the merits of the controversy between the parties.
Where, on the other hand, an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of Cl. 15.
The reason why it becomes a judgment is that it is a decision.
affecting the merits of the question between the parties by determining the right or liability based on limitation.
It is the final decision as far as the Court is concerned.
The respondent, in the present case, has acquired, by reason of limitation, immunity from liability, and the appellant, because of the limitation of the cause of action, has no power to render the respondent liable for the alleged claim.
[554 B C, G., 555F H,556A C] (2) The order of the trial Court is not one purely based on discretion, and even with regard to discretionary orders the appellate Court can interfere where the order is unsupportable in law or is unjust.
The High Court was right in holding that there we 're no special circumstances to entitle the appellant to introduce the claim by amendment.
[556F] Asrumati Debi vs Kumar Rupendra Deb Raikot & Ors.
[1953] section C. R. 1159, followed.
Justice of the Peace for Calcutta vs Oriental Gas Company, 8 Bengal L. R. 433, Tuliaram vs Alagappa 1.
L. R. 35 Mad.
J., M. B. Sirkar & Sons vs Powell & Co. A.I.R. 1956.
630, approved.
Charan Das vs Amir Khan 47 1.
A. 255 referred to.
Dayabhai vs Murugappa Chettiar I. L. R. 13 Rang.
457 and Manohar vs Bailram I.L. R. , overruled.
551 For the appellant: On the first point, an order allowing amendment is not a "Judgment" within the meaning of clause 15 of the Letters Patent.
Divergent views have been taken by various High, Courts as to the meaning of word "Judgment".
This question came before this Court also in the case of 'Asrumati devi ' (1953) SCR II 59 where a question arose whether an order for transfer of a suit under clause 13 of the Letters Patent (Calcutta High Court) is not a "Judgment" within the meaning of clause 15 of the Letters Patent; and this Court took the view that an order of this character could not be regarded as a 'Judgment ' but it did not determine the true meaning and scope of the word "Judg ment", nor did it resolve a wide divergence of judicial opinion on the subject.
An order to be a 'Judgment ' in Cl.
15 of the Letters Patent must either determine some right or liability which is in controversy in the suit either partially or wholly; or it should terminate the proceedings even without deciding any right or liability in controversy.
Any wider definition of the word 'Judgment ' will make all orders appealable irrespective of their nature and irrespective of the proceeding in which they are passed.
An interim order which does not determine any substantive right or liability in controversy (i.e. does not grant or refuse any part of the relief prayed for in a suit), but decides a procedural right, however important, is not a 'judgment '.
An order allowing the amendment does not decide any substantive right or liability.
It only permits a claim to be agitated and does not decide the claim and, therefore, the order of the single judge was not appealable.
Justice of the Peace for Calcutta vs The Oriental Gas Co. 8 Bengal L.R. 433, Tuljaram vs Alagappa Chelter I.L.R. 35 Mad., I;I.L.R. Rang. 457 and I.L.R. referred to.
On the second point, it is settled law that an appellate Court will not interfere with such an order passed by the trial Court in exercise of its discretion without exceeding the limits, of its power, unless it acted perversely or unless the view taken by it is clearly wrong.
The amendment sought for became necessary as on the true and full dis closure of the terms of Pension Rules, the Appellant was found to be entitled to damages in lieu of pension.
The principle of res judicata did not apply as the earlier order of the Single Judge allowing the first amendment application partly on 19 1 1970 did not deal with the claim for mortised damage now sought to be added.
For the Respondent: There is no need to go into the larger question because judged by the tests laid down by all the High Courts including the Nagpur High Court, the decision of the trial Court in the instant case allowing the amendment, is a judgment within the meaning of Cl. 15 of the Letters Patent.
By reason of the amendment of the plaint, the claim made in the amended plaint dates back to the date of the plaint.
The application for amendment was filed in April, 1970 and by that time, the claim for pension was clearly barred by limitation.
By allowing amendment, the valuable right which had accrued to the defendant to resist the claim for pension, has been lost the defendants cannot therefore, once the amendment is allowed raise the plea of limitation.
There is a clear negation of valuable right of 552 the defendant which is undoubtedly a determination of right or liability as between the two parties.
There is difference between the amendment which does not take away the right of the defendant to plead limitation and an amendment which affects the rights of the defendants to raise the plea of limitation 1946 Calcutta 630; 1946 Bom. 361; AIR 1972 Bombay 27 ; 1967 (2) M.L.J. (FB) referred to.
35 Madras at p. 9 lays down the law that the fact that the order is one allowing the amendment, is not decisive and that if in any proceeding, the defendants could have succeeded by the Court passing an order as prayed for, that itself is sufficient to make a decision a judgment and the fact that the defendant 's contention was negatived i.e. an order prayed by him was not passed; does not make the decision any the less a judgment under Cl.
15. 29 Bombay 249, 253 in ; , 1168.
70 Ca.
W.N. 670; , referred to.
By allowing the amendment, the right is conferred upon the plaintiff and it carries with it the fastening of liabilities upon the defendants.
The decision on a vital points adverse to the defendant which goes to the root of the matter and which becomes final and conclusive, so far as the court passing of the order is concerned, would amount to a Judgment because the order is to the effect that the plaintiff is entitled to make the claim negativing the right of the defendants which has accrued to him by lapse of time. |
Appeal No. 1955 of 1970.
Appeal by Special Leave from the judgement & other dated the 5th November, 1969 of the Punjab & Harayana High Court in Civil Write No. 309 of 1969.
R. K. Garg, section C. Agarwala and V. J. Francis, for the appellant.
775 V. C. Mahajan and 0.
P. Shorma, for the respondents.
The Judgment of the Court was delivered by RAY, C.J.
This is an appeal by special leave from the judgment dated 5 November, 1969 of the High Court of Punjab and Haryana.
The only person is whether the order of termination of the service of the appellant who was a probationer is in violation of Rule 9 of the Punjab Civil Service (Punishment & Appeal) Rules, 1952.
The appellant was selected by the Public Service Commission as a direct recruit on 20 May, 1965.
He was appointed on 26 May, ' 1965.
He joined as a probationer.
The period of probation was two years.
Rule 8(b) of the Punjab Police Service Rules 1959 states that the services of a member recruited by direct appointment may be dispensed with by the Government on his failing to pass the final examination at the end of his period of training, or on his being reported on during or at the end of his period of probation, as unfit for appointment.
The order terminating the services of the appellant was as follows: The President of India is pleased to dispense with the service of Shri Hari Singh Mann, Probationery Deputy Superintendent of Police, Amritsar on the expiry of his extended period of probation with effect from 2 2 1969(A.N.) under rule 8(b) of the Punjab Police Service Rules 1959, having considered him unfit for appointment to the State Police Service.
The period from 20 5 68 to 2 8 68 which has been treated as leave of the kind due has been excluded from the period of trial (Probation).
" The two contentions which have been advanced before the High Court were repeated here.
First, the order of termination was passed on 30 January, 1969 when the petitioner by reason of expiry of three years stood confirmed on 19/20 November, 1968.
Second the order of termination was one of punishment and the appellant should,therefore, under Rule 9 of the Punjab Civil Service (Punishment and Appeal) Rules have been given opportunity to show cause against the order of termination.
Under the aforesaid (Police Service) Rule 8(b) proviso, the Government could extend the period of probation by not more than one year.
The appellant was appointed on 20 May, 1965 on two years probation.
On 1 July, 1967, there was an order extending the period of probation by one year.
On 20 May, 1968, there was an order terminating the services of the petitioner.
on 20 July.
1968 there was an order revoking the order of termination and extending the period of probation for six months from 20 May, 1968.
The order of termination was on 30 January, 1969.
The appellant was on leave from 20 May, 1968 to 2 August, 1968.
The 776 Government excluded the period of leave from the period of probation.
The object of extending the period of probation is to find out whether the appellant was a fit person.
The appellant could not be confirmed till the period of probation to find out the fitness of the appellant expired.
It cannot therefore be held that the appellant stood confirmed on 19/20 November, 1968 before the period of probation expired in January, 1969.
The appellant relied on Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952.
Rule 9 is as follows "Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of the un satisfactory record or unfavourable reports implying the unsuitability for the service, the probationer shall be ,apprised of the grounds of such proposal, and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the appointment".
If (Punishment) Rule 9 applies the services of the appellant could not be terminated without complying with the previsions thereof.
The appellant contended that the order of termination stated that the appellant was considered unfit for appointment and therefore it amounts to punishment to attract rule 9.
The appellant extracted a statement from the affidavit of the Inspector General of Police in answer to the appellant 's petition in the High Court that the appellant 's record during the period of probation was unsatisfactory Reliance is placed on rule 9 where it is said that if the termination of the Services of a probationer be on account of unsatisfactory record he shall be given an opportunity to show cause against it.
The respondent relied on rule 11 of the Punjab Police Service Rules where it is stated that in matters relating to discipline, penalties 'and appeals, members of the Service shall be governed by the Punjab Civil Services (Punishment and Appeal) Rules.
Therefore, it is said by the respondent that Rules 8 and 11 of the Punjab Police Service Rules show that termination of probation which is dealt with in rule 8 is different from matters relating to penalties which are dealt with in rule II of the Punjab Police Service Rules.
Termination on account of unsatisfactory record will attract rule 9 of the Punishment Rules.
It is obvious that at the time of confirmation fitness is a matter to be considered.
The order terminating the services is unfitness for appointment at the time of confirmation, it is not passed on the ground of any turpitude like misconduct or inefficiency.
To hold that the words "unfit to be appointed" are a Stigma would rob the authorities of the power to judge fitness for work or suitability to the post at the time of confirmation.
777 Termination of services on account of inadequacy for the job or for any temperamental or other defect not involving moral turpitude is not a stigma which can be called discharge by punishment.
Fitness for the job is one of the most important reasons for confirmation.
The facts and circumstances do not show that there is any stigma attached to the order of termination.
For these reasons, the appeal fails and is dismissed.
Parties will pay and bear their own costs.
V.M.K. Appeal Dismissed. | The appellant was appointed on 20 May, 1965, on two years ' probation.
On 1 July, 1967 there was an order extending the period of probation by one year.
On May 20, 1968, there was an order terminating the services of the petitioner.
On July 20, 1968 there was an order revoking the order of termination and extending the period of probation for six months from 20th May, 1968.
The order of termination was on Jan. 30, 1969.
This order recited that, having considered him unfit for appointment to the State Police Service the services of the appellant are dispensed with on the expiry of his extended period of probation.
Two contentions were raised by the appellant in the High Court.
First, the order of termination was passed on Jan. 30, 1969, when the petitioner.
by reason of expiry of 3 years stood confirmed on 19/20 November, 1968 and Second, the order of termination was one of punishment and the appellant should have been given an opportunity to show cause against the order of termination under Rule 9 of the Punjab Civil Service (Punishment and Appeal) Rules, 1952.
These contentions were rejected by the High Court.
Hence the appeal to this Court by Special Leave.
Dismissing the appeal, HELD: The object of extending the period of probation is to find out whether the appellant was a fit person.
The appellant could not be confirmed, till the period of probation expired.
It cannot, therefore, be held that the appellant stood confirmed on 19/20 November, 1968 before the period of probaition expired in January, 1969.
[776A B] (2) Termination on account of unsatisfactory record will attract rule 9 of the Punishment Rules.
Fitness was a matter to be considered at the time of confirmation.
The order terminating the services is unfitness for appointment and not on the ground of any turpitude to attract Rule 9 of the Punishment Rules, 1952.
To hold that the words "unfit to be appointed" mentioned in the order of termination, are a stigma, would deprive the authorities to judge fitness 'for work or suitability to a post at the time of confirmation.
Termination of services on account of inadequacy for the job or for any tompramental or other defect not involving moral turpitude is not a stigma which can be called discharge by punishment.
Fitness for the job is one.
of the most important reasons for confirmation.
The facts and circumstances do not show that there was any stigma attached to the order of termination and therefore, Rule 9 of the Punjab Civil Service (Punishment & Appeal) Rules, 1952 is not attracted in the present case.
[7760 777B] |
No. 379 of 1974.
Petition under article 32 of the Constitution of India.
Govinda Mukhoty, for the petitioner.
P. K. Chatterjee and G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
The District Magistrate, 24 Parganas, by an order dated 29th December, 1973 made under sub section (1) read with subsection (2) of section 3 of the directed that the petitioner be detained as be was satisfied that with a view to preventing the petitioner from acting in a manner pre 998 judicial to the maintenance of public order it was necessary to detain him.
The fact of the making of the order of detention was reported by the District Magistrate to the State Government on 2nd January, 1974 and the State Government, by an order dated 8th January, 1974, approved the order of detention.
Pursuant to the order of detention, ,the petitioner was arrested on 18th January, 1974 and immediately ,on his arrest he was served with the grounds on which the order of detention was made.
The grounds of detention referred only to the incident as forming the basis of arriving at the subjective satisfaction ,,as regards the necessity for detention of the petitioner and that incident was in the following terms : "On the night of 25/26 6 73 at about 00.1 hrs.
you along with your associates being armed with lethal.
weapons including fire Arms raided the house of Ananta Keyal of Naitala under Diamond Harbour P.S. and looted away cash, ornaments etc.
At the time of operation you fixed from your fire arms indiscriminately disregarding human lives and their safety.
As a result, the house owner Ananta Kayal and his close door neighbour Ajit Kayal sustained grievous gun shot injuries on their persons, Subsequently both of them ,expired in Diamond Harbour Hospital.
You also brutally assulated some of the inmates of the house of occurrence.
Your action created such panic in the locality and the local people felt a sense of insecurity.
Thus you acted in a manner prejudicial to the maintenance of public order.
" The petitioner made a representation against the order of detention on 29th January, 1974 but it was considered and rejected by the State Government on 31st January, 1974.
The State Government thereafter submitted the case of the petitioner to the Advisory Board along ,with his representation and the Advisory Board, after bearing the ,petitioner and taking into account the representation made by him, ,made a report to the State Government on 6th March, 1974 stating that in its opinion there was sufficient cause for the detention of the petitioner.
The State Government accordingly passed an order dated 14th March, 1974 confirming the detention of the petitioner.
This detention is challenged by the petitioner in the present petition which 'has been submitted from jail.
The first contention urged Mr. Mukhoty, learned counsel appearing amicus curiae on behalf of the petitioner, was that the solitary incident set out in the grounds of detention was so remote from the date of the order of detention in fact there was a time lag about six months that the District Magistrate could not possibly have arrived at his subjective satisfaction on the basis of that incident.
The requirement of proximity, said Mr. Mukhoty, was not satisfied and the subjective satisfaction said to have been reached by the District Magistrate could not be regarded as real or genuine.
Now it is true, as pointed out by this Court in Golam Hussain vs The Commissioner of Police, Calcutta & Oi .v.(1) that "there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of (1) ; 99 9 detention, namely, inhibition of prejudicial activity of the species specified in the statute.
This credible chain is, snapped if there is too long and unexplained an interval between the offending acts and the order of detention.
Such is the ratio of proximity in Lakshman Khatik vs
State of West Bengal(1).
No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil.
To rule otherwise is to sanction a simulacrum of a statutory requirement.
But no mechanical test by counting the months of the interval is sound.
It all depends on the nature of the acts relied on, grave and determined or less serious land corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation.
We have to investigate whether the casual connection has been broken in the circumstances of each case".
There is, therefore, no hard and fast rule that merely because there is a time lag of about six months between the 'offending acts ' and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal.
Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case. 'The test of proximity is no* a rigid or mechanical test to be blindly applied by merely counting the number of months between the 'offending acts ' and the order of detention.
It is a subsidiary test evolved by the court for the purpose of determining the main question whether the past activities of the detenu is such tat from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it. 'The prejudicial act of the detenu may in a given case of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary 'or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future.
Here in the present case, the, act alleged against the petitioner was a daring act of dacoity in a village by a gang consisting of the petitioner and his associates and if this act is judged in its correct setting, grave proportions and clear implications, it would be clear that it cannot be a stray isolated act but must be the work of a habituated and hardened criminal given to commit dacoities and the District Magistrate could, therefore, reasonably arrive at a satisfaction that with a view to preventing the petitioner from carrying on such activities it was necessary to detain him.
Moreover, the affidavit in reply filed on behalf of the State Government by the Secretary in the Department of Public Relations and Youth (1) 1000 Services, points out that in connection with the incident set out in the grounds of detention a criminal case was filed in the court of the Sub , Divisional Judicial Magistrate, Diamond Harbour on 26th June, 1973 and he was arrested in connection with that case, but it appeared during investigation that witnesses were unwilling to give evidence in open court against the petitioner and his associates and it was, therefore, felt that it was futile to proceed with the criminal case and it was decided to drop it against the petitioner.
Now, if the criminal case were dropped, the petitioner would have to be released and in that event he would be free to carry on his nefarious activities.
The District Magistrate, therefore, passed the order of detention on 29th December, 1973.
The order of detention was in fact passed in anticipation of the petitioner being released as a result of dropping of the criminal case against him.
The record of the case which was produced before us by the learned counsel appearing on behalf of the State showed that the criminal case was actually pending against the petitioner on.
3rd January, 1974.
That means that the criminal case must have been dropped and the petitioner must have been discharged sometime between 3rd January, 1974 and 18th January, 1974, the latter being the date when he was once again arrested pursuant to the order of detention.
It is, therefore, not possible to say that the District Magistrate could not have arrived at a subjective satisfaction or) the basis of the incident set out in the grounds of detention, or that the subjective satisfaction reached by him was sham or unreal.
Mr. Mukhoty on behalf of the petitioner then urged that even if the incident set out in the grounds of detention were true, it merely affected maintenance of law and order and did not have any impact on public order and hence there was no nexus between the act alleged against the petitioner and the subjective, satisfaction reached by the District Magistrate.
Now, there can be no doubt that the acts of the detenu on which a subjective satisfaction is claimed to have been reached by the detaining authority must have relevance to the formation of such subjective satisfaction.
If the acts of the detenu relied.
on by the detaining authority are irrelevant, no reasonable person could possibly arrive at a subjective satisfaction on the basis of such irrelevant acts and the subjective satisfaction said to have been reached by the detaining authority would be a mere pretence.
It is, therefore necessary to consider whether the act alleged against the petitioner in the grounds of detention could be said to be relevant to the formation of a subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of public Order.
What was the potency or radiation of the act alleged against the petitioner: did it affect maintenance of public order or was its prejudicial effect confined merely to maintenance of law and order? The distinction between law and order, on the one hand, and public order, on the other, has been brought out admirably by Hidayatulla, C.J., in a recent decision in Arun Ghosh vs State of West Bengal.(1) The learned Chief Justice pointed out in that case the difference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance in the following words (1) [1970]3 section C. R. 288 1001 "Public order was said to embrace more of the community than law and order.
Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality.
Disturbance of public, order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity.
It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order.
Take for instance, a man stabs another.
People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act.
Take another case of a town where there is communal tension.
A man stabs a different sort.
Its implications are deeper and it affects the even tempo life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order.
It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the Act upon the society.
The question to ask is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed?" If we ask this question in relation to the facts of the present cases, it is obvious that the act alleged against the petitioner was calculated to disturb "the current of life of the community" in the village.
It was a serious act of dacoity which was alleged against the petitioner and it was perpetrated at dead of night and the petitioner and his associates who participated were armed with lethal weapons including guns and they used these lethal weapons recklessly and indiscriminately in utter disregard of human life and actually caused grievous injuries to at least two persons and beat up several others.
This act of dacoity created a panic in the locality and seriously disturbed the even tempo of life of the community in the village.
There was clearly disturbance of public order and the act alleged against the petitioner had nexus with the object of maintenance of public order.
The subjective satisfaction reached by the District Magistrate could not, therefore, he said to be based on an irrelevant ground.
Then it was contended on behalf of the petitioner that the District Magistrate had taken into account other material contained in the history sheet of the petitioner in arriving at his subjective satisfaction and since this material was not disclosed to the petitioner, he had no opportunity of making an effective representation and that the order of detention was, therefore, invalid.
Now, the proposition can no longer be disputed that if any material which has not been disclosed to the 17 L346SupCI75 10 0 2 Petitioner has gone into the formation of the subjective satisfaction of the detaining authority it would have an invalidating consequence on the order of detention.
But in the pesent case it is not possible to say that any material other than that that set out in the grounds of detention was taken into account by the District Magistrate in reaching his subjective satisfaction We have looked at the history sheet of the petitioner which was produced before us by the learned counsel appearing on behalf of the State Government and we do not find any material prejudicial to the petitioner other than that set out in the grounds of detention.
There is, therefore, no factual basis for this contention and it must be rejected.
Mr. Mukhoty on behalf of the petitioner also tried to persuade us to strike down the order of detention on the ground that though the order of detention was made on 29th December, 1973, the petitioner was not arrested until 18th January, 1974 and there was thus a delay of twenty days in arresting the petitioner pursuant to the order of detention But this is equally unsustainable and for two very good reasons.
In the first., place.
the delay of twenty days between the date of the order of detention and the date of arrest cannot be regarded as unreasonable.
Secondly, there is sufficient explanation for the delay.
The petitioner was actually in jail on 29th December, 1973 when the order of detention was made and it was only on some date between 3rd January, 1974 and 18th January, 1974 that lie was released and then once again arrested on 18th January, 1974.
The last contention urged by Mr. Mukhoty on behalf of the petitioner was that though the order of detention was made by the District Magistrate an 29th December, 1973, he did not report the fact of the making of the order of detention to the State Government until 2nd January, 1974 and there was thus a delay of about five days which constituted a violation of the statutory requirement of section 3, sub section (3 ) that the fact of the making of the order of detention must be reported forthwith to the State Government.
This contention raises the question as to what is the true meaning and connotation of the word 'forthwith ' as used in section 3 sub section (3).
The, question is fortunately not res integra.
It is concluded by a decision of this Court in Keshav Nilkanth Joglekar vs The Commissioner of Police, Greater Bombay.(1) The statutory provision which came up for consideration in that case was section 3, sub section (3) of the which contained an identical provision as section 3.
subsection (3) of the present Act and the question which arose was as to whether Commissioner who made the order of detention on 13th January, 1956 could be said to have reported that fact 'forthwith ' to the State Government under section 3, sub section (3) when he did so as late as 21st January, 1956.
The Court was, therefor ., called upon to construe the word 'forthwith ' in section 3, sub section (3) and after discussing various authorities, English as well as Indian, bearing on the interpretation of this word, the Court, speaking through Venkatarama Ayyar, J. pointed out that : "On these authorities, it may be taken.
an act which is to be done forthwith must be held to (1) ; 1003 have so done, when it is done with all reasonable despatch and without avoidable delay", and proceeded to add : "under section 3(3) it is whether the report has been sent at the earliest point of time possible, and when there, is an interval of time between the date of the order and the date of the report, what has to be considered is whether the delay in sending the report could have been avoided the result then is that the report sent by the Commissioner to the State on 21 1 1956 could be held to have been sent 'forthwith ' as required by section 3(3), only if the authority could satisfy us that, in spite of all diligence, it was not in a position to send the report during the period.
from 13th to 21st January, 1956".
The same test must be applied in the present case and we must inquire whether the District Magistrate sent the report to the State Government "with all reasonable despatch and without avoidable delay", or, to put it differently, whether in spite of all diligence the District Magistrate was not in a position to send the report until 2nd January, 1974.
Now, the District Magistrate has made an affidavit explaining the reason for the delay in sending the report to the State Government.
He has pointed out that 29th December, 1973, which was the date when the order of detention was made, was a Saturday and on that day he had passed eight other orders of detention and the materials in connection with all these nine cases had to be typed out by the typist which could not possibly be completed in one single day.
30th December, 1973 was a Sunday and, therefore, the earliest when the report could be submitted to the State Government was 31st December, 1973.
But the District Magistrate could not send the report on that day as he was very busy in connection with food procurement work in the district and the next day, namely, 1st January, 1974 being a public holiday, he could send the report only on 2nd January, 1974.
This explanation given by the District Magistrate it, in our opinion, sufficient to show that he sent the report to the State Government with all reasonable despatch and there was no avoidable delay on his part.
Whilst taking this view on facts, we do not wish to underscore the need for strict compliance with this requirement of section 3, sub section (3).
It is a very important requirement intended to secure that the State Government shall have sufficient time for consideration before it decides and this decision has to be made within twelve days of the making of the order of detention whether or not to approve the order of detention and the Court would, therefore, insist on strict compliance with it and not condone avoidable delay, even if it be trivial But in the present case the facts stated by the District Magistrate in his affidavit show that be acted with prompt despatch and was not guilty of any avoidable delay.
The District Magistrate must, therefore, be held to have sent the report 'forthwith ' as required by section 3, sub section (3).
These were the only contentions urged on behalf of the petitioner in support of the petition and since there is no substance in them, the petition fails and the rule is discharged.
V.P.S. Petition dismissed. | The petitioner was directed to be detained by an order of the Dist.
Magistrate under the .
with a view to preventing him from acting in a manner prejudicial to the maintenance of public order.
The order was made on December 29, 1973.
and the fact of making the order was reported to the State Government on January 2, 1974.
He was arrested on Jan. 8. 1974.
The grounds of detention referred to only one incident, namely, that on the night of 25/26 6 73, the petitioner along with his associates being armed with fire arms, raided a house, looted cash and ornaments brutally assaulted some of the inmates and fired indiscriminately a. result of which the house owner and his neighbour sustained grievous injuries and subsequently died.
The petitioner challenged the detention order in a writ petition on the following grounds : (1) There was a time lag of 6 months between the date of the incident and the date of order and hence the Dist.
Magistrate could not have possibly arrived '.It his Subjective satisfaction on the basis of that incident, (2) the incident merely affected law and order and not public order, (3) the District Magistrate had taken into account other material in the history sheet which was not disclosed to the petitioner.
in arriving at his subjective satisfaction, (4) there was a delay of 20 days in arresting the petitioner pursuant to the order of detention, and (5) there was a delay of 5 days in reporting the fact of making the order of detention to the State Government.
Dismissing the writ, petition, HELD '.
(1) (a) There is no hard and fast rule that merely because there is a time lag of about 6 months between the 'offending acts ' and the date of the order of detention the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the Dist.
Magistrate must be regarded as sham or unreal.
Whether the acts of the detenu forming the basis of the subjective satisfaction are too remote in time must depend on the facts of each case.
The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the two dates.
The test is evolved by the court for determining the main question whether the past activity of the detenu is such that from it a reason able prognosis can be made as to the future conduct of the detenu.
The prejudicial act of the detenu may be of such a character as to suggest that it is a part of an organised operation, and in such a case, the detaining authority may reasonably feel satisfied that the act which has come to light cannot be a solitary or isolated act but must be part of a course of conduct of similar activities and that therefore, it is necessary to detain him with a view to preventing him from indulging in such activities in the future.
[999 C G] In the present case, the act was a daring act of dacoity in a village by the petitioner 's gang, and judged in its correct setting, it could not be a stray isolated act but must be the work of a habituated and hardened criminal given to commit dacoities.
and therefore, the Dist.
Magistrate could reasonably arrive ,it a satisfaction that with a view to preventing him from carrying on such activities, it was necessary to detain him.
[999 G H] (b) Further, it was stated in the counter affidavit that a criminal case was filed in the Magistrates ' court in connection with the identical incident on June 26, 1973 and the petitioner was arrested but it was found that witnesses were unwilling to give evidence against him.
The Dist, Magistrate, 9 97 therefore.
passed the order of detention in anticipation of the petitioner being released as a result of dropping the criminal case against him.
The petitioner was discharged between January 3, 1974 and Jan. 18, 1974, and on the latter date he was once again arrested pursuant to the order of detention.
[1000 A D] Golam Hussain vs The Commissioner of Police, Calcutta & Ors. ; and Lakshman Khatik vs State of West Bengal.
[1974] 4 S.C.C. I referred to.
(2)The act alleged against the petitioner was calculated to disturb the current of life of the community in the village.
It was a serious act of dacoity perpetrated at dead of night.
It created panic in the locality and seriously disturbed the even tempo of life of the community in the village.
It was clearly disturbance of public order and the act of the petitioner had nexus with the object of maintenance of public order.
[1001 E G] Arun Ghosh vs State of Bengal followed.
(3) There was no factual basis for the contention that the Dist.
Magistrate had taken into account any other material not disclosed to the petitioner.
[1002 A B] (4) (a) The delay of 20 days between the date of the order of detention and the date of arrest cannot be regarded as unreasonable.
[1002 C D] (b) The petitioner was in jail on Dec. 29, 1973 when the order of detention was made and was once again arrested only after he was released on some date between January 3, 1974 and Jan. 18, 1974.
and hence the delay was explained.
[1002 D E] (5) Section 3(3) of the Act requires that the fact of the making of the order of detention must be reported forthwith to the State Government.
An act which is to be done forthwith must be held to have been so done when it is done with all reasonable despatch and without avoidable delay.
It is a very important requirement intended to secure that the State Government shall have sufficient time for consideration before it decides and the decision has to be made within 12 days of the making of the order of detention whether or not to approve the order and the Court.
would, therefore.
insist on strict compliance with it and not condone avoidable delay even if it be trivial.
When them is an interval of time between the date of order and the date of report what has to be considered is whether the delay in sending the report could have been avoided, or to put it differently, whether, in the present case.
in spite of all diligence, the Dist.
Magistrate was not in a position to send the report until Jan. 2, 1974.
[1003 A C] In the present case.
the facts stated by the Dist.
Magistrate in his affidavit show that be acted with prompt despatch and was not guilty of any avoidable delay.
On Dec. 29, 1973 he had passed 9 orders of detention and the typing of the material in connection with the 9 cases took time.
Dec. 30 was a Sunday and he could not send the reports on Dec. 31 as he was very busy in connection with food procurement work.
Jan. 1, 1974 was a public holiday, and hence, he could send the report only on Jan. 2.
[1003 C E] |
Civil Appeal No. 6 of 1976.
From the Judgment and Order dated 12.11.1973 of the Madras High Court in Writ Appeal No. 390 of 1969.
V.C. Mahajan, C.V. Subba Rao and K.M.M. Khan for the Appellants K.N. Bhat and Vineet Kumar for the Respondent.
PG NO 1053 The Judgment of the Court was delivered by SHARMA, J.
This appeal arises out of a writ application allowed by the Madras High Court striking down Clause (a) of the Proviso (3) of the Notification dated the 1st March, 1964 issued by the Union of India in the Ministry of Finance, under Rule 8(1) of the Central Excise Rules, 1944 and granting consequential relief.
The aforesaid notification granted certain exemptions from payment of excise duty, but the benefit was denied to the writ petitioner, respondent before this Court, in view of the impugned clause.
The respondent assessee, a business concern functioning under the name of M/s. Dhanalakshmi Paper and Board Mills, decided to set up a factory for the manufacture of paper and paper boards and allied products, and obtained a lease of certain premises in June 1963 and put up a suitable structure for the factory by August 1963.
The necessary machineries for running the factory, however, were received in April 1964 and application for licence therefor was filed on 27.4.1964.
The licence was granted on 6.5.1964 and production in the factory started the next day, i.e. 7.5.1964.
The respondent claimed that the duty in respect of the paper boards manunactured in the factory during the period 7.5.1964 to June 1966 was payable at the concessional rate allowed by the Notification, relevant portion whereof reads as follows: GOVERNMENT OF lNDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NEW DELHI,THE 1ST MARCH, 1964/PHALGUNA 11, 1885 (SAKA) NOTIFICATION CENTRAL EXCISE CSR: In exercise of the powers conferred by Sub rule (1) of Rule 8 of the Central Excise Rules, 1944, and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 57/60 Central Excise dated 20th April.
196() and No. 37/63 Central Excise dated the 1st March, 1963 the Central Govt.
hereby exempts strawboard and pulpboard including, greboard, calling under Sub item (3) of Item No. 17 of the First PG NO 1054 Schedule to the (1 of 1944), takes together up to the quantity prescribed in column (1) of Table 1 (omitted), cleared by any manufacturer for home consumption during any financial year, from so much of the leviable thereon as is in excess of the amount specified in the corresponding entry in column (2) of the same Table: TABLE 1 (being not relevant, omitted) Provided that (1). . . . . . (2) . . . . . . .
TABLE 2 (being not relevant, omitted) (3) nothing contained in this notification shall apply to a manufacturer who applied or applies for a licence on or after the 9th day of November 1963, unless he satisfies the Collector of Central Excise (a) that the factory for which the licence was or is applied for was owned on the 9th day of November, 1963, by the applicant;" The benefit of the Notification claimed by the respondent assessee was denied by the appellants on the ground that the factory did not come into existence on or before the 9th day of November, 1963, the date mentioned in the impugned clause (a).
The respondent moved the High Court in its writ jurisdiction under Article 226 of the Constitution, and the application was allowed by a learned Single Judge.
An appeal therefrom under Clause 15 of the Letters Patent was dismissed in limine.
The appellants have by special leave challenged the decision before this Court.
The ground urged on behalf of the assessee which found favour with the High Court is arbitrary nature of the date, '9th of November, 1963 ' mentioned in the impugned clause (a).
It has been contended that the said date does not have any significance whatsoever and does not bear any rational relationship to the object sought to be achieved by the Notification.
The learned counsel for the appellant defended the validity of the impugned provision on the ground that the date (9.11.1963) was selected because an PG NO 1055 earlier notification bearing No. 110 had required applications to be made on or after 9.11.1963.
This notification is not on the records of the case and the learned counsel has stated th8t he has also not been able to examine the same inspite of his unsuccessful request to the Department concerned for a copy thereof.
He has mentioned about this notification in his argument on the basis of the reference in the judgment of the High Court.
The High Court judgment does not throw any light on the nature of the notification No. 110, and the learned counsel could not draw any inference about its provisions from the judgment.
It is not claimed that the said notification was before the High Court or the Judges had any occasion to examine it.
The present appeal was filed in 1976 and even now the learned counsel for the appellants is not in a position either to produce it or to tell us what it was about.
The result is that no explanation for the choice of the date in clause (a) is forthcoming.
Sri V.C. Mahajan, learned counsel for the appellants, contended that a statutory provision has necessarily to be arbitrary in the choice of date and it cannot be challenged on that ground.
He relied upon the observations of this Court in Union of India vs M/s Parmeswaran Match Works etc., 119751 2 SCR 573 (at page 578) as quoted below: "To achieve that purpose, the Government chose September 4, 1967, as the date before which the declaration should be filed.
There can be no doubt that any date chosen for the purpose would to a certain extent, be arbitrary.
That is inevitable" Reliance was also placed on Jagdish Pandey vs The Chancellor, University of Bihar and Another, and U.P.M. T.S.N.A. Samiti, Varanasi vs S ate of U. P. and Others, We are afraid, the argument has no merit and has to be rejected.
In Union of India vs M/s P. Match Works, (supra) the question related to concessional rate of excise duty leviable on the manufacture of match boxes.
Match factories were classified on the basis of their output during the financial year and matches produced in different categories of factories were subject to varying rates of dutyhigher rate being levied on matches produced in factories having higher output.
In pursuance of a change in the policy, the match factories were later classified as mechanised units and non mechanised units and by a notification dated July ' PG NO 1056 l, 1967 a concessional rate of duty was allowed in respect of units certified according to the provisions therein.
The notification also contained a proviso.
The purpose of these provisions was to grant the benefit of concessional rate of duty only to small manufacturers.
This Court while analysing the notification observed that the proviso "would have defeated the very purpose of the notification, namely, the grant of concessional rate of duty only to small manufacturers".
In order to cure this self defeating position, the notification dated July 21, 1967 was amended by Notification No. 205 of 1967 dated September 4, 1967.
The latter notification mentioned the 4th September, 1967 as the cut off date.
The attach on the choice of this date was met by the observations relied upon by the learned counsel for the appellants and quoted earlier.
It will be observed that the date, September 4, 1967, was the date on which the amending Notification itself was issued.
The crucial date, therefore, could not be condemned as one "taken from a hat ' .
It was the date of the notification itself.
A rule which makes a difference between past and present cannot be condemned as arbitrary and whimsical.
In cases where choice of date is not material for the object to be achieved, the provisions are generally made prospective in operation.
In that sense this Court observed in M/s P. Match Works case that the date chosen would to a certain extent be arbitrary and this was inevitable.
In the present case the relevant Notification was dated March 1, l964 and not 9.11.1963.
It is true that as mentioned in the High Court judgment some other notification required applications referred therein to be made on or after ',h 11.1963, but unless the nature and contents of that notification and its relevance with reference to the present notification are indicated, it is futile to try to defend the choice of the date on its basis.
The appellants have miserably failed to do so.
inspite of more than a decade available to them 6.
The other two cases relied upon On behalf of the appellants instead of supporting their case.
indicate that the view taken by the High Court is correct in U.P.P.M.T.S.N.A. Samiti,Varanasi vs State of U.P. and Others (supra) this Court observed in paragraph l of the judgment: "The legislature could not arbitrarily adopt January 1984, as the cut off date . " After examining the circumstances of the case it was held in paragraph 2: "We agree with the High Court that fixation of the date January 3 1984 for purposes of regularisation was not arbitrary or irrational but had a reasonable nexus with the object sought to be achieved.
" PG NO 1057 Similarly in Jagdish Pandey vs The Chancellor, University of Bihar and Another it was held: "There is no doubt that if the dates are arbitrary, section 4 would be violative of article 14 for then there would be no justification for singling out a class of teachers who were appointed or dismissed etc.
between these dates and applying s.4 to them while the rest would be out of the purview of that section .
The Court then proceeded to examine the purpose of the legislation and the attendant circumstances and upheld the section 7.
Another learned counsel who appeared on behalf of the appellants for the final reply placed reliance on paragraphs 38, 44 and 45 of the judgment in Dr. Sushma Sharma and Others vs State of RaJasthan and Others, [1985] SUPP.
SCC 45.
In paragraph 38 it was said that wisdom or lack of wisdom in the action of Government or Legislature is not justiciable by the Court, and to find fault with the law is not to demonstrate its invalidity.
We are afraid, this aspect is wholly irrelevant in the case before us.
In paragraph 44, the Case of Union of India vs M/s. P. Match Works Ltd., already discussed above.
was mentioned.
In paragraph 45 the case of D.S.Nakara vs Union of India, [1983] I SCC 305, was distinguished in the following words: "But as we have mentioned hereinbefore, Nakara case dealt with the problem of benefit to all pensioners.
The choice of the date of April l. 1979 had no nexus with the purpose and object of the Act.
The facts in the instant case are, however, different." In the present case also benefit of concessional rate was bestowed upon the entire group of assesses referred therein and by clause (a) of Proviso (3) the group was divided into two classes without adopting any differentia having a rational relation to the object of the Notification, and the benefit of one class was withdrawn while retaining it in favour of the other.
It must, therefore, be held that the impugned clause (a) of the Proviso (3) of the Notification in question is ultra vires and the benefit allowed by Notification is available to the entire group including the respondent.
We, therefore, hold, There is no merit in this appeal which is dismissed without costs.
R.S.S. Appeal dismissed. | The respondent assessee built up a factory for the manufacture of paper and paper boards, which started production on 7.5.1964.
The respondent claimed that the duty in respect of the paper boards manufactured in the factory during the period 7.5.1964 to June 1966 was payable at the concessional rates allowed by the Government of India notification dated 1st March, 1964.
The claim was however rejected by the Revenue on the ground that the factory had not come into existence on or before the 9th day of November, 1963 as stipulated in clause (a) of Proviso (3) of the said notification.
The respondent 's writ application before the High Court was allowed by the Single Judge and the appellant 's Letters Patent appeal was dismissed in limine.
The High Court has accepted the respondent 's contention that the date '9th of November, 1963 ' mentioned in the notification was arbitrary.
On behalf of the Revenue it was contended that the date (9.11.1963) was selected because an earlier notification bearing No. 110 had required applications to be made on or after 9.11.1963.
It was further contended that a statutory provision had necessarily to be arbitrary in the choice of date and it could not be challenged on that ground.
On behalf of the respondent it was contended that the said date did not have any significance whatsoever and did not bear any rational relationship to the object sought to be achieved by the notification.
PG NO 1051 PG NO 1052 Dismissing the appeal, it was HELD: 1.
A rule which makes a difference between past and present cannot be condemned as arbitrary and whimsical.
[1056D] 2.
In cases where choice of the date is not material for the object to be achieved.
the provisions are generally made prospective in operation.
[1056D] 3.
The Revenue has not been able to produce notification No. l 10.
Unless the nature and contents of notification No. 110 and its relevance with reference to the present notification are indicated, it is futile to try to defend of the choice of the date in clause (a) on its basis.
[1055A;1056E] 4.
In the present case, the benefit of concessional rate was bestowed upon the entire group of assesses referred therein and by clause (a) of Proviso (3) the group was divided into two classes without adopting any differentia having a rational relation to the object of the Notification.
[1057F] 5.
Clause (a) of the Proviso (3) of the Notification was ultra vires and the benefit allowed by the Notification would be available to the entire group including the respondent.
[1057G] Union of India vs M/s. P. Match Works [1975]2 SCR 573 Jagdish pandey vs The chancellor, University of Bihar.
[19681 I SCR 237 and U.P. M. T.
S.N.A. Samiti, Varanasi vs State of U.P.,[1987]2 SCR 453, distinguished.
Dr .Sushma Sharma vs State of Rajasthan, [1985] Supp.
SCC 45; and D.S. Nakara vs Union of lndia, [1983] I SCC 365 referred to. |
Civil Appeal No. 1142 of 1969.
Appeal by special leave from the award dated the 8th November 1968 of the Labour Court, Poona in Reference (IDA) No. 9 of 1967.
B. Pai, O. C. Mathur, D. C. Shroff and O. N. Mishra, for the appellant.
section C. Manchanda and A. G. Ratnaparkhi, for the respondents.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
This is an appeal by special leave against the award of the Labour Court, Poona directing the reinstatement of the respondent in the service of the appellant company.
The respondent was a watchman in the factory of the appellant at Chinchwad, Poona.
A domestic enquiry was held against him in respect of an incident on the night of 15 16 December 1963 and following the enquiry he was dismissed from service on the 7th January 1964.
His appeal was dismissed after a personal hearing by the appellate authority.
Section 2A of the came into force on 1st December 1965 and on 23rd June 1967 a reference was made by the Government of Maharashtra regarding the dismissal of the respondent to the Labour Court, Poona and the Labour Court held that the domestic enquiry held against the respondent was defective, that the charges against the respondent had not been made out and directed him to be reinstated.
121 There were four charges framed against the respondent in the domes tic enquiry.
They were: (1) Suspected dishonesty in connection with the company 's property.
(2) Gross negligence in performance of his duties.
(3) Disobedience of instructions given by the superiors.
(4) Commission of an act subversive of discipline.
For the purposes of this appeal it is not necessary to consider other charges than charge No. 1.
The chargesheet is rather a bit confused but the statement of facts regarding charge No. 1 is clear and there cannot be any doubt or confusion about it.
The facts stated in the k chargesheet are as follows: "It is reported that while you were on duty in the and shift on Sunday the 15th December, 1963 at about 10.30 P.M. you left the guard room and went into the factory.
While returning from the factory you are reported to have brought out with you a new Fluroscent Tube and to have kept it in the guard room.
Immediately after this you are also reported to have directed one of the two watchmen on duty at that time to take a round with the tel a tel clock.
It is further reported that at about 11.20 P.M. you removed the Fluroscent Tube from the guard room and were carrying it away out of the factory.
At this stage you were challenged by the watchman, Shri M. B. Shinde and consequently you brought back the tube and left it in the guard room.
The Company had, however, not received any report in the matter from you.
You were, therefore, called up when you reported for duty on 16th afternoon and were questioned in the matter.
When you were asked to submit your written report about the incident and about your failure to report immediately to your superiors you stated that you will submit your report after consulting your pleader.
The above mentioned facts and particularly your unwillingness to submit written report when called upon to do so give rise to doubts about your integrity and faithfulness both in regard to the security and property belonging to the Company for which you are responsible while on duty as a person in charge of the security of the Company.
" The Labour Court took the view that the charge of suspected dishonesty in connection with the company 's property did not constitute any misconduct either under Standing order 24 or otherwise and there fore no action could be taken against the respondent on the basis of that charge, and also that the chargesheet was vague.
We can see no vagueness in the chargesheet and on the basis of the facts set out above there could be no doubt that the charge is one of an attempt to steal the 122 company 's property.
The respondent being a watchman the charge is a serious one and if it was held proved he deserves nothing short of dismissal.
The Labour Court was concerned only with the question whether the domestic enquiry held against the respondent was a proper enquiry.
It held that the enquiry was not a proper one on the ground that the respondent had produced a police constable as his witness at the time of enquiry and this witness expressed his inability to give evidence with out the permission of his superiors, that it was clearly the duty of the Inquiry officer to obtain the necessary permission and to help the respondent in the matter of his defence, that the reluctance on the part of the Inquiry officer to pursue the matter further is indicative of the fact that he was not inclined to afford proper opportunity to the respondent to defend himself, that there was no necessity for the respondent to apply again to the Inquiry officer for obtaining the necessary permission, that the passive approach adopted by the Inquiry officer in the matter had undoubtedly resulted in an opportunity to defend himself being denied and the inquiry will therefore be defective in this respect.
It summoned and examined the police constable and taking his evidence also into account held as follows .
"Then there is evidence on the record of the inquiry to show that the relations of the second party with the Security Jamadar Shri David were strained.
As a matter of fact the evidence shows that the reports from the watchmen started coming in at his instance.
The proceedings against the second party started on the report of Shri David.
The said report and the reports made by the other watchman and the second party are not forthcoming though referred to in the record of the inquiry.
Then there is the glaring fact that very ambiguous allegations and charges which do not even constitute any misconduct are made against the second party and in spite of the fact that the evidence in the inquiry is too conflicting and vague the concerned authorities have without affording proper opportunity to defend found the second party guilty of the charges levelled against him.
On a careful reading of the findings of the Inquiry officer, the Works Manager and the Appellate Authority in the light of the recitals in the charge sheet it becomes absolutely clear that they have found him guilty without applying their mind to the facts and circumstances of the case.
All these factors raise a strong presumption that the removal of the second party was predetermined by the first party and that his dismissal is by way of victimization.
For all the aforesaid reasons therefore the dismissal of the second party must be held to be illegal and improper There is nothing adverse the past against him and he is therefore entitled to the relief of reinstatement with back wages.
" The first argument on behalf of the appellant is that the incident took place in December 1963 and the order of dismissal was made on the 7th of January 1964 and as section 2A of the Industrial Disputes 123 Act came into force on 1 12 1965 the reference of this dispute under section 10 of the read with section 2A is bad It is argued that this will amount to giving retrospective effect to the provisions of section 2A.
We are not able to accept this contention Section 2A is in effect a definition section.
It provides in effect that what would not be an industrial dispute as defined in section 2(k) as interpreted by this Court would be deemed to be an industrial dispute in certain circumstances.
As was pointed out by this Court in Chemicals & Fibres of India Ltd vs D. G. Bhoir & Ors.(1) the definition could as well have been made part of clause (k) of section 2 instead of being put in as a separate section.
There is therefore no question of giving retrospective effect to that section in making the reference which resulted in the award under consideration.
When the section uses the words "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman" it does not deal with the question as to when that was done.
It refers to a situation or a state of affairs.
In other words where there is a discharge, dismissal, retrenchment or termination of service otherwise the dispute relating to such discharge, dismissal, retrenchment or termination becomes an industrial dispute.
It is no objection to this to say that this interpretation would lead to a situation where the disputes would be reopened after the lapse of many years and referred for adjudication under section 10.
The question of creation of new rights by section 2A is also not very relevant.
Even before the introduction of section 2A a dispute relating to an individual workman could become an industrial dispute by its being sponsored by a labour union or a group of workmen.
Any reference under section 10 would be made only sometime after the dispute itself has arisen.
The only relevant factor for consideration in making a reference under section 10 is whether an industrial dispute exists or is apprehended.
There cannot be any doubt that on the day the reference was made in the present case an industrial dispute as defined under section 2A did exist.
Normally the dispute regarding an individual workman is not an industrial dispute unless it is sponsored by the union to which he belongs or a group of workmen.
The change made by section 2A is that in certain cases such a dispute need not be so sponsored and it will still be deemed an industrial dispute.
Supposing in this very case a labour union or a group of workmen had sponsored the case of the respondent before the reference was made, such a reference would have been valid.
All that section 2A has done is that by legislative action such a dispute is deemed to be an industrial dispute even where it is not sponsored by a labour union or a group of workmen.
What a labour union or a group of workmen can do the law is competent to do.
The only question for consideration in considering the validity of a reference is whether there was or apprehended an industrial dispute when the reference was made.
If there was an industrial dispute or an industrial dispute was apprehend.
even though the facts giving rise to that dispute might have arisen before the reference was made the reference would still be valid.
It is to be borne in mind that every reference would be made only some 124 time after the dispute has arisen.
In Birla Brothers Ltd. vs Modak(1) it was pointed out that though the came into force in 1947, reference of an industrial dispute based on the facts which arose before that Act came into force is a valid reference.
The same reasoning would apply to a reference of a dispute falling under section 2A even though the facts giving rise to that dispute arose before that section came into force.
The decision in Birla Brothers case (supra) was approved by this Court in its decision in Jahiruddin vs Model Mills 13 Nagpur(2).
These two decisions clearly establish that the test for the validity of a reference under section 10 is whether there was in existence a dispute on the day the reference was made and there was no question of giving retrospective effect to the Act.
We find that is the view taken by the Delhi High Court in National Productivity Council vs section N. Kaul(3) by the Punjab & Haryana High Court in Shree Gopal Mills Ltd. vs The State of Haryana(4).
The view of the High Court of Mysore in P. Janardhana Shetty vs Union of India(5) to the contrary is not correct Coming now to the other points in the case: the decisions of this Court establish clearly that when a workman is dismissed as a result of a domestic enquiry the only power which the Labour Court has is to consider whether the enquiry was proper and if it was so no further question arises.
If the enquiry was not proper the employer and the employee had to be given an opportunity to examine their witnesses.
It is not the duty of the Enquiry officer in this case to seek permission of the police constable 's superiors.
It was the respondent 's duty to have him properly summoned.
He did not even apply to the Enquiry officer requesting him to seek the permission of the police constable 's superiors.
It is therefore wrong on the part of the Labour Court to have held that the enquiry against the respondent was not a proper enquiry.
Once this conclusion is reached there was no room for the summoning and examination of the police constable by the Labour Court.
The question regarding the jurisdiction exercised by an Industrial Tribunal in respect of a domestic enquiry held by the management against a worker has been elaborately considered by this Court in its decision in D.C.M. vs Ludh Budh Singh(6) and the principles that emerge out of the earlier decisions of this Court have been set out in that decision.
The decision of this Court in Workmen vs Firestone Tyre & Rubber Co.(7) also sets out the principles that emerge from the earlier decisions.
In Tata Oil Mills Co. Ltd. vs Its Workmen(8) it was argued that where the employee is unable to lead his evidence before the domestic Tribunal for no fault of his own, an opportunity should be given to him to Prove his case in proceedings before the Industrial Tribunal.
This Court held that this contention was not well founded.
It was pointed out that the Enquiry officer gave the employee ample opportunity to lead his evidence and the enquiry had been fair.
It was also pointed out that merely because the witnesses did not appear 125 to give evidence in support of the employee 's case it could not be held that he should be allowed to lead such evidence before the Industrial Tribunal and if such a plea was to be upheld no domestic enquiry would be effective and in every case the matter would have to be tried afresh by the Industrial Tribunal.
It was pointed out that findings properly recorded at the enquiries fairly conducted were binding on the parties, unless it was shown that the said findings were perverse, or were not based on any evidence.
We are not able to agree with the Labour Court in this case that the findings of the domestic enquiry arc either perverse or not based on any evidence.
We therefore come to the conclusion that there was no failure on the part of the Enquiry officer to give a reasonable opportunity to the respondent workman, that the enquiry was fair and the Labour Court had, therefore, no right to examine the witness on behalf of the workman and based on that evidence to upset the finding arrived at the domestic enquiry.
We also hold that the punishment imposed in the circumstances is one in which the Labour Court cannot interfere.
The result is that the appeal will have to be allowed and the award of the Labour Court set aside.
It, however, appears that the respondent had attained the age of 60 on 11 6 73 and even if he had been in service he would have re tired on that date.
Under an interim order made by this Court on 29 4 1969 the respondent has been paid Rs. 200/ per month as part of the remuneration payable to him till the hearing and final disposal of the appeal and such payment has been made upto date.
Even if the respondent had succeeded in this appeal he would not have been entitled to any payment after 11 6 73.
In view of this appeal being allowed and the award of the Labour Court being set aside the respondent will have to repay the money he had received in, pursuance of the order of this Court.
The appellant has agreed that it would not take any steps to recover from the respondent the payments already made to him.
There will be no order as to costs.
V.P.S. Appeal allowed. | Section 2A of he , provides that where any employer discharges, dismisses, retrenches or otherwise terminates the service of an individual workman, any dispute or difference between that workman and his employer connected with or arising out of such discharges etc., shall be deemed to be an industrial dispute notwithstanding that no other workman nor union is a party to the dispute.
The respondent was a watchman in the factory of the appellant.
He was dismissed from service on Jan. 7, 1964, after holding a domestic enquiry with respect to an incident on the night of December 15, 1963.
In June 1967 the dispute regarding the dismissal of the respondent was referred to the Labour Court.
Directing him to be reinstated, the Labour Court, held that: (1) The charge against the respondent was vague; (2) The suspected dishonesty of the respondent in connection with the appellant 's property did not constitute any misconduct either under Standing orders of the Company or otherwise; and (3) The domestic enquiry held was defective because, the respondent produced a police constable as his witness at the time of the enquiry who expressed his inability to give evidence without the permission of his superiors and the Enquiry officer took no steps for obtaining the necessary permission.
The Labour court summoned and examined the police constable and took his evidence into account.
In appeal to this Court, it was contended: (1) That section 2A came into force only on December 1, 1965 and as the dismissal took place before that date the reference of the dispute was bad; and (2) That the finding of the Enquiry officer was based upon a fair enquiry and the Labour Court should not have interfered with the finding.
Allowing the appeal to this Court on the second contention, ^ HELD: (1) The est for the validity of a reference under section 10 is whether there was in existence a dispute on the day the reference was made.
[124B C] Juhiruddin vs Model Mills, Nagpur , applied.
National Productivity Council vs section N. Kaul [1969] II L.L.J 186 and Shree Gopal Paper Mills Ltd. vs State of Haryana, , approved.
P. Janardhana Shetty vs Union of India [1970] II L.L.J. 738, over ruled.
(a) Section 2A provides in effect that what would not be an industrial dispute as defined in section 2 (k), as interpreted by this Court, would b deemed to be an industrial dispute in certain circumstances.
There is no question of giving retrospective effect to that section in making the reference.
When the section uses the words "discharges dismisses, retrenches etc.
" it does not deal with the question as to when that was done but merely refers to a situation or state of affairs.
[123B D] 120 (b) It is no objection to this to say that.
such an interpretation would lead to an old dispute being reopened after the lapse of many years, Every reference would be made only sometime after the dispute has arisen.
Even in this case, if a labour union or a group of workmen had sponsored the case of the respondent, such a reference after lapse of some time would have been valid.
All that section 2A has done is that by legislative action such a dispute is deemed to be an industrial dispute even where it is not sponsored by a labour union or a group of workmen.
The only consideration in such matters is whether there was or apprehended an industrial dispute when the reference was made.
[123D 124B] (2) The charge is not vague.
[121H] (3) The facts set out show that the charge is one of an attempt to steal the appellant 's property and if proved, the respondent, being a watchman, deserves dismissal.
[121H 122A] (4) When a workman is dismissed as a result of a domestic enquiry the only power which the Labour Court has is to consider whether the enquiry was proper and if it was so, no further question arises.
Findings properly recorded at an enquiry fairly conducted are binding on parties unless is shown that such findings were perverse.
It was not the duty of the Enquiry officer to seek permission of the constable 's superiors and it was the respondent 's duty to have his witnesses properly summoned.
The enquiry was fair and the Labour Court had no right to examine the witness on behalf of the workman and based on that evidence to upset the finding arrived at the domestic enquiry.
[124D 15C] D.C.M. vs Ludh Budh Singh ; Workmen vs Firestone Tyre & Rubber Co. ; and Tata Oil Co. Ltd. vs Its Workmen ; , referred to. |
Civil Appeal No. 2034 of 1970.
Appeal by special leave from the Judgment and order dated the 8th July, 1969 of Calcutta High Court in I.T.R. No. 60 of 1968.
D. N. Gupta, for the appellant.
G. C. Sharma, O. P. Dua and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by GUPTA, J.
This appeal by special leave turns on the true meaning and scope of explanation 2 to sec.
24(1) of the Income Tax Act, 1922.
The appellant (hereinafter referred to as the assessee) is a private limited company carrying on business in tea garden tools and requisites and also acting as agents for selling tea; in fact the bulk of its income was from selling commission on tea.
The assessment year in question is 1959 60.
in the relevant previous year which ended on June 30,1958, the assessee for the first time in its history entered into certain transactions in jute.
On April 17, 1958 the assessee had contracted to purchase 1100 bales of B Twill and 2500 bales of corn sacks: the contract for B Twill was with two parties, M/s. Raghunath & Sons (P) Ltd. for 500 bales and M/s. Mahadeo Ramkumar for 600 bales.
The corn sacks were all purchased from Tulsider Jeweraj under three contracts for 800 bales, 1000 bales and 700 bales respectively.
On June 18, 182 1958 the assessee entered into a contract with M/s. Lachhminarain Kenoria & Co. to sell the aforesaid quantities of Twill and corn sacks.
The assessee had no godown for keeping the goods and had not handled them.
The goods were in the godown of the mills and only the delivery orders addressed to the mills changed hands.
The amount realised on sale to M/s. Lachhminarain Kanoria & Co. came to Rs. 10,49,865/ .
The assessee had however purchased the corn sacks and B Twill for Rs. 11,48,399.
The transactions thus resulted in a loss of Rs. 98,534/ to the assessee and the assessee claimed adjustment of this loss in the computation of its income for the assessment year 1959 60.
The Income tax officer held that the transactions involving mere transfer of delivery notes and not actual delivery of the goods were of a speculative character as contemplated in explanation 2 to sec.
24(1) and the loss could be set off only against speculation profits, and as there were no speculation profits in that year he held that the loss would be carried forward and set off against speculation profits in the future.
The Appellate Assistant Commissioner on appeal by the assessee held that the transactions were not speculative and the loss should be treated as business loss relying on two decisions of this Court: Bayana Bhimayya and Sukhdevi Rathi vs The Govt.
of Andhra Pradesh (1) and duni Chand Rataria vs Bhuwalke Brothers Ltd. (2) The Department took an appeal to the Tribunal and the Tribunal relied on the decision of the Calcutta High Court in D. M. Wadhwana vs Commissioner of Income tax, West Bengal(3) to hold that this case came within the scope of sec.
24 (1) read with explanation 2 and restored the order of the Income tax Officer.
On the application of the assessee the Tribunal referred to the High Court the following question of law .
"Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the transactions described above entered into by the assessee were speculative transactions within the meaning of explanation 2 to section 24( 1)".
The High Court answered the question in the affirmative and against the assessee.
The correctness of that decision is challenged in this appeal.
Section 24(1) so far as it is material for the purpose of this appeal is in these terms: "Where any assessee sustains a loss of profits or gains in any year under any of the heads mentioned in section 6, he shall be entitled to have the amount of the loss set off against his income, profits or gains under any other head in that year.
Provided that in computing the profits and gains charge able under the head 'profits and gains of business, profession or vocation ', any loss sustained in speculative transactions 183 which are in the nature of a business shall not be taken into account except to the extent of the amount of profits and gains, if any, in any other business consisting of speculative transactions: (The second proviso is not relevant for the present purpose.) Explanation 1: Where the speculative transactions carried on are of such a nature as to constitute a business, the business shall be deemed to be distinct and separate from any other business.
Explanation 2: A speculative transaction means a transaction in which a contract for purchase and sale of any commodity including stocks and shares is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips.
(The rest of the section is also not relevant.)" Before us both sides admitted that the question is covered by the decision of this Court in Raghunath Prasad Poddar vs Commissioner of Income tax, Calcutta(1) where it was held that such transactions were not speculative transactions within the meaning of explanation 2 to sec.
24(1).
The learned counsel for the revenue however prayed for re consideration of the decision on a fresh examination of the problem.
In Raghunath Prasad Poddar vs Commissioner of Income tax, Calcutta (supra) the assessee, a company dealing in jute and jute goods, purchased pucca delivery orders (in short P.D.Os.) in respect of gunny bags from various parties after paying the full price of the goods covered by the delivery orders and transferred those P.D.Os.
to buyers after receiving the price fixed for the sale of those goods.
The Tribunal following the decision in D. M. Wadhwana vs Commissioner of Income tax (supra) held that the sales in question were speculative and consequently the losses suffered by the assessee in these transactions could not be set off against the profits made by the assessee 's non speculative business High Court on reference following its earlier decisions in D. M. Wadhwana 's case and Manalal M. Verma & Co. (P) Ltd. vs Commissioner of Income tax(2) answered the questions referred to it, which are similar to the question formulated in this case, in favour of the revenue.
This Court reversed the decision on appeal.
The view taken in Raghunath Prasad 's case appears to be based on three earlier decisions of this Court.
Duni Chand Rataria vs Bhuwalke Brothers Ltd. (supra) Beyanna Bhimayya and sukhdevi Rathi vs The Government of Andhra Pradesh (supra) and State of Andhra Pradesh vs Kolla Sreeramamurthy(2).
The reasoning in Raghunath Prasad 's case proceeds like this: 184 To effect a valid transfer of any commodity, it is not necessary that the transfer in question should be followed up by actual delivery of the goods to the transferee.
Even if the goods are delivered to the transferee 's transferee, the first transfer also will be a valid transfer.
What has to be seen in such cases is whether the ultimate purchaser of the P.D.Os has taken actual delivery of the goods sold.
lt is erroneous to think that if any transfer of the P.D.Os. is not followed up by actual delivery of the goods to the transferee, that transaction is to be considered as speculative.
The following observation in Duni Chand Rataria vs Bhuwalke Brothers Ltd. (supra) was relied on in support of the view taken: "The sellers handed over these documents (like delivery orders) to the buyers against cash payment, and the buyers obtained these documents in token of (delivery of possession of the goods.
They in turn passed these documents from hand to hand until they rested with the ultimate buyer who took physical or manual delivery of possession of those goods.
The constructive delivery of possession which was obtained by the intermediate parties was thus translated into a physical or manual delivery of possession in the ultimate analysis eliminating the unnecessary process of each of the intermediate parties taking and in his turn giving actual delivery of possession of the goods in the narrow sense of physical or manual delivery thereof." In Duni Chand Rataria 's case this Court was interpreting the words "actual delivery of possession" occurring in sec. 2(1)(b)(i) of West Bengal Jute Goods Future ordinance, 1949.
The question for determination in that case was whether certain contracts between the appellant and the respondents could be called contracts involving actual delivery of possession of the goods concerned.
Referring to the definition of "delivery" in sec.
2(2) of the Indian it was observed that this would include actual delivery as also symbolic or constructive delivery, and having regard to the mischief which was sought to be averted by the promulgation of the ordinance to prevent persons who dealt in differences only and never intended to take delivery under any circumstances it was held that the intendment of the ordinance was that "actual delivery of possession" was actual delivery as contracted with mere dealings in differences and such actual delivery included within its scope symbolic and constructive delivery of possession.
With respect, these observations made in quite a different context do not appear to us to be of assistance in interpreting explanation 2 to sec.
24(1) of the Indian Income Tax Act, 1922 The other decision referred to in Raghunath Prasad 's case, Bayanna Bhimayya and Sukhdevi Rathi vs The Government of Andhra Pradesh (supra) was a case under the Madras General Sales Tax Act, 1939.
The appellant in that case who dealt in gunnies entered contracts with two mills agreeing to purchase gunnies at a certain rate 185 for future delivery and also entered into agreements with third parties by which they charged something extra from the third parties and handed over to them the delivery orders described as kutcha delivery orders.
The mills however did not accept the third parties as contracting parties but only as agents of the appellants.
The tax authorities treated the transaction between the appellants and the third parties as a fresh scale and sought to levy sales tax on this as well, to which 13 the appellants objected saying that there was only one sale.
It was held that a delivery order being a document of title to the goods cover cd by it, possession of the document not only gave one the right to recover the goods but also to transfer them to another by endorsement or delivery, and that there being two separate transactions of sale, one between the mills and the original purchasers, and the other between the original purchasers and the third parties, tax was payable at both the points.
In reaching this conclusion the court observed: "At the moment of delivery by the mills to the third par ties, there were, in effect, two deliveries, one by the mills to the appellants, represented, in so far as the mills were concerned, by the appellants ' agents, the third parties, and the other, by the appellants to the third parties as buyers from the appellants.
These two deliveries might synchronise in point of time, but were separate, in point of fact and in the eye of law.
" Here also the only question was whether on the facts of the case there were two separate transactions of sale so that tax was payable at both the points under the Madras General Sales Tax Act, 1939.
The observation made in this context does not also seem to us relevant to the question under consideration in the appeal before us.
Another authority on which the decision in Raghunath Prasad 's (supra) case relies is State of Andhra Pradesh vs Kolla Sreeramamurthy, (supra) which is also a case under the Madras General Sales Tax Act, 1939.
The respondent in that case, a dealer in gunny bags, purchased gunnies from the mills on terms of written contracts which were on printed forms.
These contracts were entered into by brokers acting for the respondent who sent him 'Bought Notes ' setting out the terms upon which the purchases had been effected from the mills.
The mills having received a part of the purchase money in terms of the contract issued delivery orders directing the delivery of goods as per the contract.
Instead of taking delivery himself, the respondent endorsed the delivery orders and these passed through several hands before the ultimate holder of the delivery orders presented them to the mills and obtained delivery of the gunnies on payment.
The question that arose for decision was whether the transactions entered into by the respondent were mere sales of delivery orders or sales of goods so as to bring them to charge under sec.
3 of the said Act.
At the date of the contract for purchase by the respondent, the goods which were the subject matter of the purchase were not appropriated to the contract so that there was no completed sale since no property passed, but only an agreement for sale.
In considering the effect of 186 the position that the property in the goods passed to the ultimate endorsee of the delivery orders, Mr. Justice Ayyangar speaking for the Court relied on an English decision, Butterworty vs Kingsway(1) to hold that though the respondent and his transferees had not acquired any title to the goods, the title acquired by the ultimate endorsee of the delivery orders went to feed their previously defective titles and ensured to their benefit.
His Lordship further observed that this was the principle that formed the basis of the decision in Bayanna Bhimeyya 's (supra) case.
Here again, the question that was considered has hardly any connection with sec.
24 of the Indian Income Talc Act 1922, and the observations made in this case cannot be a guide to the solution of the problem arising in the case before us Sec.
6 of the Indian Income Tax Act, 1922 enumerates the heads of income chargeable to income tax.
24(1) of the Act provides that where an assessee sustains a loss under any of these heads in any year, he shall be entitled to have the loss set off against his income, profits or gains under any other head in that year.
This general provision is qualified by the first proviso which permits the set off of a loss in speculative business against the assessee 's profits and gains, i any, in a similar business only.
explanation 1 says that where the speculative transactions are of such a nature as to constitute a business, I) the business shall be deemed to be distinct and separate from any other business.
Explanation 2 defines a speculative transaction as a transaction in which a contract for purchase and sale of any commodity is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity.
The words actual delivery in explanation 2 means real as opposed to notional delivery.
For income tax purposes speculative transaction means what the definition of that expression in explanation 2 says.
Whether a transaction is speculative in the general sense or under the Contract Act is not relevant for the purpose of this explanation.
The definition of "delivery" in sec.
2(2) of the which has been held to include both actual and constructive or symbolical delivery has no bearing on the definition of speculative transaction in the explanation.
A transaction which is otherwise speculative would not be a speculative transaction within the meaning of explanation 2 if actual delivery of the commodity or the scrips has taken place; on the other hand, a transaction which is not otherwise speculative in nature may yet be speculative according to explanation 2 if there is no actual delivery of the commodity or the scrips.
The explanation does not invalidate speculative according to explanation 2 if there is no actual delivery meaning to that expressing for purposes of income tax only.
In D. M. Wadhwana vs Commissioner of Income tax (supra) on which the Tribunal 's decision in this case is based, the Calcutta High Court observed: "The explanation to sec.
24(1), however, does not pre vent persons from entering into contracts in which the buyers and sellers may not actually hand over the goods physically.
The explanation is only designed at segregating for 187 income tax purposes loss sustained in transactions of a certain kind.
It may be that such transactions arc not speculative in the light of sec.
30 of the Contract Act.
In enacting the explanation 2 of sec.
24(1) of the Income Tax Act, the legislature did not intend to affect any transaction of sale wherein the goods were not physically delivered by the seller to the buyer but only laid down that if there was no actual or physical delivery, the loss, if any, would be a loss in a speculative transaction which could be allowed to be set off only against a profit in a transaction of the same nature.
The object of the explanation is not to invalidate the transaction which are not completed by actual deli very of the goods but only to brand them as speculative transactions so as to put them in a special category for income tax purposes.
" In our opinion this is a correct statement of the law.
This aspect o the matter was not considered in Raghunath Prasad Poddar vs Commissioner of Income tax, Calcutta.
(supra) we think the law on the point was correctly stated in D. M. Wadhwana vs Commissioner of income tax, (supra) and in our opinion the question referred to the High Court in the present case has been correctly answered.
The appeal is accordingly dismissed but in the circumstances of the case without any order as to costs. | The appellant company which carried on business in tea garden tools and requisites and also acted as agents for selling tea, derived the bulk of its income from selling commission on tea.
The assessment year in question is 1950 60.
In the relevant previous year which ended on June 30, 1958 the assessee for the first time in its history entered into certain transactions in jute.
On April 17, 1958 the assessee had contracted to purchase 1100 bales of B Twill and 2500 bales of corn sacks.
the contract for B Twill was with two parties, M/s. Raghunath Sons (P) Ltd. for 500 bales and M/s. Mahadeo Ramkumar for 600 bales.
The corn sacks were all purchased from Tulsider Jewaraj under three contracts for 800 bales, 1000 bales and 700 bales respectively.
On June 18, 1958 the assessee entered into a contract with M/s. Lachhminarain Kanoria & Co. to sell the aforesaid quantities of B Twill and corn sacks.
The assessee had no godown for keeping the goods and had not handled them.
The goods were in the godown of the mills and only the delivery orders addressed to the mills changed hands.
The amount realised on sale to M/s. Lachhminarain Kanoria & Co. came to Rs. 10,49,865/=.
The assessee had however purchased the corn sacks and D Twill for Rs. 11,48,399/ .
The transactions thus resulted in a loss of Rs, 98,534/=/ to the assessee and the assessee claimed adjustment of this loss in the computation of its income for the assessment year 1959 60.
The Income tax officer held that the transactions involving mere transfer of delivery notes and not actual delivery of the goods were of a speculative character as contemplated in explanation 2 to sec.
24(1) and the loss could be set off only against speculation profits, and as there were no speculation profits is that year, he held that the loss would be carried forward and set off against speculation profits in the future.
The appellate Commissioner on appeal by the assessee held that the transaction were not speculative and the loss should be treated as business loss.
In appeal by the Department, the Tribunal held that this case came within the scope of Sec.
24(1 ) read with explanation 2 and restored the order of the Income tax officer.
In reference, the High Court answered the question formulated by the Tribunal in the affirmative and against the assessee.
Section 24(1) of the Indian Income tax Act, 1922, provides 'that where an assessee sustains a loss under any of the heads of income chargeable to income tax as enumerated in 9. 6 of the Act in any year, he shall be entitled to have the loss set off against his income, profits or gains under any other head in that year.
This general provision is qualified by the first proviso which permits the set off of a loss in speculative business against the assessee 's profit and gains, if any, in a similar business only.
Explanation 1 says that where the speculative transactions are of such a nature as to constitute a business, the business shall be deemed to be distinct and separate from any other business.
Explanation 2 defines a speculative transaction as a transaction in which a contract for purchase and sale of any commodity is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity.
This appeal has been preferred by the assessee company after obtaining special leave from this Court, Dismissing the appeal, 181 ^ HELD: The words actual delivery in explanation 2 means real as opposed to notional delivery.
For the income tax purposes speculative transaction means what the definition of that expression in explanation 2 says.
Whether a transaction is speculative in the general sense or under the Contract Act is not relevant for the purpose of this explanation.
The definition of "delivery" in section 2(2) of the which has been held to include both actual and constructive or symbolical delivery has no bearing on the definition of speculative transaction in the explanation.
A transaction which is otherwise speculative would not be a speculative transaction within the meaning of explanation 2 if actual delivery of the commodity or the scrips has taken place; on the other hand, a transaction which is not otherwise speculative in nature may yet 'be speculative according to explanation 2 if there is no actual delivery of the commodity or the scrips.
The explanation does not invalidate speculative transactions which are otherwise legal but gives a special meaning to that expression for purpose of income tax only.
The question referred to the High Court in the present case has been correctly answered.
[186E G; 187D] D. M. Wadhwana vs Commissioner of Income tax West Bengal , approved.
Raghunath Prasad Poddar vs Commissioner of Income fax, Calcutta , over ruled.
Duni Chand Rataria vs Bhuwalka Brothers Ltd. ; Bayana Bhimayya and Sukhdevi Rathi vs The Government of Andhra Pradesh ; and The State of Andhra Pradesh vs Kolla Sreeramamurthy, ; , held inapplicable.
Manalal M. Varma & Co. (P) Ltd. vs Commissioner of Income tax, and Butterworty vs Kingsway, , referred |
Civil Appeal No. 481 of 1973.
From the Judgment and order dated the 9th February 1973 of the Mysore High Court at Bangalore in W.P. No. 1922 of 1970.
H. B. Datar and K. N. Bhat, for the appellant.
section section Javali and B. P. Singh, for the respondents Nos. 1, 3 13 The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the Mysore High Court (now High Court of Karnataka) of February 9" 1973, rejecting the appellant 's writ petition under article 226 of the Constitution by which the orders of the State Transport Appellate Tribunal and the Mysore Revenue Appellate Tribunal had been challenged.
189 Briefly the facts are as follows : The appellant was granted a stage carriage permit under section 48 of the (briefly the Act) for the route Devenagere to Shimoga via Honnali by the Regional Transport Authority, Shimoga, by its order dated May 3/4, 1963.
Some of the respondents preferred appeals against the said order to the State Transport Appellate Tribunal and obtained stay of the order The appeals were, however, dismissed on September 27, 1963.
Again, some of the respondents preferred further appeals to the Mysore Revenue Appellate Tribunal against the order of the State Transport Appellate Tribunal.
This time also the appeals met with the same fate and were dismissed on February 27, 1967.
It appears, however, that c no order of stay was granted by the Mysore Revenue Appellate Tribunal.
On April 25, 1967, the Secretary to the Regional Transport Authority, Shimoga, called upon the appellant to produce the relevant documents and the certificate of registration for making necessary entry in the permit.
The appellant produced the same on April 26, 1967, and the permit was issued on the same day.
Against the order of the issue of the permit, respondents 4 to 13 preferred appeals to the State Transport Appellate Tribunal on the ground that the Secretary to the Regional Transport Authority, Shimoga, had no jurisdiction to issue a permit under rule 119 of the Mysore Motor Vehicles Rules, 1963 (briefly the Rules) after a lapse of such a long time from the date of the grant of the permit.
It was contended that the issue of the permit was made beyond the prescribed period of limitation under rule 119.
It may be mentioned that at the time of the grant of the permit the Mysore Motor Vehicles Rules, 1945 (old Rules) were in force and rule 151 of the old Rules was replaced by rule 119 with effect from July 1, 1963.
It was contended by the appellant before the appellate authorities that there was no period of limitation under rule 151 of the old Rules, which was applicable to his case, for the issue of a permit.
The appeals of the respondents were allowed by the State Transport Appellate Tribunal by majority on January 29, 1969.
The District Judge Member, however, dissented.
An appeal filed by the appellant to the Revenue Appellate Tribunal against the order of the State Transport Appellate Tribunal was dismissed which led to the unsuccessful writ application in the High Court and hence this appeal.
The point that arises for consideration is whether any appeal lay under section 64 of the Act to the State Transport Appellate Tribunal against the issue of a permit in pursuance of an earlier resolution of the Regional Transport Authority granting the permit.
It is only necessary to read section 64(1) (a) which is material for the purpose of this appeal: 64(11 (a): "Any person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him may within the prescribed time and in the prescribed man 190 ner, appeal to the State Transport Appellate Tribunal constituted under sub section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final".
We are not required to consider the other clauses of section 64(1) which are admittedly not relevant.
Section 64 has to be read with rule 178 of the Rules which prescribes the procedure for appeal to the various authorities Appeal is a creature of the statute.
There is no dispute that section 64 of the Act is the only section creating rights of appeal against the grant of permit and other matters with which we are not concerned here.
There is no appeal provided for under section 64 against an order issuing a permit in pursuance of the order granting the permit.
Issuance of the permit is only a ministerial act necessarily following the grant of the permit.
The appeals before the State Transport Appellate Tribunal and the further appeal to the Mysore Revenue Appellate Tribunal are, therefore, not competent under section 64 of the Act and both the Tribunals had no jurisdiction to entertain the appeals and to interfere with the order of the Regional Transport Authority granting the permit which had already been affirmed in appeal by the State Transport Appellate Tribunal and further in second appeal by the Mysore Revenue Appellate Tribunal.
There was, therefore, a clear error of jurisdiction on the part of both the Tribunals in interfering with the grant of the permit to the appellant.
The High Court was, therefore, not right in dismissing the writ application of the appellant which ought to have been allowed.
Although arguments were addressed by counsel with regard to old rule 151 and rule 119 of the Mysore Motor Vehicles Rules, 1963 we do not feel called upon to pronounce upon the legal effect of these rules in this appeal.
In the result the appeal is allowed.
The order of the High Court is set aside and necessarily the order of the State Transport Appellate.
Tribunal of January 29, 1969 and the order of the Mysore Revenue Appellate Tribunal of May 8, 1970, also fall.
The order granting the permit to the appellant stands restored There will be no order as to costs .
V.P.S. Appeal allowed. | The appellant was granted a stage carriage permit by the Regional Transport Authority in May, 1963.
Appeals against the grant to the State Transport Appellate Tribunal and further appeals to the Mysore Revenue Appellate Tribunal were dismissed.
Thereafter, in April, 1967, the Secretary of the Regional Transport Authority after calling upon the appellant to produce the relevant documents, issued the permit.
Appeals by the respondents of the State Transport Appellate Tribunal against the issue of the permit to the appellant were allowed on the ground of limitation.
The appeal of the appellant to the Revenue Appellate Tribunal was dismissed.
The appellant 's writ petition to the High Court was also dismissed.
Allowing the appeal to this Court, ^ HELD: There was a clear error of jurisdiction on the part of the State Transport Appellate Tribunal and the Revenue Appellate Tribunal in interfering with the issue of permit to the appellant.
The High Court was, therefore, not right in dismissing the writ application.
[190D E] Appeal is a creature of the statute.
Section 64 of the , is the only section creating rights of appeal against the grant of permit and other matters.
But there is no appeal provided against an order issuing a permit in pursuance of an order granting the permit.
Issuance of the permit is only a ministerial act necessarily following the grant of the permit.
Hence, the appeal to the State Transport Appellate Tribunal and the further appeal are not competent under the section.
[190B D] |
Civil Appeal Nos.
1988 1989 of 1970.
From the Judgment and order dated the 29th day of October, 1968 of the Kerala High Court in W.P. No. 156 of 1967.
V. A. Seiyed Muhamad and K. M. K. Nair, for the appellant (In C.A.No. 1988/70.
K. M. K. Nair, for the appellant (In C.A. No. 1989/70) G. B. Pai, A. G. Meneses, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would dispose of civil appeals No. 1989 and 1989 of 1970, Filed on certificate against the judgment of the Kerala High Court, whereby that court held that it was beyond the competence of the State Legislature to enact law contained in sub section (3) of section 22 of the Kerala General Sales Tax Act, 1963 (Act 15 of 1963) (hereinafter referred to as the Act) in so far as it related to payment of an amount collected as tax on transactions not liable to tax under the Act or in excess of the tax leviable under the.
We may now set out the facts giving rise to one of the appeals.
Both the learned counsel are agreed that the decision in that would also govern the other appeal.
Under section 5 of the Act, tax is payable by a dealer on his tax able turnover. "Taxable turnover` ' is defined in section 2(xxv) of the Act as the turnover on which a dealer is liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed by the rules under the Act.
It does not, however, include the turnover of purchase or sale in the course of inter State trade or commerce or in the course of export or import of goods.
The Kerala General Sales Tax Rules have been framed be the State Government in exercise of the powers conferred by section 57 of the Act.
According to clause (i) of rule 9 of the sail rules.
in determining the taxable turnover the following amount shall be deducted from the total turnover of the dealer: "the excise duty, if any paid by the dealer to the Government of Kerala or the Central Government in respect of the goods sold by him".
It may be stated that clause (i) was omitted subsequently but we are concerned with the period when that clause was an integral part of the rule.
The respondent is an incorporated company engaged in the manufacture and sale of soaps, toilets and other goods.
The respondent 's accounts disclosed that it had collected from the persons to whom it sold goods a sum of Rs. 30,591.71 as sales tax in excess of the tax which the respondent was liable to pay under the Act.
The respondent, it would appear, paid Rs. 6,62,958 as excise duty and deducted the same from its total turnover for the purpose of determining the taxable turnover.
When, however, the respondent company sold the 154 goods it collected sales tax from the purchasers on the invoice price without deducting there from the excise duty paid in respect of the said goods.
This resulted in the respondent company realising Rs. 30,591.71 in excess of the sales tax payable in respect of the goods sold by it: The sales tax officer held that the respondent was liable to pay the aforesaid amount of Rs. 30,591.71 to the Government under section 22(3) of the Act.
The respondent then filed writ petition in the Kerala High Court to challenge its liability to pay the aforesaid amount on the ground that the provisions of section 22 in so far as they imposed a liability on a dealer to pay over to the Government any amount collected by him as sales tax, even though that amount was not payable as tax, was unconstitutional.
The learned single Judge dismissed the petition filed by the respondent.
On appeal, however, the Division Bench held, as already mentioned earlier, that the impugned provision was beyond the legislative competence of the State Legislature.
Sub section (3) of section 22 of the Act reads as under: "(3) If any dealer or person collects tax on transactions not liable to tax under this Act or in excess of the tax leviable to under this Act, such dealer or person shall, unless it is established to the satisfaction of the assessing authority that the tax so collected has been refunded to the person who had originally paid tax, pay over to the Government, in addition to the tax payable the amount so collected within such time and in such manner as may be prescribed.
" The learned Judges of the High Court in holding the above provision.
in so far as it related to payment of an amount collected as tax on transactions not liable to tax under the Act or in excess of the tax leviable under the Act to he beyond the legislative competence of the State Legislature, referred to entry 54 of the State List in the Seventh Schedule to the Constitution upon which reliance had been placed on behalf of the State.
It was held that the State Legislature was incompetent to enact the impugned provisions contained in sub section (3) of section 22 of the Act under the above entry.
In appeal before us Dr. Seiyed Muhammad on behalf of the appellants has assailed the judgment of the Division Bench of the High Court.
As against that, Mr. Pai on behalf of the respondent has canvassed for the correctness of the said judgment.
After hearing the learned counsel, we are of the opinion that there is no merit in these two appeals.
A State Legislature is competent to make a law under entry 54 of List II in Seventh Schedule to the Constitution in respect of "taxes on the sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List I".
Entry 92A of List I relates to taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter State trade or commerce, and we are not concerned with this entry.
155 Entry 54 enpowers State Legislatures to make law, except i certain cases with which we are not concerned, in respect of taxes on the sale or purchase of goods.
As long as the law relates to taxes on the sale or purchase of goods, it would be within the competence of the State Legislature to enact such a law.
It would not, however, b permissible for the State Legislature to enact a law under entry 54 for recovery by the State of an amount which could not be recovered as sales tax or purchase tax in accordance with the law on the subject and which was wrongly realised by a dealer as sales tax or purchase tax.
Such a law plainly would not be a law relating to tax on the sale or purchase of goods but would be one in respect of an amount wrongly realised by a dealer as sales tax or purchase tax.
It looks perhaps odd that a dealer should recover in the course of business transactions certain sums of money as sales tax or purchase tax payable to the State and that he should subsequently decline to pay it to the State on the ground that the same amount is not exigible as sales tax or purchase tax.
Whatever might be the propriety of such a course, the question with which we are concerned is whether the State Legislature is competent to enact a law under entry 54 for recovery by the State of an amount, which though not exigibie under the State law as sales tax or purchase tax was wrongly realised as such by a dealer.
The answer to such a question has to be in the negative.
The matter indeed is not res integra and is concluded by two decisions of this Court.
A Constitution Bench of this Court examined in the case of R. Abdul Quader & Co. vs Sales Tax officer, Hyderabad(1) the validity of section l l (2) of the Hyderabad Sales Tax Act, 1950 which reads as under: "(2) Notwithstanding anything to the contrary contained in any order of an officer or tribunal or judgment, decree or order of a Court, every person who has collected or collects on or before 1st May, 1950, any amount by way of tax otherwise than in accordance with the provisions of this Act shall pay over to the Government within such time and in such manner as may be prescribed the amount so collected lay him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue.
" The appellant in that case collected sales tax from the purchasers of betel leaves in connection with the sales made by it.
The appellant however, did not pay the amount collected to the government.
The Government directed the appellant to pay the amount to the Government.
The appellant thereupon filed a writ petition in the High Court questioning the validity of section 11(2).
The main contention of the appellant before the High Court was that section 11(2) which authorised the Government to recover a tax collected without the authority of law was beyond the competence of the State Legislature because a tax collected without the authority of law would not be a tax levied under the law and it would therefore not be open to the State to collect (1) ; 156 under the authority of a law enacted under entry 54 of List II of the Seventh Schedule to the Constitution any such amount.
The High Court upheld the validity of section 11(2).
On appeal to this Court it was observed by the Constitution Bench as under: "The first question therefore that falls for consideration is whether it was open to the State legislature under its powers under entry 54 of List II to make a provision to the effect that money collected by way of tax, even though it is not due as a tax under the Act, shall be made over to Government.
Now it is clear that the sums so collected by way of tax arc not in fact tax exigible under the Act.
So it cannot be said that the State legislature was directly legislating for the imposition of sales or purchase tax under entry 54 of List II when it made such a provision, for on the face of the provision.
the amount, though collected by way of tax, was not exigible as tax under the law." An attempt was made on behalf of the State in that case to sustain the validity of section 11(2) of the Hyderabad Act on the ground that the Legislature had enacted that law as part of the incidental and ancillary power to make provision for the levy and collection of sales or purchase tax.
This contention was repelled and it was observed that the ambit of ancillary or incidental power did not go to the extent of permitting the legislature to provide that though the amount collected may be wrongly by way of tax is not exigible under the law.
as made under the relevant taxing entry, it shall still be paid over to Government, as if it were a tax.
The question again arose in this Court before a Bench consisting of six Judges in the case of Ashoka Marketing Ltd. vs State of Bihar & Anr.(1).
In that case in determining the appellant 's turnover for assessment to sales tax for the year 1956 57, the Superintendent of Sales Tax included an amount representing Railway freight in the appellant 's sales of cement.
The appellate authority set aside the orders directing the inclusion of the Railway freight in the turnover.
After the introduction of section 20 A of the Bihar Sales Tax Act the Assistant Commissioner issued a notice under section 20 A(3) of the Act requiring the appellant to show cause why an amount representing sales tax on the Railway freight which became refundable under the orders of assessment be not forfeited.
The appellant 's contention that section 20 A was ultra vires the State Legislature was rejected by the Assistant Commissioner as well as by the High Court in a writ petition under article 226 of the Constitution.
On appeal filed by the assessee this Court held that sub sections (3), (4) and (5) of section 20 A were ultra vires the State legislature.
As a corollary thereto, sub sections (6) and (7) of that section were also held to be invalid.
Subsection (3) of section 20 A of the Bihar Sales Tax Act read as under: "(3)(a) Notwithstanding anything to the contrary contained in any law or contract or any judgment, decree or order of (1) 157 any Tribunal, Court or authority, if the prescribed authority has reason to believe that any dealer has or had, at any time, whether before or after the commencement of this Act, collected any such amount, in a case in which or to an extent to which the said dealer was or is not liable to pay such amount, it shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a time and place to be specified therein neither to attend in person or through authorised representative to show cause why he should not deposit into the Government treasury the amount so collected by him.
(b) On the day specified in the notice under clause (a) or as soon thereafter as may be, the prescribed authority may.
after giving the dealer or his authorised representative a reason able opportunity of being heard and examining such accounts and other evidence as may be produced by or on behalf of the dealer and making such further enquiry as it may deem necessary, order that the dealer shall deposit forthwith into the Government treasury, the amount found to have been so collected by the dealer and not refunded prior to the receipt of the, notice aforesaid to the person from whom it had been collected.
" In holding sub section (3) and other impugned provisions of section 20 A to be beyond the legislative competence of the State Legislature, this Court in the case of Ashoka Marketing Ltd. (supra) relied upon the decision of this Court in Abdul Qadar 's case (supra).
Dr. Muhammad has, however, tried to distinguish the above two cases on the ground that the present case relates to an amount realised in excess of the tax leviable under the Act and not to an amount which was not payable at all as tax under the Act.
This fact, in our opinion, would not prevent the applicability of the principle laid down in the cases of Abdul Qadar and Ashoka Marketing Ltd. (supra).
Any amount realised by a dealer in excess of the tax leviable under the Act stands, for the purpose of determining the legislative competence under entry 54, on the same footing as an amount not due as tax under the Act.
Dr. Muhammad 's argument involves inventing a category of a "deemed tax" which is not there in the Act.
The provisions of the Act contain a definition of "tax".
This necessarily means that every thing outside it collected by the dealer would be an exaction not authorised by the Act.
"Tax", according to section 2(xxiv) of the Act, means the tax payable under the Act.
The amount which was realised by the respondent in excess of what was due as tax cannot 158 be held to be "tax", because such excess amount was not tax payable under the Act.
If the State Legislature cannot make a law under entry 54 of List II of the Seventh Schedule to the Constitution directing the payment to the State of any amount collected as tax on transactions not liable to tax under the Act, it would likewise be incompetent to make a law directing payment to the State of an amount realised be a dealer in excess of the tax payable under the Act.
The amount realised in excess of the tax leviable under the Act would not stand for this purpose on a footing different from that of the amount realised as tax, even though the same could not be recovered as tax under the Act.
We would, therefore, dismiss the two appeals with costs.
One hearing fee.
V.P.S. Appeals dismissed. | According to r. 9(1) of the Kerala General Sales tax Rules framed under.
the Kerala General Sales tax Act, 1963, in determining the taxable turnover of a dealer the excise duty, if any, paid by the dealer to the Government of Kerala or to the Central Government in respect of the goods sold by him shall be deducted.
Section ,22(3) of the Act provides that if any dealer or person collects tax on transactions not liable to tax under the Act or in excess of the tax leviable under the Act such dealer or person shall pay to the Government.
in addition to the tax payable, the amount so collected unless it was refunded to the person from whom it was collected.
The respondent deducted the sum paid by it as excise duty from its total turnover for the purpose of determining the taxable turnover.
The respondent, however, when it sold the goods.
had collected, sales tax from the purchasers on the invoice prices without deducting therefrom the excise duty paid in respect of the said goods.
This resulted in the respondent realising a sum in excess of the sales tax payable in respect of the goods sold by it.
The Sales tax officer held that the respondent was liable to pay that amount to the Government under section 22(3).
The writ petition filed by the respondent was allowed by the High Court on the ground that section 22(3) was not covered by Entry 54 of the State List in the VII Schedule to the Constitution, and hence, beyond the competence of the Slate Legislature.
Dismissing the appeal to this Court.
^ HELD: (1) Entry 54 empowers the State Legislatures to make laws, except in certain cases, in respect of taxes on the sale or purchase of goods.
As long as the law relates to taxes on the sale or purchase of goods, it would be within their legislative competence.
But, it would not be permissible for.
the State legislature to enact a law under Entry 54 for recovery by the State of an amount which could not be recovered as sales tax or purchase tax in accordance with the law on the subject and which was wrongly realised by a dealer as sales tax or purchase tax.
Such a l. would not be a law relating to tax of the sale or purchase of goods but would be one in respect of an amount wrongly realised by a dealer as sales tax or purchase tax.
[1 55A C] (2) The ambit of ancillary or incidental power would not go to the extent of permitting the Legislature to provide that.
though the amount collected, may be wrongly, be way of tax,, was not tax, it shall still be paid over to the Government as if it were a tax.
[156D E] (3) The fact that the amount realised is in excess of the tax leviable and not as amount which was not at all payable as tax, would not make any difference.
Any amount realised by a dealer in excess of the tax leviable, stands, for the purpose of determining the legislative competence under Entry 54, on the same footing as an amount not due as tax under the Act.
Tax, according to section 2(xxiv) of the Act, means tax payable under the Act.
This necessarily means that everything outside it, collected by the dealer.
would be an exaction not authorised by the Act.
The amount which was realised by the respondent in excess of what was due as tax cannot be held to be tax, because, such excess amount was not tax payable under the Act.
If the State Legislature cannot make a law under Entry 54 directing payment to the State of any amount collected as tax on transactions not liable to lax under the Act, it would likewise be incompetent to make a law directing payment to the State of an amount realised by a dealer in excess of the tax payable under the Act.
[157G 158C] 153 R. Abdul Quader & co. vs Sales Tax Officer , Hyderabad and Ashoka Marketing Ltd. vs State of Bihar & Anr. followed. |
Civil Appeals Nos.
1213 1220.
1353, 1354, 1385 1386, 1387 1388, 1564, 1566 1567, 1579 1581.
1608, 1622, 1623 1624, 1626, 1630, 1647, 1764, 1862, 1432, 1433 & 1871 of 1974.
from the judgment and Order dated the 9th day of May 1974 of the Rajasthan High Court in W.P. Nos.
1497 1503 & 1505/1971.
221 A. K. Sen and B. D. Sharma, for the appellts (In C.A. Nos.
1213 1220 & 1862).
B. D. Sharma, for the appellants (In C.A. Nos. 1353, 1354 and 1647) .
Badri Das Sharma and section R. Srivastava, for the appellants (In C.A. Nos. 1623, 1432, 1433 and 1871).
D. V. Patel and section section Khanduja for the appellants (In C.A.No. 1385) .
S.S. Khanduja, for the appellants (In C.A. Nos.
1386 1388, 1530, 1564, 1566, 1567, 1579, 1580, 1581, 1606, 1622, 1624, 1626, 1630 & 1764).
L. M. Singhvi and section M. Jain, for the respondents (In all the appeals).
The Judgment of the Court was delivered by RAY C.J.
These appeals by certificate turn on the question as whether the excise license granted to the appellants rendered them lube to pay the stipulated lump sum mentioned in the licence.
These appeals relate to country liquor licences (a) for the years 1962 63 and 1963 64; (b) for the years 1967 68 and (c) for the years 1968 69, 1469 70 and 1970 71.
For the years 1962 63 and 1963 64 licences for sale of country liquor were given to contractors under a guaranteed system.
There was a total guaranteed amount.
Where the contractors failed to fulfil the guaranteed amount and there was a short fall,, demand notices were issued for the total short fall.
For the years 1967 68, 1968 69 and 1969 70 the liquor contractors obtained licences for sale of country liquor at a stipulated amount of license fee under the exclusive privilege system.
Where the contractors failed to pay the guaranteed amount there was a demand for a short fall.
The appellants who were the liquor contractors challenged the demand for short fall of the guaranteed amount.
The liquor contractors contended that what was being demanded as short fall amounted to levy of excise duty.
The State, on the other hand, contended that what was being realized from the liquor contractors was the guaranteed amount in the licence for the exclusive privilege of selling country liquor.
It may be stated here that there was no levy of excise duty prior to 6 March, 1964.
After the imposition of excise duty, the licences during the year 1967 68 and thereafter were issued for guaranteed sum under the exclusive privilege system.
The State contended that what was being demanded as short fall was the stipulated guaranteed amount which was excise revenue.
222 The licenses granted upto the year 1967 68 contained the following principal conditions (1) The licensee guarantees to the Governor of Rajasthan State that he, in the year concluding on. March . shall receive from the Government and sell such quantity of wine of which issue price shall not be less than Rs. (hereinafter known as the guaranteed price which are prevailing on . March. ) (2) The liquor shall be supplied to the licensee at the prevailing issue price, but the difference between such issue price and the issue price calculated at the prevailing rate on 31 March. shall not be included in the guarantee amount.
(3) The licensee will have to pay the shortfall, if any, between the price of the liquor obtained by him upto the end of any month at the issue price of 31 March . and the amount of guarantee multiplied by the months which have passed and divided by eleven at the godown by the tenth of the next month.
(4) In case of non payment, the licence will be cancelled and when cancelled this way, the above mentioned difference shall be recovered from security, cash deposits and remanant, if any, shall be recovered from the licensee and surety jointly and severally.
From 1968 69 the licences contained, inter alia, the following principal conditions: (1) The licensee will have to deposit Rs. as licence fee under section 24 of the Rajasthan Excise Act 1950 for his exclusive privilege as fixed by the Excise Commissioner.
From it the amount of excise duty will be adjusted towards the payment of the amount for the exclusive privilege but this adjustment will be limited to the payment of the amount for the exclusive privilege.
The licensee will have to deposit the aforesaid amount in 12 equal instalments and will have to deposit the monthly instalments by the 10th of the next month in Government Treasury.
The fees deposited by the license holder in that month in the form of the component of the issue price will be treated as excise duty under the instalment of the license fee.
(2) If the licence holder does not deposit the instalments for any two months as laid down in the aforesaid condition within the prescribed period then the officer issuing the license will have the right to realise the 223 amount of that instalment from the cash security of the licence holder or from his surety.
In addition to this, he will also have the right to cancel the licence of the licensee.
The appellants repeated the contention which had been advanced before the High Court that when the State Government wanted to enforce the guaranteed sum it amounted to recovery of excise duty by licence.
The appellants contended that the issue prices in the licence are exclusive of prices of container but inclusive of excise duty levied under the Government notification and therefore, enforcement of the guaranteed amount meant realisation of excise duty.
The appellants contended that unfulfilled guarantee amount which is sought to be recovered from the appellants is not balance of lump sum payment as price of exclusive privilege because the Government licence sanctioning guarantee system stated "that the licensee shall guarantee in respect of the year. income to the Government on account of the issue price of country liquor issued for sale at his shop during the year. " It was, therefore, said by the appellants that a promise to give income to the Government by purchasing a minimum quantity of liquor from the Government ware house was not equivalent to the payment o sum of money in consideration of grant of such privilege within the meaning of section 30 of the Rajasthan Excise Act.
The appellants contended that the amounts of money sought to he recovered from the licensee under the exclusive privilege system introduced from the year 1968 as well as under the guarantee system prevalent prior to the year 1968 are nothing but demands for excise duty on unlifted liquor.
The reasons advanced by the appellants are that under the exclusive privilege system of licensing introduced in 1968 the amount was agreed to be paid and deposited specifically towards excise duty given as a component of the issue price for the supply of country liquor and was agreed to be adjusted in the amount of the exclusive privilege.
The appellants also submitted that the word 'issue price ' was a composite name for 'cost price of liquor ' and 'excise duty leviable thereon ' and therefore, an agreement by the licensees under the guarantee system to pay 'issue price ' was tantamount to an agree not pay 'cost price ' and 'excise duty ' as distinct items though described as issue price.
The appellants contended that licences under both systems of Guarantee and Exclusive Privilege contain a term about the payment and adjustment of excise duty and under both systems 'excise duty ' is a distinct item agreed to be paid as such in terms of the licences.
The licences were granted under the Rajasthan Excise Act, 1950 (referred to as the Act.) Section 24 of the Act confers power on the Excise Commissioner to grant any person a license for the exclusive privilege.
224 (1) of manufacturing or supply by wholesale, or of both, or (2) of selling by wholesale, or by retail, or (3) of manufacturing or of supplying by wholesale, or of both, and of selling by retail, any country liquor or intoxicating drug within any local area of those parts of the State of Rajasthan to which the Act extends.
Section 28 of the Act provides that an excise duty or a countervailing duty, as the case may be, at such rate or rates as the State Government shall direct, may be imposed either generally or for any specified area, on any excisable article imported or exported, or transported or manufactured, cultivated or collected under any licence granted under the Act, or manufactured in any distillery, pot still or brewery established or licensed under the Act.
The Explanation to section 28 provides that duty may be imposed under this section at different rates according to the places to which any excisable article or intoxicating drug is to be removed for consumption or according to the varying strength and quality of such article.
Section 29 of the Act provides that subject to such rules regulating the time, place and manner of payment, as the State Government may prescribe such duty may be levied in such one or more ways as the State Government may by notification in the official Gazette direct.
Section 30 of the Act provides that instead of or in addition to any duty leviable under Chapter V which contains Sections 28, 29 and L 30), the Excise Commissioner may accept payment of a sum in consideration of` the grant of the licence for exclusive privilege under section The Rajasthan Excise Rules, 1956 provide in rule 67 I, 67 J, 67 K and 67 L the different forms of procedure for grant of exclusive privilege Rule 67 I provides that licence for exclusive privilege of selling by retail of country liquor within any local area under section 24 of the Act may be granted on condition of payment of such lump sum instead of or in addition to excise duty, as may be determined by the Excise Commissioner and subject to such other terms and conditions as may be laid down by him.
Rule 67 J provides that a licence under rule 67 I may be granted by way of allotment by negotiation in accordance with the procedure laid down in sub rules 2 to 4 of rule 67 J. Rule 67 K provides that subject to such general or special directions as may be issued by the Excise Commissioner from time to time, the District Excise officer may put the licence under Rule 67 I to action for any area.
In such an auction the Presiding officer shall call upon for lump sum payment for exclusive privilege payable instead of or in addition to excise duty as may be directed by the Excise Commissioner.
Rule 67 L provides that the Excise Commissioner may at his discretion grant licence under rule 67 I for any area by negotiation with any third party.
There is a proviso that highest 225 bidder or highest tenderer if any shall be given a chance to make higher offer unless he has been debarred from holding licence or has rejected the offer under Rule 67(2).
The license fee stipulated to be paid by the appellants is the price or consideration or rental which the Government charges from the licensees for parting with its privilege in stipulated lump sum payment and is a normal incident of a trading or business transaction.
This Court in the recent decision in Nashirwar and Ors.
vs State of Madhya Pradesh and ors.(1) and in the unreported decision Hari Shanker vs Deputy Excise and Taxation Commissioner(2) held that the State has exclusive right to manufacture and sell liquor and to sell the said right in order to raise revenue.
The nature of the trade is such that the State confers the right to vend liquor by farming out either by auction or by private treaty.
Rental is the consideration for the privilege granted by the Government for manufacturing or vending liquor.
Rental is neither a tax nor an excise duty.
Rental is the consideration for the agreement for grant of privilege by the Government.
The licences in the present case are contracts between the parties.
The licensees voluntarily accepted the contracts.
They fully exploited to their advantage the contracts to the exclusion of others.
The High Court rightly said that it was not open to the appellants to resile from the contracts on the ground that the terms of payment were onerous.
The reasons given by the High Court were that the licensees accepted the licence by excluding their competitors and it would not be open to the licences to challenge the terms either on the ground of inconvenient consequence of terms or of harshness of terms.
The legal position is also correctly stated in Madhavan vs Assistant Excise Commissioner, Palghat and ors.(3) where it is said that the rental charged by the State for licences is the consideration for the privilege of vending liquor.
The licenses in the present appeals voluntarily contracted to pay the guaranteed sum of the stipulated lump sum for the exclusive privilege to vend liquor.
In the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act 1938 case,(4) it has been said that in several Acts by which excise duties are imposed it is provided that duty is able articles from the place of manufacture or production and there is no provision for the imposition of an excise duty on retail sales.
Many Acts provide for lump sum payments in certain cases by manufacturers and retailers, which may be described payments either for privilege or as consideration for the temporary grant of a monopoly, but these are clearly not excise duties or anything like them.
(Sec at pp.
53 and 54).
This Court in M/s. Guruswamy & Co. etc.
vs State of Mysore & ors.(5) considered the question whether the payment of shop rent 226 for the exclusive privilege of sale of liquor in a specified shop is an excise duty.
In Guruswami 's case (supra) the petitioners paid shop rent or the 'kist ' for a group of toddy shops amounting to Rs. 3,61,116 a month.
This 'kist ' amount was determined at the auction sale of exclusive privilege of vending toddy in the shops.
The notification for auction mentioned rates of duty, price, etcetera on the several kinds of excisable articles.
The notification also mentioned that health cess at a certain rate shall also be payable on the shop rent and tree tax on toddy and other duties of excise levied.
The petitioners challenged the authority of the State to levy and collect health cess.
The main ground was that the health cess was hl reality a tax and not a mere cess.
This Court said that the true character or nature of levy in Guruswami 's case (supra) was that it was a payment for the exclusive privilege of selling toddy.
The payment had no close relation to the production or manufacture of toddy.
The only relation the levy had to production or manufacture was that it enabled the licensee to sell it.
The excise duty is paid on toddy in the form of tree tax.
He who keeps toddy pays tree tax.
The privilege of selling toddy was auctioned well before the goods came into existence.
In view of these characteristics the health cess was found not to be excise duty.
The taxable event in regard to the health cess was not the manufacture or production of goods but the acceptance of the licence to sell the goods.
A Bench decision of this Court in State of Orissa and ors vs Harinarayan Jaiswal and ors.
(1) considered the grant of exclusive privilege of manufacture and sale of country liquor by licensees.
This Court held that the power given to the Government to sell the exclusive privilege in such manner as it thinks fit is a very wide power.
In Coverjee B. Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer and ors.(2) this Court held that an important purpose of selling the exclusive right to sell liquor in wholesale or retail is to raise revenue.
Excise revenue forms an important part of ' State revenues.
The power of the Government to sell the exclusive privilege is by public auction or by negotiation.
The fact that the 1. price fetched by the sale of country liquor is an excise revenue does not change the nature of the right.
The sale is a mode of raising revenue.
The decisions of this Court establish that the lump sum amount voluntarily agreed to by the appellants to pay to the State are not levies of excise duty but are in the nature of lease money or rental or lump sum amount for the exclusive privilege of retail sales granted by the States to the appellants.
There is no levy of excise duty in enforcing the payment of the guaranteed sum or the stipulated lump sum mentioned in the licences, for these reasons.
First, the licenses were granted to the appellants after offer and acceptance or by accepting their tenders or auction bid.
I 227 The appellants stipulated to pay lump sum amounts as the price for the exclusive privilege of vending country liquor.
The appellants agreed to pay what they considered to be equivalent to the value of the right.
Second, the stipulated payment has no relation to the production or manufacture of country liquor except hat it enables the licensee to sell it.
The country liquor is produced by the distilleries.
Under section 28 of the Act and under the relevant duty notifications he excise levy is on the manufacture and not on the sale or retail of liquor.
Under the duty notifications no excise duty is levied or collected from the liquor contractors who are liable only to pay the price of liquor.
The taxable event is not the sale of liquor to the contractors but the manufacture of liquor.
What the liquor contractors pay in consideration of the license is a payment for the exclusive privilege for selling country liquor.
The liability for excise is on the distillery and the liquor contractors are not concerned with it.
Before 1965 there was no excise duty.
The appellants were required to pay the guaranteed amount.
After the imposition of excise duty the position is not altered because the privilege of selling is granted by section or by offer and acceptance before the goods came into existence.
Excise contracts are settled in the preceding year.
Third, the stipulated 1) amounts payable by the appellants have relation only to what the appellants foresaw they could recoup by the sale of country liquor from the liquor shops licensed to them.
There are several varieties of country liquor and rates of excise levy on these varieties are different.
The appellants are not bound to take any particular quaintly or any particular quality of any variety.
Without reference to any quantity or quality, it is impossible to predicate the alleged levy of excise duty.
Before imposition of excise duty in 1965, the issue price did not have even a notional component of excise duty under Issue Price Rules.
Therefore, no excise duty could be attributed to the contractual amounts payable by the appellants.
The references to excise duty in licences under the guarantee system or exclusive privilege system prevalent subsequent to the year 1965 are only for the purposes of adjustment or concession as a unit of measure.
It is not all excise duty currently imposed or levied in the year of the licence that is being collected with regard to undrawn liquor because the adjustment of issue price is with reference to the issue price prevailing in the preceding year.
Rule 67 A of the Rajasthan Excise Rules, 1966 defines value as the price current on the 1st January preceding the financial ye`ar to which the guarantee relates.
Under Rule 67 A licences for retail shops of country liquor under the guarantee system may be granted to persons guaranteeing to draw from a Government warehouse and sell in a financial year or part thereof, country liquor of a specified value, called the ` 'amount of guarantee. ' The explanation to Rule 67 A is that 'value ' for the purpose of that rule shall be the total issue price at Government warehouse calculated at the rate of such price current on.
the I first day of January preceding the financial year to which the guarantee relates.
The licences under the guarantee system are granted either by inviting tenders or by auction or by negotiation.
The amount of 228 guarantee under Rule 67 A be (a) where a licence is granted by invitng tenders the amount of the tender accepted for the grant of the licence; (b) where a licence is granted by auction the amount of the bid accepted for the grant of the licence; and (c) where a Licence is granted by auction or negotiation, the amount of guarantee shall be the amount determined by the Excise Commissioner and accepted by the licensee.
The lump sum amount stipulated under the agreement is not to be equated with issue price.
The issue price is payable only when the contractors take delivery of a particular quantity of specified value of country liquor.
The issue price relates only to liquor drawn by the contractors and does not pertain to undrawn liquor.
No excise duty is or can be collected on undrawn liquor.
The issue price is the price at which country liquor is sold to the liquor contractors.
So far as the liquor contractors are concerned, they pay the price of the liquor even though the price may include the component of excise duty in respect of which they have no direct liability.
Illustrations may be found in case of a person buying a match box or a motor car or a refrigerator.
When the purchaser pays the price of match box, or a motor car or a refrigerator the price includes excise duty Levied and collected on the manufacture of these goods.
The price of goods necessarily includes different components but the price a buyer pays is different from duties and taxes paid or payable by the manufacturers.
The incidence of all the components of cost and taxes is inevitably passed on to the consumer.
What the consumer pays is the price of the goods and not the antecedent components as such.
The licences after stipulating an agreed sum of money which is payable by The licences under the licences provide a scheme of remission.
The liquor contractor is given a remission in the matter of his obligation to pay the stipulated amount to the extent of the excise duty component of The issue price paid by him.
The excise duty component of the issue price is, therefore, only a measure of the quantum or extent of the concession or the remission to be given to the liquor contractor.
The concession is not what is paid by the contractor to the State but it is a remission or a reduction in the stipulated amount for exclusive privilege allowed by the State to the contractor.
The lump sum amount payable for the exclusive privilege is not to be confused with the issue price.
In essence what is sought to be recovered from the liquor contractors is the shortfall occasioned on account of failure on the part of liquor contractor to fulfil the terms of licence.
The contractual obligation of the appellants to pay the stipulated amounts is Not dependent on the quantum of liquor sold by them which is relevant only for the purpose of remission to be earned by them under the licence.
No excise duty is charged or chargeable on undrawn liquor under the licence.
To suggest that the licence obliges the contractors to pay excise duty on undrawn liquor is totally mis 229 reading the conditions of the licence.
The excise duty is collected only in relation to the quantity and quality of the country liquor which is drawn.
No excise duty can be predicated in respect of undrawn liquor.
Adjustment by way of reduction in the contractual liability of the appellants to the extent of a specific and quantified portion of the issue price is purely a measure of concession or remission and is a method of calculation.
The question of adjustment arises only when liquor is drawn, otherwise the formula of remission does not come into the picture at all.
The appellants relied on the decision of this Court in Bimal Chandra Banerjee vs State of Madhya Pradesh(1) in support of the contention that the attempt on the part of the State to enforce the full guaranteed amount or stipulated sum is collecting excise duty.
In Bimal Chandra Banerjee 's case (supra) a levy of excise duty on undrawn liquor was imposed in terms by the State Government by a notification amending the Rules and by an alteration in the conditions of the license.
It was provided that certain minimum quantity of liquor would have to be withdrawn by each contractor who was to be liable to make good every month the deficit monthly average of the total minimum duty on or before the 10th of each month following the months to which the deficit duty relates.
The decision there was that in imposing the excise duty on undrawn liquor by the impugned notification, the State Government was exercising powers which it did not possess.
In the present case, the State Government has not imposed any excise duty on the licensee.
On the contrary, the licence only takes into account the excise duty component of the issue price for the purposes of giving a concession or remission to the contractors.
In Bimal Chandra Banerjee 's case (supra), the impugned notification was assailed on the ground that it exceeded the Legislative competence of the State.
No such question arises here.
The scheme or remission in the present case is that if the liquor contractor purchased liquor of the value, the excise duty whereof equalled the price of the exclusive privilege, the; liquor con tractor is to be given credit therefor.
The agreements give the liquor contractors an exclusive privilege to sell country liquor in a specified area for the period fixed for a stipulated sum of money for enjoying the privilege.
If the contractors do not sell any liquor they arc yet bound to pay the stipulated sum.
IF they sell liquor they are given the benefit of remission in the price of the exclusive privilege.
The measure for this remission is the excise duty leviable to the extent that the liquor contractors can neutralise the entire amount of exclusive privilege in the excise duty payable by them.
If the contractors fail to lift adequate quantity of liquor and thereby fail in neutralising the entire price of exclusive privilege the contractors are not called upon to pay excise duty.
For these reasons the contentions of the appellants fail.
The ap peals arc dismissed save what follows hereinafter in Civil Appeal No. 230 1433 of 1974 and Civil Appal No. 1871 of 1974.
Parties to pay and bear their own costs as they did in the High Court.
In Civil Appeal No. 1433 of 1974 there is a short supply of liquor in respect of the year 1963 64.
In Civil Appeal No. 1871 of 1974 there is a short supply of liquor in respect of the year 1967 68.
In these appeals for these two years, the order will be the same as order dated 29 August, 1974 in Civil Appeals No. l 170, 1171 and 117 of 1974, with the modification that if there has been any interim stay in these matters, the interim stay will stand vacated.
V.M.K. Appeals dismissed. | The licenses for sale of country liquor were granted under the Rajasthan Excise Act, 1950.
For the years 1962 63 and 1963 64 licenses for sale of country liquor were given to contractors under a guaranteed system.
There was a total Guarantee amount.
Where the contractors failed to fulfil the guaranteed amount and there was a short fall, demand notices were issued for the total short fall.
There was no levy of excise duty prior to 6 March, 1964.
For the years 1967 68, 1968 69 and 1969 70 the liquor contractors obtained licences for sale of country liquor at a specified amount of licence fee under the exclusive privilege system.
Where the contractors failed to pay the guaranteed amount there was a demand for a shortfall.
The appellants who were the liquor contractors challenged the demand for short fall of the guaranteed amount by way of writ petitions in the High Court.
Their contention was that what was being demanded as short fall amounted to levy of excise duty. 'the State on the other hand, contended that what was being realised from the liquor contractors was the guaranteed amount in the licence for the exclusive privilege of selling country liquor.
The State further contended that what was being demanded for the year 1967 68 and thereafter as short fall was the stipulate guaranteed amount which was excise revenue.
The High Court accepted the contentions of the State and dismissed the writ petitions.
These appeals have been preferred on the basis of the certificate granted by the High Court.
It was contended for the appellants: (i) The issue prices in the licence are exclusive of prices of container but inclusive of excise duty levied under the.
Government notification and therefore, enforcement of the guaranteed amount meant realisation of excise duty.
(ii) A promise to give income to the Government by purchasing a. minimum quantity of liquor from the Government were house was not equivalent to the Payment of sum of money in consideration of grant of such privilege within the meaning of section 30 of the Act; (iii) 'The amounts of money sought to be recovered from the licensee under the exclusive privilege system introduced from the year 1968 as well as under the guarantee system.
prevalent prior to the year 1968 are nothing but demands for excise duty on uplifted liquor; (iv) 'the word 'issue price ' occurring in the conditions attached to the licences granted upto the year.
1967 68 was a composite name for 'cost price of liquor ' and 'excise duty leviable thereon ' and therefore an agreement by the licensees under the guarantee system to pay 'issue price ' was tantamount to an agreement to pay 'cost price ' and 'excise duty ' as distinct items though described as issue price; (v) 'the licences under both system of Guarantee and Exclusive Privilege contain a term about the payment and adjustment of excise duty and under both systems 'excise duty ' ii a distinct item agreed to be paid as such in terms of the licences.
Rejecting the contentions and dismissing the appeals (except C.A. No. 1433.
of 1974 and C.A. No. 1871 of 1974).
^ HELD: (1) Provisions of section 24, 28, 29 and 30 of the Act and rules 67 A, 67 I, 67 S, 67 K and 67 L of Rajasthan Excise Rules, 1956, clearly established that the licence fee stipulated to be paid by the appellants is the price or consideration or rental which the Government charges from the licensees for parting with its privilege in stipulated lump sum payment and is a normal incident of trading or business transaction.
[225A B] 220 Nashirwar and Ors.
vs State of Madhya Pradesh and ors.
[1975] Vol.
I S.C.C. 29, Hari Shanker V. Deputy Excise and Taxation Commissioner decided on 21 January, ]975 in Civil Appeal No. 365 of 1969, Madhavan V. Assistant Excise Commissioner.
Palghat and ors.s.
Kerala 71, Central Province Barer sale of Motor Spirit and Lubricants Taxatation Act 1938.
case reported in 11939] F.C.R. 18, M/s. Guruswaamy & Co. etc.
vs State of Mysore & ors,. , State of Orissa and ors.
vs Harinarayan Jaswal and ors.
[1972]3 S.C.R. 784 and Coverjee B. Bharuchua vs The Excise Commissioner and the Chief Commissioner, Ajmer.
and ors.
; , referred to.
(2) The licences in the present case are contracts between the parties.
The licensees voluntary accepted the contracts.
They fully exploited to their advantage the contracts to the exclusion of others.
The High Court rightly said that it was not open to the appellants to resile from the contracts on the ground that the terms of payment were onerous.
[225D] (3) There is no levy.
Of excise duty in enforcing the payment of the guaranteed sum or the stipulated sum mentioned in the licenses.
Because, (1) The licences were granted to the appellants after offer and acceptance or by accepting their lenders or auction bid.
The appellants stipulated to pay lump sum amount.
as the price for the exclusive privilege of vending country liquor.
they agreed to pay that they considered to be equivalent of the right; (ii) The liability for excise is on the distillery and the liquor contractors are not concerned with it.
Before: 1965; there was no excise duty.
After the imposition of excise duly: the position is not altered because the privilege of selling is granted 'by auction or by.
Offer and acceptance before the goods came into existence.
and (iii) 'The stipulation, amounts payable by the appellants have relation only to what they foresaw they could recoup by the sale of country liquor from the liquor shops licensed to them.
There are several varieties of country liquor and rates of excise levy on these varieties are different.
The appellants are not bound to take any particular quantity or any particular quality of any variety.
Without reference to any quantity or quality, it is impossible to predicate the alleged levy of excise duty.
[226G 227 E] (4) The lump sum amount stipulated under the agreement is not to 'be equated with issue price.
The issue price is payable only when the contractors take delivery of a particular quantity of specified value of country liquor.
the issue price relates only to liquor drawn by the contractors and does not pertain to undrawn liquor.
No excise duty is or can be collected on undrawn liquor.
The issue price is the price at which country liquor is sold to the liquor contractors.
So far as the liquor contractors are concerned, they pay the price of the liquor even though the price may include the component of excise duty in respect of which they have no direct liability.
[228B D] (5) In the present case, the State Government has not imposed any excise duty On the licensee.
On the contrary, the license only takes into account the excise duty component of the issue price for the purpose of giving a concession or remission to the contractors.
The scheme of remission is that is the liquor contractor purchased liquor of the value, the excise duty whereof equalled the price of the exclusive privilege, the liquor contractor is to be given credit therefore.
The question.
Of adjustment arises only when liquor is drawn, otherwise the formula of remission does not come into the picture at all.
In essence what is sought to be recovered from the liquor contractor is the shortfall occasioned on account of failure on the part of liquor contractor to fulfill the terms of license.
[228G;229BC, F H] Bimal Chandra Banerjee vs State of Madhya Pradesh ; , referred to. |
ivil Appeals Nos.
1266 & 1267 of 1969.
From the Judgment and order dated the 29th July, 1968 of the Patna High Court in Civil Writ Jurisdiction Case No. 61 of 1967 H. K. Puri and K. K. Mohan, for the appellant 264 D. Goburdhan, for respondent Nos. 1 and 2 (In both the appear) Respondent No. 21 (In C.A. No. 1266/69) and for respondent No. 60 (in C.A. No. 1267/69).
A. K. Nag, for respondent Nos. 3 19 (In C.A. No. 1266/69) and for respondent Nos, 4, S, 7 9, 11 32, 35 42, 44 52, 54 58 (In C.A. No. 1267/69).
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
By two notifications dated 22 6 65 and 28 8 65 the Government of Bihar sent to the Labour Court, Chota Nagpur Division, Ranchi, applications in respect of 73 workers of the appellant for decision under section 33C(2) of the Industrial disputes Act for retrenchment compensation.
The employer contended that it was a case of closure for reasons beyond its control and that therefore the workmen were entitled to compensation under the proviso to subsection (1) of section 25FFF of the Act and not to retrenchment compensation workers contended, however, that they were entitled to retrenchment compensation under s.25F.
The Labour Court held that it was a case of retrenchment.
Two writ petitions filed by the employer before the High Court of Patna failed and these appeals have been filed in pursuance of a certificate of fitness granted by the High Court.
The argument on behalf of the appellant is that where there is a dispute before the Labour Court considering an application under section 33C(2) as to whether the workmen had been retrenched or the factory had been closed for reasons beyond the control of the employer, it was not a matter which the Labour Court was competent to decide and that it was a matter which only an Industrial Tribunal considering a reference under section 10 is competent to decide.
In particular Item 10 of the Third Schedule to the Act is relied upon to show that the matter relating to retrenchment and closure is one which only an Industrial Tribunal is competent to decide.
Reliance is placed upon a decision of this Court in U.P. Elect.
Co. vs R. K. Shukla(1) where it was held that the power of the Labour Court is to complete the compensation claimed to be payable to the workmen on the footing that there has been retrenchment of the workmen, that where retrenchment is conceded and the only matter in dispute is that by virtue of section 25FFF no liability to pay compensation has arisen the Labour Court will be competent to decide the question, that in such a case the question is one of computation and not of determination, of the conditions precedent to the accrual of liability, and that where the dispute is whether workmen have been retrenched and computation of the amount is subsidiary or incidental, the Labour Curt will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested.
In the U.P. Electric Company case (supra) the facts were somewhat different.
The Court in that case noticed at page 513 of the report that "The company had expressly raised a contention that they had not retrenched the workmen and that the workmen had 265 voluntarily abandoned the Company 's service by seeking employment with the Board even before the company closed its undertaking".
This Court emphasised at page 5l7 of the report that If the liability arises from an award, settlement or under the provisions of Ch.
V A or by virtue of a statute or a scheme made thereunder, mere denial by the employer may not be sufficient to negative the claim under section 33C(2) before the Labour Court".
We, therefore, do not see how the decision in the U.P. Electric Company 's case (supra) can come to the aid of the appellant in this case.
The said case is clearly distinguishable on the peculiar facts as noticed above.
In Central Bank of India Ltd vs P. section Rajagopalan(1) this Court considered the scope of section 33C(2) elaborately and it would be necessary to quote at some length from that decision.
In that case it was urged by the employer that section 33C(2) can be invoked by a workman who is entitled to receive from the employer the benefit there specified, but the right of the workman to receive the benefit has to be admitted and could not be a matter of dispute between the parties and that the only point which the labour Court can determine is one in relation to computation of the benefit ill terms of money.
This Court observed: "We are not impressed by this argument.
In our opinion on a fair and reasonable construction of sub section
(2) it is clear that if a workman 's right to receive the benefit is disputed, that may have to be determined by the Labour Court.
Before proceeding to compute the benefit in terms of money the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit.
If the said right is not disputed, nothing more needs to be done and the labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed the Labour Court must deal with that question and decide whether workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making necessary computation can arise.
It seems to us that the opening clause of sub section
(2) docs not admit of the construction for which the appellant contends unless we add some words in that clause.
The clause "Where any workman is entitled to receive from the employer any benefit" does not mean "where such workman is admittedly, or admitted to be.
entitled to receive such benefit.
" The appellant 's constructional would necessarily introduce the addition of the words "admittedly, or admitted to be" in that clause, and that clearly is not permissible.
Besides, if seems to us that is the appellant 's construction is accepted it would necessarily mean that 266 it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub section (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman 's application.
The claim under section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub s.(2).
As Maxwell in Interpretation of Statutes, p. 350, has observed 'where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution; we must accordingly hold that section 33C(2) takes within its purview case of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers.
Incidentally, it may be relevant to add that it would be somewhat odd that under sub s (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub section
On the other hand, sub s.(3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour of Court under sub section
Further on this Court observed: "It is thus clear that claims made under s.33C(1), by itself can be only claims referable to the settlement, award, or the relevant provisions of Chapter VA.
These words of limitations are not to be found in s.33C(2) and to that extent, the scope of section 33C(2) is undoubtedly wider than that of section 33C(1).
It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under section 33C(2).
There is no doubt that the three categories of claims mentioned in section 33C (1) fall under section 33C(2) and in that sense, section 33C(2) can itself be deemed to be a kind of execution proceeding, but it is possible that claims not based on settlements, awards or made under the provisions of Chapter VA, may also be competent under section 33C(2) and that may illustrate its wider scope." This Court then went on to discuss some of the claims which would not fall under s.33C(2), which is not very relevant for the purposes of this case.
The present case stand on an even stronger footing.
Even the employer does not dispute that the workmen are entitled to compensation.
It only says that the compensation should be calculated on a particular basis different from the basis on which the workmen claim.
The claim also falls under Chapter VA. 267 In the decision in South Arcot, Elect.
Co. vs N. K. Khan(1) where a right had been claimed by the various workmen in their applications under section 33C(2), it was held that it was a right which accured to them under s.25FF of the Act and was an existing right at the time when these applications were made, that the Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision, and that the mere denial of that by the company could not take away its jurisdiction.
We hold that in this case it was competent to the Labour Court to decide whether the case before it was a case of retrenchment compensation or the proviso to sub section
(1) of section 25FFF was attracted on closure of the establishment.
The question even according to the employer falls under section 25FFF and therefore in deciding that question the Labour Court has necessarily to decide whether the proviso has been satisfied.
We do not consider that the reference to item No. 10 of the Third Schedule to the Act can decide the matter one way or the other.
The item reads as follows: "10.
Retrenchment of workmen and closure of establishment It does not say that all questions arising out of retrenchment of workmen and closure of establishments have to be decided by Industrial Tribunal.
Logically if the contentions is to be accepted, even if the question of retrenchment is not disputed the Labour Court will not be competent to decide the question of compensation payable in a case of retrenchment because it raises a question of jurisdiction.
This entry should therefore be held to refer to cases where the right to retrench workers or to close an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal.
In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenched workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on the basis that the so called closure was to closure at all.
In the present case the workmen do not ask for reinstatement.
They accept the termination of their services and ask for compensation.
The only dispute is about the compensation whether it is to be paid under s.25F or 25FFF.
Item 10 of Third Schedule will not cover such a case.
We therefore uphold the decision of the High Court and dismiss these appeals with costs.
V.M.K. Appeals dismissed. | The Government of Bihar sent to the Labour Court, Chota Nagpur Division, Ranchi, application in respect of 73 workers of the appellant for decision under sec.
33C(2) of the for retrenchment compensation.
The contention of the appellant was that it was a case of closer for reasons beyond its control and that, therefore, the workmen were entitled to compensation under the proviso to sub section (1) of sec.
25FFF of the Act and not to retrenchment compensation.
The workers contended that they were entitled to retrenchment compensation under sec.
25F. The Labour Court held that it was a case of retrenchment.
The writ petitions filed by the employer in the High Court has failed and these appeals have been preferred to this Court on the basis of the certificate of fitness granted by the High Court.
Dismissing the appeals, ^ HELD : (i) It was competent to the Labour Court to decade whether the case before it was a case of retrenchment compensation or the proviso to sub sec.
(1) of section 25FFF was attracted on closure of the establishment.
Even the employer does not dispute that the workmen are entitled to compensation.
It only says that the compensation should be calculated on a particular basis different from the basis on which the workmen claim.
The claim also falls under Chapter VA of the Act.
[266H; 267B C] Central Bank of India Ltd. vs P. section Rajagopalan ; relied on.
U.P. Electric Company vs R. K. Shukla [1970] 1 S.C.R. 507 and South Arcot Elect.
Co. vs N. K. Khan [1969] 2 S.C.R. 902, referred to.
(ii) Item No. 10 of the Third Schedule to the Act does not say that all questions arising out of retrenchment of workmen and closure of establishment have to be decided by Industrial Tribunal.
This entry refers to cases where the right to retrench workers or to lose an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal.
In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenchment workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on basis that the so called closure was no closure at all.
In the present case the workmen do not ask for reinstatement.
They accept the termination of the services and ask for compensation.
The only dispute is about the compensation whether it is to be paid under section 25F or 25FFF.
Item 10 of Third schedule will not cover such a case.
[267D G] |
Civil Appeal No. 1327 of 1973.
From the judgment and order dated the 21st July 1973 of the Madhya Pradesh High Court in Election Petition No. 36 of 1972.
N. M. Ghatate and section Balakrishnan, for the appellant.
247 section section Khianduja, for respondent No. 1.
The Judgment of the Court was delivered by KHANNA, J.
This appeal is directed against the judgment of Madhya Pradesh High Court whereby that court dismissed the section petition filed by the petitioner appellant to challenge the election of respondent No. 1 to Madhya Pradesh Legislative Assembly from Pandhurna constituency in Chhindwara district.
The election for Pandhurna constituency took place on March 8, 1972.
There were six candidates who contested the election.
The main contest was, however, between Madahavlal Dube respondent No. 1 and Dr. Ratanchand Mangalchand Sanghvi respondent No. 2.
Respondent No. 1 was declared elected.
The appellant, who was an elector in the above mentioned constituency, filed election petition to challenge the election of respondent No. 1 on various grounds.
It is not necessary to set out all the grounds because in the appeal before u, only one ground which is the subject matter of issue No. 10 has been pressed on behalf of the appellant.
The allegation which gave rise to issue No. 10 was contained in para 13 of the election petition.
The petition was, however, ordered to be amended because it did not contain full particulars.
The allegation with particulars was thereafter contained in para 13 of the amended petition.
According to the appellant, respondent No. 1 or his agent or any other person With his consent had got published and widely circulated a leaflet with the caption "Sawal Janta Ke" purporting to be on behalf of Pandhurna Matdar Sangh.
The aforesaid leaflet, according to the appellant seemed to have been drafted by respondent No. 1 and was full of defamatory and false averments calculated to prejudice the election prospects of respondent No. 2.
The leaflet was stated to have been very widely circulated and distributed throughout the consistency.
Every sentence of the leaflet, it was added, contained statement of fact about the personal character or conduct of respondent No. 2 which was false to the knowledge of respondent No. 1.
Respondent No. I and his friends were stated to have got the leaflet published under the psudonym of Pandhurna Matdar Sangh although there was no such Sangh in existence.
The name of the press and publisher ' s name was also not mentioned in the leaflet.
The appellant also mentioned the places where and the names of persons through whom the leaflets were alleged to have been distributed.
According to the leaflet which has been marked exhibit P4, respondent No. 2 was not a man of good character.
The said respondent was alleged to have committed rape upon a nurse while he was a government doctor.
He was also stated to be carrying on with another woman.
The activities of respondent No. 2 were stated to have driven his wife to insanity.
Reference was also made to some other shady and unethical activities in which respondent No. 2 was stated to he indulging Respondent No. 1 in his written statement denied that he, his agents or any other person with his consent had got published and circulated the leaflet in question.
It was also denied by respondent 248 No. 1 that he had drafted the aforesaid leaflet.
According to respondent No. 1, he had no connection with that leaflet and he was unable to make any statement about the truth or falsity of its contents.
It was denied that the said leaflet was widely circulated and distributed throughout the constituency.
The allegation that the leaflet was calculated to prejudice the election prospects of respondent No. 2 too was denied.
Likewise, respondent No. 1 denied that the different sentences of the leaflet contained statement of fact about the personal character or conduct of respondent No. 2 which was false to the knowledge of respondent No. 1.
According further to the respondent, he came to know of the said leaflet only some weeks after the election was over.
The said leaflet, it was added, appeared to have been got printed by someone interested in respondent No. 2 to create a ground for filing an election petition.
Issue No. 10 reads as under: "10(a) Whether the leaflet with the caption 'Sawal Janta Ke ' was published by respondent No. 1, his agents or any other person with his consent? (b) Whether the respondent No. 1 has any connection with the aforesaid leaflet? (c) Whether the material contained in the leaflet relates to personal character of respondent No. 2? (d) Whether the leaflet was widely circulated and distributed throughout the constituency and it was calculated to prejudice the election prospects of respondent No. 27 (e) Whether the leaflet was distributed at the places and by the persons named in paragraph 13 of the election petition? (f) Whether all persons named in the paragraph 13 except Shrimati Kamla Bai Mohogaonkar of Mohogaon were active supporters of respondent No. 2 ? Whether any corrupt practice under section 123(4) of the R.P. Act was committed in respect of the above '! Whether the allegations made in paragraph 13 make out a ground for challenging the election of respondent No. 1 under section 100(1) of the R.P. Act, 1951?" The High Court decided issues 10(a) and (b) against the appellant on the ground that no evidence had been led by him in this behalf.
On issue 10(c)? it was held, that though the material contained in leaflet P4 related to the personal character and conduct of respondent No. 2, the appellant had failed to prove that its contents were false to the knowledge of respondent No. 1 or that he did not believe them to be true.
No corrupt practice as defined in section 249 123(4) of the Representation of the People Act was held to have been proved issues 1(1) and (e) were held to be of no consequence in view of the fact that it was not proved that respondent No. 1 was guilty of corrupt practice.
In the result the election petition was dismissed.
In appeal before us Mr. Ghatate on behalf of the appellant has argued that the appellant wanted to file a photostat copy of the manuscript of leaflet P4 which, according to the appellant, had been written by respondent No. 1.
The High Court, it is pointed out, did not admit the aforesaid photostat copy in evidence on the ground that there was no sufficient reason for allowing the appellant to lead secondary evidence.
It is that order of the High Court which has been the main target of the criticism of Mr. Ghatate.
After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference.
According to clause (a) of section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it.
Clauses (b) to (g) of section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses.
In order to bring his case within the purview of clause (a) of section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy.
Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert.
The appellant also filed affidavit in support of his applications.
It was, however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No. 1.
There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1.
The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken.
Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such a document.
The photostat copy appeared to the High Court to be not above suspicion.
In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy.
We find no infirmity in the above order of the High Court as might justify interference by this Court.
250 The matter may also be looked at from another angle.
There is no evidence on record to show that the contents of leaflet exhibit P4 were false.
Respondent No. 2 in relation to whose personal character and conduct statements were made in leaflet P4 was not examined as a witness.
No other evidence was also led of any person who knew about the character or conduct of respondent No. 2 to show that the statements contained in leaflet in question were false.
The High Court consequently arrived at the conclusion that on the material on record it could not be held that the contents of the said leaflet were false and that respondent No. 1 believed them to be false or did not believe them to be true.
As such, no corrupt practice as defined in section 123 (4) of the Representation of the People Act.
1951 was held to have been proved.
A corrupt practice, according to section 123(4), consists of the publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be also or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate`s election.
Apart from the other requirements, it is of the essence of the matter that the impugned statement of fact in relation to the personal character or conduct of a candidate which is alleged to have been published should be false.
Unless the said statement of fact is shown to be false, its publication would not constitute corrupt practice as defined in clause (4) of section 123 of the Act.
When there is complete absence of any material on the record to show that the impugned statement of fact is false, no occasion would plainly alias for remanding the case to the High Court to enable the appellant to produce in evidence the photostat copy in question with a view to show that the original of that had been written by the respondent.
There is no merit in the appeal.
The same is accordingly dismissed with costs.
P.H.P. Appeal dismissed. | The election for Pandhurna Constituency for the M.P. legislative Assembly took place in March, 1970.
There were 6 candidates who contested the election.
The main contest was between respondents nos.
1 and 2.
Respondent No. 1 was declared elected.
The appellant, a voter, filed an Election Petition challenging the election on the grounds that respondent No. 1 published and circulated a leaflet containing defamatory and false averments against respondent No. 1 and it was calculated to prejudice the election prospects of respondent No. 2.
The leaflet it was alleged contained the statement of fact about the personal character or conduct of respondent No. 2.
In the leaflet it was mentioned that respondent No. 2 committed rape and he was carrying on with another woman.
The ties of respondent No. 2 were stated to have driven his wife into insanity.
Reference was also made to some other shady and unethical activities.
Before the High Court the appellant wanted to file a photostat copy of the manuscript of the leaflet which according to the appellant was written by respondent No. 1.
The High Court did not admit the aforesaid photostat copy in evidence on the ground that there was no sufficient reason for allowing the appellant to lead secondary evidence.
The High Court also held that though the material contained in the leaflet related to the personal character and conduct of respondent No. 2, the appellant failed to prove that its contents were false to The knowledge of respondent No. 1, and he did not believe them to be true and that, therefore, the corrupt practice defined in section 123(4) of the Representation of the People Act was not proved.
While dismissing the appeal this Court held: ^ Under section 65(a) of the Indian Evidence Act, secondary evidence may been of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or when a person refuses to produce it.
There was no affidavit that the original document was in possession of respondent No. 1.
The photostat copy appeared to the High Court to be not above suspicion.
In view of all the circumstances, the High Court rightly came to the conclusion that no foundation was laid by the appellant for leading secondary evidence in the shape of photostat copy.
There is no evidence on record to show that the contents of the leaflet were false.
The respondent No. 2 was not examined as a witness.
No other evidence was also led of any person who knew about the character or conduct of respondent No. 2 to show that the statements contained in the leaflet in question were false.
Apart from the other requirements, it is of the essence of section 123(4) of the Representation of the People Act.
1951 that the impugned statement of fact in relation to the personal character or conduct of a candidate.
which is alleged to have been published should be false [249D, F 250D] |
Appeals Nos. 45 and 46 of 1959.
Appeal by special leave from the judgment and order dated March 25, 1957, of the former Bombay High Court in Appeal No. 16 of 1957.
Q. K. Daphtary, Solicitor General of India, H. J. Umrigar and D. Gupta, for the Apellant (In C. A. No. 45 of 59) and Respondent (In C. Appeal No. 46 of 59).
H. N. Sanyal, Additional Solicitor General of India, section N. Andley and J. B. Dadachanji, for the respondents (in C. A. No. 45 of 59) and Appellants (In C. A. No. 46/59).
926 1960.
September 27.
The Judgment of the Court was delivered by DAS GUPTA J.
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. 68,493 2 6 and sales of castor oil 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 the goods till the goods had crossed the customs barrier and thus entered the export stream, and so no tax was realisable on these sales in view of the provisions of article 286 (1)(b).
The Sales Tax Officer rejected this claim for exemption and assessed them to sales tax on a taxable turnover including these sales.
He also assessed them to purchase tax under section 10(b) of the Bombay Sales Tax Act on their purchase of castor oil which they later sold for the sum of Rs. 6,47,509 1 6 as mentioned above.
The notice of demand for the total sales tax and the purchase tax assessed was served on the sellers on September 30, 1956.
The sellers thereupon moved the Bombay High Court under article 226 of the Constitu tion for the issue of appropriate writs for quashing the order of assessment and the notice of demand and for prohibiting the Sales Tax Officer from taking any steps pursuant to the order or the notice.
The learned Judge who heard the petition rejected the sellers ' contention that the goods remained their property till these crossed the customs frontier and therefore held that the sellers were not entitled to the benefit of article 286(1)(b) of the Constitution.
As regards the assessment to purchase tax also he rejected the sellers ' contention that the assessment in question was illegal.
In this view the learned Judge dismissed the application under article 226.
Against this decision the sellers appealed.
The 927 learned Judges who heard the appeal held, disagreeing with the Trial Judge, that the goods remained the sellers ' property till the goods had been brought on board the ship and so the sales were exempted from tax under article 286(1)(b) of the Constitution.
They however agreed with the Trial Judger that the sellers were liable to pay purchase tax under section 10(b) of the Bombay Sales Tax Act.
Accordingly they directed the Sales Tax Officer not to enforce the demand for payment of sales tax with regard to the sales of cotton for Rs. 68,493 2 6 and sale of castor oil of the total value of Rs. 6,47,509 1 6.
The Sales Tax Officer has, on the strength of special leave granted by this Court, preferred the appeal which has been numbered as Civil Appeal No. 45 of 1959 against the appellate court 's order directing him not to realise the sales tax in respect of sales of cotton and castor oil.
Civil Appeal No. 46 of 1959 has been preferred by the sellers against the appellate court 's judgment in so far as it upheld the assessment of purchase tax under section 10(b).
The only "question for our decision in the appeal by the Sales Tax Officer is whether property in the goods passed on shipment or at some point of time before shipment.
The law is now well settled that if the property in the goods passes to the buyer after they have for the purpose of export to a foreign country crossed the customs frontier the sale has taken place "in course of the export" out of the territory of India.
If therefore in the present sales the property in the goods passed to the buyers on shipment, that is, after they had crossed the customs frontier the sales must be held to have taken place "in the course of export" and the exemption under article 286(1)(b) will come into operation.
The sellers ' case is that these were sales on FOB contracts.
Though the learned Solicitor General appearing on behalf of the Sales Tax Officer tried to convince us that these were not really FOB contract sales, it appears that the averment in Paras.
11 and 13 of the writ petition that these sales were made on FOB basis were not denied in the counter affidavit sworn by the Sales Tax Officer.
It is also 928 worth noticing that in the assessment order itself the Sale Tax Officer referred to these sales as sales on FOB basis.
The specimen contract produced also used the words " FOB delivered ".
There can be no doubt therefore that these were sales under FOB contracts. ' The normal rule in FOB contracts is that the property is intended to pass and does pass on the shipment of the goods.
In certain circumstances, e.g., if the seller takes the bill of , lading to his own order and parts with it to a third person the property in the goods, it has been held, does not pass to the buyer even on shipment.
We are not concerned here with the question whether the passing of property in the goods was postponed even after shipment.
The correctness of the proposition that in the absence of special agreement the property in the goods does not pass in the case of a FOB contract until the goods are actually put on board is not disputed before us.
As has however been rightly stressed by the learned Solicitor General it is always open to the parties to come to a different agreement as to when the Dropert in the goods shall pass.
The question whether there was such a different agreement has to be decided on a consideration of all the surrounding circumstances.
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.
Along with this fact we have to consider however the fact that the bill of lading was retained by the sellers, the contract being that payment will be made on the presentation of the bill of lading.
It is not disputed that the term in the contract for "payment at Bombay against presentation of documents " means this.
It was the sellers who received the bills of lading and it was on the presentation of these bills of lading along with the invoices that the buyer paid the price.
When the bills of lading though made out as if the goods were shipped by the buyer, were actually obtained and retained by the sellers, that fact itself would ordinarily indicate an intention of 929 the parties that the property in the goods would not pass till after payment.
The second circumstance to which our attention has been drawn is that the export was under the contract to be under the buyer 's export licence.
This, in our opinion, shows nothing.
The ordinary rule in FOB contracts is that it is the duty of the buyer to obtain the necessary export licence.
That was laid down in Brandt 's case (1) and though in a later case in Hardy vs Pound (2) the Court of Appeal in England held that the judgment in Brandt 's case (1) does not cover every FOB contract and that in the special facts of the particular case before them it was for the sellers to obtain the licence and this view was approved by the House of Lords , it is in our opinion correct to state that the presumption in FOB contracts is that it is the duty of the buyers to obtain export licence, though in the circumstances of a particular case this duty may fall on the sellers.
The third circumstance on which reliance is placed on behalf of the Sales Tax Officer is that the Export Control Order, 1954, which was passed in the exercise of powers conferred by Import & Export Control Act, 1947, contained a provision in its clause 5(2) in these words: " It shall be deemed to be a condition of that licence. . . that the goods for the export of which licence is granted shall be the property of the licensee at the time of the export ".
It has been strenuously contended by the learned Solicitor General that it will be reasonable to think that the parties to the contract intended to comply with this condition and to agree as between themselves that the goods shall be the property of the licensee, that is, the buyer, at the time of the export.
It is argued that the time of the export should be interpreted as the time when the customs frontier is crossed and that we must proceed on the basis that the buyer and the sellers intended that the goods shall be the buyer 's property at the point of time when they crossed this frontier.
We see however no justification for thinking that in this clause "the time of the export " means the time (1) (2) 930 when the goods cross the customs frontier.
Export has been defined in the Import & Export (Control) Act, 1947, as " taking out of India by sea, land or air ".
In the Exports (Control) Order, 1954, the word must be taken to have the same meaning as in the Act.
On that definition the time of the export is the time when the goods go out of the territorial limits of India.
These territorial limits would include the territorial waters of India.
Consequently the time of the export is when the ship with the goods goes be yond the territorial limits.
At any rate, the export of the goods cannot be considered to have commenced before the ship carrying goods leaves the port.
The intention of the parties that in compliance with the requirements of cl.
5(2) of the Exports (Control) Order the goods shall be the property of the licensee at the time of the export would therefore mean nothing more than that the property in the goods shall pass immediately before the ship goes beyond the territorial waters of the country, or at the earliest when the ship leaves the port.
Whichever view is taken there is nothing to indicate that the intention to comply with the requirements of el.
5(2) of the Exports (Control) Order carries with it an intention that the property should pass to the buyer at the time the goods cross the customs frontier.
It is true that in the United Motor '8 Case (1) and in other cases it has been held by this Court that the course of export commences to run when the goods cross the customs barrier.
What the court had to consider in these cases was not however when export commences within the meaning of the Exports (Control) Order but when the course of export commences for the purpose of article 286(1)(b) of the Constitution.
For the reasons which need not be detailed here it was decided that the course of export commences at the time when the goods cross the customs barrier.
These decisions as regards the commencement of the course of export are of no assistance in deciding about the point of time when the export proper commences.
As we have already pointed out when export has been defined in the Import & Export (1) (1953) 4 S.T.C. 133. 931 (Control) Act, 1947, as "taking out of India by land, sea, or air ", export in the Export Control Order, cannot be held to have commenced till at least the ship carrying the goods has left the port, though it may in some contexts be more correct to say that it does not commence till the ship has passed beyond the territorial waters.
We have therefore come to the conclusion that there is no circumstance which would justify a conclusion that the parties came to a special agreement that though the sales were on FOB contracts property in the goods would pass to the buyer at some point of time before shipment.
We think that the learned judges who heard the appeal in the Bombay High Court were right in their conclusion that the goods remained the sellers ' property till the goods had been brought and loaded on board the ship and so the sales were exempted from tax under article 286(1)(b) of the Constitution.
In Civil Appeal No. 46 of 1959 the appellants ' contention is that on a correct interpretation of the provisions of section 10(b) of the Bombay Sales Tax Act no purchase tax was leviable from them.
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.
(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 by him or by a person to whom he has sold the goods to an address outside the State of Bombay within a period of six months from the date of purchase by the dealer furnishing such certificate ".
Section 8(b) provides for the deduction from the turnover, of sale of goods to a dealer who holds an authorisation and furnishes to the selling dealer a certificate in the prescribed form declaring inter alia that the goods so sold to him are intended for being despatched by him or by registered dealers to whom he sells the goods to an address outside the State of Bombay.
Admittedly such a certificate was furnished by 932 M/s. Daulatram Rameshwarlal in respect of the castor oil which they sold to others and that in respect of these sales to them their sellers were allowed deductions.
It is equally undisputed that the persons to whom M/s. Daulatram Rameshwarlal sold the goods were sent to an address outside the State of Bombay within a period of six months from the date of purchase by M/s. Daulatram Rameshwarlal.
These persons are however not registered dealers.
The Sales Tax Officer as also the High Court of Bombay has held that the " person to whom he has sold the goods " in section 10(b) means " a registered dealer to whom he has sold the goods ".
It is contended before us on behalf of the appellant dealers that the word " a person " is wide enough to include a registered dealer and an unregistered dealer.
It is urged that the use of the word it a person " instead of the words " a registered dealer " is deliberate and that it was the intention of the Legislature to levy purchase tax on a person who has given such certificate under section 8(b) only if the goods were not 'despatched outside the State of Bombay within the prescribed period by anybody.
It is therefore contended that " a person " in section 8(b) should be interpreted to include a registered dealer or anybody else.
We are unable to agree.
A close examination of sections 8 and 10 justifies the conclusion that the Legislature was anxious to secure that the declaration as regards intention of the goods being despatched outside the State of Bombay should be carried out by despatch by " a registered dealer " to whom he sells the goods.
If such despatch outside the State of Bombay is by a person to whom the certifying dealer has sold the goods but who is not a registered dealer the certificate has not been complied with.
It will be in our opinion unreasonable to think that though the Legislature insisted that the certificate should declare the goods purchased were intended 11 for being despatched by him or by a registered dealer to whom he sells the goods outside the State of Bombay ", the Legislature would be content to accept actual despatch outside the State of Bombay by one who is not a registered dealer as sufficient.
Mr. Sanyal contended that the certificate 933 has to declare only an intention and that if ultimately the actual despatch is made by some person who is not a registered dealer, it cannot strictly be said that the declaration has not been carried out.
It might very well be that if at the time a declaration of intention is made in the certificate the purchasing dealer had the intention as stated and ultimately he sells to a person who is not a registered dealer for despatch of the goods outside the State of Bombay, the purchasing dealer may not be liable for having made a false declaration ".
Even though he has not made a false declaration of his intention, the fact remains that the intention declared has not been carried out.
The scheme of the Legislature clearly is that where the intention as declared has not been carried out purchase tax should be levied.
To hold otherwise would be to make the declaration of the intention useless.
Our conclusion therefore is that the courts below have rightly interpreted the words " a person " in section 10(b) of the Bombay Sales Tax Act as a " registered dealer " and that the purchasing dealers have rightly been assessed to purchase tax under section 10(b).
In the result, both the appeals are dismissed with costs.
Appeals dismissed. | The respondents firm claimed exemption from Sales Tax under article 286(i)(b) of the Constitution in respect of sales 925 made by them of cotton and castor oil on the ground that the sales were on F.O.B. contracts under which they continued to be the owners of the goods till those crossed the custom barrier and entered the export stream.
They also contested the purchase tax to which they were assessed under section 10(b) of the Bombay Sales Tax Act.
The High Court upheld the contention of the respondents regarding the Sales Tax but held that they were liable to pay purchase tax.
On appeal by both the parties Held, that the goods remained the seller 's property till those had been brought and loaded on board the ship and so the sales were exempted from tax under article 286(i) of the Constitution.
The word " a person " in section 10(b) of the Bombay Sales Tax Act had been correctly interpreted as " a registered dealer " and the purchasing dealers had been rightly assessed to purchase tax.
The normal rule in F. 0.
B. contracts was that the property was intended to pass and did pass on the shipment of the goods.
The presumption in F. 0.
B. contracts was that it was the duty of the buyer to obtain the necessary export licence, though in the circumstances of a particular case that duty might fall on the seller.
H.O. Brandt & Co. vs H. N. Morris & Co. Ltd., [1917] 2 K.B. 784 and M. W. Hardy & Co. vs A. V. Pound & Co., Ltd., (1953) 1.Q.B. 499, considered.
"Export " under the Import and Export Control Act having been defined as " taking out of India by land, sea or air " it could not, under the Export Control Order, be held to have commenced till the ship carrying the goods left the port or in some cases passed the territorial waters.
The State of Bombay vs The United Motors (India) Ltd., (1953) 4 S.T.C. 133, held inapplicable. |
Civil Appeal No. 104 of 1975 Appeal by special leave from the judgment and order dated the 12th December, 1974 of the Allahabad High Court in Application Paper No. A 53 in Election Petition No. 30 of 1974.
Yogeshwar Prasad and Rani Arora, for the appellant K C. Agarwala and K. M. L. Srivastava, for respondent No. 1.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave involves an interpretation of the scope and ambit of section 87 of the Representation of the People Act, 1951, as amended by Act 47 of 1966.
The short point that fails for determination in this appeal is as to whether or not the provision of O. XI of the Code of Civil Procedure can be applied to the trial of election petitions in the High Court by force section 87 of the said Act.
For the purpose of brevity, the Representation of the People Act, 1951 shall be referred to as the Act of 1951 shall the Representation of the People Act as amended by Act 47 of 1966 as 'the Act '.
The circumstances under which this appeal arises may be succinctly stated as follows.
An election for the U.P. Legislative Assembly for 275 Allahabad North Assembly Constituency was held on February 6, 1974 In this election the appellant was a candidate put up by the Congress Ruling party and his election was contested by the first respondent Ram Adhar Yadav who was set up by the Samukta Socialist party.
The appellant was declared duly elected in the said election and the respondent No. 1 was defeated.
The respondent No. 1 filed an election petition being Election Petition No. 30 of 1974 in the High Court of Allahabad some time in April 1974 challenging the election of the appellant on various grounds.
The appellant filed a detailed written statement denying all the allegations made by the first respondent in his petition.
The election petition was assigned to J. M. L,.
Sinha, J. who framed a number of issues on October 4, 1974.
In October 1974 respondent No. 1 filed all application being Paper No. A/53 under O. XI, r. 1 of the Code of Civil Procedure for grant of leave to respondent No. 1 to deliver interrogatories in writing for the examination of the appellant and filed certain interrogatories along with his application.
The appellant filed her objections being Paper No. A/54 to the said application contending, inter alia, that the procedure prescribed under O.XI relating to interrogatories was not applicable to the trial of election petitions in the High Court and was not covered by section 87 of the Act.
The application filed by the first respondent and the objections of the appellant came up for consideration before the learned Single Judge who by his order dated December 12, 1974, held that the provisions of O.XI fully applied to the election petitions and accordingly rejected the objections filed by the appellant.
Hence this appeal by special leave.
257 It appeals that under the Act of 1951 the power to try election petitions was conferred on the Tribunal and section 92 of that Act expressly conferred powers under O.XI of the Code of Civil Procedure on the Tribunal.
The relevant portions of section 92 of the Act of 1951 may be extracted thus: The Tribunal shall have the powers which are vested in a court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters: (a) discovery and inspection; x x x x (g) issuing commissions for the examination or witnesses, and may summon and examine suo motu any person whose evidence appears to it to be material; and shall be deemed to be a civil court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).
" By the Amendment Act 47 of 1966 this section was, however, deleted and section 90 of the Act of 1951 was replaced by section 87 of the Act which was the same as section 90 of the Act of 1951.
Mr. Yogeshwar Prasad counsel appearing for the appellant has submitted two points before us.
In the first place he contended that the provisions regarding inspection and discovery and interrogatories as contained in O.XI of the Code of Civil Procedure are not an integral part of the procedure in a civil suit but are special powers contained in the Code and cannot, therefore, be made applicable to election petitions which are proceedings of a special nature.
In simplification of this argument it was argued that the history of the English Law as also the Election Law of our country before independence would show that the procedure contained in O.XI of the Code of Civil Procedure was not made applicable to the trial of election petitions.
It is, however, not necessary for us to examine the history of this matter because the Act of 1951 settles the issue.
When the Parliament expressly conferred powers contained in O.XI on the Tribunal under the statutory provision of section 92 of the Act of 1951, it must he presumed to have made a drastic departure from the old law on the subject and particularly the English Law.
In view of this enactment, therefore, it cannot be said that the provisions of our Election Law, particularly in regard to section 92 of the Act of 1951 were in pari materia with the provisions of the English Law on the subject.
In fact section 92 incorporating the entire provisions of O.XI of the Code of Civil Procedure was expressly enacted so that the elected representatives also may be subjected to the same law of the land such as the Code of Civil Procedure as any other citizen.
In these circumstances, we are unable to apply the English Law to the Act in order to hold that the principles contained in O. XI of the Code of Civil Procedure are excluded from the trial of election petitions.
The first contention put forward by counsel for the appellant must, therefore, fail.
258 It was then contended that even though express powers for inspection and discovery were conferred on the Tribunal under section 92 of the Act of 1951, yet by virtue of the amendment under Act 47 of 1956 this express provision was deliberately deleted, which shows that the Parliament intended to give special protection to the elected representatives so as not to compel them to answer interrogatories.
This is no doubt an attractive argument, but on closer scrutiny it does not appear to be tenable.
The argument completely overlooks the object of the Amendment Act 47 of 1966.
By virtue of this enactment a basic change in the trial of election petitions was sought to be introduced.
Before 1966 the power to try election petitions was conferred on the Tribunal which was not a civil court and, therefore, special powers had to be conferred on it.
fact clause (g) of section 92 of the Act of 1951 extracted above clearly shows that the Tribunal was deemed to be a civil court hence there was the necessity of conferring special powers contained in O.XI of the Code of Civil Procedure on the Tribunal to avoid further doubts.
After the amendment of 1966 as the election petitions were to be tried by the High Court, section 87 of the Act which is based on section 90 of the Act of 1951 was considered sufficient to contain the entire procedure to be adopted by the High Court in trying the election petitions which were to be in accordance with the Code of Civil Procedure as far as applicable.
Since the High Court is a court of record and a civil court is not, it was not at all necessary for the Parliament to have enacted a separate section like section 92 of the Act of 1951 and that is why section 92 was considered to be unnecessary in view of the change of forum and was deleted under the amended Act.
From this it cannot be contended that the Parliament intended that the provisions of O. XI of the Code of Civil Procedure 1 should not apply to the election petitions tried by the High Court under the Act.
Counsel for the appellant was unable to cite any authority directly in point.
On the other hand, the view which we have taken in this case, is amply supported by number of authorities of this Court as well as other High Courts.
To begin with, this Court as far back as 1951, while considering sections 90 and 92 of the Act of 1951 observed in Harish Chandra Bajpai vs Triloki Singh(1) thus: "The second contention urged on behalf of the appellants is that if the provisions of the Civil Procedure Code are held to be applicable in their entirely to the trial of election petitions, then there was no need to provide under section 92 that the Tribunal was to have the powers of courts under the Code of Civil Procedure in respect of the matters mentioned therein, as those powers would pass to it under section 90(2).
But this argument overlooks that the scope of section 90(2) is in a material particular different from that of section 92.
While under section 90(2) the provisions of the Civil Procedure Code are applicable only subject to the provisions of the Act and the rules made thereunder, there is no such limitation as regards the powers conferred by section 92.
It was obviously the intention of the legislature to put the powers of the Tribunal in respect of 259 the matters mentioned in section 92 as distinguished from the other provisions of the Code on a higher pedestal, and as observed in Sitaram vs Yograjsingh (A.I.R. , they are the irreducible minimum which the Tribunal is to possess.
(3) It is then argued that section 92 confers powers on the Tribunal in respect of certain matters, while section 90(2) applies the Civil Procedure Code in respect of matters relating to procedure, that there is a distinction between power and procedure, and that the granting of amendment being a power and not a matter of procedure, it can be claimed only under section 92 and not under section 90(2).
We do not see any antithesis between 'procedure ' in section 90(2) and 'powers ' under section 92.
When the respondent applied to the Tribunal for amendment, he took a procedural step, and that, he was clearly entitled to do under section 90(2).
The question of power arises only with reference to the order to be passed on the petition by the Tribunal.
Is it to be held that the presentation of a petition is competent, but the passing of any order thereon is not ? We are of opinion that there is no substance in this contention either.
" The Court pointed out that the object of section 92 was merely to secure powers of the Court in respect of the matters mentioned therein and that there was no antithesis between sections 90(2) and section 92 of the Act of 1951.
Similarly in Sitaram Hirachand Birla vs Yograjsingh Shankarsingh Parihar and others,(1) Chagla, C.J., clearly pointed out that the distinction between the power and procedure was completely artificial and a distinction without any difference.
The learned Chief Justice speaking for the Court observed as follows: "In our opinion, Mr. Kotwal is right, because on principle it is difficult to make a distinction between procedure and the powers of a Court as suggested by Mr. Patwardhan.
The whole of the Civil Procedure Code, as its very name implies, deals with procedure.
In the course of procedure the Court always exercises powers and when the Court is exercising its powers, it is exercising them in order to carry out the procedure laid down in the Code.
Therefore procedure and powers in this sense are really interchangeable terms and it is difficult to draw a line between procedure and powers.
The powers conferred under section 92 is not any substantive power, it is procedural power, a power Intended for the purposes of carrying out the procedure before the Tribunal.
" In a recent decision of the Full Bench of the Allahabad High Court in Duryodhan vs Sitaram and others(2) the Court held that the matters mentioned in section 92 appertain to the procedure for trial, and are also attracted by virtue of section 90(l).
The Court observed as follows: 260 "In my opinion, the matters mentioned in Section 92 appertain to the procedure for trial, and are also attracted by virtue of Section 90(1).
They were separately stated in Section 92 to make them operate inspite of any provision to the contrary in the Act or the Rules, and not with a view to curtail the amplitude of Sec.
90(1).
The provisions of O.9, Rr. 8 and 9, Civil P.C. even if they deal with powers, would be procedural powers and be attracted by virtue of Section 90( 1 ) .
" While dealing with the scope and ambit of s.90 of the Act 1951 this Court in Dr. Jagjit Singh vs Giani Kartar Singh and others(1) observed as follows .
"The true legal position in this matter is no longer in doubt.
Section 92 of the Act which defines the powers of the Tribunal, in terms, confers on it, by Cl.
(a), the powers which are vested in a Court under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection.
" A Full in Bench of the Punjab High Court in Jugal Kishore vs Dr. Baldev Prakash,(2) while construing the provisions of section 87 of the Act clearly pointed out that the High Court was a Court of record and possessed all inherent powers of a Court while trying election petitions.
In this connection, Grover, J., observed as follows: "It is quite clear that there is no distinct provision in the Act laying down any particular or special procedure which is to be followed when the petitioner chooses to commit default either in appearance or in production of evidence or generally in prosecuting the petition.
The provisions of the Code of Civil Procedure would, therefore, be applicable under Section 87 of the Act.
I am further of the opinion that any argument which could be pressed and adopted for saying that the inherent powers of the Court could not be exercised in such circumstances would be of no avail now as the High Court is a Court of record and possesses all inherent powers of a Court while trying election petitions.
" We fuly approve of the line of reasoning adopted by the High Court in that case.
The Rajasthan High Court in Keshari Lal Kavi and another vs Narain Prakash and others(3) followed the Punjab case and has taken the same view.
Some reliance was placed by the learned counsel for the appellant on the decision in Inamati Mallappa Basappa vs Desai Basavarai Ayyappa and others,(4) where this Court held that the procedure contained in O. 23, r. 1 of the Code of Civil Procedure did not apply to election petitions and, therefore, on a parity of reasoning O. C.P.C. also could not be applicable to the trial of election petitions.
261 We are, however, unable to agree with this argument.
The provision contained in O. 23 r. 1 cannot be equated with the provisions of o. XI because the election petition being a matter of moment and concerning the entire costituency there could be no question of the election petition being withdrawn by the petitioner who had filed the same.
This was highlighted by this Court in that case when the Court observed as follows: "Order 23, r.1, sub rule (2), provides for liberty being given by the Court to a party withdrawing or abandoning a part of his claim to file a fresh suit on the same cause of action, if so advised.
in the very nature of things such liberty could not be reserved to a petitioner in an election petition.
x x x x x x On a due consideration of all these provisions, we are opinion that the provisions of o. 23, r. 1, do not apply to the election petitions and it would not be open to a petitioner to withdraw or abandon a part of his claim once an election petition was presented to the Election Commission.
" Having regard to the nature of the election Petition, the notion of abandonment of the claim or withdrawal is absolutely foreign to the scope of such proceedings and must, therefore, be held to be excluded by necessary intendment of section 87 of the Act itself.
This authority therefor, does not appear to be of any assistance to counsel for the appellant.
The matter, however, seams to be concluded by a recent decision of this Court in Virendra Kumar Saklecha vs Jagjivan and others(1) where the Chief Justice speaking for the Court interpreted section 87 of the Act and observed as follows: "Under Section 87 of the Act every election petition should be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits.
Under Section 102 of the Code the High Court may make rules regulating their own procedure and the procedure of the Civil Courts subject to their super vision and may by such rules vary, alter or add to any of the rules in the First Schedule to the Code.
" The relevant part of section 87 runs thus : "(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits :" A bare perusal of this section leads to the irresistible conclusion that election petitions shall have to be tried in accordance with the proce 262 dure applicable under the code of Civil Procedure to the trial of suits.
In other words, election petitions would be tried like ordinary civil suits.
We are unable to agree with counsel for the appellant that O. XI does not form part of the trial of suits but is a special procedure.
This is repelled by a oreference to O. XI of the Code of Civil Procedure itself.
It will appear that O. X relates to the procedure for examination of parties by the Court and O. XI is a part of that procedure, because it provides that where witnesses are not able to appear before the Court personally they are examined through interrogatories.
In these circumstances, therefore, O. XI is as much a part of the procedure as O. X relating to trial of suits in matters regarding summoning of witnesses, documents etc.
In these circumstances it cannot be said that section 87 of the Act either expressly or impliedly excludes the application of O. XI of the Code of Civil Procedure.
In fact we are clearly of opinion that section 87 of the Act is of the widest amplitude so as to cover the entire procedure mentioned in the Code of Civil Procedure with only two exceptions (i) where the Act contains express provision for certain matters which are inconsistent with the procedure prescribed by the Code; and (ii) where a particular provision of the Code of Civil Procedure is either expressly or any necessary intendment excluded by the Act.
Subject to these two exceptions, section 87 is very wide in its connotation We, therefore, agree with the learned Single Judge who was trying the election petition that the application for interrogatories was one of the logical steps in aid of the prosecution of the petition and was fully covered by section 87 of the Act.
The second contention raised by counsel for the appellant thus fails.
For the reasons given above, there is no merit in this appeal which fails and is accordingly dismissed with costs.
V.P.S. Appeal Dismissed. | An application for delivery of interrogatories is one of the logical steps in aid of the prosecution of an election petition and is fully covered by section 87 of the Representation of the People Act, 1951.
C(1) (1) Order XI, C.P.C., forms part of the trial of suits and is not a special procedure.
Order X relates to the procedure for examination of parties by the Court and o. XI, is a part of it, because, it provides for examination through interrogatories, when personal appearance is not possible.
[262A B] (2) Before Act 47 of 1966 amended the Representation of the People Act, 1951, the power to try election petitions was conferred on the Erection Tribunal.
That Tribunal was not a Civil Court but was deemed to be a Civil Court.
Though section 90, as it then stood, provided that every election petition shall be tried, as nearly as may be, in accordance with the procedure under the C.P.C., in order to avoid doubts, the special powers under O. Xl, C.P.C., were conferred on the Tribunal by section 92.
When Parliament has expressly conferred the powers contained in O.XI on the Tribunal, it could not be contended that the principles contained therein are excluded from the trial of election petitions, on the basis of English Law.
[257F H] (3) After the amendment of 1966, as election petitions are to be tried by the High Court, a Court of Record, section 87, which is based on the repealed section 90, is sufficient to contain the entire procedure to be adopted by the High Court in trying election petitions.
Section 87 is of widest amplitude so as to cover the entire procedure mentioned in the Code of Civil Procedure with only two exceptions, (a) when the Act contains express provision for certain matters which are inconsistent with the procedure prescribed by the Code; and (b) when a particular provision of the Code is either expressly or by necessary intendment excluded by the Act.
That is why a provision like the repealed section 92 is unnecessary; and it cannot be contended that since Parliament repealed that section, Parliament intended that the provisions of O. XI, C.P.C., should not apply to election petitions tried by the High Court.
[258A E; 269C D] Sitaram Hirachand Birla vs Yograisingh Shankarsingh Parihar and others, AIR 1953 Bom.
293, Durvodhan vs Sitaram and others AIR 1970 All. 1; Jugal Kishore vs Dr. Baldev Prakash AIR 1968 Punj. 152 (F.B.) and Keshari Lal Kavi and another vs Narain Prakash and others, AIR 1969 Raj. 75, referred to.
Dr. Jagjit Singh vs Giani Kartar Singh and others A.I.R. 1966 S.C. 773, and V. K. Sakleha vs Jagjiwan ; , followed.
(4) Merely because in Inamati Mallappa Basappa vs Desai Basavaraj Ayyappu and others ; it was held that the procedure contained in O. 23, r. 1 C.P.C. does not apply to election petitions it could not be contended that O. XI: C.P.C., would not also be applicable to election petitions.
Order 23, r. 1 cannot be equated with the provisions of O. XI.
Having regard to the nature of an election petition which is a matter of moment and concern to the entire constituency the notion of abandonment of the claim or withdrawal is absolutely foreign to the scope of such proceedings and must, therefore, be held to be excluded by the necessary intendment of section 87 itself.
[260H 261 B, D E] 256 ^ |
ivil Appeal NOS.
574 575 of 1974.
From the judgment and decree dated the 19th April, 1973 of the Gujarat High Court in Civil Revision Application Nos.
1193 & 1194 of .1967.
P. H. Parekh and Manju Jaitley" for the appellant.
I. N. Shroff, for respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
The appellants in these two appeals are monthly tenants of the respondent, the Mahila Sahakari Udyog Mandir.
The respondent filed suits against the appellants for possession of the premises let out to them, on the ground of arrears of rent and on the ground that the premises were reasonably and bona fide required by the respondent for its own purposes.
On both counts the trial court held against the respondent and dismissed the suits.
The decree of the trial court was confirmed in appeal by the learned Assistant Judge, Surat but the High Court of Gujarat allowed the respondent 's revision application and decreed the suits.
On March 11, 1974 the High Court granted to the appellants a certificate to appeal to this Court under the amended Article 133(1) of the Constitution.
The Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, is in force in Gujarat with certain modifications.
Section 12(1) of the Act provides that a landlord shall ' not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permit ted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Act.
Section 13 of the Act sets out the various grounds on which a landlord may recover possession of the premises let out to the tenant.
Sub section (1) clause (1) of that section Provides: "13.
(1) Notwithstanding anything contained in this Act but subject to the provisions of section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied * * * * * * 413 "(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust;" Section 15(1) provides that notwithstanding anything contained in any Law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of the Act for any tenant to sub let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein.
Section 15(2) legalises sub leases, assignments and transfers effected in favour of persons as have entered into possession and have continued in possession on the date of the commencement of the ordinance of 1959.
The trial court and the First Appellate Court found that the respondent required the premises for the purpose of its business but they dismissed the suits on the ground that ill view of the provisions of section 25 of the Act.
the requirement could not be said to be reason able and bona fide.
The High Court accepted the finding of the courts below that the penalises were required by the respondent for the purpose of its business but it differed from them on the question of the applicability of section 25.
The High Court has taken the view that section 13(1)(g) is not subject to section 25 and therefore the question whether the requirement of the landlord is reasonable and bona fide has to be decided apart from the provisions of section 25.
The correctness of this view is challenged by the tenants in these appeals.
The scheme of the Act is that ordinarily the landlord shall not be entitled to evict a tenant so long as the latter pays or is ready and will Judg to pay the standard rent and permitted increases and so long as he observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Act.
This rule is enunciated in section 12(1).
Section 13 of the Act is in the nature of an exception to section 12.
It enumerates the grounds on which not withstanding the injunction contained in section 12, a landlord may obtain possession of the premises Act out to the tenant.
Under section 13(1) (g), the landlord can obtain possession only if he satisfies the court that the premises are required by him "reasonably and bona fide".
If the issue as regards the reasonableness of the landlord 's requirement is to be decided without reference to the provision contained ill section 25 the respondent would be entitled to succeed because all the three courts have found that the respondent requires the premises genuinely for occupation by itself for the purpose of its business and that the requirement, apart from section 25. is reasonable and bona fide.
The short question for consideration in these appeals is whether the reasonableness of the landlord 's requirement can be judged in the light of the provision contained in section 25 or whether, as held by the High Court, section 25 is to be kept out of way in judging that question.
By section 25, a landlord cannot use nor can be permit to be used for a non residential purpose any premises which on that date when the Act came into force were used for a residential purpose.
Under sub 414 section (2) of section 25, a landlord who contravenes the provisions of sub section (1) is punishable with imprisonment for a ter which may extend to three months or with fine or with both.
In the instant case, the premises were admittedly used for a residential purpose on February 13, 1948 being the date on which the Act came into operation.
It is plain from the language of section 25(1), that the respondent cannot convert the user of the premises from a residential to a non residential purpose.
If it did so, it would be liable to be, prosecuted and punished under section 25(2).
The respondent sought possession of the premises let out to the appellants and three other tenants on the ground that it wanted one room for its office, two rooms for running a fair price grain shop, two rooms for conducting a provision stores, two rooms for preparing pickles, cleaning spices and for keeping the finished products for sale, two rooms for establishing a godown and some more space for conducting a tailoring and sewing class.
The respondent succeeded in proving its requirement but its very success in establishing that it required the premises for a non residential purpose is its failure to establishing the ingredients of section 13(1) (g) of the Act.
Under that provision, it is not sufficient for a landlord to establish that the premises are required by him but it has to be show further that the requirement is reasonable and bona fide.
The requirement of the respondent in the instant case cannot ever be called reasonable, if the very stable under which it seeks relief contains an injunction that it shall not use residential premises for a non residential purpose.
Not only does the statute contain an injunction against the user of residential premises for a non residential purpose, but it makes it penal for a landlord to use for a non residential purpose any premises which were use for a residential purpose on that date when the Act came into force.
In the light of section 25(1), granting a decree to the respondent for possession of the residential premises on the ground that it requires those premises for a non residential purpose is to pave the way for its prosecution and punishment under section 25(2).
In fact, such a decree would be self defeating because whereas the decree shall have been passed on the ground that the respondent requires the premises for a non residential purpose, it will not be able to use those premises for the purpose for which the decree was granted, save on pain of prosecution.
Learned counsel for the respondent places great reliance on the non obstante clause of section 13 (1) and argues that legislature , having considered the question whether section 13 should be made subject to any other law or to any other Provision of the Act came to the conclusion that it should be made subject to the provisions of section 15 only and therefore it would be wrong to subject the provisions contained in section 13(1) to section 25.
The High Court also approached the problem before it by saying that the material question for consideration was whether section 13(1) can be made subject to section 25.
This auction was answered by the High Court by saving that since the legislature did not subject the right conferred on the landlord by section 13(1) to any other provision save the one contained in sec 415 tion 15, section 25 cannot be permitted to override section 13(1).
This approach, in our opinion, is misconceived.
The true question for consideration is not wether as between section 13(1) and section 25(1) one overrides the other and indeed, in view of the wording of the non obstante clause of section 13 (1), the pervasions of that section must have priority over the rest of the Act, except for what is contained in section 15.
But conceding to section 13(1) its rightful precedence and granting that it stands supreme except for section 15, according to its own terms the court has to be satisfied that the requirement of the land lord is reasonable A requirement which runs in the teeth of section 25 and which, if established, may throw the landlord open to the risk of a prosecution cannot be called reasonable.
Therefore, if the respondent shall have failed, it is not because section 25 overrides section 13 (1) hut because of its failure to prove the reasonableness of its requirement.
Whether the requirement of the landlord is reasonable or not is to be judged from all the facts and circumstances of the case and a highly relevant circumstance bearing on the reasonableness of the land lord 's requirement is that the purpose for which the possession is sought is a purpose for which the premises cannot be used save on pain of penal consequence.
Courts ought not to construe a statute in a manner which will encourage the breach of any of its provisions and, most certainly, a decree ought not to be passed which, if honored, will attract penal consequences.
To pass a decree in favour of the respondent on the grounds accepted by the High Court is to invite the respondent to commit a breach of the statutory injunction contained in section 25 (1) .
In short, therefore, though the evidence led by the respondent is sufficient to prove that it requires the suit premises for the purpose of its Business, no decree for possession can be passed in its favour as its requirement cannot be said to he reasonable.
The requirement runs across a statutory prohibition and is therefore not reasonable.
The view taken by the Bombay High Court in Civil Revisionary Application No. 2172 of 1957 decided on September 3, 1959 and in Laxmi Cooperative Bank Ltd. vs Mohan Govind Diwanji(1), as also the view taken by a learned Single Judge of the Gujarat High Court in Civil Revision Application No. 896 of 1963 decided on March 7, 1967, is in our opinion correct.
The learned Judges of the Gujarat High Court were in error in the instant case in departing from that view.
For these reasons we allow the appeals, set aside the judgement of the High Court and direct that the suits filed by the respondent against the appellants shall stand dismissed.
Respondent shall pay to the appellants the costs of these appeals.
One set of hearing for only.
P.B.R. Appeals allowed. | Section 13 of the Bombay Rents, Hotel and Lodging House Rates Control.
Act, 1 VII of 1947 (which was the Act in force in Gujarat) enumerates the grounds on which a landlord may obtain possession of the premises let out to a tenant.
Clause (g) of that section provides that the landlord can obtain possession only if he satisfies the Court that the premises are reasonably and bona fide required for occupation by himself.
Section 25 provides that a landlord cannot use nor can he permit to be used for a non residential purpose any premises which, on the date when the Act came into force, were used for a residential purpose.
Sub section (2) of this Section makes contravention of the provisions of sub s.(1) punishable with imprisonment.
On the date on which the Act came into operation, the premises in dispute belonging to the respondent were used for residential purposes.
The respondent sought possession on the ground that it wanted them for its office for running a fair price shop, for establishing a godown, for conducting a tailoring and sewing class and such other purposes.
The trial cannot and the first appellate court found that the respondent needed the premises for its business: but dismissed the suits on the ground that in view of the provisions of section 25 of the Act The requirement could not be said to be reasonable and bona fide.
The High Court, while accepting that the premises were required by the respondent for its business, took the view that since the legislature dill not subject the right conferred on the landlord by s.13(1) to any other provision save the one contained in s 15 s.25 cannot be permitted to override s.13(1).
Allowing the appeal, ^ HELD: Though the respondent required the premises for the purposes of its business, no decree for possession could be passed in its favour as its requirement could not be said to be reasonable.
The requirement runs across the statutory prohibition and is, therefore, not reasonable.
[415 E] (1) Under s.13(1)(g) it is not sufficient for a landlord to establish that the premises was e required by him but it has to be shown further that the requirement is reasonable and bona fide.
The requirement of the respondent in the instant case could not be called reasonable if the very statute under which it seeks relief contains an injunction that it shall not use residential premises for a non residential purpose.
Not only does the statute contain an injunction against the user of residential premises for a non residential purpose but it makes it penal For a landlord to use for a non residential purpose any premises which were used for a residential purpose on the date when the Act came into force.
[414C E] (2) (a) The approach of the High Court is misconceived.
The true question for consideration is not whether as between s.13(1) and s.25(1), one over rides the other, and indeed.
in view of the wording of the non obstane clause of section 13 (1), the provisions of that section must have priority over the rest of the Act except for what is contained in s.15.
But conceding to s.13(1) its rightful precedence and granting that it stands supreme except for s.15,.
according to its own terms the Court has to be satisfied that the requirement of the landlord is reasonable.
[415A B] (b) If the respondent fails it is not because s.25 overrides s.13(1) but because of its failure to prove the reasonableness of its requirement whether the requirement of the landlord ms reasonable or not ms to be judged from all the facts and circumstances of the case and a truly relevant circumstance 412 bearing on the reasonableness of the landlord 's requirement is that the purpose A for which the possession was sought was a purpose for which the premises could not be used save on pain of ' penal consequences.
[415 CD] (3) Courts sought not to construe a statute in a manner which will encourage the breach of any of its provisions and a decree ought not to be passed which, is ' honored, will attract penal consequences.
To pass a decree in favour of the respondent on the grounds accepted by the High Court is to invite the respondent to commit a breach of the statutory injunction contained in s.25(1).[415 D] Laxmi Co perative Bank Ltd. vs Mohan Govind Diwanji, 74 B.L.R 186, approved. |
Criminal Appeal No. 640 of 1988.
From the Judgment and Order dated 27.4.1987 of the Delhi High Court in Crl.
Rev. No. 221 of 1986.
B. Datta, Additional Solicitor General, Kitty Kumar Mangalam and Miss A. Subhashini for the Appellant.
Hardev Singh and R.K. Agnihotri for the Respondent.
The Judgment of the Court was delivered by RAY, J.
Special leave granted.
Heard learned counsel for the parties.
The prosecution case, in short, is that to create fear and terror to commit murder and to aggravate tense situation some persons hatched a conspiracy to massacre the general public by placing transistor bombs at public places and also by placing them in public transports as trains, buses etc.
Many explosions took place in May 1985 in Delhi and parts of Uttar Pradesh in consequence whereof many persons were killed in Delhi and some places in Uttar Pradesh.
Several cases were registered in different police stations of Aligarh, Ghaziabad, Meerut and Khekra etc.
In Delhi F.I.R. No. 238 of 1985 was registered i.e. State vs Kartar Singh Narang etc.
wherein all the accused persons named therein were arrested except one Gurdeep Singh Sehgal who was declared as a proclaimed offender.
The accused Jagjit Singh and Gurvinder Singh turned approvers and they were granted pardon under Section 308 of the Code of Criminal Procedure, 1973.
They were examined as P.W. 1 and P.W. 2 in the committal case proceeding in the court of Chief Metropolitan Magistrate on December 24, 1985.
Both these approvers resiled from their statements in the court of the Committing Magistrate.
The accused persons were committed to the Court of Sessions to stand their trial for offences under Sections 121, 121A, 153, 153A, 302 and 307 I.P.C. and sections 3, 5 and 6 of Explosives Substances Act.
PG NO.
1096 On February 27, 1986, Surjit Kaur, another accused in the Transistor Bomb Case, against whom cases were pending in the Meerut, Ghaziabad and Aligarh Districts of U.P., moved an application under Section 406 of the Code of Criminal Procedure before this Court for transfer of criminal case pending in the court of Meerut to a court in Delhi.
This Court after hearing Counsel for the State of Uttar Pradesh has directed that criminal cases referred to at Serial Nos. 1, 2, 3 and 5 in paragraph 2 of the transfer petition stand transferred to the Court of the Chief Metropolitan Magistrate, Delhi and shall be tried along with the case instituted in the Court of the Chief Metropolitan Magistrate, Delhi arising out of F.I.R. No. 238 of 1985 of Police Station, Patel Nagar, New Delhi.
When the matter was taken up in the Court of Sessions, the respondent, Jagjit Singh, the approver moved an application that he cannot be examined as a witness as he had not accepted the pardon and did not support the prosecution version and he was forced to make a wrong statement by the police before the Metropolitan Magistrate.
The application was rejected by the Trial Judge after hearing the arguments of the parties on March 1, 1986.
Against this order, a Criminal Revision Petition No. 92 of 1986 was filed by the respondent, Jagjit Singh in the High Court at Delhi.
This application was heard by Jagdish Chandra, J who dismissed the petition on August 12, 1986 holding that the mandate of the law requiring that the approver shall be examined both before the Committing Magistrate as well as during trial as a witness, is binding not only on the trial court and the prosecution but also on the approver as well.
Thereafter, one of the accused person who was a proclaimed offender was arrested and a supplementary challan was filed in the Court of Metropolitan Magistrate, Delhi.
The respondent, Jagjit Singh was sought to be examined as an approver by the prosecution, in the said supplementary committal proceeding in F.I.R. No. 238 of 1985.
The respondent objected to his being summoned as an approver on the ground inter alia that he cannot be examined as a witness in a case though he is figuring as an accused person in other five cases on the same facts and circumstances which are being jointly tried.
The Chief Metropolitan Magistrate, Delhi dismissed the application by his order dated October 6, 1986.
Against this order the respondent Jagjit Singh filed Criminal Revision Petition No. 221 of 1986.
M.K. Chawla, J after hearing the parties allowed the Revision Petition and directed the State not to examine the respondent approver as an approver in case F.I.R. No. 238 of 1985.
PG NO.
1097 Aggrieved by this order this appeal by special leave has been filed by State.
It has been urged that the statement recorded under Section 164 of the Code of Criminal Procedure was not made by the respondent, Jagjit Singh voluntarily but it was obtained under coercion by the police.
It has also been contended that he resiled from his statements in the court of the Committing Magistrate and he has not accepted the pardon granted to him by the Magistrate.
He should be arrayed as an accused in the case F.I.R. No. 238/85 and should be tried as an accused along with other accused in the said case.
This contention is not tenable in as much as the pardon granted to the respondent, Jagjit Singh was accepted by him and other approver, Gurvinder Singh who were examined as P.W. 1 and P.W. 2 in the court of the Committing Magistrate.
These approvers, of course, resiled from their statement in the court of the Committing Magistrate.
It has therefore, been submitted that the prosecution cannot examine him as a witness in the said case as he has cast away the pardon granted to him.
This submission, in our considered opinion, is not tenable in as much as sub section (4) of Section 306 of Code of Criminal Procedure clearly enjoins that a person accepting a tender of pardon has to be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.
It is therefore, a mandate of the provisions of the said Act to the prosecution to examine the approver to whom pardon has been granted as a witness both in the Committing Court as well as in the trial court It does not matter whether the approver has resiled from his statement and has not made a full and true disclosure of whole of the circumstances within his knowledge relating to the offence so long as the Public Prosecutor does not certify that in his opinion the approver has either wilfully concealed anything essential or has given false evidence contrary to the condition on which the tender of pardon was made.
It has been next contended that the grant of pardon is in the nature of a contract between the State granting the pardon on the one hand and the person accepting the pardon on the other hand.
As the State has the power to revoke the pardon at any time the approver has also got the reciprocal right to cast away the pardon granted to him.
This submission is also not tenable.
The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon.
Hence a pardoning power can attach any condition, precedent or subsequent so long as it is not illegal, immoral or impossible of performance.
Section 306 clearly enjoins that the approver who was PG NO 1098 granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as principal or abettor, in the commission thereof.
It is because of this mandate, the State can not withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court.
The approver may have resiled from the statement made before the Magistrate in the Committing Court and may not have complied with the condition on which pardon was granted to him, still the prosecution has to examine him as a witness in the trial court.
It is only when the Public Prosecutor certifies that the approver has not complied with the conditions on which the tender was made by wilfully concealing anything essential or by giving false evidence, he may be tried under section 308 of the Code of Criminal Procedure not only for the offence in respect of which pardon was granted but also in respect of other offences.
In these circumstances, the question of casting away the pardon granted to an approver and his claim not to be examined by the prosecution as a witness before the trial court is without any substance.
It has been submitted in this connection by citing a decision In re Arusami Goundan, AIR 1959 (Madras) 274 that the accomplice who has been tendered a pardon if at any stage either wilfully conceals material particulars or gives false evidence and thereby fails to comply with the conditions on which pardon was tendered to him and thereby incurs its forfeiture he should not be compelled by the prosecution to be examined as a witness before the trial court.
It has been observed even in the said case that the provisions of Section 337(2) of the old Code of Criminal Procedure, 1898 (5 of 1898) provide that the approver who has been tendered pardon must be examined both in the Committing Court and the Court of Sessions it has been held that: "The obligation to make a full and true disclosure would arise whenever the approver is lawfully called upon to give evidence touching the matter; it may be in the Committing court, or, it may be in he Sessions Court.
But, the obligation to make a full and true disclosure rests on the approver at every stage at which he can be lawfully required to give evidence.
If at any stage he either wilfully conceals material particulars or gives false evidence he would failed to comply with the conditions on which the pardon was tendered to him and thereby incurred its forfeiture.
Neither as a matter of reason or logic, nor as a matter PG NO 1099 of statutory interpretation can it be said that section 339(1) is dependent on or connected with section 337(2) in the sense that the approver must be examined both in the Committing Court and the Sessions Court before it can be held that he has forfeited his pardon.
It is sufficient if he fails to conform to the conditions on which the pardon has been granted to him at either stage." This decision has been considered in Emperor vs Shandino Dhaniparto, AIR 1940 (Sind) 114 wherein it has been held that: "When an accused after accepting pardon denies all knowledge of facts before the Committing Magistrate and the case is committed to Sessions Court the pardon cannot be forfeited before the accused is examined in the Sessions Court.
Once a pardon is tendered and accepted, section 337(2) renders it obligatory for the prosecution to examine the approver both in the Committing Magistrate s Court and in the Sessions Court should the case be committed.
Failure of the prosecution to examine the approver in the Sessions Court vitiates the trial.
" The provisions of Sections 337 and 339 of the old Code of Criminal Procedure are almost in identical terms with the provisions of Sections 306 and 308 of the Code of Criminal Procedure, 1973.
This submission on a plain reading of these sections, cannot be sustained.
It has been urged with great vehemence that the appellant, Jagjit Singh was granted pardon with regard to case F.I.R. No. 238 of 1985 whereas his name appears as an accused in the other four cases which have been directed to be tried along with above case wherein the facts are almost similar.
The appellant approver in such circumstances should not be examined by the prosecution as a witness in as much as his evidence may be used in the other criminal cases wherein he figures as an accused.
This is against the protection given by Article 2(3) of the Constitution of India.
It has, therefore, been submitted that the order dated April 27, 1987 passed in Revision Petition No. 221 of 1986 directing the State not to examine the approver as a witness should not be set aside.
This contention is also not tenable in as much as once an accused is granted pardon under section 306 of the Code of Criminal Procedure, he ceases to be an accused and becomes a witness for the prosecution.
The only condition imposed by the provisions of the Act is that the approver must make a full and true disclosure of the whole of the circumstances within his PG NO 1100 knowledge relating to the offence and to every other concerned, whether as principal or abettor, in the commission thereof.
So long as the Prosecution does not certify that he has failed to do so he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court.
This has been made very clear by this Court in the case of A.J. Peiris vs State of Madras, AIR 1954(SC) 616 wherein it has been observed that: ". .We think that the moment the pardon was tendered to the accused he must be presumed to have been discharged whereupon he ceased to be an accused and became a witness.
" We have already held hereinbefore that sub section 4 of Section 306 casts an obligation on the prosecution to examine the approver both in the Committing Court as well as in the trial court.
So the appellant who has been granted pardon in case F.I.R. No. 238/85 has to be examined by the prosecution in the trial court no matter that he has resiled from his earlier statement and tried to conceal what was within his knowledge with regard to the offence in question.
It will be pertinent to mention here Section 132 of the which lays down that: "A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceedings, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind.
Proviso Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
Therefore, a witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to criminate him directly or indirectly.
Proviso to Section 132 expressly provides that such answer which a witness is compelled to give shall not subject him to any arrest or prosecution PG NO 1101 nor the same can be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer.
The provisions of proviso to Section 132 of the clearly protect a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to criminate him directly or indirectly.
In view of this provision, the apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused is without any basis.
On the other hand, he is absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver in the said case.
This submission of the respondent is, therefore, not tenable.
It is pertinent to refer in this connection the decision of this Court in Laxmipat Choraria and Ors.
vs State of Maharashtra.
wherein it has been observed by Hidayatullah, J as he then was that: ". .
Under section 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind.
The safeguard to this compulsion is that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can ii be prove i against him in any criminal proceeding except a prosecution for giving false evidence by such answer.
" So Section 132 of the Evidence Act sufficiently protects him since his testimony does not go against him.
For the reasons aforesaid, the appeal is allowed.
The judgment and order dated April 27, 1987 passed in Revision Petition No. 221 of 1986 is hereby set aside.
R.S.S. Appeal allowed. | Many explosions took place in May 1985 in Delhi and Uttar Pradesh killing many persons.
Consequently, a number of cases were registered.
In Delhi, FIR No. 238 of 1985 was registered wherein the respondent and another accused turned approvers and were granted pardon under section 306 of the Code of Criminal Procedure, 1973.
Both these approvers however resiled from their statements in the Court of the Committing Magistrate.
Four Criminal cases pending in Meerut were later transferred by the Supreme Court to the Court of the Chief Metropolitan Magistrate, Delhi, to be tried along with the case arising out of FIR No. 238 of 1985.
In the supplementary committal proceedings in case FIR No. 238 of 1985, the respondent objected to his being summoned as an approver on the ground inter alia that he could not be examined as a witness in the case because he was figuring as an accused person in the other four cases on the same facts and circumstances, which were being jointly tried.
The Chief Metropolitan Magistrate dismissed the application.
The High Court allowed the respondent 's revision petition and directed the State not to examine the respondent as an approver in case F.I.R. No. 238 of 1985.
In the appeal before this Court, it was inter alia contended that the prosecution could not examine the respondent as a witness because he had cast away the pardon granted to him.
Allowing the appeal, HELD: 1.
The pardon granted to the respondent was accepted by him and he was examined as a prosecution witness in the Court of the Committing Magistrate, though he resiled from his statement there.
[1097C] PG NO 1093 PG NO.
1094 2.
It is a mandate of the provisions of the Criminal Procedure Code to the prosecution to examine the approver to whom pardon had been granted as a witness both in the Committing Court as well as in the trial court.
[1097E] 3.
Section 306 clearly enjoins that the approver who was granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offencc and to every other concerned whether as principal or abettor, in the commission thereof.
It is because of this mandate that the State cannot withdraw the pardon from the approver nor the approver can cast away the pardon granted to him, till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court.
[1097H; 1098A B] 4.
The respondent who has been granted pardon in case F.I.R. No. 238 of 1985 has to be examined by the prosecution in the trial court no matter that he has resiled from his earlier statement and tried to conceal what was within his knowledge with regard to the offence in question.
[1100D] In re: Arusami Goundan, AIR 1959 Mad. 274 and Emperor vs Shandino Bhaniperto, AIR 1940 (Sind) 114 referred to.
Once an accused is granted pardon under section 306, he ceases to be an accused and becomes a witness for the prosecution.
So long as the prosecution does not certify that he has failed to make a full and true disclosure of the whole of the circumstance within his knowledge relating to the offence, he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court.
[1099H; 1100A B] A.J. Peiris vs State of Madras, AIR 1954 (SC) 616 referred to.
A witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to incriminate him directly or indirectly.
[1100G] 7.
The proviso to section 132 of the Indian Evidence Act clearly protects a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to incriminate him directly or indirectly.
[1101A] PG NO.
1095 8.
The apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused was without any basis.
On the other hand, he was absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver.
[1101B C] |
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.S.A. No. 1482 of 1961.
488 N. N. Goswamy and Arvind Minocha, for the appellant.
Kapil Sibbal and D. Probir Mitra, for respondents.
The Judgment of the Court was delivered by MATHEW, J.
This is an appeal by special leave against a decree passed by the High Court of Punjab and Haryana holding that the appeal filed by the plaintiff appellant has abated and dismissing his suit.
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 Shiromani Dera at Patiala had the right to manage the properties attached to the Dera at Landeke.
The prayer in the plaint was for recovery of possession of the Dera and the properties attached to it.
Som Dass, the defendant, contended that the Dera at Landeke was an independent Dera and that he was in possession of the properties of the Dera as its lawfully appointed mahant.
The trial court decreed the suit.
In appeal by the defendant the decree was reversed.
Against that decree, an appeal was preferred by the appellant to the High Court.
While the appeal was pending in the High Court, Som Dass, the defendant, died on 13 10 1970.
No application was made by the appellant to bring on record his legal representatives within the period prescribed.
An application was made on 1 2 1971 by the appellant stating that Som Dass died on 26 11 1970 leaving behind him Shiam Dass as his Chela and for impleading him.
The correctness of the date of death of Som Dass was contested by Shiam Dass.
The High Court referred the question to the trial Court for enquiry and decision.
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 setting aside the abatement of the appeal and the ground for setting aside the abatement was that the appellant did not know about the death of Som Dass at the time he died.
The High Court found no substance in the plea that the appellant had no knowledge about the date of the death of Som Dass and held that the appeal had abated and that there was no ground for setting aside the abatement.
The appellant had raised an alternative contention before the High Court that there was no abatement of the appeal even if Som Dass was not impleaded within the period prescribed as he claimed to represent the dera as its duly elected Chela.
The High Court held that after the death of Som Dass, Shiam Dass, as his Chela "inherited the sum total of the rights which earlier vested in Som Dass and when a controversy is raised about such rights, then the appellant was bound to bring on record the legal representatives of the deceased within the time prescribed by law.
" 489 We do not think that the view of the High Court was correct.
The suit was filed on the basis that the appellant as the lawfully appointed mahant was entitled to manage the properties of the Dera at Landeke, that the defendant was unlawfully claiming to be the mahant of the Dera and entitled to manage the properties of the Dera, and that the appellant was entitled to be in possession of the properties.
As already stated the contention of the defendant was that though the properties belonged to the Dera, he was its lawfully appointed mahant and that the appellant had no right to recover possession of the property of the Dera.
When Som Dass died, the interest which was the subject matter of the suit, devolved upon Shiam Das as he was elected to be the Mahant of the Dera and the appeal could be continued under Q. 22, r. 10, of the Civil Procedure Code against the person upon whom the interest had devolved.
Order 22, rule 10 reads: "R. 10(1) In other cases of an assignment, creation or devolution of any interest during the pendency of suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal there from shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub rule (1).
" This rule is based on the principle that trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during the pendency of the suit but that suit may be continued against the person acquiring the interest with the leave of the Court.
When a suit is brought by or against a person in a representative capacity and there is a devolution of the interest of the representative, the rule that has to be applied is Order 22, rule 10 and not rule 3 or 4, whether the devolution takes place as a consequence of death or for any other reason.
Order 22, rule 10, is not confined to devolution of interest of a party by death, it also applies if the head of the mutt or manager of the temple resigns his office or is removed from office.
In such a case the successor to the head of the mutt or to the manager of the temple may be substituted as a party under this rule.
The word 'interest ' which is mentioned in this rule means interest in the property i.e., the subject matter of the suit and the interest is the interest of the person who was the party to the suit.
It was, however, contended on behalf of the respondent that there was no devolution of the interest in the subject matter of the suit on the death of Som Dass, since there was no certainty as to the person who would be elected as mahant to succeed him.
The argument was that it was uncertain on the death of Som Dass as to who would become the mahant by election, that it was only when a person succeeded to the mahantship on the death of a previous mahant by virtue of law 490 or custom that there would be devolution of interest in the subject matter of the suit and, therefore, Order 22, rule 10, would not be attracted.
We see no force in this argument.
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.
Som Dass was sued in his capacity as a person who claimed (though illegally according to the appellant) as mahant of the Dera.
Som Dass contended that he was lawfully appointed as mahant of the Dera.
He never set up any claim which was adverse to the Dera or its properties.
The suit against Som Dass was not in his personal capacity but in his capacity as de facto mahant.
In other words, the suit was for possession and management of the Dera and the properties appertaining to it by the appellant purporting to be the de jure mahant against Som Dass as de facto mahant.
The fact that it was after Som Dass died that Shiam Dass was elected to be the mahant of the Dera can make no difference when we are dealing with the question whether the interest in the subject matter of the suit devolved upon him.
The subject matter of the suit was the interest of Som Dass in the Dera and its properties and it devolved upon shiam Dass by virtue of his election as mahant subsequent to the death of Som Dass.
And, as it was in a representative capacity that Som Dass was sued and as it was in the same representative capacity that the appeal was sought to be continued against Shiam Dass, Order 22, rule 10 will apply(1).
In Thirumalai vs Arunachella (2) the Court held that a succeeding trustee of a trustee who filed a suit and thereafter died during its pendency was not legal representative of the predecessor in office.
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, it is a case of devolution of interest during the pendency of a suit 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 Roshan Lal vs Kapur Chand the Court took the view that newly appointed trustees are not legal representatives of the trustees who had filed the suit and thereafter died during the pendency of the suit, that they can be added as parties under Order 22, rule 10 notwithstanding the fact that the period of limitation for an application to 491 impleaded them under Order 22, rule 3 had elapsed.
The Court said (at p. 384): "Such an application is obviously not an application under O. 22, R. 3 Civil Procedure Code.
" We also see no reason why the High Court should not have granted leave to the appellant to prosecute the appeal.
In the result we reverse the decree of the court below and direct the High Court to dispose of the appeal on merits.
We allow the appeal but, in the circumstances, make no order as to costs.
V.P.S. Appeal allowed. | The appellant filed the suit on the basis that as the Mahant of a Dera he was entitled to possession and management of the properties of its branch Dera.
The defendant contended that it was an independent Dera and that he was in possession of the properties as its lawfully appointed Mahant.
The trial court decreed the suit but in appeal the decree was reversed.
While the second appeal, preferred by the appellant, was pending in the High Court, the defendant died.
As the application to implead the elected successor of the defendant was filed beyond the period prescribed for an application under O. 23, rr. 3 and 4, the High Court held that the appeal had abated and that there was no ground for setting aside the abatement.
In appeal to this Court, the appellant contended that even if the Chela, who had been elected as the Mahant on the death of the defendant, was not impleaded within the period prescribed, there would be no abatement, because he represented the Dera.
Allowing the appeal to this Court, ^ HELD: (1) When a suit is brought by or against a person in a representative capacity and there is a devolution of the interest of the representative, the rule that has to be applied is O. 22, r. 10 and not O. 22, rr. 3 or 4, whether the devolution takes place as a consequence of death or for any other reason.
The word 'interest ' in the rule means interest in the property, i.e., the subject matter of the suit, and the interest is the interest of the person who was the party to the suit.
This rule is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during the pendency of the suit.
The suit may be continued against the person acquiring the interest with the leave of the Court.
[489F G] In the present case, when the defendant died, the interest which was the subject matter of the suit devolved upon his successor elected as the Mahant of the Dera, and therefore, the appeal could be continued under O. 22 r. 10, C.P.C. [489B C] (2) Though it was uncertain on the death of the defendant as to who would become the Mahant by election, it would not make any difference for the application of O. 22, r. 10.
The devolution of the interest in the subject matter of the suit took place when the new Mahant was elected.
The suit was for possession and management of the Dera and the properties appertaining to it by the appellant purporting to be the de jure Mahant against the defendant as a de facto Mahant.
The subject matter of the suit was the interest of the defendant in the Dera and its properties and it devolved upon the new Mahant by virtue of his election subsequent to the death of the defendant.
As it was in a representative capacity that he defendant was sued and that it was in the same representative capacity that the appeal was sought to be continued against the new Mahant, O. 23, r. 10 will apply.
[490B E] Rajnam Pillai vs Natraja Desikar A.I.R. 1924 Madras 615, Thirumalai vs Arunachella, A.I.R. 1926 Madras 540 and Roshan Lal vs Kapur Chand, A.I.R. 1960 Punjab, 382, approved. |
Appeal No. 1527 of 1974.
Appeal by Special Leave from the Judgment & Order dated the 14th December, 1973 of the Delhi High Court in Civil Writ No. 1678 of 1967.
F. section Nariman, Addl.
Gen. of India, D. N. Mukherjee and R. N. Sahthey, for the Appellants.
N. A. Palkhiala, Ravinder Narain, J. B. Dadachanji, O. C. Mathur, K. J. John and K. R. Jhaveri, for the Respondent.
419 The Judgment of the, Court was delivered by Goswami, J.
This appeal is by special leave from the judgment of the Delhi High Court in a writ application there under article, 226 of the Constitution.
The respondent manufactures various other items hot rolled finished steel products in rectangular cross section of thickness varying between 1.7 mm and 6.55 mm and width varying between 16.2 mm and 311.2 mm and rolled in coils which it supplies to the, Indian Tube Company Limited at Jamshedpur for making tubes and also to others.
This article is subjected to Central Excise Duty under the (hereinafter called the Act).
The dispute between the respondent and the appellants is that while the former describes the said manufactured product as strip the appellants classify it as skelp.
This difference in classifying the product differently results in fiscal misfortune to the respondent since skelp is subjected to a higher Central Excise Duty than strip.
It may be stated that during the period from April 24, 1962 to February 28, 1964, the respondent described its product as skelp and it was subjected then to a lower rate of,duty From February 19, 1964, the respondent claimed that the aforesaid product be classified as strip since there.
had been a levy of higher duty for skelp.
The Assistant Collector, Central Excise, Jamshedpur, who is the primary taxing authority, the Collector of Central Excise, Patna, in appeal, and the Central Government in revision rejected the contention of the respondent by successive orders, each authority upon its own test of the definition of the product as skelp.
That led to the successful writ application of the respondent in the High Court resulting in this appeal.
In the forefront of his argument the learned Additional Solicitor General for the appellants relying upon two decisions of this Court, namely, The Collector of Customs, Madras vs K. Ganga Setty(1) and V. V. Iyer of Bombay vs Jasjit Singh, Collector of Customs and Another,(2) submitted that "it is primarily for the taxing authorities to determine the heads or entry under which any particular commodity fell; but that if in doing so, these authorities adopted a construction which no reasonable person could adopt i.e., if the construction was preverse then it was a case in which the Court was competent to interfere.
In other worlds, if there were two constructions which an entry could reasonably bear, and, one of them which was in favour of Revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretation favourable to the subject appeals to the Court as the better one to adopt '.
On the other hand with equal emphasis Mr. Palkhivala for the respondent submitted that an assessment without the application of an identifiable test is nothing but perverse and arbitrary.
He submits that in the present case there was no identifiable test before the taxing authorities by which the (1) ; (2) 420 product of the, respondent could be held to be skelp and not strip subjecting the respondent to a heavier duty.
According to the learned counsel there is no difference.
between sklep and strip, the two items being interchangeable.
It may be, noted for our purpose that under section 3 of the Act Central excise Duties are leviable on all excisable goods which are produced or manufactured in India at the rates set out in the First Schedule.
Item No. 26AA in that Schedule relates to iron and steel products and mentions in sub item (iii) therein flats, skelp and strips showing the rate of duty in the third column.
Under rule 8 of the Central Excise Rules, 1944, made under section 37 of the Act, the Central Government may from time to time by notification in the official gazette exempt, subject to such conditions as may be specified in the notification, any excisable goods from whole or any part of the duty leviable on such goods.
In exercise of the power under this rule the Central Government has made such exemptions in the rates of duty as have made it higher on skelp than on strip.
Before we proceed further we may notice how the various Excise authorities dealt with the matter at different.stages.
The first order is that of the Assistant Collector of Central Excise, Jamshedpur, which was on June 17, 1964.
According to him "skelp is the name used in reference to a plate of wrought iron or steel used for making pipe or tubing by rolling the skelp into shape and lap welding or brevetting ,edges together and strip is a term used to describe a flat rolled product of smaller cross section than sheet or bar." He accordingly adopted the definition given in Marymen 's Dictionary of Metallurgy.
The order of the Collector of Central Excise in appeal made on October 24/29, 1964, shows that the authority noted the definition of strip as follows : "Hot or cold rolled finished steel product in rectangular cross section of thickness below 5 mm and of width below 800 mm and supplied, in straight length".
This definition is substantially in.
conformity with the one given by the Indian Standards Institution (ISI).
The appellate authority held that "since the products have not satisfied the above specifications, they have been correctly, classified as 'skelp ' by.
the Assistant Collec tor.
Then comes the order in revision of the Central Government of August 18, 1967.
Inter alia it was held that "the product does have bevel edge, .; peculiar to skelp and not found in strips.
Under the circumstances, there is no doubt whatever that the product in question is correctly classified as skelp".
From the above three orders it is clear that the authorities were not at all certain about a uniform definition of 'skelp ' distinguishing it from 'strip.
Extensive arguments were advanced at the bar with regard to the definitions of there two words.
We may, therefore, look 421 at the various definitions to which our attention has been drawn.
Since the appellants largely upon the definitions given by the Indian Standards Institution, "an expert body", we will first note these definitions.
The ISI 's definitions of strip and skelp as given in IS 1956 1962 (amended upto July 1968) are as follows Upto 1965 the ISI gave, no description of strip.
It had defined skelp in 1962 as follows: Skelp.
"Hot rolled narrow strip with rolled (square, slightly round or beveled) edge.
Strip .
A hot or cold rolled flat product, rolled in rectangular cross section of thickness 10 mm and below and supplied with mill, trimmed or sheared edge.
(a) Narrow strip strip (other than hoop) of width below 600 mm and supplied in straight length or in coil form.
(b) Wide Strip Strip of width 600 mm above and supplied in coil form only.
" Upto 1965 the ISI gave no description of strip.
It had defined skelp in 1962 as follows "Hot rolled.
strip with square or slightly beveled edges, used for making welded tubes".
In 1968 the ISI 's definition of skelp stands as follows "Hot rolled narrow strip with rolled (square, slightly round or beveled edge.
,, Strip was defined by the ISI for the first time in 1965 as follows: "Coiled Strip A hot or cold rolled flat product, rolled in rectangular cross section and supplied in coil form.
Strip A hot or cold rolled flat product, rolled in rectangular cross section thickness below 5 mm and of width below 600mm and supplied in straight lengths".
The ISI 's definition of strip given in 1968 is as follows "A hot or cold rolled flat product, rolled in rectangular cross section of thickness 10 mm and below and supplied with mill, trimmed or sheared edges.
(a) Narrow strip Strip (other than hoop) of width below 600 mm and supplied in straight length or in coil form.
(b) Wide strip Strip of width 600 mm and above and supplied in coil form only".
Annexure 'J ' submitted by the respondent along 'with its rejoinder affidavit in the High Court at page 101 of the record, gives various 422 definitions of skelp taken.
from various dictionaries and treatises such as Hornor J. G. Dictionary of Terms, page 323, year 1952; Brandt D.J.C. Manufacture of Iron & Steel, pages 318 and 319, year 1953; Henderson J.C. Metallurgical Dictionary, page 192, year 1953; Backert A.O.L. A.B.C. of Iron & Steel, page 1912, year 1925 5th edition; Chamber 's Technical Dictionary, year 1967.
Similarly definition of strip is also given from these Dictionaries and books.
It is also pointed out that there is no category of skelp mentioned in Brussels Nomenclature.
British Standards 2094, Part 4; 1954, defines skelp as follows : "Hot rolled strip with square or slightly bevelled edges used for making welded tubes".
Chamber 's Technical Dictionary Revised Edition (Reprinted 1954) defines skelp as follows "Skelp (P. 775) Mild steel strip from which tubes are made by drawing through a bell at welding temperature, to produce lap welded or butt welded tubes".
We may not add to the list but are satisfied that there are a large number of definitions out of which one can be picked up to satisfy the definition of skelp according to some authority and another definition to fit in with the concept of strip according to another authority Since the duties on strip and skelp are not the same, it is absolutely necessary to define the word skelp so that there can be no doubt or confusion in the mind of either of the taxing authority or of the tax payer with regard to the tax liability qua skelp as opposed to strip.
Since, however.
there is no statutory definition of this controversial item different tests have naturally been resorted to by the different authorities and the same variation is discernible even in the affidavits of the appellants submitted before the High Court.
The short question, therefore, that arises for consideration is whether in the above background the High Court was right in interfering with the orders under article 226 of the Constitution.
It is not for the High Court nor for this Court to come to a conclusion on facts as to whether the product can truly come under the description of skelp.
That undoubtedly would require some evidence be taken at the level of the taxing authority provided, however, there is an identifiable, uniform and determinate test by which skelp can be properly distinguished from strip.
In the mass of documents filed before us and the extensive arguments addressed at the bar with regard to the definitions 'culled from various dictionaries, handbooks and authorities, we are not at all surprised that the three authorities came to the same conclusion by depending upon their own chosen tests.
A particular type, of strip may according to certain definitions.
be skelp and according to others not Skelp.
however, cannot be permitted in a fiscal legislation which by all standards should adopt a clear definition of an excisable item which is incapable of giving rise to a confounding contro 423 versy as in this case unless the, matter is beyond doubt in view of the popular meaning, or meaning ascribed to the term in commercial parlance.
In absence of any clear criterion to determine what is skelp.
and not strip, no useful purpose would be served by even remanding, the matter to the Excise authorities for a decision after taking necessary evidence.
It is only when a taxing law provides for a clear and unequivocal test for determination as to whether a particular product would fall under strip of skelp it may be possible for the authorities.
to address itself to the evidence submitted by the parties in order to come to a decision on the basis of the test.
This is, however, not possible in this ' case in view of the fact that there is no identifiable standard.
The best way is to define the product for the purpose of excise duty in approximate terms demarcating clearly the distinction between.
the two terms.
The absence of any identifiable standard would, therefore, naturally give rise, to the scope for arbitrary assessment at the hands of different authorities.
Whether this has happened in this case, as. ' complained by the respondent citing the instance of the Hindustan Steel Company, Rourkela, it is not necessary for us to pursue in this,, appeal.
We are, therefore, unable to hold that the High Court has.
gone wrong in granting the reliefs prayed for.
The appellants strenuously emphasized upon the test relied upon in the Revisional order as to skelp having bevelled edges which, according to them, is peculiar to skelp and not to strip.
But this does not bear scrutiny as on the counter affidavit of the Union of India in the High Court at page 57 of this record it shows that "as regards tested Hot rolled Strips the edges are never looked into, they can be bevelled, square or have Mill edge" (emphasis added).
This is an admission of the appellants that strips may also have bevelled edges.
The two decisions relied upon by the appellants do not come to their aid in this case since there is no identifiable standard or test to determine clearly which product can be skelp and not strip.
In Ganga Setty 's case (supra) the controversy arose with regard to whether "feed oats" fell within item 42 (fodder) or within item 32 (grain) of parti cular circular.
Dealing with the matter this Court observed as follows: ". any particular species of grain cannot be excluded merely because it is capable of being used as cattle or horse feeds.
The decision of the Customs authorities, therefore, this Court held could not be characterized as Perverse or mala fide calling for interference.
Similarly following Ganga Setty 's case (supra) in Jasjit Singh 's case (supra) the conclusion and findings of the Customs authorities were accepted a reasonable.
In both the above cases there were definite tests by which the particular article could be held to fall under one item and not under the other and the construction of the authorities 424 with regard to the scope of the particular entries was, therefore, held to be reasonable and not calling for interference by the court.
The ,question that arises in the instant case is of a completely different nature as pointed out above there being no identifiable test reasonably capable ,of distinguishing skelp from strip.
In the result the appeal fails and is dismissed with costs.
P.H.P. Appeal dismissed. | The respondent manufactures hot rolled finished steel products in rectangular cross section, of thickness varying between 16.2 mm and 311.2 mm in coils (hereinafter a referred to as the Product) product as Strip whereas the appellant classifies it as a skelp.
to higher excise duty than Strip.
The Assistant Collector the product as Skelp.
On appeal to the Collector of and rolled The respondent describes the Sklip is subject Central Excise treated Central Excise, he confirmed it and in revision the Central Government also approved.
The respondent filed a Writ Petition in the High Court.
The High Court accepted the contention of the respondent.
On appeal by Special Leave the appellant contended before this Court : (i) That it is primarily for the Taxing Authorities to determine the head or nature under which any particular commodity fell.
(ii) The Court can interfere with the decision only if it is perverse.
if there were two constructions possible and if the Taxing Authority accepts one of them the Court cannot interfere.
The respondent submitted '.
(i) Assessment without application of an identifiable test is perverse and arbitrary.
(ii) In the present case.
there was no iden tifiable test before the Taxing Authorities.
There is no difference between Skelp and Strip.
Dismissing the appeal, Held : There are large number of definitions out of which one can be picked up to satisfy the definition of Skelp according to some.
authority and another definition to fit in with the concept of strip according to another authority.
Since there is no statutory definition for Skelp and Strip, different tests have been resorted to by the different authorities.
The question arises whether the High Court was right in interfering with the orders under article 226 of the: Constitution.
It is not for this Court to come to the conclusion on facts.
The absence of any identifiable standard naturally gives rise to the scope for arbitrary assessment at the hands of different authorities.
It is not possible to hold that: the High Court has gone wrong in granting the reliefs prayed for.
[422D F; 423C] |
: Criminal Appeal No. 74 of 1971.
Appeal by Special Leave from the Judgment and order dated the 25th January 1972 of the Bombay High Court in Criminal Appeal 1025 of 1959.
N. H. Hingoorani and Mrs. K. Hingoorani for the Appellant.
section B. Wad and Al.
N. Shroff for the Respondent.
The Judgment of the Court was delivered by V BEG, J.
The appellant before us by special leave to appeal was convicted under Section 135(b) (ii) of the (hereinafter referred to as 'the Act '), and sentenced to six months rigorous imprisonment and a fine of Rs. 2,000/ , and, in default, to three months further rigorous imprisonment.
Goods in respect of which this offence was found to have been committed were also confiscated.
On 21 4 1967, Police Officers of the Anti Corruption and Prohibition Bureau, Greater Bombay, acting on information received, had searched room No. 10 at 56, Sheriff Deoji Street, Bombay.
This room was divided by partitions into three parts.
In the central portion the police found the appellant and three other persons.
This portion was again sub divided with a locked connecting door fixed in the passage to the sub divided part.
This was opened by one of the two Godrej lock keys produced by the appellant from a side pocket of his trousers.
Eleven wooden boxes covered with jute cloth and secured by iron strips were found there.
On opening them, six of them were found to contain cigarette lighters of "Imco Triplex Junior '? brand "Made in Austria".
Each of the six boxes were tightly packed with 1200 lighters.
The remaining five boxes contained fifty sealed tins of flints for cigarette lighters which bore the following writing: "Tego Lighter Flints of Superior Quality Made in Germany".
On the wooden boxes containing the lighters were found written "Dubai" and "Made in Austria".
The five boxes containing flints had the words "Dubai" and "Made in West Germany" inscribed on them.
A panchnama was prepared before Panchas.
A rent receipt in the name of the appellant in respect of room No. 10, in this house, of which a portion was occupied by the appellant, and a bill for the consumption of electricity were also seized from the custody of the appellant together 541 with the Godrej lock and the keys produced by the appellant.
Subsequently, the seized articles were made over to the inspector of Central Excise and Customs, Marine and Prevention Division, Bombay, on 24 4 1967, under Section 110 of the .
The value of 7200 cigarette lighters was stated as Rs. 14,400/ and of 250 tins of flints as Rs. 15,000/ on which Customs duty of Rs. 15,840/ and Rs. 10,500/ respectively was alleged to be payable.
In the complaint filed on 30th October, 1968, by the Assistant Collector of Central Excise, Marine and Prevention Division, Bombay, it is alleged that the cigarette lighters and flints were imported into India without an import licence and in contravention of provisions of Government of India, Ministry of Commerce & Industry, Import Control order No.17/55 dated 7 12 1955 (as amended) issued under Section 3(2) of the Import & Export (Control) Act, 1947, which was to be deemed to be an order passed under Section 11 of the Act.
It was submitted that the accused, having been concerned in a fraudulent evasion of payment of Rs. 26,340/ as customs duty to the Government, had committed offences punishable under Section 135(a) and (b) of the Act.
The goods were also as a necessary consequence, said to be liable to confiscation under Section 111 (d) of the Act.
The appellant had denied being in possession of the offending goods although he had admitted the production of keys from his possession He alleged that the portion of the room from which the goods were recovered was sublet to Dwarumal and Kishen who had kept the goods there.
The appellant 's explanation had been disbelieved by the trying Magistrate as well as by the High Court.
The production of the key which, according to the prosecution evidence, the appellant had at first refused to produce, proved that the portion in which the boxes were kept was in appellant 's exclusive possession with all that was contained in it.
It is possible that he may have sub let other portions of the partitioned room to other persons, but there is no reason to doubt that the appellant was not only in possession of the bodies but knew something about the incriminating nature of their contents.
Otherwise, why should he, at first, have refused to produce the key he had ? Furthermore, the appellant had not given any evidence to show that his sub tenants had placed the boxes there, or that there was any reason why he should allow them to use the portion reserved by him for himself.
His case rested on his bare assertions in a written statement.
Of course, no one had come forward to state or allege that the goods found, in the circumstances stated above? had been imported without payment of duty.
The only question raised before us was whether the presumption contained in Section 123 of the Act, corresponding to Section 128(A) of the .
Or any other provision of law would place the onus of proving innocent possession of these goods upon the appellant.
Section 123 of the Art reads as follows: "123.
Burden of proof in certain cases.
(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that 542 they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized.
(2) This section shall apply to gold, diamonds, manufacturers of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the official Gazette specify".
lt is true that lighters and flints were notified as provided in Section 123(2) in the official Gazette of 26 8 1967.
Nevertheless, as the provisions of Section 123(1) of the Act only lay down a procedural rule, they could be applied when the case came up for trial before the Presidency Magistrate who actually decided it on 15 7 1969.
Indeed, the complaint itself was filed on 30 10 1968.
It is immaterial that the appellant was found in possession of the goods on 21 4 1967 There is, however, another objection to the applicability of Section 123(1) of the Act.
It is that it would apply only to goods seized under the Act.
lt is contended that the goods in respect of which the appellant was prosecuted were not seized under the Act.
Reliance was placed for this contention upon Gian Chand & ors.
vs the State of Punjab (1) Even if the goods with which we are concerned here were not seized under the Act, as provided by Section 111 of the Act, it is contended on behalf of the State that Section 106, read with Section 114 of the Evidence Act, was sufficient to enable the prosecution to ask the Court to presume that the appellant knew that the goods must have been smuggled or imported in contravention of the law.
The appellant had not produced evidence to show that the goods were legally brought into India.
Reliance was placed on behalf of the prosecution on: Collector of Customs, Madras & ors.
vs D. Bhoormal (2); M/s. Kanungo & Co. vs The Collector of Customs, Calcutta & Ors(3), Issardas Daulat Ram & ors.
vs the Union of India & Ors.(4), Anant Gopal Sheorey vs The State of Bombay(5).
Learned Counsel for the appellant had in his turn, relied upon The State of Punjab vs Gian Chand & ors.(6).
He contended that it was necessary for the prosecution to prove: (1) that, the goods in question were actually smuggled or brought into the country without payment of customs duty at a time when payment of such duty had become obligatory; and, (2) that, the appellant was dealing with them knowing them to be smuggled goods.
It was contended that mere possession by the accused of such goods could not enable the prosecution to apply Section 106 of the Evidence Act when the appellant could not know where the goods came from.
It was urged that there was no evidence which could enable the appellant to know where the goods came from or when the goods were imported or that duty, if leviable was not P d on them.
The admissibility and sufficiency of (1) [1962] (Suppl.) 1 S.C.R. 364.
(2) ; (3) A.I.R. (4) [1962] Suppl.
(1) S.C.R. 358.
(5) ; (6) Criminal Appeal No. 195 of 1962 decided by this Court on 2 4 1968.
543 the inscriptions on the goods and the writing on boxes in which they were found, for proving the place from where they came, or when they were imported, were questioned.
The contention was, that even if the appellant is deemed to be in possession with full knowledge of what the goods actually were, the Court could not go further and assume them to be smuggled or imported into the country from another country of their assumed origin after a time when the restrictions on their import had been imposed.
Unfortunately, the appellant did not admit the possession of the goods at all.
If he could have succeeded in explaining satisfactorily how he was an innocent receiver of such goods without knowing that they were illegally imported or smuggled he may have had a chance of getting the benefit of doubt The very appearance of the goods and the manner in which they were packed indicated that they were newly manufactured and brought into this country very recently from another country.
The inscriptions or them and writing on the boxes were parts of the state in which the goods in unopened boxes were found from which inferences about their origin and recent import could arise.
The appellant 's conduct, including his untruthful denial of their possession, indicated consciousness of their smuggled character or means rea.
In any case, there was some evidence to enable the Courts to come to the conclusion that the goods must have been known to the appellant to be smuggled even if he was not a party to a fraudulent evasion of duty.
Consequently, the appellant had been convicted only under Section 135(1)(ii) of the Act.
We do not find sufficient reasons to interfere with this finding of fact or the sentence imposed.
It would also follow that the goods were rightly confiscated.
Accordingly, this appeal is dismissed.
V.M.K. Appeal dismissed. | Section 123(1) of the , provided that, where any goods to which this section applies are seized under this Act in the reasonable relief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized.
On 21 4 1967 Police officers of the Anti Corruption and Prohibition Bureau.
Greater Bombay, acting on information received, had searched room No. 10 at 56, Sheriff Deoji Street Bombay.
This room was divided by petitions into three parts.
In the central portion the police found the appellant and three other persons.
This portion was again sub divided with a locked connecting door fixed in the passage to the sub divided part.
This was opened by one of the two Godrej lock keys produced by the appellant from a side pocket of his trousers.
Eleven wooden boxes covered with jute cloth and secured by iron strips were found there.
On opening them.
six of them were found to contain cigarette lighters of "Imco Triplex Junior" brand "Made in Austria.".
Each of the six boxes were tightly packed with 1 200 lighters.
The remaining five boxes contained fifty sealed tins of flints for cigarette lighters which bore the Following writing: "Tego Lighter Flints of Superior Quality Made in Germany" inscribed on them.
A panchnama was prepared before Panchas.
A rent receipt in the name of the appellant in respect of room No. 10, in this house, of which a portion was occupied by the appellant, and a bill for the consumption of electricity were also seized from the custody of the appellant together with the Godrej locks and the keys produced by the appellant.
On 30th October.
1968 the Assistant Collector of ' Central Excise, Marine and Prevention Division.
Bombay, filed a complaint alleging that the appellant had committed offences punishable under Section 135(a) and (b) of the .
The appellant had denied being in possession of the offending goods although he had admitted the production of keys from his possession.
The trying Presidency Magistrate convicted him under section 135(b)(ii) of the and sentenced him to six months rigorous imprisonment and a fine of Rs. 2,000/ , and in default, to three months further rigorous imprisonment.
The High Court dismissed his appeal.
This appeal has been preferred on the basis of the special leave granted by this Court.
It was contended for the appellant that: (1) the presumption contained in s.123(1) of the Act would not place the onus of proving innocent possession of the goods in question upon the appellant; and, (ii) the goods in respect of which the appellant was prosecuted were not seized under the Act.
Rejecting the contentions and dismissing the appeal.
the court ^ HELD: (1) Though lighters and flints were notified provided in Section 123(2), in the official Gazette of 26 8 1967 the provisions of Section 123(1) which only lay down a procedural rule, could be applied when the case came up for.
trial before the Presidency Magistrate.
He divided it on 15 7 1969.
The complaint itself ' was filed on 30 10 1968.
It is immaterial that the appellant was round in possession of the goods on 21 4 1967.
[542 B C] (ii) The very appearance of the goods and the manner in which they were packed indicated that they were newly manufactured and brought into this country very recently from another country.
The inscriptions on them and writing on the boxes were Parts of the state in which the goods in unopened boxes were found from which inferences about their origin and recent import 540 could arise.
The appellant 's conduct, including his untruthful denial of their h possession, indicated consciousness of their smuggled character or means rea.
There was some evidence to enable the courts to come to the conclusion that the goods must have been known to the appellant to be smuggled even if he was not party to a fraudulent evasion of duty.
[543 B D] Gian Chand & ors.
vs The State of Punjab, [1962] Suppl.
l S.C.R. 364 Collector of Customs, Madras & ors.
vs D. Bhoormull ; M/s, Kanungo & Co. vs The Collector of Customs, Calcutta & ORS.
A.I. R. 1972 S.C. 2136, Issaradas Daulat Ram & ors vs The Union of India & ors [1962] Suppl.
1 S.C.R. 358, Gopal Sheorey vs The State of Bombay ; and The State of Punjab vs Gian Chand & ors.
Criminal Appeal No. 195 of 1962 decided by this court on 2 4 1968, referred to. |
Civil Appeal No. 38 of 1954.
Appeal from the Judgment and Decree dated the 14th day of March 1951 of the High Court of Judicature at Patna in M.J.C. No. 230 of 1949.
Mahabir Prasad, Advocate General for the State of Bihar (R. J. Bahadur and section P. Varma, with him '), for the appellant.
C. K. Daphtary, Solicitor General for India (Porus A. Mehta and P.O. Gokhale, with him), for the respondent.
April 18.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by the assessee on leave granted under section 66 A of the Indian Income Tax Act.
The assessee by name Chatturam Horilram Ltd., who is the appellant before us, is a private limited company carrying on in Chota Nagpur the business of exporting mica for sale to foreign countries.
The assessment in question is for the year 1939 40 and the accounting year is the calendar year 1938.
These proceedings were initiated on a notice issued to the assessee under section 34 of the Indian Income tax Act, 1922, (Act XI of 1922) (hereinafter referred to as the Act).
It is the applicability of this section to the facts of this case that is the sole matter for consideration in this appeal.
The circumstances under which the above mentioned notice under section 34 was issued are as follows.
The appellant had previously been assessed to tax on an income of Rs. 1,09,200 for the same year 1939 40.
by an order dated the 22nd December, 1939, which was reduced on appeal by Rs. 31,315.
That assessment was set aside by the Income Tax Appellate Tribunal on the 28th March, 1942, on the ground that the Indian Finance Act of 1939 was not in force during 292 the assessment year 1939 40 in Chota Nagpur, which was a partially excluded area.
On a reference by the Tribunal at the instance of the Income tax authorities, the High Court of Patna agreed with this view and pronounced on the 30th September, 1943, its judgment confirming the setting aside of the assessment.
Meanwhile, the Governor of Bihar promulgated Bihar Regulation IV of 1942, Which was assented to by the Governor General on the 30th June, 1942.
By this Regulation, the Indian Finance Act of 1939 (along with Finance Acts of other years with which we are not concerned) was brought into force in Chota Nagpur retrospectively as from the 30th March 1939.
The relevant portion of the Regulation was in the following terms.
"The Indian Finance Act, 1939, shall be deemed to have come into force in the area to which this Regulation extends on the 30th day of March, 1939".
On the 8th February, 1944, the Income tax Officer passed an order as follows: "Due to recent judgment of the High Court the assessment under section 23(3) stands cancelled and with it the notice under section 34 issued in this case becomes ineffective and is withdrawn.
Assessee derives income from mica mining and dealing, moneylending, mining rents and non agricultural sources of zamindary, and this has escaped assessment in its entirety.
Issue notice under section 22(2) read with section 34 again to file a return of income in the prescribed form and within the prescribed time, and inform the assessee that the original notice under section 34 has been cancelled".
It may be mentioned, in passing, that the notice under section 34 which is referred to in the above order as having become ineffective and as, therefore, withdrawn was a prior one which was issued on the 8th July, 1941, i.e., during the pendency of the assessee 's appeal relating to the earlier assessment before the Income tax Appellate Tribunal.
It is not quite clear from the record in what circumstances 'that notice came to be issued.
But it looks probable that it relates to certain items appearing in the accounts as 293 cash credits to the tune of four lakhs which, as will appear presently, were treated in the later proceedings as concealed income in the absence of any proper explanation by the assessee.
This prior notice under section 34, having been withdrawn, has no bearing on the question at issue before us in this appeal and has not been relied on by either side.
In pursuance of the order dated the 8th February, 1944, quoted above, a fresh notice under section 34 of the Act was issued to the appellant on the, 12th February, 1944.
The income of the assessee company was thereupon determined at a sum of Rs. 4,86,351, which on appeal to the Assistant Commissioner, was reduced by Rs. 11,187.
Out of this amount a sum of Rs. 4,04,618 related to two items of cash credits appearing in the name of the partners of the Company which in the absence of any satisfactory explanation, was treated by the Income tax authorities as secreted profits of the Company.
Before the Income tax Appellate Tribunal two points were raised.
(1) Whether the notice dated the 12th February, 1944, under section 34 of the Act was validly issued.
(2) Whether the Income tax authorities were right in holding that the cash credit items were secret profits.
Both the points were decided against the assessee.
On the assessee 's application to refer both the points for the decision of the High Court, the Tribunal declined to make a reference as regards the second point but referred the first for the opinion of the Court in the following terms: "Whether in the circumstances of the case, the notice issued on 12 2 1944 under section 34 of the Indian Income tax Act was validly issued for the assessment year 1939 40?" The question was answered against the assessee by the High Court and hence this appeal before us.
The assessee attempted to reopen the second question relating to secret profits before the High Court but the learned Judges declined to allow it to be canvassed, since the Tribunal did not refer the question to them.
We are, therefore, concerned in this appeal only with the question relating to the validity of the notice 294 issued on the 12th February, 1944, under section 34 of the Act.
It is obvious that if this notice is found to be invalid the assessee would get relief for the entire amount including the amount of secret profits.
The answer to the question which arises for consideration in this appeal depends on a correct appreciation of the requirements of section 34 of the Act.
Now, it has to be mentioned that section 34 of the Act as it originally stood in the Act of 1922, was amended by Act VII of 1939 and this was in turn amended by Act XLVIII of 1948.
At the relevant date, i.e., for the assessment year 1939 40, section 34 (1) as amended by Act VII of 1939 (and before its amendment in 1948) was in force.
It was as follows: "If in consequence of definite information which has come into his possession the Income tax Officer discovers that income, profits or gains chargeable to income tax have escaped assessment in any year, (or have been under assessed, or have been assessed at too low a rate, or have been the subject of excessive relief under this Act) the Income tax Officer may, (in any case in which be has reason to believe that the assessee has concealed the particulars of his income or deliberately furnished inaccurate particulars thereof, at any time within eight years and) in any other case at any time within four years of the end,of that year, serve on the person liable to pay tax on such income, profits or gains, or, in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 22, and may proceed to assess or re assess such income, profits or gains and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section".
Omitting from the above sub section those portions which are inapplicable to the facts of the present case marked out within brackets it may be seen that the facts which require to be established for the validity of the notice under this sub section are (I ' the income, profits or gains sought to be assessed should be chargeable to income tax and have escaped assess 295 ment in any year, and (2) the Income tax Officer should have discovered it in consequence of definite information which has come into his possession.
The contention of the learned counsel for the appellant is that, with reference to the facts of this case, none of these conditions can be said to have been satisfied.
It is urged that the income sought to be assessed under these proceedings was not, as a fact, chargeable to income tax during the assessment year 1939 40.
It is said that in any case there can be no question of the income having escaped assessment because, as a fact, the income tax authorities did proceed to assess the income and that what happened is that the proceedings became infructuous by reason of the High Court having pronounced them to be void.
It is also contended that there is no question of discovery of any relevant fact or information, because the non assessment of the income of the assessee for the period in question was in spite of all the information relating to the income of the assessee having been previously furnished and being in the possession of the Income tax Officer as would appear from the order of the Officer dated the 22nd December, 1939.
It is convenient to deal with this last objection in the first instance.
It may be true that all the information relating to the relevant income of the assessee which is now sought to be taxed was in the possession of the Income tax Officer in the year 1939 itself when the return was submitted in compliance with the notice under section 22(2) of the Act then issued.
But what was required under section 34(1) was not merely fresh information as to the income that escaped assessment but information as to the fact of escapement from assessment of the chargeable income.
In the present case the income tax authorities proceeded to assess the appellant in the normal way during the assessment year 1939 40 itself.
Those proceedings became infructuous, by virtue of the decision of the Income tax Appellate Tribunal and the decision of the High Court confirming it, which disclosed that the Indian Finance Act of 1939 was not in operation in 296 the relevant area at the relevant period and that in the absence thereof no valid assessment could be made.
The fact, therefore, that the income of the appellant for the relevant year remained without any valid assessment emerged only on the High Court finally giving its decision that the assessment proceedings previously taken were invalid.
If, in the circumstances, there was "escapement of chargeable income from assessment" a question to be dealt with presently there can be no doubt that this fact can be reasonably said to have been discovered by the Income tax Officer only when he got definite information as to (1) the passing of the Bihar Regulation IV of 1942 applying the Indian Finance Act of 1939 retrospectively for the relevant accounting period, and (2) the judgment of the High Court pronouncing prior proceedings to be invalid It is knowledge of both these facts, together, that would, with reference to the circumstances of the present case, constitute the discovery of the relevant fact in consequence of definite information received by the Income tax Officer.
The information as to both these facts taken together could only be after the decision of the High Court on the 30th September, 1943.
As already stated, the notice under section 34(1) , whose validity is in question, was based on the order of the Income tax Officer dated the 8th February, 1944, after the judgment of the High Court was pronounced.
That order which has been extracted above, shows clearly that it was in consequence of the judgment of the High Court in the back ground of the promulgation of Regulation IV of 1942 that fresh action under section 34 (1) was being initiated.
A number of cases (C.I. T. Bombay vs Sir Mahomed Yusuf Ismail(1); Fazal Dhala vs C.I. T., B.& 0.
Raghavalu Naidu & Sons vs C.I. T., Madras(3); and Raja Benoy Kumar Sahas Roy vs C. I. T., West Bengal(,) have been cited before us to show how the phrase "definite information" and the word "discovery" used in this section have been interpreted by the various (1) [1944] 12 I.T.R. section (3) (2) (4) 297 High Courts.
It is unnecessary to deal with these cases at any length.
There is here no question as to any new subjective facts such as change of opinion consequent on a correct appreciation of law by the very same, or another, or higher officer, that is pressed into service as bringing about "definite information " and "discovery".
We are quite clear that the promulgation of the Regulation and the decision of the High Court are objective facts, information regarding which became available to the Income tax Officer when he passed the order dated the 8th February, 1944, and it is only when these facts came to his knowledge, that the Income tax Officer can be said to have discovered that chargeable income escaped assessment in the relevant year.
The main question that requires consideration in this case is whether, on the facts, it can be said that "income chargeable to income tax has escaped assessment in the relevant year".
The contention of the learned counsel for the appellant is that during the relevant year 1939 40 the income was not chargeable to tax as a fact and that the retrospective operation of the Finance Act for the relevant year by virtue of a later legislation does not make a difference for this purpose.
To decide this question it is necessary to have a clear idea of the scheme of the Income tax Act and its correlation to the Finance Act of each year.
The Income tax Act is a standing piece of legislation which provides the entire machinery for the levy of income tax.
The Finance Act of each year imposes the obligation for the payment of a determinate sum for each such year calculated with reference to that machinery.
As has been pointed out by the Federal Court in Chatturam vs C.I. T., Bihar(1) (quoting from the judgment of Lord Dunedin in Whitney vs Commissioners of Inland Revenue (2).
"there are three stages in the imposition of a tax.
There is the declaration of liability, that is the part of the statute which deter mines what persons in respect of what property are (1) at 126.
(2) 38 298 liable.
Next, there is the assessment.
Liability does not depend on assessment.
That, ex hypothesi, has already been fixed.
But assessment particularises the exact sum which a person liable has to pay.
Lastly, come the methods of recovery if the person taxed does not voluntarily pay".
The same idea has been expressed in slightly different language by Lord Romer in the judgment of the Privy Council reported in C.I.T., Bombay & Aden vs Khemchand Ramdas(1).
Chapter III of the Income tax Act headed "Taxable Income" contains the various provisions with reference to which taxable income is determined.
The tax is leviable under section 3 and is in respect of the total income of an assessee in the previous year.
The total income is defined in section 2, sub section (15).
The application of the Act to the total income in the hands of an assessee is governed by sections 4, 4 A and 4 B and is determined with reference to concepts relating to residence, receipt and accrual, as indicated therein.
Section 3, under which the actual charge of income tax arises, is as follows: "Where any Central Act enacts that income tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually".
It is by virtue of this section that the actual levy of the tax and the rates at which the tax has to be computed is determined each year by the annual Finance Acts.
Thus, under the scheme of the Income tax Act, the income of an assessee attracts the quality of taxability with reference to the standing provisions of the Act but the payability and the quantification of the tax depend on the passing and application of the annual Finance Act.
Thus, income is chargeable to tax independent of the passing of the (1) at 428.
299 Finance Act but until the Finance Act is passed no tax can be actually levied.
A comparison of sections 3 and 6 of the Act shows that the Act recognises the distinction between chargeability and the actual operation of the charge.
Section 6 says "save as otherwise provided by this Act, the following heads of income, profits and gains, shall be chargeable to income tax in the manner hereinafter appearing, etc.
" while section 3, as already quoted above, says that "where any Central Act enacts that income tax shall be charged for any year at any rate or rates, tax at that rate or those rates,, shall be charged for that year, etc." Though, no doubt, sections 3 and 4 are the charging sections in the Act as pointed out in Chatturam vs C.I.T., Bihar(1) at page 125, the wording of section 3 assumes the pre existence of chargeable income as indicated in section 6.
Hence, according to the scheme of the Act the quality of chargeability of any income is independent of the passing of the Finance Act.
In this view, therefore, though, as a fact, on account of the Finance Act not having been extended to the relevant area during the year 1939 40, legal authority was then lacking for the quantification of the tax and imposition of the liability therefor, the income of the assessee for the relevant year was nonetheless chargeable to tax at the time, in the sense explained above.
Indeed, it can also be said that the very fact of Regulation IV of 1942, having brought the Finance Act of 1939 into operation retrospectively, in this area, has factually brought about, in any case, the chargeability of the tax during that very year.
The relevant portion of the Regulation says that "the Indian Finance Act of 1939 shall be deemed to have come into force in the area to which this Regulation extends on the 30th day of March, 1939".
By virtue of this deeming provision the Indian Finance Act of 1939 must be assumed even factually to have come into operation on the date specified and the tax must be taken to have become chargeable in that very year, though the actual liability for payment could not arise until proper and (1) 300 valid steps 'are taken for quantification of the tax.
The contention, therefore, of the appellant that the income was not chargeable to tax in the year 1939 40 cannot be accepted.
The next question that arises is whether the income, though chargeable to tax in the year, can be said to have escaped assessment in the relevant year.
The argument of the learned counsel for the appellant is that since assessment proceedings had in fact been taken during the year 1939 40 by an order of assessment dated the 22nd December, 1939, it cannot be said that the income "escaped" assessment.
He urges that what happened was that, in spite of assessment having been made, the assessment proceedings became infructuous on account of the decision of the Income tax Appellate Tribunal setting aside the same and High Court agreeing with it.
He contends that, in the circumstances, this is no more than a failure of the assessment proceedings but that it is not an escapement from assessment.
He relied upon the Privy Council case in Sir Rajendranath Mukherjee vs C.I. P., Bengal(1), where their Lordships say that "the expression 'has escaped assessment ' cannot be read as equivalent to 'has not been assessed" ' and that "such a reading gives too narrow a meaning to the word 'assessment ' and too wide a meaning to the word 'escaped" '.
Learned counsel for the respondent relies on a number of subsequent 'cases of the various High Courts (Madan Mohan Lal vs C.I.T., Punjab(1); C.I. T., Bombay vs Pirojbai N. Contractor(3); and Kunwar Bishwanath Singh vs C.I. T., C.P.(4) ) which have explained.
this decision of the Privy Council and pointed out that the particular passage in that judgment which is relied upon bad reference to the, facts of that case, viz., the proceedings by way of initial assessment being still pending.
While no doubt the Privy Council case is thus distinguishable, the contention of the learned counsel for the appellant that the escapement from assessment is not to be equated to (1) at 77.
(3) (2) (4) 301 non assessment simpliciter is not without force.
Here again, it is unnecessary to lay down what exactly constitutes "escapement from assessment".
For the purpose of the present case it appears to us sufficient to say that, where earlier assessment proceedings had in fact been taken but failed to result in a valid assessment owing to some lacuna other than that attributable to the assessing authorities, notwithstanding the chargeability of income to the tax, it would be a case of chargeable income escaping assessment and not a case of mere non assessment of income tax.
The proceedings for assessment in the present case have failed to result in a valid assessment by virtue of a legal lacuna, viz., the fact of the Indian Finance Act of 1939 not having been extended to the relevant area for the relevant assessment year.
Learned counsel for the appellant suggests that the failure of the assessment proceedings in this case must be taken to have been due to the lapse of the income tax authorities.
It is said that inasmuch as Regulation IV of 1942 was actually passed during the pendency of the reference in the High Court in respect of the prior proceedings, the result would have been different, if the Regulation had been brought to the notice of the High Court.
There is, however, no reason to think so.
The High Court 's jurisdiction was only to answer the particular question that was referred to it by the Income tax Appellate Tribunal and it is extremely doubtful whether they could have taken notice of a subsequent legislation and answered a different question.
Learned counsel for the appellant also urged that in any case the deeming provision enacted in Regulation IV of 1942, may be taken to have validated the assessment proceedings previously taken in the year 1939 and at best to have restored the assessment order passed by the Income tax Officer on the 22nd December, 1939, and confirmed by the Assistant Commissioner.
But this overlooks the fact that the order had in fact been set aside by the Income tax Appellate Tribunal and that the setting aside was confirmed by the High Court on the reference made to it.
Admittedly the Regulation was passed after the decision of the 302 Income tax Appellate Tribunal.
Notwithstanding that the Regulation IV of 1942 purported to be retrospective) it cannot have the effect of effacing the result brought about by the decision of the Income tax Appellate Tribunal and the High Court on reference, unless there are clear and express words to that effect.
It might have been quite a different matter, if by the date of the Regulation the assessment pro ceedings themselves were still pending as in fact happened with reference to assessment proceedings in this area, in respect of a number of assessees for the subsequent assessment year, 1940 41, which were pending by the date of the relevant Regulation and were continued up to their termination.
They were held to be valid both by the High Court and by the Federal Court when challenged by the assessees.
(See Raja Bahadur Kamakshya Narain Singh vs C.I.T., B. & O.(1); Chatturam vs C.I. T., B. & O.(1); as also Chatturam vs C.I.T., Bihar(1).
It follows, therefore, that, in our view, the income of the assessee 'Chargeable to income tax escaped assessment in the relevant year 1939 40.
The High Court was, therefore, right in answering as it did the question referred to it.
The appeal accordingly fails and is dismissed with costs.
(1) (1946) 14 I.T R. (2) (a) at 126. | The appellant in this appeal had been assessed to Income Tax which was reduced on appeal but that assessment was set aside by the Income Tax Appellate Tribunal on the ground that the Indian Finance Act of 1939 was not in force during the assessment year in Chota Nagpur.
On a reference by the Tribunal the High Court con firmed the setting aside of this assessment.
By the promulgation of Bihar Regulation IV of 1942 by the Governor of Bihar (which was assented to by the Governor General) the Indian Finance Act of 1939 was brought into force in Chota Nagpur retrospectively as from the 30th March 1939.
On the 8th February 1944 the Income Tax Officer passed an order in pursuance of which a fresh notice was issued under section 34 which resulted in the assessment of the appellant to income tax.
The question for determination in this appeal was whether the notice under section 34 was validly issued.
Held (i) that for the purposes of section 34 of the Act the income, profits or gains sought to be assessed were chargeable to income tax according to the scheme of the Act and the provisions of sections 3 and 4 of the Act; (ii) that it was a case of chargeable income escaping assessment within the meaning of section 34 and was not a case of mere non assessment of income tax because the earlier assessment proceedings in the present case had in fact been taken but failed to result in a valid assessment owing to some lacuna which was not attributable to the assessing authorities.
C.I.T., Bombay vs Sir Mahomed Yusuf Ismail ([1944] , Fazal Dhala vs C.I.T., B. & O. ([1944] 12 I.T.R. 341), Baghavalu Naidu & Sons vs C.I.T., Madras ([1945] , Raja Benoy Kumar Sahas Boy vs C.I.T., West Bengal ([1953] , Chatturam vs C.I.T., Bihar ([1947] F.C.R. 116), Whitney vs Commissioners of Inland Revenue ([1926] A.C. 37), C.I.T. Bombay & Aden vs Khemchand Ramdas ([1938] at 428), Sir Rajendranath Mukherjee vs C.I.T., Bengal ([1934] , Madan Mohan Lal vs C.I.T., Punjab ([1935] , C.I.T., Bombay vs Pirojbai N. Contractor ([1937] , Kunwar 291 Bishwanath Singh vs C.I.T., C.P. ([1942] , Raja Bahadur Kamakshya Narain Singh vs C.I.T. B. & 0.
([1946] and Chatturam vs C.I.T., B. & 0.
([1946] , referred to. |
Civil Appeal No. 748 of 1968.
637 (Fazal Ali, J.) Appeal by Special Leave from the Judgment and Decree dated the 14th February, 1967 of he Bombay High Court in Civil First Appeal No. 888 of 1959.
F. section Nariman and I. N. Shroff for the appellant.
K. section Ramamurthi and K. Rajendra Choudhury, for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave against the judgment dated February 14, 1967, of the High Court of Bombay turns upon the interpretation of clause 3 of the agreement Ext.
39 executed between the parties containing the terms and conditions for which the plaintiff appellant was to supply electricity to the defendant the Jalgaon Borough Municipality.
What appears to us to have been a short and simple case has been rendered cumbersome and complicated by somewhat complex and involved process of reasoning adopted by the High Court in interpreting the various clauses of the agreement Ext.
The plaintiff/appellant 's case was based mainly on clause 3 of the agreement but the High Court instead of concentrating its attention on the interpretation of the scope and ambit of this particular clause appears to have entered upon a covering inquiry and a detailed determination of the history of the case, the various clauses of the agreement executed, the licence taken by the appellant, and so on, which, in our opinion, were not at all germane for the decision of the simple issue which arose in this appeal.
The facts of the case lie within a very narrow compass.
The plaintiff/appellant entered into an agreement to supply electrical energy to the Jalgaon Borough Municipality as far back as 1944.
The energy was to be supplied on the basis of the agreement executed between the parties in the year 1944.
This agreement expired to wards the end of January 1951 and a fresh agreement which is dated May 29, 1951, Ext.
39, which was to commence from February 1, 1951, was executed between the parties.
This agreement was to ensure for a period of five years.
In the present appeal we are concerned with the terms and recitals of this agreement, particularly clause 3 thereof.
The plaintiff averred inter alia that under the agreement the defendant was bound to consume electrical energy for 16 hours a day and pay the minimum charges even if no actual consumption was made.
This claim was put forward by the plaintiff in December 1953 on the basis of clause 3 of the agreement.
Consequent upon its claim the plaintiff sent a number of bills to the defendant which it refused to pay and hence the present suit was instituted on February 27, 1956.
Before the Trial Court the defendant Municipality denied the allegations of the plaintiff and averred that under the terms of is the agreement the Municipality was not bound to pay to the plaintiff Company any minimum charges even if the electrical energy was not consumed.
It was also alleged that even if there was any such clause 638 in the agreement it was void under section 23 of the 197.
A number of other defences were also taken with which we are not concerned.
The Trial Court of the Civil Judge, Senior Division, Jalgaon accepted the defendant 's plea and dismissed the suit of the plaintiff/appellant.
The plaintiff thereupon preferred an appeal to the High Court of Bombay which upheld the decree of the Trial Court and dismissed the appeal negativing the plea put forward by the plaintiff.
Counsel for both the parties agreed before us that the fate of the entire case depended upon the interpretation of clause 3 of the agreement Ext.
39 which appears on pp.
275 277 of the printed Paper Book.
Mr. F. section Nariman for the appellant submitted that the interpretation put by the High Court was absolutely wrong, whereas Mr. K. section Ramamurthi strenuously supported the judgment of the High Court.
The High Court on consideration of clauses 2 and 3 of the agreement appears to have lost sight of the essential stipulation contained in clause 3 and found that minimum charges were given only in clause 2 or the agreement and clause 3 could be of no assistance to the appellant.
The High Court also considered lot of other circumstances which were not at all relevant for the purpose of construing clause 3 of the agreement.
In order to interpret the document, it may be necessary to extract clauses 2 and 3 of the said agreement: "2.
The Company shall supply to the Municipality and the Municipality shall take from the company for a period of five years, the period commencing from 1st February 1951, electrical energy for running the electric motors to work water pumps at the Girna Pumping Station at the following rates.
1.5 annas per unit for the first 50 units per month per B.H.P. installed and the lest at 0.5 anna per unit plus an additional charge at 0.01 anna per unit per rupee rise in the fuel oil rate over Rs. 68/ per ton viz. the rate ex Power house ruling prior to war, with a minimum of 50 units per month per B.H.P. installed, first 50 units per B.H.P. shall mean and include units given by both the electric Motors and Pumps at the Girna Pumping Station.
The additional charge is to apply to all units.
The hours of supply of electrical energy for running the said electric motors shall be according to the quota of diesel oil sanctioned by the Government.
In normal times, i.e. when diesel oil becomes available in any required quantity and without any restriction, the Municipality shall take supply of electrical energy for a minimum period of 16 hours a day and the Company shall supply electricity for a maximum period of 20 hours a day i.e. excluding the four hours from 6 P.M. to 10 P.M.
An analysis of clauses 2 and 3 of the agreement clearly shows that these two clauses are independent and separate provisions dealing with 639 (Fazal Ali, J.) different contingencies.
If there is any link between the two it is only that the reason for making concession in clause a for charging rate of 0.5 annas per unit over first 50 units is the fact that the plain tiff company was guaranteed payment for electrical energy to be sup plied during fixed period whether or not it is consumed by the Municipality.
Clause 3 first of all stipulated that in normal times the Municipality was bound to take supply of electrical energy for a" minimum period of 16 hours a day and in view of this minimum guarantee the Company would supply electricity for a maximum period of 20 hours a day.
In doing this, however, four hours, namely from 6 P.M. to 10 P.M. , would be excluded, because these being the peak hours the Company would be at liberty to supply electricity to other consumers.
The terms of clause 3 appear to us to be absolutely clear and unambiguous and it was not at all necessary for the High Court to have gone into a plethora of extraneous circumstances when the terms of that document do not admit of any ambiguity.
The High Court seems to have completely overlooked the fact that clause 3 of the agreement embodied what is known in common parlance as the doctrine of minimum guarantee i.e. the Company was assured of a minimum consumption of electrical energy by the Municipality and or the payment of the same whether it was consumed or not.
That was the reason why the Company was prepared to charge a minimum rate of 0.5 anna per unit over and above the first 50 units.
The minimum charge of 0.5 anna per unit, therefore, was actually the consideration for the minimum guarantee allowed to the plaintiff under clause 3 of the agreement.
Moreover clauses 2 and 3 of the agreement seem to us to be in consonance with the spirit and letter of the proviso to section 22 of the which runs thus: "Provided that no person shall be entitled to demand or to continue to receive from a licensee a supply of energy for any premises having a separate supply unless he has agreed with the licensee to pay to him such minimum annual sum as will give him a reasonable return on the capital expenditure, and will cover other standing charges incurred by him in order to meet the possible maximum demand for those premises, the sum payable to be determined in case of difference or dispute by arbitration.
" A bale reading of clause 3 is sufficient to indicate that this particular term of the contract was in direct compliance with the provisions of the proviso to section 22 of the Act which ensures a provision for minimum guarantee for the supply of electricity.
Moreover it is obvious that if the plaintiff company was to give bulk supply of electricity at a concessional rate of 0.5 anna per unit it had to lay down lines and to keep the power ready for being supplied as and when required.
The consumers could put their switches on whenever they liked and therefore the plaintiff had to keep every thing ready so that power is supplied the moment the switch was put on.
in these circumstances, it was absolutely essential that the plain 640 tiff should have been ensured the payment of the minimum charges for the supply of electrical energy whether consumed or not so that it may be able to meet the bare maintenance expenses.
For these reasons, therefore, we are satisfied that the interpretation put by the Courts below on the agreement Ext.
39. was legally erroneous and cannot be accepted.
The next question that falls to be considered is about the question of quantum of interest to be allowed to the appellant Company.
Mr. F. section Nariman, learned counsel for the appellant, fairly conceded that he would not be in a position to press his claim for interest prior to the date of the suit and would be satisfied if he is awarded interest at the rate of 4 per cent.
per annum from the date of the suit.
The result is that the appeal is allowed, the judgments of the Trial Court and the High Court are set aside, the plaintiff 's suit is decreed with interest at the rate of 4% per annum from the date of the suit till payment.
In the peculiar circumstances of the case, we leave the parties to bear their own costs throughout.
V.M.K. Appeal allowed. | The plaintiff appellant entered into an agreement with the respondent to supply electrical energy to the respondent in 1944.
This agreement expired towards the end of January 1951, and which was to commence from February 1951, was executed between the parties.
This agreements was to ensure for a period of five years.
Clause 3 of the agreement first of ' all stipulated that in normal times, the Municipality was bound to take supply.
Of electrical energy for a minimum period of 16 hours a day and in view of this minimum guarantee Company would supply electricity for a maximum period of 20 hours a day.
In doing, this, however four hours, namely, from 6 p.m. to 10 p.m would be excluded.
The plaintiff averred that under the agreement the agreement was bound to consume electrical energy for 16 hours a day and pay the minimum charges even if no actual consumption was made. 'This claim was put forward by the plaintiff in December.
1953 on the basis of` clause 3 of the agreement Consequent upon its claim the plaintiff.
sent a number of bills to the defendant which it refused to pay and hence the present in was instituted on February ' ',.
Before the Trial Court the defendant Municipality denied the allegations of ' the plaintiff and averred that under.
the terms of the agreement the.
Municipality was not bound to pay to the plaintiff Company any minimum charges even if the electrical energy was not consumed.
It was also alleged the even if there was any such clause in the agreement it was void under section 23 of the .
The Trial Court accepted the defendant 's plea and dismissed the suit.
The plaintiff thereupon preferred an appeal to the High Court of Bombay. 'the high Court dismissed the appeal holding that the minimum charges were given only in clause 2 of the agreement and that clause 3 could be of ' no assistance to the appellant.
Allowing the appeal by special leave.
^ HELD: (i) An analysis of clauses 2 and 3 of the agreement clearly shows that these clauses are independent and separate provisions dealing with different contingencies.
The terms of clause 3 are absolutely clear and unambiguous and it was not at all necessary for the High Court to halve gone into 1 a plethora of extraneous circumstances when the terms of that document do not admit of any ambiguity.
The High Court seems to have completely overlooked the fact that clause 3 of the agreement embodied what is known in common parlance as the doctrine of minimum guarantee i.e. the Company was assured of a minimum consumption of electrical energy by the Municipality and for the payment of the same whether it was consumed or not.
That was the reason why the Company was prepared to charge a minimum rate of 0.5 anna per unit over and above the first 50 units.
The minimum charge of 0.5 anna per unit, therefore.
was actually the consideration for the minimum guarantee allowed to the plaintiff under clause 3 of the agreement.
[638 H. 639 C D] (ii) Clauses 2 and 3 of the agreement are in consonance with the spirit and letter of the proviso to s.22 of the .
A bare reading of clause 3 is sufficient to which ensures a provision for minimum guarantee for the supply of electricity.
[639 & G] |
Civil Appeal No. 496 of 1974.
Appeal by Special Leave from the Judgment and order dated the 2nd May, 1973 of the Punjab and Haryana High Court in R.S.A. No 1469 of 1969.
O. P. Sharma for the appellant.
R. N. Dikshit for Respondent No. 1.
The Judgment of the Court was delivered by RAY, C.J.
This appeal is by special leave from the judgment dated 2 May, 1973 of the Punjab and Haryana High Court.
The appellants are venders of the land in suit.
The vendors sold the land to the appellants for Rs. 43,000/ on 26 August, 1965.
The transaction was by registered deed of sale.
The respondents filed this suit for possession by pre emption of the land in payment of Rs. 30,000/ on allegations that the respondents were on the date of sale tenants of the land under the vendors.
The respondents alleged that their right of pre emotion was superior to that of the vendees.
They also alleged that the sale took place for Rs. 30,000/ only and the remaining was fictitiously mentioned in the deed of sale.
The suit was dismissed on the ground that one suit on behalf of the four plaintiffs, who were tenants of different parts of the land, was not maintainable.
On appeal the suit was remanded for re trial.
At the trial on remand, two plaintiffs withdrew from the suit.
The trial court directed the remaining two plaintiffs respondents Sohan Lal and Nathi to deposit Rs. 6,300/ and Rs. 5,670, ' respectively on or before 1 April, 1969 less 1/5th of the pre emotion amount already deposited by them.
The Trial Court gave the respondent Sohan Lal a decree for possession by pre emotion in respect of Killa Nos.
17 and 18/1 of Rectangle 37.
The plaintiffs respondents aggrieved by the order.
filed an appeal alleging that the respondent Sohan Lal was a tenant of Killa No. 24 under the vendors and the decree should have been passed in their favor for the whole of the land and that decree should have been passed in favour of Sohan Lal in respect of Killa No. 24 of Rectangle 37.
The other ground in the appeal was that the decree should have been passed in favour of the plaintiffs respondents for whole of the land.
The Additional District Judge on 29 July, 1969 passed a decree for.
possession by pre emotion in favour of respondent Sohan Lal on payment of Rs. 9,100 and he was directed to deposit this amount in Court on or before 20 August, 1969.
The Addition District Judge passed a decree for possession by pre emption in favour of respondent Sohan Lal of Killa No. 24 of Rectangle 37.
The decree in favour the respondent Nathi was maintained without change.
Thereafter, the appellants preferred an appeal in the High Court alleging that the decision that plaintiff respondent Sohan Lal was also a 600 tenant of Killa No. 24 was incorrect and should be set aside and the decree of the Trial Court should be restored.
The appellants also prayed that the decree in favour of the two plaintiffs respondents Sohan Lal and Nathi were liable to be set aside.
The appellants contended before the High Court that respondents Sohan Lal and Nathi did not deposit the decretal amount by 1 April, 1969 as directed by the Trial Court and, therefore, the suit was liable to be dismissed under the provisions contained in order 20 Rule 14 of the Code of Civil Procedure.
The other contention of the appellants before the High Court was that the plaintiff respondent Sohan Lal should not have been granted pre emption rights in respect of Killa No. 24.
The High Court on 2 May, 1973 accepted the appeal of the appellants against the plaintiff: Nathi and dismissed the appeal against the plaintiff respondent Sohan Lal.
The High Court said that since the lower appellate court granted Mohan Lal decree for one more Killa and directed that the amount would be Rs. 9,100/ , the respondent was to comply with the appellate decree and not the decree of the Trial Court.
The appellants contended that neither Sohan Lal nor Nathi deposited the amount in accordance with the decree of the Trial Court on or before l April, 1969 and the suit should have been dismissed on that ground alone and the appeal should have been allowed.
The appellants contended that the lower appellate court had no power and jurisdiction to give further time to Sohan Lal to deposit the preemption amount by an extended date.
This Court in Naguba Appa vs Namdev(1) held that the directions given by the Trial Court are mandatory under the provisions contained in order 20 Rule 14 of the Code of Civil Procedure.
This Court in Naguba Appa 's case (supra) said that "mere filing of an appeal does not suspend the decree of the Trial Court and unless that decree is altered in any manner by the Court of Appeal, the pre emptor is bound to comply with that direction '`.
In Dattaraya s/o Keshav Tawalay vs Shaikh Mahboob Shaikh Ali & Anr.(2) this Court said that a decree in terms of order 20 Rule 14, imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other.
To illustrate, if the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties the plaintiff decree holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues.
In the present case, the lower appellate court did not grant any stay to the plaintiffs respondents.
In view of the fact that the plaintiffs respondents did not deposit the amount as directed by the Trial Court (1) A.I.R. 1954 S.C. 50.
(2) ; 601 on or before 1 April, 1969, it became mandatory on the lower appellate court by reason of the ruling of this Court in Naguba Appa 's case (supra) to dismiss the suit.
The observations of this Court in Naguba Appa 's case (supra) that the pre emptor is bound to comply with the directions of the Trial Judge unless that decree is altered in any manner by a Court of Appeal do not mean that where the deposit is not made in accordance with the directions of the Trial Court, the appellate court can extend the time for payment.
Thereafter, the lower appellate court was in error in extending the time for payment till 2 .
August, 1969.
In Naguba Appa 's case the pre emption money was not deposited within the time fixed in the decree.
The pre emptor made an application to the Court for making the deposit without disclosing that the time fixed by the decree had elapsed.
The application was allowed The defendant, when apprised of the situation, made an application to the Court to the effect that the plaintiff 's suit stood dismissed on account of his failure in making the deposit in time.
The Trial Judge held that the pre emption money not having been paid within the time fixed in the decree the suit stood dismissed.
On appeal the decision was set aside.
On second appeal it was restored and it was held that the suit stood dismissed under order 20, Rule 14 Civil Procedure Code.
An appeal was preferred against the judgment of the High Court this Court Held that the High Court was right in holding that the pre emptor 's suit stood dismissed by reason of his default in not depositing the pre emption price within the time fixed in the Trial Court 's decree.
The contention of the appellants that the lower appellate court was wrong in extending the time for payment is correct because the failure of the plaintiffs respondents to deposit the amount in terms of the Trial Court 's decree would result in pre emptor 's ' suit standing dismissed by reason of their default in not depositing the pre emption price.
The contention of the appellants that the High Court was wrong in not setting aside the order of extension of time passes by the lower appellate court is correct.
It is only if the plaintiffs respondents had paid the decretal amount within the time granted by the Trial Court or if the plaintiffs respondents had obtained another order from the lower appellate Court granting any order of stay that the lower appellate court might have considered the passing of appropriate order in favour of pre emptors.
The High Court should have allowed the appellant s ' appeal and not made any distinction in dismissing plaintiff respondent Nathi 's suit and allowing plaintiff respondent Sohan Lal any extension of time to make the payment.
Further, it appears that the plaintiff respondent Sohan Lal did not pay the amount.
For these reasons the appeal is accepted.
Suit of the plaintiffs respondents is dismissed.
The appellants are entitled to costs.
V.M.K.Appeal allowed. | The vendors sold the suit land,to the appellants (vendees) by a registered deed of sale for Rs. 43,000/ .
The ' respondents filed the suit for possession by pre emption of the land in payment of Rs. 30,000/ on the allegations that the respondents were on the date of sale tenants of the land under the vendors.
I They also alleged that the sale took place for Rs. 30,000/ only and the re maining amount was fictitiously mentioned in the deed of sale.
The suit was ' dismissed on the ground that one suit on behalf of the four plaintiffs who were tenants of different parts of the land, was not maintainable.
On appeal the suit was remanded for re trial.
At the trial on remand, two plaintiffs withdrew from the suit.
The trial court directed the remaining two plaintiffs respondents Sohan Lal and Nathi to deposit Rs. 6,300/_ and Rs. 5.670/ respectively on or before 1 April, 1969 less 1/5th of the pre emption amount already deposited by them.
The Trial Court gave the respondent Sohan Lal a decree for possession by pre emption in respect of Killa Nos.
14/1 .
17 and 18/1 of Rectangle 37.
The plaintiffs respondents, aggrieved by the order filed an appeal alleging that the decree should have been Passed for the whole of the land because the respondent Sohan Lal was also a tenant of Killa , No.
24 of Rectangle 37 under the vendors.
On 29 July 1969.
the Additional District Judge passed a decree for possession by pre emption in favour of respondent Sohan Lal of Killa No. 24 of Rectangle 37 on payment of Rs. 9,100/ and he was also directed to deposit this amount on or before 20 August, 1969.
The decree in favour of Nathi was maintained without charge.
The appellants filed an appeal before the High Court and it was contended before the High Court that respondents did not deposit the decretal amount by l April, 1969 as directed by the Trial Court and, therefore, the suit was liable to be dismissed under order 20 Rule 14 of the Code of Civil Procedure.
The High Court accepted the appeal of the appellants against the plaintiff Nathi and dismissed the appeal against the plaintiff respondent Sohan Lal.
The High Court said that since the lower appellate court granted Sohan Lal decree for one more Killa and directed that the amount would be Rs. 9,100/ .
the respondent was to comply with the appellate decree and not the decree of the Trial Court.
Allowing the appeal by special leave, ^ HELD: (1) The directions given by the Trial Court are mandatory under the provisions contained in order 20 Rule 14 of the Code of Civil Procedure.
A decree in terms of order 20 Rule 14, imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance bt the other.
[600E F, G].
Naguba Appa vs Namdey reported in A.I.R. l 954 S.C. 50 and Dattaraya S/o Keshav Tawalay vs Shaikh Ali and Anr.[1969] 2 S.C.R. 514 relied on.
(ii) It is only if the plaintiffs respondents had obtained another order from the lower appellate Court granting any order of stay that the lower appellate court might have considered the passing of appropriate order in favour of pre emptors.
The High Court should have allowed the appellants ' appeal and not made any distinction in dismissing plaintiffs respondent Nathi 's suit and allowing Plaintiff respondent Sohan Lal any extension of time to make the payment.
[601F G] 599 |
ON: Criminal Appeal No. 392 of 1974 Appeal by Special Leave from the Judgment and order dated the 25th April, 1974 of the Andhra Pradesh High Court in Criminal Appeal No. 701 of 1972.
P. Basi Reddy and G. Narasimhulu, for the appellant, A, section Mulla, T. V. section N. Chari and P. P. Rao, for the respondent.
The Judgment of the Court was delivered by SARKARIA J.
This appeal is directed against a judgment of the High Court of Andhra Pradesh, converting on appeal by the State the acquittal of the appellants into conviction.
Appellant No. 1 (for short A 1) was an arrack contractor doing liquor business inter alia within the territorial jurisdiction of Police Station Indukurpet, District Nellore, while Appellant No. 2 (for short, A 2) was a Sub Inspector of Police in charge of this Police Station, The appellants and one other person were tried by the Firs Additional Sessions Judge Nellore on charges under ss.120 B, 366, 376, 302/34., 201, 218, 468/34, 324, Penal Code relating to the abduction, rape and murder etc.
Of two sisters, named Kalarani and Chandrika Rani of Nellore.
The Sessions Judge acquitted the three accused of all the charges.
Against the acquittal of the appellants only the State preferred an appeal.
The High Court partly allowed the appeal, set aside the acquittal on charges 7, 8, 9 and convicted A 2 and A I. under ss, 201, 201b34, Penal Code and sentenced each of them to five years rigorous imprisonment.
A 2 and A 1 were further Convicted under section 218 and 218/109, Penal Code and sentenced to two years rigorous imprisonment, each.
They were also convicted under 605 section 468 and 468/34, Penal Code and sentenced to two years rigorous imprisonment each.
The sentences on all the counts were directed to run concurrently.
Their acquittal on the remaining charges, including those of abduction, rape and murder, was upheld.
The facts of the prosecution case, as they emerge from the record" arc as follows: Kalarani and Chandrika Rani deceased were two of the six daughters of PW1, a legal practitioner of Nellore.
Kalarani was aged 21 and a graduate from the local Women 's College, Nellore.
She used to be the President of the College Union and as such was well known.
Chandrika Rani was, aged 17 and a B.A. student in that very college.
on 6 6 1971 in the morning the deceased girls along with their parents and other sisters attended a marriage in the house of a family friend (P.W.2).
In the afternoon they went away from the marriage house saying that they were going out to have coca cola.
At about 4 p.m. they boarded a bus bound for Mypaud which is a sea shore resort at a distance of 11 miles from Nellore.
At about 5.40 p.m. they were seen alighting from the bus as Mypaud and then proceeding towards Sagarvilla, a Travellers ' Bungalow situated near the seashore.
They were last seen at about 6 30 p.m.
On the seashore by P.Ws. 11, 12, 13 and 14.
Shortly there after, P.W. 18, a rickshaw puller was attracted to the seashore by the outcry of a woman.
When be proceeded in hat direction, Chandrika Rani came running to him for help.
P.W. 18 saw 4 persons including A 1 and A 2 carrying away Kalarani who was groaning.
On seeing P.W. 18, A 1 and A 2 turned on him.
A 1 first slapped and then stabbed P.W. 18 on his right arm with a pen knife, while A 2 gave blows on his back.
Out of fright, P.W. 18 took to his heels while Chandrika Rani was dragged away by the appellants.
On 6 6 1971 Chamundeshwari Festival was being celebrated in Gangapatnam and neighbouring areas at about 9 p.m.
It was a bright moonlight On learning that the dead body of a girl had been seen on the beach of Pallipalem which is a hamlet o Gangapatnam, many persons went there.
P.W. 23, a fisherman of Pallipalem and P.W. 25.
an employee of the Electricity Department were also among those persons.
It was the body of a girl, aged about 21 or 22 years, of fair complexion and stout built.
Blood was oozing from a reddish abrasion on the forehead.
There was a gold ring with a red stone on the finger of the body.
Next morning, P.W. 23 went to P.W. 26, the Sarpanch of Gangapatnam and informed the later about the corpse on the seashore.
P.W. 23 and P.W. 26 then went to the village Karnam (P.W. 27) as they found the village Munsiff absent.
The Kamam scribed a report to the dictation of P.W. 23.
The Sarpanch signed it and sent it at about 7 30 a.m. through a bus driver (P.W. 29) to the Police Station, Indukurpet.
The report was handed over in the Police Station at about 8 30 a.m. to the Head Constable (P.W. 34), as A 2.
the Sub Inspector was away.
The Head Constable (P.W. 34).
read the report and returned it to P.W. 29 with the objection that the bearer should fetch a report drawn up on the printed form and signed by the village Munsiff.
Within a few minutes 606 of the return of the report, between 8 30 and 8 45 A.M., A 2 returned to the Police Station.
Just at this juncture P.W. 49, a Personal Assistant to P.W. 38, a cine actor of Madras, and A 1, arrived there in Car No. M.S.V. 1539, driven by a motor driver.
The car had met an accident on the 4th June within the jurisdiction of this Police Station.
The car was therefore at least theoretically in the custody of the Police.
A 1 was a mutual friend of A 2 and of the owner of the car.
P.W. 49 therefore, had brought A 1 to the Police Station to help the former in getting the car released.
A 1 introduced P.W. 49 to A 2.
A 1 then asked A 2 if he knew that the dead body of a girl was found floating on the sea shore.
A 2 then asked the head Constable (PW 34) if any report regarding the dead body was received.
The Head Constable replied that a report from the Sarpanch about the dead body seen on the sea shore at Pallipalem had been received but had been returned, as it was not from the village Munsiff.
A 2 said some person might have drowned as it usually happened on the seashore.
The Head Constable and A 1 told A 2 that the body found on the shore was said to have been wearing drawers and might be of a person of high class family.
A 2 said that he himself would go and enquire about it.
A 2 asked P.W.4 to take him in his car to the spot.
Thereupon" A 1, A 2, P.W. 49, two constables and two others in addition to the driver, proceeded in the car.
After going some distance, the two "others" got down.
A 1 and A 2 had a talk with them.
The car was then taken to Ramudupalem.
There at about 11.30 A.M., A 1 and A 2 met the Sarpanch (P.W. 26) and asked him to follow them to Pallipalem.
The car was then taken to Gangapatnam.
There the Constables were dropped.
They left a message for the Karnam of the village to reach Pallipalem.
Thereafter, they proceeded to the sea shore of Pallipalem.
The car was left at the canal before the sea.
A 2, A 1, P.W. 49 and P.W. 26; then at about Noon, went to the beach where the dead body lay.
P.W. 23 and P.W. 25 were guarding the deadbody.
It was the body of a fair, stout girl aged about 20 years, who was wearing brassiers, blouse, striped drawers and a white petticoat.
P.W. 23 handed over the ring M.O.9 to A 2 after removing the same from the body.
On being directed by A 2, P.W. 23 washed ' the face of the corpse.
There was a mark on the forehead from which blood was oozing out.
There was a reddish abrasion on the thigh and blood marks on the drawer of the dead body.
On seeing the blood marks on the drawer, A 2 said that she might be in menses.
A 2 further remarked that the body appeared to be of a girl from a high class family who had been out of doors.
A 2 did not hold any inquest there on the dead body.
He did not prepare any record there.
He directed the village vettis (menials) to bury the dead body forthwith while he himself proceeded along with his companions towards the village.
In the distance they saw the Constables coming towards them.
A 2 signalled them not to come near the dead body but to proceed to the Travellers ' Bungalow at Mypad, while A 2 and party went to Mahalaxamma Tample in village Pallipalem.
There A 2 607 secured the signature of P.W. 25, P.W. 26, P.W. 28 and A 1 on a blank sheet of paper.
A 2 and his companions then went to the car.
The Karnam (P.W. 27) was there.
A 2 reproached the Karnam for coming late and added that he had finished all the work for which he (Karnam) had been sent for.
He further told the Karnam that he had got the body buried.
The karnam asked as to why A 2 did not send the body for post mortem examination A 2 replied that the body was of a prostitute who had committed suicide and that he did not suspect any foul play and so he ordered burial The Karnam then enquired if any relation of the deceased had come.
A 1 replied "yes", while A 2 pointed towards P.W. 49 and said that he was the person connected with the deceased.
A 1, A 2, P.W. 26, P.W. 27 and P W. 49 then got into the car and proceeded.
P.Ws. 26 and 27 were dropped near their houses.
On the way P.W. 49 asked A 2 as to why he had represented him (P.W. 49) as a relation of the deceased.
A 2 assured P.W. 49 that there was nothing to worry.
According to the prosecution, this dead body found ashore near Pallipalem which is about 2 miles from Mypad was of Kala Rani deceased who was well known to A 2.
Inspite of it in the inquest report (Ex P 11) which was not prepared on the spot but sometime later, A 2 wrote That the body was of a prostitute, named Koppolo Vijaya, daughter of Crhandravya, Baliya by caste of Ongole Town who had on 6.6.71, come to Mypad along with her prostitute friend Nirmala by Bus A.P.N. 1400 at 5.45 P.M. and thereafter both these girls committed suicide by entering sea at about 6.30 P.M. A 2 ended the report with an emphatic note: "It is conclusive that the deceased (Koppulu Vijaya) died due to drowning".
Despite the presence of injuries noticed on the dead body A 2 recorded: "There are no injuries on the dead body".
In order to support his version as; to the cause of death A 2, according to the prosecution falsely noted that the "stomach is bloated due to drinking of water".
The prosecution case further is that A 2 fabricated some time after the burial of the deadbody, a false report (Ex.
P 25) purporting to have been made to him on 7.6.1971 by one Nuthalapati Subba Rao who despite the best efforts of the investigators has remained untraced and is believed to be a fictitious person.
As this report has an important bearing on the points for determination, we will reproduce it in extenso: "Statement of Nuthalapati Subbarao, son of Venkateswarlu, aged about 30 years" Vysya of Patha Guntur: Being an orphan for about 1 years, I have been doing brokerage in supplying extras in the cine field.
Day before yesterday i.e. On Friday at Chirala near Lodges two girls Koppulu Vijaya d/o Sundrayya of Ongole and Paranjapi Nirmala d/o Raghavayya of Chilakaluripeta were met by me.
I came to know that they live by prostitution.
When I told them that I would join them in Cinema they believed me 608 and came with me.
On Sunday i.e. On 6 6 1971, in the morning we came to Nellore and stayed in Venkateswara Lodge till 3.30 p.m.
Their demand came for the girls.
I booked two males for these two girls.
Afterwards dispute arose between me and the girls in respect of my broekerage, sharing of the money got by such prostitution out of the money collected.
They scolded me in an angry tone and went away crying and weeping and saying that I took them away from their places promising to join them in Cinema, cheated them and committed rowdyism without giving them money due to them.
They had only wearing apparel with them.
Vijaya is short, stout and fair.
Nirmala is lean, tall and fair.
They did not come back.
I waited for a long time.
1 searched for them at the railway station, bus stand and lodges.
When I was inquiring at Atmakur Bus Stand I came to know that the girls went by Mypaud bus at 4.30 p.m.
I went to Mypaud and enquired.
It was learnt that the two girls went towards north of Pattapulalem and entered the sea at 6 p.m.
Having learnt that the body of Vijaya was washed ashore I went and saw the dead body.
She had died and appears to have committed suicide.
It was also learnt that the second girl also committed suicide but her dead body was not washed ashore.
Other facts about them are not known.
Sd/ N. Subbarao Taken down by me, read over to the person and admitted by him to be correct.
On this 7th day of June 1971 at 11 30.
Sd/ B. Manoharan S.I., E 3, dt. 7 6 1971.
H.C. 1212 Issue F.I.R. u/s 174, Cr.
P.C. and send copy to me for investigation.
Sd/ B. Manoharan, S.I. E 3, Camp Mypaud dt.
7 6 1971.
" The dead body of the other girl, Chandrika Rani was not washed ashore.
But in the morning of 7 6 1971, P.W. 36, a fisherman saw the dead body of a girl agled 16 or 17 years floating in the sea at a distance of about 21 or 3 mils from Pallipalem, P.W. 36 saw a piercing wound on the left arm and black marks indicating throttling, on the neck of the deadbody.
P.W. 36 removed a wrist watch, a ring and an ear ring from the deadbody and allowed it to drift away.
These articles were later handed over by P.W. 36 to the investigating officer and were identified to be of Chandrika Rani.
The disappearance of the deceased girls caused a sensation.
The local newspapers took up the matter.
Representations were made to the Home Minister to get the matter investigated by the C.I.D. The Superintendent of Police directed P.W. 59, a Probationer D.S.P., to investigate the matter.
On 18 6 1971, at the request of P.W. 59, the Tehsildar (P.W. 40) proceeded to exhume the deadbody of Kalarani.
The place was pointed out by P.W. 33.
A 2 was also present there.
On digging the bit only some clothes were found in it.
But close to 609 it, was found a skeleton.
No marks of violence were detected on the skeleton by the Medical officer, P.W. 45, who examined it at the spot.
The skeleton was sent to P.W. 44, Professor of Forensic Medicine.
Who opined that it was of a female aged between 18 to 25 years.
Further investigation of the case was taken over by P.W. 60, the C.I.D. Inspector who, after completing it laid the charge sheet against A 1, A 2 and one other person in the court of the Magistrate.
A 1 pleaded that he had been falsely implicated.
He stated that he knew nothing about the deceased girls.
He added that on 7 6 1971, he was in the Travellers ' Bungalow at Mypad and went away from that place in the afternoon.
He admitted that he had accompanied, P.W. 49, to the Police Station on 7 6 1971 to assist the latter in getting the car release, and from the Police Station both of them (A 1 and P.W. 49) on being asked by A 2, went with the latter in the car to the spot.
He further admitted that he had slab signed on a sheet of paper like others but he expressed ignorance if any inquest was held by A 2.
The plea of A 2 was that he had duly made an inquiry as to the cause of the death and prepared the inquest report exhibit P l 1.
He denied that there were injuries on the dead body.
Pleading alibi for the 5th and 6th June 1971, he said that on these dates he was away on casual leave to attend the marriage of a cousin at Chiraja which at a distance of about 100 miles from Indukurpet.
He said that he had proceeded to Chiraja in a car on the 5th morning., and after attending the marriage returned to Nellore on the 6th by 5 30 p.m. and then on the morning of the 7th June, resumed duty at Indukurpet Police Station.
On receiving information about the corpse of a female washed ashore, he went to Mypad and enquired about a person named Nathalapati Subba Rao.
The latter gave the information, exhibit P.25, which he (A 2) reduced into writing and then held the inquest in the presence of this Subba Rao and other Panchaitdars at the spot.
He did not know if Vijaya and Nirmala mentioned in exhibit P. 25 and exhibit P. 11 were fictitious persons.
He further admitted that he was unable to produce this Subba Rao in response to the memo dated 15 6 1971, issued by the D.S.P. (P.W. 59) during the stipulated time of 48 hours.
The Additional Sessions Judge held that the dead bodies found floating near the sea shore were of Kala Rani and Chandrika Rani.
He further found that PW 18, who claimed to be an eye witness of the occurrence, was not worthy of credit, and consequently, the charges of abduction, rape and murder had not been proved against the accused.
Regarding the charge under section 201, Penal Code, the trial Judge held that the prosecution had failed to`prove that an offence had been committed in respect of the deceased.
While holding that the identity of the deceased was wrongly mentioned in exhibit P. 25 and exhibit P. 11 as Vijaya and Nirmala, prostitutes he did not rule out the possibility of suicide.
In the result? he acquitted the accused of all the charges.
In appeal by the State, the learned Judge of the High Court, after an exhaustive survey of the evidence, upheld the acquittal of the 610 accused in respect of the charge of abduction, rap and murder, but reversed the findings of the trial Judge in regard to the charges under sections 201, 218 and 468, Penal Code against Al and A2.
In order to bring home an offence under section 201, Penal Code the prosecution has to prove: (1) that an offence has been committed; (2) that the accused knew or had reason to believe the com mission of such offence (3) that with such knowledge or belief he (a) caused any evidence of the commission of that offence to disappear, or (b) gave any information respecting that offence which he then knew or believed to be false; (4) that he did so as aforesaid, with the intention of screening the offender from legal punishment (5) If the charge be of an aggravated form, as in the present case, it must be proved further that the offence in respect of which the accused did as in (3) and (4), was punish able with death, or with imprisonment for life or imprisonment extending to ten years.
The High Court has found that all these ingredients of section 201, were established in the present case.
Mr. Basi Reddy, learned Counsel for the appellant assails the finding of the High Court with particular reference to the first and the last ingredients enumerated above.
Counsel contends that the conviction under section 201 cannot be sustained as there is no credible evidence on record to show that an offence had been committed.
It is maintained that the prosecution has been unable to prove that the two girls met a homicidal death.
In all probability, proceeds the argument, the deceased girls committed suicide by jumping into the sea and were drowned.
For reasons that follow we are unable to accept these contetions.
The concurrent finding of the courts below that the dead body washed ashore near Pallipalem was of Kala Rani deceased and that seer.
floating in the sea, two miles away was of Chandrika Rani deceased, has not been disputed before us.
It is also not controverted that these two girls died an unnatural death on the night between the 6th and 7th of June, 1971 sometime after 6.30 P.M. at Mypad.
Only the cause of their death is in issue.
In regard to such cause, there could be only three possibilities, the choice of any of which would lead to the exclusion of the other two.
First, the girls committed suicide by drowning.
Second, that their deaths were accidental.
Third, that they were done to death by some person or persons.
611 After a careful consideration of these alternatives in the light of ' evidence on record, the learned Judges of the High Court firmly ruled out the first and the second possibilities, and concluded in favour of the third.
In our opinion, the credible circumstantial evidence on record reinforced by the inferences available from the incriminating conduct o ' ' the appellants, particularly of A2 in deliberately preparing false records to suppress the identity and cause of the deaths of the deceased girls, fully justifies the conclusion reached by the learned judges.
We, therefore, do not feel the necessity of embarking upon a reappraisal of the entire evidence.
It would be sufficient to survey and consider the salient circumstances bearing on the alternatives posed above First, we take up the possibility of suicide.
Mr. Reddy submits with reference to the statement of PW1, the father of the deceased girls.
that on a previous occasion both these girls had without the permission of their parents, run away from home and were ultimately traced to the Rescue Home in Madras.
that Kala Rani deceased had about 4 or 5 years before the occurrence taken an overdone of tranquilizers presumably to end her life that they did not feel happy in their parental house and once attempted to join the Ashram.
This background, according to the learned Counsel, shows that the deceased had a predisposition to commit suicide.
In the alternative, suggests Mr. Reddy, something might have happened at Mypad on the 6th June, 1971, which impelled them to commit suicide.
Might be the girls got themselves into such a situation that they thought suicide was the only course left to them to get out of the same.
We are not impressed by these arguments.
It is wrong to assume that these girls were very unhappy in their parental house, or their relations with their parents were estranged.
Kala Rani, particularly, was a mature graduate girl of 22 years.
She used to be the leader of the College Union.
On the day of occurrence, the deceased girls along with their parents and sisters had participated in the festivities of a marriage in the house of a family friend.
They took their meals in the marriage house.
From Nellore, these girls brought change of clothes for two or three days ' stay.
Thereafter, they came happily to Mypad.
They first went to the Travellers ' Bungalow and were then last seen together at about 6 30 p.m.
On the sea shore.
It is in evidence that the evening of the 6th June, was an occasion of Channdamma Festival.
Procession of the deity accompanied by festivities was being taken out by the devotees of the neighbouring villages.
These circumstances unmistakably show that the diseased girls had come to enjoy and stay at the sea side resort of Mypad for 2 or 3 days.
They were not suffering from any mental depression or schizophrenia with suicidal tendencies .
Another circumstance in the case of Kala Rani which is contraindicative of suicide, is that her dead body though seen within an hour or two of the occurrence on the beach, was in a semi nude condition.
612 The sari was not on her dead body, which she was wearing when last seen at about 6 3 P.M.
It can be argued that the sari was washed off her body by the sea waves.
But considering that her dead body was detected only within a couple of hours of the occurrence and the fact that it is customary for women living in or near the coastal towns to tie their series tightly, the possibility of the sari having been swept off by the sea waves was remote.
The inference is that in all probability, she was not wearing this sari when her body was immersed in water.
Ordinarily, no Indian woman would commit suicide by jumping into the sea by getting into such a near nude condition and thereby expose her body to the risk of post mortem indignity.
Another important circumstance which militates against the suggestion of the death of Kala Rani from drowning is that when the body was first seen at 9 P.M., its stomach was not in a bloated condition, for was any froth seen coming out of the mouth of the corpse.
the fact was vouched by PW 23, a fisherman, who was rightly found worthy of credence by the High Court.
It may be added that contrary to what PW 23 has testified A 2 has in the inquest report said that the stomach was bloated with water and froth was coming out of the mouth.
But as shall be presently discussed, these notes regarding the condition of the dead body, were invented by A2 to support his false report that the deceased had committed suicide and her death was from drowning.
Medical jurisprudence tells us that in a case of death from drowning, the stomach is ordinarily found bloated with air and water which is instinctively swallowed by the drowning person during the struggle for life (see Taylor 's Medical Jurisprudence, 12th Edn.
374 375).
The facts that the stomach was not filled with water and bloated and no froth was coming out of the mouth of the deceased, are important symptoms which to a long way to exclude the possibility of death being as a result of suicide by drowning.
Then there were injuries and blood marks on the dead body.
PWs 23, 25, 26 and 27, all testified with one voice that they had seen one injury, from which blood was oozing out on the forehead, another on the thigh and blood marks on the drawer (under garment) of the deceased.
In examination in chief, even PW 49, who in cross examination tried to dilute his version in a possible attempt to favour A2, stated that he had seen a reddish strain (stain ?) on the forehead and blood marks on the drawer of the deceased.
Out of these PWs, 23, 25 and 26 were present near the dead body when A2, accompanied by Al and P.W. 49, went there to hold the presence of an inquest.
PW 23 was a fisherman of Pallipalem, PW 25 was also a resident of the same hamlet.
He was an employee of the Electricity Department.
PW 27 was the Karnam of Gangapatnam.
PWs 23 and 25 were among those villagers who had seen the deadbody washed ashore at about 9 P.M.
On 6 6 71.
The High Court found that the version of these witnesses in regard to the injuries and blood marks on the deadbody was entirely reliable.
No reason has been shown why we should take a different view of their evidence.
613 It is further in the evidence of PWs.
23, 25, 26 and 49 that when the blood marks on the drawer pointed out to A2, the latter ignored it saying that the girl had been out of doors and was in menstruation.
Contrary to what he and the PWs.
had observed at the spot, A2 wrote in the inquest report, P 11, Col. VII: "There are no injuries on the dead body".
Having excluded the possibility of suicide, we may now consider,.
whether the deaths of these girls were accidental.
It is no body 's case that on the 6th June, 1971, any sea craft, vessel or boat met with an accident off or near about Mypad resulting in loss of human life.
No suggestion of accidental death of any person, much less a women, off or.
On the sea share near or far from Pallipalem was put to any of the prosecution witnesses.
Nor such a plea has been put forward by the accused in their statements recorded under section 342, Cr.
P.C Indeed, tie learned Counsel for the appellants has not pursued any such line of argument.
We have, therefore, no hesitation in negating the possibility of accidental death.
This process of elimination inevitably leads us to the conclusion that in all probability the death of these girls, at any rate of Kala Rani, was due to culpable homicide.
Now we come to the last but the most telling circumstance which not only confirms this conclusion and puts it beyond doubt, but also.
unerringly establishes, by inference, the other ingredients of the offence, including that the accused knew or had reason to believe that culpable homicide of Kala Rani had been committed.
This circumstance is the conduct of A2, in intentionally preparing false records and its abetment by A1.
From its very start the investigation conducted by A2 was dishonest and fraudulent.
He intentionally indulged in suppressio veri and suggestio falsi at every step.
He had been informed by the Head Constable (PW 34) at about 8 or 8 45 A.M. in the Police Station that a report from the Sarpanch had been received about the dead body of a girl bearing injuries, found washed ashore near Pallipalem.
This in formation which was passed on to A 2 and on receiving which he proceeded from the Police Station for investigation, was the real I.R.
It was the duty of A 2 to enter faithfully and truly the substance of this information in the Station Diary and to record further that he was proceeding for investigation on the basis thereof.
Instead of doing so, he intentionally suppressed the factum and substance of this first information and the real purpose of his departure from the Police Station in the records prepared by him or by his subordinates in his immediate presence or under his supervision.
Instead of retrieving the written report that had been first received at 8 A.M. in the Police Station and was, returned by the Head Constable to the Sarpanch, he fabricated the document exhibit P. 25, purporting to be the F.I.R. given to him at Mypad by one N. Subba Rao.
The false story contained in this document has been substantially repeated in the inquest report, exhibit P. 25.
614 P.Ws. 23, 25, 27 and 49 discount the presence of any such person, named N. Subba Rao either at the inspection of the dead body in the sea shore by A 2 or at the 'Temple, where according to A 2, he prepared the inquest report.
None of these PWs has sworn that a statement of any N. Subba Rao was recorded in their presence by A 2.
No specific question was put by the defense to PW 49 in cross examination to establish that the report exhibit P 25 was scribed by A2 at Mypad at about 11.30, to the dictation of N. Subba Rao or any other person although the witness was generally questioned as to the number of persons carried in the car.
P. W. 27, the Karnam, has definitely excluded the presence of any informant named Subba Rao.
P.W. 27 testified that after the inquest, Al" A2, P.W. 26 and "a new person" implying PW 49, met him and thereafter all the five (including PW 27) got into the car and proceeded to the village.
P.W. 27 did not vouch the presence of a sixth man in the car.
Only PW 26 has stated that R2 had recorded the statements of witnesses including that of a per son named N. Subba Rao.
PW 26 had reason to tell a lie on this point.
PW 26 admitted that at the time of the inquest, he was an accused in a criminal case of Indukurpet Police Station.
A2 was at the material time In charge of that Police Station and was presumably concerned with the investigation of that case against PW 26.
PW 26 therefore appears to have deviated from truth in regard to the presence of N. Subba Rao, under the influence of the accused.
In any case, the evidence of PW 26 on this point stands contradicted by the reliable testimony of PWs 23, 25, 27 and 49.
In the inquest report, as also in exhibit P 25, the address of this mysterious person is recorded as "Nuthalapatti Subba Rao son of Venkateswarlu, aged about 37 years, Vysya of Patha Guntur." Despite efforts, the investigating officers, PWs 59 and 60, could not trace on the basis of this address, any person bearing the said particulars at Pata Guntur or anywhere else in the District.
In response to the memo issued by the D.S.P. (PW 59) A 2 could neither produce this N. Subba Rao, nor give any indication about his existence, though A2 claimed to have known him.
For these reasons, the High Court was right in holding that this Nathalapatti Subba Rao was a fictitious person of A2 's imagination.
Similarly, during investigation all efforts made by PWs 59 and 60 to trace and find if Vijay and Nirmala prostitutes, represented in exhibit P 25 and exhibit P 11 as the deceased persons ever existed in flesh and blood, remained futile.
In these premises, the High Court was right in concluding that Vijaya and Nirmala prostitutes were also the coinage of the brain of A2.
It is necessary to say something more about exhibit P 25 because the entire story was spun around it by A 2.
It did not see the light of the day till the 11th June.
A 2 did not send it to the Police Station for registration before that date.
It is in the evidence of P. W. 55, who at the material time was a Head Constable posted in this Police Station, that after his departure in the morning of the 7th, A 2 returned to the Police Station on the 10th evening and it was then that he handed over this document to the witness with the direction that the latter should enter that report in the relevant register, dating it as the 7th June, 1971.
The Head Constable after slight hesitation 615 agreed and inserted this report in the blank space meant for the entries of the 7th June, and thereafter, as required by A2, handed over to the latter, a copy of that report.
A 2 also made an entry (exhibit P 34) in the General Diary of the Police Station, dated 10.6.1971 on 11.6.1971 at 2 A.M.
It reads: "Returned to P.S. after leaving it on 7.6.71 at 9.30 a.m. visited Mypadu en route to Gangapatnam at 11 00 hours at 11 30 a.m., recorded statement of N. Subba Rao, sent to Police Station for issuing First Information Report u. sec.
174 Cr.
P.C. then visited Pallipalem at 12 30 p.m. investigated, held inquest over dead body of K. Vijaya.
At 20 30 p.m., left village reached Mypadu at 21.30 hours, made enquiries in Cr. 48/71 and halted.
On 9.6.71 visited Gangapatnam detailed duties for bandobust and visited Ravur, investigated into Cr. 47/71, visited Nellore at 12 30 hours" did bandobust for festival and halted for the night.
On 9.6.71 visited Mypadu for petition enquiry and investigated into Cr. 48/71, 41,42 and 44/71 and hailed.
On 10 6 71 visited Gangapatnam, supervised and did bandobust for car festival at 00. 30 hours, received First Information Reports in Cr. 49 to 51/71 at 00 45 hours, left the village with men and reached Police Station.
" A mere glance at this report betrays its falsity.
This shows how in his anxiety to suppress the truth he tried to reinforce and cover up one falsehood with another.
In this connection, it may be noted that the D.S.P. persistently pressed A 2 to send the copies of the F.I.R. and the Inquest Report.
A 2 was unable to supply any copy of the F.I.R. before the 12th of June, when the D.S.P. himself came to the Police Station and collected it.
The D.S.P. (P.W. 59) testified that on the 11th June, 1971, he had questioned A 2 about the First Information Report and the inquest report.
As a result he received a copy of the F.I.R.
On the 12th but did not receive any copy of the inquest report.
Consequently on 14.6.71, he telephoned to A2 to send the case diaries and inquest report without further delay.
Despite these efforts, the D.S.P. did not receive whose records on that day.
on 15.6.71, he issued a memo.
to A 2 directing the latter to produce immediately the complaint of N. Subba Rao, the inquest report and the case diaries.
It was only then that A2 produced the persistently requisitioned records.
These inordinate delays in sending the records prepared by A2, confirm the testimony of PWs 23, 25 and 49 that no inquest on the dead body was held at the spot, nor was the inquest report or any other record prepared there and then, and that their signatures were obtained by A2 on a blank sheet of paper.
Of course PW 26 stated that A2 had recorded statements of witnesses and had prepared the inquest report at the Temple.
As already noticed, it is not prudent to accept this version of PW 26.
He had a motive to favour A2.
Moreover, his version stands inferentially falsified by the circumstances including the unusual delay in registering the report exhibit P 25 in the Police Station and in sending the copies of the records to the D.S.P. 616 Section 174, Cr.P.C peremptorily requires that the officer holding an inquest on a deadbody should do so at the spot.
This mandate is conveyed by the word "there" occurring in sec.
174(1).
Sub section (3) of the Section further requires the officer holding the inquest to forward the body with a view to its being examined, by the medical man appointed by the State Government in this behalf, if the state of the weather and the distance admit of its being so forwarded without risk of such purification on the road as would render such examination useless.
The sub section gives a discretion to the Police officer not to send the body for post mortem examination by the medical officer only in.
One case, namely, where there can be no doubt as to the cause of the death.
This discretion however is to be exercised prudently and honestly.
Could it be said in the circumstances of the case, that there was no doubt as to the death of Kala Rani being from drowning ? In this connection it is important to note that Kala Rani was not a total stranger to A 2.
It is in evidence that A 2 used to go to Nellore for Bandobust and there he had sufficient opportunity to come across Kala Rani who was a prominent student leader.
The testimony of P.W. 47 is to the effect that when on 17.7.1971, A2 came to him and requested the witness to dissuade the father of the deceased from getting the dead body exhumed, he (A2) admitted that Kala Rani deceased was well known to him The body was not in an unidentifiable condition.
A 2 therefore could he under no mistake that it was the body of Kalarani deceased particularly when he inspected it after its face had been washed by PW. 23 under the orders of A 2.
Despite such knowledge, he laid a false trail and prepared false record mentioning that the deadbody was of a prostitute named Vijaya.
Medical jurists have warned that in the case of a deadbody found floating in water, the medical man from a mere observance of the external condition of the body should not jump to the conclusion that the death was from drowning.
Only internal examination of the body can reveal symptoms which may indicate with certainty as to whether the death was from drowning or from.
unlawful violence before the body was immersed in water.
That is what Taylor the renowned medical jurist, has said on the point: "When a deadbody is thrown into the water.
and has remained there sometimes water.
fine particles of sand, mud.
weeds etc.
may pass through the windpipe into the large air tubes.
In these circumstances, however, water rarely penetrates into the smaller bronchi and alveoli as it may by aspiration, and even the amount which passes through the glottis is small.
If immersed after death the water is found only in the larger air tubes and is unaccompanied by mucous froth.
Water with suspended matters can penetrate even to the distant air tubes in the very smallest quantity even when not actively inhaled by respiratory efforts during life The quality, or nature of the suspended matter may be of critical importance.***When decomposition is advanced the lungs 617 may be so putrefied as to preclude any opinion as to drowning but the demonstration of diatoms in distant parts of the body inaccessible except to circulatory blood, provides strong evidence of immersion in life if not of death from drowning." (emphasis supplied) A2 was a Police officer of standing and experience.
He knew the deceased.
He saw injuries on her deadbody.
He must have known if he were honest that in the circumstances of the case autopsy of the deadbody by a medical officer was a must to ascertain the cause of her death.
Instead of sending the deadbody for post mortem examination, he in indecent haste, purposely got it buried without holding, any inquest at the spot.
He did not send for the relations of the deceased.
Even a layman like the Karnam (PW 27) felt something strangely amiss in this conduct of A2.
In response to the queries made by the Karnam, A2 made false excuses.
He intentionally misrepresented (in concert with A1) that PW 49 was a relation of the deceased.
He flouted all the salutary requirements of section conduct in distorting and suppressing material evidence and in preparing false records (exhibit P 11 and P 25) as to the identity of the deadbody, the cause of the death and the falsification of the data bearing on that cause, could not be explained on any reasonable hypothesis save that of his guilt.
The circumstances established in this case unmistakably and irresistably point to the conclusion that within all human probability, accused No. 2 knew or had reasons to believe that Kala Rani had been done to death by some person or persons.
All the elements of the charge under section 201 had thus been proved to the hilt against him.
Before considering the case of Al, we may notice here the decision of this Court in Palvinder Kaur, vs State of Punjab(1).
This decision was cited by the learned Counsel for the appellants in support of his argument that the circumstances: that the deceased died, that the appellant prepared false record regarding the cause of her death or caused post haste disposal of the dead body without any autopsy or its identification by the relations of the deceased, do not establish the cause of Kalarani 's death or the manner and the circumstances in which it came about.
Counsel laid particular stress on the observation of this Court in that case that in cases depending on circumstantial evidence courts should safeguard themselves against the danger of basing their conclusions on suspicions howsoever strong.
The decision in Palvinder Kaur 's case (supra) is a precedent on its own facts.
The observations of this Court to the effect, that "Jaspal died, that his body was found in a trunk and was discovered from a well and that the appellant took part in the disposal of the body do not establish the cause of his death or the manner and circumstances in which it came about" cannot be construed as an enunciation of a rule of law of general application.
Whether the circumstantial evidence in a particular case is sufficient and safe enough to warrant a finding that an offence has been committed.
is (1) 9 L925SupCI/75 618 a question which belongs to the realm of facts and not of law.
So is the question whether the accused knew or had reasons to believe that such an offence has been committed.
It is true that this question further depends on an assessment of the accused 's mind.
Nevertheless, it is a question of fact "The state of a man 's mind", quoth Lord Bowen, "is as much a fact as the state of his digesion".
In Palvinder Kaur 's case (supra) there was, in the first place, no material, direct or indirect, justifying a finding that the death of Jaspal was caused by the administration of potassium cyanide and if the defence version was believed his death would be the result of an accident.
In that version was disbelieved then there was absolutely no proof of the cause of his death.
In the method and the manner in which the deadbody of Jaspal was dealt with and disposed of by the accused did raise some suspicion but from these facts, the Court found it unsafe to draw a positive conclusion that he necessarily died an unnatural death.
Nor could the possibility of the commission of suicide by Jaspal be totally ruled out.
The position of A2 in the present case was very different.
He was a Police officer and as such was expected to discharge the duties entrusted to him by law with fidelity and accuracy.
He was required to ascertain the cause of the death and to investigate the circumstances and the manner in which it was brought about.
His duty it was to make honest efforts to reach at the truth.
But he flagrantly abused the trust reposed in him by law.
He intentionally fabricated false clues, laid false trails, drew many a red herring across the net, smothered the truth, burked the inquest, falsified official records and short circuited the procedural safeguards.
In short, he did everything against public justice which is penalised by s 201, Penal Code.
The other circumstantial evidence apart, the series of these designed acts of omission and commission on the part of A2, were eloquent enough to indicate in no uncertain terms that A2 knew or had reasons to believe that Kalarani 's death was homicidal.
It is not disputed that A1 was a friend of A 2.
It was A l who had supported A 2 's idea that the latter should himself go to the spot to investigate as the deceased girl appeared to be from a high class family.
Standing alone, this circumstance is not of a conclusive tendency.
But in the context of his subsequent conduct it assumes significance.
He wilfully conducted himself in such a manner that there could be no doubt that he was a guilty associate of A 2.
When in the context of the burial of the deadbody ordered by A 2 without sending the body for post mortem, the Karnam (PW 27) asked whether any relation of the deceased had come, A 2 pointed towards PW 4 saying that he was related to the deceased.
Simultaneously, A 1 said .
"Yes".
This concerted conduct of A 1 in fraudulently representing PW 49 to be a relation or the deceased, when he knew that PW 49 was not such a relation, clearly marks him out as an intentional abettor and a guilty partner in the commission of the offence under sec.
201, Penal Code.
619 There can be no doubt that on the basis of the facts found, the charges under sections 218, 468, Penal Code had been fully established against the appellant; A 2 being a public servant charged with the preparation of official record relating to the investigation of the cause of the death of Kalarani, framed that record in a manner which he knew to be, incorrect with intent to save or knowing to be likely that he will thereby save the true offender or offenders from legal punishment.
obviously, he prepared this false and forged record with the fraudulent and dishonest intention of misleading his, superior officers and in during them to do or omit to do anything which they would not do or omit if they were not so deceived or induced.
A l, as discussed already, facilitated and intentionally aided A 2, in the preparation of the false and forged record.
For the foregoing reasons we uphold the convictions and sentences of the appellants, on all the counts, as recorded by the High Court, and dismiss the appeal.
V.P.S. Appeal dismissed. | On a report given by the father, regarding the disappearance of his two daughters, investigation was taken up by the D.S.P. because of certain special circumstances.
After completing the investigation, A 2, a sub inspector of police, A 1, his friend, and another were charged with offenses under sections 120B, 366, 376.
302/34, 201, 218, 468/34, and 324 I.P.C. for conspiracy, abduction, rape, murder, calling evidence of crime to disappear, fabricating reports, forgery and causing hurt.
The trial court acquitted all the accused.
On appeal by the State, the High Court convicted A.1 and A.2 for offences under sections 201, 218 and 468 I.P.C. Dismissing the appeal to this Court, ^ HELD: (1) In order to bring home an offence under section 201, I.P.C., the prosecution has to prove; (a) that an offence has been committed; (b) that the accused knew or had reason to believe that the offence has been committed; (c) that with such knowledge or belief he, (1) caused any evidence of the commission of that offence to disappear, or, (ii) gave any information`respecting that offence which he then knew or believed to be false; (d) that he did so with the intention of screening the offender from legal punishment; and (e ) if the charge be of an aggravated form, as in the present case, that the offence in respect of which the accused caused evidence to disappear was punishable with death or with imprisonment for life or with imprisonment extending to 10 years.
[610A E] Whether the circumstantial evidence in a particular case is sufficient and safe enough to warrant a finding that an offence has been committed, is a question which belongs to the realm of facts and not of law.
So is the question whether the accused knew or had reason to believe that such an offence has been committed.
[617H 618B] F Palvinder Kaur vs State of Punjab , explained.
(2) In the present case the two girls died an unnatural death.
The corpse of one was found on a beach having been washed ashore and the Corpse of the other was seen floating in the sea.
A fisherman who noticed the second body saw marks indicating throttling.
He removed a wrist watch and ornament, from it and allowed the body to drift away.
The wrist watch and ornaments were identified as belonging to the younger sister of the first victim.
The 3 possibilities are, that they committed suicide by drowning, or that their deaths were accidental, or that they were done to death by some person or persons.
The choice of any of these possibilities would lead to the exclusion of the other two.
[610G H] 3(a) The elder sister was a graduate and a nature girl of 22 who used to be the leader of the College Union.
On the day of the occurrence the deceased girls along with their parents had participated in certain festivities.
They were cheerful and there was no evidence to show that they were suffering from any mental depression with suicidal tendencies.
[611E H] 603 (b) The body on the sea shore was in a semi nude condition.
It had on only blouse, brassiere, petticoat and drawers but no sari.
From the fact that it is customary for women of the locality to tie their series, tightly the possibility of the sari having been swept off be waves was remote.
This shows that she was not wearing her sari when her body was immersed in water, but no Indian woman would commit suicide by jumping into sea in such a near nude condition because.
ii would expose her body to post mortem.
indignity.
[611 H 162 C] (c) When the body was first seen there were, an injury on the forehead from which blood was oozing, a reddish abrasion on the thigh and blood marks on the drawers.
the stomach, however, was not in a bloated condition.
These circumstances show that death was not due to drowning.
[612 G; E F] (4) It was nobody s case that any boat met with an accident off or near the sea shore resulting in loss of human life.
No suggestion of accidental death of any person or woman was put to and prosecution witness.
Such a plea had not ever been put forward by the accused in their statements recorded under s, 342, Cr.
P.C. Therefore, the possibility of accidental death must also be excluded.
[613 B D] (5) This process of elimination of suicide and accidental death inevitably leads to the conclusion that the death of these two girls, or at any rate of the first victim, was due to culpable homicide.
[613 D] (6) From the very start, the investigation conducted by A. 2 was dishonest and fraudulent.
He intentionally indulged in suppessio veri and suggestio falsi.
[613 E F] (a) The morning after the night when the dead body was seen on the beach, a report was handed at the Police Station but the Head Constable returned it saying that it should be drawn up in the printed form and signed by the village Munsuff.
A little later, A 2, the sub inspector incharge of the police station, came there and the Head Constable told him about the report.
At that time A.1 and P. W. 49, also came to the Police Station, and A.1 also referred to the finding of the dead body on the seashore.
Thereafter, A.1` A 2 and P.W. 49 and others went to the seashore at about noon.
A 2 did not hold any inquest on the dead body, but instead, directed the body to be buried.
When the Karnam questioned A 2 why he did not send the body for post mortem examination, A 2 replied that the body was that of a prostitute though the body was in an identifiable condition and he new the victim personally.
He also said that it was a case of suicide and that P.W, 49 was a relation of the victim.
A.1, who heard this, also said that P.W. 49 was a relation of the victim.
Thereafter, A 2 fabricated an Inquest Report in which he stated falsely that there were no injuries on the dead body and that the stomach was bloated due to drinking of water, suggesting that it was a case of death by drowning.
He also fabricated a false report as if given to him by one who knew the victim and the other girl to be prostitutes.
That report was handed over by A 2 at the Police Station only 5 days later and he asked the Head Constable to note the date as if given 3 days before.
The Head Constable did so after some hesitation.
Inspire of persistent requests by the D.S.P., A.2 sent the copies of the F.I.R. and Inquest Report prepared by him only after an inordinate delay.
A 2 also made false entries in the General Diary of the Police Station to corroborate the false Inquest Report and the fictitious complaint.
He even tried to dissuaded the father from getting the body, which was buried, exhumed.
[605 G 607 C; 614 G 616 E] (b) It was A 2 s duty to enter faithfully and truly the substance of the information in the station diary and to record further that he was proceeding for investigation on the basis thereof when he received information from the Head Constable about the reports regarding the finding of a dead body on the seashore.
Instead of retrieving the written report that had been first received at the police station and returned by the head constable, he fabricated another document purporting to be the first information.
All the reliable witnesses for the prosecution have deposed that no such person as the one who gave the first information was present at the scene of occurrence.
When the D.S.P. was investigating into the matter, A 2 was not able to produce or give any indication about that informant though he claimed to have known him.
Efforts to trace the existence of the two prostitutes mentioned in that report were also futile leading to the inference that they were also fictitious persons.
[613 F 614 F] 604 The credible circumstantial evidence on record re inforced by the inference available from the incriminating conduct of the appellants, particularly A 2, in deliberately preparing false records to suppress the identity and the cause of death of the deceased girls fully justifies the conclusion reached by the High Court.
[611 B C] (c) Section 174, Cr.
P.C. peremptorily requires that the officer should hold an inquest on a dead body at the spot.
This mandate is conveyed by the word there occurring in section 174(1).
Section 174(3) gives a discretion to the Police officer not to sent the body for post mortem examination only in one case, namely, where there can be no doubt as to the cause of the death.
This discretion has to be exercised prudently and honestly.
[616 A C] (d) A 2 is a police officer of standing and experience, who was expected; to discharge the duties entrusted to him by law with fidelity and accuracy.
He was required to ascertain the cause of death and investigate the circumstances and the efforts in which it was brought about.
His duty was to make honest efforts to reach at the truth.
He knew the deceased and saw the injuries on her dead body and must have known that in the circumstances of the case autopsy of the dead body was necessary to ascertain the cause or her death.
He flouted all the salutary requirements of section 174.
P.C. and his conduct in distoring and suppressing material evidence and preparing false records as to the identity of the dead body the cause of death and the falsification of the data bearing on that cause, could not be explained on any reasonable hypothesis save that of his guilt.
[617 B E; 618 D F] (7) As regards A 1, his concerted conduct, including that in supporting the fraudulent misrepresentation made by A 2 to the Karnam.
regarding PW 49 being a relation of the deceased, shows that he was a guilty associate of A 2. |
303 of 1960.
Under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
C. K. Daphtary, Solicitor General of India, N. Sharma, section C. Nath and R. Gopalakrisnan, 'for the Petitioner.
M. C. Setalvad, Attorney General `for India and Naunit Lal, for the Respondents.
September 29.
The Judgment of Sinha C. J., section K. Das and Rajagopala Ayyangar was delivered by S.K. DAS.
This writ petition by one Mannalal Jain was originally filed on October 17, 1960, and the order complained of was dated September 13, 1960.
This was an order made by the Deputy Commissioner, Kamrup Gauhati, rejecting an application made by the petitioner for the grant of a license for the year 1960 for dealing 'in rice and paddy under the relevant provisions of the Assam Foodgrains (Licensing and Control) Order, 1960.
This writ petition was put up for 939 hearing in this Court on February 2, 1961.
The hearing was, however, adjourned sine die, because it was stated before us that the period of licence for 1960 had already expired and a fresh application would have to be made for a license for 1961.
A fresh application was accordingly made by the petitioner on February 4, 1961.
But before that date: a fresh Assam Foodgrains (Licensing, and Control) Order, 1961 was made by the Governor of Assam and the application made by the Petitioner had to be dealt with under the new Order.
No order having been made on this fresh application by the Deputy Commissioner, the petitioner moved this Court by means of a petition (C.M.P. No. 850 of 1961) asking for certain reliefs, one of which was that the respondents, namely, the licensing authorities, should be directed to consider the application of the petitioner and grant him a license.
On April II, 1961 an order was made rejecting the application of the petitioner.
This order which is impugned before us was in these terms.
Having regard to the existing licenses in these areas (Mangaldai and Gauhati), and the quantity of foodgrains available therein, any further license would be superfluous." When the petition was again put up for hearing on May 1, 1961 the petitioner asked for time to amend his original, petition, which related to the order refusing to grant him a license for 1960.
This amendment became necessary by reason of the subsequent order passed on April 11, 1961, quoted earlier, by which the petitioner 's application for a license for 1961 was rejected.
This amendment was allowed.
Therefore, we have now to deal with the writ petition as amended by the petition dated May 5, 1961 (C.M.P. No. 1140.
of 1961).
It is necessary now to state the relevant facts out of which the petition has arisen.
The petitioner states that he is an Indian citizen carrying on a business dealing in rice and paddy in the district of 940 Kamrup in the State of Assam.
In 1955 was enacted the (Act 10 of 1955).
In exercise of the powers conferred by section 3 of the said Act, read with a notification by which the said powers were delegated by the Central Government to the Government of Assam, the latter Government made an Order called the Assam Foodgrains (Licensing and Control) Order.
The result of this was that no dealing in rice and paddy in wholesale quantities was permissible unless the petitioner obtained a, license from the relevant licensing authority.
The petitioner states that he obtained such a license in 1958.
This license expired on December 31, 1958.
The case of the petitioner is that in 1959 also he carried on his business though there is some dispute as to whether he obtained a license for that year.
On November 26, 1959, the petitioner received a letter from the office of the Deputy Director of Supply, Gauhati, which said that his license would not be renewed after December 31, 1959.
This communication, it is stated, was the result of a decision taken by the Government of Assam on the advice of a body called the Food Advisory Council to give a right of monopoly procurement of paddy to a cooperative society in the district of Kamrup known as the Assam Co. operative Apex Marketing Society Ltd. (respondent No. 6 before us).
In a letter dated November 13, 1959, the Director of Sup ply, Assam, indicated the policy to be followed to give effect to the decision aforesaid in these terms "The right of monopoly procurement in respect of Kamrup district including Mangaldai Sub division, Taxpur Sub division, Cachar district, Nowgong district including United Mikir and North Cachar Hills and North Lakhimpur Sub division has been given to the Co operative Apex Marketing Society.
The Society will procure paddy from the 'growers through various service Co operative Societies spread over the district or sub division.
They 941 will procure all available surplus paddy and deliver to Supply Department the quantity required for the buffer stock for those areas.
Any paddy procured by them which is not required by us may be delivered to the mills.
" A copy of the letter was forwarded to all licensing authorities.
on January 5, 1960, the Assam Foodgrains (Licensing and Control) Order, 1960, came into force.
This replaced the earlier Order of 1958.
Clause 5 of the 1960 Order was in these terms: 5.
Maiters to be taken into consideration for granting a license.
In granting or refusing a license under this Order, the licensing authority shall among other matters have regard to the following, namely: (a) the stock of foodgrains available in the locality for which the license is required; (b) the number of persons who have applied for and/or been granted licenser, in respect of the foodgrains under this Order in the locality (c) the business ordinarily carried on by the applicant; and (d) the past activities of the applicant as a licensee or business man/firm: Provided that the State Government may from time to time modify the conditions for granting a license.
" On January 28, 1960 the petitioner made his application for a license for the year 1960.
This application was rejected by an order dated February 17, 1960.
The reason given for the rejection was in these terms: "You are hereby informed that as ;the Co operative Apex Marketing Society has been given the right of monopoly purchase in the Kamrup district this year, your case.
cannot be considered for issue of the license.
942 This reason was obviously based on the decision as to monopoly procurement, which the Government of Assam had adopted.
Against this order the petitioner moved the High Court of Assam by means of a writ petition under article 226, of the Constitution.
The High Court allowed the petition mainly on the; ground that the application, of the petitioner for a license for, the year 1960 was not considered on merits by the licensing authority in accordance with the provisions of el.
5 of the Assam Foodgrains (Licensing and Control) Order, 1960.
The High Court did not go into the larger question whether the State could or could not create a monopoly in the matter of procurement of paddy under the said provisions by means of executive instructions issued to the licensing authorities.
It however, quashed, the order dated February 17, 1960 and issued a writ of mandamus directing the licensing authority to consider the application of the petitioner on merits and in accordance with the provisions of the aforesaid Control Order.
Till June 7, 1960 no order was passed by the licensing authority, and on that date the petitioner made two applications to the High Court, one for directing the licensing authority to grant,, him & license for 1960 and the other for taking action, for contempt of court.
A notice of these applications, it is stated, was served on the respondents.
On June 8, 1960 the licensing authority made another order refusing to grant a license to the petitioner.
This order stated that "as the Assam Co operative Apex Marketing Society Ltd., had already been granted a license to deal in rice and paddy., with its branches spread all over the district, it was considered unnecessary to grant further dealing licenses to individual dealers for the same area".
On June 9, 1960 the applications earlier made by the petitioner to the High Court on June 7, 1960 were withdrawn and a fresh application was made on June 15, 1960, which, was directed against the order dated June 8, 1960.
On 943 August 10, 1960 the High Court again set aside the order and directed the licensing authority to act independently of instructions received from the Government and, to apply its mind to the merits of the application and, decide it in accordance with the relevant provisions of the Assam Foodgrains (Licensing and Control) Order, 1960.
Again, no orders were made by the licensing authority till September 8, 1960 in accordance with the directions of the High Court, and the petitioner made two applications on that date: one for enforcing the direction of the High Court, and the other for initiating proceedings in contempt.
These applications were admitted and it is stated that notices were served on the respondents, including the licensing authority, on that very date.
On September 13, 1960 the licensing authority made another order, again rejecting the application of the petitioner.
This order stated inter alia: "For the areas for which the application have been made the Assam Co operative Apex Marketing Society Ltd., has earlier.
applied for and has been granted license.
This is as relevant consideration under Clause 5 (b) of the Assam Foodgrains (Licensing and Control Order, 1960.
The stock of foodgrains avail able in the area can easily be procured by the party already given license.
Being a on operative, it has better facility in this respect.
As such, I do not find it necessary to grant license to the applicant.
The petition is, therefore, rejected".
This time instead of going to the High Court of Assam, the petitioner came here and filed his writ petition on October 17, 1960 (Writ Petition No. 303 of 1960).
Thereafter, certain proceeding ,took place in this Court to which we have earlier referred in the first paragraph of this judgment The amended writ petition as it now stands is directed against the order of the licensing authority dated April 11, 1961, by which it rejected the 944 application of the petitioner for a license for 1961.
The provisions of the Assam Foodgrains (Licensing and Control) Order 1960 are no longer relevant, because a fresh Order called the Assam Foodgrains (Licensing and Control) Order, 19,61, was made by the Governor of Assam.
We shall, hereinafter call this the Control Order, 1961.
It is necessary 'to read here cl. 5 of the Control Order, 1961.
Matters to be taken into consideration for granting a license.
In granting or refusing a license under this Order, the licensing authority shall, among.
other matters, have regard to the following, namely: (a) the stock of foodgrains available in the locality for which the license is required; (b) the number of persons who have applied for and those who have been granted licenses in respect of the foodgrains under this Order in the locality; (c) the business ordinarily carried on by the applicant; (d) the past activities of the applicant as a licensee or business man/firm; and (e) whether the applicant is a cooperative society.
It should be noticed that the proviso to old el.
5 was omitted and a new sub cl.
(e) was added.
This sub clause enables the licensing authority, in granting or refusing a license, to have regard to the consideration whether the applicant is a co operative society.
To complete the statement of facts, it may perhaps be observed that on November 10, 1960, the High Court rejected the application for proceeding against the opposite, parties by way of contempt, mainly on the ground.
that the order made on September 13, 1960, was not before it.
On behalf of the petitioner the order dated April 11, 1961, has been impugned on two main 945 grounds.
The first ground of attack is that sub cl.(e) of cl.5 of the control Order, 1961 is ultra vires,because it goes beyond the powers granted to the State Government under section 3 read with section 5 of the '.
The second ground of attack is that 'even if sub cl.
(e) of cl. 5 of the Control Order. 1961, is intra vires being within the powers granted to the State Government, it merely allows the licensing authority to take into consideration, among, other relevant matters, the circumstance that the applicant for a licence is a co operative society; it does not say that a monopoly right of procurement Should be given in favour of a co operative society by excluding all.
Others; therefore, it was not open to the, licensing authority to proceed on the footing as if that subclause bad created a right of monopoly in favour of co operatives.
The argument.
is that in the present case, the licensing authority instead of applying its mind to the provisions of cl. 5 of the Control Order, 1961, went by the instructions issued by the State Government to grant a. right of ,monopoly to cooperative societies and based its order on such, instructions. , in spite ' of directions to the contrary given by the High Court on earlier applications made by the petitioner.
In other words, it is contended that the impugned order was a mere" colourable exercise of power in the sense that instead of exercising the powers in accordance with the provisions of law by which the licensing authority had to be guided, it acted in, accordance with the instructions of the State Government and granted 'a monopoly in favour of co operative, societies, such monopoly not being contemplated by the provisions of cl. 5 of the Control Order, 1961; therefore., the impugned order was bad being without any legal authority or jurisdiction, and as it took away the right of the petitioner to carry on his trade, and furthermore made a discrimination against him for the purpose of granting a monopoly to respondent No. 6 not contemplated by law, it violated the 946 petitioner 's rights under articles 14 and 19 of the Constitution.
He is accordingly entitled.
to come.
to this Court under article 32 of the Constitution to have the order quashed.
The petitioner has also claimed that for the same reasons, the grant of a license in favour of respondent No. 6 should also be quashed.
On behalf of the respondents, the State of Assam, its officers, and the Assam Co operative Apex Marketing Society Ltd. (respondent No. 6), it has been urged that neither of the aforesaid two grounds of attack is valid.
On their behalf the argument is that sub cl.
(e) of cl, 5 of the Control Order, 1961, is within the authority and power granted to the State Government under section 3 read with a. 5 of the .
Secondly, it is contended that no monopoly has been granted to the Assam Co operative Apex Marketing Society Ltd., and the order of the licensing authority dated April 11, 1961 is based on the considerations referred to in sub cls.
(a) and (b) of el.
5 of the Control Order, 1961, and cannot be assailed on a petition under article 32 of the Constitution.
We proceed now to a consideration of the grounds of attack and the replies thereto.
As to the first ground of attack it must be made clear at the very outset that the vires of the have not been challenged before us.
What has been contended before us is that s.3 of the Act gives, certain powers to the Central Government, which powers the Central Government has delegated the State Government of Assam.
These powers it is contended, do not authorise the insertion of sub cl.
(e) of cl. 5 of the Control Order, 1961; in other words the argument is that whether the applicant for a licence is a, co operative Society or not has no relevance whatsoever to the objects fur which section 3 grants the powers to the Central Government or its delegate to make certain Orders.
Sub section (1) of a. 3 is relevant to this argument and reads: 947 "3 (1) If the Central Government is of *onion that it is necessary or expedient an to do for maintaining or increasing supplies of my essential commodity or for securing their equitable distribution and availability at fair prices it may by, order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
" Sub section (2) of section 3 which we need not read enumerates the various categories of Orders which can be made in exercise of the powers conferred by sub s.(1), but without prejudice to the generality of those powers.
Now, the argument before us is that the, powers under a. 3 can be exercised when the Central Government or its delegate is of opinion that it it; necessary or expedient to exercise the powers to achieve two objects: (a) for maintaining or increasing supplies of any essential commodity, or (b) for securing their equitable distribution and availability at fair prices.
It is contended that the circumstance whether the applicant for a licence is a co operative society or not has no connection what so ever with the aforesaid two objects and therefore, sub cl.
(e) of cl.5 of the Control Order, 1961 is not within the powers granted by a. 3 of the Act.
We cannot accept this argument in the very broad terms in which it has been stated.
We are astisfied that cl. 5 of the Control Order, 1961 does not provide for a monopoly in favour of cooperative societies.
The clause enumerates five matters and states that the licensing authority shall have regard to those matters in granting or refusing a license.
The five matters enumerated in the clause are not exhaustive of the matters which the licensing authority may consider; because the clause says that the matters enumerated therein are five ""among other matters" which the licensing authority may consider.
Obviously enough it is open to Ye licensing authority to 948 consider all matters relevant to, the 'grant or refusal of a license and the; five matters enumerated in the clause merely highlight some of those matters.
All that can be said is that sub cl.
(e) enables the licensing authority to,; prefer a co operative society in certain circumstances in the matter of granting a license; in other words, there may be cases or localities : where the considerations set out in sub cl.
(e) may override other considerations, in the matter of granting a license.
We do not think that sub cl.
(e) has any more far reaching effect.
Indeed the: learned Attorney General appearing for : the respondents conceded that sub cl.
(e) of cl.
45 did not have the effect of creating a monopoly in favour of co operative societies.
Proceeding, therefore, on the footing that sub cl.
(e) of el.
5 does not provide for the creation of a monopoly, can it be said that it is out.
,side the powers conferred.
on the State Government by section 3 of ' the ? It is no disputed before us that sub cls.(a) (a) to (d)fall within the powers conferred by section 3.
Matters such as the stock of foodgrains, available in the locality for which the license is required, the number, Of persons who have applied for and those who have been granted licenses in the locality, the business ordinarily carried on by the applicant, and the 'Past activities of the applicant as a licensee or businessman, are undoubtedly matter& which have; relation to the two objects mentioned in section 3.
Can it be.
said that the fifth matter mentioned in sub cl.
(e) viz., whether the applicant is a co operative society is completely ' unrelated to those two, objects? We are unable to say that it is.
In the counter affidavit filed on.
behalf of the respondents it has; been stated that cooperative societies have better facilities for procuring foodgrains and are in a position to ensure scheduled prices to the farmers who, grow paddy.
It has been further stated that amongst the cooperative societies, axe primary, societies which 949 consist of the growers of paddy there are also cooperative societies called supply co operatives which are in a position to eliminate middle man 's profits.
In para.
4 it was stated that the National Development Council decided that the State should take over wholesale trade in foodgrains with a view to maintaining price levels which are fair to the producer and the consumer and reduce, to the minimum the disparity between the prices received by the farmer and the prices paid by the consumer throughout the year.
It was also decided that an adequate number of primary marketing societies should be set up and linked with village cooperatives which should serve as agencies for collection and sale of foodgrains at assured price,% at the village level.
The affidavit then stated In view of the decision of the National Development, Council, the Government of Assam in consultation with their State Food Advisory Council decided that in making procurement of rice and paddy in the State, preference should be given to the co operative societies wherever they have resources and facilities.
We are of the view that by reason of the position which co operative societies may occupy in the village economy of a particular area,, it cannot be laid down as a general proposition that sub cl.(e) of cl 5 of of the Control Order, 1961, is unrelated to the objects mentioned in section 3 of the .
There may be places or areas where co operative societies are in a better position for maintaining or increasing supplies of rice and., paddy and even, for securing their equitable distribution and availability at fair prices.
We must, therefore repel the very broadly stated contention of the learned counsel for the petitioner that sub cl.
(e) of cl. 5 of the Control Order, 1961, can have no relation whatsoever to the two objects mentioned in section 3 of the .
On behalf of them petitioner reliance 950 was placed on the decision in Ramanlal Nagardas vs M. section Palnitkar (1).
That was a case in which the validity of State action in entrusting wholesale distribution of sugar which is an essential commodity under the Essential Com modities Act, 1955, to Co operative Societies only and excluding other dealers holding similar licenses like the co operative 'societies from such distribution, was challenged and adore for consideration.
It was held that a State could make a classification for the purpose of@ achieving particular legislative objects but the classification must satisfy two conditions : (1) it must be founded on intelligible differentia, and (2) the differentia must have a rational relation to the objects sought to be achieved.
The question was considered from the point of view of article 14 of the Constitution and it was held that the action of the State Government in entrusting wholesale distribution of sugar to cooperative societies to the exclusion of other licence holders amounted to a discrimination which violated the right guaranteed under article 14.
The principles underlying article 14 of the Constitu tion are now well settled and have been enunciated and explained in a number of decisions of this Court and we consider it unnecessary to refer to those principles in detail.
In the case under our consideration no discrimination has been made between one class of license holders and another class of license holders as in the case of Ramanlal Nagardas V. M. section Palnitkar (1).
What has happened in the present ' case is that licenses have been granted only to cooperative societies and a license has been denied to the petitioner, the licensing authority proceeding on the footing that a monopoly must be created in favour of co operative societies.
A discrimination has indeed taken place 'as against the petitioner, a discrimination which is not justified by the 'Provisions of cl. 5 of the Control Order, 1961.
In dealing with the application of the petitioner the licensing authority (1) A. I. R. 1961 Guj.
38. 951 has made, a, discrimination which is met justified by 5.
That would take us to the second argument of the learned counsel for the petitioner, but on his first argument the decision in Ramanlal Nagardas vs M. section Palnitkar (1) is of no assistance.
Sub clause (e) of el.
5, we have already stated, enables the licensing authority to give preference to a co operative society in certain circumstances; but it does not create a monopoly in favour ;of co operative societies.
The preference given has a reasonable relation to the objects of the legislation set out in section 3 of the Act; therefore, sub cl.
(e) of cl. 5 of the Control Order, 1961, cannot be held to be bad on the ground of class legislation but the passing of an order under the sub clause for a purpose not contemplated by it will amount to discrimination and denial of the guarantee of equal protection of the law.
This brings us to the second argument urged on behalf of the petitioner and here we think that the learned counsel for the petitioner is on much surer ground.
It was open to the licensing authority to give preference to co operative societies, if it was of the opinion that granting a license to a co operative society in a particular locality would facilitate the objects of section 3 of the Act.
This is not what the licensing authority did.
He repeatedly refused a license to the petitioner, for the only reason and purpose of granting a monopoly to co operative societies.
In other words, the discrimination that has been made by the licensing authority is really in the administration of the law.
It has been administered in a discriminatory, manner and for the purpose of achieving an ulterior object, namely, the creation of a monopoly in favour of co operatives, an object which, clearly enough, is not within sub cl.
(e) of el.
5 of the Control Order, 1961.
We have quoted earlier the various orders which the, licensing authority had passed.
Those orders clearly show that the licensing authority refused a licence to the (1) A.I.R. 1961 Guj.
952 petitioner not on grounds referred to in sub cls.(a) and (b) of cl. 5 but on the ground ' that the State Government had decided to introduce a right of monopoly procurement of paddy in favour of co operative societies and therefore, no licenses should be granted to individual dealers other than cooperative societies.
Judged against the background of facts to 'which we have earlier referred in this Judgment, the impugned order dated April 11, 1961 appears to us to have been based on the same ground, namely, the creation of a monopoly in favour of co operatives, even though the order refers to existing licenses and the quantity of foodgrains available in the locality.
In the course of the hearing before us, the case was adjourned in order to give the parties an opportunity of filing necessary affidavits to show whether individual dealers other than co operatives have been completely excluded in the whole of the State in the matter of dealing in paddy.
The affidavits show that private dealers have been completely excluded.
In the affidavit filed on behalf of respondent No. 1, it has been stated in para.
4: "It is not denied that in the year 1961 licenses for the procurement of paddy have been issued to the co operatives in all the paddy producing districts in Assam." To show however that no monopoly hag been created in favour of a particular co operative society like respondent No. 6, it has been stated that a number of co operative societies have been or are being granted licenses for the procurement of paddy. ' In our view these statements in the affidavits filed on behalf of the respondents show only one and one object viz., creation of a monopoly in favour of cooperatives.
To achieve that object the State Government has resorted to an indirect method.
Instead of making an Order authorising such monopoly (if the State was 953 competent to make such an Order under the , as to which we express no opinion), it has chosen to adopt the indirect method of issuing instructions to the licensing authorities in all the districts to grant licenses to co operatives only.
The vice of the impugned order lies in the licensing authority accepting such instructions and passing an order in accordance there with.
The duty of the licensing authority was to pass orders in accordance with el. 5 of the Control Order, 1961.
Instead of doing that.
it passed an order in accordance with the instructions given to it on behalf of the State Government, instructions which appear to us to be not in consonance with sub cl.(e) of el. 5; because sub cl.
(e) contemplates a preference to co operative societies in certain circumstances, but not a monopoly in their favour.
We accordingly hold that the impugned order is bad as violating the rights of the petitioner guaranteed under articles 14 and 19 of the Constitution.
We must, therefore, quash the order of the licensing authority dated April 11, 1961.
We must also quash the order by which the licensing authority granted a licence in favour of respondent No. 6.
The licensing authority must now consider the application of the petitioner for a license for the year 1961 on merits along with the application , of respondent No. 6 and such other applications as may be still pending.
In dealing with these applications the licensing authority must have regard to the provisions of cl. 5 of the Control Order, 1961, and such other provisions of law as have a bearing on them, in the light of the observations made in this judgment.
it would be the duty of the licensing authority to ignore all instructions which are not in consonance with the provisions of law by which it is to be guided As the year 1961 will come to an end within a few months.
, the applications should be dealt with as expeditiously as possible so that the right of the petitioner may 954 not be rendered infructuous by reason of the delay made in disposing of the applications.
Before we part with this case we express our deep concern over the manner in which the State Government or its officers have issued instructions in the matter of granting ' of licenses, instructions which clearly ' enough are not in consonance with the provisions of law governing the grant of such licenses.
We doubt the wisdom of issuing executive instructions in matters which are governed provisions of law; even if it be considered necessary to issue instructions in such a matter,, the instructions cannot be so 'framed or utilised as to override the provisions of law.
Such a method 'Will destroy the very basis of the rule of law and strike at the very root of orderly administration of law.
We have thought it necessary to refer to this matter because we feel that the instructions which the State Government or its officers have issued in the matter of granting of licenses for the procurement of paddy are not in consonance with the provisions of el.
5 of the Control Order 1961, In the result the petition is allowed with costs and the necessary orders should now issue as directed above.
SARKAR J.
The petitioner is a citizen of India and carries on business as dealer in rice and paddy in the State of Assam.
Since 1958, dealing in rice and paddy was controlled in that State by Orders made by the State Government from time to time under the by virtue of powers delegated to it by the Central Government under section 5 of that Act.
These Orders here.after called Licensing Orders,, provided that no person could engage in any purchase, sale or storage for sale of any foodgrains, which included rice and paddy in wholesale quantities except, under and in accordance with the terms and condition of a licence business involving issued thereunder.
Purchase or, sale in wholesale quantities was defined 955 as purchase, or sale of quantities exceeding ten maunds in any one transaction.
The petitioner had obtained a license to deal in paddy for the year 1958.
It is not clear whether he had obtained a license to do so for 1959.
With these years, however, this case is not concerned.
On January 28, 1960, the petitioner had applied under the Licensing Order then in force for a license to deal in paddy in Kamrup district: of Assam for the year 1960.
His application was refused by an order made on February 17, 1960 on the ground that it could not be considered as the Co operative Apex Marketing Society had been given the right of monopoly purchase in Kamrup district.
The petitioner then moved the High Court of Assam under article 226 of the Constitution to quash this order.
On April 27, 1960, the High Court delivered judgment quashing the order on the ground that the authority concerned was bound to ;consider the petitioner 's application for licence and had failed to do so.
The High Court issued a writ of mandamus directing that the petitioner 's application be considered on its merits.
As the licensing authority did not consider the petitioner 's application till June 7 1960, the latter on that date moved the High Court again for enforcement of the writ issued.
On receipt of the notice this motion, the licensing authority passed an order on June 8, 1960 again refusing to grant the petitioner the licence.
This order, stated, "Your petition is considered.
As the Assam co operative Marketing Society has already been ' granted a licence to deal in rice and paddy with branches spread all over this district, it is considered unnecessary to grant further dealing licences to individual dealers for the same area.
Hence the petition is rejected.
" The petitioner thereupon dropped his motion to the High, Court of Assam of June 7, 1960 and moved the High Court afresh under article 226 against the order of June 8, 1960 refusing him the licence 956 and the High Court on August 8, 1960, quashed it on the ground that the licensing authority had to act in a quasi judicial capacity and that it bad decided the case on the instructions of the State Government without considering for itself the merits of the case in terms of the Licensing Order.
The authority was again directed to decide the case in a quasijudicial capacity.
The licensing authority not having taken up for decision the petitioner 's case for the grant of licence as directed by the High Court, he moved.
the High Court on September 8, 1960 for appropriate reliefs.
On receipt of the notice of this motion the licensing authority passed an order on September 13, 1960, again refusing to grant licence to the petitioner and certain other private dealers.
The order stated, "For the areas for which the applications have been made the.
Assam Co operative Apex Marketing Society has earlier applied for and has been granted licence.
This is a relevant consideration under el.
5(b) of the Assam Foodgrains (Licensing and Control) Order, 1960.
The stock of foodgrains available in the area can easily be procured by the party already given the licence.
Being a Co operative Society it has better facility in this respect.
As such I do not find it necessary to grant licence to these applicants.
The petitions are therefore rejected".
Thereupon the High Court on November 10, 1960, made an order on the petitioner 's aforesaid motion of September 8, 1960 discharging the rule as the order asked for had been made.
It observed that the order of September 13, 1960 was not before it and it was competent to say whether that order was in consonance with its order of August 8, 1960.
It also observed that it did not find sufficient reason to take any action against the licensing authority for the delay in the matter of the disposal of the application for licence.
Before proceeding further I would like to point out that the Assam Foodgrains (Licensing and 957 Control) Order, 1960 being the Licensing Order by which the petitioner 's application for licence for 1960 was governed did not contain any provision enabling any preference to be given to a co operative society in the matter of the grant of licence.
I now come to the present petition.
It was ;moved in this Court by the petitioner under article 32 of the Constitution challenging the validity of the order of the Licensing authority dated September 13, 1960, and asking that the licence granted to the Assam Co operative Apex Marketing Society be declared illegal and for an order directing the licensing authority to consider the applications for licences according to the provisions of,the Licensing Order, 1960.
The petition came in for hearing on February 2, 1961.
By that date the year for which the petitioner had asked for a licence had expired and the Licensing Order, 1960 had been replaced by another Order of 1961.
In the result the petition bad become substantially infructuous.
The petitioner, therefore, suggested to this Court that he would make an application for a licence for the year 1961 and in the meantime the petition might stand adjourned.
An order was thereupon made adjourning the petition sine die.
Thereafter the petitioner on February 4, 1961, made a fresh application for licence for dealing in paddy for the year 1961.
An order was made by the licensing authority on this application on April 1 1, 1961, in these terms : "Having regard to the existing licences in these areas (Mangaldai and Gauhati), and the quantity of food grains available therein,an further licence,, would be superfluous." In the result the petitioner was refused licence for the year 1961.
Thereafter, the petitioner under orders obtained from this Court amended hi,$ petition and now seeks to challenge the.
order of April 11, 1961.
The respondents to this petition axe the State of Assam and some of its officers including the licensing, authority 958 concerned, as also.
the Assam Co operative Apex Marketing Society, hereafter called the Apex Society.
As I have already said, the application for licence for 1961 was governed by the Licensing Order, 1961.
The dispute in this case mainly turns on cl.
(e) of paragraph 5 of this Order.
That paragraph is in these terms: .LM15 "In granting or refusing a licence under this Order, the licensing authority shall, among other matters, have regard to the following, namely: (a) the stock of foodgrains available in the locality for which the licence is required; (b) the number of persons who have applied for and those who, have been granted licences in respect of the foodgrains under this Order in the locality; (c) the business ordinarily carried on by the applicants (d) the past activities of the applicant as a licensee or business man/firm; and (e) whether the applicant is a cooperative society.
" It is not in dispute that in the areas to which the Licensing Order 1961, had been applied, licences to deal in paddy had been given to: various Co operative Societies which were subsidiaries of the Apex Society and no licence had been given to any private dealer.
The respondents say that these grants were duly made under cl.
(e) of paragraph 5 of the Licensing Order, 1961.
It is this action which forms the main grievance of the ,petitioner.
He puts his contentions on two grounds.
First, he says that cl.
(e) of paragraph 5 of the Licensing Order 1961 is ultra vires as it has no 959 relation, to, the object of the under which it was made.
Secondly, he says that in any event the Order has been applied.
in a discriminatory manner and with a view to create a monopoly in favour of the Apex Society to deal in paddy and the petitioner 's fundamental rights under articles 19(1)(g) and 14 have thereby been violated.
It does not seem to me that either of these two contentions is well founded.
I shall first consider whether paragraph 5(e) of the Order is ultra vires the Act.
Now it is important to note ,that the validity of the Act is not challenged.
It would follow that if the Order made under the Act is not ultra vires, it would be perfectly valid.
It is section 3 of the Act which enables the Orders to be made.
That section so far as relevant is in these terms section 3 (1).
If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting the production, sup ply and distribution thereof and trade and commerce therein.
The object of the Act, therefore, is to maintain or increase the supplies of essential commodities which include foodgrains and to secure their equitable distribution and availability at fair prices.
Clause (e0 of paragraph 5 of the Licensing Order, 1961 certainly allows a co operative society to be Preferred.
in the matter of a grant of licence.
The question then is, would the object of the, Act be achieved if the trade in paddy is given to co operative societies ? I think it would.
A co operative society is one which has as its object the promotion of the, economic interests of its members in accordance with co operative principles : see section 4 of the 960 .
A society carries on business in accordance with co operative principles when it trades with its own members, the profit motive not being paramount in such business.
When, therefore, a licence to purchase paddy is given to a co operative society of growers, what happens is that the seller sells to a body of which he is a member.
The result is the virtual elimination of the middleman and a consequential reduction in the price.
The following observation,% from the judgment of this Court in Narendra Kumar vs The Union of India (1) are, to my mind, very apposite in the present context : "That middleman 's profits increase the price of goods which the consumer has to pay is axiomatic ' " (p. 389).
,,It has therefore been the endeavour at least in modern times for those responsible for social control to keep middlemen 's activities to the minimum and to replace them largely by co operative sale societies of producers and co operative sale societies of the consumers." (p. 390).
Therefore, I feel no doubt that if the purchase of paddy is left to growers co operatives and that is what cl.
(e) of paragraph 5 aims at rice,, which is husked paddy, can reasonably be expected to be made available to the consumers at a fair price.
That would serve the object of the Act and the clause cannot, therefore, be said to be ultra vires the Act.
Then it is said that cl.
(e) of paragraph 5 would result in creating a monopoly in favour of co operative societies and that would be illegal and also outside the object of the Act.
This contention also seems to me to be ill founded.
It seems to me that if paragraph 5 had contained only cl.
(e) directing preference being given to co operative societies in the matter of grant of licences and that is the basis on which the present contention is advanced that would not have made it bad.
The question (1) 961 of creating a monopoly does not really arise in such a case.
The Order may then allow one class only, namely, co operative societies, to do the business.
That would, as I have already stated, advance the object of the Act.
It would also however amount to a prohibition of others doing the business.
The only question then would be whether such prohibition would be reasonable under article 19(6).
That is how the matter appears to have been considered by this Court in two cases to which I will now refer.
The first is the case of Narendra Kumar(1) earlier mentioned.
There an order called the "Non ferrous Metal Control Order, 1958" had been issued under section 3 of the , as the Licensing Order now under consideration also was Clause (4) of the order there considered provided that no person could acquire any nonferrous metal except under a permit issued by the Controller in accordance with such principles as the Central Government might from time to time specify.
Subsequently, the Central Government enunciated certain principles for the grant of these permits in a certain communication to the Chief Industrial Adviser.
Under these principles, no permit could be issued to a dealer but it could only be issued to certain manufacturers.
The result was that the dealer 's trade was totally prohibited and only certain manufacturers were eligible for permits to carry on the trade of rolling non ferrous metals.
Certain dealers moved this Court under article 32 for a declaration that el.
(4) read with the principles formulated by the Government was bad as offending article 19(1)(f) and (g).
This Court held that (p. 387) : "It is reasonable to think that the makers of the Constitution considered the word "restriction" to be sufficiently wide to save laws 'inconsistent ' with article 19(1), or "taking away the rights ' conferred by the (1) ; 962 Article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the clause.
There can be no doubt therefore that they intended the word restriction ' to include cases of 'prohibition ' also.
The contention that a law prohibiting the exercise of a fundamental right is in no case saved, cannot therefore be accepted.
" Having considered the facts of the case, the Court came to the conclusion that el.
(3) of the Order, the legality of which also had been challenged, and el.
(4) were valid provisions.
It observed that, (p. 390): "It must therefore be held that el. 3 of the Order.
even though it results in the, elimination of the dealer from the trade is a reasonable restriction in the interests of the general public.
Clause 4 read with the principles specified must also, be hold for the same reason to be a reasonable restric tion.
" I ought here to point out that the principles enunciated by the Government were held to be of no effect as they had not been issued in compliance with sub sections
(5) and (6) of section 3 of the, and on that basis petition was allowed and a writ was issued restraining the Union from giving effect to el. 4 of the order so long as the principles governing the issue of permits were not duly specified.
This however does not affect the force of the observations that I have earlier read from the judgment in the case.
It seems to me that these observations fully apply to the present case.
The order read with the policy statement though it resulted in a complete prohibition in trading by dealers and in the creation of what the petitioner would call a monopoly in favour of certain manufacturers was hold to be good as a reasonable restriction on the 963 dealer 's right to trade under article 19(6) and the Writ was: issued only because the formalities required for specifying the policy statement had not been complied with.
There is no defect in the issue of the Licensing Order, 1961, with which the present case is concerned.
Therefore, the only question would be whether such a prohibition of the trade of the dealers like the petitioner, if any, by the Licensing Order, 1961 would be reasonable in the circumstances of this case.
, The other case to which I wish to refer is Glass Chatons Importers & User 's Association vs The Union of India (1) decided by this Court on April 10, 1961.
That case arose out of a petition under article 32 by certain importers of glass chatons.
There, the Central Government had issued an order under the Import and Export (Control) Act, 1947, called the Imports (Control) Order, 1955, prohibiting the import of glass chatons except under a licence.
Paragraph 6 of the Order laid down a number of grounds on which the Central Government or the Chief Controller of Imports and Exports might refuse to grant a licence or direct any other licensing authority not to grant a licence.
The ground mentioned in el.
(h) of this paragraph was ,if the licensing authority decide to canalise imports and the distribution thereof through special or specialised agencies or channels.
" It appears that since 1958, licences had been granted to the State Trading Corporation.
No applications for licences had been, made by the petitioners or any other trader at any time since 1957.
It was however contended that so long as paragraph 6(h) of the Order remained, it was useless for the private traders to apply for licences.
The argument advanced on behalf of the petitioners was that paragraph 6(h) was void being in contravention of article 19(1)(f) and (g).
In regard to this argument this Court observed: (1) (W. P. 65 of 1959, unreported).
964 "It is obvious that if a decision has been made that imports shall be by particular agencies or channels the granting of licence to any applicant outside the agency or channel would frustrate the implementation of that decision.
If therefore a canalization of imports is in the interests of the genera l public the refusal of imports licences to applicants outside the agencies or channels decided upon must necessarily be hold also in the interests of the general public.
The real question therefore is : Is the canalization through special or specialized agencies or channels in the interests of the general public." The Court held that it was unable to accept the argument that a decision that imports shall be canalised is per se not a reasonable restriction on the right to trade.
On the facts of the case, the Court took the view that a decision to canalise imports of glass chatons was in the interest of the general public.
In this case, it had been contended that the Government was creating a monopoly in favour of the State Trading Corporation.
The Court hold that the period of permits granted to the State Trading Corporation having already expired, the question did not really arise.
But, as would have been noticed earlier, the Court really dealt with the same contention in deciding the validity of paragraph 6(h) of the Order.
This decision lends equally strong support to the view that preference directed to be given by cl.
(e) of paragraph 5 of the Licensing Order with which we are concerned to co operative societies, would not necessarily render it invalid.
I feel no doubt on the facts of the present case that a preference to co operative societies even if that resulted in the dealers being prevented altogether from dealing in paddy, would, be a reasonable restriction on the latter 's right of trade.
Assam is a deficit State in foodgrains.
It is the 965 duty of the State Government to see that the people living within its boundaries are supplied with adequate foodgrains and that at a reasonable price.
The If paddy is procured for the use of the consumers in the State through a co operative society, there is good reason, as already stated, to think that rice at a reasonable price would be available to the people of Assam.
I will later in detail discuss the structure and the activities of the co operative societies to whom licences had been granted.
What I will have to say there will amply establish that it was a reasonable step to have taken to put the trade in charge solely of the co operative societies.
I turn now to the petitioner 's second contention, namely.
that cl.(e) of paragraph 5 has been worked in a discriminatory manner so as to create a monopoly in favour of the Apex Society.
The first thing that I wish to observe is that licences have not been given for the year 1961 to the Apex Society but they have been given to a large number of primary co operative societies of growers.
I find it difficult, in any case, to appreciate how this can be said to create a monopoly.
It may amount to a prohibition of trade by some persons.
That however is a different matter with which I have already dealt.
I may state here that it appears that in 1960 the licences had been issued to the Apex Society, but that is not the situation now.
Whether what was done in 1960 was strictly legal or not is not a question that now arises, for we are no longer concerned with the licences for 1960.
I Before proceeding further, I think it right to I say a few things about the co operative societies with which we are concerned.
About 1957, the Assam Government sponsored the formation of the Apex Society.
I would like to remind here.
that it is one of the directive principles of the Constitution that co operative societies should be encouraged.
Now, the structure of the Apex Society is like a pyramid.
It appears to have three tiers.
On the top is the Apex Society.
Under it 966 come various.
primary marketing Co operative societies.
At the bottom rung are a large number of primary co operative service societies.
The membership of the marketing, societies consists mostly of cultivators and service societies, and of the service societies, mostly of cultivators.
The function of the Apex Society appears to be to co. ordinate the working of the subsidiary societies and to obtain moneys from the Co operative Apex Bank and there out make advances to the cultivators through the subsidiary societies, to help them in their cultivation.
The service societies procure from the growers the paddy grown by them I they can spare and realise the moneys advanced to them out.
of the price of the paddy purchased.
The money realised is duly passed on to the Apex Society.
The paddy collected is sold by the service societies to the marketing societies.
The marketing societies in their turn deliver part of the paddy to the Government for creating a buffer stock and the remaining quantity to mills for milling into rice, in both cases according to the directions of the Government.
The benefits derived from the whole scheme are obviously very large.
The middlemen are eliminated.
The growers being themselves members of 'the societies, participate in their profits whatever they are.
:This helps to keep down the price because a service society in passing on the paddy to the marketing society charges very little by way of profit and that profit is shared by the groweres who are its members.
This enables the growers to sell at a comparatively lower price.
The growers have further the advantage of loans from the Apex Society to help them in the Work of cultivation; these loans can be easily advanced and on liberal terms because their repayment is secured by.
,the process of purchase of the produce through the, service societies.
It would he reasonable to think that this.
would encourage cultivation and result in larger quantities of foodgrains , being produced.
That would also help to achieve the 967 object of the Act It may further be pointed out that each of these societies is a body corporate see s.18 of the Co operative Societies Act, 1912.
The societies form a net work over the entire surplus grain producing area of Assam, each working in its own area.
, A vast number of growers of foodgrains are the members of the primary.
marketing and service societies.
It is to these societies that the licences had been issued of which, a grievance is being made by the petitioner.
It appears that after the Apex and the subsidiary societies had been formed, the State Government with the concurrence of the Central Government decided on a policy of procuring paddy in certain specified areas only through these societies.
The State Government thereupon issued instructions to certain officers at the end of 1959 at procurement of paddy for the Kharif year 1959 60 would be made through the co operative societies.
It may be that it was for this reason that the licensing authority had stated in its order of February 17, 1930, earlier mentioned, that the petitioner 's application for a licence could not be considered.
I have now to remind that the Licensing Order, 1960 did not contain any provision enabling preference 'being given to a co . operative society in the grant of a licence.
This case however is not concerned any more with regard to a licence for the year 1960 or the validity of any order of the licensing authority refusing to grant the petitioner any licence for that year.
Returning to the contention that the power under paragraph 5 (e) of the Licensing Order had been exercised in a discriminatory manner, I wish first to observe that under the Order which I have already held to be good, the authority concerned in granting the licences was entitled to prefer a co operative society, and this is what, it has ,done.
Though the result may have been to prevent the petitioner from carrying on, the trade of purchasing and selling paddy, that, in my view is, in the 968 circumstances of this case, a reasonable restriction on his ' right to trade for that was necessary to secure for the people of Assam supply of foodgrains at a reasonable price and in adequate quantities: I have very grave doubts if the licensing authority was intended to act in a Quasi judicial capacity in the matter of granting licences.
It has to be remembered that the question before it was not so , much of the competing rights of various applicants or of any is between an applicant and the State.
The duty of the licensing authority was to advance the object of the Act in terms of the Licensing Order.
Its main consideration has to be to see that the licences granted by it helped to make foodgrains available at a fair price to the people of Assam.
The Act gave the powers for that purpose.
It is because this purpose is legitimate that the resultant prohibition of trading by private dealers is also legitimate.
I believe that the two cases I have earlier mentioned proceeded on the basis that the licensing authority was not a quasi judicial officer.
It is not necessary for me however to pronounce finally on this question.
It was contended that the licensing authority in granting the licence to the co operative society had only carried out the directions of the Government and had not acted independently.
I find no basis for this contention apart from the bald allegation of the petitioners which is denied by the respondent.
N directions by the Assam Government for the year 1961 have been produced.
The instructions to which I have earlier referred requiring the licence to be given to the co operative societies were confined to the year 1959 60.
That had no force in regard to the year 1961 with which we are concerned.
Those instructions cannot be taken as operating for all time to come for then the licensing authority 's order granting licences to a co operative society in future years will always have 'to be held to have been made under these instructions.
I am unable to take such a view of the matter.
As 969 already stated, the High Court had by its Order of August 10, 1960 asked the licensing authority to proceed in a quasi judicial manner.
There is no reason to think that the licensing authority had not observed this direction of the High Court.
It also seems to me reasonable to think that the Assam Government inserted cl.
(e) in paragraph 5 of the Licensing Order, 1961 in view of the judgments of the High Court of Assam to which I have earlier referred.
The Assam Government obviously intended that the licensing authority would in view of cl.
(e) give preference to the co operative societies.
Furthermore, section 4 of the Act provides that an order made under section 3 conferring powers on any officer or authority may contain directions to him as to the exercise of such powers.
In my view, for the reasons earlier stated, a direction in the Licensing Order to give preference to co operative societies would not be bad.
It seems to me that cl.
(e) of paragraph 5 of the Licensing Order, 1961 really amounts to such a direction.
It was not necessary after the Licensing Order, 1961 for the Government of Assam therefore to give any other direction to the licensing authority.
I do not think any question of violation of article 14 can be seriously pressed.
If the duty of the licensing authority was quasi judicial in its nature, then it is difficult to appreciate how it can be said that its decision would offend article 14.
In any case, it seems to me quite clear that the co operative societies form a class by themselves and a provision giving preference to such a class, would be a good provision because the object of the Act would be better served thereby for the reasons earlier mentioned; such provision would have a clear nexus with the object of the Act and therefore satisfy the test of article 14.
Looking at the matter from any point of view it seems to me that the Order of the licensing authority giving preference to the co operative 970 Societies is not open to any objection.
In my view that was a fair Order to have been made in the circumstances of this case.
I would for these reasons dismiss this petition.
MUDHOLKAR, J.
I agree with the judgment delivered by Sarkar, J. By Court In accordance with the opinion of the majority this Writ Petition is allowed with costs.
Petition allowed. | In exercise of the powers conferred by section 3 of the: Essential commodities Art, 1955, the Assam Government made the Assam Foodgrains (Licensing and Control) Order, 1961.
This Order provided that no person could do business in foodgrains including, rice and paddy, in wholesale quantities except under a licence issued thereunder.
Clause 5 of, the Order laid down in sub.
(a) to (e) matters which the licensing authority shall, among other matters, which have regard to in granting or refusing a license sub cl.
(e) being whether the applicant is a co operative society".
In 1959, directions had been issued to all, licensing authorities by the Government that the rights of monopoly procurement had been given to Apex Co operative Society.
The petitioner applied for a licence but was refused in view of the provisions of sub cl.
(e) of cl. 5 of the Order.
The petitioner challenged the order refusing the licence on the grounds: (1) that sub clause (e) was ultra vires 937 as ' it was beyond the powers granted to the State Government under section 3 read with section 5 of the Act, and (ii) that sub cl (e) had been applied in a discriminatory manner with a view to create a monopoly in favour of the Apex Co operative Society.
Held, (per C.J., Das and Ayyangar, JJ.), that sub cl.
(c) of cl.
5 of the Order was not ultra vires section 3 read with section 5 of the Act, but the impugned,order rejecting the application of the petitioner was bad as it infringed the rights of the petitioner guaranteed under Arts, 14 and 19 of the Constitution.
Section 3 of the Act authorised the making of an order to achieve two objects, for maintaining or increasing supplies of essential commodities and for securing their equitable distribution and availability at fair prices.
Sub clause (e) of cl. 5 of the Control Order,, 1961, which enabled the licensing authority to ' prefer a cooperative society in certain circumstances in the matter of granting a licence, was not unrelated to the objects mentioned in s.3 of the Act.
A co operative society may, by reason of the place which it occupies in the village economy of a particular area, be in a better position for maintaining or increasing supplies of rice and paddy and even for securing their equitable distribution and availability at fair prices.
Ramanlal Nagardas vs M. section Palnitkar, A. I.R. 1961 Guj.
38, distinguished.
Sub clause (e) permitted the licensing authority to give preference to co operative societies in certain cases but it did not.
have the effect of creating a monopoly in favour of co operative societies.
In the present case the licensing authority refused licence to the petitioner for the only reason and purpose of granting a monopoly to co operative societies; it had administered the law in a discriminatory manner and for the purpose of achieving the ulterior object of creating a monopoly in favour of co operatives which object was not within sub cl.
(a), The licensing Authority was influenced, not by considerations mentioned in cl. 5 of the Order, but by the instruction issued by the ' State Government to grant licences to cooperatives only.
It was not proper for the, Government to issue instructions to the licensing authorities when they were required to act according to the provisions of law.
Per Sarkar and Mudholkar,JJ.
Sub clause (e) of cl. 5 of the Order served the object of section 3 of the Act to maintain or increase the supplies of essential 'commodities and to secure their equitable distribution and availability at fair prices and Was not ultra vires.
Even it the Order allowed only one class, namely cooperative societies, to do the business and prohibited others.
it would; still advance the objects, of, the Act; and the prohibition of the others.
doing the business would amount.
to, reasonable restrictions under article 19(6).
938 Narendra Kumar vs The Union of india, (ISM 2 S.C.R. 375 and Glass Chatons Imports a Users ' Association vs The Union of India, (W.P. 65 of 1959, unreported), relied on.
The licensing authority had not exercised its power under sub cl.
(e) in a discriminatory manner in the prevent case.
The authority was entitled to give preference to a co operative society and that is what it has done.
Though the result of this preference was to prevent the petitioner from carrying on his business, it was in the circumstances, a reasonable restriction on his right as it was necessary for securing foodgrains at reasonable prices and in adequate quantities.
There were no directions given, by the State Government in 1961 to licensing authorities to grant licences only to co operative societies and it could not be said that the licencing authority had only carried out the directions of the Government and had not acted independently.
In fact, the Order itself carried a direction in sub cl.
(e) to give preference to co operative societies.
The co operative societics formed a class by themselves and a provision giving preference to such a class better served the objects of the Act, and had a clear nexus with the object of the Act and did not offend article 14. |
N: Criminal Appeal No. 108 of 1971.
Appeal by Special Leave from the Judgment and order dated the 20th November, 1970 of the Allahabad High Court in Criminal Appeal No. 495 of 1968.
D. Mukherjee, U. K. Jha and U. P. Singh: for the Appellant.
D. P. Unival and o. P. Rana for the Respondent.
The Judgment of the Court was delivered by BEG, J.
The four appellants Daryao Singh, aged 46 years.
Birbal aged 50 years, Dharam Pal aged 29 years and Om Pal, aged 15 years, were tried, alongwith 14 others, for the offence of rioting in the course of which two murders were committed, on 7.6.1967, at about 6.30 a.m., on a path adjoining the field of the appellant Daryao Singh leading to village Parsoli from village Nirpura, in Police Station Doghat, in the District of Meerut.
The Trial Court acquitted eleven accused persons giving them the benefit of doubt and convicted seven including the four appellants.
Each of the accused persons was charged and convicted under Section 302, read with Sections 149, Indian Penal Code and sentenced to life imprisonment, in addition to charges and convictions under Section 149/324 and 149/34 I.P.C. and either under Section 147 or Section 148 I.P.C. depending upon the weapon alleged to have been used by an accused person.
589 The prosecution case revealed a long standing enmity between two groups of village Nirpura: one to which the appellants belonged and another to which Mukhtara and Raghubir, the murdered men, and the four other injured persons belonged.
As is not unusual, the origin of the hostility between the two sides seems to have been a dispute over cultivable land between collaterals who had some joint Khatas.
Asa Ram, P.W. 1, claimed to be in separate possession of some plots with his two brothers, including Raghubira (murdered), and his uncle Mukhtara (murdered) .
It was alleged by Asa Ram (P.W. 1) that Daryao Singh appellant wanted to take forcible possession of some land cultivated by him.
Daryao Singh and others had already filed partition suit which was pending at the time of the occurrence.
It appears that Hargyan, the father of the appellant Daryao, a first cousin of Mukhtara, the murdered man, had also been murdered in 1923 over a similar dispute.
Asa Ram (P.W.1), and Raghubira (deceased), Bija (P.W. 10) and Asghar (P.W 4) had been convicted and sentenced to life imprisonment.
They had been released on parole after five years ' imprisonment On the date of occurrence, Mukhtara, the murdered man, was said to be proceeding with Raghubir, who was also murdered, and Asa Ram, P.W.1, and Bija, P.W.10, all sitting in a buggi driven by Asghar, P.W.4, and Smt.
Jahani, P.W.3, the wife of Asa Ram, P.W.1, was said to be following the buggi at a short distance with some food for the party.
When this buggi reached the field of Daryao Singh, where a number of persons, said to be eighteen altogether, whose names are mentioned in the First Information Report lodged at Police Station Doghat at a distance of three miles from village Nirpura at 8.30 a.m., were sitting on the boundary.
These persons are alleged to have surrounded the buggi and attacked its occupants with balams and lathies shouting that the whole party in the buggi should be killed.
give occupants of the buggi, and, after that, Smt.
Jahani, who soon joined them, were injured.
Two of them, Mukhtara and Raghubir, died very soon after the attack.
It was alleged that Dharam Pal, Birbal and Daryao, appellants, and Nahar, Ajab Singh, and Ram Kishan, acquitted persons, were armed with balams, one Salek Chand was armed with a spade, and the rest with lathis.
A number of witnesses are said to have arrived in response to the shout of the injured occupants of the buggi.
The following injuries are shown to have been sustained by the victims of the attack: 1. MUKHTARA: "1.
Vertical abrasion, 1 1/2 in.
x 1/2 in.
On the head, 4 in.
above the middle of the left eye brow 2.
Transverse abrasion, 1 3/4 in.x3/4 in.
On the head, 5 in.
above the right eye brow.
Round swelling" 2 in.x2 in.
On the right side of the head, 1/2 in.
above the ear, there was a depressed fracture 2 in.x2 in.
underneath on the bone.
Transverse incised wound 1 1/2in.x1/2 in.xboneand brain deep on the head 1 in.
behind the middle of the right car.
Brain matter was coming out of the wound.
590 5.
Transverse incised wound 1 1/4in.x 1/2 in.
x bone deep on the A head 3 in.
behind the upper part of the right car.
The margins of injuries Nos. 4 and 5 were clear cut, smooth and well defined and angles on both the end were acute.
Round blue mark 2 in.x2 in.
On the right shoulder portion.
There was swelling all over the head.
There was no reference of injuries Nos. 1 and 6 in the inquest report .
RAGHUBIRA 1.
Transverse abrasion 1/4 in.x1/2.
On the left ankle inner side.
Vertical punctured wound in.x1/3 in.x1/4 in.
On the back side, of the elbow, margins, clean cut.
smooth and wall defined and angles were acute.
Transverse lacerated wound on the head, 1 1/2 in.
x 2 in.
bone deep on the right side 3 in above the car.
Round wound on the head 4 1/2 in.
above the middle of the right eye brow with margins clean cut".
ASA 1.
Punctured wound 1/2 in.x1/4 in.x1/4 in.
On the left side of the chest with abrasions on the margins, 64 in.
below the axile.
Abrasion 1/2 in.x1/4 in.
On the left shoulder.
Abrasion 1/2 in.x1/4 in.
oblique, on the right side of the chest extending towards right shoulder from epigastrium.
Abrasion 1/4 in.x1/8 in.
On the inner side of the left hand I in.
above the wrist.
Abrasion 1/4in.x1/6 in.
On the right arm back side 3 in.
above the elbow.
Contusion 3/4 in.x1/2 in.
On the right side 3 in.
below the edge of the iliac crest.
Incised wound 1/2 in.x1/10 in.
x skin deep 1/2 in.
below the left eye.
" 4. SMT.
JAHANI: 1.
Lacerated wound 1 1/3 in.
x 1/2 in.
bone deep from front to backward 3 1/2 in.
above the left ear.
Contusion 4 1/4 in.x1 in.
On the left scapular region.
2 1/2 in.
below the shoulder.
Contusion 1 1/2 in.x1/4 in.
parallel to the earth extending from the upper and inner end of injury No. 2.
These injuries were simple and had been caused by some blunt weapon, like lathi and were about 6 hours old (fresh).
I had prepared the injury report exhibit Ka 16 at the time of examination.
It bears my signature and is correct." 591 5.
ASGHAR: 1.
Contusion 2 in.x1/4 in.x1/4 in.
going from front to back 31 in.
above the nose.
Punctured wound 1 in.x ' in.x 4 in.
On the left hand, outer side 2 in.
below the elbow.
BIJAI SINGH: 1.
Contused wound 1/2 in.x1/2 in.
x skin deep at the part above the nail of the thumb of right hand with contusion 1 1/4 in.
x1/2 in.
in the inner part of the nail.
Contusion 2 1/4 in.x3/4 in.
extending from the palm on the 1st and 2nd knuckles whereblood had clotted in an area of 1/2 in.
x1/4 .
On the palmer side.
Abrasion 1/2 in.x1/4 in.
On the back and anterior side of right hand, 3 1/2 in.
above the wrist.
" Injuries were found on the side of the accused on 3 appellants only.
They were as follows: (1) OM PAL: 1.
Lacerated wound 1/2 in.x4/10 in.x2/10 in.
on the inner side of left forearm 3 1/2 in.
above the left wrist.
Lacerated wound 2/10 in.x2/10 in.x6/10 in.
On the inner side of left forearm.
Abrasion 3/10 in.
X21 10 in.
On the upper r side of left forearm, 3 1/2 in.
above the left wrist.
" 2. DARYAO: "1.
Abrasion in.x3/10 in on the left shoulder in front side.
Wound with scab 4/10 in.x2/10 in.
On the left are outer side, 6 in.
below left shoulder".
BIRBAL: 1.
Lacerated wound 2 in.x3/10 in.
bone deep on the front , side of head.
Abrased contusion 1 in.x2/10 in.
On the left side of head, 3 in.
above the left ear.
Contusion 1/2 in.x4/10 in.
On the right side of head, 2 in.
above the right ear.
Abrasion 1/4 in.x1/4 in.
On the index finger of the right hand upper side on the middle phalux.
Abrasion 1/4 in.x1/4 in.
On the upper side at the root of the middle finger of right hand.
Abrasion 1/2 in.x1/10 in.
On the inner side of the lower portion of left fore arm, 3 in.
above the wrist.
Abrasion 3/10 in.x1/10 in.
On the inner side of left wrist.
592 8.
Lacerated wound 3/10 in.x1/10 in.x3/10 in.
an the A right at a distance of 31 in.
from side of thigh, anterior iliac spine".
It is significant that in answer to the last question put to Daryao Singh, appellant, in the Committing Magistrate 's Court, under Section 342 Criminal Procedure Code, whether he had nothing else to say, the first thing that came to his mind was that Asa Ram P.W.1, and Bijai, P.W. 10 and Raghubir (deceased) had killed his father about 15 years ago.
The defense case seemed quite absurd.
It was that, Asa Ram and Bijai and Asghar, after having killed Mukhtara and Raghubir, haul come and attacked the three injured appellants at the time and place given by the, prosecution.
Their defense witness, however, in an obvious attempt to explain the injuries of the three appellants, put forward the entirely new version that, when Asa, Bijai, and Asghar, were killing Mukhtara and Raghubir, the three injuries appellants had attempted to save the murdered men and were injured as a consequence.
The accused had even filed a First Information Report on these lines.
They unsuccessfully tried to prosecute Asa and Bijai and Asghar who could not, as the Trial Court and the High Court had rightly observed, be expected to run berserk suddenly and attack persons on their own side for no explicable reason.
The prosecution had, in addition to examining injured witnesses, mentioned above, produced Rattan Singh P.W.2, Kalu, P.W.9, and Lakhi, P.W.7, whose testimony was discarded by it on two grounds: firstly, because each one was shown to have some enmity with some accused person; and, secondly, because they were said to have been standing at a Harat nearly 400 paces away from where` according to the High Court, they could not have seen the occurrence.
If there was no obstruction to the range, of vision, and none was shown by evidence, these witnesses could at least make out the number of assailants from this distance as sunlight was there.
The prosecution evidence suffered from some quite obvious infirmities.
Each of the four injured eye witnesses, while naming each of the eighteen accused persons as participants in the occurrence and specifying their weapons, without any contradiction, had failed to assign any particular part to any of them.
Each injured witness said that all the eighteen accused persons, named in the First information Report, were assaulting the injured.
This was hardly consistent with either the medical evidence or the very short time the whole occurrence was said to have lasted.
It was physically impossible for all the eighteen accused persons to attack simultaneously each of the five victims.
However, we cannot interpret the impressions of rustic witnesses, sought to be conveyed through their statements` as though they were made in carefully drawn up documents calling for a literal interpretation.
It was likely that each of them had seen some acts of some assailants, but, due to natural discrepancies in their accounts, as each could only depose the part he had observed, each had been instructed to omit this part of his testimony.
That may explain how each consistently stated that all the accused persons were attacking 593 his or her party although he or she could not specify which accused attacked which victim.
From the manner in which each witness could, without making any mistake, name each of the eighteen accused persons, almost in the same order, and specify the weapon each carried, without any discrepancy, some tutoring could be suspected.
Nevertheless, both the Trial Court and the High Court had reached the definite conclusion that the party of assailants consisted of more than five persons.
It also found that this party was sitting on the boundary of the field of Daryao, apparently waiting with their weapons for the buggi, carrying Raghubir and Mukhtara and others., to reach the spot where they surrounded it and attacked.
It was clear, from the nature and number of injuries of both sides, which we have set out above in extenso, that the attacking party must have consisted of more persons than the party of the male victims who were five in number.
Even if these five victims were sitting in the buggi they were not all empty handed.
Some of them had lathis which they plied in self defence.
The number and location of injuries on both sides also indicated an attack by a group of persons which must have surrounded the party traveling in the buggi.
Even if two persons are engaged in stopping the buggi and there are two on each of the two sides of the buggi their number would be six.
Again, even if at least one person is assumed to be the assailant of each of the victims, in a simultaneous attack upon them, the number of such assailants alone would come to at least six.
It is, however, clear from the injuries on Mukhtara and Raghubir that each was attacked by more than one person because each had injuries with sharp edged weapons and lathis.
these facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than five.
The High Court however, after giving the benefit of doubt to four of the accused persons, on the ground that their cases did not differ from those of the others acquitted, came to the obviously correct conclusion that at least the four appellants before us must have taken part in the attack because they admitted their participation in the occurrence which took place at the time and place of the incident in which Raghubir and Mukhtara had lost their lives.
Three of the accused persons as already indicated, had received injuries.
On their own version, these injuries were sustained in the same occurrence.
If, therefore, the prosecution version about the broad character of the incident is correct, the only question which remained was: Against which accused person was the case of participation in the attack established beyond reason able doubt? The High Court came to the conclusion that the admissions of the four accused, corroborated by the injuries on the bodies of three OF them, left no doubt whatsoever that they were, in any case, among the assailants.
The others had merely been given the benefit of doubt lest some injustice is done by relying implicitly on partisan witnesses appearing in a type of case in which the innocent ale not infrequently sought to be roped in with the guilty who are, of course, not spared.
This did not mean that the total number of assailants was actually less than five as the learned Counsel for the appellants asked us to presume from the fact that fourteen out of the eighteen accused persons were actually acquitted.
594 It is true that the acquittal of an accused person does raise, in the eye of law, a presumption that he is innocent even if he was actually.
guilty.
But, it is only the acquitted accused person and not the convicted accused persons who can, as a rule, get the benefit of such a presumption.
The effect of findings on questions of fact depends upon the nature of those findings.
If, for example, only five known persons are alleged to have participated in an attack but the Courts find that two of them were falsely implicated, it would be quite nature; and logical to infer or presume that the participants were less than five in number.
On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding, based on good evidence and sound reasoning, that the participants were five or more in number.
Such a case is one of doubt only as to identity of some participants and not as to be total number of participants.
It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach whale the allegation of participation is confined to five known persons and there is doubt about the identity of even one.
But, where a large number of known persons (such as eighteen, as is the case before us), are alleged to have participated and the Court acts on the principle that it is better to err on the side of safety, so that no injustice is done to a possibly wrongly implicated accused, and benefit of doubt is reaped by a large number, with the result that their acquittal, out of abundant caution, reduces the number of those about whose participation there can be no doubt to less than five, it may not be really difficult at all, as it not in she case before us, to recall the conclusion that, having laggard to undeniable facts, the number of participants could not possibly be less than five.
We have, for the reasons given above, also reached the same conclusion as the learned Judges of the Allahabad High Court.
We wish that the High Court had itself given such reasons, which are not at all difficult to find in this case, so that its conclusion on the number of participants may not have appeared ratter abrupt.
Justice has not only to be done, but, as have been often said, must manifestly appear to be done.
Even if the number of assailants could have been less them five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 7.6.1967, shows pre planning.
Some Of the assailants had sharp edged weapons.
They were obviously lying in wait for the buggi to arrive.
They surrounded and attacked the occupants shouting that the occupants will be killed.
We do not think that more convincing evidence of a pre concert was necessary.
Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34, I.P.C. also to this case.
The principle of vicarious liability does not depend upon the necessity to convict a required number of persons.
It depends upon proof of facts, beyond reasonable 595 doubt which makes such principle applicable.
(See: Yehwant & Anr.
vs State of Maharashtra;(1) and Sukh Ram vs State of U.P.)(2).
The most general and basic rule, on a question such as the one we are considering, is that there is no uniform, inflexible or invariable rule applicable for arriving at what is really an inference form the totality of facts and circumstances which varies from case to case.
We have to examine the elect of findings given in each case on this totality.
It is rarely exactly identical with that in another case.
Other rules are really subsidiary to this basic verity and depend for their correct application OF the peculiar facts and circumstances in the context of which they are enunciated.
In Yeshwant 's case (supra), the question was whether the acquit(ah of an alleged participant, said to be Brahmanand Tiwari, for the murder of a man called Sukal, could make it impossible to apply the principle of vicarious liability to convict, under Section 302/34 I.P.C., Yeshwant, the only other participant in under.
This Court observed (at p.303): The benefit of this doubt can only go to the appellant Brahmanand Tiwari and not to the other accused persons 13 who were known well to each eye witness." Distinguishing Krishna Govind Patil vs State of Maharashtra (3) this Court said in Yeshwant 's case (supra) (at p. 302): "We do not think that this decision which depends upon its own facts, as criminal cases generally do, lays down any general principle that, where the identity of one of the participants is doubtful, the whole case must end in acquittal.
Such a question belongs to the realm of facts and not of law: ` The following cases were also cited before us: Dalip Singh & vs State of Punjab (4) Bharwad Mepa Dana & Anr.
vs State of Bombay;(5) Kartar Singh vs State of Punjab;(6) Mohan Singh vs State of Punjab;(7) Ram Bilas Singh & Ors.
vs State of Bihar(8) In the case of Ram Bilas Singh (supra) previous decisions of this Court on the question argued before us have been considered at some length and a passage from Krishna Govind Patil 's case (supra) was also quoted.
In none of these cases was it decided that where, out of abundance of caution, a large number of accuse(l persons obtained an acquittal with the result that the number of those whose participation is established beyond reasonable doubt is reduced to less than five, but, at the same time, it is clear that the total number of assailants could not be less than five, the convicted accused persons must necessarily get the benefit of doubt arising in the case of the acquitted accused persons.
A case like the one before us stands on the Same footing as any other case where there is certainty that the number of participants was not less than five but there is doubt only as to (1) [1973] I S.C.R. p. 291 @ 302 & 303.
(2) [1974) 2 S.C.R. p. 518.
(3) ; (4) ; (5) ; (6) ; (7) [1962] Suppl (3) S.C.R. 848.
(8) 596 The identity of some of the participants.
It has to be remembered that doubts may arise with regard to the participation of a particular accused person in circumstances whose benefit can only be reaped by the accused who raises such doubt.
Doubts may also arise about the veracity of the whole prosecution version and doubts about the participation of individual accused persons may contribute to the emergence of such doubts which may cover and engulf the whole case.
Never the less, if, as in the instant case, the Courts, whose duty is to separate the chaff from the grain, does hold that the convicted persons were certainly members of an unlawful assembly which must have consisted of more than five persons, we do not see any principle of law or justice which could stand in the way of the application of Section 149 J.P.C. for convicting those found indubitably guilty of participation in carrying out of the common object of an unlawful assembly.
The only remaining question arises from the age of Om Pal Which, at the time of trial, was found by the Trial Court to be about 15 years.
This means that Section 29 of the Uttar Pradesh Children Act, 1951, was applicable to the case.
This Section reads as follows: "29.
Commitment of child to approved school (1) Where a child is found to have committed an offence punishable with transportation or imprisonment, the Court, if satisfied on inquiry that it is expedient so to deal with the child, may order him to be sent to an approved school for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years or for a shorter period, the reasons for such period to be recorded in writing.
(2) Where prior to the commencement of this Act a youthful offender has been sentenced to transportation Or imprisonment, the State Government may direct that in lieu of undergoing or completing such sentence he shall, if under the age of sixteen years, be sent to an approved school, and thereupon the offender shall be subject to all the provisions of this Act as if he had been originally ordered to be detained in such school.
" This question was not raised earlier so that the Trial Court or the High Court may take the action it was open to the Courts to take after due inquiry.
Such action, if considered expedient, could only be to send the appellant to an approved school.
We may observed that, although the appellant om Pal was said to be armed with a lathi, no specific part was assigned to him by any prosecution witnesses.
He was bound, with the background of hostility between two sides and 597 the events mentioned above, to have been misled by the bad example of his elders.
No previous participation in such a case and no previous conviction was shewn against him.
We, therefore, think that appropriate action under Section 29 of the Children 's Act could have been taken in his case if the question had been raised in time.
We hope that the punishment he has already undergone has had a salutary effect in making him conscious of the gravity of the consequences of joining an unlawful assembly.
All that we can do now, in the circumstances of Om Pal 's case, is to recommend the remission of the remaining period of om Pal 's sentence to the authorities concerned.
Subject to the observations made above with regard to om Pal, we affirm the convictions and sentences and dismiss this appeal. | The 4 appellants were tried along with 14 others for the offence of rioting in the course of which 2 murders were committed at 6 30 a.m on 7 1967.
The prosecution revealed a long standing enmity between the tyo groups; one to which the appellants belonged and the other to which the deceased belonged.
The defence case was that people belonging to the group of the deceased killed the deceased and that thereafter they attacked the 3 injured appellants.
At the trial however, the defence witnesses stated that the 3 witnesses who were injured(l a(tempted to save the deceased and were therefore injured.
The prosecution evidence suffered from some quite obvious infirmitied.
Each of the 4 injured eye witnesses while naming each of the IX accused persons as participants in the occurrence and specifying their weapons without any contradiction had failed to assign any particular part of any of them.
Each injured eye witness said that all 18 accused persons were assaulting the injured.
I his was hardly consistent with the medical evidence.
The Trial Court acquitted 11 accused giving them the benefit of doubt and convicted 7 including the 4 appellants under section 302 read with section 149.
The High Court gave the benefit of doubt to all the accused except the 4 appellants.
The High Court came to the conclusion that the 4 appellants had taken part in The attack in view of the admission of the 4 accused about their participating in the occurrence corroborated by the injuries on the bodies of 3 of them.
On appeal by Special leave it was contended by the appellants that since 14 out of 18 accused persons were actually acquitted the Court must presume that total number of assailants was less than 5 and that they.
therefore cannot be convicted under section t 49 ^ HELD: 1.
It is true that the acquittal of an accused person does raise in the eye of law, a presumption that he is innocent even if he was actually guilty.
but it is only the acquitted accused person and not the convicted accused person who can as a rule get the benefit of such a presumption.
The effect of findings on questions of fact depends upon the nature of those findings 1 only five known persons are alleged to have participated in an attack; and the counts find that 2 of them were falsely implicated it would be quite natural and logical to infer or presume that the participants were less than 5 in number.
On the other.
hand if the court holds that the assailant were actually 5 in number but there could be a doubt as to the identity of 2 of the alleged assailants and therefore acquits 2 of them the others will not get the benefit of douht.
so long as there is a firm finding based on good evidence and sound reasoning that the participants were 5 or more in number.
Such a ease is one of doubt only as to identity of some participants and not as to total number of participants.
[594A C] 2.
It is true that there are some unfirmities in the prosecution evidence However the impression of rustic witnesses sought to he conveyed through their statements cannot be interpreted as though they were made in carefully drawn up documents calling for a literal interpretation.
[592 H] 588 3.
The number and location of injuries on both sides also indicate an attack by a group of persons which must have surrounded the party of the deceased persons travelling in the Buggi.
Even is 2 persons are engaged in stopping the Buggi and there are 2 on each side of the Buggi then the number would be 6.
Again, even if one person Is assumed to be the assailant of each of the victims in a simultaneous attack upon them the number of such assailants alone would come to at least 6.
The deceased had injuries with sharp edged weapons and lathis.
It is therefore clear that each one was attacked by more than one person.
These facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than 5.
[593 C E] 4.
Even if the number of assailants could have been less than 5 (which can the facts stated was really not possible) we think that the fact that the attacking party was clearly shown to have waited for the Buggi to reach near the field of Daryao in the early hours shows pre planning.
Some of the assailants had sharp edged weapons.
They were obviously lying in wait for the Buggi to arrive.
A more convincing evidence of a pre concert was not necessary.
Therefor if necessary.
we would not have hesitated to apply section 31 of I.P.C. also to this case.
The principle of vicarious liability does not depend upon the necessity to convict the required number of persons but it depends upon proof of facts beyond reasonable doubt which makes such a principle applicable.
[594 F H 595 A] Yeshwant & Anr.
vs State of Maharashtra [1973] 1 S.C.R. 291 It 302 303 at and Sukh Ram vs State of U.P. ; distinguished.
5.The age of appellant Om Pal at the time of trial was IS years.
Section 29 of the U.P. Children Act 1951 was applicable to the case.
This question was not raised either before the Trial Court or before the High Court.
Although Om Pal accused was said to be armed with a lathi no specific part was assigned to him by the prosecution witnesses He must have been misled by the bad example of his elders.
No previous participation in such a case and no previous conviction was shown against him.
The appropriate ac(ion under section 29 of the Children Act could have been taken in his case is the question had been raised in time.
The Court recommended the remission of the remaining period of Om Pal to the authorities concerned.
[548D H. 599A C] |
Civil Appeal No. 1827 of 1969.
Appeal by Special Leave from the Judgment and order dated the 28th November, 1968 of the Orissa High Court in O.J.C. No. 152 of 1964.
F.S. Nariman, A. G. Meneses, Sharad Manohar and J. B. Dada chanji, for the Appellant.
S.T. Desai and M. N. Shroff ' and R. N. Sachthey for Respondents 1 and 5.
Santosh Chatterjee and G. section Chatterjee for Respondent No. 4.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
The question of bonus for 16,000 workmen for the years 1958 59 and 1959 60 is still being fought out on preliminary points and this is the second time the matter has come to this Court.
The earlier decision is reported in ; Gammon vs Industrial Tribunal, Bhubaneshwar, Orissa & Ors.(1).
In August 1957 the Hindustan Steel Ltd., the 4th respondent in the appeal, hereinafter called the company, and the appellant, a partnership of a West German company and an Indian company, hereinafter called the contractor, entered into a contract for execution of the foundation and civil engineering work of the Hot and Cold Rolling Mills at Rourkela including the purification and other civil engineering work of the Hot and with the water supply to the Rolling Mills.
The contract was a cost contract with a target sum plus fixed overheads and fee, that is, the company was to pay to the contractor all costs of construction and in addition pay fixed overhead or the head office general expenses of the (1) ; 670 contractor plus a fixed fee.
The target sum for the work was Rs 66,294,000.
The overheads were D.M. 2,800,000/ plus Rs 2,120,000/ and the fee of Rs. 6,200,000/ .
The work was to be carried out as detailed in the drawings, bills of quantities, specifications and other written orders issued or to be issued by the company.
All payments in respect of wages and salaries and connected payments made two persons engaged upon the work as may be approved by the company, comprising wages of all operatives as well as all other payments connected with wages were to be paid by the company.
Any increase beyond the initial rates specified in Enclosure III to the contract was to be subject to the approval of the company and such approval was to be taken in respect of categories and not individuals.
Emoluments of site supervisory staff as well as all other payments connected therewith were also to be paid by the company.
Payments made to statutory schemes in connection with sickness or accident or provident fund or pension or other like schemes to the above categories, payments of overtime and additional remuneration for Sunday, holiday or night work etc., and payments for leave and traveling cost were all to be made by the company.
It was also provided that the count of any other expenditure was to be admitted only on satisfactory proof being given by the contractor that such expenditure was necessary in connection with the preparation and execution of the work.
The company was to open an imprest account of Rs. 30,00,000/ and the contractor was to draw on the account to cover his day to day requirements for the work.
The imprest was to be increased or decreased from time to time depending on the amount required by the contractor to do the work.
The contractor was to submit fortnightly cash account covering the expenditure incurred from the imprest account and the company was to recoup the amounts covered by such account within seven working days.
Once in three months the contractor was to be paid a part of the fixed amount of overheads pro rata to the target cost of work done during the preceding three months.
Once in six months he was to be paid three fourths of the fee proportionate to the target cost of the work done in the preceding.
half year.
Enclosure Ill also set out the rate of wages for unskilled labourers, khalasi, mason, fitter or carpenter.
If the contractor completed the work prior to the 30th September, 1960 he was to be paid, exclusive of such sums as may be due to, or from, him a bonus equivalent to Rs. 2,00,000/ for every complete month by which the actual completion of the work precedes the 30th September, 1960.
The terms of the contract have been set out at some length as they have a relevance to the question of bonus payable to the workers because the question now agitated before this Court is that the Industrial Tribunal should be asked to decide who is to Pay the bonus, if bonus is payable to the workmen, the contractor or the company.
It would be noticed from the provisions of the contract set out above that all payments to labour were to be made by the company.
The contract contemplates payment of traveling allowance, payment in respect of sickness, accident, provident fund, pension, overtime, additional remuneration for Sunday, holiday or right work etc.
It has even mentioned the rate of wages and is thus fairly comprehensive.
There is, of course, no mention about bonus.
Now if the contractor 671 has to pay a higher rate of wages than that found in Enclosure III because of the conditions in the labour market naturally the contractor cannot be expected to pay it from out of his funds or the payments he was to receive in pursuance of the contract.
This being a contract in which the company is to pay for labour as well as for materials any increase in the cost of those items cannot be borne by the contractor, who was to be paid only a fixed sum towards its remuneration.
As the question of bonus is not mentioned in the contract the question arises as to who is to pay the bonus in case bonus is found payable to the workmen.
We express no opinion on that point.
But it appears to us that the company is adopting an ostrich like policy in trying to avoid being made a party to the reference before the Industrial Tribunal.
if it should ultimately be held that bonus is payable and the company is liable to pay it, it should do its best even from this stage to fight the question of liability to pay bonus as well as the quantum.
What is called a tripartite agreement seems to have been entered into between the workmen and the appellant in the presence of the Labour Commissioner on 12th June, 1960.
That was natural as the appellant it was that employed labour.
But that by itself does not decide the question who is to pay the bonus.
Under that agreement the appellant agreed to the payment of bonus in principle subject to the condition that they get the bonus from the company.
The quantum of bonus and exact date from which the bonus was payable was not, however, indicated.
It was also stated that when bonus was received by the management it shall notify the fact to the workers and that the union may raise this as a point of dispute when it would deem it appropriate On 15th June, 1960 the labour union appears to have written a letter to the Labour Commissioner of orissa raising a dispute for adjudication regarding bonus The union mentioned that they had also written a number of letters to the appellant as well as the company but either of them had decied the issue.
They, therefore, served a notice of strike.
The Labour Commissioner wrote to the Government on 17 10 60 about the dispute and mentioned that the appellant had agreed to pay bonus if the company paid it.
He also mentioned the fact that the appellant in reply to the letters from the workmen had stated that they had not come to any final decision in the matter.
On the ground that unless something was done there will be a strike causing complete dislocation of work of the company he suggested that the following issue may be considered for reference to the Industrial Tribunal: "Whether the workers of Hochtief Gammon are entitled to any bonus ? If so, what should be the quantum ?" He proceeded to say that if this question was finally decided it would also serve as a guiding principle for other contractors as similar demands for payment of bonus from workers were being received.
It would be noticed that though the appellant 's stand was that they would pay the bonus if it were given by the company the Labour Commissioner did not suggest that the question as to the party liable to pay the bonus, whether it was the appellant or the company, be referred for 672 adjudication.
His anxiety was that the work of the company should not A be dislocated.
He did not apply his mind to the question of the party liable to pay the bonus.
Naturally the Government also did not.
The Government therefore referred the following issue for adjudication: "Whether the workers of M/s. Hochtief Gammon.
Civil Engineers and Contractors, Rourkela are entitled to any bonus and if so, what should be the quantum?" On this a notice seems to have been served on the company and curiously enough the company said that the appellant did not complete the work as set out in the Memorandum of Agreement and hence no bonus was due to the contractors and that therefore they were not a necessary party.
This bonus, as the terms of the contract set out earlier would show.
has nothing to do with the bonus payable to the workmen.
The appellant in their written statement pointed out that under the terms of the contract the company had to bear all expenditure with reference to labour, all payments in respect of wages, salaries and other connected payments made to persons engaged in the works, that it was also responsible to make payments to statutory schemes in respect of all workmen and that they themselves were only paid a stated fee for professional services rendered to them and therefore no demand can be raised by the workmen who are engaged by the contractor against the contractor and such a demand is unsustainable in law.
They then gave reasons why the workmen were not entitled to any bonus from them.
It is not necessary to set out those reasons at length.
We have already referred to the stand of the company.
As would be apparent from the decision of this Court on the earlier occasion, which we shall set out later, the Tribunal could not have decided this question in view of the terms of reference made to it.
Thereafter the appellant filed.
an application under section 18(3) (b) of the Industrial Disputes Act praying that for a proper adjudication of the issue referred to the Tribunal it was necessary to bring on record the company as a party to the proceedings.
They pointed out that any amount payable to the labourers engaged by the contractors for what soever reason was a contract expenditure within the meaning of the term contract and payable by the company as it was entirely responsible for payment of all remuneration to the workmen and all expenditure incurred by reason of any demand put forward by the workmen in connection with the works, was debitable to the contract and payable by the company.
This application was rejected.
Thus the stand of the appellant as to the party liable to pay the bonus was never in doubt.
The appellant thereupon filed a petition before the High Court of orissa praying that the order of the Tribunal should be set aside.
that petition also having been dismissed an appeal was filed before this Court by special leave.
The relevant portion of the judgment of this Court is found at page 605, 1964(7) S.C.R.: "The next contention raised by Mr. Chatterjee is that M/s. Hindustan Steel Ltd. is a necessary party because it is the said concern which is the employer of the respondents and not the appellant.
In other words, this contention is that 673 though in form the appellant engaged the workmen whom the respondent union represents, the appellant was acting as the agent of its principal and for adjudicating upon the industrial dispute referred to the Tribunal by the State of orissa, it is necessary that the principal, viz., M/s. Hindustan Steel Ltd. Ought to be added as a party.
In dealing with this argument, it is necessary to bear in mind the fact that the appellant does not dispute the respondent Union 's case that the workmen were employed by the appellant.
It would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case, the terms of reference might have been suitably framed.
Where the appropriate Government desires that the question as to who the employer is should be determined, it generally makes a reference in wide enough terms and includes as parties to the reference different persons who are alleged to be the employers.
Such a course has not been adopted in the present proceedings, and so, it would not possible to hold that the question as to who is the employer as between the appellant and M/s. Hindustan Steel Ltd. is a question incidental to the industrial dispute which has been referred under section 10(1)(d).
This dispute is a substantial dispute between the appellant and M/s Hindustan Steel Ltd. and cannot be regarded as incidental in any sense, and so, we think that even this ground is not sufficient to justify the contention that M/s. Hindustan Steel Ltd. is a necessary party which can be added and summoned under the implied powers of the Tribunal under section 18(3)(b).
" lt would be noticed that before this Court what was admitted was that the appellant had employed the workmen but the question as to who was the employer in relation to those workman was the main question at issue.
That was why this Court pointed out that it would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case the terms of reference might have been suitably framed.
As that had not been done this Court pointed out that it would not be possible to hold that the question as to who was the employer as between the appellant and the company was a question incidental to the industrial dispute which had been referred under section 10(1)(d), as it was a substantial dispute between the appellant and the company.
Apparently taking the cue from the observations of this Court the appellant filed a writ petition out of which this appeal arises.
But before doing so the appellant had filed an application before the State Government asking them to modify the earlier reference to the Industrial Tribunal by adding the company as a party to the reference and an additional clause as under: "If bonus is payable, who is the employer and who is responsible for payment of the bonus to the workmen?" They pointed out in that application that the company was entirely responsiblele for payment of wages and connected payments and all 674 other remuneration of any kind to the workmen, that for enabling the appellant to make payments to the labourers engaged for such work on behalf of the company an imprest of Rs. 3,000,000/ was given to them out of which the payments were made, that the appellant got only a fee, that if any bonus becomes payable it was the person who pays wages that has to pay the bonus.
Thereafter they also asked for a personal hearing.
To this the reply of the Government was as follows: "With reference to their petition dated 20 5 64 on the above subject, the undersigned is directed to say that after due.
Consideration of the matter the Government do not find any materials on the basis of the petition to include Hindustan Steel Ltd., Rourkela as a party in the above case.
" It would be noticed that in the petition the appellant wanted not only that the company should be made a party but also that another issue must be referred to the Tribunal for adjudication.
They had given reasons as to why the company should be included as a party.
They had in their petition included the paragraph which we have extracted above from this Court 's judgment.
It is apparent from their reply that the Government had not applied their mind to the facts placed before them.
There was at least an arguable case on the point as to who was liable to pay the bonus and in that case the company would have been a necessary and appropriate party.
Even if the Government thought that the company was not a necessary party the question as to who was liable to pay the bonus was a very relevant question and that made the company a necessary or at least a proper party.
The attitude of the appellant had throughout been that their contract was a cost contract, that the company had to pay labour and while they have employed the workmen the employer was really the company.
That contention may or may not be upheld by the Tribunal.
Ultimately if the Tribunal should hold that the appellant is the party responsible for payment of bonus the question as between the company on the one hand and appellant on the other may have to be decided by arbitration as provided in the contract between them or otherwise.
It appears to us, therefore, that not only was this an appropriate question to be referred to the Industrial Tribunal for adjudication but even the company should be interested in getting itself impleaded as a party so as to put forward any contention which it may decide to put forward as regards the question whether bonus was payable and if so the quantum thereof, as also the question as to who would be liable to pay the bonus instead of adopting, as we have said earlier, an ostrich like policy.
The power of the Courts in relation to the orders of the appropriate Government in the matter of referring industrial disputes for adjudication is no longer in doubt.
In State of Bombay vs K.P. Krishnan & Ors.
(1) it was held: "It is common ground that a writ of mandamus would lie against the Government if the order passed by it under s.10 (1) is for instance contrary to the provisions of s.10(1) (a) to (d) in the matter of selecting the appropriate authority; (1) 675 it is also common ground that in refusing to make a reference under section 12(S) if Government does not record and communicate to the parties concerned its reasons therefore a writ of mandamus would lie.
Similarly it is not disputed that if a party can show that the refusal to refer a dispute has not bona fide or is based on a consideration of wholly irrelevant facts and circuit of mandamus would lie.
The order passed by the Government under section 12(5) may be an administrative order and the reasons recorded by it may not be justiciable in the sense that their propriety, adequacy or satisfactory character may not be open to judicial scrutiny; in that sense it would be correct to say that the court hearing a petition for mandamus is not sitting in appeal over the decision of the Government; nevertheless if the court is satisfied that the reasons given by the Government for refusing to make a reference are extraneous and not germane then the court can Issue, and would be justified in issuing, a writ of mandamus even in respect of such an administrative order.
" In Bombay Union of Journalists vs The State of Bombay(1) it was observed: "The breach of section 25F is no doubt a serious matter and normally the appropriate Government would refer a dispute of this kind for industrial adjudication; but the provision contained in section 10(1) read with section 12(5) clearly shows that even where a breach of section 25F is alleged, the appropriate Government may have to consider the expediency of making a reference and if after considering all the relevant facts the appropriate Government comes to the conclusion that it would he inexpedient to make the reference, it would be competent to it to refuse to make such a reference.
If the appropriate Government refuses to make a reference for irrelevant considerations, or on extraneous grounds, or acts malafide, that, of course, would be another matter: in such a case a party would be entitled to move the High Court for a writ of mandamus.
" The above are not the only powers of the Courts in relation to the orders of the Government or an officer of the Government who has been conferred any power under any statute, which apparently confer on them absolute discretionary powers, in this country as well as in England.
In England in earlier days the Courts usually refused to interfere where the Government or the concerned officer passed what was called a non speaking order, that is, an order which on the face of it did not specify the reasons for the order.
Where a speaking order was passed the Courts proceeded to consider whether the reasons given for the order or decision were relevant reasons or considerations.
Where there was a non speaking order they used to say that it was like the face of the Sphinx in the sense that it was inscrutable and therefore hold that they could not consider the question of the validity of the order.
Even in England the Courts have travelled very far since those days.
(1) ; , 34. 676 They on longer find the face of The Sphinx inscrutable.
Needless to say that Courts in India, which function under a written Constitution which confers fundamental rights on citizens, have exercised far greater; powers than those exercised by Courts in England, where there is no written Constitution and there are no fundamental rights.
Therefor the decisions of Courts in England as regards powers of the Courts 'surveillance ', as Lord Pearce calls it, or the control which the Judiciary have over the Executive, as Lord Upjohn put it, indicate at least the minimum limit to which Courts in this country would be prepared to go in considering the validity of orders of the; Government or its officers.
In that sense the decision of the House of Lords in Padfield vs Minister of Agriculture, Fisheries and Food(1) is a landmark in the history of the exercise by Courts of their power of surveillance.
That decision is well worth a close study but we will resist the temptation to quote more than is absolutely necessary.
That was a case where under the provisions of the Agricultural Marketing Act, 1958 the Minister had the power to appoint a committee to go into certain questions under.
section 19 of that Act but when requested to appoint a committee he refused.
In refusing to appoint the committee he had given elaborate reasons for his refusal.
It was admitted that the question of referring the complaints to a committee was a matter within the, Minister 's discretion.
It was also argued that he was not bound to give any reasons for refusing to refer a complaint to a committee and that if he gives no reason his refusal cannot be questioned and his giving reasons could not put him in a worse position.
It was held by the House of Lords that an order directing the Minister to consider the complaint according to law should be made.
It was also held that Parliament conferred a discretion on the Minister so that it could be used to promote the policy and objects of the Act which were to be determined by the construction of the Act and that was a matter of law for the court.
It was further held that though there might be reasons which would justify the Minister in refusing to refer a complaint, his discretion was not unlimited and, if it appeared that the effect of his refusal to appoint a committee of investigation was to frustrate the policy of the Act, the court was entitled to interfere.
The extracts given below of certain portions of the speeches of the learned Lords can be appreciated in that background.
Lord Reid: "The respondent contends that his only duty is to consider a complaint fairly and that he is given an unfettered discretion with regard to every complaint either to refer it or not to refer it to the committee as he may think fit.
The appellant contents that it is his duty to refer every genuine and substantial complaint, or alternatively that his discretion is not unfettered and that in this case he failed to exercise his discretion according to law because his refusal was caused or influenced by his having misdirected himself in law or by his having taken into account extraneous or irrelevant considerations.
(1) ; 677 In my view, the appellants ' first contention goes too far.
There are a number of reasons which would justify the Minister in refusing to refer a complaint.
For example, he might consider it more suitable for arbitration, or he might consider that in an earlier case the committee of investigation had already rejected a substantially similar complaint, or he might think the complaint to be frivolous or vexatious.
So he must have at least some measure of discretion.
But is it unfettered? lt is implicit in the argument for the Minister that there are only two possible interpretations of this provision .
either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case.
I do not think that is right.
It was argued that the Minister is not bound to give any reasons for refusing to refer a complaint to the committee, that if he gives no reasons his decision cannot be questioned, and that it would be very unfortunate if giving reasons were to put him in a worse position.
But I do not agree that a. decision cannot be questioned if no reasons are given." Lord Hadson: The reasons disclosed are not in my opinion good reasons for refusing to refer the complaint to the committee, that if he gives no reason his decision cannot be questioned, and that it would be very unfortunate if giving reasons were to put him in a worse position.
But I do not agree that a decision cannot be questioned if no reason are given.
Lord Hodson: "The reason disclosed are not, in my opinion, good reason for refusing to refer the complaint seeing that they leave out of account altogether the merits of the complaint itself.
The complaint is, as the Lord Chief Justice pointed out, made by person affected by the scheme and is not one for the consumer committee as opposed to the committee of investigation and it was eligible for reference to the latter.
It has never been suggested that the complaint was not a genuine one.
It is no objection to the exercise of the discretion to refer that wide issues will be raised and the interests of other regions and the regional price structure as a whole would be affected.
It is likely that the removal of a grievance will, in any event, have a wide effect and the Minister cannot lawfully say in advance that he will not refer the matter to the committee to ascertain the facts because, as he says in effect, although not in so many words, "l would not regard it as right to give effect to the report if it were favour able to the appellants." Lord Pearce: "I do not regard a Minister 's failure or refusal to give any reasons as a sufficient exclusion of the court 's survellance.
It was for the Minister to use his discretion to promote Parliament 's intention.
If the court had doubt as to whether the appellants ' complaint was frivolous or repetitive, or not genuine, or not substantial, or unsuitable for investigation or more apt for arbitration, it would not interfere.
But nothing which has been said in this case leads one 678 to doubt that it is a complaint of some substance which shoukl A properly be investigated by the independent committee with a view to pronouncing on the weight of the complaint and the public interest involved.
The fact that the complaint raises wide issues and affects other regions was not a good ground for denying it an investigation by the committee.
lt is a matter which makes it very suitable for the committee of investigation, with its duty to report on the public interest, and its capacity to hear representatives of all the regions." Lord Upjohn: "The Minister in exercising his powers and duties, conferred upon him by statute? can only be controlled by a prerogative writ which will only issue if he acts unlawfully.
Unlawful behaviour by the Minister may be stated with sufficient accuracy for the purposes of the present appeal (and here I adopt the clarification of Lord Parker C.J., ill the Divisional Court): (a) by an outright refusal to consider.
the relevant matter, or (b) by misdirecting himself in point of law, or (c) by taking into account some wholly irrelevant or extraneous consideration, or (d) by wholly omitting to take into account a relevant consideration.
There is ample authority for these propositions which were not challenged in argument.
In practice they merge into one another and ultimately it becomes a question whether for one reason or another the Minister has acted unlawfully in the sense of misdirecting himself in law, that is, not merely in respect of some point of law but by failing to observe the other headings I have mentioned.
The Minister 's main duty is not to consider its suitability for investigation; he is putting the cart before the horse.
He might reach that conclusion after weighing all the facts but not until he has done so.
This introduces the idea, much pressed upon your Lordships in argument, that he had an "unfettered" discretion in this matter; it was argued, means that, provided the Minister considered the complaint bona fide, that was an end of the matter.
Here let it be said at once, he and his advisers have obviously given a bona fide and painstaking consideration to the com plaints addressed to him; the question is whether the consideration given was sufficient in law.
My Lords, I believe that the introduction of the adjective "unfettered" and its reliance thereon as an answer to the appellants ' claim is one of the fundamental matters confounding the Minister 's attitude, bona fide though it be. even if the section did contain that adjective I doubt if it would make any difference in law to his powers.
But the use of that adjective, even in an Act of Parliament, can do nothing to unfetter the control which the judiciary have over the executive, 679 namely that in exercising their powers the latter must act law fully and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister rather than by the use of adjectives." ' . a decision of the Minister stands on quite a different basis; he is a public officer charged by Parliament with the discharge of a public discretion affecting Her Majesty 's subjects; if he does not give any reason for his decision it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and order a prerogative writ to issue accordingly.
" That was a case where the Minister had given elaborate reasons and it was, therefore, possible for their Lordships of the House of Lords to consider the reasons given by the Minister in elaborate detail and show how he had misdirected himself.
They also pointed out that by merely keeping silent the Minister cannot avoid the Court considering the whole question.
The principles deducible from the decisions of this Court and the above decision of the House of Lords which, though not binding on us, appeals to us on principle may be set out as follows: The Executive have to reach their decisions by taking into account relevant considerations.
They should not refuse to consider relevant matter nor should They take into account wholly irrelevant or extraneous consideration.
They should not misdirect themselves on a point of law.
Only such a decision will be lawful.
The courts have power to see that the Executive acts lawfully.
It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration.
They cannot avoid scrutiny by courts by failing to give reasons.
It they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to judicial scrutiny.
Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.
Judged by these tests the order of the State Government is unsustainable.
Here the Government did not say that it considered it inexpedient to refer the question for adjudication or that the considerations put forward by the appellant before it were irrelevant.
Neither the Labour Commissioner nor the Government seem to have noticed that this contract is not one of the usual kind wherein a contractor undertakes to do a certain work for a certain sum.
In that case the question of profit and loss or as between the contractor and the party for whom he is executing the work any question as to who was to pay labour would not arise whether it is with regard to wages or bonus.
The contractor will have to bear the full cost o material as well as the full liability for paying the workmen on any head whatsoever.
In this contract the company had to pay for the material as well as labour.
The appellant 680 got paid only for its professional services.
There was in any case in A the contract no provision that the appellant was to incur any item of expenditure or make any payment in relation to the workman.
In such a contract it would be unusual if it was to be considered that the appellant were expected to pay the bonus for the workman.
This however need not be taken as our final view on this point.
But it is a relevant Matter for consideration by the Government in deciding whether to refer the matter to the Tribunal or not.
Furthermore, when the question of bonus in this case arose what is known as the Full Bench formula was holding the field in the matter of payment of bonus.
If the bonus were to be paid by the appellant it could hardly be brought within that formula.
As the company had certainly not begun production at that stage it would be difficult to calculate the bonus with reference to the business of the company either.
The mistake that the Labour Commissioner committed was in not realising that the dispute concerned not Cr merely two parties but three because from the beginning the appellant had made it clear that they would pay the bonus if the necessary amount was paid to them by the company.
We have set out the facts of this case at considerable length and considered the whole question.
We think that the Government 's order in this case really amounts to an outright refusal to consider relevant matters and the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations which as held by the House of Lords is unlawful behavior.
It has failed to realise that in effect the contractor employed labour for the company wh() was the real paymaster.
lt held failed to take into account the fact that the workmen wanted the bonus from either the company or the appellant.
Naturally the workmen were not interested who paid them as long as they were paid.
lt would bear repetition to say again that the.
Original mistake arose out of the assumption by the Labour Commissioner that this was a case of an ordinary contract which would apply to other contractors also.
He had apparently not seen the contract between the company and the appellant and that mistake was adopted by the State Government and they stuck to it inspite of the application made to them by the appellant after the disposal of the earlier appeal by this Court, giving all relevant facts.
It does not appear from the communication of the Government to the appellant that they had applied their mind to any of the considerations set out in the appellant 's application.
In the circumstances this appeal must be allowed and the Government of orissa must be directed to reconsider this matter and take a decision in the matter of reference in the light of the relevant facts.
There will be no order as to costs.
P.H.P. Appeal allowed. | In 1957, the Hindustan Steel Limited (Company) and the appellant (contractor) entered into a contract for execution of the foundation and civil engineering work of the hot and cold rolling mills at Rourkela.
The Company was to pay to the Contractor all costs of construction and in addition pay fixed overhead charges for the head office and general office of the contractor plus a fixed fee.
All payments in respect of wages and salaries and connected pay matter made to persons engaged upon the work as might be approved by the Company comprising wages of all operatives as well as all other payments connected with wages were to be paid by the Company.
Emoluments of Site Supervisory staff as well as all other payments connected therewith were also to be paid by the Company.
The payments made to statutory schemes, in connection with sickness, or accident, or Provident Fund, or Pension or other like schemes to the above categories, payments of overtime and additional remuneration for ' Sunday, holiday or night work etc., and payments for leave and traveling cost were all to be made by the Company.
In 1960, the Labour Union of workmen employed by the Contractor raised a dispute for adjudication about the bonus payable to the workmen for doing the aforesaid job. 'The stand of ' the contractor was that they would pay the bonus if it were given by the Company.
The Government referred the question whether the workers of the contractor were entitled to any bonus and if so what should be the quantum.
The question whether the Company or the Contractor was liable to pay the bonus was not referred.
A notice was served on the company and the Company contended that since the contractor did not complete the work according to the agreement, no bonus was due to the contractor and that the Company was not a necessary party to the reference.
The contractor in the written statement contended that under the terms of the Contract the Company had to bear all costs with reference to labour, all payments in respect of wages, salaries and other connected payments made to persons engaged in the works and that the contractors were paid a stated fee for professional services rendered by them and that therefore, the demand against the contractor was not sustainable in law.
the contractor made an application to the Tribunal that for the proper adjudication of the issues referred to the Tribunal it was necessary to bring on record the Company as a party to the proceedings.
The said application was rejected by the Tribunal.
The contractor thereupon filed a Writ Petition in the High Court of orissa against the said order of the Tribunal.
The High court dismissed the said writ Petition.
The contractor filed an appeal by Special Leave to this Court.
This Court in that appeal held: "That it would have been open to the State Government to ask the Tribunal to consider as to who was the employer of the workmen and in that case the terms of reference might have been suitably framed.
In the present case such a course has not been adopted.
The dispute between the Company and the contractor would be a substantial dispute and cannot be regarded as incidental to the industrial dispute which was referred The Company was therefore a necessary party.
" 668 The Contractor, thereafter, filed an application before the Slate Government asking, them to modify the earlier reference by adding whether the bonus was payable by the Company or the contractor and by adding the Company as a party to the reference.
It was pointed out in that application that it was the Company which would be liable to pay the bonus if at all it was payable.
The contractor also asked for a personal hearing.
The Government disposed of that application by observing "Government do not find any materials on the basis of the petition to include Hindustan Steel Limited, Rourkela, as a party in the above case. ' The Government did not apply its mind to the other prayer, namely, adding one more issue to the reference.
The Contractor filed a writ Petition against the said order of the State Government.
The High Court dismissed the Writ Petition Against the judgment of the High Court the appellants appealed to Court.
Allowing the appeal, ^ HELD: 1.
It is apparent from the Government 's reply that the Government did not apply its mind to the facts placed before them.
There was at least an arguable case on the point as to who was liable to pay the bonus and in that close the Company would have been a necessary and appropriate party.
Even if the Government thought that the company was not a necessary party.
the question as to who was liable to pay the bonus was a very relevant question and that made the Company a necessary or at least a proper party.
The attitude of the contractor throughout had been that their contract was a cost contract; that the Company had to pay labour and the Company was the real employer.
That contention may or.
may not be upheld by the Tribunal.
This was however, an appropriate question to be referred to the Tribunal [674 C F] 2.
The power of the courts in relation to the orders or ' the appropriate Government in the matter of referring industrial disputes for adjudication is no longer in doubt.
[674 G] State of Bombay vs K P Krishan & Ors.
[1961] (1) [S.C.R. 227] and Bombay Union of Journalists vs The State of Bombay [1964(6) S.C.R. 22@ 24].
followed.
The powers of the Court mentioned in the above two cases in relation to the orders of the Government under any statute are not the only powers of the courts.
In England, in earlier days, the courts usually refused to interfere where the Government or the concerned officer passed what was called a nonspeaking order.
Where a speaking order was passed the Courts proceeded to consider the reasons given to see whether the reasons given were relevant reasons or considerations.
Where there was a non speaking order they used to saw it was like the face of the sphnix in the sense that it was inscrutable and.
therefore, held that they could not consider the question of the validity of the order.
Even in England, the courts have traveled very fast since those say.
They no longer find the face of the sphinx incurable.
Needless to say that the courts in India which function under a written constitution which confers fundamental rights on citizens exercise, far greater powers than those exercised by the courts in England where there is no written constitution and there are no fundamental rights.
The decision of ' House of Lords in Padfield vs Minister of Agriculture.
Fisheries and Food ; , followed.
[675 F H, 676 A] 3.
The Executive have to reach their decisions by taking into account relevant considerations.
They should not refuse to consider relevant matter.
nor should they take into account wholly irrelevant or extraneous considerations 'they should not misdirect themselves on a point of law.
only such a decision will be lawful.
The Courts have power to see that the Executive acts lawfully.
It is no answer to the exercise of that power to say that the Executive acted 669 bone fide nor that they have bestowed painstaking consideration .
They cannot avoid scrutiny by courts by failing to give reason.
If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters though the propriety, adequacy or satisfactory character of these reasons may not be open to judicial scrutiny.
Even if.
the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.
[679 D F] 4.
Judged by this test the order of the State Government is unsustainable.
The Government does not seem to have Noticed that the contract in question us not one of the and wherein a contractor undertakes to do a certain work for a certain sum.
In thus contract, the Company had to pay for the material as well as for labour.
the Contractor to a paid only for his professional services.
There was in any case no provision in the contract that the contractor was to incur any item of expenditure or make any payment in relation to the workmen.
The Government did not realise that the dispute concerned of merely two parties but three.
The Government order in the present case really amounts to an outright refusal to consider relevant matters and the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations which as held by the House of Lords us unlawful behaviour.
The Government does not appear to have applied their mind to any of the considerations set out in the contractor 's application.[679 F H, 680 D&F] Allowing the appeal the Court directed the Government of Orissa to reconsider the matter and take a decision in the matter of reference in the light of the relevant facts.
[680 G] |
Criminal Appeal No. 227 of 1983.
From the Judgment and Order dated 19.8.1982 of the Allahabad High Court in Crl.
Appeal No. 680 of 1976.
R.L. Kohli and Shakil Ahmed Syed for the Appellants.
Prithvi Raj and Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal by special leave is from the judgment of the High Court of judicature at Allahabad in Criminal Appeal No. 680 of 1976 dismissing the appeal of the four instant appellants namely, Lalji, Mansa, Milkhi and Bhagwati and upholding their conviction and sentence of life imprisonment under Sections 302/149 and also the conviction of Milkhi with sentence of two years R.I. under section 148 I.P.C and of the other three appellants under Section 147 I.P.C. with sentence of one year R.I. 133 The facts are simple.
On 24.6.1975 at noon Manju, son of Girdhaft Lal, man handled Chhotey Lal and Mansa, nephews of Minister Lal, after they gave him (Manju) a push.
The prose cution version was that Minister Lal with a cane in hand, Chhotey Lal with a Kanta, Milkhi and Chainu with spears and others with lathis arrived near Girdhaft Lal 's house and after an altercation started assaulting Girdhaft and Siddhu.
The alarm attracted Ram Avtar and Manju who came there.
The appellants party started assaulting them also whereupon they retreated to their house but were followed by Minister Lal, Lalji and others of the party.
Girdhaft Lal and Siddhu died in consequence of the assault.
Ram Avtar picked up the loaded gun of his father Girdhaft and fired a shot at Minis ter Lal who fell down dead and by another shot he injured Lalji.
The defence version was that Girdhaft Lal summoned Minister Lal to his house and the accused persons came with or after Minister Lal.
This resulted in a cross case on Lalji 's F.I.R. (exhibit Ka 19).
It has admittedly resulted in acquittal.
The present case was registered under F.I.R. (exhibit Ka l) upon the information lodged by Babu Ram son of Siddhu at P.S. Maigalganj.
Altogether eleven persons, including the appellants herein faced trial.
The learned trial court relying on the evidence of the three eye witnesses convicted eight and acquitted three of them, namely, Ram Lotan, Kripa Dayal and Barkau.
The eight convicted persons were appel lants before the High Court in Criminal Appeal No. 680 of 1976.
Out of them conviction of four appellants was upheld, while the other four, namely, Shiv Kumar, Chottey Lal, Munna and Chainu were acquitted by the High Court.
The learned counsel for the appellants Mr. R.L. Kohli, Sr.
Advocate submits that as out of the eleven persons three were acquitted by the trial court and four were acquitted by the High Court as there was no corroboration in their cases, the position of two of the appellants, namely, Milkhi and Bhagwati remains the same and they must also be similarly acquitted for want of corroboration.
The learned counsel for the State Mr. Prithvi Raj, Sr.
Advocate counters submitting that when the appellants have been convicted under section 302/149 I.P.C the question of corroboration in case of individual appellants would not arise; and there is enough corrobora 134 tion in the evidence including medical evidence on record to prove that they were members of the unlawful assembly when the offence was committed.
The precise question to be decided in this appeal, therefore, is whether in view of death caused to Girdhaft and Siddhu by the unlawful assembly which is punishable under section 302 with the aid of Section 149 I.P.C. the corroboration as to participation of each individual member of the assembly would be necessary, and if so, whether in the instant case there is such corroboration.
Section 149 I.P.C. provides that if an offence is com mitted by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the mem bers of the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty of that offence.
As has been defined in Section 141 I.P.C., an assembly of five or more persons is designat ed an 'Unlawful Assembly ', if the common object of the persons composing that assembly is to do any act or acts stated in clauses 'First ', 'Second ', 'Third ', 'Fourth ', and 'Fifth ' of that section.
An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly.
Whoever being aware of facts which render any assembly an unlawful assem bly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.
Thus, when ever so many as five or more persons meet together to sup port each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence.
Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm person of reasonable firm ness and courage.
The two essentials of the section are the commission of an offence by any member of an unlawful assem bly and that such offence must have been committed in prose cution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.
Not every person is necessarily guilty but only those who share in the common object.
The common object of the assembly must be one of the five objects mentioned in Section 141 I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, 135 arms used by them and the behaviour of the assembly at or before scene of occurrence.
It is an inference to be deduced from the facts and circumstances of each case.
Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence.
Thus this section created a specific and distinct offence.
In other words, it created a constructive or vicar ious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly.
However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object.
Once the case of a person fails within the ingredients of the section the question that he did nothing with his own hands would be immaterial.
He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the mem bers of the assembly knew to be likely to be committed in prosecution of that object.
Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined.
It is not necessary that all the persons forming an unlawful assembly must do some overt act.
When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specif ic overt act was done by which of the accused.
This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly.
While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149.
It must be noted that the basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.
Thus, once the Court hold that certain accused persons formed in unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence.
After such a finding it would not be open to 136 the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts.
The prosecution would have no obligation to prove it.
In the instant case after having held that the appel lants formed an unlawful assembly carrying dangerous weapons with the common object of resorting to violence (as de scribed in the charge) it was not open to the High Court to acquit some of the members on the ground that they them selves did not perform any violent act, or that there was no corroboration of their participation.
In other words, having held that they formed an unlawful assembly and committed an offence punishable with the aid of section 149 I.P.C., the High Court erred in examining which of the members only did actively participate and in acquitting those who, according to the Court, did not so participate.
Doing so would amount to forgetting the very nature and essence of the offence created by section 149 I.P.C The Court in undeserving cases cannot afford to be charitable in the administration of criminal justice which is so vital for peace and order in the society.
On the basis of the evidence on record Milkhi and Bhag wati 's membership of the unlawful assembly at the relevant time has been satisfactorily established.
Both the courts below having held them to have been members of the unlawful assembly, the mere fact that they were not active partici pants, would be of no avail.
It is not open to the court to scrutinise as to whether any member of the unlawful assembly actively participated.
In an appeal by persons convicted under Section 302 with the aid of 149 I.P.C., the question whether a particular person was a member of that unlawful assembly at the rele vant time may of course be examined; and if it is found from the evidence on record that he was not a member of the unlawful assembly, he could not be convicted with the aid of section 149.
The question to be examined by us in the in stant case is whether Milkhi and Bhagwati were members of the unlawful assembly at the relevant time and not whether there was enough corroboration for their individual partici pation in the commission of the offence.
It has not been denied that the names of Milkhi and Bhagwati were mentioned in the F.I.R. (exhibit Ka l).
P.W. 2 Manju son of Girdhari, whose presence at the place of occur rence has not been challenged, mentioned Milkhi and Bhagwati among the accused persons with their relationship.
He cate gorically stated that the two, amongst others, 137 were present at his house beating his father and uncle and chasing him and Ram Avtar.
Milkhi according to him had a spear in his hand.
Manju denied the suggestion that Milkhi and Bhagwati were standing there on the side of the witness es.
P.W. 3 Smt.
Ram Devi clearly corroborated Milkhi 's participation.
P.W. 1 Babu Ram while giving vivid descrip tion of the occurrence stated that Milkhi was there in the assembly with spear and Bhagwati with a lathi and that all the persons present beat Girdhaft and Siddhu.
Milkhi also assisted in carrying Minister Lal after he was shot.
In reply to the question who beat Manju he clearly stated that Mansa and Bhagwati beat him with lathi when he was entering the house.
D.W. 2 Lalji stated that at the time of the occurrence Puran, Bhagwati, Kripal etc. had also come.
In the F.I.R. (exhibit Ka 19/C.I) lodged by Lalji on the same occurrence presence of Milkhi and Bhagwati was admitted by him.
The submission that they were mere spectators could not be believed.
From the above evidence on record it could not be held that Milkhi and Bhagwati were not members of the unlawful assembly at the the relevant time.
Whether any specific injury could individually be attributed to them or not could not at all be material.
The submission that the two be acquitted on ground of lack of corroboration has, therefore, to be rejected.
In the facts and circumstances of the case it is not open to this Court to apply the reasoning of the High Court to acquit members of the unlawful assembly for lack of corroboration as to their participation.
No other submission was made for the other appellants.
In the result, we do not find any merit in this appeal and hence it is dismissed.
Appellant Mansa is on bail.
He shall surrender to serve out his sentence.
T.N.A. Appeal dismissed. | The four appellants along with seven other accused were tried under Sections 147, 148 and 302 read with 149 of the Indian Penal Code.
The trial Court convicted the eight accused, including the four appellants, under section 302/149 I.P.C. and awarded life imprisonment.
Appellants Nos. 1, 2 & 4 were also convicted under Section 147 I.P.C. and each awarded one years R.I.
Appellant No. 3 was also convicted under Section 148 I.P.C. and awarded two years R.I.
The remaining three accused were acquitted by the Trial Court for want of corroboration.
On appeal by the eight convicted persons the High Court upheld the conviction of only four appellants on all the counts and allowed the appeal of the other four co accused for want of corrobora tion.
In this appeal by special leave it was contended that appellants No. 3 and 4 should also be acquitted for want of corroboration as the Trial Court has acquitted three accused and the High Court, on appeal, has further acquitted four accused for want of corroboration.
The appeal was contested on behalf of the State contend ing that in case of conviction under section 302 read with section 149 of the I.P.C. corroboration in case of individu al accused was not necessary and there 131 was enough corroboration on record to prove that the accused were members of the unlawful assembly at the time of commis sion of offence.
Dismissing the appeal, HELD: 1.
Section 149 creates a specific and distinct offence.
It imposes constructive or vicarious criminal liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of the assembly.
[135B] 1.1.
It is not necessary that all persons forming an unlawful assembly must do some overt acts.
The section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly.
While overt acts and active partic ipation may indicate common intention of the persons perpe trating the crime, the mere presence in the unlawful assem bly may fasten vicarious criminal liability under the sec tion.
The basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with requisite common object or knowledge.
[135E F] 1.2.
The two essentials of the section are the commis sion of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.
The common object of the assembly must be one of the five objects mentioned in section 141 of the Indian Penal Code.
[134G H] 2.
In an appeal by the persons convicted under section 302 with the aid of section 149 I.P.C. the question whether a particular person was a member of the unlawful assembly at the relevant time may be examined; and if it is found from the evidence on record that he was not a member of the unlawful assembly, he could not be convicted with the aid of section 149.
[136F G] 2.1.
But once the Court holds that certain accused persons formed an unlawful assembly and an offence is com mitted by any member of that assembly in prosecution of the common object of that assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was a member of the same assembly is to be held guilty of that offence.
After such a finding it is not open to the 132 Court to see as to who actually did the offensive act.
The prosecution is not obliged to prove which specific overt act was done by which of the accused.
[135G H; 136A] 2.2.
From the evidence on record it has been satisfacto rily established that appellants No. 3 and 4 were members of the unlawful assembly at the relevant time.
Both the Courts below have held them to have been members of the unlawful assembly.
The fact that they were not active participants and whether any specific injury could individually be at tributed to them or not are not at all material.
[136D E] 2.3.
In the instant case the High Court having held that the appellants formed an unlawful assembly carrying danger ous weapons with the common object of resorting to violence and committed an offence punishable with the aid of Section 149 I.P.C. erred in acquitting some of the members on the ground that they themselves did not perform any violent act or that there was no corroboration of their participation.
Doing so would amount to forgetting the very nature and essence of the offence created by Section 149.
[136B D] 2.4 The Court in undeserving cases cannot afford to be charitable in the administration of criminal justice which is so vital for peace and order in the society.
[136D] |
Civil Appeal No. 2203 of 1970.
Appeal by Special Leave from the Judgment and order dated the 26th September.
1969 of the Allahabad High Court in Income Tax Ref No. 420 of 1963 11 L9255SupCI/75 650 A. K. Sen and M. M. Kshatriya, for the appellant.
B. B. Ahuja and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This is an appeal by special leave against the order of the High Court of Allahabad dated September 26, 1969 on a reference made to it by the Income tax Appellate Tribunal, Allahabad Bench.
The facts giving rise to the present appeal may be briefly summarised as follows: The appellant assessee is a public limited company known as `J.K. Cotton Manufacturers Ltd ' and the matter in dispute relates to the assessment year 1944 45.
The appellant entered into an agreement with the firm called Juggilal Kamlapat and employed the said firm as the Managing Agents of the Company.
The agreement was executed on August 8, 1941 and the Managing Agents were to work for the Company for a period of 20 years and were to charge commission at the rate of 21%.
About two years later the appellant decided to terminate the agreement executed in favour of Juggilal Kamlapat and the said Managing Agents readily accepted the offer made by the appellant as a result of which a deed of release was executed by the Managing Agents Juggilal Kamlapat on September 28, 1943.
Under the release the appellant agreed to pay a sum of Rs. 2,50,000 to the outgoing Managing Agents by way of compensation for terminating the agreement much earlier than stipulated under the original contract.
The appellant, however, employed another firm, namely, J.K. Commercial Corporation as their new Managing Agents and executed an agreement in their favour on September 30, 1943.
The action of the Company was approved by the Board of Directors.
The dispute in the instant case centres round the question as to whether the compensation of Rs. 2,50,000 paid to the outgoing Managing Agents was a capital or a revenue expenditure incurred by the appellant.
The stand taken by the assessee before the revenue was that as the expenses were incurred wholly and exclusively for the purpose of carrying on the business of the Company it would fall under section 10(2)(xv) of the Income tax Act, 1922, which is the same as section 37(1) of the Income tax Act, 1961, and therefore an allowable deduction under the aforesaid provision.
The appellant 's case was negatived by the Income tax officer, the Appellate Assistant Commissioner and also by the Tribunal.
The Tribunal also refused to make a reference to the High Court as in its opinion no point of law arose.
The appellant then approached the High Court of Allahabad which directed the Tribunal to make a reference on the following four points and accordingly the Tribunal made a reference to the High Court on those points: "1.
Whether there was any material on the basis ofwhichthe Appellate Tribunal could hold that the goodwill of 651 Juggilal Karnlapat Cotton Manufacturers Ltd, was transferred to the J.K. Cotton Manufacturers Ltd, 2.
Whether there was any material on the record for a finding that the said transfer had been for a sum of Rs. 1.00,000 or for any other sum, and 3.
Whether there was any material on the record from which it could be held that the land had appreciated in value form Rs. 49,526/13,/6 to Rs. 1 ,00,000, 4.
Whether a sum of Rs. 250,000 paid by the assessed to the Managing Agents for the termination of their Manning Agency is an expenditure admissible under Section 10(2) (xv) of the Income Tax Act," When the matter was heard by the High Court, the assesses did not press any other point excepting point No. 4 which related to the question whether a sum of Rs. 2,50,000 paid by the assesses to the outgoing meaning Agents was an admissible expenditure under section 10(2) (xv) of the Income tax Act, 1922.
The High Court by it judgment dated September 26, 1969, held that the expenditure in question was incurred wholly and exclusively, for the purpose of assessee 's business, but as the amount was in the nature if a capital expenditure it was not (deductible under the provisions of the income tax Act and hence this appeal before us by special leave.
Mr. Asoke Sen learned counsel for the appellant for submitted two points before us in support of his case.
In the first place it was contended that the High Court having held that the expenditure incurred was wholly and exclusively l`or the purpose of the business should have held that section 10(2) (xv) applied in terms and therefore.
the expenditure was a revenue expenditure which would be deductible under s 10(2) (xv) of the Income tax Act; and second, it was submitted that the High court was in error in not correctly applying the decision of this court in Godrej & Co. vs Commissioner of Income tax Bombay city(1).
The learned counsel for the appellant has adumbrated four pro positions before us for consideration: (1) Where a payment is made by the payer Company to the payee Company ill lieu of termination of its agency it does not follow that the said pay meat which was made for the purpose of business must ipso facto be considered to be capital expenditure in the hands of the player Company.
(2) So far as the payee Company is concerned.
the law is that generally any compensation received by it not he considered as capital receipt (1) 652 (3) So far as the payer Company is concerned, if payment is for the purpose of business, the mere fact that it has, bar virtue of the payment, increased its profits and reduced its expenses, should not be regarded as expenditure of capital nature but would be one in the course of business unless some oblique or gratuitous purpose is involved.
(4) The principles laid down in Godrej & Co. 's case (supra) would have to be read as laying down only a proposition that the payer company, namely, the managed company, was making a payment to the payee company as a capital contribution to the payee company and in the hands of the payee company the amount becomes a receipt of compensation for incurring losses.
In other words the High Court did not correctly apply the decision of this Court in Godrej & Company ' case (supra).
So for as propositions Nos.
(1) to (3) are concerned their correctness cannot be disputed, because these propositions are covered by abandon authorities.
As regards proposition No. (4) it seems to us that on a close and careful reading of the judgment of this Court in on Goderaj & Company case (supra) the contention of the learned counsel for the appellant on this point appears to be without any substance.
We shall show that the facts of the present case appear to be on all fours with the ratio laid down by this Court in Goderaj & Company 's case (supra).
Mr. Ahuja appearing for the revenue, however, submitted that the termination of the managing agency by the appellant was made for extra commercial reasons, the main intention being to benefit both the outgoing Managing Agents Juggilal Kamlapat and the incoming Managing Agents J.K. Commercial Corporation which belonged to the same family of Singhanias and, therefore, as the compensation paid to the outgoing Managing Agents led to a profit to the company it would amount to acquisition of a new asset and would, therefore be a capital expenditure.
Before dealing with the contentions raise before us by the learned counsel for the appellant, it may be necessary to mention a few facts which have been found by the Tribunal and whose correctness has not been disputed before us.
(1) That there was no suggestion nor any iota of evidence to show that the outgoing Managing Agents were in any way guilty of laches, negligence or that they had caused any loss or disadvantage to the appellant so as to justify a sudden termination of their agency after two years although it was stipulated to continue for 20 years.
On the other hand the annexures filed along with the statement of the case sent by the Tribunal to the High Court clearly show that the Board of Directors paid high compliments to the outgoing Managing Agents Juggilal Kamlapat.
653 (2) That although the` incoming Managing Agents J.K. Commercial Corporation were prepared to serve the appellant on a commission of 2 % only, there is nothing to suggest that the outgoing managing Agents had refused to reduce their commission if that was the only ground for changing hands of the managing agency .
(3) This is not a case where the appellant reduced its expenditure by doing away with the middleman 's profit, e.g. to get rid of the managing agency and taking the managing agency itself.
It is only question of substituting one Managing Agent l`or another (4) That although a compensation of Rs. 2,50,000 was paid by the appellant to the outgoing Managing Agents yet by employing the new Managing Agents a net profit of Rs 30,000 was made by the Company which was in the nature of a recurring benefit, apart from other facilities.
(5) That constitution of the two Managing Agents, namely, out going and the incoming Managing Agents shows that Singhania family (the appellant) had major interest in both of them.
These facts have been clearly proved by the additional documents filed in this Court which were the annexures filed by the Tribunal in the statement of the case sent to the High Court along with the reference.
Annexure 'G ' at p. 69 of the Paper Book shows that at the time of terminating the agency of Juggilal Kamlapat high compliments were paid to the said Managing Agents as would appear from the minutes of the meeting held on August 24, l 943 .
The following observation, were made in that meeting: "There was a frank discussion among the Directors and it was unanimously agreed that even though the present Managing Agents have been rendering very good services to the Company, and have been carrying on its affairs in a creditable manner, there was no denying of the truth that the appointment of Managing Agents of the constitution and composition of the J.K. Commercial Corporation Ltd. would give to the Company unique advantages which the present Managing agents may perhaps be not able to impart, being a partnership firm.
and further as the J.K. Commercial Corporation Ltd., has offered its services on lower terms, the company would be benefited by a saving of above Rs. 30,000/ per annum.
" The minutes quoted above would clearly show two things that vary high compliments were paid to the outgoing Agents for their very good services.
and (2) that by the terms offered to the new Agents, namely, J.K. Commercial Corporation there was to be a saving of Rs, 30,000/. per annum Similarly the Tribunal in its order of reference to the High Court and the statement of case has found as follows: (p. 65 of the Paper Book) 654 "The constitution of the two managing agents do show that the Singhania family has major interest in both them.
The Tribunal on the basis of these facts came to the conclusion that the compensation was paid due to extra commercial reasons and could not be regarded as expenditure incurred wholly and exclusively for the purpose of the business.
The High Court differed from the reasons given by the Tribunal but affirmed its view on the ground that the expenditure incurred by the assessee Company being of a capital nature it was not deductible Having regard to the facts and circumstances of the present case we have no doubt that this case is wholly covered by the decision of this court ill Godrej & Company 's case (supra).
In this case, while it is true that this Court was dealing with the case of compensation in the hands of the payee Company who were the Agents, yet in view of the clear observations made by the Court there can be no manner of doubt that be expenses incurred in the present case by way of payment of compensation to the outgoing Agents would be of a capital nature.
This Court in the aforesaid case observed as follows: "In the light of those decisions the sum of Rs. 7,50,000 was paid and received not to make up the difference between the higher remuneration and the reduced remuneration but was in reality paid and received as compensation for releasing the company from the onerous terms as to remuneration as it was in terms expressed to be.
In other words, so far as the managed company was concerned, it was paid for securing immunity from the liability to pay higher remuneration to the assessee firm for the rest of the term of the managing agency and, _ therefore, a capital expenditure and some far as the assessee firm was concerned, it was received as compensation for the deterioration of injury to the managing agency by reason of the release of its rights to get higher remuneration and, therefore, a capital receipt within the decisions of this Court in the earlier cases referred to above." Mr. Asoke Sen tried to distinguish this case on the ground that the Court was concerned in the Godrej & Company 's case (supra) only with the nature of the payment in the hands of the payee company and any observations made as to what would be the nature of the payment in the hands of the payer company would be obiter, and, therefore.
not binding on this Court.
We are, however, unable to agree with this knew.
Godrej & Company 's case (supra) has considered all the previous decisions and has clearly laid down that in the circumstances.
such as the present, the expenditure incurred would be a capital expenditure in the hands of the payer company and a capital receipt in the hands 1 of the payee company within the meaning of section 10(2)(xv) of the Income tax Act.
The distinction sought to be made by the learned 655 counsel for the appellant is extremely subtle and it is a distinction without any difference.
Moreover, there are a number of other circumstances which clearly show that the expenditure concerned cannot, but be treated as a capital expenditure.
Mr. Asoke Sen then submitted that if the Godrej and Company 's case (supra) is held to be an authority for the proposition that the amount of compensation in the hands of the payer company also would be of a capital nature, then that case was wrongly decided and should be re considered by us.
We are, however, unable to agree with this argument, because apart from the principle of stare decisis, on the facts and circumstances of the present case, we do not find any special reasons to reconsider the decision in Godrej & Company 's case (supra) particularly when in view of the facts and circumstances of this case we are really of the opinion that the amount in question is undoubtedly a capital expenditure.
Reliance was placed by the learned counsel for the appellant on a decision of the Calcutta High Court in Anglo Persian oil Co. (India) Ltd. vs Commissioner of Income tax(1).
It is true that some observations in the aforesaid case are presumably in favour of the appellant but the Calcutta High Court was careful to guard itself against its decision being treated as a general principle to apply to all cases and in this connection it observed as follows: "The case of payer and payee must be considered upon an independent statement of the relevant facts provide in his presence, there being no over riding principle of law that the Income tax authorities are entitled to tax once at least on every payment." In that case the Court proceeded on the admitted finding of fact that the expenditure incurred was wholly and exclusively for the purpose of the business.
This, however, is not the case in the present case.
In these circumstances, the decision in Anglo Persian oil Co. (India) Ltd 's case(1) does not appear to be of any assistance to the assessee.
Reliance was also placed on a decision in Commissioner of Income vs Shaw Wallace and Company(2) in which case the Judicial Committee of the Privy Council merely affirmed the finding of the High Court that the sums received by the respondents were not income, profits or gains within the meaning of the Act though they gave different reasons for that conclusion.
It may be noticed that Shaw Wallace and Company case(2) turned upon the facts and circumstances of the case and the nature of the payment made to the Company.
While affirming the finding of the High Court their Lordships observed as follows: "The question was however, re stated by the learned Chief Justice in more precise terms namely, 'whether these sums are income profits or gains within the meaning of the (1) 80 I I.T.R. 129,133, (2) L.R. 59 L.A. 206, 211, 656 Act at all, ' and for the reasons stated in his judgment he came to the conclusion that they were not.
Their Lord ships think that his conclusion was right though they arrive at this result by a slightly different road.
" Reliance was also placed on a decision of this Court in Karam Chand Thapar and Bros. P. Ltd. vs Commissioner of Income tax (Central), (Calcutta(1), where this Court observed as follows: "As held by this court in Commissioner of Income tax , Chari and Chari Ltd. , that ordinarily compensation for loss of office or agency is regarded as a capital receipt, but this rule is subject to an exception that payment received even for termination of an agency agreement would be revenue and not capital in the case where the agency was one of the many which the assessee held and its termination did not impair the profit making structure of the assessee, but was within the framework of the business, it being a necessary incident of the business that existing agencies may by terminated and fresh agencies man be taken.
" This was, however, a case where their Lordships were dealing with that question as to whether or not the amount of compensation in the hands of the payee company for loss of office or agency would be regarded as a capital receipt.
Karam Chand Thapar and Bros. Y. Ltd case (supra) does not throw any light on the point with which we are concerned in the instant case.
I Great reliance was sought to be placed on the decision of the Calcutta High Court in Commissioner of Income tax, Calcutta vs Turner Morrison & Company Private Ltd.(2) where the High Court observed as follows: "It is now well settled that the expression 'expenditure laid out or expended wholly and exclusively for the purpose of such business ' includes expenditure voluntarily incurred for commercial expediency and in order indirectly to facilitate business.
It is immaterial if a third party also benefits thereby.
It is further well settle that an expenditure incurred in maintaining the efficiency of the manpower from time to time utilised in a business is also expenditure wholly or exclusively laid out for the purpose of such business.
It is also well settled that the employment of, say a director, at a reasonable extra remuneration to supervise a particular business of the company, regard being had to his expert knowledge in that particular line of business, is expenditure within the meaning of section 10 (2) (xv) and the revenue authorities are not justified in reducing such remuneration.
The expression 'commercial expediency ' is an expression of wide import and expenditure in commercial expediency includes such expenditure as a prudent man may incur for (1) , 171.
(2) I.T.R R 147 156 657 the purposes of business.
An expenditure which is entirely gratuitous and has no connection with the business does not come within the meaning of section 10(2)(xv) of the Act.
" This case also is distinguishable from the facts of the present case, in as much as in Turner Morrison do Company 's case (supra) there was no question of termination of any managing agency but what had happened was that two directors had retired and in their place an expert director was appointed to manage the affairs of the company.
on the facts of that case this Court held that the expenditure was incurred for commercial expediency in order to facilitate business.
In the instant case, as we have already pointed out, termination of the.
managing agency of the outgoing Agents was a voluntary act not caused by any negligence, inefficiency by the outgoing managing agents In these circumstances on the facts a circumstances be would not consider whether it was commercially expedient in order to facilitate business that the managing agency of the outgoing Agents should have been terminated.
Learned counsel for the appellant also referred us to the decision of the Bombay High Court in Greaves Cotton & Co. Ltd. vs Commissioner of Income tax, Bombay City(1) where the Bombay High Court observed as follows: "We have already said that the inference drawn on the material on record is that the managing agency agreement had been terminated with the object of taking over its management by the board of directors and there is no evidence which will lead to an inference that it was done with the oblique motive or oblique purpose of securing the payment of the said amount of Rs. 17 lakhs to the managing agents.
For reasons stated above, our answer to the question is in the affirmative, i.e. in favour of the assessee.
" This was obviously a case where the Managing Agents had not changed hands at all but what happened that the managing agency was terminated and the managing agency was taken over by the Board of Directors themselves.
Thus this case also does not appear to be of any assistance to the appellant.
In C.I.T. West Bengal II, Calcutta vs Coal Shipment (P) Ltd.(2) this Court indicated the various considerations which would govern the Court in deciding whether a particular amount is of a capital nature.
Relying on a decision in the case of Atherton vs British Insulated and Helsby Cables Ltd.(3) this Court observed as follows: "The character of the payment can be determined, it was added by looking at what is the true nature of the asset which has been acquired and not by the fact whether it is a (1) , 134.
(2) [1971]3 S.C.C. 736, 740, 741.
(3) 10 T.C. 671.
658 payment in a lump sum or by installments.
It is also an accepted proposition that the words 'permanent ' and 'enduring ' are only relative terms and not synonymous with perpetual or ever lasting.
There are some other tests like those of fixed capital and circulating capital for determining the nature of the expenditure.
An item of disbursement can be regarded as capital expenditure when it is referable to fixed capital.
It is revenue when it can be attributed to circulating capital." Similarly in The Commissioner of Income Tax Madras vs M/s. Ashok Leyland Ltd. (1) this Court observed as follows: "A long line of decisions have laid down that when an expenditure is made with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade there is good reason (in the absence of special circumstances leading to the opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital.
From the facts found, it is clear that the managing agency was terminated on business considerations and as a matter of commercial expediency.
There is no basis for holding that by terminating the managing agency, the company not only saved the expense that it would have had to incur in the relevant previous year but also for few more years to come.
It will not be correct to say that by avoiding certain business expenditure, the company can be said to have acquired enduring benefits or acquired any income yielding asset.
" It may be seen that in that case there was a finding of fact that the termination of the managing agency was purely on business considerations and as a matter of commercial expediency and that no enduring benefits were acquired by the company.
Similarly in M. K. Brothers (P) Ltd. v Commissioner of Income tax, Kalipur.(2) my brother Khanna, J., speaking for the Court indicated the real tests to determine whether an amount is of a capital nature.
In this connection the Court observed as follows: "The answer to the question as to whether the money paid is a revenue expenditure or capital expenditure depends not so much upon the fact as to whether the amount paid is large or small or whether it has been paid in lump sum or by installments, as it does upon the purpose for which the payment has been made and expenditure incurred.
It is the real nature and quality of the payment and not the quantum or the manner of the payment which would prove decisive.
If the object of making the payment is to acquire a capital (1) [19731 S.C.C. 201, 204.
(2) 34.
659 asset, the payment would partake of the character of a capital payment even though it is made not in a lump sum but by installments over a period of time.
" It would thus appear that numerous cases have laid down various tests to determine as to when on the facts and circumstances of a particular case the expenses disbursed by an assessee amount to a capital expenditure or a revenue receipt.
The classic test laid down is by Viscount Cave, L.C., in Atherton 's case (supra) where he observed at pp.
192 193 as follows: But when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circumstances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital.
" Atherton 's case (supra) has been followed by this Court in a large number of decisions such as in M/s. Ashok.
Leyland Ltd. case (supra) and Coal Shipment (P) Ltd 's case (supra) and lot of other cases.
Several tests that have been evolved over the years by this Court as also the other High Courts may be briefly formulated as follows: (1) Bringing into an ass or advantage of enduring nature would lead to the inference that the expenditure disbursed is of a capital nature These terms, such asset" or "advantage of enduring nature" are, however, purely descriptive rather than definitive and no rule of universal application can be laid down.
Ultimately the question will have to depend on the facts and circumstances of each case, namely.
quality to, and quantum of the amount, the position of the parties, the object of the transaction which has impact on the business, the nature of trade for which the expenditure is incurred and the purpose thereof etc.
(2) An item of disbursement may be regarded as of a capital nature when it is relatable to a fixed asset or capital, whereas the circulating capital or stock in trade would be treated as revenue receipt.
Lord Haldane in John Smith & Sons vs Moore(1) has aptly and adroitly explained the terms 'field capital ' and 'circulating capital ' thus: "Fixed capital is what the assessee turns into profit by keeping it in his own possession and circulating capital is what he makes profit of by parting with it and letting it change masters.
(1) , 282 660 (3) Expenditure relating to framework of business generally capital expenditure.
(4) Another important and safe test that may be laid down particularly in cases where the managing agency is terminated would be to find out whether the termination of the agency is in termination of purely voluntary for obtaining substantial benefits.
In other words, the decisive test to determine whether or not termination of the agency is in terrorem would be to find out is in such case commercial expediency requires that the agency should be terminated as it had become onerous or it was creating difficulties or the Agents were guilty of negligence etc.
It will also include payments for retrenchment compensation or conferment of benefits on employees or termination of other disadvantages or onerous relationships.
These arc some of the instances which I have given but they are by no means exhaustive The present case, however, falls within condition No (4) pointed out by us above, and the termination of the. agency cannot be said to be in terrorem but was voluntary so as to obtain an enduring or recurring benefit.
Before applying these tests to the facts of the present case, I would like to stress the important ingredients of section 10(2)(xv) of the Income tax Act, 1922 itself.
Section 10(2)(xv) runs thus: 10.
(2) Such profits or gains shall be computed after making the following allowances, namely: (xv) any expenditure not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive.
and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expanded wholly and exclusively for the purpose of such business, profession or vocation An analysis of this section would clearly show that in order to be deductible expense the amount in question must fulfil two essential conditions: (i) that expense must be laid out wholly and exclusively for the purpose of the business, profession or vocation; and (ii) that it should not be expense of a capital nature.
Both these conditions have to be complied with before an assessee can claim deduction under section 10(2)(xv).
The High Court in this case has found that while the assessee had complied with the first condition that the expenditure was incurred for the purpose of the business, yet it has held that in the circumstances the expenditure is of a capital nature.
It cannot be argued as was suggested by Mr. Asoke Sen at one time that whenever an expenditure is incurred in the course of the business it would never be a capital expenditure because section 37 of the income tax Act, 1961, 661 itself contemplates contingency where even though the expenditure may be incurred wholly and exclusively for the purpose of the business yet it may be of a capital nature.
Let us now apply the tests laid down by the Courts as specified by us to the facts of the present case.
We have already given the facts found by the Tribunal which have not been disputed before us.
In this connection there are two circumstances which clearly indicate that the expenses incurred by the assessee were not dictated by commercial expediency but were inspired be a profit hunting motive: (1) That there was absolutely no necessity to terminate the managing agency of Juggilal Kamlapat only two years after the appellant entered into agreement with them.
There was no complaint that the Agents had m any way ' caused any loss or damage to the appellant or to their reputation, nor was there anything to show that the outgoing agents were guilty of negligence, laches, fraud or negligence.
In these circumstances, therefore, the only irresistible inference that could be drown is that the assessee wanted to benefit both the firms, namely, incoming agents and the outgoing agents, which belonged to the Singhania family as found by the Tribunal and not disputed before us.
The outgoing agents were benefited because an amount of Rs. 2,50,000 was paid to them and the incoming agents were benefited because they were given the managing agency of the Company and as found by the Tribunal the appellant had pledged their goods in lieu of advance, (2) That it is the admitted case of the appellant that by virtue of the fact that the incoming agents had agreed to charge only 2% commission, the appellant got a benefit of Rs. 30,000 per annum.
this amount is a recurring benefit to the appellant and can safely be regarded as an advantage of an enduring nature so as to fall within the definition laid down by Viscount Cave, L.C In these circumstances therefore, the present case is fully covered by the 'decision of this Court in Godrej Company 's case (supra).
For these reasons we are satisfied that the High Court was right in holding that the disbursement of compensation of Rs. 2,50,000 was of a capital nature and was, therefore, not deductible expenditure under section 10(2)(xv) of the Income tax Act 1922.
We, however, feel that the High Court was in error in giving a cryptic finding that the expenditure in question was incurred wholly and exclusively for the purpose of the business.
This finding has been arrived at without considering the facts mentioned by us above and is not borne out from the facts and circumstances proved in this case.
Nevertheless we uphold the order of the High Court on reasons different from those given by the High Court.
662 We would, however, like to make it clear that we have held that the compensation paid to the outgoing Agents in the peculiar facts of the present case amounts to capital expenditure.
But we should not be understood as laying down a general rule that in all cases where compensation is paid to the Managing Agents whose agency is terminated it would amount to capital expenditure.
We have already pointed out the various tests to be applied which are by no means exhaustive, nor are they of universal application.
Each case has to be examined in the light of the circumstances of the case.
The appeal accordingly fails and is dismissed with costs.
V.P.S. Appeal dismissed. | An analysis of section 10(2) (xv) of the Income tax Act, 1922, shows that in order to be a deductible expenditure the amount has to fulfil two conditions, (i) that it must be laid out wholly and exclusively for the purpose of the business, profession or vocation.
and (ii) that it should not be an expenditure of a capital nature.
Both these conditions have to be complied with before an assessee can claim deduction under the section.
[660 G] Some of the tests that have been evolved by courts for determining when.
an the facts and circumstances of a particular case, the expenses disbursed an assessee amount to a capital expenditure or revenue receipt arc: (a) Bringing into an asset or advantage of enduring nature would lead to the inference that the expenditure is of a capital nature.
The terms `asset ' or `advantage of enduring nature ' are descriptive and the question will depend upon the facts of each case.
(b) An item of disbursement may be regarded as of a capital nature when it is relatable to a fixed asset or capital, whereas circulating capital or stock in trade would be revenue receipt.
John Smith & Sons vs Moore , 282, referred to .
(c) Expenditure relating to frame work of the business is generally of a capital nature.
(d) When a managing agency is terminated the termination is in terrorem, that is if commercial expediency requires that the agency should the terminated as it had become one, or it was creating difficulties or the agents were guilty of negligence, etc., or if any payments were made as retrenchment compensation, or confirment of benefit an employees or for termination of other disadvantages or onerous relationship it would be a capital expenditure but if it is purely voluntary obtaining substantial benefits it would be revenue expenditure.
[659E 660D] In the present case, the appellant agreed to employ a firm as its managing agent for 20 years and to pay them commission at 2 1/2%.
But after two years the appellant terminated the agreement.
The managing agents received Rs. 25,000 as compensation and executed a release deed.
The appellant thereafter employed another managing agent at 2% commission.
There was nothing to show that the out going managing agents were guilty of any faches, negligence, or that they had cause and loss or disadvantage to the appellant so as to justify the sudden termination of their agency, or that they did not agree to reduce the commission.
On the other hand, the Board of Directors paid high compliments to the outgoing managing agents.
By employing the new managing agents at the lesser commission a net profit of Rs. 30,000 was made by the appellant per annum.
The members of the outgoing and incoming agents, belonged to the same family as the appellants, showing, that the appellants were interested in both of them.
The appellant contended that the expenses of Rs. 2,50,000 was incurred by the appellant wholly and exclusively for carrying on the business or the company and would therefore be an allowable deduction under section 10(2) (xv); but the department and the Tribunal negatived the contention.
On reference, the High Court held that the expenditure was incurred wholly and exclusively for the Purpose of `appellant 's business.
as the amount was in the nature of a capital expenditure, it was not deductible under the provision.
649 Dismissing the appeal to this Court, ^ HELD: The High Court was right holding that the disbursement of compensation of Rs. 2,50,000 was of a capital nature and was therefore not a deductible expenditure under section 10(2) (xv ).
[661 (G] (1) Merely because the expenditure is incurred in the course of the business is in could not be said that it would never be a capital expenditure.
Section 37 of the 1961 Act corresponding to section 10(2)(xv) of the 1922 Act.
itself templates a contingency where, even though the expenditure us incurred wholly and exclusively for the purpose of the business, it may still be of a capital nature.
But the High Court was in error in this case in holding that the expenditure was wholly and exclusively the purpose of the business, because.
the finding is not borne out by the facts and circumstances of the case.
[660 H 661 A, G H] (2) The question whether compensation paid to the outgoing managing agents is capital or revenue expenditure depends on the facts and circumstances of each case.
[662 A B] (3) The present case is covered by the decision of this Court in Godrej Company vs C.I.T. Bombay City (47 I.T.R. 381).
That case has considered all the previous decisions and has laid down that in circumstance such as in the instant case the expenditure would be a capital expenditure in the hands of the payer and a capital receipt in the hands of the payee company within the managing of section 10(2) (xv) .
The contention that the case was concerned any as with the nature of the payment in the hands of the payee company and that the observations regarding the nature of the payment in the hands of the payer company would be abiter, is without substance.
[654C, G H] (4)(a) The appellant has brought into existence an advantage of an enduring nature by the change in managing agency, because, the amount of Rs. 30,000 which the appellant got by way of recurring benefit per annum must be regarded as an advantage of an enduring nature so as to fall within its definition in Atherton vs British Insulated and Helsby Cables Ltd. (10 T.C 671) leading to the inference that the expenditure is of a capital nature.
[661 F] (b) It was not the case of the appellant reducing its expenditure by getting rid of the managing agency and taking over the management itself to save the middleman profit.
[653 B] (c) In the present case the only inference that could be drawn from the circumstances of the case is that the termination of the managing agency by the appellant was with the oblique motive of benefiting both the managing agents, in whom the appellant was interested, and not because of and commercial expediency.
[661 D] C.I.T West Bengal II Calcutta vs Coal Shipment (P) Ltd ; , 740 41.
The Commissioner of Income tax Madras vs M/s. Ashok Leyland Ltd ; 204 and M. K. Brothers (P) Ltd. vs Commissioner of Income tax Kanpur ; , 34 followed.
Anglo Persian oil Co. (India) Ltd. vs Commissioner of Income tax 133; Commissioner of Income tax vs Shaw Wallace and Company L.R. 59 I.A. 206, 211; Karam Chand Thopar and Brothers.
(P) Ltd. vs Commissioner of Income tax (Central) Calcutta , 171.
Commissioner of Income tax Calcutta vs Turner Morrison & Company.
Private Ltd. , 156 and Greaves Cotton & Co. Ltd. vs Commissioner of Income tax Bombay City , 134, explained. |
ivil Appeals Nos. 817 to 819 of 1968 and 1456 to 1458 of 1969 From the Judgment and order dated the 19th May, 1966 and appeals by Special Leave from the Judgment and order dated the 7th November 1968 of the Punjab & Haryana High Court in C.W. No. 2205, 2206 and 2215 of 1965 and in C. Revsn.
771 to 773 of 1967 respectively.
Rameshwar Dial and A, D. Mathur for the appellants (In all the appeals) .
K. L. Gosain and E. C. Aggarwala for respdt.
Nos. 1 (In C.A. Nos. 817/68, 1456 1457/69) respdt.
Nos. 1 and 3 (in Cas.
Nos. 818/68 and 1458/69) and respdt.
No. 1 (In CA No. 819/68).
The Judgment of the Court was delivered by KRISHNA IYER,J.
These two batches of appeals stem from the same judgment but raise two different questions of law under the Punjab Security of Land Tenures Act, 1953 (Punjab Act X of 1953) (for short, the Act), the forensic focus being turned on two different facets of section 18 of the Act.
The first set of appeals relates to the right of the tenants to purchase the ownership of the common landlord, Teja, while the second set of appeals turns on the principles of compensation awardable to the landlord pursuant to the vesting of ownership in the tenant.
Taja, the landlord, was admittedly a large land owner under whom there were three tenants.
Each of them applied for purchase of ownership under section 18(1) of the Act.
The Assistant Collector, who is the primary authority, found them eligible, fixed the price and the instalments of payment, and they duly deposited the first instalment.
The statutory consequence of such deposit was that title to the property vested in the tenants on that date.
All these events took place in the early '60s.
Had the scheme of agrarian reform in the Punjab been simple and had the virtue of early finality so necessary in such a measure been present, the law would have operated with speed and changed the rural landscape radically, instead of provoking a heavy run of never ending litigation.
Section 24 of the Act has had this unwitting effect.
Too many tiers of quasi judicial review, too long at each deck and in a system which is slow moving, tempt disappointed parties to litigate to the disastrous end.
Such a statutory creation, calculated to give ultimate justice, is like a Frankenstein 's monster, the very prolonged over judicialised litigative engine, bleeding justice to death.
A legislature, with care and concern for the agrarian community should be vigilant enough to design a quick and competent legal engineering project absent by contrast in most land reform laws blessing the rural poor.
And it is noteworthy that legal battles are fought largely before Collectors, Commissioners and Financial Commissioners and then the writ chapter begins.
This litigation, it is worthy of note, began before the Collector in 1961/62.
A fundamental assessment of the comparative economic and social costs of multi decked determination procedure would have induced the legislature to reduce institutional levels of adjudication.
This is by the way, although we strongly recommend that the legislatures do pay serious attention to producing an early termination to land reform reordering by a mammoth and immediate decision making instrumentality.
849 C.As 817 819/68 Shortly put, and shorn of details, the simple contention of the appellants in these appeals is that although their prepositus Teja was a large landowner, on his death his heirs, the present appellants, became entitled to shares and, in this process of fragmentation, they became 'small landowners ' within the meaning of section 2(2) of the Act.
This event occurred after the tenants had been found entitled to purchase from the landowner the lands held by them and after they had deposited the first instalment as set down in section 18(4).
The plea is that an appeal is a continuation of the original proceeding and, therefore, if there is a change of circumstances in the landlord 's ownership during the pendency of the appeal, resulting in his legal representatives becoming 'small landowners ', the tenants will be disentitled to purchase the land.
Of course, a tenant of a 'small landowner ' has no right to purchase the land.
But, in the present case, the landowner admittedly was a large landowner at the time the tenants applied for purchase.
Section 18(1) reads, dropping the irrelevant portions, thus: "18.
Right of certain tenants to purchase land: (1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a land owner other them a small landowner (i) (ii) (iii) shall be entitled to purchase from the land owner the land so held by him . in the case of a tenant falling within cl.(i) or cl.(ii) at any time, and in the case of a tenant falling within cl (ii) within a period of one year from the date of commencement of this Act." It is common case that the application has been made in time and that at the time such application was made, the tenants were competent to buy the land.
Section 18(4) (a) and (b) may, at this stage, be read: "18(4) (a) The tenant shall be competent to pay the purchase price either in a lump sum or in six monthly instalments not exceeding ten in the manner prescribed.
(b) on the purchase price or the first instalment there of, as the case may be, being deposited, the tenant shall be deemed to have become the owner of the land, and the Assistant Collector shall, where the tenant is not already in possession and subject to the provisions of the Punjab Tenancy Act , (XVI of 1887), put him in possession thereof.
" It is absolutely plain that on the deposit of the first instalment of the purchase price, the tenant shall be deemed to have become the owner of the land.
In the present case, all these happenings had resulted in the respondents becoming the owners.
850 The death of the large landowner occurred pending the appeal.
the argument of counsel for the appellant, which found favour with the Financial commissioner, but failed before the High Court, is that an appeal being a re hearing of the suit, relief must be given to the legal representatives of the original landowner who, by devolution, became small landholders.
If this contention be sound, the tenants would have to be denied relief since they would be holding under small landowners.
The solitary point which thus falls for determination is as to whether the subsequent event of the landowner 's death at the appellate stage unsettles the right acquired by the tenants or whether the tribunal must uphold rights which have crystallized as on the date the applications were made and, in any event, the deposits of the first instalment were made by each of the tenants.
We see no difficulty in answering this question against the appellant, but, in view of the persistent submission based upon a few rulings of this Court, the Federal Court and the High Courts, made by counsel for the appellant, we may as well consider the question of law , adopting an interpretative attitude which will further and not frustrate the legislative will in case there are alternative choices for the Court.
Of course, a construction which will promote predictability of results, maintenance of reasonable orderliness, simplification of the judicial task advancement by the Court of the purpose of the legislation and the judicial preference for what it regards as the sounder rule of law as between competing ones, must find favour with us.
A plain reading of section 18, without reference to consideration of subsequent events at the appellate level, yields the easy and only conclusion that the rights of parties are determined on the date they come to Court and what is an insurmountable obstacle to any other construction is that once the deposit is made the title to the land vests in the tenant.
Agrarian reform law affects a considerable number of people and to keep rights uncertain over a long stretch of time till appeals and reviews and revisions and other processes are exhausted, is to inject unpredictability of results, for it is quite on the cards that a landlord may die in the long course of litigation, or other events may happen at later stages beyond the trial Court.
Can rights of parties fluctuate with such uncertain contingencies ? If so, stabilization of land ownerships, so vital to the new pattern of agrarian relations, will be postponed for a long time.
Is not the judicial task simplified by adopting the golden rule that the rights of parties must be determined when they seek justice and not when the last Court has had its last say, long years after the litigation was initiated ? A system of orderliness about rights in land will result from this approach.
More than all, the sounder rule of law as between rival claims to consideration of, or indifference to, subsequent events is surely that which excludes the later event factually or legally.
Such a reading of the statutory scheme rhymes well with rapid agrarian reform contemplated by the framers.
The philosophy of the approach which commends itself to us is that a litigant who seeks justice in a perfect legal system gets it when he asks for it.
Rut because human institutions of legal justice function slowly, and in quest of perfection, appeals and reviews at higher levels are provided for, the end product comes considerably late.
But these higher Courts pronounce upon the rights of parties as the facts stood when the 851 first Court was first approached.
The delay of years flows from the infirmity of the judicial institution and this protraction of the Court machinery shall prejudice no one.
Actus curiae neminem gravabit(1).
Precedential support invoked by the appellant 's counsel also lets him down provided we scan the fact situation in each of those cases and the legal propositions therein laid down.
The realism of our processual justice bends our jurisprudence to mould, negate or regulate reliefs in the light of exceptional developments having a material and equitable import, occurring during the pendency of the litigation so that the Court may not stultify itself by granting what has become meaningless or does not, by a myopic view, miss decisive alterations in fact situations or legal positions and drive parties to fresh litigation whereas relief can be given right here.
The broad principle, so stated, strikes a chord of sympathy in a court of good conscience.
But a seeming virtue may prove a treacherous vice unless judicial perspicacity, founded on well grounded rules, studies the plan of the statute, its provisions regarding subsequent changes and the possible damage to the social programme of the measure if later events are allowed to unsettle speedy accomplishment of a re structuring of the land system which is the soul of this which enactment.
No processual equity can be permitted to sabotage a cherished reform, nor individual hardship thwart social justice.
this wider perspective explains the rulings cited on both sides and the law of subsequent events on pending actions.
In P. Venkateswarlu vs Motor & General Traders(2) this Court dealt with the adjectival activism relating to post institution circumstances Two propositions were laid down.
Firstly, it was held that 'it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding '.
This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted.
Granting the presence of such facts, then he Is entitled to its enforcement.
Later developments cannot defeat his right because, as explained earlier, had the court found his facts to be true the day he sued he would have got his decree.
The Court 's procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action.
This position finds support in Bhajan Lal vs State of Puniab(3) .
The impact of subsequent happenings may now be spelt out.
First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights.
Where the nature of the relief as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or re shaped in the light of dated facts.
Patterson(4) illustrates this position.
It is important (1) "An act of the court shall prejudice no one" Lalin for lawyers Sweet & Maxwell.
(2) A. I. R. , 1410.
(3) (4) Patterson vs State of Alabama ; , 607; 852 that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow.
Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs.
Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage.
Lachmeshwar Prasad Shuku vs Keswar Lal Chaudhuri(1) falls in this category.
Courts of justice may, when the compelling equities of a case oblige them, shape reliefs cannot rights to make them justly relevant in the updated circumstances.
Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice.
Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to in ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact.
Venkateswarlu (supra), read in its statutory setting, falls in this category.
Where a cause o action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side.
All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief.
The primary concern of the court is to implement the justice of the legislation.
Rights vested by virtue of a statute cannot be divested by this equitable doctrine (See Chokalingam Chetty: P.C.).
The law stated in Ramji Lal vs the State of Punjab(2) is sound: "Courts do very often take notice of events that happen.
subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff 's suit would be wholly displaced by the proposed amendment (see Steward vs The North Metropolitan Tramways Company and a fresh suit by him would be so barred by limitation.
" One may as well add that while taking cautious judicial cognizance of 'post natal ' events, even for the limited and exceptional purposes explained earlier, no court will countenance a party altering, by his own manipulation.
a change in situation and plead for relief on the altered basis.
The apparently divergent strains of the several decisions has persuaded us to dilate on this branch of processual jurisprudence.
Let us now apply the law to the circumstances here.
The legislation we are interpreting relates to agrarian reform, regarded as the vitaI base to build a (1) (2) I. L. R. [1966] Punj.
125. 853 new social order.
The Constitution has stressed not merely the supreme significance of this rural transformation but the fleet footed implementation thereof, even going to the extreme extent of walling off litigative assaults on constitutionality by creation of the Ninth Schedule and the like.
Moreover, the Act itself takes care to prevent future accumulation of lands or motivated slimming process by transfers, interfering with the scheme of surplus pool and settlement of ejected tenants and the like.
Peasant proprietorship is a cherished goal of the statute and so it provides that even on the payment of the first instalment of the price the tenant gets the title of the landlord.
To hold that, if the landlord dies at some distant date after the title has vested in the tenant, the statutory process would be reversed if by such death, his many children, on division, will be converted into small landholders, is to upset the day of reckoning visualized by the Act and to make the vesting provision 'a teasing illusion ', a formal festschrift to agrarian reform, not a flaming programme of 'now and here '.
These surrounding facts drive home the need not to allow futurism,, in a dawdling litigative scene, to foul the quick legislative goals.
Moreover, the right of the respondents is fixed under section 18(1 ) and (41 and that cannot be uprooted by supervening circumstances.
We are not called upon to mould the relief but to reject the right.
We are not asked to avoid multiplicity of suits but to non suit and thus stultify the agrarian law.
We are not required to permit the appellate authority to re assess the facts as they stood when the action was brought (that is part of appellate power) but to project the landholder 's subsequent death backwards to refuse a right already acquired.
A flash back camera, in this context, frustrates forensic objectives.
Individual misfortune may be real but larger social changes will claim martyrs in law and in fact.
How can we miss the sublime impact of the Passion of Christ for the Redemption of Mankind ? The great fact is that, if uniformly relentlessly and swiftly enforced, neither landlord nor tenant can keep more than the 'permissible area '.
That is the equity and equality of this agrarian law.
We see no merit in the appeals and dismiss them, leaving parties to bear their respective costs throughout.
1456 1458/69 These appeals raise an interesting question of law bearing on compensation payable to landholders whose lands are vested in tenants and this turns on the connotation of 'similar land ' in section 18(2) of the Act in the context of averaging the price for ten years before the filing of the application for purchase.
The primary fact which projects this point 854 Of law is as to whether the purchased land is irrigated or non irrigated for purposes of valuation.
We are relieved from the need to investigate the implications of the issue because the factual foundation about the nature of the land in question was never put in issue nor considered in the High Court.
Thus the appellants have missed the bus and we cannot hear them on a question raised de novo and demanding enquiry into facts not raised at the next below level.
We dismiss these appeals, without costs.
V.M.K, Appeals dismissed. | Section 18(1) of the Punjab Security of Land Tenures Act, 1953.
lays down that, notwithstanding to the contrary contained in any law, usage or contract, a tenant of a land owner other then a small land owner shall be entitled to purchase from the land owner the land so held by him in the Case of a tenant falling within Cl.
(i) or cl.
(ii) at any time.
and in the case of a tenant falling within Cl.
(iii) within a period of one year from the date of commencement of this Act.
Section 18(4)(a) provided that the 'tenant shall be competent to pay the purchase price either in a lump sum or in six monthly instalments not exceeding ten in the manner prescribed.
Clause (b) provided that, on the purchase price or the first instalment thereof, as the case may be, being deposited, the tenant shall be deemed to have become the owner of the land.
Teja, the landlord was a large land owner under whom there were three tenants.
Each o them applied for purchase of ownership under section 18(1) of the Act.
The Assistant Collector found them eligible, fixed the price and the instalments of payment, and they duly deposited the first instalment.
After this Teja died.
Before the Financial Commissioner, the appellants contended that on the death of Teja, they as the heirs of 'Teja, became entitled to shares and, in this process of fragmentation, they became small landowners within the meaning of section 2(2) of the Act and therefore the tenants will be disentitled to purchase the land.
Their plea was that an appeal is a continuation of the original proceeding and, therefore is there is a change of circumstances in the landlord 's ownership during the pendency of the appeal, resulting in his legal representatives becoming small landowners ' the tenants will be disentitled to purchase the land.
The appellants succeeded before the Financial Commissioner, but failed before the High Court.
This appeal has been preferred on the basis of the special leave granted by this Court.
Dismissing the appeals, ^ HELD: (i) It is absolutely plain that on the deposit of the first instalment of the purchase price, the tenant shall be deemed to have become the owner of the land.
In the present case, all these happenings had resulted in the respondents becoming the owners.
[849 H] (ii) Where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in law and it is made applicable at any stage.
[852 B] P. Venkataswarlu vs Motor & General Traders ; , 1410, Bhajan Lal vs State of Panjab , Patterson vs State of Alabama ( 1934) 294 U.S. 600, 607 Lachmeshwar Prasad Shukul v, Keshwar Lal Chau ; , 607 Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri and Ramji Lal vs The State of Panjab, I.L.R. [1966] Punj.
125 referred to.
The death of the large landowner occurred pending the appeal.
The right of the respondents is fixed under sub sections (1) and (4) of S 18 of the Act and that cannot be uprooted by supervening circumstances.
A plain reading of section 18 Yields the only conclusion that the rights of parties are determined on the date they come to court.
[853 D] 6 1127SCI/75 848 |
Civil Appeal No. 1154 of 1972.
Appeal by special leave from the Judgment and order dated 18th December, 1969 of the Allahabad High Court in Special Appeal No. 324 of 1962.
827 Yogeshwar Prasad, section K. Bagga, Mrs. section Bagga and Miss Rani Arora, for the appellant.
G. N. Dikshit and O. P. Rana, for the respondent.
The Judgment of the Court, was delivered by ALAGIRISWAMI, J.
The appellant is a tenant of plot No. 428 in mauza Dehra Khas, pargana Central Doon, district Dehradun.
This land along with some other pieces of land was notified under section 4(1) of the Land Acquisition Act on February 8, 1962 for acquisition for the purpose of setting up an industrial estate at Dehradun.
By the same notification, under section 17(4) of the Act it was directed that the provisions of section 5A shall not apply on the ground that the provisions of section 17(1) were applicable to the facts of the case.
He filed a writ petition out of which this appeal arises for the issue of a writ of certiorari for quashing the notification dated 8th February, 1962.
He made various allegations which it is not necessary to go into for the purpose of this appeal.
A learned single Judge of the Allahabad High Court dismissed the petition and an appeal filed by him was dismissed by a Division Bench of the same High Court.
The only point argued before us was that there was a pucca construction on plot No. 436 which was also notified for acquisition under the impugned notification and consequently the provisions of s.17(4) would not be applicable to that land as it was not arable or waste land which could be acquired by dispensing with the enquiry under s.5A and as such the whole notification is bad and should be quashed.
Admittedly the appellant 's land is a waste and arable land and thus falls under s.17 (1) .
There was therefore no objection to the Government dispensing with the provisions of s.5A by resorting to the power conferred by s.17(4).
The person who could have taken objection to the enquiry under section 5A being dispensed with was the owner of plot No. 436.
He has not objected to the acquisition.
He has taken the compensation awarded to him and walked out.
It is, therefore? not open to the appellant to question the validity of this notification.
If possibly the owner of the land sought to be acquired but any person in the locality derations might arise.
The appellant who is only the owner of plot No. 428 in relation to which section 17(1) and 17(4) are applicable and therefore enquiry under s 5A could properly be dispensed with, cannot object to the same notification because the notification also relates to another land to which s.17(1) and 17(4) are not applicable when the owner of that land has not chosen to challenge the notification.
on behalf of the appellant, however, reliance was placed on certain observations of this Court in Sarju Prasad vs State of U.P.(1) to.
the following effect: "It was contended by Mr. section P. Sinha appearing on behalf of the Municipal Board, Basti, that a part of the land notified for acquisition was waste or arable and in support of his contention, counsel referred us to certain revenue record.
But (1) A. I. R. 828 if only a part of the land is waste or arable and the rest is not, notification under section 17(4) dispensing with compliance with the requirements of section 5 A would be invalid.
It would not be open to the Court to regard the notification as partially good and partially bad, for if the State had no power to dispense with the inquiry in respect of any part of the land notified under section 4(1), an inquiry must be held section 5 A giving an opportunity to persons interested in the land notified to raise the objections to the proposed acquisition and in that inquiry the persons interested cannot be restricted to raising objections in respect of land other than waste or arable land " That case is the converse of the present case.
The appellant therein was a person who was entitled to object to the notification.
Under those circumstances the question whether the notification is to be quashed completely or only partially might well arise.
But such a question cannot arise where a person like the appellant has no right to impugn the notification.
It was, however, urged that under section 5 A(1) it is not only the owner of the land sought to be acquired but any person in the locality may object and his objections will have to be heard.
Section 5 A(l) reads as follows: "5A.(1) Any person interested in any land which has been notified under section 4, sub section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality.
as the case may be. "This section should be understood in the background of the provisions of section 4(1) which reads as follows s "4.(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.
" It may be noticed that under this section what is necessary is that only the locality the land in which appears to the appropriate Government as needed or as likely to be needed for any public purpose need be specified in the notification under that section.
But in actual practice always the survey numbers of the lands sought to be acquired are given in such notifications.
The question of notifying the locality might probably arise when all the lands in a village are sought to be acquired otherwise the word 'locality ' is a word of such indefinite import that it is difficult to conceive of any locality in any particular village being notified for acquisition.
Therefore when a locality in the sense of a village or perhaps a group of villages is notified for acquisition any person interested in any 829 land in that locality would be entitled to be heard under section 5A.
But where the land proposed to be acquired is specifically mentioned in the notification it is only the person interested in that land who is entitled to be heard under section 5A.
That is why s.5A provides that any person interested in any land which has been notified under s.(1) may object to the acquisition of the land or of any land in the locality as the case may be.
The latter part would apply to a case where lands in any locality are notified under section 4(1).
That is the significance of the use of the words "as the case may be".
To give and other interpretation to this section would mean that any person interested in any land which has been notified may object to the acquisition of his land or to the acquisition of any land ill the locality.
This cannot be correct because he would not be a person interested in any land in the locality which is a pre requisite before a person can object to the acquisition of any land.
In other words in the background of section 4 (1), section 5A provides that where land in any locality is notified under section 4(1) any person who is interested in any land in the locality may object to the acquisition of his land or any land in the locality as the case may be.
We are therefore of opinion that there are no merits in this appeal.
It is accordingly dismissed with costs P.H.P. Appeal dismissed. | The appellant is a tenant or Plot No. 428.
A notification was issued under Section 4 (1) of the Land Acquisition Act for setting up an industrial estate in respect of Plot No. 428 and Plot No. 436.
By a notification under Section 17 (4) the provisions of section 5A were dispensed with in the ground that provisions of section 17(1) (Urgency) were applicable.
The appellant filed a Writ Petition in Hugh Court challenging the said notification issued under section 17 (4) The Single judge dismissed the Writ Petition.
An appeal filed to the Division Bench was also dismissed.
On an appeal by Special Leave, it was contended by the appellant that there was a pucca construction on Plot No. 436 which was also notified for acquisition under the impugned notification and consequently the provisions of Section 17 (4) would not be applicable to that land as it was not arable or waste land and could not be acquired by dispensing with the enquiry under section 5A and as such, the whole notification is bad and should be quashed.
Dismissing the appeal, ^ HELD: 1.
Admittedly the appellant 's land is a waste and arable land and thus falls under section 17(1).
The person who could have taken objection to the enquiry under section 5A being dispensed: with was the owner of Plot No. 436.
He has not objected to the acquisition it is, therefore, not open to the appellant to question the validity of the notification.
If the owner of Plot No. 436 had objected to the notification different considerations might arise.
Sarjoo Prasad vs State of U.P. (AIR distinguished.
[1827E F] 2.
Section 5A should be understood in the back ground of section 4(1).
Section 4 ( I ) requires only the locality in which the land is situate, to be mentioned in the notification.
But in actual practice the survey numbers of the lands sought to be acquired are given in such notifications.
The question of notifying the locality might probably arise when all the lands in village are sought to be acquired.
Otherwise.
the word locality is a word of such indefinite import that it is difficult to conceive of any locality in any particular village being notified for acquisition.
When a locality in the sense of a village or a group of villages in notified for acquisition any person interested in any land in that locality would be entitled to be, heard under section 5A.
But where land proposed to be acquired is specifically mentioned in the notification it is only the person interested in that land who is entitled to be heard under section 5A.
That is why section 5A provides that any person interested may object to the acquisition of land or of any land in the locality as the case may be.
The latter part would apply to a case where lands in.
any locality are notified under section 4 ( 1 ) .
That is the significance of the use of the words "as the case may be.
" Any person unconnected with land cannot object to the acquisition of the land in the locality since he would not be a person interested.
[828 F H 829A C] |
Civil Appeal No. 200 of 1954.
Under Article 133 of the Constitution and section 109 of the Code of Civil Procedure from the Judgment and decree dated the 6th December 1952, of the Circuit Bench of the Punjab High Court at Delhi (Weston C.J. and Bhandari J.) in Regular First Appeal No. 72 of 1952, arising out of the Judgment and Decree dated the 14th day of April 1952, of the Court of Subordinate Judge, Delhi in Suit No. 657 of 1950.
N. C. Chatterjee, (Tarachand Brijmohanlal and B. P. Maheshwari, with him) for the Appellant.
R. section Narula, for the Respondent, 405 1955.
April 21.
The Judgment of the Court was delivered by BosE J.
The defendant appeals.
The plaintiffs were the partners of a firm known as Harnam Singh Jagat Singh.
Before the partition of India they carried on the business of cotton cloth dealers at Lyallpur which is now in Pakistan.
The defendant is the Delhi Cloth and General Mills Co. Ltd. It is a registered company carrying on business at Delhi and other places and has its head office at Delhi.
One of the places at which it carried on business before the partition was Lyallpur.
The plaintiffs ' case is that they carried on business with the defendant company for some three or four years before 1947 and purchased cloth from the company from time to time.
In the course of their business they used to make lump sum payments to the defendant against their purchases.
Sometimes these were advance payments and at others the balance was against them.
When there was an adverse balance the plaintiffs paid the defendant interest: see the plaintiff Sardari Lal as P. W. 3.
On 28 7 1947 the account stood in the plaintiffs ' favour.
There was a balance of Rs. 79 6 6 lying to their credit plus a deposit of Rs. 1,000 as security.
On that day they deposited a further Rs. 55,000 bringing the balance in their favour up to Rs. 56,079 6 6.
The defendant company delivered cloth worth Rs. 43,583 0 0 to the plaintiffs against this amount at or about that time.
That left a balance of Rs. 11, 496 6 6.
The suit is to recover this balance plus interest.
The claim was decreed for Rs. 12,496 6 6 and this was upheld on appeal to the High Court.
The defendant appeals here.
The defendant admits the facts set out above but defends the action on the following ground.
It contends that when India was partitioned on 15 8 1947, Lyallpur, where these transactions took place and where the money is situate, was assigned to Pakistan.,.
The plaintiffs fled to India at this time and thus 406 became evacuees and the Pakistan Government froze all evacuee assets and later compelled the defendant to hand them over, to the Custodian of Evacuee Property in Pakistan.
The defendant is ready and willing to pay the money if the Pakistan Government will release it but until it does so the defendant contends that it, is unable to pay and is not liable.
The only question is, what are the rights and liabilities of the parties in those circumstances? The amount involved in this suit, though substantial, is not large when compared with the number of claims by and against persons in similar plight.
The defendant itself is involved in many similar transactions.
A list of them appears in exhibit D 11.
Mohd Bashir Khan, D.W. 1, says that the total comes to Rs. 1,46,209 1 9.
The defendant has accordingly chosen to defend this action as a test case.
The further facts are.
as follows.
At the relevant period, before the partition, cloth was rationed and its distribution controlled in, among other places, the Punjab where Lyallpur is situate.
According to the scheme, quotas were allotted to different areas and the manufacturers and suppliers of cloth could only distribute their cloth to retailers in accordance with those quotas, and dealers in those areas could only import cloth up to and in accordance with the quotas allotted to them.
If the suppliers themselves had a retail shop or business in a given area, then the quota for that area was divided between the supplier and a Government quota holder or quota holders called the nominated importer or importers.
The local agency of the suppliers was permitted to import up to the portion of the quota allotted to it in that area and the suppliers were obliged to give the balance of the quota to the Government quota holder or holders.
The plaintiffs were the Government quota holders for Lyallpur and the defendant company also carried on business there through the General Manager of the Lyallpur Mills.
It is admitted that the defendant owns these mills but it is a matter of dispute before us whether the mills are a branch of the defendant company; but 407 whatever the exact status of the Lyallpur mills may be, it is clear from the evidence and the documents that the General Manager of these mills conducted the defendant 's cotton business at Lyallpur.
It seems that the details of the cloth distribution scheme for Punjab, in so far as it affected the defendant company, were contained in a letter of the 24th October 1945 from the Secretary, Civil Supplies Department, Punjab.
That letter has not been filed and so we do not know its exact contents but reference to it is found in a series of letters written by the defendant company from Delhi to the District Magis trate at Lyallpur.
Those letters range in date from 3 1 1946 to 19 4 1947: (Exs.
P 5 to P 12).
They are all in the same form, only the figures and dates differ.
It will be enough to quote the first, exhibit P 5.
It is dated 3 1 1946 and is from the Central Marketing Organisation of the defendant company, the Delhi Cloth and General Mills Co. Ltd. It is written from Delhi to the District Magistrate, Lyallpur, and is as follows: "The District Magistrate, Lyallpur.
Re: Cloth Distribution Scheme.
Dear Sir Ref:Letter No. 15841 CL (D) 45/8342 of 24th Oct. 1945 from Secretary, Civil Supplies Deptt.
Punjab Govt., Lahore.
Kindly note that we have allotted 28 bales for your district for the month of January 1946.
Out of this a quantity of 18 bales will be despatched to our Retail stores in your district/State and the balance of 10 bales will be available for delivery to your nominated importer.
We shall be obliged if you kindly issue instructions to your nominated importer to collect these goods from us within 15 days of the two dates for delivery fixed, namely by the 20th of January and 5th of February 1946 respectively.
It may be noted that the first half quota will lapse in case delivery is 52 408 not taken by you by the former date and the second half will lapse if not taken by the latter date.
Yours faithfully, D.C. & Gen. Mills Co., Ltd. In each case a copy was sent to the plaintiffs marked as follows: "Copy to nominated importer: Jagat Singh Harnam Singh, Cloth Merchants, Lyallpur".
The Indian Independence Act, 1947 was passed on 18 7 1947 and the district of Lyallpur was assigned to Pakistan subject to the award of the Boundary Commission.
Then followed the partition on 15 8 1947 and at or about that time the plaintiffs fled to India.
This made them evacuees according to a later Ordinance.
But before that Ordinance was promulgated the Assistant Director of Civil Supplies, who was also an Under Secretary to the West Punjab Government, wrote to the defendant 's General Manager at Lyallpur (the General Manager of the Lyallpur Cloth Mills) on 17 2 1948 and told him that "The amount deposited by the non Muslim dealers should not be refunded to them till further orders".
(exhibit D 1).
The defendant did all it could, short of litigation, to protest this order and to try and get it set aside.
Its General Manager at Lyallpur wrote letters to the Assistant Director of Civil Supplies on 14 4 48, 9 8 48 (Exs.
D 2 and D 4) , 23 4 49 (exhibit D 7) and 6 6 49 (exhibit D 8), but the replies were unfavourable.
On 30 4 48 the Assistant Director said that "in no case" should the sums be refunded (exhibit D 3) and on 1 1 1 48 directed that these amounts should be deposited with the Custodian of Evacuee Property (exhibit D 5).
This was in accordance with an Ordinance which was then in force.
Later, on 8 11 48, the General Manager received orders from the Deputy Custodian that the moneys should be deposited with the Deputy Custodian(Ex.
D 6) and on 23 6 49 these orders were repeated by the Custodian (EX.D 9).
Meanwhile, the plaintiffs, who by then had shifted 409 to Delhi, made a series of demands on the defendant in Delhi for payment.
These are dated 3 1 49 (exhibit P.W. 4/4), 27 1 49 (exhibit P.W. 4/1), 11 3 49 (exhibit P.W. 4/3) and 26 3 49 (exhibit P.W. 4/2).
The defeddant 's attitude is summed up in its letter to the plaintiffs dated 12 2 49 (exhibit P 3).
The defendant said that its had received orders from the West Punjab Government, through the Assistant Director of Civil Supplies, not to make any refunds without the orders of the West Punjab Government.
On 15 10 1949 the Ordinance of 1948 was replaced by Ordinance No. XV of 1949 (exhibit D 26) but that made no difference to the law about evacuee funds and properties.
On 4 7 1950 the plaintiffs served the defendant with a notice of suit (exhibit P 14).
This notice was forwarded to the defendant 's General Manager at Lyallpur by the defendant 's Managing Director in Delhi urging the General Manager to try and obtain the sanction of the West Punjab Government for payment of the money to the plaintiffs; and on 27 7 1950 the defendant wrote to the plaintiffs saying "We confirm that the sum of Rs. 11,496 6 6 and Rs. 1,000 are due to you on account of your advance deposit and security deposit respectively with our Lyallpur Cotton Mills, Lyallpur, and the sum will be refunded to you by the said Mills as soon as the order of prohibition to refund such deposits issued by the West Punjab Government and served upon the said Mills is withdrawn or cancelled, and that your claim shall not be prejudiced by the usual time limit of three years having been exceeded ' (exhibit P 4).
The defendant 's reply did not satisfy the plaintiffs, so they instituted the present suit on 16 12 1950.
After the suit, the defendant 's Managing Director wrote personally to the Joint Secretary to the Government of Pakistan on 2 4 1951 but was told on 21 4 1951 that the matter had been carefully examine and that the money must be deposited with the Custodian (exhibit D 25).
A second attempt was made 30 4 1951 (exhibit D 24) and the Joint Secretary was again approached.
Soon after, an Extraordine 410 Ordinance was promulgated on 9 5 1951 (exhibit D 27) exempting "cash deposits of individuals in banks" from the operation of the main Ordinance.
But the Joint Secretary wrote on 2 6 1951 that this did not apply to private debts and deposits and again asked the defendant to deposit the Money with the Custodian (exhibit D 23).
Finally, the Custodian issued an order on 6 11 1951 directing that the deposits be made by the 15th of that month, "failing which legal action will have to be taken against you".
(exhibit D 10).
The money was deposited on 15 11 1951 on the last day of grace (exhibit D 12).
The first question that we must determine is the exact nature of the contract from which the obligation which the plaintiffs seek to enforce arises.
The sum claimed in the suit, aside from the interest, is made up of three items: (1)Rs.
79 6 6 outstanding from a previous account; (2)Rs.
11,496 6 6 being the balance of a sum of Rs. 55,000 deposited on 28 7 1947; and (3) Rs. 1,000 as security.
The three items appear to be linked up but we ' will, for the moment, concentrate on the largest, the deposit of Rs. 55,000.
Both sides have spoken of it as a "deposit" throughout but we will have to examine its exact nature because deposits are of various kinds and it will be necessary to know which sort this was before we can apply the law.
Unfortunately, the evidence is meagre and scrappy, so we have been obliged to piece much disjointed material together to form an intelligible pattern.
It is admitted that the distribution of cloth in this area was controlled by the Government of Punjab (in undivided India) at all material times.
It is also admitted that the plaintiffs were, what were called, "Government nominees" for Lyallpur.
In the plaint the plaintiffs also called themselves the "reserve dealer".
This term has not been explained but the use of these words and the words "nominated importer", indicates that the plaintiffs occupied a privileged ]position.
The letters (Exs.
P 5 to P 12), on 411 which the plaintiffs relied very strongly, also point to that; exhibit P 5, for example, shows that the defendant was obliged to give 10 bales out of a quota of 28 for that area to the plaintiffs under the orders of the Punjab Government and could only keep 18 for its own retail stores in the month of January 1946.
In April the defendant was allowed to keep all 28 but in July the distribution was 35: 25 in the plaintiff 's favour.
In September, November (1946) and April 1947 it was half and half.
In February and March 1947 it was 10 : 26 and 29 : 26 for the plaintiffs and the defendant 's stores respectively.
Now, ordinarily, a privilege has to be paid for and it seems that the price of this privilege was (1) payment of a security deposit of Rs. 1,000 and (2) payment of a second deposit against which cloth was issued from time to time in much the same way as a banker hands out money to a customer against deposits of money in a current account, only here the payments were issues of cloth instead of sums of money.
We draw this inference from what we have said above and from the following facts: (1) Both sides have called the payment a "deposit" in their pleadings; (2) The plaintiffs speak of receiving goods "against this deposit" (paragraph 3 of the plaint) and Mohd. Bashir Khan (D.W. 1) of delivery being made "against this advance"; (3) The plaintiff Sardari Lal (P.W. 3) says that the parties have been carrying on dealings for 3 or 4 years and that "advances used to be made to the mills from time to time.
Sometimes our balance stood at credit"; (4) Sardari Lal says that when their balance was on the debit side, they paid the defendant 's interest but the defendant paid no interest when the balance was in the plaintiffs ' favour.
(This is the position when there is an overdraft in a bank); (5) There was a balance of Rs. 79 6 6 standing in the, plaintiffs ' favour when the deposit of Rs. 55,000 was made; (6) The plaintiffs said in their letter (exhibit P.W. 4/1) 412 to the defendant that they had a "current account" with the defendant in which a sum of Rs. 11,496 6 6 was in "reserve account".
This figure of Rs. 11 ,496 6 6 is made up by including the old balance of Rs. 79 6 6 in this account; (7) In their letter exhibit P 14 the plaintiffs said that they had "deposited" money in the plaintiffs ' account at Lyallpur "as reserve dealers", against that they received goods leaving a balance of Rs. 11,496 6 6.
Again, this figure includes Rs. 79 6 6.
All this shows that the payment of Rs. 55,000 was not just an advance payment for a specified quantity of goods but was a running account very like a customer 's current account in a bank.
The only matter that can be said to indicate the contrary is the fact that the defendant has listed this money in exhibit D 11 under the head "Purchaser 's advance".
But the mere use of this term cannot alter the substance of the transactions any more than the mere use of the word "deposit".
The fact that the parties choose to call it this or that is, of course, relevant but is not conclusive, and in order to determine the true nature of a transaction it is necessary to view it as a whole and to consider other factors.
But in this case we need not speculate because the plaintiffs have themselves explained the sense in which the term "Purchasers advance account" is used.
In their statement of the case which they filed here, they say "The defendants maintained a 'Purchasers advance account ' in their books at Delhi.
The plaintiffs used to pay the defendants advance amounts against which cloth was supplied and the balance had to be adjusted periodically".
But the banking analogy must not be pushed too far.
The stress laid by the parties on the terms "Government nominees", "nominated importer" and Preserve dealer", both in the correspondence and in the pleadings and evidence, suggests that the defendant was dealing with the plaintiffs in their capacity of "Government nominees" and that, in its turn, imports the condition that the dealings would stop the moment the plaintiffs ceased to occupy that pri 413 vileged position.
As we have seen, the import of cloth was controlled by the Punjab Government at all relevant times with the result that the defendant could not sell to anybody it pleased.
The sales had to be to the Government nominees.
Therefore, if Government withdrew their recognition, the defendant would not have been able to sell to the plaintiffs any longer and it is fair to assume that the parties did not contemplate a continuance of their relationship in such an eventuality.
But, as this was not a definite contract for the supply of a given quantity of goods which were to be delivered in instalments but a course of dealings with a running account, it is also reasonable to infer that the parties were at liberty to put an end to their business relationship at anytime they pleased by giving due notice to the other side and in that event whichever side owed money to the other would have to pay.
But, either way, the place of performance would, in these circumstances, be Lyalipur.
We say this because all the known factors were situate in Lyallpur.
The plaintiffs were the Government nominees for Lyallpur and they were resident there.
The defendant carried on business there and the goods had to be delivered at Lyallpur and could not be deliverer] elsewhere, and so performance was to be there.
The accounts were kept at Lyallpur, and though copies appear to have been forwarded to Delhi from time to time, the books were situate there and the Lyallpur office would be the only place to know the up to the minute state of the accounts.
In the circumstances, it is reasonable to assume, as in the case of banking and insurance (matters we shall deal with presently), that on the termination of the contract the balance was to be paid at Lyallpur and not elsewhere.
That localises the place of primary obligation.
This also, in our opinion, imports another factor.
The defendant in Delhi would not necessarily know of any change of recognition by the Lyallpur authorities.
The correspondence with the Collector indicates that the Government nominee cleared the goods from the defendant 's Lyallpur godowns under the orders of the District Magistrate.
If, therefore, the 414 nominee was suddenly changed, intimation of this fact would have to be given to the defendant at Lyallpur and not at Delhi, otherwise there would be a time lag in which the defendant ' Lyallpur office might easily deliver the goods to the plaintiffs as usual despite withdrawal of the recognition.
Everything therefore points to the fact that the notice of termination would have to be given at Lyallpur and the obligation to return the balance would not arise until this notice of termination was received.
That obligation would therefore necessarily arise at Lyallpur.
The plaintiffs ' learned counsel argued very strongly that the defendant 's Lyallpur business was carried on from Delhi and that the accounts were kept there, that there was no branch office at Lyallpur and that Lyalipur had no independent local control of the business.
He relied on the letters written by the defendant to the District Magistrate, Lyallpur, about the allotments of quotas (Exs.
P 5 to P 12) and also on exhibit D 7, a letter written by the defendant 's General Manager at Lyallpur to the Deputy Custodian of Evacuee Property at Lyallpur in which he says that a " Complete list showing the list of all non Muslims falling under item (3) with the amount to be paid has been asked for from our Head Office and will be submitted as soon as received".
Counsel contended that the Lyallpur people bad so little to do with the accounts that they were notable to supply even a list of the persons who dealt with them.
they had to find that out from Delhi.
These matters should have been put to the defendant 's witnesses.
exhibit D 7 was written in reply to a letter from the Deputy Custodian of Evacuee Property.
That letter is exhibit D 6 and in it the Deputy Custodian refers to some earlier correspondence with the Under Secretary to the West Punjab Government, Lahore, which has not been filed.
When we turn to the list that was eventually supplied from Delhi (exhibit D 1 1) we find that it relates to accounts from allover Pakistan such as, Multan, Peshawar, Lahore, Sialkot, Rawalpindi and even Karachi and Sukkar.
Obviously, a local office like the Lyallpur office would not be in 415 a position to supply that sort of information.
The defendant 's accountant at Lyallpur, Sewa Ram (P.W. 4), says that "Purchasers ' deposits at Lyallpur were not recorded in the books of the defendant at Delhi but statements used to be despatched from there to Delhi.
An account book was prepared from statements received from Lyallpur.
That book is known as 'Reference Book ' ".
Presumably, that would also be the practice of the other branch offices, so the head office would be the only place from where a general overall picture (which appears to be what was asked for) could be obtained.
Now, the plaintiffs resided at Lyallpur at all relevant times and the defendant carried on business there through a local General Manager.
We do not know where the contract was made but we do know that the plaintiffs contracted in a special capacity that was localised at Lyallpur, namely as the Government nominees for Lyallpur.
We know that the goods were to be delivered at Lyallpur and could not be delivered anywhere else.
We know that there was a running account and that that account was kept at Lyallpur, and we have held that the 'debt" did not become due till the defendant was given notice at Lyallpur that the business relationship between the parties had terminated.
The termination came about because of acts that arose at Lyallpur, namely the assignment of Lyallpur to the newly created State of Pakistan and the flight of the plaintiffs from Lyallpur which made further performance of the primary contract impossible.
The only factors that do not concern Lyallpur are the defendant 's residence in India and the demands for payment made in Delhi.
The fact of demand is not material because the obligation to pay arose at the date of termination and arose at Lyallpur, but if a demand for payment is essential, then it would, along the lines of the banking and insurance cases to which we shall refer later, have to be made at Lyallpur and a demand made elsewhere would be ineffective.
On these facts we hold that the elements of this contract, that is to say, the contract 53 416 out of which the obligation to pay arose, were most densely grouped at Lyallpur and that that was its natural seat and the place with which the transaction had its closest and most real connection.
It follows from this that the "proper law of the contract", in so far as that is material, was the Lyallpur law.
We have next to see when notice 'to close the account and a demand for return of the balance was made and where.
The plaintiff Jagat Singh (P.W. 5) says that he made a written demand in October 1947.
But the earliest demand we have on record is exhibit P.W. 4/4 dated 3 1 1949.
It is understandable that the plaintiffs, who had to flee for their lives, would have no copies of their correspondence, but it is a matter for comment that the demand which is filed (exhibit P.W. 4/4) does not refer to an earlier demand or demands.
The defendant was asked to produce all the correspondence because the plaintiffs had lost their own files.
The defendant produced all we have on record and no suggestion was made that anything had been suppressed.
Consequently we are not prepared to accept the plaintiffs ' statement and we hold that there was no demand before 3 1 1949.
Another point is that the earlier demand, even if made, could not have been made at Lyallpur.
The plaintiff Jagat Singh says he made the demand to the defendant 's Managing Director.
He resides in Delhi and the plaintiffs had by then fled from Pakistan.
Therefore, the demand could not have been made at Lyallpur, and apart from those demands, there is no other notice of termination, so, technically, the defendant would have been justified in declining to pay on the strength of a demand made in Delhi.
The same defect attaches to exhibit P. W. 4/4.
However, we are fortunately absolved from the need to base on so technical a ground.
Now at the date of the demand the Pakistan Ordinance (exhibit D 26) was in force and under it the defendant was prohibited from paying the money to the plaintiffs who were evacuees according to Pakistan laws.
The defendant was directed, instead, to deposit the money with the Deputy Custodian of Evacuee 417 Property.
This was done on 15 11 1951 (exhibit D 12) and the deposit was made along with other similar deposits.
We now have to determine the legal liabilities which arise out of these facts.
This raises complex questions of private international law, and two distinct lines of thought emerge.
One is that applied by the English Courts, namely, the lex situs; the other is the one favoured by Cheshire in his book on Private International Law, namely, the "proper law of the contract".
The English approach is to treat the debt as property and determine its situs and then, in general, to apply the law that obtains there at the date when payment is due.
But the difficulty of the English view is that they have different sets of rules for ascertaining the situs, with the result that the situs shifts from place to place for different purposes, also that it is determined by intention.
Thus, it can be in one place for purposes of jurisdiction and in others for those of banking, insurance, death duties and probate.
The situs also varies in the cases of simple contract debts and those of speciality.
That a debt is property is, we think, clear.
It is a chose in action and is heritable and assignable and it is treated as property in India under the Transfer of Property Act which calls it an "actionable claim": sections 3 and 130.
But to give it position in space is not easy because it is intangible and so cannot have location except notionally and in order to give it notional position rules have to be framed along arbitrary lines.
Cheshire points out in his book on Private International Law, 4th edition, pages 449 to 451 that the situs rule is not logical and leads to practical difficulties when there is a succession of assignments because it is not possible to fix the situation of a debt under the situs rule in one place and only one place.
Speaking, of that Cheshire, quoting Foote, where Foote says that the assignment of a chose in action arising out of a contract is governed by the "proper law of the contract" paraphrases Foote thus at page 450 418 "If we understand him correctly, the appropriate law is not the 'proper law ' (using that expression in its contractual sense) of the assignment, but the proper law of the original transaction out of which the chose in action arose.
It is reasonable and logical to refer most questions relating to a debt to the transaction in which it has its source and to the legal system which governs that transaction.
One undeniable merit of this is that, where there have been assignments in different countries, no confusion can arise from a conflict of laws, since all questions are referred to a single legal system".
The expression the "proper law of the contract" has been carefully analysed by Cheshire in Chapter VIII of his ' book.
In Mount Albert Borough Council vs Australasian Temperance and General Mutual Life, Assurance Society(1) Lord Wright defined it at page 240 as "that law which the English or other Court is to apply in determining the obligations under the contract", that is to say, obligation as contrasted with performance.
Lord Wright drew the distinction between obligation and performance at page 240.
In a later case, Lord Simonds described it as "the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connexion".
Bonython vs Commonwealth of Australia(2).
Cheshire sets out the definition given by some American Courts at page 203 and adopts it: "It is submitted that, at any rate with regard to the question of valid creation, the proper law is the law of the country in which the contract is localized.
Its localization will be indicated by what may be called the grouping of its elements as reflected in its formation and in its terms.
The country in which its elements are most densely grouped will represent its natural seat the country with which the contract is in fact most substantially associated and in which lies its natural seat or centre of gravity".
(1) ; , (2) , 219.
419 This involves two considerations.
The first is whether the proper law is to be ascertained objectively or whether parties are free to fix it subjectively by ranging over the world and picking out whatever laws they like from any part of the globe and agreeing that those laws shall govern their contract.
Cheshire points out at page 202 that "the subjective theory may produce strangly unrealistic results".
It is also obvious that difficulties will arise if the contract is illegal or against public policy according to the laws of the country in which it is sought to be enforced though lawful according to the laws of the country which the parties choose: see Lord Wright in Mount Albert Borough Council vs Australasian Temperance, etc.
Society(1) at page 240.
Cheshire prefers the view of an American Judge which he quotes at page 203 "Some law must impose the obligation, and the parties have nothing whatsoever to do with that, no more than with whether their acts are torts or crimes".
The contract we are considering is silent about these matters.
There is no express provision either about the law that is to obtain or about the situs.
We have therefore to examine the rules that obtain when that is the case.
The most usual way of expressing the law in that class of case is to say that an intention must be implied or imputed.
In the Bank of Travancore vs Dhrit )Ram(2), Lord Atkin said that when no intention is expressed in the contract the Courts are left to infer one by reference to considerations where the contract was made and how and where it was to be performed and by the nature of the business or transaction to which it refers.
In the Mount Albert Borough Council case(1), Lord Wright put it this way at page 240 "The parties may not have thought of the matter at all.
Then the Court has to impute an intention, or to determine for the parties what is the proper law which, as just and reasonable persons, they ought or would have intended if they had thought about the question when they made the contract".
(1) (2) 69 I.A. 1, 8.
420 But , to us, it seems unnecessarily artificial to impute an intention when we know there was none, especially in a type of case where the parties would never have contracted at all if they bad contemplated the possibility of events turning out as they did.
In our opinion, what the Courts really do, when there is no express provision, is to apply an objective test, though they appear to regard the intention subjec tively, and that is also Cheshire 's conclusion at page 201 where, after reviewing the English decisions, he says "In other words, the truth may be that the judges, though emphasising in unrestricted terms the omnipotence of intention, in fact do nothing more than impute to the parties an intention to submit their contract to the law of the country with which factually it is most closely connected".
If driven to a choice, we would prefer this way of stating the law but we need not decide this because, so far as the present case is concerned, the result is the same whether we apply the proper law of the contract or the English rules about the lex situs.
It may be that in some future case this Court will have to choose between these two views but the question bristles with difficulties and it is not necessary for us to make the choice here.
All we wish to do here is to indicate that we have considered both and have envisaged cases where perhaps a choice will have to be made.
We gather that English judges fall back on the lex situs and make rules for determining the position of a debt for historical reasons.
Atkin, L. J. said in New York Life Insurance Company vs Public Trustee(1) that the rules laid down in England are derived from the practice of ecclesiastical authorities in granting administration because their jurisdiction was limited territorially.
"The ordinary had only a jurisdiction within a particular territory, and the question whether he should issue letters of administration ' depended upon whether or not assets were to be found within his (1) , 119.
421 jurisdiction, and the test in respect of simple contracts was: Where was the debtor residing?. . the reason why the residence of the debtor was adopted as that which determined where the debt was situate was because it was in that place where the debtor was that the creditor could, in fact, enforce payment of the debt".
(See also Dicey 's Conflict of Laws, 6th edition, page 303).
The rules, therefore, appear to have been arbitrarily selected for practical purposes and because they were found to be convenient.
But despite that the English Courts have never treated them as rigid.
They have only regarded them as primafacie presumptions in the absence of anything express in the contract itself: see Lord Wright 's speech in Mount Albert Borough Council case (1) at page 240.
Also, many exceptions have been engrafted to meet modern conditions.
Atkin, L. J. draws attention to one in New York Life Insurance Company vs
Public Trustee(2) at page 120 where he says"therefore, cases do arise where a debt may be enforced in one jurisdiction, and the debtor, being an ordinary living person, resides elsewhere".
So also Lord Wright in Mount Albert Borough Council case(1) at page 240 "It is true that, when stating this general rule, there are qualifications to be borne in mind, as for instance, that the law of the place of performance will prima facie govern the incidents or mode of performance, that is, performance as contrasted with obligation".
and at page 241 he says "Again, different considerations may arise in particular cases, as, for instance, where the stipulated performance is illegal by the law of the place of performance".
And so also Lord Robson in Rex, vs Lovitt(3) at page 220 "It cannot mean that for all purposes the actual situation of the property of a deceased owner is to be (1) ; (2) , 119.
(3)1912 A.C. 212.
422 ignored and regard had only to the testator 's domicil, for executors find themselves obliged in order to get the property at all to take out ancillary probate according to the locality where such property is properly recoverable, and no legal fiction as to its 'following the owner ' so as to be theoretically situate elsewhere will avail them".
And he says at page 221 that these rules are only "for certain limited purposes".
In banking transactions the following rules are now settled: (1) the obligation of a bank to pay the cheques of a customer rests primarily on the branch at which he keeps his account and the bank can rightly refuse to cash a cheque at any other branch: Rex vs Lovitt(1) at 219, Bank of Travancore vs Dhrit Ram(2) and New York Life Insurance Company vs Public Trustee(3) at page 117; (2) a customer must make a demand for payment at the branch where his current account is kept before he has a cause of action against the bank: Joachimson vs Swiss Bank Corporation(4) quoted with approval by Lord Reid in Arab Bank Ltd. vs Barclays Bank(5).
The rule is the same whether the account is a current account or whether it is a case of deposit.
The last two cases refer to a current account; the Privy Council.
case (Bank of Travancore vs Dhrit Ram(2)) was a case of deposit.
Either way, there must be a demand by the customer at the branch where the current account is kept, or where the deposit is made and kept, before the bank need pay, and for these reasons the English Courts hold that the situs of the debt is at the place where the current account is kept and where the demand must be made.
This class of case forms an exception to the rule that a debtor must seek his creditor because, though that is the general rule, there is nothing to prevent the parties from agreeing, if they wish, that that shall not be the duty of the debtor and, as Lord Reid explains in the Arab Bank case(5) at page 531, a contract of current account necessarily implies an (1) (2) 69 I.A. 1, 8 and 9.
(3) , 119.
(4) (5)[1951] A.C. 495, 531.
423 agreement that that shall not be the bank 's duty, otherwise the whole object of the contract would be frustrated.
We have stressed the word "primarily" because the rules we have set out relate to the primary obligation.
If the bank wrongly refuses to pay when a demand is made at the proper place and time, then it could be sued at its head office as well as at its branch office and, possibly, wherever it could be found, though we do not decide that.
But the reason is that the action is then, not on the debt, but on the breach of the contract to pay at the place specified in the agreement: see Warrington, L. J. at page 116 and Atk in, L. J. at page 121 of New York Life Insurance Co. V. Public Trustee(1).
Now the rules set out above are not confined to the business of banking.
They are of wider application and have also been applied in insurance cases: Fouad Bishara Jabbour vs State of Israel(2) and New York Life Insurance Co. vs Public Trustee(1).
Similar considerations obtain in England when an involuntary assignment of a debt is effected by garnishment.
Cheshire has collected a list of English cases at pages 460 to 463 of his Private International Law from which we have quoted above.
He sums up the position at page 461 thus "It is difficult to state the rule with exactitude but it is probably true to say that a debt is properly garnishable in the country where, according to the ordinary usages of business, it would normally be regarded as payable".
But when all is said and done, we find that in every one of these cases the proper law of the contract was applied, that is to say, the law of the country in which its elements were most densely grouped and with which factually the contract was most closely connected.
It is true the judges purport to apply the leX Situs but in determining the situs they apply rules (and modify them where necessary to suit changing modern conditions) which in fact are the very rules (1) (2) , 424 which in practice would be used to determine the proper law of the contract.
The English Judges say that when the intention is not express one must be inferred and the rules they have made come to this: that as reasonable men they must be taken to have intended that the proper law of the contract should obtain.
The other view is that the intention does not govern even when express and that the proper law must be applied objectively.
But either way, the result is the same when there is no express term.
The "proper law," is in fact applied and for present purposes it does not matter whether that is done for the reasons given by Cheshire or because the fluid English rules that centre round the lex situs lead to the same conclusion in this class of case.
That, however, raises a further question.
Which is the proper law? The law that obtains when the contract was made and the obligation fashioned or the law in force at the time when performance is due? Here again, we think the answer is correctly given by Cheshire at page 210, quoting Wolff 's Private International Law, page 424, and Be.
Chesterman 's Trusts(1): "A proper law intended as a whole to govern a contract is administered as 'a living and changing body of law ' and effect is given to any changes occur.
ring in it before performance falls due".
This is what the English Courts did in New York Insurance Co. vs Public Trustee(2), Re.
Banque Des Marchands De Moscou(3), Fouad Bishara Jabbour vs State of Israel(4), and Arab Bank Ld.
vs Barclays Bank(5).
They were all cases in which the law changed because of the outbreak of war and where performance became impossible because of local legislation.
In the last two cases, the debts vested in the Custodian because of local legislation and payment by the debtor to the Custodian was regarded as a good discharge of the debt.
The position in those two cases was just what it is here.
(1)[1923] 2 Ch.
466, 478.
(2) (3) (4) (5)[1954] A.C. 495, 529.
425 Counsel argued that as Lyallpur was part of India, when the contract was made, the Indian law must be applied and that no different intention can be imputed to the parties.
But that is not the law, as we understand it, whether we apply the "proper law" or the situs rules.
The proper law will be the law at Lyallpur applied as a living and changing whole, and this would have been the case even if India had not been divided, because each State had the right to make different local laws even in undivided India, as witness the different money lending laws and the cloth and grain control orders: indeed this very case is an illustration of that, for the controls which gave rise to this very contract were not uniform throughout India.
But even apart from the "proper law" the decision of the Privy Council in Arab Bank Ld.
vs Barclays Bank(1) and of the Queens Bench Division in Fouad Bishara Jabbour vs State of Israel (2 ) negatives this contention when ail intention has to be imputed or a clause in the contract implied.
It is necessary, however, to bear in mind that, under modern conditions, choses in action arising out of contract have two aspects: (1) as property and (2) as involving a contractual obligation for performance.
The property aspect is relevant for purposes of assignment, administration, taxation and the like; the contractual aspect for performance.
In the present case, we are primarily concerned with the property aspect because the Pakistan Ordinance regards debts as property and vests all evacuee property in the Custodian and requires every person holding such property to surrender it to the Custodian on pain of penalties prescribed by the Ordinance, and section 11(2) states that "Any person who makes a payment under subsection (!) shall be discharged from further liability to pay to the extent of the payment made".
The payment was made and that, in our opinion, exonerated the defendant from further liability.
Such payment would operate as a good discharge even under the English rules: see Fouad Bishara Jabbour vs (1) , 529.
(2) 426 State of Israel(1) at page 154 where a number of English authorities are cited, including a decision of the Privy Council in Odwin vs Forbes(2).
That was also the result of the decisions in the following English cases, which are similar to this, though the basis of the decisions was the situs of the debt and the multiple residence of corporations: Fouad Bishara Jabbour vs State of Israel(1), Be Banque Des Marchands De Moscou(3) and Arab Bank Ld.
vs Barclays Bank (4).
The same result follows from the decision of the Judicial Committee in the Bank of Travancore Ltd. vs Dhrit Ram(5) where Lord Atkin said "When consideration is being given to the question, what law did the parties intend to govern the contract? it seems proper to bear in mind that the promisor is a bank incorporated under Travancore law with, apparently, some connection with the State of Travancore, and governed as to its business by any law of Travancore that may affect banking. .
The only difference between that case and this is that at the date of the deposit in this case there was no difference between the laws of Punjab and Delhi on the present point.
But they could have differed even if India had not been divided, as we have just pointed out.
The English cases are, however, in point and we can see little in principle to distinguish them from this case.
The learned counsel for the plaintiffs respondents argued that even if the law is what we have said, the Pakistan Ordinance does not apply to this case because "a cash deposit in a bank" is excluded.
The argument was based on the definition of "property" in section 2(5) of the Ordinance.
But this is not a cash deposit in a bank as between the plaintiffs and the defendant.
It is a debt which the defendant owes, or owed, to the plaintiffs, and the same definition states that "property" means, among other things, any debt or actionable claim The portion of the definition which speaks of a "cash deposit in a bank" means that such a deposit is not to be treated as (1) (2) (3) (4) , 529, (5)69 I. A. 1, 9. 427 "property" for the purposes of the Ordinance as between the bank and the customer who owns or controls the deposit.
We hold, therefore, that whether the proper law of the contract applies or the English law of situs in a case of this kind, the defendant is exonerated because, the debt being "property", the Ordinance divested the plaintiffs of ownership in it and vested the debt in the Custodian and at the same time interfered with the obligation for performance by providing that payment to the Custodian shall operate as a discharge of the obligation.
But we wish to emphasize that we decide this because payment was in fact made to the Custodian and that we express no opinion about what would happen in a case where there is no payment and the defendant has no garnishable assets in Pakistan out of which the West Punjab Government could realise the debt by attachment of the defendant 's property.
Different conclusions might possibly arise in such a case.
Lastly, it was urged that the Pakistan Ordinance is a penal law and is confiscatory in character, therefore, no domestic tribunal will recognise it or give effect to it.
That proposition is, in any event, too widely stated, but we are unable to condemn this law as opposed to the public policy of this country be,cause we have exactly the same kind of laws here, as do other civilised countries which find themselves in similar predicament or at the outbreak of war; see Arab Bank Ltd. vs Barclays Bank(1) and also Fouad Bishara Jabbour vs State of Israel(2) and Re.
Munster(3) where a like argument was repelled.
We hold that this legislation is not confiscatory.
The same rules apply to the item of Rs. 79 6 6 and to the deposit of Rs. 1,000 as security.
The appeal succeeds.
The decrees of the lower Courts are set aside.
A decree will now be passed dismissing the plaintiffs ' claim, but in the special circumstanoes of this case the parties will bear their own costs throughout.
(1) (2) , 157, (3) [1920] 1 ch.268. | During the years in question cloth was rationed at Lyallpur, then a part.
of the Punjab in undivided India, and sales could only be made to government nominees and other authorised persons.
The plaintiffs, resident in Lyallpur, were the government nominees, The 403 defendant company, with its head office at Delhi had a branch office and mills at Lyallpur, and supplied the plaintiffs with cloth from time to time in accordance with the government quota through its branch manager at Lyallpur.
Their dealings lasted some 4 or 5 years prior to 1947.
In accordance with their contract the plaintiffs left a security deposit of Rs. 1,000 with the defendant 's branch manager at Lyallpur, and deposited further sums of money with him from time to time at Lyallpur.
The defendant supplied the plaintiffs with their quota of cloth against those deposits.
There was thus a running account between the parties in which the balance was sometimes in the plaintiffs ' favour and sometimes against them; when against, they paid the defendant interest on the "overdraft".
The goods had to be supplied at Lyallpur and all moneys were paid there.
The accounts were kept at Lyallpur though copies were sent to the defendant 's head office at Delhi.
In 1947, when India was partitioned, Lyallpur was assigned to Pakistan.
The plaintiffs thereupon fled the country and entered India as refugees.
They settled in Delhi and thus became "evacuees" according to a Pakistan ordinance.
At that time there was a balance of Rs. 11,496 6 6 in the plaintiffs ' favour.
They accordingly made a demand at Delhi for payment of this sum and for return of their security deposit.
In the meanwhile the Pakistan Government issued an ordinance (1) vesting all evacuee property in the Custodian of Evacuee Property in Pakistan (2) prohibiting the 'payment of money to evacuees; and (3) requiring all moneys payable to, or claimable by, evacuees to be paid to the Deputy Custodian of Evacuee Property in Pakistan.
Payments so made were to operate as a discharge from further liability to the extent of the payment.
Breach of this law was punishable as an offence.
The Deputy Custodian demanded payment from the defendant of the moneys owing to the plaintiff.
After some correspondence and demur, the payment was made as required.
The defendant pleaded this as a defence to the action.
Held: (1) Lyallpur was the place of primary obligation because under the contract the balance remaining at its termination was to be paid there and not elsewhere, accordingly the demand for payment made at Delhi before a demand and refusal at Lyallpur was ineffective; (2) That the elements out of which the contract to pay arose were most densely grouped at Lyallpur, so Lyallpur was the natural seat of the contract and the place with which it had its closest and most real connection.
Accordingly, the "proper law of the contract" was the Lyallpur Law; (3) Under the English doctrine also the situs of the debt was Lyallpur; and so 404 (4) either way, the Lyallpur law applied (5) as it obtained at Lyallpur at the time when performance was due because a " proper law" intended as a whole to govern a contract is administered as a "living and changing body of law", accordingly, effect is given to any changes occurring in it before performance is due; (6) a "debt" being a chose in action is "property" within the meaning of the Pakistan Ordinance and so, (7) the money was rightly paid to the Deputy Custodian and that operated as a good discharge and exonerated the defendant from further liability.
But quaere, whether different conditions would not arise in a case where no payment is made and the defendant has no garnishable assets in Pakistan out of which the West Punjab Government could realise the debt out of the defendant 's property there.
(8)The provisions of the Pakistan ordinance relevant to the case are not opposed to the public policy of India and so can be relied on as a defence to an action of this nature.
Appeal allowed.
Mount Albert Borough Council vs Australasian Temperance, etc.
; , Bonython vs Commonwealth of Australia at 219), Bank of Travancore vs Dhirt Ram (69 I.A. I at 8), New York Life Insurance vs Public Trustee ([1924] 2 Ch.
101 at 119), Rex vs Lovitt , Joachinsons vs Swiss Bank Corporation ([1921] 3 K.B. 110), Arab Bank vs Barclays Bank at 531), Fouad Bishara vs State of Israel ([1954] 1 A.E.R. 145).
Chesterman 's Trusts [(1923] 2 Ch.
466 at 478), Be.
Banque Des Marchands De Moscou ([1954] 2 A.E.R. 746), Odwin vs Forbes and Re. Munster ([1920] 1 Ch.
268), referred to. |
Civil Appeal No. 30 of 1971.
Appeal by special leave from the judgment and order dated the 19th February, 1970 of the Andhra Pradesh High Court in case Reference No. 2 of 1967.
R. M. Mehta and section P. Nayar for the appellant.
P. Ram Reddy and A.V.V. Nair for the respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Keynote thought.
Politics and philanthropy may well fall victims to the contruction of section 5(a) and (j) of the Expenditure.
Tax Act, 1957 (the Act for 1018 short) if we fall victim to the submission naively made, at the first stage, by counsel for the State.
In fairness to him, we must state that later he retracted from that position, and rightly so, for the Act, in spirit and letter, does not intend this blow on the profession of politics or the disposition for donations.
A fair reading of the provisions in question convincingly excludes from 'taxable expenditure ' sums wholly and exclusively incurred for the purpose of a profession or occupation carried on by the assessee and no modern man may dispute that politics is a profession or occupation.
Likewise, expenditure by way of gift or donation incurred by the assessee is also excluded and no politically conscious soul will deny that donation to the party in a democracy squarely comes within this exclusionary provision.
The factual matrix Expenditure tax under the Act was sought to be levied from the assessee PVG Raju, the respondent before us.
Paradoxical, perhaps, it may appear but here is a case of a rich Maharaja practising the politics of socialism, spending lavishly for furthering his party 's popularity and the prospects of his fellow candidates at the elections to the Andhra Pradesh Legislative Assembly.
This expenditure, falling under two heads, was taxed by the assessing authority and upheld up to the Tribunal level.
The High Court, on reference, reversed the findings on both counts and the Commissioner of Expenditure Tax, the appellant, challenges the legality of this verdict.
The best beginning in stating the facts may well be to extract the questions of law referred by the Tribunal in its own words: "(1) Whether on the facts and in the circumstances of the case the expenditure of Rs. 38,832/ claimed to be the amount incurred by the assessee for the benefit of other candidates for election is excludible from the taxable expenditure either under Section 5 (a) or under Section 5 (j) of the Expenditure Tax Act ? (2) Whether on the facts and in the circumstances of the case the sum of Rs. 47,867/ claimed to be party expenses could be excluded from the taxable expenditure of the assessee either under Section 5(a) or under Section 5(i) of the Expenditure Tax Act ? We have to assume the following facts as implied in the very questions referred to the High Court and from the attendant circumstances.
They are: (a) that the respondent, during the relevant period was the Chairman of the State Socialist Party which was interesting itself in electoral politics; 1019 (b) the respondent was a wealthy socialist; (c) that he was meeting not only the expenditure of his own elections but spending moneys for the benefit of other candidates belonging to his party; (d) that he was issuing cheques to the Secretary and other office bearers of his party to meet the expenses involved in party work.
He expended Rs. 38,832/ for propelling the election prospects of other party candidates during the election.
Likewise, he gave Rs. 47,867/ to his party through its office bearers.
On these facts the question is whether he is eligible for exclusion of the two sums from expenditure tax either under section 5(a) or under section 5(j) of the Act.
Consideration of the legal issue It is appropriate to start with reading the relevant portion of s 5 of the Act: "section 5.
No. expenditure tax shall be payable under this Act in respect of any such expenditure as is referred to in the following clauses, and such expenditure shall not be included in the taxable expenditure of an assessee.
(a) any expenditure, whether in the nature of revenue expenditure or capital expenditure, incurred by the assessee wholly and exclusively for the purpose of the business, profession, vocation or occupation carried on by him or for the purpose of earning income from any other source; (b) to (i). (j) any expenditure incurred by the assessee by way of, or in respect of any gift, donation or settlement on trust or otherwise for the benefit of any other person.
" The assessee was Party Chairman and politics was undoubtedly his profession or occupation, it being admitted that his interest in politics was not causal nor sporadic but abiding and ambitious.
The contention of the respondent which met with success before the High Court was that the election expenses of other candidates set up by him as Chairman of the Socialist Party, loosely described as 'party expenditure ', were incurred wholly and exclusively for the purpose of his 'profession ' or 'occupation '.
So, the first point which arrests our attention in examining this contention is as to whether politics of the socialist brand or otherwise is a profession or occupation.
There can hardly be any doubt that it is either, or both.
Harold Laski treated politics as a science and wrote his well known book on the Grammar of Politics, but the art of politics at a practical level has also been the subject of comment and has been praised and denounced on the basis that it is a profession.
To Gandhiji it is sacred as religion.
In Lincoln it rises to noble heights of statesman 1020 ship.
Lenin, Nehru and a galaxy of other great visionaries and makers and moulders of the modern world have dedicated themselves to politics as a profession.
Of course in its vulgar and vicious manifestations, this occupation has been regarded by literary giants like Dr. Johnson as the last refuge of a scoundrel '.
Robert Louis Stevenson has used barbed words: 'Politics is perhaps the only profession for which no preparation is thought necessary (Familiar studies of Men and Books, 'Yoshida Torajiro ').
George Bernard Shaw uses stinging language in Major Barbara: 'He knows nothing; and he thinks he knows everything.
That points clearly to a political career '.
It is thus clear, without reference to the wealth of case law relied on by the High Court, that politics has been a profession and, indeed, under modern conditions in India, perhaps the most popularand uninhibited occupation with its perils, of course.
Law cannot take leave of realities and therefore section 5(a) must bear the construction that politics is a profession or occupation.
The next question is whether the expenditure incurred by the assessee for the election of candidates set up by him as Chairman of his party can be legitimately regarded as incurred 'wholly and exclusively ' for the purpose of his profession or occupation.
We have grave doubts whether meeting the expenses of other candidates can be fulfilment of his professional expenses, but this question deserves no deeper probe for the simple reason that section 5(j) embraces the expenditure as it does answer the description of a donation.
When a person gives money to another without any material return, he donates that sum.
An act by which the owner of a thing voluntarily transfers the title and possession of the same from himself to another, without any consideration, is a donation.
A gift or gratuitous payment is, in simple English, a donation.
We do not require lexicographic learning nor precedential erudition to understand the meaning of what many people do every day, viz., giving donations to some fund or other, or to some person or other.
Political donations are not only common, but are assuming deleterious dimensions in the public life of our country.
It is therefore clear that when this Raja assessee gave money to the candidates of his Party for them to meet their election expenses, he made donations.
Even if he met their election expenditure, it was money gratuitously given on their behalf and therefore amounted to donation.
Without straining language, we reach the natural conclusion that what the respondent expended for the other candidates during the elections was 'donation ' in the language of the law.
There is no suggestion nor evidence that any material return was in contemplation when he spent these sums.
Being a politically important man with plenty of money and vitally interested in boosting his Party 's standing in the State, he donated liberally for candidates set up by the party.
In this view section 5(j) aplies to these donations which earn exemption from the expenditure tax.
The next item relates to sums gives to the Socialist Party.
It is reasonable to assume that the amounts paid to the office bearers 1021 of the party were without an eye on any material return other than loyalty or gratitude.
They were outright gifts.
Indeed, many rich people out of diverse motives make donations to political parties.
The hope of spiritual benefit or political goodwill, the spontaneous affection that benefaction brings, the popularisation of a good cause or the prestige that publicised bounty fetches these and other myriad consequences or feelings may not mar a donation to make it a grant for a quid pro quo.
Wholly motiveless donation is rare, but material return alone negates a gift or donation.
We need not investigate the propriety or political donations 'unlimited ' and often invisible.
All that we need consider is whether such sums are gifts and donations or are non gratuitous payments with a tag of return.
We have no doubt that on the question as framed, and on the facts and circumstances present, these sums were paid purely as gifts and donations to his Party by the respondent.
It is not surprising either, because he was the Chairman of the said party, had a long and liberal purse from which to draw and a large circle of support to build up in the long run.
The inevitable conclusion from our discussion is that both the heads of expenditure fall under s.5(j) of the Act and, therefore, flow out of the assessable zone.
The High Court 's conclusion is sound and the appeal deserves to be and is hereby dismissed, but without costs.
V.P.S. Appeal dismissed. | Under section 5 (a) and (j) of the Expenditure Tax Act, 1957, no expenditure tax shall be payable on any expenditure incurred by the assessee wholly and exclu sively for the purpose of his business profession or vocation, and on any expenditure incurred by the assessee by way of donation.
The respondent assessee was the Chairman of the State Socialist Party and politics was his profession or occupation.
He is a wealthy socialist and spent Rs. 38,832/ towards election expenses of other candidates of his party, and gave Rs. 47,867/ to the office bearers of his party to meet the expenses involved in party work.
^ HELD: The two amounts are eligible for exclusion from expenditure tax.
[1021 B] (1) Under modern conditions, politics is a profession or occupation.
[1020 C] (2) But the expenses incurred on behalf of other candidates cannot be the assessee 's professional expenses.
[1020 D] (3) The amounts, however, fall under section 5(j) of the Act.
When a person gives money to another without any material return, he donates that sum.
Therefore, when the assessee gave money to the candidates of his party for their elections expenses, it was money gratuitously given, that is he made donations.
[1020 E G] (4) Similarly, the amounts paid to office bearers of the party were not for any material return.
They were for loyalty or gratitude.
Wholly motiveless donation is rare but material return alone negates a gift or donation.
Therefore, they also were outright gifts.
[1021 A C] |
Civil Appeal No. 548 of 1958.
Appeal by Special Leave from the judgment and order dated March 27, 1957, of the Patna High Court in Misc.
Judicial Case No. 315 of 1956.
B. Sen, P. W. Sahasrabudhe and A. C. Ratnaparkhi.
for the Appellant K. L. Hathi and R. H. Dhebar, for Respondent No. 1.
N. C. Chatterjee and section N. Mukerji, for Respondent No. 2. 1961.
October 9.
The Judgment of the Court was delivered by SARKAR, J.
on September 25, 1947, the appellant was appointed by respondent No. 2, the Tata Iron and Steel Co., Ltd. (hereafter called the Company) as the Chief Labour officer of its collieries of which it appears to have a few, and he worked 33 under the Company till the latter terminated his services by a notice dated December 5,1955.
On such discharge, the appellant , claiming to be a Welfare Officer of a mine within r.74(2) of the Mines Rules 1955, which rule we shall later ser out, filed an appeal before respondent No.1, the Chief Inspector of Mines in India, under that rule questioning the validity of his discharged by the Company.
The Chief Inspector held that the appellant was not a Welfare Officer within that rule and refused to entertain his appeal.
The appellant then moved the High Court at Patna under article 226 of the Constitution for an appropriate writ directing the chief inspector to decide the appeal.
The High Court dismissed the appellant 's petition agreeing substantially with the view taken by the Chief Inspector.
The appellant has now appealed to this Court against the judgment of the High Court.
The Mines Rules; 1955 were framed under the , and came into force on July 2, 1956.
We are principally concerned with the proviso for.
74(2) but this has to be read with r.72.
The relevant portions of these rules are set out below.
Rule 72.
(1) In every mine wherein 500 or more persons are ordinarily employed there shall be appointed at least one Welfare Officer: Provided that if the number of persons ordinarily employed exceeds 2000, there shall be appointed additional Welfare Officer on a scale of one for every 2000 persons or fraction thereof (2) No person shall as a Welfare Officer of a mine unless he possesses (Here certain qualifications are specified) Provided that in case of a person already in service as a Welfare Officer in a mine the 34 above qualifications may, with the approval of the Chief Inspector be relaxed.
(3). . . . . (4) A written notice of ever y such appointment. . and of the date thereof shall be sent by the owner, agent or manager t o the Chief Inspector within 7 days from the date of such appointment. . .
Rule 73.
Duties of Welfare officers: . . . . . . . . . . (Here certain duties are prescribed) Rule 74.
(1). . . . . . . (2) The condition of service of a Welfare Officer shall be the same as of other members of the staff of corresponding status in the mine; Provided that in the case of discharge or dismissal, the Welfare Officer, shall have a right of appeal to the Chief Inspector whose decision thereon shall be final and binding upon the owner, agent or manager of the mine as the case may be.
The Chief Inspector mentioned in these Rules is the Chief Inspector of Mines in India.
If the appellant was not a Welfare officer within the proviso to r. 74(2) as the company contends, then, of course, no appeal by him lay under it.
He would then clearly not be entitled to the writ he asked.
The question therefore is whether the appellant was a Welfare Officer within the rule and is really one of construction of it.
We desire now to point out certain facts as to which there is no controversy.
First, both the Act and the Rules came into force long after the appellant had been appointed by the Company.
Secondly no relaxation of qualifications had been sought from or granted by the Chief Inspector with respect to 35 The appellant under the proviso to sub r.
(2) of r. 72 after the Rules came in to force.
Thirdly, no notice as contemplated in r. 72(4) had been given concerning the appellant.
It appears that the Chief Inspector found that the appellant "was performing duties akin to those of Welfare officers contemplated by rule 73 and he was qualified to work as a Welfare officer.
" We propose to deal with this appeal on the basis of these findings.
Dealing with the contention noticed by the Chief Inspector and the High Court that a Welfare Officer under r. 74(2) is one who is appointed after the Rules came into force, Mr. Sen for the appellant said that a person like the appellant who had the requisite qualifications and was discharging the duties prescribed for a Welfare officer from before the Rules came into force, would be a Welfare officer within them.
He pointed out that the proviso to sub r.
(2) of r. 72 clearly contemplated the continuance of the service of such a person as a Welfare officer with relaxation where such was necessary and was granted.
He also said that sub r.
(4) of r. 72 was inapplicable to Such a person because he had been appointed long ago and because the proviso to r. 72(2) indicated that its application was not intended.
We do not think it necessary to pronounce on this question in the present case.
In our view, the appeal must fail even if Mr. Sen 's contention is right and that for another reason .
We observe that the Rules do not define the term "Welfare officer".
But we think it is beyond doubt and indeed the contrary has not been contended that the Welfare officer mentioned in the proviso to r. 74(2) is the same officer as is mentioned in sub r (1) of r. 72.
Now it is, in our view, perfectly plain that the Welfare officer contemplated by r. 72(1) is such an officer of one mine.
The rule says that there shall be at least one Welfare officer for every mine employing between 500 and 2000 persons and this makes any other view impossible 36 As we understood Mr. Sen, he also accepted that the Welfare officer contemplated is one appointed in respect of one mine.
Now, the appellant was on his own case, the Welfare Officer of several mines of the Company and not of one of such mines only.
Therefore, we think that he was not a Welfare officer within r. 72(1) and hence not within the proviso to r. 74(2).
But Mr. Sen contends that the appellant might be considered as having been severally and independently appointed the Welfare officer of each of the Company 's several collieries in his charge.
We think that would be an impossible view to take.
One appointment cannot be treated as several appointments and it is not in dispute that the appellant had only one appointment for all the Company 's collieries.
We think that this appeal fails and we dismiss it with costs.
Appeal dismissed. | The appellant was appointed as the Chief Labour officer by the Company in 1947.
In December; 1955, the company terminated his services The appellant, claiming to be a Welfare officer, preferred an appeal to the Chief Inspector of Mines under r. 74(2) of the Mines Rules, 1955.
^ Held, that the appellant was not a Welfare officer and as such could not prefer an appeal under r. 74 (2).
The Welfare officer mentioned in r. 74 (2) is the same officer as is mentioned in r. 72 (1) which rule contemplates a Welfare officer appointed in respect of one mine.
But the appellant was an officer of several mines of the Company and not of one of such mines only. |
Civil Appeals Nos. 106 and 107 of 1975.
Appeals by Special Leave from the Judgment and Order dated 18 10 74 of the Orissa High Court in O.J.C. Nos. 851 and 850 of 1972 respectively.
section V. Gupte (In CA 107/75) and Vinoo Bhagat for the Appellant.
G. Rath, Advocate General, and B. Parthasarthi for Respondent No. 1 (In CA 106/75 and Respondent in CA 107/75).
The Judgment of the Court was delivered by GOSWAMI, J.
This judgment will govern both the above mentioned appeals.
We may take the facts briefly from Civil Appeal No. 107 of 1975.
The Orissa Textile Mills Limited is a public limited company (briefly the company) and is engaged in manufacture of textile articles.
It is located at Choudwar in the District of Cuttack (Orissa).
On May 12, 1960, the company (described in the agreement as Consumer) entered into an agreement with the State of Orissa (described in the agreement as the Supplier) for supply of electric power.
The contract was for a period of five years from the date of supply of electric power, namely, February 1, 1963 and it was thereafter to so continue unless and until the same was determined by either party giving to the other six calendar months ' notice in writing of the intention to terminate the agreement.
It is common ground that the agreement has not been terminated.
It may be appropriate at this stage to refer to a few clauses in the agreement.
Clause 12 provides for charges to be paid by the consumer as well as about maximum demand.
Clause 13 reads as follows: "The tariff and conditions of supply mentioned in this Agreement shall be subject to any revision that may be made by the Supplier from time to time".
309 Clause 22 deals with extra charge regarding domestic lighting, fans, domestic power and street lighting, etc.
in the colony of the Mills.
Clause 23 reads as follows: "Any dispute or difference arising between the Consumer and the Supplier or their respective Electrical Engineers as to the supply of electrical energy hereunder or the pressure thereof or as to the interpretation of this Agreement or the right of the Supplier or the consumer respectively to determine the same or any other question, matter or thing arising hereunder shall be referred to a single arbitrator who shall be mutually agreed upon by both parties.
The arbitrator 's decision thereon shall be final and the provisions of the Arbitration Act of 1940 (X of 1940) or of any other statutory modification thereof for the time being in force shall apply to any such reference".
On April 1, 1962, the Orissa State Electricty Board (briefly the Board) was constituted by the State Government under section 5 of the (briefly the Act).
Under section 60(1) of the Act "all debts and obligations incurred, all contracts entered into and all matters and things engaged to be done by, with or for the State Government for any of the purposes of this Act before the first constitution of the Board shall be deemed to have been incurred, entered into or engaged to be done by, with or for the Board. " By this section, therefore, the Board assumed all obligations of the State Government in respect of matters to which the Act applied.
It is common ground that the contract entered between the company and the State Government is binding on both.
The Board decided to levy a surcharge of 10 per cent on the power tariff then in force with effect from July 1, 1972, and a Press Note was issued accordingly.
The material portion of the Press Note may be extracted: "The Orissa State Electricity Board has decided to levy a general and uniform surcharge of 10 per cent on the power tariff now in force except on the following categories of consumers who will pay the existing tariff: (1) Power Intensive Industries which are governed by Special Agreements.
(2) Domestic power and lighting.
In respect of irrigation loads (pumping and agriculture) the power tariff will be Re. 0.16p (sixteen paise) per unit (Kwh) with a rebate of Re. 0.01p (one paise) per unit 'KwhP ' for timely payment.
The above levy of surcharge of 10 per cent is also applicable to the power supply to the Hindustan Steel Ltd., Rourkela and Kalinga Iron Works, Barbil.
310 The levy of 10 per cent surcharge will be on demand charges, unit charges, maximum and minimum charges and reservation charges.
* * * * The levy of surcharge and revised tariff for irrigation loads has become necessary for improving the Board 's overall financial return and enabling it to undertake larger developmental programmes like rural electrification.
* * * * It appears that the second purpose in the above Press Note with reference to "larger developmental programmes like rural electrification" was omitted by a revised Press Note.
The company unsuccessfully challenged the levy of the surcharge by an application under article 226 of the Constitution in the Orissa High Court.
Several contentions were raised in the petition before the High Court.
The surcharge was, inter alia, challenged as being violative of article 14 of the Constitution.
This objection was repelled by the High Court and the learned counsel appearing on behalf of the company was unable to press the same before us in view of the Presidential suspension of that article during the emergency.
Some other grounds, including that clause 13 is ultra vires the Act, were taken before the High Court but have not been pressed before us.
Mr. Gupte, the learned counsel appearing on behalf of the appellants, submits as follows: (1) The Board has no power to levy a surcharge under the provisions of the Act.
(2) Clause 13 of the agreement cannot take in the levy of surcharge.
It is, therefore, not a matter for reference to arbitration under clause 23 of the agreement.
(3) Assuming it has power under the Act or under clause 13 to levy a surcharge, the Board in exempting certain categories and imposing surcharge upon the appellants is guilty of discrimination which is impermissible under section 49 of the Act and clause (2) of Schedule I to the agreement.
With regard to his first contention Mr. Gupte submits that surcharge is unknown to the provisions in the Act and the Board has no power under the Act to levy a surcharge.
It is not possible to accede to the submission that the demand of surcharge cannot be included in the revision of rates of tariff.
The word surcharge is not defined in the Act, but etymologically, inter alia, surcharge stands for an additional or extra charge or payment (see Shorter Oxford English Dictionary).
Surcharge is thus a 311 superadded charge, a charge over and above the usual or current dues.
Although, therefore, in the present case it is in the form of a surcharge, it is in substance an addition to the stipulated rates of tariff.
The nomenclature, therefore, does not alter the position.
Enhancement of the rates by way of surcharge is well within the power of the Board to fix or revise the rates of tariff under the provisions of the Act.
The first submission of counsel is, therefore, of no avail.
Before we deal with the second submission of counsel, we may refer to a recent decision of this Court in M/s Titagarh Paper Mills Ltd. vs Orissa State Electricity Board and Another(1) (briefly the Titagarh 's case) to which one of us was a party.
This Court following the decision in the Indian Aluminium Company vs Kerala State Electricity Board(2) with regard to the scope of sections 49 and 59 of the Act held in the Titagarh 's case (supra) as follows: ". neither section 49 nor section 59 confers any authority on the Board to enhance the rates for supply of electricity where they are fixed under a stipulation made in an agreement.
The Board has no authority under either of these two sections to override a contractual stipulation and enhance unilaterally the rates for the supply of electricity".
It is clear from the above decision that an agreement entered in exercise of the power conferred by the statute, such as under section 49(3) of the Act, cannot be set at naught by unilateral exercise of power by the Board under the Act to enhance the rates agreed upon between the parties in the absence of any provision in that behalf in the agreement itself.
In the Indian Aluminium Company 's case (supra) there was no provision in the agreement with regard to the revision of tariff, such as we find in clause 13 of the present agreement.
This Court, therefore, had not to consider in that case about the effect of a clause like clause 13.
In the Titagarh 's case (supra), however, this Court had to take into consideration clause 13 of the agreement therein which is the identical clause in the present case.
Sub sections (1) and (2) of section 49 empower the Board to fix uniform rates of tariff.
Sub section (3) of section 49 on the other hand reserves to the Board the power of fixing different tariffs having regard to certain factors mentioned therein.
Section 49(3) contemplates what are known as 'special agreements '.
Power under section 49(1) and (2) cannot be invoked during the subsistence of special agreements providing for stipulation of rates of tariff in absence of any reservation therein.
Exercise of power under section 49(1) and (2) as also under section 59 will remain suspended during the currency of the special agreements between the parties and no unilateral enhancement of rates is permissible under law.
There is only a pro tempore ban on revision of rates during the subsistence of statutory special agreements entered in conformity with section 49(3) of the Act.
312 Mr. Gupte, however, submits that since there have been special agreements between the parties the stipulated rates could not be increased by adding the surcharge in question.
This argument proceeds on a wrong assumption that surcharge is absolutely different from rates of tariff.
Besides the submission fails to take count of clause 13 of the agreement with regard to revision of rates.
The ratio of the Indian Aluminium Company 's case (supra) will be available on all fours only where there is nothing in the special agreement with regard to revision of rates during the subsistence of the agreement.
With regard to the second submission, which overlaps to some extent with the first, Mr. Gupte points out that revision of tariff under clause 13 cannot include levy of surcharge which is distinct from tariff.
He also draws our attention to the various clauses in the Press Note where both the expressions 'surcharge and tariff ' are freely used.
On the other hand, the learned Advocate General submits that the import of surcharge depends upon the nature of the original charge.
If the surcharge is appended to a tariff it partakes of the character of tariff.
When the Press Note introduces the surcharge in addition to tariff rates, not much can be made of for use of the two words separately.
We have already noted the meaning of the word 'surcharge ' while dealing with the first submission of the learned counsel.
We may only add that this Court in Titagarh 's case (supra) put the matter beyond controversy in the following words: "Now, the effect of the levy of coal surcharge would be to enhance the rates for the supply of electricity stipulated under the agreement".
Besides in the Titagarh 's case (supra) this Court further observed as follows: "Questions such as: whether the Board has power under clause (13) of the agreement to levy any coal surcharge at all when no such power was conferred on it by the Act, whether the action of the Board in levying the coal surcharge on the appellant under clause (13) of the agreement was arbitrary and unreasonable or whether it was based on extraneous and irrelevant considerations and whether, on the facts and circumstances of the case, the Board was justified under clause (13) of the agreement to levy the coal surcharge on the appellant, are plainly questions arising under the agreement and they are covered by the arbitration provision contained in clause (23) of the agreement.
All the contentions raised by the appellant against the claim to justify the levy of the coal surcharge by reference to clause (13) of the agreement would, therefore, seem to be covered by the arbitration agreement and there is no reason why the appellant should not pursue the remedy of arbitration which it has solemnly accepted under clause (23) of the agreement and instead invoke the extraordinary 313 jurisdiction of the High Court under Article 226 of the Constitution to determine questions which really form the subject matter of the arbitration agreement.
" Although this Court was dealing with the coal surcharge in the above decision, there is no distinction in principle between the coal surcharge or a surcharge simpliciter and the ratio of the above decision will be applicable in this case.
The second submission of the learned counsel, therefore, fails and the point is squarely covered by the above decision.
The matter is, therefore, covered by the arbitration clause 23 of the agreement.
With regard to the last submission regarding discrimination founded upon section 49 of the Act and clause (2) of the Schedule I to the agreement, Mr. Gupte relied upon sub section (4) of section 49 which provides that in fixing the tariff and terms and conditions for the supply of electricity, the Board shall not show undue preference to any person.
He also draws our attention to clause (2) of the conditions of supply in the First Schedule to the agreement to the effect that "the Department shall not be entitled to discriminate between different consumers in fixing the charges for the supply of energy".
The agreement is entered under the provisions of section 49(3) of the Act.
If we read section 49 as a whole we find that under sub section (1) of that section, the Board in supplying electricity to any person not being a licensee "may for the purposes of such supply frame uniform tariffs".
However, under sub section (2) of that section in fixing the uniform tariffs the Board shall have regard to the various factors under four heads (a), (b), (c) and (d).
Then comes sub section (3) which preserves the power of the Board, "if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors".
Mr. Gupte submits that there is no reason why the power intensive industries, which are governed by special agreements, should have been exempted from the levy of surcharge in the Press Note.
He further points out that there are eight industries referred to in paragraph 20 of the Special Leave Petition which have not been subjected to the aforesaid 10 per cent surcharge even though the rates of electricity charged per unit in their case are less than those of the Orissa Textile Mills.
It is enough to point out that the industries referred to in the Special Leave Petition were covered by special agreements and we are not even told whether these special agreements had a similar clause like clause 13 in the present case.
This Court has held that special agreements entered under section 49(3) cannot be given a go by while exercising the power of revision of rates under section 49 read with section 59.
That being the position, the objection on the score of discrimination loses all importance.
The totality of the provisions under section 49 does not give any scope for the plea of discrimination raised in this case and in view of clause 13 in the agreement itself.
314 We can appreciate the handicap of counsel in advancing his arguments under the head of discrimination having lost the protective amulet of article 14 of the Constitution under the Presidential embargo during the emergency.
A plea of discrimination which is available when article 14 is in free play is not at par with the interdict of 'undue favour ' under section 49 of the Act.
Apart from this, when law makes it obligatory for certain special agreements to continue in full force during their currency stultifying the power of the Board to revise the rates during the period, no ground of discrimination can be made out on the score of exempting such industries as are governed by special agreements.
Although the Press Note in the instant case did not recite any provisions of the Act under which the same was issued, mere omission to do so does not disentitle the Board to reply upon clause 13 of the agreement for a claim to revision of the rates, although in the form of a surcharge in this case.
We, therefore, do not give any significance to the omission in the Press Note to refer to clause 13 or to any other provision of the Act.
The matter is, therefore, covered by the arbitration clause 23 of the agreement.
It is not for this Court to speculate what answers the Arbitrator will enter with regard to the disputed questions that may be raised before him.
We are not to be understood as expressing any opinion on the merits of the dispute or difference between the parties with regard to the surcharge.
It is then submitted that this Court should not use its discretion in favour of arbitration in a matter where it is a pure question of law as to the power of the Board to levy a surcharge.
This submission would have great force if the sole question involved were the scope and ambit of the power of the Board under sections 49 and 59 of the Act to levy a surcharge, as it was sought to be initially argued.
The question in that event may not have been within the content of clause 23 of the agreement.
But all questions of law, one of which may be interpretation of the agreement, need not necessarily be withdrawn from the domestic forum because the court has discretion under section 34 of the Arbitration Act or under article 226 of the Constitution and that the court is better posted to decide such questions.
The arbitration clause 23 is a clause of wide amplitude taking in its sweep even interpretation of the agreement and necessarily, therefore, of clause 13 therein.
We are, therefore, unable to accede to the submission that we should exercise our discretion to withhold the matter from arbitration and deal with it ourselves.
We, therefore, find no justification in interfering with the conclusion of the High Court in dismising the writ application.
In the result the appeals fail and are dismissed.
We will, however, make no order as to costs.
P.B.R. Appeals dismissed. | Under cl. 13 of the agreement between the parties the tariff and conditions of supply of electricity were subject to any revision that may be made by the supplier from time to time.
Clause 23 states that any dispute or difference arising between the consumer and the supplier shall be referred to an arbitrator.
The respondent issued a press note deciding to levy a surchage of 10 per cent on certain categories of customers, which included the appellants.
The appellants challenged the levy but the High Court dismissed their writ petitions.
On appeal to this Court it was contended that (1) the Board had no power under the Act to levy a surcharge, (2) cl.
13 of the Agreement could not take in the levy of surcharge and as such it is not a matter for reference to arbitration under cl. 23 of the agreement and (3) in exempting certain categories and imposing surcharge upon the appellants the Board was guilty of discrimination, which is impermissible under section 49 of the Act and cl. 2 of Schedule I to the Agreement.
Dismissing the appeals, ^ HELD: (1) Enhancement of the rates by way of surcharge is well within the power of the Board to fix or revise the rates of tariff under the provisions of the Act.
The word "surcharge" is not defined in the Act.
Etymologically it stands for an additional or extra charge or payment, and in the present case it is in substance an addition to the stipulated rate of tariff.
[311 A B; 310H] (2) (i) It is only where there is nothing in a special agreement with regard to revision of rates during the subsistence of the agreement that the existence of the special agreements prevents any increase of the rates stipulated in the special agreements by adding the surcharge.
In the present case cl. 13 of the agreement provides for revision of rates and the surcharge is not absolutely different from rates of tariff because the effect of the levy of surcharge would be to enhance the rate of supply of electricity stipulated under the agreement.
[312 A B] M/s.
Titagarh Paper Mills Ltd. vs Orissa State Electricity Board and Another, , followed.
Indian Aluminium Company vs Kerala State Electricity Board, ; , explained.
Therefore, the matter in dispute is covered by the arbitration clause of the Agreement.
[313 B] (ii) Although the press note did not recite any provision of the Act, mere omission to do so did not disentitle the Board to rely upon clause 13 for a claim to revision of the rates.
[314 C] (iii) This is not a fit case for the Court in its discretion, to withhold the matter from arbitration and itself deal with it merely because the Court has discretion to do so under section 34 of the Arbitration Act or under article 226 of the 308 Constitution and that the Court is better posted to decide such questions.
The arbitration clause is of wide amplitude, taking in its sweep even interpretation of the agreement and necessarily, therefore, of cl. 13.
[314 F] (3) The totality of the provisions under section 49 does not give any scope for the plea of discrimination raised in this case and in view of cl. 13 of the agreement itself.
As regards the various industries which have not been subjected to the charge, it is not known whether there is a similar provision like cl. 13 in the agreements.
[313 G H] When the law makes it obligatory for certain special agreements to continue in full force during their currency stultifying the power of the Board to revise the rates during the period, no ground of discrimination can be made out on the score of exempting such industries as are governed by special agreements.
[314 B] M/s.
Titagarh Paper Mills Ltd. vs Orissa State Electricity Board and Another, , applied. |
N: Criminal Appeal No. 227 of 1972 From the Judgment and order dated the 8th September, 1972 of the Madhya Pradesh High Court in Criminal Appeal No. 927/69.
Mohan Behari Lal for the Appellant.
Ram Panjwani, Dy.
Advocate General for the State of M.P., N. section Parihar and I. N. Shroff for the Respondent.
ORDER CHANDRACHUD, J.
The appellants, Munnu Raja and Chhuttan, were tried by the learned Sessions Judge, Chatarpur on the charge that at about 10 a.m. On April 30, 1969 they committed the murder of one Bahadur Singh.
In support of its case, the prosecution relied upon the evidence of Santosh Singh (P.W. 1 ) and Mst.
Gumni (P.W. 4) who claimed to be eye witnesses and on three dying declarations alleged to have been made by the deceased.
The two eye witnesses were permitted to be cross examined by the Public Prosecutor as they supported the case of the prosecution only partly.
Santosh Singh stated that he saw Chhuttan assaulting Bahadur Singh with a spear but that he did not see Munnu Raja at all.
On the other hand, Mst.
Gumni stated that it was Munnu Raja and not Chhuttan who assaulted the deceased.
Since the two principal witnesses turned hostile, the learned Sessions Judge thought it unsafe to rely on their testimony and, in our opinion, rightly.
The learned Judge was also not impressed by any of the dying declarations with the result that he came to the conclusion that the prosecution had failed to establish its case beyond a reasonable doubt.
In that view of the matter, the appellants were acquitted by the learned Judge.
Being aggrieved by the order of acquittal, the State Government filed an appeal in the High Court of Madhya Pradesh, which was allowed by a Division Bench of that Court by its judgment dated September 8, 1972.
The High Court did not discard the evidence of 766 the eye witnesses but utilised it by way of corroboration to the dying declarations alleged to have been made by the deceased.
Setting aside the order of acquittal, the High Court has convicted the appellants under s: 302 read with section 34 of the Penal Code and has sentenced each of them to imprisonment for life.
The appellants have filed this appeal under section 2(1) of the .
We have heard Mr. Mohan Behari Lal on behalf of the appellants at some length and we have considered each of his submissions care fully.
It is however unnecessary to discuss every one of the points made by him because, basically, the scope of this appeal not for getting that the appellants had a right to file this appeal in this Court lies within a narrow compass.
As we have indicated earlier, no exception can be taken to the view taken by the learned Sessions Judge that it is not safe to place reliance on the testimony of Santosh Singh and Mst.
Gumni.
They resiled from their police statements and it is evident that they have no regard for truth.
Their evidence cannot be used to corroborate the dying declarations either.
We are thus left with the three dying declarations made by Bahadur Singh and since the prosecution has placed great reliance on them, we thought it necessary to hear the learned counsel fully on the facts and circumstances leading to the dying declarations.
In regard to these dying declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh.
The second statement which has been treated by the High Court as a dying declaration is exhibit P 14, being the first information report which was lodged by the deceased at the police station.
The learned Sessions Judge probably assumed that since the statement was recorded as a first information report, it could not be treated as a dying declaration.
In this assumption, he was clearly in error.
After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under section 32(1) of the Evidence Act.
The maker of the statement is dead and the statement relates to the cause of his death.
The High Court has held that these statements are essentially true and do not suffer from any infirmity.
It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated: [see Khushal Rao vs State of Bombay].
The High Court, it is true, has held that the evidence of the two eye witnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from 767 any infirmity by reason of which it was necessary to look out for corroboration.
It was contended by the learned counsel for the appellants that the oral statement which Bahadur Singh made cannot, in the eye of law, constitute a dying declaration because he did not give a full account of the incident or of the transaction which resulted in his death There is no substance in this contention because in order that the Court may be in a position to assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its terms or its tenor.
Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history.
Indeed, quite often, all that the victim may be able to say is that he was beaten by a certain person or persons.
That may either be due to the suddenness of the attack or the conditions of visibility or because the victim is not in a physical condition to recapitulate the entire incident or to narrate it at length.
In fact, many a time, dying declarations which are copiously worded or neatly structured excite suspicion for the reason that they bear traces of tutoring.
It was urged by the learned counsel that after the attack, the deceased was all along accompanied by a large number of persons and one cannot therefore exclude the possibility that he was tutored into involving the appellants falsely.
We see no basis for this submission because not even a suggestion was made to any of the witnesses that the deceased was tutored into making the statement.
The deceased, on his own, did not bear any enmity or hostility to the appellants and had therefore no reason to implicate them falsely.
Indeed, none of the persons who were in the company of the deceased after he was assaulted, is shown to have any particular animus for implicating the appellants falsely.
In regard to the second dying declaration, exhibit P 14, the main objection of the learned counsel is that it was made to the investigating officer himself and ought therefore be treated as suspect.
In support of this submission, reliance was placed on a Judgment of this Court in Balak Ram vs State of U.P.
The error of this argument consists in the assumption that the dying declaration was made to an investigating officer.
The statement, exhibit P.14, was made by Bahadur Singh at the police station by way of a first information report.
It is after the information was recorded, and indeed because of its that the investigation commenced and therefore it is wrong to say that the statement was made to an investigating officer.
The Station House officer who recorded the statement did not possess the capacity of an investigating officer at the time when he recorded the statement.
The judgment on which the counsel relies has therefore no application.
768 We are in full agreement with the High Court that both of these dying declarations are true.
We are further of the opinion that considering the facts and circumstances of the case, these two statements can be accepted without corroboration.
Bahadur Singh was assaulted in broad day light and he knew the appellants.
He did not bear any grudge towards them and had therefore no reason to implicate them falsely.
Those who were in the constant company of Bahadur Singh after the assault, had also no reason to implicate the appellants falsely.
They bore no ill will or malice towards the appellants.
We see no infirmity attaching to the two dying declarations which would make it necessary to look out for corroboration.
We might, however, mention before we close that the High Court ought not to have placed any reliance on the third dying declaration.
exhibit P 2, which is said to have been made by the deceased in the hospital.
The investigating officer who recorded that statement had undoubtedly taken the precaution of keeping a doctor present and it appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded.
But, if the investigating officer thought that Bahadur Singh was in a precarious condition, he ought to have requisitioned the services of a Magistrate for recording the dying declaration.
Investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged.
We have therefore excluded from our consideration the dying declaration, exhibit P 2, recorded in the hospital.
The High Court was, therefore, justified in reversing the order of acquittal passed by the Sessions Court and in convicting the appellants of the offence of which they were charged.
In so doing, the High Court did not violate any of the principles governing appeals against acquittal, to which our attention was drawn by the appellants ' counsel from time to time In the result, we confirm the judgment of the High Court and dismiss the appeal.
P.H.P. Appeal dismissed. | The appellants were tried by the Sessions Judge on the charge of committing murder of Bahadur Singh.
The prosecution relied on the evidence of two eye witnesses and three dying declarations made by the deceased.
The two eye witnesses supported the prosecution case only partly and were, therefor, permitted to be cross examined by the Public Prosecutor.
The Sessions Judge thought it unsafe to rely on the testimony of the two eye witnesses and was also not impressed by and of the dying declarations.
Consequently he acquitted the appellants.
The High Court in appeal did not discard the evidence of the eye witnesses but utilised it by way of corroboration to the dying declarations.
The High Court set aside the order of acquittal and convicted the appellants under section 30 read with section 34 I.P.C. and sentenced each of them to imprisonment for life.
In an appeal under section 2(1) of the .
^ HELD: 1.
The Sessions Court rightly discarded the evidence of the hostile eye witnesses.
They resiled from their Police, Statements and it is evident that they have no regard for truth.
Their evidence cannot be used to corroborate the dying declarations.
[766 C] 2.
In regard to the dying declarations the Sessions Court wholly overlooked the earliest dying declaration which was made by the deceased soon after the incident.
The second dying declaration was the first information report lodged by the deceased at the Police Station.
The Sessions Judge was clearly in error in holding that the first information report cannot be treated as a dying declamation.
After making the statements before the police the deceased succumbed to his injuries and, therefore, the statement can be treated as a dying declaration, and is admissible under section 32(1) of the Evidence Act, The maker of tho statement is dead and the statement relates to the cause of his death.
[766DF] 3.
It is, well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross examination, there is neither a rule of law nor a rule of prudence that a dying declaration cannot be acted upon unless it is corroborated.
[766G] 4.
Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history.
What is necessary is that the whole of the statement made by the deceased must be laid before the court without tampering with its terms or its tenor.
[767 C] 5.
The deceased did not bear any enmity or hostility towards the appellants nor did any other persons who were in the company of the deceased after the assault were shown to have any animus for implicating the appellants false.
[767E] 765 6.
The second dying declaration was not made to the Investigating officer.
It was made by way of First Information Report and it was only after the information was recorded that the investigation commenced.
The High Court was right in relying on the first and second dying declarations.
Considering the facts and circumstances of the case these two dying declarations can be accepted without corroboration.
[767F, 768C] 7.
The High Court ought not to have relied on the third dying declaration which is said to have been made by the deceased in the hospital.
The Investigating officer ought to have requisitioned the services of a Magistrate for re cording that dying declaration, Investigating officers are naturally integrated in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged.
[768CD] 8.
The High Court in reversing the order of acquittal passed by the Sessions rt did not violate any of the principles governing appeals against acquittal.
[768E] |
N: Criminal Appeal No. 115 of 1971.
From the judgment and order dated 16th June 1970 of the Calcutta High Court in Criminal Revision Case No. 650 of 1967 and 934 Criminal Appeals Nos.
256 and 257 of 1971 Appeals by special leave from the judgments and order dated the 27 4 67 and 28 1 71 of the Calcutta High Court in Cases Nos. 2 4/67 and 2/67 Second Criminal Sessions 1967 respectively.
D. Mookherjee and M. N. Shroff for the appellants (in all the appeals).
V. section Desai, A. G. Menseses, J. B. Dadchanji & Co. for respondents in Crl.
256 57/71.
The Judgment of the Court was delivered by BHAGWATI, J.
These three appeals arise out of the same facts and it would, therefore, be convenient to dispose of them by a common judgment.
The respondent in all the three appeals is one Haridas Mundra.
He was at all material times the managing director of section B. Industrial Development Co. (Pvt.) Ltd., who were the managing agents of a company called Richardson & Cruddas Ltd. He and his brother Tulsidas Mundra were also directors of Richardson & Cruddas Ltd. The Life Insurance Corporation of India, which was the largest shareholder, filed a petition in the High Court of Calcutta being Matter No. 357 of 1957 seeking relief against mismanagement of Richardson & Cruddas Ltd. under sections 397 and 398 of the .
The respondent and other directors were impleaded as party respondents to the petition.
The High Court, on the application of the Life Insurance Corporation, made an interim order sometime in December 1957 appointing Sir Dhirendra Mitra as Special Officer to manage the affairs of Richardson & Cruddas Ltd. There was an audit report made by M/s Gutgutia & Co., Chartered Accountants, in regard to the accounts of Richardson & Cruddas Ltd., but the Special Officer was not satisfied with this report and he, therefore, after obtaining directions from the Company Judge, appointed M/s Ferguson & Co., a reputed firm of Chartered Accountants, to examine the accounts of the Company and submit their report.
Ferguson & Co. found, as a result of their investigation, that there were two bills in the records of the Company, one for Rs. 4,12,000 dated 20th June, 1955 and the other for Rs. 6,48,900 dated 27th June, 1955 purporting to be issued by a firm called Indian Machine Tools Co. having its address at 7, Mission Row, Calcutta, showing purchase of certain machinery by Richardson & Cruddas Ltd. from Indian Machine Tools Co. and on the strength of these two bills, entries were made in the books of account of Richardson & Cruddas Ltd. on 24th June, 1955 in respect of the first bill and on 29th June, 1955 in respect of the second bill, crediting the amounts of the bills to section B. Industrial Development Co. (Pvt.) Ltd. and debiting to the machinery account.
On making inquiries, Ferguson & Co. discovered that there was no firm of Indian Machine Tools Co. in existence at 7, Mission Row, Calcutta and no machinery was in fact purchased or received by Richardson & Cruddas Ltd. as shown in the two bills supposed to have been made out by Indian Machine Tools Co. The conclusion reached by Ferguson & Co. as a result of this probe was that Richard 935 son & Cruddas Ltd. has been defrauded of an aggregate sum of Rs. 10,60,900 representing the amounts of the two bills and that amount had been siphoned off to section B. Industrial Development Co. (Pvt.) Ltd. by using these two bills, which were forged, as genuine and they made a report to this effect to the Special officer.
The Special Officer, on receipt of the report, made an application to the Company Judge for a direction that he might be authorised to lodge a complaint with the police for further investigation into these facts set out in the report.
The Company Judge gave the necessary direction and the Special officer thereupon moved the police for making further investigation in the matter.
The Special Police Establishment started the investigation and ultimately submitted a chargesheet against the respondent and Tulsidas Mundra in the Court of the Chief Presidency Magistrate.
The respondent and Tulsidas Mundra were committed by the Chief President Magistrate to stand their trial before the High Court on charges under sections 120B, 409, 471 read with section 468 and section 477A against the respondent and sections 120B and 409 of the Indian Penal Code against Tulsidas Mundra.
When the trial commenced before the High Court, the Public Prosecutor made two applications on 17th April, 1967, one for amending the charges against the respondent by dropping sections 120B and 409 adding section 418 and the other for withdrawing the prosecution against Tulsidas Mundra.
Both these applications were allowed by the High Court, with the result that the trial proceeded only against the respondent on charges under sections 418, 471 read with section 468 and section 477A. Mr. Justice Bagchi, before whom the trial proceeded, felt that he had no jurisdiction to proceed with the trial in view of section 195(1)(c) of the Code of Criminal Procedure, 1898 and he, therefore, requested the Public Prosecutor as well as the counsel for the respondent to argue the point as to the applicability of that section.
The learned Judge, after hearing the arguments advanced before him on both sides, delivered an elaborate judgment holding that by reason of section 195(1) (c) of the Code of Criminal Procedure, 1898, which applied in the present case, he had no jurisdiction to proceed further with the trial of the respondent and he accordingly discharged the respondent by an order dated 27th April 1967.
The State being aggrieved by this judgment and order passed by Mr. Justice Bagchi in the exercise of original criminal jurisdiction, preferred a revision application against the same on the appellate side of the High Court.
The respondent raised a preliminary objection against the maintainability of the revision application on the ground that it was not competent to the High Court to exercise revisional jurisdiction against an order made by a judge of the High Court in a Sessions trial.
Since this preliminary objection raised a question of some importance it was referred to a full Bench and by a judgment dated 16th June, 1970, the Full Bench upheld the preliminary objection and held that the High Court had no jurisdiction in revision of some importance, it was referred to a Full Bench and by a judge of the High Court in the exercise of its original criminal jurisdiction and accordingly rejected the revision application.
936 It appears that the State had in the meantime filed an application in the High Court for leave to appeal to this Court against the judgment and order of Mr. Justice Bagchi.
This application was rejected by the learned Judge by an order dated 28th January, 1971 on the ground that it was not a judgment or a final order or a sentence falling within article 134(1)(c) of the Constitution.
The State thereupon preferred two petitions in this Court for special leave to appeal, one against the judgment and order of Mr. Justice Bagchi discharging the respondent and the other against the judgment and order of the same learned Judge rejecting the application of the State for leave to appeal to this Court.
This Court allowed both the petitions and granted special leave and hence we have Criminal Appeal No. 256 of 1971 directed against the judgment and order of Mr. Justice Bagchi discharging the respondent and Criminal Appeal No. 257 of 1971 against the judgment and order of that learned Judge refusing leave to appeal to the State.
The State also preferred an application in the High Court for leave to appeal to this Court against the judgment and order of the Full Bench rejecting the revision application of the State and on this application, leave was granted by the High Court under article 134(1) (c) of the Constitution and that is how Criminal Appeal No. 115 of 1971 is before us.
We will first deal with Criminal Appeal No. 256 of 1971.
If that criminal appeal is allowed and it is held that section 195(1) (c) has no applicability in the present case, it would become unnecessary to consider the other two criminal appeals.
Now, section 195(1)(c) provides that no court shall take cognisance of an offence described in section 463 or punishable under sections 471, 475 and 476 of the Indian Penal Code where such offence is alleged to have been committed by a party to any proceeding in any court in respect of any document produced or given in evidence in such proceeding, except on the complaint in writing of such court or of some other court to which such court is subordinate.
Obviously, on its plain language, the inhabitation in section 195(1) (c) applies only where a person is being tried for an offence described in section 463 or punishable under sections 471, 475 or section 476.
Here, the respondent was being tried for three distinct offences under sections 418, 471 and 477A. So far as the offences under sections 418 and 477A are concerned, they were plainly not covered by section 195(1)(c) and even if section 195(1)(c) were otherwise applicable, it is difficult to see how the trial of the respondent for these two offences could be said to be vitiated on the ground that no complaint in writing was made by the Company Judge.
The High Court had, therefore clearly and indubitably jurisdiction to proceed with the trial against the respondent in respect of the offences under sections 418 and 477A.
The question of lack of jurisdiction in the High Court to proceed with the trial could arise only in regard to the offence under section 471 which is one of the offences specified in section 195(1) (c).
But in regard to this offence also, we do not see how, on the facts of the present case, the applicability of section 195 (1) (c) could be invoked on behalf of the respondent.
The offence under section 471 which was charged against the respondent was that he had used the two forged bills of Indian Machine Tools Co. as 937 genuine on 24th and 29th June, 1955 by making, on the strength of these two bills, false entries in the books of account of Richardson & Cruddas Ltd. crediting the aggregate sum of Rs. 10,60,900/ in the account of section B. Industrial Development Co. (Pvt.) Ltd. and debiting it in the machinery account.
This offence was alleged to have been committed by the respondent on 24th and 29th June, 1955 long before the proceeding in Matter No. 357 of 1957 commenced and he became a party to that proceeding and it was not committed by him in his capacity as such party, that is, after having become a party to the proceeding.
Now, at one time there was sharp cleavage of opinion amongst various High Courts in regard to the true interpretation of section 195(1) (c).
Some High Courts held that to attract the prohibition contained in section 195(1)(c), the offence should be alleged to have been committed by the party to the proceeding in his character as such party, which means, after having become a party to the proceeding, while some others took the view that it was sufficient to attract the applicability of section 195(1) (c) even if the alleged offence was committed by the party to the proceeding prior to his becoming such party, provided that the document in question was produced or given in evidence in such proceeding.
This divergence of opinion amongst different High Courts was set at rest by this Court by its decision in Patel Lal Gbhai Somabhai vs The State of Gujarat(1) where this Court accepted the former view in preference to the latter.
This Court pointed out that the words of section 195(1) (c) clearly meant that the offence should be alleged to have been committed by the party to the proceeding in his character as such party, that is, after having become a party to the proceeding.
Sections 195(1)(c), 476 and 476A read together indicated beyond doubt that the legislature could not have intended to extend the prohibition contained in section 195(1) (c) to the offences mentioned therein when committed by a party to a proceeding prior to his becoming such party.
The scope and ambit of section 195(1) (c) was thus restricted by this Court to cases where the offence was alleged to have been committed by a party to a proceeding after he became such party and not before.
This view as to the interpretation of section 195(1) (c) was reaffirmed by this Court in Raghunath vs State of U.P.(2) and Mohan Lal vs The State of Rajasthan(3).
It must inevitably follow, on this view, that since the offence charged against the respondent was one alleged to have been committed by him before he became a party to the proceeding in Matter No. 357 of 1957, section 195(1)(c) had no application.
It may also be noted that neither of the two forged bills of Indian Machine Tools Co. was produced or given in evidence in the proceeding in Matter No. 357 of 1957.
Both these forged bills formed part of the record of Richardson & Cruddas Ltd. and they were taken possession of by the Special Officer along with the other record of the Company and nobody produced them or tendered them in evidence before the Company Judge in the proceeding in Matter No. 357 of 1957.
The requirement of section 195(1) (c) that the document in question should be 938 produced or given in evidence in the proceeding was, therefore, clearly not satisfied and on this ground also, section 195(1) (c) was not attracted in the present case.
We must, therefore, hold that the High Court was entitled to proceed with the trial of the respondent in respect of the offence under section 471 without any complaint in writing from the Company Judge before whom the proceeding in Matter No. 357 of 1957 was pending.
We accordingly allow Criminal Appeal No.256 of 1971, set aside the judgment of Mr. Justice Bagchi discharging the respondent and remand the case to the City Sessions Court, to which the original criminal jurisdiction in Sessions cases has now been transferred, for disposal according to law.
Since the case is a very old one, we would direct the City Sessions Court to take it up for hearing at an early date.
In the view taken by us in Criminal Appeal No. 256 of 1971, Criminal Appeals Nos. 115 and 257 of 1971 do not survive for consideration and we accordingly dismiss them.
P.B.R. Cr. A. 256 of 1971 allowed.
115 & 257 of 1971 dismissed. | The respondent, a director of a company was charged with offences under sections 418 and 471 read with sections 468 and 477A, I.P.C. on the ground that he defrauded the company.
At the trial, a single Judge of the High Court discharged the respondent on the view that he had no jurisdiction to proceed with the trial by reason of s.195(1)(c) of the Cr. P.C., 1898.
The full Bench of the High Court affirmed the view of the single Judge.
Allowing the appeals to this Court, ^ HELD: The High Court was entitled to proceed with the trial of the respondent in respect of offences under section 471 without any complaint in writing from the company Judge whom the proceeding was pending.
[938A] (1) Section 195(1)(c) of the Code of Criminal Procedure provides that no court shall take cognizance of an offence described in section 463 or punishable under sections 471, 475 and 476, Indian Penal Code where such offence is alleged to have been committed by a party to any proceeding in any court in respect of any document produced or given in evidence in such proceeding, except on the complaint in writing of such court or of some other court to which such court is subordinate.
The High Court had clearly and indubitably jurisdiction to proceed with the trial against the respondent in respect of offences under sections 418 and 477A. On its plain language the inhibition in section 195(1)(c) applies only where a person is being tried for an offence under section 463 or punishable under sections 471, 475 or 476.
Offences under 418 and section 477A are plainly not covered by section 195(1)(c) Cr.
P.C. [936 D G] (2) In regard to offences under section 471, I.P.C. it could not be said that the respondent could invoke the applicability of section 195(1)(c).
The offence under section 471 was committed by the respondent long before the proceeding in the Company matter commenced and he became a party to that proceeding, and it was not committed by him in his capacity as such party, i.e. after having become a party to the proceeding.
In Patel Laljibhai Somabhai vs The State of Gujarat this Court restricted the scope and ambit of section 195 (1)(c) to cases where the offence was alleged to have been committed by a party to a proceeding after he became such party and not before.
[936H, 937A D] Raghunath vs State of U.P., AIR 1973 S.C. 1100 and Mohan Lal vs The State of Rajasthan, AIR 1974 S.C. 299, referred to.
In the instant case since the offence charged against the respondent was one alleged to have been committed by him before he became a party to the proceeding in the company matter, section 195(1)(c) had no application.
Secondly, the forged bills had not been produced in evidence before the Company Judge in the proceeding before him.
The requirement of section 195(1)(c) that the document in question should be produced or given in evidence in the proceeding was, therefore, clearly not satisfied and on this ground also section 195(1)(c) was not attracted in the present case.
[937G, 938A] |
vil APPEAL No. 198 of 1956.
Appeal from the judgment and decree dated August 24, 1950, of the Allahabad High Court in Execution First Appeal No. 399 of 1947.
Gopi Nath Kunzru and Ganpat Rai, for the appellants G. section Pathak and G. C. Mathur, for the respondent.
October l 2.
The Judgment of the Court was delivered by SHAH, J.
The Banaras Bank Ltd. a public limited company having its registered office at Banaras (hereinafter referred to as the Bank) was ordered on March l, 1 940 to be compulsorliy wound up by the High Court of Judicature at Allahabad, and the Official Liquidator was appointed to conduct the proceedings in winding up.
On September 12, 1942, an order was made by the High Court under section 187 of the Indian Companies Act, 1913 (VII of 1913) for payment of unpaid calls and the appellants Jyoti Bhushan Gupta.
and Gokul Chand, whose names had been placed on the list of contributors, were directed to pay with interest Rs. 95,178/5/9 to the official Liquidator of the Bank.
This order was, by virtue of section 199 of the Act, enforceable in the manner in which the decree of the High Court made in any suit pending therein may be enforced.
On September 12, 1946, the order was transferred to the District Judge, Allahabad for execution.
On September 23, 1946, the official Liquidator applied to the District Court, Allahabad for execution of the order dated September 12, 1942, and prayed that certain amounts due to the appellants be attached in satisfaction of the claim.
The execution proceedings were transferred by the District Judge 75 to the Civil Judge, Allahabad.
The appellants contended Inter alia that as the application for execution was not preferred within 3 years of the order for payment as prescribed by article 182 of the First Schedule of the Limitation Act it was barred by the law of limitation.
The official Liquidator contended that the application was governed by article 183 of the Act and that, in any event, certain part payments having been made towards the claim by the appellants, the period of limitation was extended thereby.
At the hearing, the alternative plea of part payment was abandoned by the Official Liquidator.
The Civi1 Judge held that the application for execution was barred limitation as it was not preferred within 3 years from the order of the High Court.
In appeal to the High Court of Allahabad, the order passed by the Civil Judge was reversed and the proceedings were remitted to the Civil Judge with a direction to restore the execution application to its original number and to proceed with it according to law.
Against that order with certificate of fitness granted by the High Court under article 133 of the Constitution, this appeal is preferred.
Counsel for the Company contended that the order passed by the High Court not being a final order the appeal on certificate granted by this High Court is not maintainable.
We have not thought it necessary, having regard to the importance of the question raised by the appellants and the fact that this Court may in a proper case regularise the proceeding in this Court by granting special leave, even if certificate under article 133 of the Constitution could not be issued by the High Court, to hear the parties on the question as to the maintainability of the appeal OD the certificate and have heard the appeal on the merits.
We are of the view that the appeal must fail on the merits.
76 article 182 of the Indian Limitation Act provides a period of 3 years for an application for execution of a decreer an order of any Civil Court not provided by article 183 or section 48 of the Code of Civil Procedure, 1908 (V of l908).
By article 183 a period of l2 years for enforcing a judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction is prescribed and the period commences to run from the date on which a present right to enforce the judgment, decree or order accrues to some person capable of.
releasing the right.
The order sought to be executed was not passed by the High Court in the trial of a suit: it was passed in exercise of the jurisdiction conferred upon the High Court by section 187 of the Indian Companies s Act, 1913.
Section 3 of the Indian Companies Act by sub s.(1) enacts that the Court having jurisdiction under this Act shall be the High Court having jurisdiction in the place at which the registered office of the company is situate.
By the proviso, the Central Government may by notification in the official Gazette empower any District Court to exercise all or any of the jurisdiction conferred upon the High Court.
But it is common ground that no notification conferring jurisdiction and empowering the District Court at Banaras where the registered office of the company is situate to pass orders under B. 187 has been issued.
The High Court was therefore the only Court competent to direct under B. 187 of the Indian Companies Act payment of the amount due from the appellants.
Counsel for the appellants contends that the authority exercised by the High Court in directing payment under section 187 of the Indian Companies Act, 1913, is neither ordinary, nor original civil.
He submits that by section 187 a special power is vested in the High Court by the Indian Companies Act, 1913, which is exercisable in its extraordinary jurisdiction.
To appreciate this argument it is necessary to refer to the statute authorising the establish 77 ment of the High Court, and the Letters Patent constituting the same.
The High Court for the North Western Province, of which the Allahabad High Court is the successor, was constituted by the Letters Patent issued on March 17, 1866, in exercise of the powers conferred by cl. 16 of the Charter Act of 1861 (24.25 Vict. C. 104).
By that clause, Her Majesty the Queen was authorised to establish a High Court and to invest the High Court with such jurisdiction, powers and authority as under the Charter Act may by cl. 9 be conferred upon the High Court to be established in any of the presidencies, i. e., calcutta, Bombay and Madras.
The High Courts of Calcutta, Bombay and Madras, which were popularly known as the Presidency High Courts were by cl. 12 of their respective Letters Patent invested with ordinary original civil jurisdiction to entertain and try suits of every description subject to the restriction as to territorial limitations contained in cl. 11 thereof.
But by its Letters Patent, the High Court for the North Western Province was not invested with jurisdiction to entertain civil suits in exercise of its ordinary original civil jurisdiction.
Counsel for the appellants submits that Art.183 applies only to decrees and orders passed by the High Courts established by the Royal Charter, which by their constitution are authorised to entertain, hear and try civil suits in exercise of their ordinary civil jurisdiction, and as no such power was conferred upon the Allahabad High Court, the order sought to be executed was not passed in exercise of the ordinary original civil jurisdiction.
It is true that when the Letters Patent were issued the High Court had no jurisdiction under a law relating to companies of the nature exercised by the High Court, the character whereof falls to be determined in this appeal.
But by cl. 16 of the Charter Act and cl. 35 of the Letters Patent of the Allahabad High Court jurisdiction 78 which Was not initially conferred upon the High Court could the conferred by legislation within the competence of the Governor General in Council and the Governor in Council.
By the Companies Act of 1913, the High Court was invested with jurisdiction to order payment of the amounts due by debtors of companies ordered to be wound up.
This jurisdiction may be invoked as of right against all persons whose names are placed on the list of contributors.
The jurisdiction is ordinary: it does not depend on any extraordinary action on the part of the High Court.
The jurisdiction is also original in character because the petition for exercise of the jurisdiction is entertainable by the High Court as a court of first instance and not in exercise of its appellate jurisdiction.
Again by section 187 no special jurisdiction is conferred.
The High Court adjudicates upon the liability of the debtor to pay debts due by him to the Company: the jurisdiction is therefore civil.
Normally, a creditor has to file a suit to enforce liability for payment of a debt due to him from him debtor.
The Legislature has by section 187 of the Companies Act empowered the High Court in a summary proceeding to determine the liability and to pass an order for payment, but on that account the real character of the jurisdiction exercised by the High Court is not altered.
Nor is there any substance in the contention that the authority to order payment of a debt under section 187 is merely a power of the High Court and not its jurisdiction.
By section 3 read with section 187 of the Companies Act the High Court has jurisdiction to direct payment of the amount due by a contributory: and an order passed for payment manifestly is an order passed in exercise of the jurisdiction vested in the High Court by section 3 read with 8. 187 of the Companies Act.
The Judicial Committee of the Privy Council was called upon In the matter of Candas Narondas Navivahu and C. A. Turner(1) to determine the true (1) I. L. R. (1889) 13, Eom.
79 nature of the jurisdiction exercised by the High Court of judicature at Bombay in respect of insolvent debtors.
The Privy Council held that article 180 of Schedule II of the Indian Limitation Act XV of 1877 (which was similar to article 183 of the Indian Limitation Act, l908) applies to a judgment of a Court for the relief of insolvent ebtors entered up in the High Court, in accordance with section 86 of the Statute 11 and 12 Vic., c. 21.
It was held in that case that although a Court exercising insolvency jurisdiction determines the substance of the question relating to an insolvent 's estate, the, proceedings in execution and the judgment are the High Court 'section The judgment is entered up in the ordinary course of the duty cast upon the High Court by the law, not by way of special or extra ordinary action, but in the exercise of its ordinary original civil jurisdiction.
Lord Hobhouse delivering the judgment of the judicial committee observed: "But it was strongly contended at the bar that this jurisdiction though civil and original, was not ordinary: and Mr. Rugby argued that the passages of the Charter which have just been epitomised divide the jurisdiction into four classes ordinary original, extraordinary original, appellate, and those special matters which are tho subject of special and separate provisions.
But their Lordships are of the opinion that the expression "ordinary jurisdiction" embraces all such as is exercised in the ordinary course of law and without any special step being necessary to assume it and that it is opposed to extraordinary jurisdiction, which the Court may assume at its discretion upon special occasions and by special orders.
They are confirmed in this view by observing that, in the next group of clauses which indicated the law to be applied by the Court to the various clauses of cases, there is not a four fold division of jurisdiction, but a three fold one, into ordinary, extraordinary, 80 and appellate.
The judgment of 1868 was entered up by the High Court, not by way of special or discretionary action, but in the ordinary course of the duty cast upon it by law, according to which every other case of the same kind would be dealt with.
It was, therefore, entered up in exercise of the ordineary original civil jurisdiction of the High Court.
" Council for the appellants contended that by cl. 18 of the letters Patent the High Court of Bombay was invested with insolvency jurisdiction whereas the High Court of Allahabad is not invested by the Letters Patent with any jurisdiction in the matter of companies and therefore the principle of "In re Candas Narondas" does not apply.
But under cl. 18 of the Letters Patent a Judge or Judges of the High Court are to sit as a Court for relief of insolvent debtors and powers and authorities with respect to original and appellate jurisdiction are to be deter mined by reference to the law relating to insolvent debtors.
The jurisdiction to deal with the claims of companies ordered to be wound up is conferred by the Indian Companies Act and to that extent the Letters Patent are modified.
There is, however, no difference in the character of the original civil jurisdiction which is conferred upon the High Court by Letters Patent and the jurisdiction conferred by special Acts.
When in exercise of its authority conferred by a special statute the High court in an application presented to it as a court of first instance declares liability to pay a debt, the jurisdiction exercised is original and civil and if the exercise of that jurisdiction does not depend upon any preliminary step invoking exercise of discretion of the High Court, the jurisdiction is ordinary.
In P. T. Munia Servai v The Hanuman Bank Ltd, Tanjore (1), a Division Bench of the Madras (I) 1.
L. R. 81 High Court by the Banking Companies Act, ]949 (X of 1949) is part of its ordinary civil jurisdiction within the meaning of article 183 of the Limitation Act and an order passed in exercise of its ordinary original Civil Jurisdiction is governed by article 183 and not by article 182 of the Limitation Act.
In that case on an application preferred by the Official Liquidator of the Hanuman Bank Ltd., a direction for payment by the High Court of certain sums of money by the appellant Munia on or before a certain date was made.
To an application for enforcement of that liability article 183 of the Limitation Act was held applicable.
In our view, the High Court was right ill holding that the application for execution filed by the official Liquidator was within limitation.
The appeal, therefore, fails and is dismissed with costs.
Appeal dismissed. | The Banaras Bank Ltd. was ordered by the Allahabad High Court to be compulsorily wound up.
The High Court passed an order under section 187 of the Indian Companies Act, 1913, directing the appellants, whose names had been placed on the list of contributors, to pay a certain sum of money to the official Liquidator.
The official Liquidator applied for execution of the order more than three years after the making thereof.
The appellants contended that the execution application, not having Been preferred within three years as prescribed by article 182 of the Limitation Act was barred.
The official Liquidator contended that the order was made in the exercise of ordinary original civil jurisdiction by the High Court and the application was governed by article 183 which prescribed a period of limitation of twelve years.
^ Held, that article 183 was applicable to the case and the application for execution was within time.
The order was Made by the High Court in the exercise of its ordinary original civil jurisdiction as contemplated in article 183.
Though the Letters Patent did not invest the High Court with any original jurisdiction it could be conferred by legislation.
The Indian Companies Act, 1913, invested the High Court with the jurisdiction to order payment of amounts due by debtors of companies ordered to be wound up.
The jurisdiction was ordinary, it did not depend on and extraordinary action on the part of the High Court.
It was original as a petition for the exercise of it was entertained by the High Court as a court of: first instance and not as an appellate court, and since the High Court adjudicated upon the liability of the debtor to pay debts due by him to the company the jurisdiction was civil.
In the matter of Candas Narondas, Navivahu and C. A; Turner, I. L. R. and P. T. Munia Cervai 74 vs The Hunuman Bnak Ltd., I.L.R , referred to |
Special Leave Petition (Civil) Nos.
15054 57 of 1985.
From the Judgment and Order dated 30.1.1985 of the Allahabad High Court in Sales Tax Revision No. 334, 418, 285 and 332 of 1984.
S.C. Manchanda, R.S. Rana and Ashok K. Srivastava for the Petitioner.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an application for leave to 448 appeal under Article 136 of the Constitution against the Judgment and order of the High Court of Allahabad, dated 30th January, 1985.
The respondent carried on the business at the relevant time in Tendu leaves.
The respondent 's case was that there was no inter state sales of Tendu leaves in question.
On the contrary, its case was that the entire sales of Tendu leaves were effected in Uttar Pradesh.
This contention was not accepted by the assessing authority.
Having failed in the first appeal, the assessee went up in second appeal and the Tribunal allowed the appeal and quashed the orders passed by the assessing authority as well as the Assistant Commissioner (Judicial).
The Tribunal exhaustively discussed the facts.
They found that the assessee carried on business in Tendu leaves and for the year 1976 77 the assessee had been assessed under Section 21 of the U.P. Sales Tax Act on inter state sales of Rs.21,050 to a tax of Rs.2,105 whereas the case of the assessee was that the inter state sales were nil.
It was contended on behalf of the assessee that the assessee had effected the sales in U.P.
According to the assessee, out of the above sales of Rs.21,050, Tendu leaves worth Rs. 10,000 were sold on 24th April, 1976 to Sri Gulam Mohammad of Kanpur and those worth Rs.11,050 were sold in cash at Lalitpur on 5th May, 1976.
It was further contended that the assessee did not know if the purchasers had taken these Tendu leaves to places outside U.P. and even if they had so taken, the assessee could not be assessed to tax under the as the contract between him and the purchaser was to purchase goods in U.P.
The Tribunal took notice of T.P. Form IV which is a transport permit issued by the Forest Department.
The Forest Department had given in writing that this transport permit did not relate to sale but it was a certificate regarding the validity of Nikasi of Tendu leaves from the forest.
It is well settled that even if it is established that the assessee had obtained T.P. Form IV that by itself will not show that the assessee had entered into inter state sales.
Merely because T.P. Form had been issued, it does not follow that there were inter state sales.
The principles of inter state sales were well settled.
In Bengal Immunity Co. vs State of Bihar, (6 STC 446) Justice Venkatarama Ayyar had held that sale could be said to be in the course of inter state trade only if two conditions concur, namely, (1) a sale of goods and (2) a transport of those goods from one State to another.
Unless both these conditions were satisfied.
there could be no sale in the course of 449 inter state trade.
There must be an evidence that the transportation was occasioned by the contract and as a result goods moved out of the bargain between the parties from one State to another.
It is apparent from the facts found by the Tribunal that the assessee had since the very beginning been contending that he had effected only local sales.
He had also filed an affidavit stating that he had not effected any sales of Tendu leaves during the course of inter state trade and commerce and that the had never applied to the Forest Department for issue of Form T.P. IV and that no such Form was ever issued to him and the Tendu leaves in dispute were not booked by him through railways or trucks for places outside U.P.
The Tribunal found nothing to discredit this version of the assessee.
The onus lies on the Revenue to disprove the contention of the assessee.
The Tribunal found no material to do so.
On these facts the Tribunal rejected the contention of the assessee.
On these contentions the Revenue went up in appeal before the High Court.
The question posed before the High Court was as follows: "Whether on the facts and under the circumstances of the case the Tribunal Sales Tax, Kanpur, was legally justified in knocking off the tax imposed by the assessing authority?" The High Court addressed itself to the question whether the sales effected by the respondent, were inter state sales or not.
On an analysis of the findings of the Tribunal, the High Court found that the goods were not moved out of U.P. in pursuance of an agreement for sale entered into between the assessees and their customers.
The existence of T.P. Form IV was taken note of but that did not conclude the matter.
The condition precedent for imposing sales tax under the , is that the goods must move out of the State in pursuance of some contract entered into between the seller and the purchaser.
If that is a correct principle in law, the Tribunal applied this correct principle of law to the facts of this case taking into cognizance the existence of T.P. Form.
In view of the facts of this case, the High Court found no material to interfere and dismissed assessee 's contention.
We are of the opinion that the High Court was right.
In the premises this application for leave must fail and is accordingly dismissed.
N.V.K. Petition dismissed. | % The respondent assessee carried on business in Tendu leaves.
He contended before the Assessing Authority that there was no inter state sale of Tendu leaves, that the entire sales of Tendu leaves were effected in Uttar Pradesh, and that he did not know if the purchasers had taken these Tendu leaves to places outside Uttar Pradesh, and even if they have so taken the assessee could not be assessed to tax under the , as the contract between him and the purchaser was to purchase goods in U.P.
This contention was not accepted and the Assessing Authority assessed the respondent.
The Assistant Commissioner (Judicial) having dismissed the appeal against the order of the Assessing Authority, the respondent went in Second Appeal to the Sales Tax Appellate Tribunal.
The Tribunal took notice of T.P. Form IV which was a transport permit issued by the Forest department, regarding the validity of Nikasi of Tendu leaves from the forest, and came to the conclusion that merely because T.P. Form had been issued, it does not follow that there were inter state sales.
The Tribunal allowed the appeal and quashed the order passed by the assessing authority as well as First Appellate Authority.
The Revenue went up in appeal to the High Court, which held that the goods were moved out of U.P. in pursuance of an agreement of sale entered into between the assessee and their customers and that the condition precedent for imposing sales tax under the Central Sales Tax 447 Act was not present and dismissed the appeal.
Dismissing the Special Leave Petitions of the Department, this Court, ^ HELD: 1.
Sale could be said to be in the course of inter state trade only if two conditions concur, viz. (1) a sale of goods, and (2) transport of those goods from one State to another.
Unless both these conditions are satisfied, there could be no sale in the course of interstate trade.
There must be evidence that the transportation was occasioned by the contract, and as a result goods moved out of the bargain between the parties from one State to another.
[448H; 449A] Bengal Immunity Co. vs State of Bihar, 6 STC 446 referred to 2.
The condition precedent for imposing sales tax under the , is that the goods must move out of the State in pursuance of some contract entered into between the seller and the purchaser.
[449F G] 3.
T.P. Form IV is a transport permit issued by the Forest Department.
The Forest Department has given in writing that this permit did not relate to sale but was a certificate regarding the validity of Nikasi of Tendu Leaves from the forest.
Merely because T.P. Form has been issued, it does not follow that there were inter state sales.
[448F G] 4.
The onus lies on the Revenue to disprove the contention of the assessee, that a sale is a local sale and to show that it is an inter state sale.
[449C] |
Criminal Appeal No. 738 of 1981.
From the Judgment and Order dated 29.8.1980 of the Himachal Pradesh High Court in Criminal Appeal No. 41 of 1980.
Balakrishna Gaur, Amicus Curiae for the Appellant.
K.G. Bhagat, Harish Kumar Sharma and Ms. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by AHMADI, J.
The appellant Prithi Chand, a youth of about 18 years, was prosecuted for committing rape of PW I Kancha na Devi, a girl of tender age of 11 or 12 years, on the afternoon of 15th June, 1979 at a place known as Kutkharpati in village Kot, Tehsil Palampur of Himachal Pradesh.
The learned Sessions Judge convicted him under Section 376, I.P.C., and sentenced him to suffer imprisonment for life and to pay a fine of Rs.2,000, in default to suffer rigorous imprisonment for a further period of two years.
On appeal, the High Court while confirming his conviction under Section 376, I.P.C., reduced the substantive sentence from imprison ment for life to rigorous imprisonment for seven years but retained the order regarding payment of fine 126 and the punishment in default thereof.
Thereupon the appel lant has approached this Court under Article 136 of the Constitution of India.
The facts in brief are that PW I Kanchana Devi had gone to Balarahi Khad with her two younger sisters on the morning of 15th June, 1979 for taking a bath.
After the bath when she was returning to her residence the appellant met her on the way and asked her to permit him to have sexual inter course with her.
She resented this behaviour of the appel lant and with a view to avoiding him changed her route.
But the appellant intercepted her and offered her Rs.5 for permitting him to have sexual intercourse with her.
On the prosecutrix refusing the appellant physically lifted her and took her to a shallow place, removed her trousers (Salwar) and after removing his clothes committed rape on her, on account whereof she began to bleed profusely.
After satisfy ing his lust the appellant gave her a few leaves to wipe her vagina.
On hearing a call from PW 7 Sandhi Devi who was looking for her daughter, the appellant ran away.
The prose cutrix returned home.
Her trousers were stained with blood.
She narrated the incident to her mother PW 6 Vijaya Devi and thereafter to the other ladies of the village who had in the meanwhile collected at her residence.
The mother and the other ladies examined the vagina of the girl and found that the same was ruptured and bleeding.
As her father was not at home, her mother could not decide on the course of action.
On the return of her father PW 3 Bali Ram, she narrated the incident to him, whereupon the Sarpanch of the village PW 12 Chaturbhuj was informed about the incident who advised them to report the matter to the police in the morning since it was too late to travel to the Police Station.
On the next morning the prosecutrix, her parents and the Sarpanch went to the Police Station where the girl filed the report which is on record at Exhibit P A. PW I Kanchana Devi narrated the incident as stated above in detail in her deposition before the Court also.
Except for one or two minor omissions, her evidence is consistent with the report Exhibit P A. She has stated that on that afternoon the appellant forcibly lifted her and took her to the lower level where he had sexual intercourse with her.
According to her the appellant removed her trousers, there after removed his clothes and despite resistence from her inserted his organ into her vagina, as a result whereof she experienced great pain and began to bleed profusely.
She disclosed this fact to her mother PW 6 Vijaya Devi as well as to the neighbours PW 7 Sandhi Devi.
and PW 8 Phulan Devi.
On the return of her father PW 3 Bali Ram, she narrated the incident to him.
All these witnesses support the version of 127 the prosecutrix.
The Sarpanch PW 12 Chaturbhuj has also stated that when the prosecutrix was brought to him she was wearing a blood stained Salwar and had complained that the appellant had raped her.
PW 4 Julfi, Chowkidar of the vil lage stated that the prosecutrix had pointed out the place of occurence wherefrom blood stained leaves were attached by the police under seizure Memo exhibit P B. PW 5 Kishori Lal supports him.
The prosecutrix was examined by Dr. C.S. Vedwa, who had issued the Medical Certificate, exhibit P E dated 16th June, 1979.
The Medical Certificate shows that the prosecutrix had not developed secondary sex characters, auxiliary and pubic hair were absent and there were abrasions of 3 ' x 1/8 ' and 2 ' x 1/8 ' on the lumber region.
She also found signs of inflamation around the vulva; the vagina was bleeding, the hymen was absent with the edges torn and there was tender ness all around.
The hymen was bleeding on touch and the vagina admitted one finger with difficulty.
The girl 's Salwar was blood stained.
It was taken in a sealed packet along with two slides and swabs.
Unfortunately, this lady Doctor who had delivered a child was not available for giving evidence as she had proceeded on long leave.
The learned Sessions Judge felt that it would not be possible to secure her presence without undue delay, and therefore, permitted the prosecution to prove the certificate through PW 2 Dr. Kapila, who was conversant with her hand writing and signature, he having worked with her for about two years.
He stated that the carbon copy of the certificate Ex P E was prepared by Dr. Vedwa by one process and bears her signature.
The learned counsel for the appellant contended that this certificate was inadmissible in evidence since the prosecution has failed to prove that the original certifi cate was lost and not available.
Section 32 of the Evidence Act provides that when a statement, written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence.
Besides, since one carbon copy was made by one uniform process the same was primary evidence within the meaning of explanation 2 to Section 62 of the Evidence Act.
Therefore the medical certificate exhibit P E was clearly admissible in evidence.
That apart, there is strong, reliable and dependable evidence of the prosecution witnesses which clearly proves that the prosecutrix was raped by the appellant.
PW 2, Dr. Kapila examined the appellant on 31st July, 1979.
He found him to be well nourished and well developed for his age, the beard had started to grow, pubic hair were present and the scrotum 128 and penis were well developed.
In the opinion of the witness the appellant was fit to indulge in sexual intercourse.
It was however argued that having regard to the girl 's age and the fact that her vagina admitted one finger with difficul ty, it is not possible to believe that there was penetra tion.
The argument overlooks the fact that in the absence of penetration there would not be absence of hymen with the edges torn and profuse bleeding from the vagina staining the Salwar.
Merely because the Doctor found that the vagina admitted one finger with difficulty, it cannot be inferred that there was no penetration as the muscles must have contracted by then.
The appellant, a robust man must have penetrated the vagina for otherwise there would not have been so much of bleeding.
Surprisingly no question was put to Dr. Kapila to solicit his opinion in this behalf.
PW 9 Dr. Mahajan examined the prosecutrix with a view to ascertaining her age.
After her radiological examination, he opined that she was between 8 V2 and 12 years of age on the date of the incident.
The evidence of this witnesses corrob orates the say of the prosecution witnesses that she was around 11 or 12 years of age on the date of the incident.
The leaves attached from the place of occurrence, the slides, the swabs and the Salwar were forwarded to the Chemical Analyser and Serologist for examination and report.
Exhibit P N shows that there was blood on the leaves and the Salwar.
However, no spermatozoa were found on any of the exhibits.
The report of the Serologist exhibit P O shows that the Salwar was stained with human blood while the origin of the blood stains on the leaves could not be determined on account of disintegration.
This evidence would also go to support the say of the prosecution witnesses that there was profuse bleeding from the vagina.
The learned counsel for the appellant submitted that there was delay in filing the First Information Report.
We do not think so.
Immediately after the incident was narrated to the mother and other ladies, a decision was taken to await the return of the father before deciding on the course of action.
On the arrival of the father the Sarpanch was contacted, who advised that the police should be informed about the incident.
The Sarpanch, however, stated that he would accompany them next morning since it was already dark.
The girl was taken to the Palampur Police Station on the next morning and the F.I.R. was lodged.
We, therefore, do not think that there was any delay in reporting the matter to the police.
129 It was next contended that the appellant was falsely involved due to a long standing enmity between the father of the appellant and that girl 's father.
The prosecutrix has in her deposition stated that the two families were not on talking or visiting terms, since their relations were strained.
It was suggested in the course of cross examina tion that Ratna, the son of PW 8 Phulan Devi was intimate with the prosecutrix and he had raped the girl.
In his statement under Section 313 of the Code of Criminal Proce dure, he put forth the case that when he returned to his village in the evening, he saw some ladies at the girl 's house and heard the girl saying that she was subjected to rape by Ratna.
It is not possible to believe that the prose cutrix and her parents would allow the real culprit to escape and falsely involve an innocent person for the com mission of the crime.
Except for the suggestion made in the cross examination of PW 8 Phulan Devi, Ratna 's mother and the statement under Section 3 13 of the Code of Criminal Procedure there is no other material on record which can give credence to the suggestion.
Lastly it was argued by reference to A.W. Khan vs State, A.I.R. 1962 Calcutta 641; Gorakh Daji Ghadge vs State of Maharashtra, and Padam Bahadur Darjee vs State of Sikkim, that since the girl was of tender age the possibility of her wrongly involving the appellant cannot be ruled out and this possibility is strengthened by prior enmity, absence of spermatozoa and infirm medical opinion.
We have already examined the argument of enmity as well as the so called infirmity in medical evidence.
Mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case.
We have carefully gone through these decisions and we think they turn on the facts of each case.
In view of the above, we see no merit in this appeal and dismiss the same.
N.P.V. Appeal dismissed. | It was alleged that the appellant, a youth of 18 years, forcibly lifted P.W. 1, a girl of tender age of 11, 12 years, took her to a shallow place, and committed rape on her, on account of which she began to bleed profusely; that on hearing the call of P.W. 7 the appellant ran away.
A report was lodged with the police next morning.
The girl was examined by a lady doctor, who issued a medical certificate.
The leaves collected from the place of occurrence, the slides, the swabs and the salwar were for warded to the Chemical Analyser and Serologist for examina tion and report.
The appellant was prosecuted for committing rape on P.W. 1.
The trial court convicted him under section 376 I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs.2,000 in default to suffer rigorous imprisonment for a further period of two years.
On appeal, the High Court, while confirming the convic tion reduced the substantive sentence from imprisonment for life to rigorous imprisonment for seven years but retained the punishment in default thereof.
In the appeal before this Court, it was contended on behalf of the appellant that the carbon copy of the medical certificate given by the lady 124 doctor, who examined P.W. 1 was inadmissible in evidence, that having regard to the girl 's age and the fact that her vagina admitted one finger with difficulty, it was not possible to believe that there was penetration, that there was delay in filing the First Information Report, that since the girl was of a tender age the possibility of her wrongly involving the appellant could not be ruled out and that this possibility was strengthened by prior enmity, absence of spermatozoa, and infirm medical opinion.
Dismissing the appeal, HELD: 1.
Section 32 of the Evidence Act provides that when a statement written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence.
[127F] In the instant case, the lady doctor, who examined P.W. 1 and issued the medical certificate was not available for giving evidence as she had proceeded on long leave.
In her absence, the trial Judge felt that it would not be possible to secure her presence without undue delay and therefore permitted the prosecution to prove the certificate through P.W. 2, who was conversant with her hand writing and signa ture.
Besides, since the carbon copy was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to section 62 of the Evidence Act.
Therefore, the medical certificate was clearly admissible in evidence.
[127D G] 2.
In the absence of penetration, there would not be absence of hymen with the edges torn and profuse bleeding from the vagina staining the salwar.
Merely because the Doctor found that the vagina admitted one finger with diffi culty, it cannot be inferred that there was no penetration as the muscles must have contracted by then.
The appellant, a robust man must have penetrated the vagina for otherwise there would not have been so much of bleeding.
[128B C] 3.
Mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case.
The report of the Chemical Analyser and Serologist supports the version of the prosecution witnesses that there was profuse bleeding from the vagina.
[129F; 128F] 4.
Immediately after the incident was narrated to the mother and other ladies, no decision could be taken because of the absence of the 125 father.
On his arrival, he informed the Sarpanch, who ad vised him to report it to the Police next day in the morn ing, since it was too late to travel to the Police Station at that hour and accordingly the F.I.R. was lodged on the next day.
Therefore, there is no delay in filing the F.I.R. [128G H] 5.
It is not possible to believe that the prosecutrix and her parents would allow the real culprit to escape and falsely involve an innocent person for the commission of the Crime.
Except for the suggestion made in the cross examina tion of P.W. 8 and the statement under section 313 of the Code of Criminal Procedure there is no material on record to give credence to the suggestion that the son of P.W. 8 was inti mate with the prosecutrix and he had raped the girl.
[129C] 6.
There is strong, reliable and dependable evidence of the prosecution witnesses which clearly proves that the prosecutrix was raped by the appellant.
In such circum stances, there can be no merit in the appeal.
[127G] |
Civil Appeal No. 824 of 1968.
Appeal by Special Leave from the Judgment and order dated the 23 8 1967 of the Allahabad High Court in Civil Misc.
(Review) application No. 32 of 1966 (in S.A. 4357/65).
J. P. Goyal for the Appellant.
V. section Desai and V. N. Ganpule for Respondent No. 1.
The Judgment of the Court was delivered by SARKARIA, J.
The following pedigree table illustrates the relationship of the parties: Hira Lal=Smt.
Naraini Devi (plaintiff).
(died in 1925).
Kapoor Chand Nemi Chand Chandra Bhan (died in 1954) (Judgment debtor) (died in 1930) =Smt.
Ramo Devi, (extinct) (Respondent 1) Decree holder.
5 L390 SCI/76 56 Smt.
Ramo Devi, widow of Kapur Chand (shown in the above pedigree table) obtained a money decree against her husband 's brother Nemi Chand.
In execution of her decree she got attached one half share in the double storeyed House No. 4416, situated at Agra representing it to be of the judgment debtor.
Naraini Devi, widow of Hira Lal, filed an objection petition under 0.21, r. 58, Code of Civil Procedure against that attachment claiming the house to be her property.
That objection was dismissed by the executing court on the 16th July, 1962.
Thereafter, she filed a suit under 0.21, r. 63, Code 11 of Civil Procedure to establish her claim.
The suit was decreed by the trial court.
On appeal, the District Judge reversed the judgment t and dismissed the suit.
Naraini Devi 's second appeal was summarily dismissed by the High Court.
She filed a review petition which was rejected by the High Court on August 23, 1967.
Hence, this appeal by special leave.
i It is common ground between the parties that under a registered J award dated January 4, 1946, the plaintiff Smt.
Naraini Devi was given a life interest in the house in dispute.
The appellant 's contention is that her limited interest in the house was enlarged into that of a full owner by the operation of sub section
(1) of section 14 of the Hindu Succession Act.
As against this, the respondents maintain that her case falls under sub section
(2) of section 14.
The question thus turns on a construction of the award exhibit 2.
We have examined an English rendering of this document filed by the appellant, the correctness of which is not disputed` by the respondent.
This award states in clear, unmistakable terms that she, Naraini Devi would be entitled to the rent of this house in lieu of maintenance for her life time, and after her death, her sons, Kapoor Chand and Nemi Chand will be owners of half share each of this house.
This award further partitions this house between Kapoor Chand and Nemi Chand and allots specific portions thereof to the two brothers.
A part of this house was in the occupation of a tenant at Rs. 32/ per month.
Naraini Devi was given a right to get that rent.
A part of it was in the personal occupation of Kapoor Chand.
The award protects and assures his right of remaining in possession of the same.
A reading of this document as a whole, leaves little doubt that the only interest, in this house created in favour of the widow was that she would be entitled to its rent and no more for her life time.
Thus the award confers on her only a restricted estate in the house within the meaning of sub section
(2) of section 14 which says: "Nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restrict ed estate in such property." Mr. Goyal however, submits that her case would fall within this Court 's ruling in Badri Prasad vs Smt.
Kanan Devi(1) according to (1) ; 57 which, if the widow has a pre existing right in the property, then the A case will fall under sub section
(1), and sub section (2) which is in the nature of a proviso to sub section (1) of section 14 will not be attracted.
The rule in Badri Prasad 's case (supra) is not applicable here.
Ill that case the widow had acquired a share in the property by virtue of the Hindu Women 's Right to Property Act, 1937, on the death of her husband, which took place after the coming into operation of that Act.
In the present case, Smt.
Naraini Devi 's husband died in 1925.
In the presence of her sons, the widow did not get any share or interest in the house left by her husband under the Hindu Law as then applicable.
In short, she had no pre existing right or interest in the house in question.
It was the award dated January 4, 1946, that created a restricted estate for her in the house in question.
Her case thus falls; squarely within the ambit of sub section
(2) of section 14 of the Hindu Succession Act.
Her interest therefore, came to an end on her death which took place during the pendency of these proceedings.
For reasons aforesaid the appeal fails and is dismissed with no order as to costs. | 'N ' a widow of 'H ', who, under the Hindu law then applicable and in the presence of her three sons did not get any share or interest in the house left by her late husband and therefore got a life interest by virtue of a registered award filed 3 suit under order 21 Rule 63 C.P.C. to establish her claim to the property that had been attached in execution of the decree against her second son obtained by her eldest daughter in law. 'N 's suit was decreed by the trial Court.
The first appellate court reversed that decree.
The second appeal and he review in the High Court failed.
On appeal by special leave, rejecting the contention that "the appellants limited interest was enlarged into that of a full owner by the operation of sub sec.
(I) of Section 14 of the Hindu Succession Act, the Court ^ HELD: (I) A reading of the award as a whole, leaves little doubt, that the only interest in the house created in favour of the widow was that she would be entitled to its rent, and no more for her life time.
[56 F] (2) In the present case, the appellant did not get any share or interest in the house left by her husband under the Hindu Law as then applicable.
She had no pre existing right or interest in the property.
[57 B] (3) The award created a restricted estate for her in the house, and [57 B] (4) The ease fell squarely within the ambit of sub section (2) of section 14 of the Hindu Succession Act and her interest came to an end on her death.
[57 C] Badri Prasad vs Smt.
Kanan Devi ; , not applicable. |
No. XIII of 1950.
Application under article 32 (1) of the Constitution of India for a writ of habeas corpus against the detention of the appellant in the Madras jail in pursuance of an order of detention made under the .
The material facts of the case and arguments of counsel are set out in detail in the judgments.
The relevant provisions of the , are printed below.
Short title, extent and duration.
This Act may be called the .
(2) It extends to the whole of India . . (3) It shall cease to have effect on the 1st day of April, 1951, as respects things done or omitted to be done before that date.
2. Definitions.
In this Act, unless the context other wise requires, (a) "State Government" means, in relation to a Part C State, the Chief Commissioner of the State; and (b) "detention order" means an order made under Section 3. 3.
Power to make orders detaining certain persons. (1) The Central Government or the State Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India foreign power, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services to the community, or (b) if satisfied with respect to any person who is a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India it is necessary so to do, make an order directing that such person be detained.
(2) Any District Magistrate or Sub Divisional Magistrate, or Presidency town, the Commissioner of Police, may, if satisfied provided in sub clauses (ii) and (iii) of clause (a) of sub section (1), exercise the power conferred by the said sub section.
(3) When any order is made under this section by a Dis trict Magistrate, Sub Divisional Magistrate or Commissioner of Police, he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessi ty for the order.
Grounds of order of detention to be disclosed to persons affected by the order. (1) When a person is de tained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order his been made, and shall afford him the earliest opportunity of making a representa tion against the order, in a case where such order has been made by the Central Government, to that Government, and in a case where it has been made by a State Government or an officer subordinate thereto, to the State Government.
94 11.
Confirmation of detention order.
In any case where the Advisory Board has reported that* there is in Rs opinion suffcient cause for the detention of the person concerned, the Central Government or the State Government.
as the case may be, may confirm the detention order and continue the detention of the person concerned for ' such period as it thinks fit.
Duration of detention in certain cases. (1) Any person detained in any of the following classes of cases or under 'my of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained wish a view to preventing him from acting in any manner prejudicial to (a) the defence of India, relations of India with foreign powers or the security of India; or (b) the security of a State or the maintenance of public order.
* * * 14.
Disclosure of grounds of detention, etc. (1) No court shall, except for the purpose of a prosecution for an offence punishable under sub section (9,), allow any state ment to be made, or any evidence to be given.
before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by 'him against such order; and notwithstanding anything contained in any other law, no court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that par of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section (1): Provided that nothing in this sub section shall apply to a disclosure made ' to his legal adviser by a person who is the subject of a detention order.
M. K. Nambiar (section K. Aiyar and V.G. Rao, with him) for the petitioner.
K. Rajah Aiyar, Advocate General of Madras (C. R. Pattabi Raman and R. Ganapathi, with him) lot the State of Madras.
M.C. Setalvad, Attorney General for India (Jindralal, with him) for the Union of India.
95 1950.
May 19.
The following Judgments were delivered.
KANIA C. J This is a petition by the applicant under article 32 (1) of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail.
In the petition he has given various dates showing how he has been under detention since December, 1947.
Under the ordi nary Criminal Law he was sentenced to terms of imprisonment but those convictions were set aside.
While he was tires under detention under one of the orders of the Madras State Government, on the 1st of March, 1950, he was served with an order made under section 3 (1) of the , IV of 1950.
He challenges the legality of the order as it is contended that Act IV of 1950 contravenes the provisions of articles 13, 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Con stitution.
He has also challenged the validity of the order on the ground that it is issued mala fide.
The burden of proving that allegation is on the applicant.
Because of the penal provisions of section 14 of the impugned Act the applicant has not disclosed the grounds, supplied to him, for his detention and the question of mala fides of the order therefore cannot be gone into under this petition.
The question of the validity of Act IV of 1950 was argued before us at great length.
This is the first case in which the different articles of the Constitution of India contained in the Chapter on Fundamental Rights has come for discussion before us.
The Court is indebted to the learned counsel for the applicant and the Attorney General for their assistance in interpreting the true meaning of the relevant clauses of the Constitution.
In order to appreciate the rival contentions it is useful first to bear in mind the general scheme of the Constitution.
Under article 53 of the Constitution the executive power of the Union is vested in the President and is to be exercised by him in accordance with the 96 Constitution either directly or through officers subordinate to him.
The legislative powers of the Union are divided between the Parliament and Legislatures of the States.
The ambit and limitations on their respective powers are found in article 246 read with article 245, Schedule VII, Lists 1,2 and 3 of the Constitution.
For the Union of India the Supreme Court is established and its powers and jurisdiction are set out in articles 124 to 147.
This follows the pat tern of the Government of India Act, 1935, which was the previous Constitution of the Government of India.
Unlike the American Constitution, there is no article vesting the judicial power of the Union of India in the Supreme Court.
The material points substantially altering the edifice are first in the Preamble which declares india a Sovereign Democratic Republic to secure to all its citizens justice, liberty and equality and to promote among them all, frater nity.
Part III of the Constitution is an important innova tion.
It is headed "Fundamental Rights.
" In that Part the word "State" includes both the Government of the Union and the Government of the States.
By article 13 it is expressly provided that all laws in force in the territory of India, immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of this Part, to the extent of such inconsistency, are void.
There fore, all laws in operation in India on the day the Consti tution came into force, unless otherwise saved, to the extent they are inconsistent with this Chapter on Fundamen tal Rights, become automatically void.
Under article 13 (2) provision is made for legislation after the Constitution comes into operation.
It is there provided that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contraven tion of this clause shall to the extent of the contraven tion, be void.
Therefore, as regards future legislation also the Fundamental Rights in Part III have to be respected and, unless otherwise saved by the provisions of the Consti tution, they will be void to the extent they contravene the provisions of Part III.
Under article 245 (1) the legisla tive powers conferred under 97 article 246 are also made "subject to the provisions of this Constitution," which of course includes Part III dealing with the Fundamental Rights.
The term law in article 13, is expressed to be wide enough to include Acts, Ordinances, Orders, Bye laws, Rules, Regulations and even custom or usage having, in the territory of India, the force of law.
The rest of this Part is divided in seven divisions.
"Right to Equality" is found in articles 14 18, "Eight to Freedom" in articles 19 22, "Right against Exploitation" in articles 23 and 24, "Right to Freedom of Religion" in articles 25 28, "Cultural and Educational Rights" in articles 29 and 30, "Right to Property" in article 31 and "Right to Constitu tional Remedies" in articles 32 35.
In this case we are directly concerned only with the articles under the caption "Right to Freedom" (19 22) and article 32 which gives a remedy to enforce, the rights conferred by this Part.
The rest of the articles may have to be referred to only to assist in the interpretation of the above mentioned arti cles.
It is obvious that by the insertion of this Part the powers of the Legislature and the Executive, both of the Union and the States, are further curtailed and the right to enforce the Fundamental Rights found in Part III by a direct application to the Supreme Court is removed from the legislative control.
The wording of article 32 shows that the Supreme Court can be moved to grant a suitable relief, mentioned in article 32 (2), only in respect of the Funda mental Rights mentioned in Part III of the Constitution.
The petitioner is detained under a preventive detention order, made under Act IV of 1950, which has been passed by the Parliament of India.
In the Seventh Schedule of the Constitution, List I contains entries specifying items in respect of which the Parliament has exclusive legislative powers.
Entry 9 is in these terms: "preventive detention for reasons connected with Defence, Foreign Affairs or the Security of India; persons subjected to such detention." List III of that Schedule enumerates topics on which both the Union and the States have concurrent legislative 98 powers.
Entry 3 of that List is in these terms: "Preventive detention for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community; persons subjected to such detention.
" It is not disputed that Act IV of 1950 is covered by these two Entries in List I and List III of the Seventh Schedule.
The contention of the peti tioner is that the impugned legislation abridges or in fringes the rights given by articles 19 21 and is also not in accordance with the permissive legislation on preventive detention allowed under articles 22 (4) and (7) and in particular is an infringement of the provisions of article 22 (5).
It is therefore necessary to consider in detail each of these articles and the arguments advanced in respect thereof.
Article 19 is for the protection of certain rights of freedom to citizens.
It runs as follows : "19.
(1) All citizens shall have the right (a) to free dom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property; and (g) to practise any profession, or to carry on any occupation, trade or business. "(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relat ing to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposts, or prevent the State from making any law imposing, in the interests of public order 99 reasonable restrictions on the exercise of the right con ferred by the said sub clause.
(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause.
(5) Nothing in sub clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restric tions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any pro fession or carrying on any occupation, trade or business.
" Clause (2) specifies the limits up to which the abridge ment of the right contained in 19 (1) (a) may be permitted.
it is an exception.
Similarly clause (3) sets out the limit of abridgement of the right in 19 (1) (b) and clause (4) specifies such limits in respect of the right in 19 (1) (c).
Clause (5) is in respect of the rights mentioned in 19 (1) (d), (e) and (f) and clause (6) is in respect of the rights contained in 19 (1) (g).
It cannot be disputed that the articles collected under the caption "Right to Freedom" have to be considered together to appreciate the extent of the Fundamental Rights.
In the first place it is necessary to notice that 100 there is a distinction between rights given to citizens and persons.
This is clear on a perusal of the provisions of article 19 on the one hand and articles 20, 21 and 22 on the other.
In order to determine whether a right is abridged or infringed it is first necessary to determine the extent of the right given by the articles and the limitations pre scribed in the articles themselves permitting its curtail ment.
The inclusion of article 13 (1) and (2) in the Con stitution appears to be a matter of abundant caution.
Even in their absence, if any of the fundamental rights was infiringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits, invalid.
The existence of article 13 (1) and (2) in the Constitution therefore is not material for the decision of the question what fundamental right is given and to what extent it is permitted to be abridged by the Constitution itself.
As the preventive detention order results in the deten tion of the applicant in a cell it was contended on his behalf that the rights specified in article 19 (1) (a), (b), (c), (d), (e) and (g) have been infringed.
It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub clauses (b), (c), (d), (e) and (g).
Although this argu ment is advanced in a case which deals with preventive detention, if correct, it should be applicable in the case of punitive detention also to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code.
So considered, the argument must clearly be rejected.
In spite of the saving clauses (2)to(6) permitting abridge ment of the rights connected with each of them, punitive detention under several sections of the Penal Code, e.g., for theft, cheating, forgery and even ordinary assault, will be illegal. 'Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided.
In my opinion, such result is clearly not the outcome of the Constitution.
The article has to be read without any pre conceived notions.
So read, it clearly means 101 that the legislation to be examined must be directly in respect of one of the rights mentioned in the subclauses.
If there is a legislation directly attempting to control a citizen 's freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise.
If, however, the legisla tion is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these subclauses is abridged, the question of the application of article 19 does not arise.
The true approach is only to consider the directness of the legisla tion and not what will be the result of the detention other wise valid, on the mode of the detenue 's life.
On that short ground, in my opinion, this argument about the in fringement of the rights mentioned in article 19 (1) gener ally must fail.
Any other construction put on the article, it seems to me.
will be unreasonable.
It was next urged that while this interpretation may meet the contention in respect of rights under article 19 (1) (a), (b), (c), (e) and (g), the right given by article 19 (1) (d) is left untouched.
That sub clause expressly gives the right "to move freely throughout the territory of India.
" It was argued that by the confinement of the peti tioner under the preventive detention order his right to move freely throughout the territory of India is directly abridged and therefore the State must show that the im pugned legislation imposes only reasonable restrictions on the exercise of that right in the interests of the general public or for the protection of the interests of any Sched uled Tribe, under article 19 (5).
The Court is thus en joined to inquire whether the restrictions imposed on the detained person are reasonable in the interests of the general public.
Article 14 of the Constitution gives the right to equality in these terms: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
" 102 It was argued that the words "within the territory of India" are unnecessary in that article because the Parlia ment is supreme to make laws operative only within the territory of India.
Without those words also the article will bear the same meaning.
Similarly, it was urged that the words "territory of India" in article 19 (1) (d) may be treated as superfluous, and preventive detention would thus be an abridgement of the right to move freely.
In my opin ion, this rule of construction itself is faulty.
Because certain words may be considered superfluous (assuming them to be.
so in article 14 for the present discussion) it is quite improper to assume that they are superfluous wherever found in the rest of the Constitution.
On the contrary, in my opinion, reading sub clause (d) as a whole the words "territory of India" are very important.
What is sought to be protected by that sub clause is the right to freedom of movement, i.e., without restriction, throughout the terri tory of India.
Read with their natural grammatical. mean ing the sub clause only means that if restrictions are sought to be put upon movement of a citizen from State to State or even within a State such restrictions will have to be tested by the permissive limits prescribed in clause (5) of that Article.
Sub clause (d) has nothing to do with detention, preventive or punitive.
The Constitution men tions a right to freedom of movement throughout the territo ry of India, Every word of that clause must be given its true and legitimate meaning and in the construction of a Statute, particularly a Constitution, it is improper.
to omit any word which has a reasonable and proper place in it or to refrain from giving effect to its meaning.
This position is made quite clear when clause (5) is read along with this sub clause.
It permits the imposition of reasona ble.
restrictions on the exercise of such right either in the interest of general public or the protection of the interest of any Scheduled Tribe.
It is difficult to conceive of a reasonable restriction necessary in the interests of the general public for confining a person in a cell.
Such restriction may be appropriate to prevent a person from going from one Province to another or 103 one area to another, having regard to local conditions prevailing in particular areas.
The point however is made abundantly clear by the alternative, viz., for the protec tion of the interests of any Scheduled Tribe.
What protec tion of the interests of a Scheduled Tribe requires the confinement of a man in a cell ? On the other hand, pre venting the movement of a person from one part of the terri tory of India to another and the question of reasonable restriction imposed to protect the interests of a Scheduled Tribe is clearly intelligible and often noticed in the course of the administration of the country.
Scheduled Tribes have certain rights, privileges and also disabili ties.
They have their own civilization, customs and mode of life and prevention of contact with persons or groups with a particular Scheduled Tribe may be considered undesirable during a certain time or in certain conditions.
The legis lative history of India shows that Scheduled Tribes have been given a separate place on these grounds.
Reading article 19 as a whole, therefore, it seems to me that it has no application to a legislation dealing with preventive or punitive detention as its direct object.
I may point out that the acceptance of the petitioner 's argument on the interpretation of this clause will result in the Court being called upon to decide upon the reasonableness of several provisions of the Indian Penal Code and several other penal legislations as abridging this right.
Even under clause (5), the Court is permitted to apply the test of reasonable ness of the restrictions or limits not generally, but only to the extent they are either in the interests of the gener al public, e.g., in case of an epidemic, riot, etc., or for the protection of the interests of any Scheduled Tribe.
In my opinion, this is not the intention of the Constitution.
Therefore the contention urged in respect of article 19 fails.
It was argued that article 19 and article 21 should be read together as implementing each other.
Article 19 gave substantive rights to citizens while article 21 prescribed that no person can be deprived of his life and personal liberty except by procedure 104 established by law.
Even so, on a true construction of article 19, it seems to me that both preventive and punitive detention are outside the scope of article 19.
In order to appreciate the true scope of article 19 it is useful to read it by itself and then to consider how far the other articles in Part HI affect or control its meaning.
It is the first article under the caption "Right to Freedom .
" It gives the rights mentioned in 19 (1) (a) to (g) to all citizens of India.
These rights read by them selves and apart from the controls found in clauses (2) to (6) of the same article, specify the different general rights which a free citizen in a democratic country ordi narily has.
Having specified those rights, each of them is considered separately from the point of view of a similar right in the other citizens, and also after taking into consideration the principle that individual liberty must give way, to the extent it is necessary, when the good or safety of the people generally is concerned.
Thus the right to freedom of speech and expression is given by 19 (1) (a).
But clause (2) provides that such right shall not prevent the operation of a law which relates to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.
Clause (2) thus only emphasizes that while the individual citizen has a free right of speech or expression, he cannot be permit ted to use the same to the detriment of a similar right in another citizen or to the detriment of the State.
Thus, all laws of libel, slander, contempt of Court or laws in respect of matters which offend against decency or morality are reaffirmed to be operative in spite of this individual right of the citizen to freedom of speech and expression.
Simi larly; that right is also subject to laws which prevent undermining the security of the State or against activities which tend to overthrow the State.
A similar analysis of clauses f3) and (4) shows similar restrictions imposed on similar grounds.
In the same way clause (5) also permits reasonable restrictions in the exercise of the right to freedom of movement throughout the territory of India, the right to reside and settle in any part of the 105 territory of India or the right to acquire, hold and dispose of property, being imposed by law provided such reasonable restrictions on the exercise of such right are in the inter est of the general ' public.
The Constitution further pro vides by the same clause that similar reasonable restric tions could be put on the exercise of those rights for the protection of the interest of a Scheduled Tribe.
This is obviously to prevent an argument being advanced that while such restriction could be put in the interest of general public, the Constitution did not provide for the imposi tion of such restriction to protect the interests of a smaller group of people only.
Reading article 19 in that way as a whole the only concept appears to be that the specified rights of a free citizen arc thus controlled by what the framers of the Constitution thought were necessary restric tions in the interest of the rest of the citizens.
Reading article 19 in that way it appears to me that the concept of the right to move freely throughout the territo ry of India is an entirely different concept from the right to "personal liberty" contemplated by article 21.
"Person al liberty" covers many more rights in one sense and has a restricted meaning in another sense.
For instance, while the right to move or reside may be covered by the expression , 'personal liberty" the right to freedom of speech (men tioned in article 19 (1) (a)) or the right to acquire, hold or dispose of property (mentioned in 19 (1) (f)) cannot be considered a part of the personal liberty of a citizen.
They form part of the liberty of a citizen but the limita tion imposed by the word "personal"leads me to believe that those rights are not covered by the expression personal liberty.
So read there is no conflict between articles 19 and 21.
The contents and subject matters of articles 19 and 21 are thus not the same and they proceed to deal with the rights covered by their respective words from totally different angles.
As already mentioned in respect of each of the rights specified in sub clauses of article 19 (1) specific limitations in respect of each is provided, while the expression "personal 106 liberty" in article 21 is generally controlled by the gener al expression "procedure established by law.
" The Constitu tion, in article 19, and also in other articles in Part III, thus attempts to strike a balance between individ ual liberty and the general interest of the society.
The restraints provided by the Constitution on the legislative powers or the executive authority of the State thus operate as guarantees of life and personal liberty of the individu als.
Deprivation (total loss) of personal liberty, which inter alia includes the right to eat or sleep when one likes or to work or not to work as and when one pleases and sever al such rights sought to be protected by the expression "personal liberty" in article 21, is quite different from restriction (which is only a partial control) of the right to move freely (which is relatively a minor right of a citizen) as safeguarded by article 19 (1) (d).
Deprivation of personal liberty has not the same meaning as restriction of free movement in the territory of India.
This is made clear when the provisions of the Criminal Procedure Code in Chapter VIII relating to security of peace or maintenance of public order are read.
Therefore article 19 (5) cannot apply to a substantive law depriving a citizen of personal liberty.
I am unable to accept the contention that the word "deprivation" includes within its scope "restriction" when interpreting article 21.
Article 22 envisages the law of preventive detention.
So does article 9.46 read with Schedule Seven, List I, Entry 9, and List III, Entry 3.
Therefore, when the subject of preventive detention is specifically dealt with in the Chapter on Fundamental Rights I do not think it is proper to consider a legisla tion ' permitting preventive detention as in conflict with the rights mentioned in article 19 (1).
Article 19 (1) does not purport to cover all aspects of liberty or of personal liberty.
In that article only certain phases of liberty are dealt with. "Personal liberty" would primarily mean liberty of the physical body.
The rights given under article 19 (1) do not directly come under that description.
They are rights which accompany the freedom or liberty of the person.
By their very 107 nature they are freedoms of a person assumed to be in full possession of his personal liberty.
If article 19 is considered to be the only article safeguarding personal liberty several well recognised rights, as for instance, the right to eat or drink, the right to work, play, swim and numerous other rights and activities and even the right to life will not be deemed protected under the Constitution.
I do not think that is the intention.
It seems to me improper to read article 19 as dealing with the same subject as article 21.
Article 19 gives the rights specified therein only to the citizens of India while arti cle 21 is applicable to all persons.
The word citizen is expressly defined in the Constitution to indicate only a certain section of the inhabitants of India.
Moreover, the protection given by article 21 is very general.
It is of "law" whatever that expression is interpreted to mean.
The legislative restrictions on the law making powers of the legislature are not here prescribed in detail as in the case of the rights specified in article 19.
In my opinion there fore article should be read as a separate complete article.
Article 21 which is also in Part III under the caption "Right to Freedom" runs as follows : "No person shall be deprived of his life or personal liberty except according to procedure established by law.
" This article has been strongly relied upon by the peti tioner in support of his contention that the impugned Act is ultra vires the Parliament as it abridges the right given by this article to every person.
It was argued that under the Constitution of the United States of America the corre sponding provision is found in the 5th and 14th Amendments where the provision, inter alia, is "that no person shall be deprived of his life or liberty or property except by due process of law.
" It was contended for the petitioner that the Indian Constitution gives the same protection to every person in India, except that in the 'United States "due process of law" has been .construed by its Supreme Court to cover both 108 substantive and procedural law, while in India only the protection of procedural law is guaranteed.
It was contend ed that the omission of the word "due" made no difference to the interpretation of the words in article 21.
The word "established" ' was not equivalent to "prescribed".
It had a wider meaning.
The word "law" did not mean enacted law because that will be no 'legislative protection at all.
If so construed, any Act passed by the Parliament or the State Legislature, which was otherwise within its legislative power, can destroy or abridge this right.
On the same line of reasoning, it was argued that if that was the inten tion there was no necessity to put this as a fundamental right in Part III at all.
As to the meaning of the word "law" it was argued that it meant principles of natural justice.
It meant "jus", i.e., law in the abstract sense of the principles of natural justice, as mentioned in standard works of Jurisprudence, and not "lex", i.e., enact ed law.
Against the contention that such construction will leave the meaning vague, it was argued that four principles of natural justice recognised in all civilized countries were covered, in any event, by the word "law".
They are: (1) An objective test, i.e., a certain, definite and ascer tainable rule of human conduct for the violation of which one can be detained; (2) Notice of the grounds of such detention; (3) An impartial tribunal, administrative, judi cial or advisory, to decide whether the detention is justi fied; and (4) Orderly course of procedure, including an opportunity to be heard orally (not merely by making a written representation) with a right to lead evidence and call witnesses.
In my opinion, this line of approach is not proper and indeed is misleading.
As regards the American Constitution its general structure is noticed in these words in "The Government of the United States" by Munro (5th Edition) at page 53: "The architects of 1787 built only the basement.
Their descendants have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished.
Or, to change the metaphor, it has a fabric which, to use the words of 109 James Russell Lowell, is still being 'woven on the roaring loom of time '.
That is what the framers of the original Constitution intended it to be.
Never was it in their mind to work out a final scheme for the government of the country and stereotype it for all time.
They sought merely to pro vide a starting point.
" The same aspect is emphasized in Professor Willis 's book on Constitutional Law and Cooley 's Constitutional Limitations.
In contrast to the American Constitution, the Indian Constitution is a very detailed one.
The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legisla tures.
The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services.
It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or article 246, except to the extent one is legitimately and clearly limited by the other.
Four marked points of distinction between the clause in the American Constitution and article 21 of the Constitution of India may be noticed at this stage.
The first is that in U.S A. Constitution the word "liberty" is used simpliciter while in India it is restricted to personal liberty.
(2) In U.S.A. Constitution the same protection is given to proper ty, while in India the fundamental right in respect of property is contained in article 31.
(3) The word "due" is omitted altogether and the expression "due process of law" is not used deliberately.
(4) The word "established" is used and is limited to "Procedure" in Our article 21.
The whole argument of the petitioner is rounded on the meaning of the word "law" given to it by the Supreme Court of America.
It seems unnecessary to embark on a discussion of the powers and jurisdiction of the Supreme Court of the 'U.S.A. and how they came to enlarge or abridge the meaning of law in the expression "due process of law".
Without going into details, I think there is no justification to adopt the meaning of the word "law" as interpreted by the Supreme Court of U.S.A. in the expression "due 110 process of law" merely because the word "law" is used in article 21.
The discussion of the meaning of "due process of law" found in Willis on Constitutional Law and in Coo ley 's Constitutional Limitations shows the diverse meanings given to that expression at different times and under dif ferent circumstances by the Supreme Court of U.S.A., so much so that the conclusion reached by these authors is that the expression.
means reasonable law according to the view of the majority of the judges of the Supreme Court at a particular time holding office.
It also shows how the meaning of the expression was widened or abridged in certain decades.
Moreover, to control the meaning so given to that expression from time to time the doctrine of police powers was brought into play.
That doctrine, shortly put, is that legislation meant for the good of the people generally, and in which the individual has to surrender his freedom to a certain extent because it is for the benefit of the people at large, has not to be tested by the touchstone of the "due process of law" formula.
Our attention was drawn to the debates and report of the drafting committee of the Constituent Assembly in respect of the wording of this clause.
The report may be read not to control the meaning of the article, but may be seen in case of ambiguity.
In The Municipal Council of Sydney vs The Commonwealth(1), it was thought that individu al opinion of members of the Convention expressed in the debate cannot be referred to for the purpose of construing the Constitution.
The same opinion was expressed in United States vs Wong Kim Ark(2).
The result appears to be that while it is not proper to take into consideration the indi vidual opinions of Members of Parliament or Convention to construe the meaning of the particular clause, when a ques tion is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be ' permitted.
In the present case the debates were referred to to show that the expression "due process of law" was known to exist in the American Constitution (1) (2) (169) U.S 649 at 699.
111 and after a discussion was not adopted by the Constituent Assembly in our Constitution.
In Administrator General of Bengal vs Premlal Mullick(1), a reference to the proceedings of the Legislature which resulted in the passing of the Act was not considered legitimate aid in the construction of a particular section.
The same reasons were held as cogent for excluding a reference to such debates in construing an Indian Statute.
Resort may be had to these sources with great caution and only when latent ambiguities are to be resolved.
See Craies ' Statute Law (4th Edition) page 122, Maxwell on Interpretation of Statutes (9th Edition)pp.
28 29 and Crawford on Statutory Construction (1940 Edition) p. 379, article 214.
A perusal of the report of the drafting committee to which our attention was drawn shows clearly that the Constituent Assembly had before it the American article and the expression "due process of law" but they deliberately dropped the use of that expression from our Constitution.
No extrinsic aid is needed to interpret the words of article 21, which in my opinion, are not ambiguous.
Normally read, and without thinking of other Constitutions, the expression "procedure established by law" must mean procedure prescribed by the law of the State.
If the Indian Constitution wanted to preserve to every person the protection given by the due process clause of the Ameri can Constitution there was nothing to prevent the Assembly from adopting the phrase, or if they wanted to limit the same to procedure only, to adopt that expression with only the word "procedural" prefixed to "law.
" However, the correct question is what is the right given by article 21 ? The only right is that no person shall be deprived of his life or liberty except according to procedure established by law.
One may like that right to cover a larger area, but to give such a right is not the function of the Court; it is the function of the Constitution.
To read the word "law" as meaning rules of natural justice will land one in (1) (1895)L.R. 221.
A. 107.
15 15 112 difficulties because the rules of natural justice, as re gards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard.
This is particularly so when in omitting to adopt "due process of law" it was considered that the expression "procedure established by law" made the standard specific.
It can not be specific except by reading the expression as meaning procedure prescribed by the legislature.
The word "law" as used in this Part has different shades of meaning but in no other article it appears to bear the indefinite meaning of natural justice.
If so, there appears no reason why in this article it should receive this peculiar meaning.
Article 31 which is also in Part III and relates to the fundamental rights in respect of property runs as follows : "No person shall be deprived of his property save by authority of law.
" It is obvious that in that clause "law" must mean enact ed law.
The object of dealing with property under a differ ent article appears more to provide the exceptions found in article 31 (2) to (6), rather than to give the word "law" a different meaning than the one given in article 21.
The world "established" according to the Oxford Dictionary means "to fix, settle, institute or ordain by enactment or agree ment.
" The word "established" itself suggests an agency which fixes the limits.
According to the dictionary this agency can be either the legislature or an agreement between the parties.
There is therefore no justification to give the meaning of "jus" to "law" in article 21.
The phrase "procedure established by law" seems to be borrowed from article 31 of the Japanese Constitution.
But other articles of that Constitution which expressly pre serve other personal liberties in different clauses have to be read together to determine the meaning of "law" in the expression "procedure established by law.
" These articles of the Japanese Constitution have not been incorporated in the Constitution of India in the same language.
It is not shown that the word "law" means "jus" in the Japanese Constitution.
In the Japanese Constitution these 113 rights claimed under the rules of natural justice are not given by the interpretation of the words "procedure established by law" in their article 31.
The word "due" in the expression "due process of law" in the American Consti tution is interpreted to mean "just," according to the opinion of the Supreme Court of U.S.A.
That word imparts jurisdiction to the Courts to pronounce what is "due" from otherwise, according to law.
The deliberate omission of the word "due" from article 21 lends strength to the conten tion that the justiciable aspect of "law", i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution.
The omission of the word "due", the limitation imposed by the word "procedure" and the insertion of the word "established" thus brings out more clearly the idea of legislative prescription in the expres sion used in article 21.
By adopting the phrase "procedure established by law" the Constitution gave the legislature the final word to determine the law.
Our attention was drawn to The King vs The Military Governor of the Hair Park Camp ( '), where articles 6 and 70 of the Irish Constitution are discussed.
Under article 6 it is provided that the liberty of the person is inviolable and no person shall be deprived of such except "in accord ance with law" .
In article 70 it is provided that no one shall be tried "save in due course of law" and extraor dinary Courts were not permitted to be established except the Military Courts to try military offences.
The expres sion "in accordance with law" was interpreted to mean not rules of natural justice but as the law in force at the time.
The Irish Court gave the expression "due course of law" the meaning given to it according to the English law and not the American law.
It was observed by Lord Atkin in Eshugbayi Eleko vs Officer Administering the Government of Nigeria C), that in accordance with British Jurispru dence no member of the executive can interfere with the liberty or property of a British subject except when he can support the legality of his act before a Court of justice.
(1) [1924] 2 Irish Reports K.B. 104.
(2) [1931] A.C. (62 at 670.
114 In The King vs The Secretary of State for Home Affairs(1), Scrutton LJ.
observed: "A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction.
" It seems very arguable that in the whole set up of Part III of our Constitution these principles only remain guaranteed by article 21.
A detailed discussion of the true limits of article 21 will not be necessary if article 22 is considered a code to the extent there are provisions therein for preventive detention.
In this.
connection it may be noticed that the articles in Part III deal with different and separate rights.
Under the caption "Right to Freedom" articles 19 22 are grouped but each with a separate marginal note.
It is obvious that article 22 (1) and (2) prescribe limita tions on the right given by article 21.
If the procedure mentioned in those articles is followed the arrest and detention contemplated by article 22 (1) and (2), although they infringe the personal liberty of the individual, will be legal, because that becomes the established legal proce dure in respect of arrest and detention.
Article 22 is for protection against arrest and detention in certain cases, and runs as follows : "22.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2.) Every person who is arrested and detained in custo dy shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply(a) to any person who for the time being is an enemy alien; or (1) at 382.
115 (b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention: Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause 17); or (b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance .of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4); (b) the maximum period for which any person may ,in any class or classes of cases be detained under any law provid ing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4).
" The learned Attorney General contended that the subject of preventive detention does not fall under 116 article 21 at all and is covered wholly by article 22.
According to him, article 22 is a complete code.
I am unable to accept that contention.
It is obvious that in respect of arrest and detention article 22 (1) and (2) provide safeguards.
These safeguards are excluded in the case of preventive detention by article 22 (3), but safe guards in connection with such detention are provided by clauses (4) to (7) of the same article.
It is therefore clear that article 21 has to be read as supplemented by article 22.
Reading in that way the proper mode of construc tion will be that to the extent the procedure is prescribed by article 22 the same is to be observed; otherwise article 21 will apply.
But if certain procedural safeguards are expressly stated as not required, or specific rules on certain points of procedure are prescribed, it seems im proper to interpret these points as not covered by article 22 and left open for consideration under article 21.
To the extent the points are dealt with, and included or excluded,, article 22 is a complete code.
On the points of procedure which expressly or by necessary implication are not dealt with by article 22, the operation of article 21 will remain unaffected.
It is thus necessary first to look at article 22 (4) to (7) and next at the provisions 0 the impugned Act to determine if the Act or any of its provi sions are ultra vires.
It may be noticed that neither the American nor the Japanese Constitution contain provisions permitting preventive detention,.
much less laying down limitations on such right of detention, in normal timeS, i.e., without a declaration of emergency.
Preventive deten tion in normal times,.
i.e., without the existence of an emergency like war,. is recognised as a normal topic of legislation in List I. Entry 9, and List III, Entry 3, of the Seventh Schedule.
Even in the Chapter on Fundamental Rights article 22 envisages legislation in respect of pre ventive detention in normal times.
The provisions of article 22 (4) to (7) by their very wording leave unaffected the large powers of legislation on this point and emphasize particularly by article 22 (7) the power of the Parliament to deprive a person of a right to have his case considered by an advisory board.
Part III and.
117 article 22 in particular are the only restrictions on that power and but for those provisions the power to legislate on this subject would have been quite unrestricted.
Parliament could have made a law without any safeguard or any procedure for preventive detention.
Such an autocratic supremacy of the legislature is certainly cut down by article 21.
There fore, if the legislature prescribes a procedure by a validly enacted law and such procedure in the case of preventive detention does not come in conflict with the express provi sions of Part III or article 22 (4) to (7), the must be held valid notwithstanding that the Court may not fully approve of the procedure prescribed under such Act.
Article 22 (4) opens with a double negative.
Put in a positive form it will mean that a law which provides for preventive detention for a period longer than three months shall contain .a provision establishing an advisory board, (consisting of persons with the qualifications mentioned in sub clause (a)), and which has to report before the expira tion of three months if in its opinion there was sufficient cause for such detention.
This clause, if it stood by itself and without the remaining provisions of article 22, will apply both to the Parliament and the State Legislatures.
The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention, i.e., detention beyond the period of three months, still the detention is not to be permitted beyond the maximum period, if any, prescribed by Parliament under article 22 (7) (b).
Again the whole of this sub clause is made inoperative by article 22 (4) (b) in respect of an Act of preventive detention passed by Parlia ment under clauses (7) (a) .and (b).
Inasmuch as the im pugned Act is an Act of the Parliament purported to be so made, clause 22 (4) has no operation and may for the present discussion be kept aside.
Article 22 prescribes that when any person under a preventive detention law is detained, the authority making the order shall, as soon as may be, commu nicate to such person the grounds on which .
the order has been made and shall afford him the 118 earliest opportunity of making a representation against the order.
This clause is of general operation in respect of every detention order made under any law permitting deten tion.
Article 22 (6) permits the authority making the order to withhold disclosure of facts which such authority consid ers against the public interest to disclose.
It may be noticed that this clause only permits the non disclosure of facts, and reading clauses (5) and (6) together a distinc tion is drawn between facts and grounds of detention.
Article 22 (4) and (7) deal not with the period of detention only but with other requirements in the case of preventive detention also.
They provide for the establishment of an advisory board, and the necessity of furnishing grounds to the detenue and also to give him a right to make a represen tation.
Reading article 22 clauses (4) and (7) together it appears to be implied that preventive detention for less than three months, without an advisory board, is permitted under the Chapter on Fundamental Rights, provided such legislation is within the legislative competence of the Parliament or the State Legislature, as the case may be.
Article 22 (5) permits the detained person to make a representation.
The Constitution is silent as to the person to whom it has to be made, or how it has to be dealt with.
But that is the procedure laid down by the Constitution.
It does not therefore mean that if a law made by the Parliament in respect of preventive detention does not make provision on those two points it is invalid.
Silence on these points does not make the impugned Act in contravention of the Constitution because the first question is what are the rights given by the Constitution in the case of preventive detention.
The contention that the representation should be to an outside body has no support in law.
Even in the Liversidge case the representation had to be made to the Secretary of State and not to another body.
After such representation was made, another advisory board had to consider it, but it was not necessary to make the represen tation itself to a third party.
Article 22 (4) and (7) permit the non establishment of an advisory board expressly in a parliamentary legislation 119 providing for preventive detention beyond three months.
If so, how can it be urged that the nonestablishment of an advisory.
board is a fundamental right violated by the procedure prescribed in the Act passed by the Parliament? The important clause to be considered is article 22 (7).
Sub clause (a) is important for this case.
In the case of an Act of preventive detention passed by the Parliament this clause contained in the Chapter on Fundamental Rights, thus permits detention beyond a period of three months and ex cludes the necessity of consulting an advisory board, if the opening words of the sub clause are complied with.
Sub clause (b) is permissive.
It is not obligatory on the Parliament to prescribe any maximum period.
It was argued that this gives the Parliament a right to allow a person to be detained indefinitely.
If that construction is correct, it springs out of the words of sub clause (7) itself and the Court cannot help in the matter.
Subclause (c) permits the Parliament to lay down the procedure to be followed by the advisory board in an inquiry under sub clause (a) of clause (4).
I am unable to accept the contention that article 22 (4) (a) is the rule and article 22 (7) the exception.
I read them as two alternatives provided by the Constitution for making laws on preventive detention.
Bearing in mind the provisions of article 22 read with article 246 and Schedule VII, List I, Entry 9, and List III, Entry 3, it is thus clear that the Parliament is empowered to enact a law of preventive detention (a) for reasons connected with defence, (b) for reasons connected with foreign affairs, (c) for reasons connected with the security of India; and (under List III), (d) for reasons connected with the security of a State, (e) for reasons connected with the maintenance of public order, or (f) for reasons connect ed with the maintenance of supplies and services essential to the community.
Counsel for the petitioner has challenged the validity of several provisions of the Act.
In respect of the construction of a Constitution Lord Wright in James vs The Commonwealth of Australia(1), (1) (1936) A. 0. 578 at 614.
16 120 observed that "a Constitution must not be construed in any narrow and pedantic sense." Mr. Justice Higgins in Attorney General of New South Wales vs Brewery Employees ' Union (1), observed: "Although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be." In In re The Central Provinces and Berar Act XIV of 1938 (" '), Sir Maurice Gwyer C.J. after adopting these observations said: "especially is this true of a Federal Constitution with its nice balance of jurisdictions.
I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the lan guage of the enactment in the interest of any legal or con stitutional theory or even for the purpose of supplying omissions or of correcting supposed errors.
" There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words.
Where the funda mental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legisla ture we cannot declare a limitation under the notion of hav ing discovered something in the spirit of the Constitution which is not even mentioned in the instrument.
It is diffi cult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority.
It is also stated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a Statute on that ground alone.
But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and (1) at 611 12.
(2) at 37.
121 paramount law settled by the deliberate wisdom of the nation that one can find a safe and.
solid ground for the authority of Courts of justice to declare void ,any legislative enact ment.
Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too 'indefinite either for its own security.
or the protection of private rights.
It was first argued that by section 3 the Parliament had delegated its legislative power to the executive officer in detaining a person on his being satisfied of its necessi ty.
It was urged that the satisfaction must be of the legislative body.
This contention of delegation of the legislative power in such cases has been considered and rejected in numerous cases by our Federal Court and by the English Courts.
It is unnecessary to refer to all those cases.
A reading of the various speeches in Liversidge vs Anderson clearly negatives this contention.
Section 3 of the impugned Act is no delegation of legislative power to make laws.
It only confers discretion on the officer to enforce the law made by the legislature.
Section 3 is also impugned on the ground that it does not provide an objective standard which the Court can utilize for determining whether the requirements of law have been complied with.
It is clear that no such objective standard of conduct can be pre scribed, except as laying down conduct tending to achieve or to avoid a particular object.
For preventive detention action must be taken on good suspicion.
It is a subjective test based on the cumulative effect of different actions, perhaps spread over a considerable period.
As observed by Lord Finlay in The King vs Halliday (2), a Court is the least appropriate tribunal to investigate the question whether circumstances of suspicion exist warranting the restraint on a person.
The contention is urged in respect of preventive detention and not punitive detention.
Before a person can be held liable for an offence it is obvious that he should be in a position to know what he may do or not do, and an omission to do or not to do will result in the State (1) (2) ; at 269.
122 considering him guilty according to the penal enactment.
When it comes however to preventive detention, the very purpose is to prevent the individual not merely from acting in a particular way but, as the sub heads summarized above show, from achieving a particular object.
It will not be humanly possible to tabulate exhaustively all actions which may lead to a particular object.
It has therefore been considered that a punitive detention Act which sufficiently prescribes the objects which the legislature considers have not to be worked up to is.
a sufficient standard to prevent the legislation being vague.
In my opinion, therefore, the argument of the petitioner against section 3 of the impugned Act fails.
It was also contended that section 3 prescribes no limit of time for detention and therefore the legislation is ultra vires.
The answer is found in article 22 (7) (b).
A perusal of the provisions of the impugned Act moreover shows that in section 12 provision is made for detention for a period longer than three months but not exceeding one year in respect of clauses (a) and (b) of that section.
It appears therefore that in respect of the rest of the clauses mentioned in section 3 (1)(a)the detention is not contem plated to be for a period longer than three months, and in such cases a reference to the advisory board under section 9 is contemplated.
Section 7 of the Act which is next challenged, runs on the same lines as article 22 (5) and.
(6) and in my opinion infringes no provision of the Constitution.
It was argued that this gave only the right of making a representation without being heard 'orally or without affording an opportu nity to lead evidence and therefore was not an orderly course of procedure, as required by the rules of natural justice.
The Parliament by the Act has expressly given a right to the person detained under a preventive detention order to receive the grounds for detention and also has given him a right to make a representation.
The Act has thus complied with the requirements of article 22 (s).
That clause, which prescribes what procedure has to be followed as a matter of fundamental right, is silent about the person detained having a right to be heard 123 orally or by a lawyer.
The Constituent Assembly had before them the provisions of clause (1) of the same article.
The Assembly having dealt with the requirements of receiving grounds and giving an opportunity to make a representation has deliberately refrained from providing a right to be heard orally.
If so, I do not read the clause as guarantee ing such right under article 22 (5).
An "orderly course of procedure" is not limited to procedure which has been sanc tioned by settled usage.
New forms of procedure are as much, held even by the Supreme Court of America, due process of law as old forms, provided they give a person a fair opportunity to present his case.
It was contended that the right to make a representation in article 22 (5) must carry with it a right to be heard by an independent tribunal; otherwise the making of a representation has no substance because it is not an effective remedy.
I am unable to read clause (5) of .article 22 as giving a fundamental right to be heard by an independent tribunal.
The Constitution deliberately stops at giving the right of representation.
This is natural because under article 22 (7), in terms, the Constitution permits the making of a law by Parliament in which a reference to an advisory board may be omitted.
To consider the right to make a representation as necessarily including a right to be heard by an independent judicial, administrative or advisory tribunal will thus be directly in conflict with the express words of article 22 (7).
Even according to the Supreme Court of U.S.A. a right to a judicial trial is not absolute.
In the United States vs Ju Toy (1), a question arose about the exclusion from entry into the States, of a Chinese who claimed to be a citizen of the United States.
At page 263 the majority judgment con tains the following passage : " If for the purpose of argument, we assume that the Fifth Amendment applies to him, and that to deny entrance to a citizen is to deprive him ,of liberty, we nevertheless are of opinion that with regard to him due process of law does not require judicial trial: That is the result of the cases which we have cited, and the almost necessary result of the (1) (198) U.S. 253 at 263.
124 power of the Congress to pass exclusion laws.
That the decision may be entrusted to an executive officer, and that his decision is due process of law, was affirmed and ex plained in several cases.
It is unnecessary to repeat the often quoted remarks of Mr. Justice Curtis, speaking for the whole Court, in Den Exden Murray vs Hoboken Land and Im provement Company (1), to.
show that the requirement of a judicial trial does not prevail in every case.
" Again, I am not prepared to accept the ' contention that a right to be heard orally is an essential right of proce dure even according to the rules of natural justice.
The right to make a defence may be admitted, but there is nothing to support the contention that an oral interview is compulsory.
In the Local Government Board vs Arlidge (2), the respondent applied to the Board constituted under the Housing Act to state a special case for the opinion of the High Court, contending that the order was invalid because (1) the report of the Inspector had been treated as a confi dential document and had not been disclosed to the respond ent, and (2) because the Board had declined to give the respondent an opportunity of being heard orally by the person or persons by whom the appeal was finally decided.
The Board rejected the application.
Both the points were urged before the House of Lords on appeal.
Viscount Haldane L.C. in his speech rejected the contention about the necessity of an oral hearing by observing "But it does not follow that the procedure of every tribunal must be.the same.
In the case of a Court of law tradition in this country has prescribed certain principles to which, in the main, the procedure must conform.
But what that procedure is to be in detail must depend on the nature of a tribunal.
" In rejecting the contention about the disclosure of the report of the Inspector, the Lord Chancellor stated: "It might or might not have been useful to disclose this report, but I do not think that the Board was bound to do so.
any more than it would have been bound to disclose all the minutes made on the papers in the office before (1) 18 HO.W. 272 at 280.
(2) 125 a decision was come to .
What appears to me to have been the fallacy of the judgment of the majority in the Court of appeal is that it begs the question at the begin ning by setting up the test of the procedure of a Court of justice instead of the other standard which was laid down for such cases in Board of Education vs Rice (1).
I do not think the Board was bound to hear the respondent orally provided it gave him the opportunities he actually had.
" In spite of the fact that in England the Parliament is supreme I am unable to accept the view that the Parliament in making laws, legislates against the well recognised principles of natural justice accepted as such in all civilized countries.
The same view is accepted in the United States in Federal Communications Commission vs WJR The Goodwill Station (2).
A right to lead evidence against facts suspected to exist is also not essential in the case of preventive deten tion.
Article 22 (6) permits the non disclosure of facts.
That is one of the clauses of the Constitution dealing with fundamental rights.
If even the non disclosure of facts is permitted, I fail to see how there can exist a right to contest facts by evidence and the noninclusion of such procedural right could make this Act invalid.
Section 10 (3) was challenged on the ground that it excludes the right to appear in person or by any lawyer before the advisory board and it was argued that this was an infringement of a fundamental right.
It must be noticed that article 22 (1) which gives a detained person a right to consult or be defended by his own legal practitioner is specifically excluded by article 22 (3) in the case of legislation dealing with preventive detention.
Moreover,.
the Parliament is expressly given power under article 22 (7) (c) to lay down the procedure in an inquiry by an advisory board.
This is also a part of article 22 itself.
If so, how can the omission to give a right to audience be considered against the constitutional rights ? It was pointed out that section 10 (3) prevents even the disclosure of a (1) (2) ; at 276.
126 portion of the report and opinion of the advisory board.
It was argued that if so how can the detained person put forth his case before a Court and challenge the conclusions ? This argument was similarly advanced in Local Government Board vs Arlidge (1) and rejected, as mentioned above.
In my opinion, the answer is in the provision found in article 22 (7) (c) of the Constitution of India.
It was argued that section 11 of the impugned Act was invalid as it permitted the continuance of the detention for such period as the Central Government or the State Govern ment thought fit.
This may mean an indefinite period.
In my opinion this argument has nos substance because the Act has to be read as a whole.
, The whole life of the Act is for a year and therefore the argument that the detention may be for an indefinite period is unsound.
Again, by virtue of article 22 (7)(b), the Parliament is not obliged to fix the maximum term of such detention.
It has not so fixed it, except under section 12, and therefore it cannot be stated that section 11 is in contravention of article 22 (7).
Section 12 of the impugned Act is challenged on the ground that it does not conform to the provisions of article 22 (7).
It is argued that article 22 (7) permits preventive detention beyond three months, when the Parliament pre scribes "the circumstances in which, and the class or class es of cases in which," a person may be detained.
It was argued that both these conditions must be fulfilled.
In my opinion, this argument is unsound, because the words used in article 22 (7) themselves are against such interpretation.
The use of the word "which" twice in the first part of the sub clause, read with the comma put after each, shows that the legislature wanted these to be read as disjunctive and not conjunctive.
Such argument might have been possible (though not necessarily accepted) if ' the article in the Constitution was "the circumstances.
and the class or class es of cases in which . "I have.
no doubt that by the clause, as worded, the legislature (1) 127 intended that the power of preventive detention beyond three months may be exercised either if the circumstances in which, or the class or classes of cases in which, a person is suspected or apprehended to be doing the objectionable things mentioned in the section.
This contention therefore fails.
It was next contended that by section 12 the Parliament had provided that a person might be detained for a period longer than three months but not exceeding one year from the date of his detention, without obtaining the opinion of an advisory board, with a view to prevent him from acting in any manner prejudicial to (a) the defence of India, rela tions of India with foreign powers or the security of India; or (b)the security of a State or the maintenance of public order.
It must be noticed that the contingency provided in section 3 (1) (a) (iii), viz., the maintenance of supplies and services essential to the community is omitted in sec tion 12.
Relying on the wording of these two sub sections in section 12, it was argued that in the impugned Act the wording of Schedule VII List I, Entry 9, and List III, Entry 3, except the last part, are only copied.
This did not comply with the requirement to specify either the circum stances or the class or classes of cases as is necessary to be done under article 22 (7) of the Constitution.
Circum stances ordinarily mean events or situation extraneous to the actions of the individual concerned, while a class of cases mean determinable groups based on the actions of the individuals with a common aim or idea.
Determinable may be according to the nature of the object also.
It is obvious that the classification can be by grouping the activities of people or by specifying the objectives to be attained or avoided.
The argument advanced on behalf of the petitioner on this point does not ' appeal to me because it assumes that the words of Schedule VII List I, Entry 9, and List III, Entry 3 are never capable of being considered as circum stances or classes of cases.
In my opinion, that assumption is not justified, particularly when we have to take into consideration cases of preventive 17 128 detention and not of conviction and punitive detention.
Each of the expressions used in those entries is capable of complying with the requirement of mentioning circumstances or classes of cases.
The classification of cases, having regard to an object, may itself amount to a description of the circumstances.
It is not disputed that each of the entries in the Legislative Lists in the Seventh Schedule has a specific connotation well understood and ascertainable in law.
If so, there appears no reason why the same expression when used in section 12 (1) (a) and (b) of the impugned Act should not be held to have such specific meaning and thus comply with the requirement of prescribing circumstances or classes of cases.
This argument therefore must be rejected.
Section 13(2) was attacked on the ground that even if a detention order was revoked, another detention order under section 3 might be made against the same person on the same grounds.
This clause appears to be inserted to prevent a man being released if a detention order was held invalid on some technical ground.
There is nothing in the Chapter on Fundamental Rights and in article 21 or 22 to prevent the inclusion of such a clause in a parliamentary legislation, permitting preventive detention.
Article 20 (2) may be read as a contrast on this point.
Dealing with the four fundamental principles of natural justice in procedure claimed by the petitioner, it is thus clear that in respect of preventive detention no question of an objective standard of human conduct can be laid down.
It is conceded that no notice before detention can be claimed by the very nature of such detention.
The argument that after detention intimation of the grounds should be given has been recognised in article 22 (5) and incorporated in the impugned Act.
As regards an impartial tribunal, article 22 and (7) read together give the Parliament ample discretion.
When in specified circumstances and classes of cases the preventive detention exceeds three months, the absence of an advisory board is expressly per mitted 129 by article 22 (7).
Under article 22 (4) it appears implied that a provision for such tribunal is not necessary if the detention is for less than three months.
As regards an opportunity to be heard, there is no absolute natural right recognised in respect of oral representation.
It has been held to depend on the nature of the tribunal.
The right to make a representation is affirmed by the Constitution in article 22 (5) and finds a place in the impugned Act.
The right to an orderly course of procedure to the extent it is guaranteed by article 22 (4) read with article 22 (7) (c), and by article 22 (7) (a) and (b), has also been thus provided in the Act.
It seems to me therefore that the petitioner 's contentions even on these points fail.
Section 14 was strongly attacked on the ground that it violated all principles of natural justice and even in fringed the right given by article 22 (5) of the Constitu tion.
It runs as follows: "14.
(1) No Court shall, except for the purposes of a prosecution for an offence punishable under subsection (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order; and, notwithstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section (1): 130 Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.
" By that section the Court is prevented (except for the purpose of punishment for such disclosure) from being in formed, either by a statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section 7 on which the order was made, or of any representation made by him against such order.
It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from the produc tion of the proceedings or report of the.advisory board which may be declared confidential.
It is clear that if this provision is permitted to stand the Court can have no material before it to determine whether the detention is proper or not.
I do not mean whether the grounds are suffi cient or not.
It even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases men tioned in section 12 (1) (a) or (b).
In Machindar Shivaji Mahar vs The King (1), the Federal Court.
held that the Court can examine the grounds given by the Government to see if they are relevant to the object which the legislation has in view.
The provisions of article 22 (5) do not exclude that right of the Court.
Section 14 of the impugned Act appears to be a drastic provision.
which re quires considerable support to sustain it in a preventive detention Act.
The learned Attorney General urged that the whole object of the section was to prevent ventilation in public of the grounds and the representations, and that it was a rule of evidence only which the Parliament could prescribe.
I do not agree.
This argument is clearly not sustainable on the words of article 22 clauses (5) and (6).
The Government has the right under article 22 (6)not to disclose facts which it considers undesirable to disclose in the public interest.
It does not permit the Government to refrain from disclosing grounds which fall under clause (5).
(1) 131 Therefore, it cannot successfully be contended that the disclosure of grounds may be withheld from the Court in public interest, as a rule of evidence.
Moreover, the position is made clear by the words of article 22 (5).
It provides that the detaining authority shall communicate to such detained person the grounds on which the order has been made.
It is there fore ,essential that the grounds must be connected with the order of preventive detention.
If they are not so .connected the requirements of article 22 (5) are not ,complied with and the detention order will be invalid.
Therefore, it is open to a detained person to contend before a Court that the grounds on which the order ' has been made have no connection at all with the order, or have no connec tion with the circumstances or class or classes of cases under which a preventive detention order could be supported under section 12.
To urge this argument the aggrieved party must have a right to intimate to the Court the grounds given for the alleged detention and the representation made by him.
For instance, a person is served with a paper on which there are written three stanzas of a poem or three alphabets written in three different ways.
For the validity of the detention order it is necessary that the grounds should be those on which the order has been made.
If the detained person is not in a position to put before the Court this paper, the Court will be prevented from considering whether the requirements of article 22 (5) are complied with and that is a right which is guaranteed to every person.
It seems to me therefore that the provisions .of section 14 abridge the right given under article 22 (5) and are there fore ultra vires.
It next remains to be considered how far the invalidity of this section affects the rest of the impugned Act.
The impugned Act minus this section can remain unaffected.
The omission of this section will not change the nature or the structure or the object of the legislation.
Therefore the decision that section 14 is ultra vires does not affect the validity of the rest of the Act.
In my opinion therefore Act IV of 1950, except .section 14, is not ultra vires.
It does not infringe any 132 provisions of Part III of the Constitution and the con tention of the applicant against the validity of that Act except to the extent of section 14, fails.
The petition therefore fails and is dismissed.
FAZL ALI J.
The question to be decided in this case is whether 'the (Act IV of 1950), is wholly or in part invalid and whether the peti tioner who has been detained under that Act is entitled to a writ in the nature of habeas corpus on the ground that his detention is illegal.
The question being a pure question of law can he decided without referring to a long chain of facts which are narrated in the petitioner 's application to this Court and which have a more direct bearing on the alleged mala fides of the authorities who have detained him than on the validity of the Act.
The Act which is impugned was enacted by the Parliament on the 26th February, 1950, and will cease to have effect on the 1st April, 1951, save as respects.
things done or omit ted to be done before that date.
The main provisions of the Act are set out in sections 7, 8, 9, 10,11, 12 and 14.
Section a (1) provides that "the Central Government or the State Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any person who is.
a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, 133 it is necessary so to do, make an order directing that such person be detained.
" Sub sections (2) and (3) of this section empower a District Magistrate, Sub Divisional Magistrate or the Com missioner of Police in a Presidency Town to exercise the power conferred by and make the order contemplated in sub section (1), but with the qualification that any order made thereunder must be reported forthwith to the Government of the State to which the .officer in question is subordinate with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessity for the order.
Section 7 of the Act provides that the authority making an order of detention shall as soon as may be communicate to the person detained the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order, in a case where such ,order has been made by the Central Government, to that Government, and in a case where it has been made by a State Government or an officer subor dinate thereto, to the State Government.
Section 8 provides that the Central Government and each State Government shall, whenever necessary, constitute one or more advisory boards for the purposes of the Act, and state the qualifications of persons of which the board should consist.
Section 9 pro vides that when a detention order has been made with a view to preventing a person from acting in any manner prejudicial to the maintenance of supplies and services essential to the community or if it is made in regard to a person who is a foreigner within the meaning of the with a view to regulating his continued presence in India or making arrangements for his expulsion from India, the grounds on which the order has been made and the representation, if any,.
of the person detained shall, within six weeks from the date of detention, be placed 'before an advisory regard.
It will be noticed that this section does not provide that the cases of persons who are detained under section 3 (1) (a) (i) and (ii) will also be placed before the advisory board.
Section 10 lays down the 134 procedure to be followed by.
the advisory board and section 11 provides that in any case where the advisory board has reported that there is sufficient cause for the detention of the person concerned, the detention order may be confirmed and the detention of the person concerned may be continued for such period as the Central Government or the State Government, as the case may be, thinks fit.
Section 12,.
which is a very important section, as we shall presently see, runs as follows : "12 (1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceed ing one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to (a) the defence of India, relations of India with foreign powers or the security of India; or (b) the security of a State or the maintenance of public order.
(2) The case of every person detained under a detention order to which the provisions of sub section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State, Government, by such Govern ment, and where the order was made by any officer specified in sub section (2) of section 3, by the State Government to which such officer is subordinate, in consultation with a person who is or has been or is qualified to be appointed as Judge of a High Court nominated in that behalf by the Cen tral Government or the State Government, as the case may be.
" Section 14, which is also a material section for the purpose of this case, is to the following effect : "(1) No Court shall, except for the purposes of ' a prosecution for an offence punishable under subsection (2), allow any statement to be made, or any 135 evidence to be given, before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order; and, not withstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such commu nication or representation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be the contents of any such communication or representation as is referred to in sub section (1): Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.
" The point which has been pressed before us is that the Act is invalid, as it takes away or abridges certain funda mental rights conferred by Part III of the Constitution of India, and in support of this general proposition, reliance is placed on article 13 (2) which runs as follows : "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
" The rights guaranteed under Part III of the Constitution are classified under seven broad heads, as follows : (1) Right to equality; (2) Right to freedom; (3) Right against exploitation; (4) Right to freedom of religion; (5) Cultural and educational rights; (6) Right to property; and (7) Right to constitutional remedies.
136 Most of the articles which are said to have been disre garded occur under the heading "Right to freedom," these articles being articles 19 (1) (d), 21 and 22.
Another article which is also said to have been violated is article 32, under which the present application for a writ of habeas corpus purports to have been made.
Article 19 (1)is divided into seven sub clauses and runs as follows: "All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; " (f) to acquire, hold and dispose of property; and (g) to practise any profession, or to carry on any occupation, trade or business.
" Clauses (2), (3), (4), (5) and (6) of this article pro vide that nothing in clause (1) shall affect the operation of any existing law in regard to the rights under that clause, under certain conditions which are mentioned there in.
Clause (5), with which we are directly concerned and which will serve as a specimen to show the nature of these provisions, is to the following effect : "Nothing in sub clauses (d), (e) and (f)of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection 'of the interests of any Scheduled Tribe.
" The contentions advanced on behalf of the petitioner with reference to this article are : (1) that the Act under which he has been detained deprives him who is a citizen of the Republic of India of the right to move freely throughout the territory of India, which is guaran teed under article 19 (1) (d), and (2) 137 that under clause (5) of article 19, it is open to this Court to judge whether the restrictions imposed by the Act on the exercise of the right conferred by article 19 (1) (d) are reasonable or otherwise.
Before dealing with this argument, it is necessary to understand the meaning of the words used in article 19 (1)(d) and to have a clear compre hension as to the true nature of the right conferred there under.
The contention put forward on behalf of the peti tioner is that freedom of movement is the essence of person al liberty and any restraint on freedom of movement must be held to amount to abridgment or deprivation of personal liberty, as the case may be, according to the nature of the restraint.
After very careful consideration, I have come to the conclusion that this contention is well founded in law.
Blackstone in his "Commentaries on the Laws of England" (4th Edition, volume 1, page 134) states that "personal liberty consists in the power of locomotion, of changing . 'situation or moving one 's person to whatsoever place one 's own incli nation may direct, without imprisonment or restraint unless by due course of law.
" The authority of this state ment has never been questioned, and it has been bodily incorporated by H.J. Stephen in his "Commentaries on the Laws of England" and has been reproduced by Cooley in his well known treatise on "Constitutional Limitations" (8th Edition, volume 1, page 710), which was extensively quoted by both parties in the course of their arguments.
The view that freedom of movement is the essence of personal liberty will also be confirmed by reference to any book on the criminal law of England dealing with the offence of false imprisonment or any commentary on the Indian Penal Code dealing with the offences of wrongful restraint or confine ment.
Russell in his book on "Crimes and Misdemeanours" (8th Edition, volume 1, page 861), dealing with the offence of false imprisonment states as follows : "False imprisonment is unlawful and total restraint of the personal liberty of another, whether by constraining him or compelling him to go to a particular place or by confin ing him in a prison or 138 police station or private place, or by detaining him against his will in a public place . . . the essential element in the offence is the unlawful detention of the person or the unlawful restraint on his liberty.
Such interference with the liberty of another 's movements is unlawful, unless it may be justified . " Again, Dr. Gour in dealing with the offence of wrongful restraint in his book on "The Penal Law of British India" (5th Edition, page 1144) observes as follows : "Following the principle that every man 's person is sacred and that it is free, law visits with its penalties those who abridge his personal liberty, though he may have no design upon his person.
But the fact that he controls its movements for ever so short a time is an offence against the King 's peace, for no one has the right to molest another in his free movements.
" Dealing with the offence of wrongful confinement, the same learned author observes as follows at page 1148 of his book : " 'Wrongful confinement ' is a species of ' wrongful restraint ' as defined in the last section.
In wrongful restraint, there is only a partial suspension of one 's liberty of locomotion, while in wrongful confinement there is a total suspension of liberty 'beyond certain circum scribing limits '.
" Both these authors speak of restraint on personal liber ty and interference with the liberty of one 's movements or suspension of liberty or locomotion as interchangeable terms.
In Bird vs Jones (1), Coleridge J. said that "it is one part of the definition of freedom to be able to go whithersoever one pleases." A similar opinion has been expressed by several authors including Sir Alfred Denning in his book entitled "Freedom under the Law.
" There can there fore be no doubt that freedom of movement is in the last analysis the essence of personal liberty, and just as a man 's wealth is generally measured in this country in terms of rupees, annas and pies, one 's personal liberty depends upon the extent of his freedom of movement.
But it is contended on behalf of the State that freedom of move (1) 7 Q.B. 742.
139 ment to which reference has been made in article 19 (1) (d) is not the freedom of movement to which Blackstone and other authors have referred, but is a different species of freedom which is qualified by the words "throughout the territory of India.
" How the use of the expression "throughout the territory of India" can qualify the meaning of the rest of the words used in the article is a matter beyond my compre hension.
In my opinion, the words "throughout the territory of India" were used to stretch the ambit of the freedom of movement to the utmost extent to which it could be guaran teed by our Constitution.
The Constitution could not guar antee freedom of movement outside the territorial limits of India, and so has used those words to show that a citizen was entitled to move from one corner of the country to another freely and without any obstruction.
"Throughout" is an amplifying and not a limiting expression, and I am sur prised to find that the expression "throughout the territory of India," which was used to give the widest possible scope to the freedom of movement, is sought to be construed as an expression limiting the scope and nature of the freedom.
In my opinion, the words "throughout the territory of India," having regard to the context in which they have been used here, have the same force and meaning as the expression "to whatsoever place one 's own inclination may direct" used by Blackstone, or the expression "freedom to be ,able to go whithersoever one pleases" used by Coleridge J. in Bird vs Jones (1).
I am certain that neither of these authorities contemplated that the freedom of movement which is vouch safed to a British citizen, is guaranteed beyond the terri torial limits of British territories.
The question as to whether preventive detention is an encroachment on the right guaranteed by article 19 (1) (d) has been considered by the Nagpur, Patna and Calcutta High Courts.
The view which has .been ultimately adopted by these High Courts is that preventive detention is not a violation of the right guaranteed by article 19 (1) (d), but, in the Calcutta (1) 7 Q.B. 742.
140 High Court, where the matter has been elaborately discussed, at least five Judges have held that it does, and in the ultimate analysis the number of Judges.
who have held the contrary view appears to be the same.
Having regard to the fact that the view expressed by so many learned Judges is opposed to the view I am inclined to take, I consider it necessary to deal briefly with the main objections which have been raised in support of the narrow meaning sought to be attached to the words in article 19 (1)(d).
I have already dealt with one of them which is based on the ex pression "throughout the territory of India.
" A. nd I shall now proceed to deal with the, others seriatim.
I. It will be recalled that clause (5) of article 19, which I have already quoted in full, provides among other things that nothing in clause (1) (d) shall affect the operation of any law, present or future, imposing reasonable restrictions on the exercise of the right of freedom of movement either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
It has been argued that the use of the words "interests of any Scheduled Tribe" in this clause shows that the right guaranteed by article 19 (1) (d) is a limited right of movement, such as the right to visit different localities and to go from one place to another and is different from the expression "freedom of movement" which has been stated by Blackstone to be another name for personal liberty.
It is pointed out that the restrictions in contemplation here are mainly restrictions preventing undesirable outsiders from visiting Scheduled Areas and exploiting Scheduled Tribes, and if the words "freedom of movement" had been used in the larger sense, such a small matter would not have found a place in clause (5) of article 19.
I must frankly confess that I am unable to appreciate this argument and to hold that a mere reference to Scheduled Tribes affects the plain meaning of the words used in clause (1) (d) of article 19.
The words used in article 19 (1) (d) are very wide and mean that a person can go at his will in any direction to any locality and to any distance.
Re straint on a freedom.
141 so wide in scope and extent may assume a variety of forms and may include internment or externment of a person, his confinement to a particular locality or within the walls of a prison, his being prevented from visiting or staying in any particular area, etc.
The framers of the Constitution wanted to save all restrictive legislation affecting freedom of movement made in the interests of the general public (which expression means the same thing as "public interests") and I think that the law in regard to preventive detention is fully covered by the expression "restrictions imposed in the public interests.
" But they also remembered that there were restrictive laws made in the interests of an important community and that similar laws may have to be made in future and hence they added the words "for the protection of the interests of any Scheduled Tribe.
" A reference to the Fifth Schedule of the Constitution and the corresponding provisions of the Government of India Act, 1935, as well as to certain laws made for Chota Nagpur, Santhai Pargangs and .other localities will show that great importance has been attached in this country to.
the protec tion and preservation of the members of the scheduled tribes .and maintenance of order in tribal areas, and this, in my opinion, is sufficient to account for the special mention of the scheduled tribes in clause (5).
It may, at first sight, appear to be a relatively small matter, but in their anxiety to cover the whole field of restrictive laws made whether in the public interest or in the interests of a particular community and not to leave the smallest loophole, the framers of the Constitution apparently decided to draft the clause in the present form.
As far as I am aware, there are no restrictive laws made in the interests of any commu nity other than the scheduled tribes, and I think clause (5)is sufficiently comprehensive to include the smallest as well as the most complete restrictions on freedom of move ment.
I am also satisfied that the mere mention of sched uled tribes in clause (5) cannot change, the plain meaning of the words of the main provision which we find in article 19 (1) (d) and confine it to some kind of peculiar and truncated freedom of 142 movement which is unconnected with personal liberty and which is unknown to any Constitution with which.
we are familiar: It will perhaps be not out of place to refer in this.
connection to Ordinance XIV of 1943, which is one of the ordinances by which the Defence of India Act, 1939, was partly amended.
This ordinance provides for "the apprehension and detention in custody of any person whom the authority empowered by the rules to appre hend or detain as the case may be suspects, on grounds appearing to such authority to be reasonable, of being of hostile origin, or of having acted, acting, being about to act, or being likely to act in a manner prejudicial to the public safety or interest, the defence of British India, the maintenance of public order, His Majesty 's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war, or with respect to whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudi cial manner, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything.
" The points to be noted in connection with the ordinance are : (1) that it is an ordinance specifically providing for apprehension and detention; (2) that notwithstanding the fact that there is a gener al reference in it to acts prejudicial to public safety or interests and maintenance of public order there is also a specific reference to maintenance of peaceful conditions in tribal areas; (3) that tribal areas and scheduled tribes are, kindred subjects as would appear from the Fifth Schedule appended to the Constitution; and (4) that maintenance of peaceful conditions in tribal areas may be as much in the public interest as in the inter ests of persons living in those areas.
143 This ordinance shows at least this much that sometimes the law of preventive detention can also be made in the interests of scheduled tribes or scheduled areas and conse quently the mere mention of scheduled tribes in clause (5) does not necessarily exclude laws relating to preventive detention from the scope of article 19 (5) The same remarks apply to the ordinance called "The Restriction and Detention Ordinance, 1944" (Ordinance No. III of 1944) which empow ered the Central Government or the Provincial Government to detain and make orders restricting the movements of certain persons in the interest of public safety, maintenance of public order as well as maintenance of peaceful conditions in tribal areas, etc.
It is also argued that since preventive detention amounts to a total deprivation of freedom of movement, it is not a violation of the right granted under article 19 (1) (d) in regard to which the word "restriction" and not "deprivation" has been used in clause (5).
This argument also does not appeal to me.
There are really two questions which fall to be decided in this case, viz., (a) Does pre ventive detention take away the right guaranteed by article 19 (1) (d)?; and (b) if so, what are the consequences, if any ? It seems obvious to me that preventive detention amounts to a complete deprivation of the right guaranteed by article (19) (d).
The meaning of the word "restriction" is to be considered with reference to the second question and I think that it will be highly technical to argue that deprivation of a right cannot be said to involve restriction on the exercise of the right.
In my opinion, having regard to the context in which the word "restriction" has been used, there is no antithesis between that word and the word "depriva tion.
" As I have already stated, restraint on the right to move can assume a variety of forms and restriction would be the most appropriate expression to be ' used in clause (5) so as to cover all those forms ranging from total to various kinds of partial deprivation freedom of movement.
I will however have to advert to this subject later and will try to show that the 19 144 construction I have suggested is supported by good authori ty.
It appears that some of the Judges who had to deal with the question which we have before us were greatly influenced by the argument that if the deprivation of per sonal liberty amounts to deprivation of the right granted under article 19 (1) (d), any conviction for an offence under the Indian Penal Code involving a sentence of impris onment will be subject to judicial review on the ground of reasonableness of the provisions of the Code under which the conviction is recorded.
Meredith C.J. of the Patna High Court has given expression to his concern for the situation which will thereby arise, in these words : "It will be seen that the claim made is very sweeping indeed.
It would mean that every law under which a person may be imprisoned, including all the provisions of the Penal Code, is open to examination by the Courts on the ground of reasonableness.
It makes the Courts supreme arbiters in regard to any such legislation, and they can reject it or accept it in accordance with their ideas of whether it appeals to their reason.
But ideas of reasonableness or otherwise are apt to vary widely.
Take for example, laws relating to prohibition or take such a matter as adultery which the Indian law regards as a crime punishable with imprisonment but the English law does not.
It is difficult to believe the framers of the Constitution ever intended to place so enormous a power in the hands of the Courts . . . "[Rattan Roy vs The State of Biharl.
The obvious and strictly legal reply to this argument is that the consideration, which has so greatly weighed with the learned Chief Justice, is not enough to cut down the plain meaning of the general words used in article 19 (5) of the Constitution.
As has been pointed out in a number of cases, "in construing enacted words, we are not concerned with the policy involved or with the results injurious or otherwise which may follow by giving effect to the language 145 used" [King Emperor vs Benoari Lal Sharma and others (1)I Apart from this aspect of the matter, I agree with one of the learned Judges Of the Calcutta High Court in his remark that "no calamitous or untoward result will follow even if the provisions of the Penal Code become justiciable.
" I am certain that no Court would interfere with a Code which has been the law of the land for nearly a century and the provisions of which are not in conflict with the basic principles of any system of law.
It seems to me that this Court should not be deterred from giving effect to a fundamental right granted under the Constitution, merely because of a vague and unfounded fear that something catas trophic may happen.
I have so far proceeded on the assumption that the basis of the objection raised by Meredith C.J. is correct in law, but, in my opinion, it is not.
Crime has been defined to consist in those acts or omissions involving breach of a duty to which a sanction is attached by law by way of pun ishment or pecuniary penalty in the public interests.
(See Russell 's "Crimes and Misdemeanours ").
Section 2 of the Indian Penal Code, 1860, provides that "every person shall be liable to punishment under this Code ' and not otherwise for every act or omission contrary to the provisions there of, of which he shall be guilty within British India ." The Indian Penal Code does not primarily or necessarily impose restrictions on the freedom of movement, and it is not correct to say that it is a law imposing restrictions on the right to move freely.
Its primary object is to punish crime and not to restrict movement.
The punishment may consist in imprisonment or a pecuniary penalty.
If it consists in a pecuniary, penalty, it obviously involves no restriction on movement; but if it consists in imprisonment, there is a restriction on movement.
This restraint is imposed not under a law imposing restrictions on movement but under a law defining crime and making it punishable.
The punishment is correlated directly with the violation of some other person 's right and not with the right of (1) at p. 177.
146 movement possessed by the offender himself.
In my opinion, therefore, the Indian Penal Code does not come within the ambit of the words "law imposing restriction on the right to move freely ".
In the course of the arguments, the expression "punitive detention" was frequently used and the tendency was to put it on the same footing as preventive detention for the purpose of certain arguments.
Punitive detention is however essentially different from preventive detention.
A person is punitively detained only after a trial for committing a crime and after his guilt has been established in a compe tent Court of justice.
A person so convicted can take his case to the State High Court and sometimes bring it to this Court also; and he can in the course of the proceedings connected with his trial take all pleas available to him including the plea of want of jurisdiction of the Court of trial and the invalidity of the law under which he has been prosecuted.
The final judgment in the criminal trial will thus constitute a serious obstacle in his way if he chooses to assert even after his conviction that his right under article 19 (1) (d) has been violated.
But a person who is preventively detained has not to face such an obstacle whatever other obstacle may be in his way.
It was pointed out that article 19 being confined to citizens, the anomalous situation will follow that in cases of preventive detention, a citizen will be placed in a better position than a non citizen, because if a citizen is detained his detention will be open to some kind of judicial review under article 19 (5), but if a non citizen has been detained his case will not be open to such review.
In this view, it is said that the whole Act relating to preventive detention, may be declared to be void if it is unreasonable, though it concerns citizens as well as persons other than citizens.
I must frankly state that I am not at all per turbed by this argument.
It is a patent fact that the Constitution has confined all the rights mentioned in arti cle 19 (1) to citizens.
It is equally clear that restric tions on those rights are to a limited extent at least open to judicial review The very same question which is 147 raised in regard to article 19 (1)(d) will arise with regard to most of the other sub clauses.
A citizen has the right to assemble peaceably and without arms, to form associations or unions and so on.
If there is any law imposing unreason able restrictions on any of these rights, that law will not be good law so far as citizens are concerned, but it may be good law so far as non citizens are concerned.
I do not see why a similar situation arising with regard to the right granted under sub clause (d) should be stated to be anoma lous.
So far as the right of free movement is concerned, a non citizen has been granted certain protections in articles 21 and 22.
If a ,citizen has been granted certain other additional protections under article 19 (1) (d), there is no anomaly involved in the discrimination.
I think that it is conceivable that a certain law may be declared to be void as against a citizen but not against a non citizen.
Such a result however should not affect our mind if it is found to have been clearly within the contemplation of the framers of the Constitution.
V. It was contended that the rights declared by article 19 are the rights of a free citizen and if he has already been deprived of his liberty in the circumstances referred to in articles 20, 21 and 22, then it would be idle to say that he still enjoys the right referred to in article 19.
After giving my fullest consideration to this argument, I have not been able to appreciate how it arises in this case.
There is nothing in article 19 go suggest that it applies only to those cases which do not fall under articles 20, 21 and 22.
Confining ourselves to preventive detention, it is enough to point out that a person who is preventively de tained must have been, before he lost his liberty, a free man.
Why can 't he say to those who detained him: "As a citizen I have the right to move freely and you cannot curtail or take away my right beyond the limits imposed by clause (5)of article 19.
" This is the only question which arises in the case and it should not be obscured by any abstruse or metaphysical considerations.
It is true that if you put a man under detention, he cannot move and therefore he is not in a position to 148 exercise the right guaranteed under article 19 (1) (d).
but this is only the physical aspect of the matter and a person who is bed ridden on account of disease suffers from a similar disability.
In law, however,.
physical duress does not deprive a person of the right to freedom of movement.
If he has been detained under some provision of law imposing restrictions on the freedom of movement, then the question will arise whether the restrictions are reasonable.
If he has been detained under no provision of law or under some law which is invalid, he must be set at liberty.
To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each article is a code by itself and is independent of the others.
In my opinion, it cannot be said that articles 19, 20, 21 and 22 do not to some extent over lap each other.
The case of a person who is convicted of an offence will come under articles 20 and 21 and also under article 221 so far as his arrest and detention in custody before trial are concerned.
Preventive detention, which is dealt with in article 22, also amounts to deprivation of personal liberty which is referred to in article 21, and is a violation of the right of freedom of movement dealt with in article 19 (1) (d).
That there are other instances of overlapping of articles in the Constitution may be illus trated by reference to article 19 (1) (f) and article 31 both of which deal with the right to property and to some extent overlap each other.
It appears that some learned High Court Judges, who had to deal with the very question before us, were greatly impressed by the statement in the report of the Drafting Committee of the Constituent Assembly on article 15 (corresponding to the present article 21), that the word "liberty" should be qualified by the insertion of the word "personal" before it for otherwise it may be construed very widely so as to include the freedoms dealt with in article 13 (corresponding to the present article 19).
I am not however prepared to hold that this statement is decisive on the question of the construction of the words used in article 19 (1) (d) which are quite plain and can be construed without any 149 extraneous help.
Whether the report of the Drafting Commit tee and the debates on the floor of the House should be used at all in construing the words of a statute, which are words of ordinary and common use and are not used in any technical or peculiar sense, is a debatable question; and whether they can be used in aid of a construction which is a strain upon the language used in the clause to be interpreted is a still more doubtful matter.
But, apart from these legal consider ations, it is, I think, open to us to analyse the statement and see whether it goes beyond adding a somewhat plausible reason a superficially plausible reason for a slight verbal change in article 21.
It seems clear that the addi tion of the word "personal" before "liberty" in article 21 cannot change the meaning of the words used in article 19, nor can it put a matter which is inseparably bound up with personal liberty beyond its place.
Personal liberty and personal freedom, in spite of the use of the word "personal ," are, as we find in several books, sometimes used in a wide sense and embrace freedom of speech, freedom of .asso ciation, etc.
These rights are some of the most valuable phases or elements of liberty and they do not cease to be so by the addition of the word "personal.
" A general statement by the Drafting Committee referring to freedom in plural cannot take the place of an authoritative exposition of the meaning of the words used in article 19 (1)(d), which has not been specifically referred to and cannot be such an overriding consideration as to compel us to put a meaning opposed to reason and authority.
The words used in article 19 (1) (d) must be construed as they stand, and we have to decide upon the words themselves whether in the .case of preventive detention the right under article 19 (1) (d) is or is not infringed.
But, as I shall point out later, however literally we may construe the words used in article 19 (1) (d) and however restricted may be the meaning we may attribute to those words, there can be no escape from the conclusion that preventive detention is a direct infringe ment of the right guaranteed in article 19 (1) (d).
150 Having dealt with the principal objections, I wish to revert once again to the main topic.
The expressions "per sonal liberty" and" personal freedom" have, as we find in several books, a wider meaning and also a narrower meaning.
In the wider sense, they include not only immunity from arrest and detention but also freedom of speech, freedom of association, etc.
In the narrower sense, they mean immunity from arrest and detention.
I have shown that the juristic conception of "personal liberty ," when these words are used in the sense of immunity from arrest, is.
that it consists in freedom of movement and locomotion.
I have also pointed out that this conception is at the root of the criminal law of England and of this country, so far as the offences of false imprisonment and wrongful confinement are concerned.
The gravamen of these offences is restraint on freedom of movement.
With these facts in view, I have tried to find out whether there is any freedom of movement known in England apart from personal liberty used in the sense of immunity from arrest and detention, but I find no trace of any such freedom.
In Halsbury 's Laws of England (2nd Edition, volume 6, page 391), the freedoms mentioned are the right to per sonal freedom (or immunity from detention or confinement), the right to property, the right to freedom of speech, the right of public meeting, the right of association, etc.
Similar classifications will be found in Dicey 's "Introduc tion to the Study of the Law of the Constitution" and Keith 's "Constitutional Law" and other books on constitu tional subjects, but there is no reference anywhere to any freedom or right of movement in the sense in which we are asked to.
construe the words used in article 19 (1) (d).
In the Constitutions of America, Ireland and many other countries where freedom is prized, there is no reference to freedom or right of movement as something distinct from personal liberty used in the sense of immunity from arrest and confinement.
The obvious explanation is that in legal conception no freedom or right of movement exists apart from what personal liberty connotes and therefore a separate treatment of this freedom was not necessary.
It is only in the Constitution of the Free 151 City of Danzig, which covers an area of 701 square miles, that we find these words in article 75 : "All nationals shall enjoy freedom of movement within the City.
" There is however no authoritative opinion available to support the view that this freedom is anything different from what is otherwise called personal liberty.
The problem of construc tion in regard to this particular right in the Constitution of Danzig is the same as in our Constitution.
Such being the general position, I am confirmed in my view that the juristic conception that personal liberty and freedom of movement connote the same thing is the correct and true conception, and the words used in article 10 (1) (d) must be construed according to this universally accepted legal conception.
This conclusion is further supported by reference to the war legislation in England and in India, upon which the law of preventive detention, which has been in force in this country since the war, is based.
In the first world war, the British Parliament passed the Defence of the Realm Consoli dation Act, in 1914, and a number of regulations were made under it including regulation 14 B, which permitted the Secretary of State to subject any person "to such obliga tions and restrictions as hereinafter mentioned in view of his hostile origin or associations." Lord Atkin in refer ring to this regulation said in Liversidge vs Sir John Anderson (1), "that the regulation undisputedly gave to a Secretary of State unrestricted power to detain a suspected person." Apparently, Lord Atkin meant that the restriction referred to in the Act included preventive detention.
Under this regulation, one Arthur Zadig was interned, and he applied to the King 's Bench for a writ of habeas corpus which was refused.
The matter ultimately came up before the House of Lords in Rex vs Halliday (2), and the noble Lords in dealing with the case proceeded on the assumption that there was no difference between internment and incarceration or imprisonment.
Lord Shaw in narrating the facts of the case stated : (1) (2) ; 20 152 His person was seized, he has been interned .
The appellant lost his liberty and was interned . " He then proceeded to state that there was no difference between internment and imprisonment and quoted the following passage from Blackstone : "The confinement of the person, in any wise, is an imprisonment.
So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment.
" Proceeding on this footing (which I find to be the common basis in all other speeches delivered in the case, though Lord Shaw had given a dissenting judgment), Lord Finlay while dealing with the provisions of the regulations observed : "One of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy "(1).
Again, Lord Atkinson while dealing with the merits of the case made the following observations : "If the legislature chooses to enact that he can be deprived of his liberty and incarcerated or interned for certain things for which he could not have been heretofore incarcerated or interned, that enactment and the orders made under it if intra vires do not infringe upon the Habeas Corpus Acts or take away any right conferred by Magna Charta . ,, (2).
This passage read with the previous passage quoted by me will show that both internment and incarceration were re garded as "restrictions on the freedom of movement "and that deprivation of liberty and restriction on freedom of move ment were used as alternative expressions bearing the same meaning.
The same conclusion is to be drawn by reference to the regulations made in the last world war under the Emergency Powers (Defence)Act, 1939.
The regulation which directly dealt with detention orders was 18 B.
This regulation and a number of other regulations have been placed in Part I under the heading" Restrictions (1) (2) 153 On movements and activities of persons .
" The classifica tion is important, because it meets two principal arguments advanced in this case.
It shows firstly that detention is a form of restriction and secondly that it is a restriction on movement.
I have noticed that" movement" is used in plural, and the heading also refers to restrictions on activities, but, having regard to the subjects classified under this head, movement undoubtedly refers to physical movement and includes such movements as entering a particu lar locality, going from one place to another, etc.
, i.e., the very things to which article 19 (1) (d) is said to have reference.
In Liversidge 's case, in construing the provi sions of the Act of 1939, Viscount Maugham observed as follows : "The language of the Act of 1939 (above cited) shows beyond doubt that Defence Regulations may be made which must deprive the subject "whose detention appears to the Secre tary of State to be expedient in the interests of public safety" of all his liberty of movement while the regulations remain in force"(1).
Thus Viscount Maugham also considered detention to be synonymous with deprivation of liberty of movement.
The classification that we find in the Defence of the Realm Regulations was with a little verbal modification adopted in the Defence of India Rules, and we find that here also rule 26, which dealt with preventive detention, has been placed under the heading "Restriction of movements and activities of persons.
" A somewhat similar classification has also been adopted in a series of Provincial Acts and Ordinances relating to maintenance of order [see section 2 of the Bihar Maintenance of Public Order.
Act, 1949, section 16 of the West Bengal Security Act, 1948, section 4 of the East Punjab Public Safety Act, 1949, section 2 of the Madras Maintenance of Public Order Act, 1947, section 3 of the U.P. Maintenance of Public Order Temporary Act, 1947, and section 2 of the Bombay Public Security Measures Act, 1947.
In these Acts and Ordinances, preventive detention and certain (1) 154 other forms of restriction on movement such as internment, externment, etc. have been classed together and dealt with more or less on the same footing, and sometimes they have been dealt with in different clauses of the same section.
In one of the Acts, the same advisory board is to deal with the case of a detenue as well as that of an externed person, and there are also similar provisions giving them the right to represent their case to the Government.
I will now assume for the sake of argument that the freedom of movement to which reference is made in article 19 (1) (d) has nothing to do with personal liberty and that the words which occur in the article bear the restricted meaning attributed to them by the learned Attorney General and some of my colleagues.
It seems to me that even on this assump tion, it is difficult to arrive at any conclusion other than what I have already arrived at.
There can be no doubt that preventive detention does take away even this limited free dom of movement directly and substantially, and, if so, I do not see how it can be argued that the right under article 19 (1) (d) is not infringed if the alternative interpretation is accepted.
We have only to ask ourselves: Does a person who is detained retain even a fraction of his freedom of movement in howsoever restricted sense the term may be used and does he not lose his right to move freely from one place to another or visit any locality he likes as a necessary result of his detention ? I think I should refer here once more to the fact that in the Defence of the Realm Regula tions and Defence of India Rules, preventive detention is classed under the heading "Restriction of movements and activities." "Movement" is here used in plural and refers to that very type of movement which is said to be protected by article 19 (1) (d), moving from one State or place to another, visiting different localities, etc.
One of the objects of 'preventive detention is to restrain the person detained from moving from place to.
place so that he may not spread disaffection or indulge in dangerous activities in the ' places he visits.
The same consideration applies to the cases of persons who are interned or externed.
Hence, externment, 155 internment and certain other forms of restriction on move ment have always been treated as kindred matters belonging to the same group or family and the rule which applies to one must necessarily apply to the other.
It is difficult to hold that the case of externment can possibly be dealt with on a different footing from the case of preventive deten tion.
I am however interested to find that the Patna and Bombay High Courts have held that a person who is externed can successfully assert that the right granted to him under article 19 (1) (d) has been violated.
This view has not been seriously challenged before us, and, if it is correct, I really do not see how it can be held that preventive deten tion is also not a direct invasion of the right guaranteed in article 19 (1) (d).
Perhaps, one may pause here to ask what kind of laws were in contemplation of the framers of the Constitution when they referred to laws imposing re strictions in the public interest in article 19 (5).
I think the war laws and the Provincial Acts and Ordinances to which I have already referred must have been among them, these being laws which expressly purport to impose restrictions on movements.
If so, we should not overlook the fact that preventive detention was an inseparable part of these laws and was treated as a form of restriction on movement and classified as such.
It seems to me that when the matter is seriously considered, it would be found that the interpreta tion of the learned Attorney General attracts the operation of article 13 (2) no less strongly and directly than the interpretation I have suggested, and I prefer the latter only because I consider that it is legally unsound to treat what is inseparably bound up with and is the essential element in the legal concept 1of personal liberty as a wholly separate and unconnected entity.
But, as I have already indicated, it will be enough for the purpose of this case if we forget all about personal liberty and remember only that detention is, as is self evident and as has been pointed out by Viscount Maugham and other eminent judges, another name for depriving a person of all his "liberty of movement.
" It was pointed out in the course of the arguments 156 that preventive detention not only takes away the right in article 19 (1) (d) but also takes away all the other rights guaranteed by article 19 (1), except the right to hold, acquire and dispose of property.
Where exactly this argu ment is intended to lead us to, I cannot fully understand, but it seems to me that it involves an obvious fallacy, because it overlooks the difference in the modes in which preventive detention operates on the right referred to in sub clause (d) and other sub clauses of article 19 (1).
The difference is that while preventive detention operates on freedom of movement directly and inevitably, its operation on the other rights is indirect and consequential and is, often only notional.
One who is preventively detained is straightaway deprived of his right of movement as a direct result of his detention, but he loses the other rights only in consequence of his losing freedom of movement.
Beside% while freedom of movement is lost by him in all reality and substance, some of the other rights may not be lost until he wishes to exercise them or is interested in exercising them.
A person who is detained may not be interested in freedom of association or may not pursue any profession, occupation, trade or business.
In such a case, the rights referred to are lost only in theory and not as a matter of substance.
I wish only to add that when I said that I was not able to understand the full force of the argument which I have tried to deal with, what I had, in mind was that if preventive detention sweeps away or affects almost all the rights guaranteed in article.
19 (1), the matter deserves very serious consideration and we cannot lightly lay down that article 13 (2) does not come into operation.
Being fully alive to the fact that it is a serious matter to be asked to declare a law enacted by Parliament to be unconstitutional, I have again and again asked myself the question: What are we to put in the scales against the construction which I am inclined to adopt and in favour of the view that preventive detention does not take away the freedom of movement guaranteed in article 19 (1) (d)? The inevitable answer has always been that while in one of the scales 157 we have plain and unambiguous language, the opinion eminent jurists, judicial dicta of high authority, constitu tional practice in the sense that no Constitution refers to any freedom of movement apart from personal liberty, and the manner in which preventive detention has been treated in the very laws on which our law on this subject is based, all that we can put in the opposite scale is a vague and ill rounded apprehension that some fearful object such as the revision of the Penal .Code is looming obscurely in the distant horizon, the peculiar objection that the mere men tion of the scheduled tribes will alter the meaning of certain plain words, the highly technical and unreal dis tinction between restriction and deprivation and the assump tion not warranted by any express provision that a person who is preventively detained cannot claim the right of freedom of movement because he is not a free man and certain other things which, whether taken singly or ,collectively, are too unsubstantial to carry any weight.
In these circum stances, I am strongly of the view that article 19 (1)(d) guarantees the right of freedom of movement in its widest sense, that freedom of movement being the essence of person al liberty, the right guaranteed under the article is really a right to personal liberty and that preventive detention is a deprivation of that right.
I am also of the view that even on the interpretation suggested by the learned Attor ney General, preventive detention cannot but be held to be a violation of the right conferred by article 19 ,(1) (d).
In either view, therefore, the law of preventive detention is subject to such limited judicial review as is permitted under article 19 (5).
The scope of the review is simply to see whether any particular law imposes any unreasonable restrictions.
Considering that the restrictions are imposed on a most valuable right, there is nothing revolutionary in 'the legislature trusting the Supreme Court to examine whether an Act which infringes upon that right is within the limits of reason.
I will now pass on to the consideration of article 21, which runs as follows : "No person shall be deprived of his life or personal 158 liberty except according to procedure established by law.
" Here again, our first step must be to arrive at a clear meaning of the provision.
The only words which cause some difficulty in the proper construction of the article are "procedure established by law." The learned Attorney General contended before us that the word "law" which is used in article 21 means State made law or law enacted by the State.
On the other hand, the learned counsel for the petitioner strongly contended that the expression "procedure established by law" is used in a much wider sense and approximates in meaning to the expres sion "due process of law" as interpreted by the Supreme COurt of America in the earliest times and, if that is so, it means exactly what some of the American writers mean to convey by the expression "procedural due process." In the course of the arguments, the learned Attorney General referred us to the proceedings in the Constituent Assembly for the purpose of showing that the article as originally drafted contained the words "without due process of law" but these words were subsequently replaced by the words "except according to procedure established by law." In my opinion, though the proceedings or discussions in the Assembly are not relevant for the purpose of construing the meaning of the expressions used in article 21, especially when they are plain and unambiguous, they are relevant to show that the Assembly intended to avoid the use of the expression "without due process of law.
" That expression had its roots in the expression "per legem terrae" (law of the land) used in Magna Charta in 1215.
In the reign of Edward III, 'however, the words "due process of law" were used in a statute guaranteeing that no person will be de prived of his property or imprisoned or indicted or put to death without being brought in to answer by due process of law (28, Edward III, Ch.
The expression was after wards adopted in the American Constitution and also in the Constitutions of some of the constituent States, though some of the States preferred to use the 159 words "in due course of law" or "according to the law of the land." [See Cooley on "Constitutional Limitations," 8th Edn.
II, pages 734 51.
In the earliest times, the American Supreme Court construed "due process of law" to cover matters of procedure only, but gradually the meaning of the expression was widened so as to cover substantive law also, by laying emphasis on the word "due.
" The expression was used in such a wide sense that the judges found it difficult to define it and in one of the cases it was ob served as follows : "It would be difficult and perhaps impossible to give to those words a definition, at once accurate, and broad enough to cover every case.
This difficulty and perhaps impossi bility was referred to by Mr. Justice Miller in Davidson vs New Orleans, where the opinion was expressed that it is wiser to ascertain their intent and application by the 'gradual process of judicial inclusion and exclusion, ' as the cases presented for decision shall require, with the reasoning on which such decisions may be rounded:" Missouri Pacific Railway Co. vs Humes (1).
It seems plain that the Constituent Assembly did not adopt this expression on account of the very elastic meaning given to it, but preferred to use the words "according to procedure established by law" which occur in the Japanese Constitution framed in 1946.
It will not be out of place to state here in a few words how the Japanese Constitution came into existence.
It appears that on the 11th October, 1945.
General McArthur directed the Japanese Cabinet to initiate measures for the preparation of the Japanese Constitution, but, as no progress was made, it was.
decided in February, 1946, that the problem of constitutional reform should be taken over by the Government Section of the Supreme Commander 's Headquar ters.
Subsequently the Chief of this Section ,and the staff drafted the Constitution with the help of American constitu tional lawyers who were called to assist the Government Section in the task.
This Constitution, as a learned writer has remarked, bore (1) ; at page 513.
21 160 on almost every page evidences of its essentially Western origin, and this characteristic was especially evident in the preamble "particularly reminiscent of the American Declaration of Independence, a preamble which, it has been observed, no Japanese could possibly have conceived or written and which few could even understand" [See Ogg and Zink 's "Modern Foreign Governments"].
One of the character istics of the Constitution which undoubtedly bespeaks of direct American influence is to be found in a lengthy chap ter, consisting of 31 articles, entitled "Rights and Duties of the People," which provided for the first time an effec tive "Bill of Rights" for the Japanese people.
The usual safeguards have been provided there against apprehension without a warrant and against arrest or detention without being informed of the charges or without adequate cause (articles 33 and 34).
Now there are two matters which deserve to be noticed : (1) that the Japanese Constitution was framed wholly under American influence; and (2) that at the time it was framed the trend of judicial opinion in America was in favour of confining the meaning of the expression "due process of law" to what is expressed by certain American writers by the somewhat quaint but useful expression "proce dural due process.
" That there was such a trend would be clear from the following passage which I quote from Carl Brent Swisher 's "The Growth of Constitutional Power in the United States" (page 107.): "The American history of its interpretation falls into three periods.
During the first period, covering roughly the first century of government under the Constitution, due process was interpreted principally as a restriction upon procedure and largely the judicial procedure by which the government exercised its powers.
During the second period, which, again roughly speaking, extended through 1936, due process was expanded to serve as a restriction not merely upon procedure but upon the substance of the activities in which the government might engage.
During the third period, extending from 1936 to date, the use of due 161 process as a substantive restriction has been largely sus pended or abandoned, leaving it principally in its original status as a restriction upon procedure.
" In the circumstances mentioned, it seems permissible to surmise that the expression "procedure established by law" as used in the Japanese Constitution represented the current trend of American judicial opinion with regard to "due process of law," and, if that is so, the expression as used in our Constitution means all that the American writers have read into the words "procedural due process." But I do not wish to base any conclusions upon mere surmise and will try to examine the whole question on its merits.
The word "law" may be used in an abstract or concrete sense.
Sometimes it is preceded by an article such as "a" or "the" or by such words as "any," "all," etc., and sometimes it is used without any such prefix.
But, generally, the word "law" has a wider meaning when used in the abstract sense without being preceded by an article.
The question to be decided is whether the word "law" means nothing more than statute law.
Now whatever may be the meaning of the expression "due process of law," the word "law" is common to that expression as well as "procedure established by law" and though we are not bound to adopt the construction put on "law" or "due process of law" in America, yet since a number of eminent American Judges have devoted much thought to the subject, I am not prepared to hold that we can derive no help from their opinions and we should completely ignore them.
I will therefore in the first instance set out certain quotations from a few of the .decisions of the American Supreme Court construing the word "law" as used in the expression "due process of law," in so far as it bears on the question of legal procedure.
(1) "Although the legislature may at its pleasure provide new remedies or change old ones, the power is never theless subject to the condition that it cannot remove certain ancient land marks, or take away certain fundamen tal rights which have been always 162 recognized and observed in judicial procedures:" Bardwell vs Collins (1).
(2) ' 'By the law of the land is most clearly intended the general law: a law which hears before it condemns, which proceeds upon inquiry and renders judgments only after trial.
The meaning is that every citizen shall hold his life, liberty and property, and immunities under the protection of the general rules which govern society:" Dartmouth College Case (2).
(3) "Can it be doubted that due process of law signifies a right to be heard in one 's defence ? If the legislative department of the government were to enact a statute confer ring the right to condemn the citizen without any opportuni ty whatever of being heard, would it be pretended that such an enactment would not be violative of the Constitution ? If this be true, as it undoubtedly is, how can it be said that the judicial department.
the source and fountain of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be viola of the Constitution ? If such power obtains, then the judicial department of the government sitting to uphold and enforce the Constitution is the only one possessing a power to disregard it.
If such authority exists then in conse quence of their establishment, to compel obedience to law and enforce justice, Courts possess the right to inflict the very wrongs which they were created to prevent:" Hovey vs Elliott(3).
(4) "It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his say in Court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard.
Judgment without such citation and opportunity wants all the attributes of a judicial determi nation; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered:" Gatpin vs Page(4).
Thus, in America, the word "law" does not mean merely State made law or law enacted by the State and does not exclude certain fundamental principles of (1) ; (3) ; at page 417.
(2) (4) 163 justice which inhere in every civilized system of law and which are at the root of it.
The result of the numerous decisions in America has been summed up by Professor Willis in his book on "Constitutional Law" at page 662, in the statement that the essentials of due process are: (1) no tice, (2) opportunity to be heard, (3) an impartial tribu nal, and (4) orderly course of procedure.
It is pointed out by the learned author that these essentials may assume different forms in different circumstances, and so long as they are conceded in principle, the requirement of law will be fulfilled.
For example, a person cannot require any particular form or method of hearing, but all that he can require is a reasonable opportunity to be heard.
Similarly, an impartial tribunal does not necessarily mean a judicial tribunal in every case.
So far as 'orderly course of proce dure is concerned, he explains that it does not require a 'Court to strictly weigh the ,evidence but it does require it to examine the entire record to ascertain the issues, to discover whether there are facts not reported and to see whether or not the law has been correctly applied to facts.
The view expressed by other writers is practically the same as that expressed by Professor Willis, though some of them do not expressly refer to the fourth element, viz., orderly course of procedure.
The real point however is that these four elements are really different aspects of the same right, viz., the right to be heard before one is condemned.
So far as this right is concerned, judicial opinion in England appears to be the same as that in America.
In Eng land, it would shock one to be told that a man can be de prived of his personal liberty without a fair trial or hearing.
Such a case can happen if the Parliament expressly takes away the right in question in an emergency as the British Parliament did during// the last two world wars in a limited number of cases.
I will refer here to a few cases which show that the fundamental principle that a person whose right is affected must be heard has been observed not only in cases involving personal liberty but also 'in proceedings affecting other rights, even though they may have 164 come before administrative or quasi judicial tribunals.
Cooper vs The Wadsworth Board of Works (1)was a case under an Act which empowered the District Board to alter or demol ish a house where the builder had neglected to give notice of his intention.
seven days before proceeding to lay or dig the foundation.
Acting upon this power, the Board directed the demolition of a building without notice to the builder, but this was held to be illegal.
Byles 5.
in dealing with the matter observed as follows : "I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punish ment as well as the remedy.
That being so, a long course of decisions, beginning with Dr. Bentley 's case, and ending with some very recent cases, establish that although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.
The judgment of Mr. Justice Fortescue, in Dr. Bentley 's case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present.
He says, "The. objection for want of notice can never be got over.
The laws of God and man both give the party an opportunity to make his defence, if he has any.
" In the same case Erie C.J. observed : "It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard, is limited to a judicial proceeding.
I do not quite agree with that; . the law, I think, has been applied to many exercises of power which in common under standing would not be at all more a judicial proceeding than would be the act of the District Board in ordering a house to be pulled down." The observations made by Erie C.J. were quoted and applied by Sir Robert Collier in Smith vs The ' Queen (2), and the observations of Lord Campbell in Regina vs The Archbishop of Canterbury (3) were to the. same effect.
(1) ; (2) 3 A.C. 614.
(3) 1E.& E. 559.
165 A similar opinion was expressed by Sir GeorgeJessel in Fisher vs Keane (1), Labouchere vs Earl of Wharncliffe (2), and Russell vs Russell (3).
In the last mentioned case, he observed as follows : "It [Wood vs Woad (4)] contains a very valuable state ment by the Lord Chief Baron as to his view of the mode of administering justice by persons other than Judges who have judicial functions to perform which I should have been very glad to have had before me on both those club cases that I recently heard, namely, the case of Fisher vs Keane and the case of Labouchere vs Earl of Wharncliffe.
The passage I mean is this, referring to a committee: 'They are bound in the exercise of their functions by the rule expressed in the maxim "audi alteram partem," that no man should be condemned to consequences without having the opportunity of making his defence.
This rule is not confined to the con duct of strictly legal ' tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals '.
" This opinion was quoted with approval by Lord Macnaghten in Lapointe vs L 'Association etc.
de Montreal (5).
In that case, on an application for pension by the appellant, who had been obliged to resign, the Board of Directors, without any judicial inquiry into the circumstances, resolved to refuse the claim on the ground that he was obliged to tender his resignation.
This procedure was condemned by Lord Macnaghten as being "contrary to rules of society and above all contrary to the elementary principles of justice.
" These observations of Lord Macnaghten were referred to and relied on in The King vs Tribunal of Appeal under the Hous ing Act, 1919 (6).
In that case, a company proposed to build a picture house and the local authority having prohibited 'the building, the company appealed under the Housing (1) H. Ch. D. 353.
(4) [1874] L.R. 9 exhibit 190.
(2) 13 Oh. D. 346.
(5) (3) (6) 166 (Additional Powers) Act, 1919, which contained a provision that an appeal could in certain cases be properly determined without a hearing and that the appellate Court could dis pense with the hearing and determine the appeal summarily.
It was held that the meaning of rule 7 was that the tribunal on appeal might dispense with an oral hearing, not that they might dispense with a hearing of any kind, and that they were bound to give the appellants a hearing in the sense of an opportunity to make out a case.
The Earl of Reading in delivering the judgment observed: "The principle of law applicable to such a case is well stated by Kelly C.B. in Wood vs Woad in a passage which is cited with approval by Lord Macnaghten in Lapointe vs L ' Association etc.
de Montreal . " In Local Government Board vs Arlidge(1), the Local Government dismissed an appeal by a person against whom a closing order had been made under Housing, Town Planning, &c. Act, without an oral hearing and without being allowed to see the report made by the Board 's Inspector upon 'public local inquiry.
The House of Lords did not interfere with the order on the ground that the appeal had been dealt with by an administrative authority whose duty was to enforce obligations on the individual in the interests of the commu nity and whose character was that of an organization with executive functions.
The principle however was conceded and lucidly set forth that when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially, and they must deal with the question referred to them without bias and must give to each of the parties an opportunity of presenting its case, and that the decision must be come to in the spirit and with the sense of respon sibility of a tribunal whose duty it is to mete out justice.
Commenting upon this case, which is generally regarded as an extreme case, Mr. Gavin Simonds, who afterwards became a member of the House of Lords observes : (1) [1915] A.C.120.
167 "I think you would agree that if the subjectmatter of such proceedings as arc here indicated was the liberty of the subject, or indeed his life, you would regard such a judicial procedure as outrageous.
" (See C.K. Allen 's "Law and Orders," page 167).
I have particularly referred to cases which were before administrative tribunals, because I have to deal in this case with preventive detention which is said to be an execu tive act and because I wish to point out that even before executive authorities and administrative tribunals an order cannot generally be passed affecting one 's rights without giving one such hearing as may be appropriate to the circum stances of the case.
I have only to add that Halsbury after enumerating the most important liberties which are recog nized in England, such as right of personal freedom, right to freedom of speech, right of public meeting, etc.
, adds : "It seems to me that there should be added to this list the following rights which appear to have become well estab lished the right of the subject to have any case affecting him tried in accordance with the principles of natural justice, particularly the principles that a man may not be a judge in his own cause, and that no party ought to be con demned unheard, or to have a decision given against him unless he has been given a reasonable opportunity of putting forward his case . "(Halsbury 's Laws of England, 2nd Edition, volume 6, page 392).
The question is whether the principle that no person can be condemned without a hearing by an impartial tribunal which is well recognized in all modern civilized systems of law and which Halsbury puts on a par with well recognized fundamental rights cannot be regarded as part of the law of this country.
I must confess that I find it difficult to give a negative answer to this question.
The principle being part of the British system of law and procedure which we have inherited, has been observed in this country for a very long the and is also deeply rooted in our ancient history, being the basis of the 168 panchayat system from the earliest times.
The whole of the Criminal Procedure Code, whether it deals with trial of offences or with preventive or quasiadministrative measures such as are contemplated in sections 107, 108, 109, 110 and 145, is based upon the foundation of this principle, and it is difficult to see that it has not become part of the "law of the land" and does not inhere in our system of law.
If that is so, then "procedure established by law" must include this principle, whatever else it may or may not include.
That the word "law" used in article 21 does not mean only State made law is clear from the fact that though there is no statute laying down the complete procedure to be adopted in contempt of Court cases, when the contempt is not within the view of the Court, yet such procedure as now prevails in these cases is part of our law.
The statute law which regulates the procedure of trials and enquiries in criminal cases does not specifically provide for arguments in certain cases, but it has always been held that no decision should be pronounced without hearing arguments.
In a number of cases, it has been held that though there may be no specific provision for notice in the statute, the provision must be read into the law.
I am aware that some Judges have ex pressed a strong dislike for the expression "natural jus tice" on the ground that it is too vague and elastic, but where there are well known principles with no vagueness about them, which all systems of law have respected and recognized, they cannot be discarded merely because they are in the ultimate analysis found to be based on natural jus tice.
That the expression "natural justice" is not unknown to our law is apparent from the fact that the Privy Council has in many criminal appeals from this country laid down that it shall exercise its power of interference with the course of criminal justice in this country when there has been a breach of principles of natural justice or departure from the requirements of justice.
[See In re Abraham Mallory Dillet (1), Taba Singh vs King Emperor C), George Gfeller vs The (1) 12 A.C. 459.
(2) I.L.R. 48 Born.
515. 169 King(1), and Bugga and others vs Emperor(2).
In the present case, there is no vagueness about the right claimed which is the right to have one 's guilt or innocence considered by an impartial body and that right must be read into the words of article 21.
Article 21 purports to protect life and person al liberty, and it would be a precarious protection and a protection not worth having, if the elementary principle of law under discussion which, according to Halsbury is on a par with fundamental rights, is to be ignored and excluded.
In the course of his arguments, the learned counsel for the petitioner repeatedly asked whether the Constitution would permit a law being enacted, abolishing the mode of trial permitted by the existing law and establishing the procedure of trial by battle or trial by ordeal which was in vogue in olden times in England.
The question envisages something which is not likely to happen, but it does raise a legal problem which can perhaps be met only in tiffs way that if the expression "procedure established by law" simply means any procedure established or enacted by statute it will be difficult to give a negative answer to the question, but ii the word "law" includes what I have endeavoured to show it does, such an answer may be justified.
It seems to me that there is nothing revolutionary in the doctrine that the words "procedure established by law" must include the four principles set out in Professor Willis ' book, which, as I have already stated, are different aspects of the same principle and which have no vagueness or uncertainty about them.
These principles, as the learned author points out and as the authorities show, are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits.
I have only to add that it has not been seriously controverted that "law" in this article means valid law and "procedure" means certain definite rules of proceeding and not something which is a mere pretence for procedure.
I will now proceed to examine article 22 of the Consti tution which specifically deals with the subject (1) A.I.R. 1943P.C. 211.
(2) A.I.R. 1919P. C. 108.
170 of preventive detention.
The first point to be noted in regard to this article is that it does not exclude the operation of articles 19 and 21, and it must be read subject to those two articles, in the same way as articles 19 and 21 must be read subject to article 22.
The correct position is that article 22 must prevail in so far as there are specific provisions therein regarding preventive detention, but, where there are no such provisions in that article, the operation of articles 19 and 21 cannot be excluded.
The mere fact that different aspects of the same right have been dealt with in three different articles will not make them mutually exclusive except to the extent I have indicated.
I will now proceed to analyse the article and deal with its main provisions.
In my opinion, the main provisions of this article are : (1) that no person can be detained beyond three months without the report of an advisory board [clause 4 (a) ]; (2) that the Parliament may prescribe the circumstances and the class or classes of cases in which a person may be detained for more than three months without obtaining the opinion of an advisory board [clause 7 (a)]; (3) that when a person is preventively detained, the author ity making the order of detention shall communicate to such person the grounds on which the order is made and shall afford him the earliest opportunity of making a representa tion against the order [clause (5) ]; and (4) that the Parliament may prescribe the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention [clause 7 (b) ].
The last point does not require any consideration in this case, but the first three points do require considera tion.
In connection with the first point, the question arises as to the exact meaning of the words "such detention" occur ring in the end of clause 4 (a).
Two alternative interpre tations were put forward: (1) "such detention" means preven tive detention; (2) "such detention" means detention for a period longer than three months.
If the first interpreta tion is correct, then the function of the advisory board would be to go into the merits of the case of each person and simply 171 report whether there was sufficient cause for his detention.
According to the other interpretation, the function of the advisory board will be to report to the government whether there is sufficient cause for the person being detained for more than three months.
On the whole, I am inclined to agree with the second interpretation.
Prima facie, it is a seri ous matter to detain a person for a long period (more than three months) without any enquiry or trial.
But article 22 (4) (a) provides that such detention may be ordered on the report of the advisory board.
Since the report must be directly connected with the object for which it is required, the safeguard provided by the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is not to apply its mind to the vital ques tion before the government, namely, whether prolonged deten tion (detention for more than three ' months) is justified or not.
Under article 22 (4) (a), the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty ninth day.
It would be some what farcical to provide, that after a man has been detained for eighty nine days, an advisory board is to say whether ' his initial detention was justified.
On the other hand, the determination of the question whether prolonged detention (detention for more than three months)is justified must necessarily involve the determination of the question wheth er the detention was justified at all, and such an interpre tation only can give real meaning and effectiveness to the provision.
The provision being in the nature of a protection or safeguard, I must naturally lean towards the interpreta tion which is favourable to the subject and which is also in accord with the object in view.
The next question which we have to discuss relates to the meaning and scope of article 22 (7)(a) which runs as follows: "Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining 172 the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4).
" The question is what is meant by "circumstances" ' and "class or classes of cases" used in this provision.
This question has arisen because of the way in which these ex pressions appear to have been interpreted and applied in the Act of Parliament with which we are concerned.
As the matter is important and somewhat complicated, I shall try to express my meaning as clearly as possible even at the risk of some repetition, and, in doing so, I must necessarily refer to the impugned Act as well as Lists I and III of the Seventh Schedule of the Constitution, under which Parliament had jurisdiction to enact it.
Item 9 of List I Union List shows that the Parliament has power to legislate on preventive detention for reasons connected with (1) defence, (2) foreign affairs, and (3) security of India.
Under List III Concurrent List the appropriate item is item 3 which shows that law as to preventive detention can be made for reasons connected with (1) the security of the State, (2) the maintenance of public order, and (3) the maintenance of supplies and services essential to the community.
The impugned Act refers to all the subjects mentioned in Lists I and III in regard to which law of preventive detention can be made.
Section 3 (1)of the Act, the substance of which has already been mentioned, is important, and I shall reproduce it verbatim.
"The Central Government or the State Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essen tial to the community, or 173 (b) if satisfied with respect to any person who is a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
" It will be noticed that all the subjects of legislation concerning preventive detention occurring in item of List I are grouped in sub clause (1) of clause (a).
The subjects in this group are three in number and, for convenience of reference, I shall hereafter refer to them as A, B and C.
In sub .clause (ii), we find grouped two of the matters referred to in item 3 of List III, these being security of the State and the maintenance of public order.
These two subjects, I shall refer to as D and E.
In sub clause (iii), reference has been made to the third matter in item 3 of List III, and I shall refer to this subject as F. With this classification, let us now turn to the Constitution itself.
On reading articles 22 (4) and 22 (7) together, it would be clear that so long as article 22 (4) (a) holds the field and Parliament does not act under clause (7) (a) of article 22, there must be an advisory board in every case, i.e., if the legislation relates to groups A to F, as it does here, there must be an advisory board for all these groups.
Article 22 (7) however practically engrafts an excep tion.
It states in substance that the Parliament may by an Act provide for preventive detention for more than three months without reference to an advisory board, but in such cases it shall be incumbent on the Parliament to prescribe (1) the circumstances and (2) the class or classes of cases in which such course is found to be necessary.
If the case contemplated in clause (4)(a)is the rule and that contem plated 'in clause (7) (a) is the exception, then the circum stances and the class or classes of cases must be of a special or extraordinary nature, so as to take the case out of the rule and bring it within the exception.
It is always 174 possible to draw the line between the normal or ordinary and the abnormal or extraordinary cases.
and this is what, in my opinion, the Parliament was expected to do under clause (7) (a).
I do not think that it was ever intended that Parliament could at its will treat the normal as the abnor mal or 'the rule as the exception.
But this is precisely what has been done in this case All the items on which preventive legislation is possible excepting one, i.e., A to E, have been put within the exception, and only one, F, which relates to maintenance of supplies and services essen tial to the community, has been allowed to remain under the rule.
In other words, it is provided that there shall be an advisory board only for the last category, F, but no provi sion having been made for the other categories, A to E, it may be assumed that the advisory board has been dispensed with in those cases.
The learned Attorney General maintained that it would have been open to the Parliament to dispense with the advisory board even for the category F, and if such a course had been adopted it would not have affected the validity of the Act.
This is undoubtedly a logical position in the sense that it was necessary for him to go as far as this to justify his stand; but, in my opinion, the course adopted by the Parliament in enacting section 12 of the impugned Act is not what is contemplated under article 22 (7) (a) or is permitted by it.
The circumstances to be prescribed must be special and extraordinary circumstances and the class or classes of cases must be of the same na ture.
In my opinion, the Constitution never contemplated that the Parliament should mechanically reproduce all or most of the categories A to F almost verbatim and not apply its mind to decide in what circumstances and in what class or classes of cases the safeguard of an advisory board is to be dispensed with.
I may state here that two views are put forward before us as to how clauses (4) (a) and 7 (a) of article 22 are to be read: (1) that clause (4) (a) lays down the rule that in all cases where detention for more than three months is ordered, it should be done in consultation with and on the report of the advisory 175 board, and clause (7) (a) lays down an exception to this rule by providing that Parliament may pass an Act permitting detention for more than three months without reference to an advisory board; (2) that clauses (4)(a) and (7) (a) are independent clauses making two separate and alternative provisions regarding detention for more than three months, in one case on the report of an advisory board and in other case without reference to an advisory board.
Looking at the substance and not merely at the words, I am inclined to hold that clause (7) (a) practically engrafts an exception on the rule that preventive detention for more than three months can be ordered only on the report of an advisory board, and so far I have proceeded on that footing.
But it seems to me that it will make no difference to the ulti mate conclusion, whichever of the two views we may adopt.
Even on the latter view, it must be recognized that the law which the Constitution enables the Parliament to make under article 22 (7) (a) would be an exceptionally drastic law, and, on the principle that an exceptionally drastic law must be intended for an exceptional situation, every word of what I have said so far must stand.
Clause (7) (a) is only an enabling provision, and it takes care to provide that the Parliament cannot go to the extreme limit to which it is permitted to go without prescribing the class or classes cases and the circumstances to which the extreme law would be applicable.
It follows that the class or classes of cases and the circumstances must be of a special nature to require such legislation.
It was urged that the word "and" which occurs between "circumstances" and "class or classes of cases" is used in a disjunctive sense and should be read as "or," and by way of illustration it was mentioned that when it is said that a person may do this and that, it means that he is at liberty to do either this or that.
I do not think that this argu ment is sound.
I think that clause (7)(a) can be accurately paraphrased somewhat as follows : " Parliament may dispense with an advisory board, but in that case it shall prescribe the circumstances and the class or 23 176 classes of cases . . "If this is the meaning, then ' 'and" must be read as "and" and not as "or"; and "may" must be read as "shall.
" Supposing it was said that Parliament may prescribe the time and place for the doing of a thing, then can it be suggested that both time and place should not be prescribed ? It seems obvious to me that the class or classes of cases must have some reference to the persons to be detained or to their activities and movements or to both. "Circumstances" on the other hand refer to something extra neous, such as surroundings, background, prevailing condi tions, etc., which might prove a fertile field for the dangerous activities of dangerous persons.
Therefore the provision clearly means that both the circumstances and the class or classes of cases (which are two different expres sions with different meanings and connotations and cannot be regarded as synonymous) should be prescribed, and prescrip tion of one without prescribing the other will not be enough.
As I have already stated, such law as can be enact ed under article 22 (7) (a) must involve, by reason of the extreme limit to which it can go, serious consequences to the persons detained.
It will mean (1) prolonged detention, i.e., detention for a period longer than three months, and (2) deprivation of the safeguard of an advisory board.
Hence article 22 (7) (a) which purports to be a protective provi sion will cease to serve its object unless it is given a reasonable interpretation.
To my mind, what it contemplates is that the law in question must not be too general but its scope should be limited by prescribing both the class or classes of cases and the circumstances.
It was contended that the expression "class or classes of cases" is wide enough to enable the Parliament to treat any of the categories mentioned in Lists I and III, items 9 and 3 respectively, (i.e., any of the categories A to F) as constituting a class.
At first sight, it seemed to me to be a plausible argument,, but the more I think about it the more unsound it appears to me.
The chief thing to be remem bered is what I have already emphasized more than once, viz., that a special or extreme type of law must be limited to special classes of cases and circumstances.
Under the 177 Constitution, the Parliament has to prescribe "the class or classes," acting within the limits of the power granted to it under Lists I and III.
The class or classes must be its own prescription and must be so conceived as to justify by their contents the removal of an important safeguard provid ed by the Constitution.
Prescribing is more than a mere mechanical process.
It involves a mental effort to select and adapt the thing prescribed to the object for which it has to be prescribed.
We find here that what is to be prescribed is "class or classes" (and also "circumstances ").
We also find that what the law intends to provide is prolonged detention (by which words I shall hereafter mean detention for more than three months) and elimination of the advisory board.
The class or classes to be prescribed must therefore have a direct bearing on these matters and must be so selected and stated that any one by looking at them may say : " That is the reason why the law has prescribed prolonged detention without reference to an advisory board.
" In other words, there must be something to make the class or classes prescribed fit in with an extreme type of legisla tion some element of exceptional gravity or menace, which cannot be easily and immediately overcome and therefore necessitates prolonged detention; and there must be some thing to show that reference to an advisory board would be an undesirable and cumbersome process and wholly unsuitable for the exceptional situation to which the law applies.
Perhaps a simple illustration may make the position still clearer.
Under the Lists, one of the subjects on which Parliament may make a law of preventive detention is "matter connected with the maintenance of public order.
" The Act simply repeats this phraseology and states in sec tion 3: "with a view to preventing him (the person to be detained) from acting in a manner prejudicial to the main tenance of public order.
" This may be all right for section 3, but section 12 must go further.
An act prejudicial to.
the maintenance of public order may be an ordinary act or it may be an act of special gravity.
I think that article 22 (7)(a) contemplates that the graver and 178 more heinous types of acts falling within the category of acts prejudicial to the maintenance of public order (or other heads) should be prescribed so as to define and cir cumscribe the area of an exceptional piece of legislation.
That some kind of sub classification (if I may be per mitted to use this word) of the categories A to F was possi ble can be illustrated by reference to regulation 18 ]3 of the British Defence of the Realm Regulations.
This regula tion was made under an Act of 1039 which authorized "the making of regulations for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of public safety or the defence of the realm.
" The two matters "public safety" and "defence of the realm" are analogous to some of the heads stated in Lists I and III.
It will be instructive to note that under these two heads, regulation 18 B has set forth several subheads or class or classes of cases in which preventive detention could be ordered.
These classes are much more specific than what we find in section a of the impugned Act and therefore there is less chance of misuse by the executive of the power to order preventive detention.
The classes set out are these : (1) If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associa tions, (2) if the Secretary of State has reasonable cause to believe any person to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts, (3) if the Secretary of State has reasonable cause to believe any person to have been or to be a member of, or to have been or to be active in the furtherance of the objects of, any such organization as is hereinafter mentioned . (a) the organization is subject to foreign influence or control, (b) the persons in control of the organization have or have had associations with, persons concerned in the government of, or sympathies with the system of government of, any Power with which His Majesty is at war, and in either case there is danger of the utilization of the organization for pur poses prejudicial to the public safety, etc., (4) if the Secretary of State has reasonable cause to believe that the recent conduct of any person for the time being in an area or any words recently written or spoken by such a person expressing sympathy with the enemy, indicates or indicate that person is likely to assist the enemy.
I have only to point out that the scope within which preventive detention can be legislat ed upon in this country is much larger than the scope indi cated in the British Act under which Regulation 18 B was framed, and therefore there is more scope for specification of the circumstances as well as the class or classes of cases under the impugned Act.
But all that has been done is that words which occur in the legislative Lists have been taken and transferred into the Act.
What I have stated with regard to class or classes of cases also applies to the circumstances which are also to be prescribed under article 22 (7) (a).
These circumstances are intended to supply the background or setting in which the dangerous activities of dangerous persons might prove specially harmful.
They must be special circumstances which demand a specially drastic measure and under which reference to an advisory board might defeat the very object of preven tive action.
The evident meaning of article 22 (7) (a) seems to be that the picture will not be complete without mentioning both the classes and the circumstances.
There was some discussion at the Bar as to what kind of circumstances might have been specified.
It is not for me to answer this question, but I apprehend that an impending rebellion or war, serious disorder in a particular area such as has induced the Punjab Government to declare certain areas as "disturbed areas," tense communal situation, prevalence of sabotage or widespread political dacoities and a variety of other matters might answer the purpose the Constitution had in view.
I will now try to sum up the result of a somewhat pro tracted discussion into which I had to enter merely to clarify the meaning of a very important provision of the Constitution which has, in my opinion, been completely misunderstood by the framers of the 180 impugned Act.
It appears to me that article 22 deals with three classes of preventive detention : (1) preventive detention for three months; (2) preventive detention for more than three months on the report of the advisory board; and (3) preventive detention for more than three months without reference to the advisory board.
If one has to find some kind of a label for these class es for a clear understanding of the subject, one may label them as "dangerous," "more dangerous" and "most danger ous.
" Now so far as the first two classes are concerned, there is nothing to be prescribed under the Constitution Apparently, the authors of the Constitution were not much concerned about class No. (1), and they thought that in so far as class No. (2) was concerned the provision that a reference to the advisory board was necessary coupled with the provision that detention was not to exceed the maximum period which may be fixed by the Parliament was enough.
But they did take care to make a special provision for class No. (3), and it is extermly important for the liberty of the subject as well as for the smooth working of the Constitu tion that this provision should not be lightly treated but should receive a well considered and reasonable construc tion.
It is elementary that the rigour of a law should correspond to or fit the gravity of the evil or danger it aims at combating, and it is also evident that the law which the Parliament has been permitted to enact under article 22 (7) (a) can, so far as rigour is concerned, go to the I farthest limit.
It follows that the law must have been intended for exceptionally grave situations and exigencies.
Hence the authors of the Constitution have made it necessary that the Parliament should put certain specifications into the Act which it is empowered to pass under article 22 (7) (a), so that by means of these specifications the necessity for enacting so drastic a law should be apparent on the face of it, and its application should be confined to the classes and circumstances specified.
The Act must prescribe (1) "c]ass or classes of cases" which are to have reference to the persons.
181 against whom the law is to operate and their activities and movements and (2) "circumstances" which would bring into prominence the conditions and the backgrounds against which dangerous activities should call for special measures.
By means of such two fold prescription, the sphere for the application of the law will be confined only to a special type of cases it will be less vague, less open to abuse and enable those who have to administer it to determine objec tively when a condition has arisen to justify the use of the power vested in them by the law.
This, in my opinion, is the true meaning and significance of article 22 (7) (a) and any attempt to whittle it down will lead to deplorable results.
Having stated my views as to the construction of article 22 (7) (a), I propose to consider at once whether section 12 of the impugned Act conforms to the requirements of that provision.
In my opinion, it does not, because it fails to prescribe either the circumstances or the class or classes of cases in the manner required by the Constitution.
It does not prescribe circumstances at all, and, though it purports to prescribe the class or classes, it does so in a manner showing that the true meaning of the provision from which the Parliament derived its power has not been grasped.
I have sufficiently dwelt on this part of the case and shall not repeat what I have already said.
But I must point out that even if it be assumed that the view advanced by the learned Attorney General is correct and it was within the competence of Parliament to treat any of the categories mentioned in items 9 and 3 of Lists I and III as constitut ing a class and to include it without any qualification or change, the impugned section cannot be saved on account of a two fold error : .
(1) the word "and" which links "class or classes" with "circumstances" in article 22 (7) (a) has been wrongly construed to mean "or ;" and (2) the distinction between "circumstances" and "class or classes" has been completely ignored and they are used as interchangeable terms.
The first error appears to me to be quite a serious one, because though the Constitution lays down two require ments and insists 182 on the prescription of circumstances as well as class or classes, it has been assumed in enacting section 12 that prescription of one of them only will be enough.
The other error is still more serious and goes to the root of the matter.
There can be no doubt that circumstances and class or classes are two different expressions and have different meanings, but the Act proceeds on the assumption that cir cumstances are identical with class or classes, as will appear from the words "any person detained in any of the following classes of cases or under any of the following circumstances" used in the section.
I have already shown how important the specification of circumstances is in legislation of such an extreme and drastic character.
There fore, to confuse "classes" with "circumstances" and to omit to mention "circumstances" at all are in my opinion grave errors.
There can, in my opinion, be no escape from the conclusion that section 12 of the Act by which a most impor tant protection or safeguard conferred on the subject by the Constitution has been taken away, is not a valid provision, since it contravenes the very provision in the Constitution under which the Parliament derived its competence to enact it.
I will now briefly deal with article 22 (5) which makes it incumbent on the authority ordering preventive deten tion to communicate to the person detained the grounds on which the order has been made and to give him the earliest opportunity of making a representation against the order.
It must be remembered that this provision is intended to afford protection to and be a safeguard in favour of a detained person, and it cannot be read as limiting any rights which he has under the law or any other provisions of the Consti tution.
If article 21 guarantees that before a person is deprived of his liberty he must be allowed an opportunity of establishing his innocence before an impartial tribunal, that right still remains.
In point of fact, there is no express exclusion of that right in the Constitution and no prohibition against constituting an impartial tribunal.
On the other hand, the right to make a representation which has 183 been granted under the Constitution, must carry with it the right to the representation being properly considered by an impartial person or persons.
There must therefore be some machinery for properly examining the cases of the detenus and coming to the conclusion that they have not been de tained without reason.
If this right had been expressly taken away by the Constitution, there would have been an end of the matter, but it has not been expressly taken away, and I am not prepared to read any implicit deprivation of such a valuable right.
The mere reference to an advisory board in article 22 (4) (a) does not, if my interpretation of the provision is correct, exclude the constitution of a proper machinery for the purpose of examining the cases of detenus on merits.
The constitution of an advisory board for the purpose of reporting whether a person should be detained for more than three months or not is a very different thing from constituting a board for the purpose of reporting whether a man should be detained for a single day.
In the view I take, all that Parliament could do under clause (7) (a) of article 22 was to dispense with an advisory board for the purpose contemplated in clause (4) (a) of that article and not to dispense with the proper machinery, by whichever name it may be called, for the purpose of examining the merits of the case of a detained person.
It was argued that article 22 is a code by itself and the whole law of preventive detention is to be found within its four corners.
I cannot however easily subscribe to this sweeping statement.
The article does provide for some mat ters of procedure, but it does not exhaustively provide for them.
It is said that it provides for notice, an opportuni ty to the detenu to represent his case, an advisory board which may deal with his case, and for the maximum period beyond which a person cannot be detained.
These points have undoubtedly been touched, but it cannot be said that they have been exhaustively treated.
The right to represent is given, but it is left to the legislature to provide the machinery for dealing with the representation.
The advisory board has been mentioned, but 24 184 it is only to safeguard detention for a period longer than three months.
There is ample latitude still left to the Parliament, and if the Parliament makes use of that latitude unreasonably, article 19 (5) may enable the Court to see whether it has transgressed the limits of reasonableness.
I will now proceed to deal with the Act in the light of the conclusions I have arrived at.
So far as section 3 of the Act is concerned, it was contended that it is most unreasonable, because it throws a citizen at the mercy of certain authorities, who may at their own will order his detention and into whose minds we cannot probe to see wheth er there is any foundation for the subjective satisfaction upon which their action is to rest.
I am however unable to accept this argument.
The administrative authorities who have to discharge their responsibilities have to come to quick decisions and must necessarily be left to act on their own judgment.
This principle is by no means unreasonable and it underlies all the preventive or quasi administrative measures which are to be found in the Criminal Procedure Code.
Under section 107 of that code, it is left to the discretion of the magistrate concerned to determine whether in his opinion there is sufficient ground for proceeding against any person who is likely to occasion a breach of the peace.
Under section 145 also, his initial action depends upon his personal satisfaction.
Therefore I do not find anything wrong or unconstitutional in section 3 of the Act.
But I must point out that it is a reasonable provision only for the first step, i.e., for arrest and initial detention, and must be followed by some procedure for testing the so called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds.
I do not also find anything radically wrong in section 7 of the Act, which makes it incumbent on the authority con cerned to communicate to a detenu the grounds on which the order has been made and to 185 afford him the earliest opportunity of making a representa tion against the order.
Section 10 which provides that the advisory board shall make its report within ten weeks from the date of the detention order is in conformity with arti cle 22 (4) (a) of the Constitution, and the only comment which one can make is that Parliament was not obliged to fix such a long period for the submission of a report and could have made it shorter in ordinary cases.
The real sections which appear to me to offend the Constitution are sections 12 and 14.
I have already dealt with the principal objec tion to section 12, while discussing the provisions of article 22 (7) (a) and I am of the opinion that section 12 does not conform to the provisions of the Constitution and is therefore ultra vires.
I also think that even if it be held that it technically complies with the requirements of article 22 (7) (a), Parliament has acted unreasonably in exercising its discretionary power without applying its mind to essential matters and thus depriving the detenus of the safeguard of an advisory board which the Constitution has provided in normal cases.
So far as section 14 is con cerned, all my colleagues have held it to be ultra vires, and, as I agree with the views expressed by them, I do not wish to encumber my judgment by repeating in my own words what has been said so clearly and so well by them.
Section 14 may be severable from the other provi sions of the Act and it may not be possible to grant any relief to the petitioner on the ground that section 14 is invalid.
But I think that section 12 goes to the very root of the legislation inasmuch as it deprives a detenu of an essential safeguard, and in my opinion the petitioner is entitled to a writ of habeas corpus on the ground that an essential provision of the Constitution has not been com plied with.
This writ will of course be without prejudice to any action which the authorities may have taken or may hereafter take against the petitioner under the penal law I have to add this qualification because there were allega tions of his being involved in some criminal cases but the actual facts were not clearly brought out before us.
186 I have only to add a few concluding remarks to my judg ment.
In studying the provisions of the impugned Act, I could not help instituting a comparison in my own mind between it and similar legislation in England during the last two world wars.
I could not also help noticing that the impugned Act purports to be a peacetime Act, whereas the legislation to which I have referred was enacted during the war.
During the first war as well as the second, a number of persons were detained and a number of cases were brought to Court in connection with their detention, but the two lead ing cases which will be quoted again and again are Rex vs Halliday (1) and Liversidge vs Sir John Anderson(2).
We are aware that in America certain standards which do not conform to ordinary and normal law have been applied by the Judges during the period of the war and sometimes they are compen dionsly referred to as being included in "war power.
" The two English cases to which I have referred also illustrate the same principle, as will appear from two short extracts which I wish to reproduce.
In Rex vs Halliday (3), Lord Atkinson observed as follows : " However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the ' war, or escape from national plunder or enslavement.
" In Liversidge vs Sir John Anderson (4), Lord Macmillan struck the same note in these words : "The liberty which we so 'justly extol is itself the gift of the law and as Magna Charta recognizes may by the law be forfeited or abridged.
At a time when it is the undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country 's cause it may well be no matter for surprise that there should be confided to the Secretary of State a discretionary power of enforcing the relatively mild precaution of detention.
" (1) [1917] A.C.260.
(3) ; 271. ; (4) ; at p. 257. 187 These passages represent the majority view in the two cases, but the very elaborate judgments of Lord Shaw in Rex vs Halliday and that of Lord Atkin in Liversidge vs Sir John Anderson show that there.
was room for difference of opinion as well as for a more dispassionate treatment of the case and the points involved in it.
It is difficult to say that there is not a good substratum of sound law in the celebrat ed dictum of Lord Atkin that even amidst the clash of arms the laws are not silent and that they speak the same lan guage in war as in peace.
However that may be, what I find is that in the regulations made in England during the first war as well as the second war there was an elaborate provi sion for an advisory board in all cases without any excep tion, which provided a wartime safeguard for persons de prived of their liberty.
There was also a provision in the Act of 1939 that the Secretary of State should report at least once in every month as to the action taken under the regulation including the number of persons detained under orders made thereunder.
I find that these reports were printed and made available to the public.
I also find that the Secretary of State stated in the House of Commons on the 28th January, 1943, that the general order would be to allow British subjects detained under the Regulation to have consultations with their legal advisers out of the hearing of an officer.
This order applied to consultations with barristers and solicitors but not to cases where solicitors sent to interview a detained person a clerk who was not an officer of the High Court.
The impugned Act suffers in com parison, on account of want of such provisions, though, so far as I can see, no great harm was likely to have been caused by setting up a machinery composed of either adminis trative or judicial authorities for examining the cases of detained persons so as to satisfy the essentials of fairness and justice.
The Act also suffers in comparison with some of the later Provincial Acts in which the safeguard of an advisory board is , expressly provided for.
I find that there is a provision in section 12 (2) of the Act for the review of the cases of detenus after six months, but this is quite different 188 from examining the merits of the case.
The object of such a review is obviously to find out whether by reason of any change in the circumstances, a review of the original order is required.
I hope that in pointing out the shortcomings of the Act I will not be misunderstood.
I am aware that both in Eng land and in America and also in many other countries, there has been a reorientation of the old notions of individual freedom which is gradually yielding to social control in many matters.
I also realize that those who run the State have very onerous responsibilities, and it is not correct to say that emergent conditions have altogether disappeared from this country.
Granting then that private rights must often be subordinated to the public good, is it not essen tial in a free community to strike a just balance in the matter ? That a person should be deprived of his personal liberty without a trial is a serious matter, but the needs of society may demand it and the individual may often have to yield to those needs.
Still the balance between the maintenance of individual rights and public good can be struck only if the person who is deprived of his liberty is allowed a fair chance to establish his innocence, and I do not see how the establishment of an appropriate machinery giving him such a chance can be an impediment to good and just government.
PATANJALI SASTRI J. This is an application under arti cle 32 of the Constitution of India for releasing the petitioner from detention in jail without trial under directions purporting to be issued by the Government of Madras under the , and it has the distinction of being the first application invoking the guaranteed protection of this Court as the guardian of Fundamental Rights against alleged infringement of the petitioner 's right to freedom of movement.
As the case involved issues of great public importance and breaking of new ground it was argued with thoroughness and ability on both sides, reference being made to more or less analogous provisions of the Constitutions of 189 other countries and in particular the Constitution of the United States of America.
The petitioner had been under detention previously under orders passed by the said Government under the Madras Main tenance of Public Order Act, 1947, but as the validity of that Act and all other similar local public safety enact ments had been questioned in some of the High Courts in India after the new Constitution came into force, the Par liament enacted a comprehensive measure called the Preven tive Detention Act, 1950, (hereinafter referred to as the impugned Act) extending to the whole of India with a certain exception not material here.
The Act came into force on 25th February 1950, and, on the 27th February, the Government of Madras, in purported exercise of the powers conferred by the impugned Act and in supersession of earlier orders, directed the detention of the petitioner, and the order was served on him on 1st March.
The petitioner contends that the impugned Act and in particular sections 3, 7, 10, 11, 19,, 13 and 14 thereof take away or abridge the fundamental right to freedom of movement in contravention of article 13 (2) of the Constitu tion and is, therefore, void as declared therein.
Article 13 is one of a fasciculus of articles which are comprised in part III of the Indian Constitution headed "Fundamental Rights.
" This Part forms a new feature of the Constitution and is the Indian "Bill of Rights.
" It is modelled on the first ten Amendments of the American Con stitution which declare the fundamental rights of the American citizen.
Article 12, which is the first article in this Part, defines "the State" as including the Governments and Legislatures of the Union and the States as well as all local and other authorities against which the fundamental rights are enforceable, and article 13 (1) declares that all existing laws inconsistent with the provisions of Part III shall, to the extent of the inconsistency, be void.
Clause (2) of the article, on which the petitioner 's con tention is primarily founded reads as follows: 190 "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
" As the constitutional inhibition against deprivation or abridgement relates only to "the rights conferred by this Part," it is necessary first to ascertain the nature and extent of the right which, according to the petitioner, Part III has conferred on him, and, secondly, to determine wheth er the right so ascertained has been taken away or abridged by the impugned Act or by any of its provisions.
The first question turns on the proper interpretation of the relevant articles of the Constitution, and the second involves the consideration of the provisions of the impugned Act.
Mr. Nambiar appearing for the petitioner advanced three main lines of argument.
In the first place, the right to move freely throughout the territory of India referred to in article 19 (1)(d) is of the very essence of personal liber ty, and inasmuch as the detention authorised by the impugned Act was not a "reasonable restriction" which Parliament could validly impose on such right under clause (5) of the article, the impugned Act is void.
Alternatively, the petitioner had a fundamental right under article 21 not to be deprived of his personal liberty except according to procedure established by law, and the impugned Act by autho rising detention otherwise than in accordance with proper procedure took away that right and was therefore void.
And, lastly, the provisions of the impugned Act already re ferred to were ultra vires and inoperative as Parliament in enacting them has overstepped the ]imitations placed on its legislative power by article 22 clauses (4) to (7).
Accordingly, the first question for consideration is whether article 19 (1) (d) and (5) is applicable to the present case.
"Liberty," says John Stuart Mill, "consists in doing what one desires.
But the liberty ' of the individual must be thus far limited he must not make him self a nuisance to others.
" Man, as a rational being, desires to do many things, but in a civil society his de sires have to be controlled, regulated 191 and reconciled with the exercise of similar desires.
by other individuals.
Liberty has, therefore, to be limited in order to be effectively possessed.
Accordingly, article 19, while guaranteeing some of the most valued phases or elements of liberty to every citizen as civil1 rights, pro vides for their regulation for the common good by the State imposing certain "restrictions" on their exercise.
The power of locomotion is no doubt an essential element of personal liberty which means freedom from bodily restraint, and detention in jail is a drastic invasion of that liberty.
But the question is: Does article 19, in its setting in Part III of the Constitution, deal with the deprivation of per sonal liberty in the sense of incarceration ? Sub clause (d) of clause (1) does not refer to freedom of movement simplic iter but guarantees the right to move freely "throughout the territory of India." Sub clause (e) similarly guaran tees the right to reside and settle in any part of the territory of India.
And clause (5) authorises the imposi tion of "reasonable restrictions" on these rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
Reading these provisions together, it is reasonably clear that they were designed primarily to emphasise the factual unity of the territory of India and to secure the right of a free citizen to move from one place in India to another and to reside and settle in any part of India unhampered by any barriers which nar row minded provincialism may seek to interpose.
The use of the word "restrictions" in the various sub clauses seems to imply, in the context, that the rights guaranteed by the article are still capable of being exercised, and to exclude the idea of incarceration though the words "restriction" and "deprivation" are sometimes used as interchangeable terms, as restriction may reach a point where it may well amount to deprivation.
Read as a whole and viewed in its setting among the group of provisions (articles 19 22) relating to "Right to Freedom," article 19 seems to my mind to pre suppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum 192 of personal freedom on which alone the enjoyment of these rights necessarily rests.
It was said that subclause (f) would militate against this view, as the enjoyment of the right "to acquire, hold and dispose of property" does not depend upon the owner retaining his personal freedom.
This assumption is obviously wrong as regards moveable proper ties, and even as regards immoveables he could not acquire or dispose of them from behind the prison bars; nor could he "hold" them in the sense of exercising rights of possession and control over them which is what the word seems to mean in the context.
But where, as a penalty for committing a crime or otherwise, the citizen is lawfully deprived of his freedom, there could no longer be any ques tion of his exercising or enforcing the rights referred to in clause (1).
Deprivation of personal liberty in such a situation is not, in my opinion, within the purview of article 19 at all but is dealt with by the succeeding arti cles 20 and 21.
In other words, article 19 guarantees to the citizens the enjoyment of certain civil liberties while they are free, while articles 20 22 secure to all persons citizens and non citizens certain constitutional guarantees in regard to punishment and prevention of crime.
Different criteria are provided by which to measure legisla tive judgments in the two fields, and a construction which would bring within article 19 imprisonment in punishment of a crime committed or in prevention of a crime threatened would, as it seems to me, make a reductio ad absurdum of that provision.
If imprisonment were to be regarded as a "restriction" of the right mentioned in article 19 (1)(d), it would equally be a restriction on the rights mentioned by the other subclauses of clause (1), with the result that all penal laws providing for imprisonment as a mode of punish ment would have to run the gauntlet of clauses (2) to (6) before their validity could be accepted.
For instance,the law which imprisons for theft would, on that view, fall to be justified under clause (2) as a law sanctioning restric tion of freedom of speech and expression.
Indeed, a Divi sion Bench of the Allahabad High Court,in a recent unreport ed decision brought to our notice 193 applied the test of undermining the security of the State or tending to overthrow it in determining the validity or otherwise of the impugned Act.
The learned Judges construed article 19 as covering cases of deprivation of personal liberty and held, logically enough, that inasmuch as the impugned Act, by authorising preventive detention, infringed the right to freedom of speech and expression, its validity should be judged by the reservations in clause (2), and, as it failed to stand that test, it was unconstitutional and void.
Mr. Nambiar did not seek to go so far.
He drew a dis tinction between the right conferred by sub clause (d) and those conferred by the other sub clauses.
He urged, refer ring to Blackstone 's Commentaries, that personal liberty consisted "in moving one 's person to whatever place one 's inclination might direct," and that any law which de prived a person of such power of locomotion was a direct invasion of the right mentioned in sub clause (d), whereas it inter fered only indirectly and consequentially with the rights mentioned in the other sub Clauses.
There is no substance in the distinction suggested.
It would be illogi cal, in construing article 19, to attribute to one of the sub clauses a scope and effect totally different from the scope and effect of the others or to draw a distinc . tion between one right and another in the group.
All the rights mentioned in clause (1) are equally essential elements in the liberty of the individual in any civilised and democrat ic community, and imprison, ment operates as an extinction of all of them alike.
It cannot, therefore, be said that deprivation of personal liberty is an infringement of the right conferred by sub clause (d) alone but not of the others.
The learned Judges of the Allahabad High Court realised this and were perfectly logical in holding that the constitutional validity of a law providing for deprivation of personal liberty or imprisonment must be judged by the tests laid down not only in clause (5) of article 19 but also in the other clauses including clause (2), though their major premise that deprivation of personal liberty was a "restriction" within the meaning of article 19 is, in my judgment, erroneous.
194 It was said that preventive detention being a drasic re striction of the right to move freely was, in its pith and substance," within article 19 (1) (d) read with clause (5) and not within article 21 which deals with crime and its punishment and prevention.
There is no room here, in my opinion, for the application of the rule of "pith and sub stance.
" As pointed out by the Privy Council in Prafulla Kumar Mukherjee vs The Bank of Commerce Ltd., Khulna (1), approving the observations of the Federal Court in Subrah manyam Chettiar vs Muttuswamy Goundan (2), the rule was evolved by the Board for determining whether an impugned statute was, in its true character, legislation with respect to matters within the jurisdiction of one legislature or another in a scheme of divided legislative power.
No such question arises here.
What the Court has to ascertain is the true scope and meaning of article 19 in the context of Part III of the Constitution, in order to decide whether depriva tion of personal liberty falls within that article, and the pith and substance rule will be more misleading than helpful in the decision of that issue.
Article 19, as I have already indicated, guarantees protection for the more important civil liberties of citizens who are in the enjoyment of their freedom, while at the same time laying down the re strictions which the legislature may properly impose on the exercise of such rights, and it has nothing to do with deprivation of personal liberty or imprisonment which is dealt with by the succeeding three articles.
There is also another consideration which points to the same conclusion.
The ]Drafting Committee of the Constituent Assembly, to whose Report reference was freely made by both sides during the argument, recommended "that the word liber ty should be qualified by the insertion of the word 'person al ' before it, for otherwise it might be construed very widely so as to include even the freedoms already dealt with in article 13" (now article 19).
The acceptance of this suggestion shows that whatever may be the generally accepted (1) 74 I.A. 23.
(2) [1940] F.C.E. 188.
195 connotation of the expression "personal liberty," it was used in article 21 in a sense which excludes the freedoms dealt with in article 19, that is to say, personal liberty in the context of Part III of the Constitution is something distinct from the freedom to move freely throughout the territory of India.
It was further submitted that article 19 declared the substantive rights of personal liberty while article 21 provided the procedural safeguard against their deprivation.
This view of the correlation between the two articles has found favour with some of the Judges in the High Courts which have had occasion to consider the constitutional validity of the impugned Act.
It is, however, to be ob served that article 19 confers the rights therein specified only on the citizens of India, while article 21 extends the protection of life and personal liberty to all persons citizens and noncitizens alike.
Thus, the two articles do not operate in a conterminous field, and this is one reason for rejecting the correlation suggested.
Again, if article 21 is to be understood as providing only proce dural safeguards, where is the substantive right to personal liberty of non citizens to be found in the Constitution ? Are they denied such right altogether ? If they are to have no right of personal liberty, why is the proce dural safeguard in article 21 exended to them ? And where is that most fundamental right of all, the right to life, provided for in the Constitution ? The truth is that arti cle 21, like its American prototype in the Fifth and Four teenth Amendments of the Constitution of the United States, presents an example of the fusion of procedural and substan tive rights in the same provision.
The right to live, though the most fundamental of all, is also one of the most difficult to define and its protection generally takes the form of a declaration that no person shall be deprived of it save by due process of law or by authority of law.
"Process" or "procedure" in this context connotes both the act and the manner of proceeding to take away a man 's life or per sonal liberty.
And the first and essential step in a proce dure established by law for such deprivation must be a law made by a competent legislature 196 Authorising such deprivation.
This brings me to the consid eration of articles 21 and 22 to which was deroted the greater part of the debate at the Bar.
These articles run as follows: "21.
No person shall be deprived of his life or person al liberty except according to procedure established by law.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses '(1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who, are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention: Provided that nothing in this sub clause shall ' autho rise the detention of any person beyond the maximum period prescribed by any law made by parliament under sub clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7).
197 (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, commu nicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law provid ing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4)." Mr. Nambiar urged that the word "law" in article 21 should be understood, not in the sense of an enactment but as signifying the immutable and universal principles of natural justice the jus naturale of the civil law and that the expression "procedure established by law" meant the same thing as that famous phrase "due process of law" in the American Constitution in its procedural aspect.
Numerous American decisions were cited to show that the phrase implied the basic requirements of (1) an objective and ascertainable standard of conduct to which it is possi ble to conform, (2) notice to the party of the accusation against him, (3) a reasonable opportunity for him to estab lish his innocence, and (4) an impartial tribunal capable of giving an unbiased judgment Mr. Nambiar conceded that these requirements might have to be modified or adapted to suit the nature of the particular proceeding and the object it had in 198 view, as for instance, in a case of preventive detention, previous notice, which might result in the person concerned going underground might be dispensed with Learned counsel insisted that these requirements, being the very core of the principles of natural justice which transcended all State made laws, must be substantially complied with by any law governing the process of deprivation of life or personal liberty, subject, of course, to any express provision in the Constitution sanctioning their relaxation or dispensation in any case or class of cases.
He also appealed to the Pream ble of the Constitution as the guiding star in its interpre tation to support his thesis that, in view of the democratic Constitution which the people of India have purported to give themselves guaranteeing to the citizens certain funda mental rights which are justiciabke, the provisions of Part III must be construed as being paramount to the legislative will, as otherwise the socalled fundamental right to life and personal liberty would have no protection against legis lative action, and article 13 12) would be rendered nugato ry.
There can be no doubt that the people of India have, in exercise of their sovereign will as expressed in the Pream ble, adopted the democratic ideal which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights, socalled, I apprehend, because they have been re tained by the people and made paramount to the delegated powers, as in the American model.
Madison (who played a prominent part in framing the First Amendment of the Ameri can Constitution) pointing out the distinction, due to historical reasons, between the American and the British ways of securing "the great and essential rights of the people," observed "Here they are secured not by laws para mount to prerogative but by Constitutions paramount to laws:" Report on the Virginia Resolutions, quoted in Near vs Minnesota (1).
(1) ; 109 This has been translated into positive law in Part III of the Indian Constitution, and I agree that in construing these provisions the high purpose and spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights should be borne in mind.
This, howev er, is not to say that the language of the provisions should be stretched to square with this or that constitutional theory in disregard of the cardinal rule of interpretation of any enactment, constitutional or other, that its spirit, no less than its intendment should be collected primarily from the natural meaning of the words used.
Giving full effect to these principles, however, I am unable to agree that the term "law" in article 21 means the immutable and universal principles of natural justice. "Procedure established by law" must be taken to refer to a procedure which has a statutory origin, for no procedure is known or can be said to have been established by such vague and uncertain concepts as "the immutable and universal principles of natural justice.
" In my opinion, "law" in article 21 means "positive or State made law." No doubt, the American Judges have adopted the other connotation in their interpretation of the due process clause in the Fifth and Fourteenth Amendments of the Ameri can Constitution (" Nor shall any person be deprived of life, liberty or property without due process of law ").
But that clause has an evolutionary history behind it.
The phrase has been traced back to 28 Edw.
III Ch. 3, and Coke in his Institutes identified the term with the expression "the law of the land" in the Great Charter of John.
Even in England where the legislative omnipotence of Parliament is now firmly established, Coke understood these terms as implying an inherent limitation on all legislation,and ruled in Dr. Bonham 's Case (1) that "the common law will control Acts of Parliament and sometimes adjudge them to be utterly void when they are against common right and reason." Though this doctrine was later discarded in England as being "a warning (1) (a).
26 200 rather than an authority to be followed" [per Willes J. in Lee vs Dude and Torrington Ry.
(1)] it gained ground m America, at first as a weapon in the hands of the Revolu tionists with which to resist the laws of Parliament, and later as an instrument in the hands of the Judges for estab lishing the supremacy of the judiciary [see Calder vs Bull (" ')].
In the latter half of the 19th century, this doc trine of a transcendental common law or natural justice was absorbed in the connotation of the phrase "due process of law" occurring in the Fifth and Fourteenth Amendments.
By laying emphasis on the word" due," interpreting "law" as the fundamental principles of natural justice and giving the words "liberty" and "property" their widest meaning, the Judges have made the due process clause into a general restriction on all legislative power.
And when that power was threatened with prostration by the excesses of due process, the equally vague and expansive doctrine of "police power," i.e., the power of Government to regulate private rights in public interest, was evolved to counteract such excesses.
All this has been criticised as introducing great uncertainty in the state of the law in that country, for no one could be sure how due process of law would affect a particular enactment.
A century after the phrase had been the subject of judicial interpretation one learned Judge observed in 1877 that it was incapable of precise definition and that its intent and application could only be ascer tained by "the gradual process of inclusion and exclusion" [Davidson vs New Orleans (3)]and, as recently as 1948, another Judge referred to the difficulty of "giving defi niteness to the vague contours of due process" and "of spinning judgment upon State action out of that gossamer concept:" Haley vs State of Ohio (4).
It is not a matter for surprise, therefore, that the Drafting Committee appointed by the Constituent Assembly of India recommended the substitution of the expression "except according to procedure (1) , 582.
(3) 96 U.S. 97. ; (4) 332 U.S. 596.
201 established by law" taken from the Japanese Constitution, 1946, for the words "without due process of law" which occurred in the original draft, "as the former is more specific.
" In their Report the Committee added that they have "attempted to make these rights (fundamental rights) and the. limitations to which they must necessarily be subject as definite as possible, since the Courts may have to pronounce upon them" (para. 5).
In the face of all these considerations, it is difficult to accept the suggestion that "law" in.
article 21 stands for the jus naturale of the civil law, and that the phrase "according to procedure established by law" is equivalent to due process of law in its procedural aspect, for that would have the effect of introducing into our Constitution those "subtle and elusive criteria" implied in that phrase which it was the deliberate purpose of the framers of our Constitution to avoid.
On the other hand, the interpretation suggested by the Attorney General on behalf of the intervener that the ex pression means nothing more than procedure prescribed by any law made by a competent legislature is hardly more accept able.
"Established" according to him, means prescribed, and if Parliament or the Legislature of a State enacted a proce dure, however novel and ineffective for affording the ac cused person a fair opportunity of defending himself, it would be sufficient for depriving a person of his life or personal liberty.
He submitted that the Constituent Assem bly definitely rejected the doctrine of judicial supremacy When it rejected the phrase "due process of law" and made the legislative will unchallengeable, provided only "some procedure" was laid down.
The Indian Constitution having thus preferred the English doctrine of Parliamentary supremacy, the phrase "procedure established by law" must be construed in accordance with the English view of due process of law, that is to say, any procedure which Parliament may choose to prescribe.
Learned counsel drew attention to the speeches made by several members of the Assembly on the floor of the House for explaining, as he put it, the "his torical background.
" A speech 202 made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental processes lying behind the majority vote which carried the bill.
Nor is it reasonable to assume that the minds of all those legislators were in accord.
The Court could only search for the objec tive intent of the legislature primarily in the words used in the enactment, aided by such historical material as reports of statutory committees, preambles etc.
I attach no importance, therefore, to the speeches made by some of the members of the Constituent Assembly in the course of the debate on article 15 (now article 21).
The main difficulty I feel in accepting the construction suggested by the Attorney General is that it completely stultifies article 13 (2) and, indeed, the very conception of a fundamental right.
It is of the essence of that con ception that it is protected by the fundamental law of the Constitution against infringement by ordinary legislation.
It is not correct to say that the Constitution has adopted the doctrine of Parliamentary supremacy.
So far, at any rate, as Part III is concerned, the Constitution, as I have already observed, has accepted the American view of funda mental rights.
The provisions of articles 13 and 32 make this reasonably clear.
Could it then have been the inten tion of the framers of the Constitution that the most impor tant fundamental rights to life and personal liberty should be at the mercy of legislative majorities as, in effect, they would be if "established" were to mean merely "pre scribed ?" In other words, as an American Judge said in a similar context, does the constitutional prohibition in article 13 (2) amount to no more than "You shall not take away life or personal freedom unless you choose to take it away," which is mere verbiage.
It is no sound answer to say that, if article 21 conferred no right immune from legisla tive invasion, there would be no question of contravening article 13 (2).
The argument seems, to my mind, to beg the question, for it assumes that the article affords no such immunity.
It is said that article 21 affords no protection against competent legislative action in 203 the field of substantive criminal law, for there is no provision for judicial review, on the ground of reasonable ness or otherwise, of such laws, as in the case of the rights enumerated in article 19.
Even assuming it to be so the construction of the learned Attorney.
General would have the effect of rendering wholly ineffective and illusory even the procedural protection which the article was un doubtedly designed to afford.
It was argued that "law" in article 31 which provides that no person shall be deprived of his property "save by authority of law" must mean enacted law and that if a person 's property could be taken away by legislative action, his right to life and personal liberty need not enjoy any greater immunity.
The analogy is mis leading.
Clause (2) of article 31 provides for payment of compensation and that right is justiciable except in the two cases mentioned in clauses (4) and (6) which are of a tran sitory character.
The constitutional safeguard of the right to property in the said article is, therefore, not so illu sory or ineffective as clause (1) by itself might make it appear, even assuming that" law" there means ordinary legis lation.
Much reliance was placed on the Irish case The King vs The Military Governor of Hare Park Camp (1) where the Court held that the term "law" in article 6 of the Irish Constitu tion of 1922 which provides that "the liberty of the person is inviolable and no person shall be deprived of his liberty except in accordance with law" meant a law enacted by the Parliament, and that therefore the Public Safety Act of 1924 did not contravene the Constitution.
The Court followed The King vs Halliday(2) where the House of Lords by a majority held that the Defence of the Realm (Consolidation) Act, 1914, and the Regulations framed thereunder did not infringe upon the Habeas Corpus Acts and the Magna Carta "for the simple reason that the Act and the Orders become part of the law of the land.
" But that was because, as Lord Dunedin pointed out "the British Constitution has entrusted to the two Houses of parliament subject to the assent (1) [19241 2 I.R. 104.
(2) [1917] A.C. 260.
204 of the King, an absolute power untrammelled by any written instrument obedience to which may be compelled by some judicial body," whereas the Irish Constitution restricted the legislative powers of the Irish Parliament by a formal declaration of funda mental rights and by providing for a judicial review of legislation in contravention of the Constitution (article 65).
This radical distinction was overlooked.
The Attorney General further submitted that, even on his interpretation, article 21 would be a protection against violation of the rights by the executive and by individuals, an d that would be sufficient justification for the article ranking as a fundamental safeguard.
There is no substance in the suggestion.
As pointed out in Eshugbayi Eleko vs Gov ernment of Nigeria (Officer Administering) (1), the execu tive could only act in pursuance of the powers given by law and no constitutional protection against such action is really needed.
Even in monarchical Britain the struggle between prerogative and law has long since ended in favour of the latter.
"In accordance with British jurisprudence" said Lord Atkin in the case cited above, "no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice.
" As for protection against individuals, it is a misconception to think that constitutional safeguards are directed against individuals.
They are as a rule directed against the State and its organs.
Protection against violation of the rights by individuals must be sought in the ordinary law.
It is therefore difficult to accept the suggestion that article 21 was designed to afford protection only against infringements by the executive or individuals.
On the other hand,the insertion of a declaration of Fundamental Rights in the forefront of the Constitution, coupled with an express prohibition against legislative interference with these rights (article 13) and the provision of a constitutional sanction for the enforcement of such prohibition by means of a judicial review (article 32) is, in my (1) ; 205 opinion, a clear and emphatic indication that these rights are to be paramount to ordinary State made laws.
After giving the matter my most careful and anxious consideration, I have come to the conclusion that there are only two possible solutions of the problem.
In the first place, a satisfactory via media between the two extreme positions contended for on either side may be found by stressing the word "established" which implies some degree of firmness, permanence and general acceptance, while it does not exclude origination by statute. "Procedure estab lished by law" may well be taken to mean what the Privy Council referred to in King Emperor vs Benoari Lal Sharma (1) as "the ordinary and well established criminal proce dure," that is to say, those settled usages and normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of criminal procedure in the coun try.
Their Lordships were referring to the distinction between trial by special Courts provided by an Ordinance of the Governor General and trial by ordinary Courts under the Criminal Procedure Code.
It can be no objection to this view that the Code prescribes no single and uniform proce dure for all types of cases but provides varying procedures for different classes of cases.
Certain basic principles emerge as the constant factors common to all those proce dures, and they form the core of the procedure established by law.
I realise that even on this view, the life and liberty of the individual will not be immune from legisla tive interference, for a competent legislature may change the procedure so as to whittle down the protection if so minded.
But, in the view I have indicated, it must not be a change ad hoc for any special purpose or occasion, but a change in the general law of procedure embodied in the Code.
So long as such a change is not effected, the protection under article 21 would be available.
The different measures of constitutional protection which the fundamental right to life and personal liberty will enjoy under article 21 as interpreted in the three ways (1) ,175.
206 referred to above will perhaps be best illustrated by a concrete example.
Suppose that article 22 (1) was not there and Parliament passed an Act, as a temporary measure, taking away in certain cases the right of an accused person to be defended by a legal practitioner.
According to the petition er 's learned counsel the Act would be void as being contrary to the immutable principles of natural justice embodied in article 21, whereas on the construction contended for by the Attorney General, the Act would be perfectly valid, while, on the view I have indicated above, the Act would be bad, but if the denial of such right of defence is made a normal feature of the ordinary law of criminal procedure by abro gating section 340 (1)of the Code, article 21 would be powerless to protect against such legislative action.
But in a free democratic republic such a drastic change in the normal law of procedure, though theoretically possi ble, would be difficult to bring about, and that practical difficulty will be the measure of the protection afforded by article 21.
It was said that the safeguards provided in clauses (1) and (2) of article 22 are more or less covered by the provisions of the Criminal Procedure ' Code, and this overlapping would have been avoided if article 21 were intended to bear the construction as indicated above.
The argument overlooks that, while the provisions of the Code would be liable to alteration by competent legislative action, the safeguards in clauses (1)and (2) of article 22, being constitutional, could not be similarly dealt with: and this sufficiently explains why those safeguards find a place in the Constitution.
The only alternative to the construction I have indi cated above, if a constitutional transgression is to be avoided, would be to interpret the reference to "law" as implying a constitutional amendment pro tanto, for it is only a law enacted by the procedure provided for such amend ment (article 368) that could modify or override a fundamen tal right without contravening article 13 (2).
207 The question next arises as to how far the protection under article 21, such as it has been found to be, is avail able to persons under preventive detention.
The learned Attorney General contended that article 21 did not apply to preventive detention at all, as article 22 clauses (4) to (7) formed a complete code of constitutional safeguards in respect of preventive detention,and, provided only these provisions are conformed to, the validity of any law relat ing to preventive detention could not be challenged.
I am unable to agree with this view.
The language of article 21 is perfectly general and covers deprivation of personal liberty or incarceration, both for punitive and preventive reasons.
If it was really the intention of the framers of the Constitution to exclude the application of article 21 to cases of preventive detention, nothing would have been easier than to add a reference to article 21 in clause (3) of article 22 which provides that clauses (1) and (2) of the latter shall not apply to any person who is arrested or detained under any law providing for preventive detention Nor is there anything in the language of clauses (4) to (7) of article 22 leading necessarily to the inference that article 21 is inapplicable to preventive detention.
These clauses deal only with certain aspects of preventive deten tion such as the duration of such detention, the constitu tion of an advisory board for reviewing the order of deten tion in certain cases, the communication of the grounds of detention to the person detained and the provision of an opportunity to him of making a representation against the order.
It cannot be said that these provisions form an exhaustive code dealing with all matters relating to preven tive detention and cover the entire area of protection which article 21, interpretedin the sense I have indicated above, would afford to the person detained.
I am, therefore, of opinion that article 21 is applicable to preventive deten tion as well.
I will now proceed to examine whether the impugned Act or any of its provisions under which the petitioner has been ordered to be detained, takes away any of the rights con ferred by articles 21 and 22 or infringes the protection afforded thereby.
The 208 outstanding fact to be borne in mind in this connection is that preventive detention has been given a constitutional status.
This sinister looking feature, so strangely out of place in a democratic constitution which invests personal liberty with the sacrosanctity of a fundamental right and so incompatible with the promises of its preamble is doubtless designed to prevent an abuse of freedom by anti sOcial and subversive elements which might imperil the national welfare of the infant Republic.
It is in this spirit that clauses (3) to (7) of article 22 should, in my opinion, be con strued and harmonised as far as possible with article 21 so as not to diminish unnecessarily the protection afforded for the legitimate exercise of personal liberty.
In the first place, as already stated, clause (3) of article 22 excludes a, person detained under any law providing for preventive detention from the benefit of the safeguards provided in clauses (1) and (2) No doubt clause (5) of the same article makes some amends for the deprivation of these safeguards in that it provides for the communication to the person detained the grounds on which the order has been made and for an opportunity being afforded to him of making a representation against the order, but the important right to consult and to be defended by a legal practitioner of his choice is gone.
Similarly, the prohibition against detention in custody beyond a period of 24 hours without the authority of a magistrate has also been taken away m cases of preventive detention.
It was not disputed that, to the extent to which the express provisions of clauses (4) to (7) authorised the abrogation or abridgement of the safeguards provided under other articles or substitution of other safeguards in a modified form, those express provisions must rule.
Of the four essentials of the due process on which Mr. Nambiar insisted, (which also form part of the ordinary and established procedure under the Criminal Procedure Code, though I cannot agree that they are immutable and beyond legislative change) the requirements of notice and an opportunity to establish his innocence must, as already stated, be taken to have 209 been provided for by clause (5)of article 22.
As for an ascertainable standard of conduct to which it is possible to conform, article 22 makes no specific provision in cases of preventive detention, and if such a safeguard can be said to be implicit in the procedure established by law in the sense explained above in preventive detention cases, it could no doubt be invoked.
This point will be considered presently in dealing with provisions of the impugned Act.
The only other essential requirement, and the most essen tial of all, is an impartial tribunal capable of giving an unbiassed verdict.
This, Mr. Nambiar submitted, was left unprovided for by article 22, the advisory board referred to in clause (4) (a) being, according to him, intended to deal solely with the question of duration of the detention, that is to say, whether or not there was sufficient cause for detaining the person concerned for more than three months, and not with judging whether the person detained was innocent.
A tribunal which could give an unbiassed judg ment on that issue was an essential part of the protection afforded by article21 in whichever way it may be interpret ed, and reference was made in this connection to the preven tive provisions of the Criminal Procedure Code (Ch. VIII).
The impugned Act, not having provided for such a tribunal contravened article 21 and was therefore void.
It will be seen that the whole of this argument is based on the major premise that the advisory board mentioned in clause (4) (a) of article 22 is not a tribunal intended to deal with the issue of justification of detention.
Is that view correct? It was argued that the words "sufficient cause for such detention" in sub clause (a) of clause (4) had reference to the detention beyond three months mentioned in clause (4) and that this view was supported by the language of sub clause (a) of clause (7) whereby Parliament is authorised to prescribe the circumstances under 'which and the class or classes of cases in which a person may be detained for a period longer than three months without the opinion of an advisory board.
In other words, learned counsel submitted, 210 the combined effect of clauses (4) and (7) was that no person could be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law autho rising detention for such period even without the opinion of an advisory board.
Thus, these two clauses were concerned solely with the duration of the preventive detention, and so was the advisory board which those clauses provided for that purpose.
I am unable to accept this view.
I am inclined to think that the words "such detention" in sub clause (a) refer back to the preventive detention mentioned in clause (4) and not to detention for a longer period than three months.
An advisory board, composed as it has to be of Judges or lawyers, would hardly be in a position to judge how long a person under preventive detention, say, for reasons connected with defence, should be detained.
That must be a matter for the executive authorities, the Depart ment of Defence, to determine, as they alone are responsible for the defence of the country and have the necessary data for taking a decision on the point.
All that an advisory board can reasonably be asked to do, as a safeguard against the misuse of the power, is to judge whether the detention is justified and not arbitrary or mala fide.
The fact that the advisory board is required to make its report before the expiry of three months and so could submit it only a day or two earlier cannot legitimately lead to an inference that the board was solely concerned with the issue whether or not the detention should continue beyond that period.
Before any such tribunal could send in its report a reasonable time must elapse, as the grounds have to be communicated to the person detained, he has to make his representation to the detaining authority which has got to be placed before the board through the appropriate departmental channel.
Each of these steps may, in the course Of official routine, take some time, and 'three months ' period might well have been thought a reasonable period to allow before the board could be required to submit its report.
211 Assuming, however, that the words "such detention" had reference to the period of detention, there is no apparent reason for confining the enquiry by the advisory board to the sole issue of duration beyond three months without reference to the question as to whether the detention was justified or not.
Indeed, if is difficult to conceive how a tribunal could fairly judge whether a person should be detained for more than three months without at the same time considering whether there was sufficient cause for the detention at all.
I am of opinion that the advisory board referred to in clause (4) is the machinery devised by the Constitution for reviewing orders for preventive detention in certain cases on a consideration of the representations made by the persons detained.
This is the view on which Parliament has proceeded in enacting the impugned Act as will be seen from sections 9 and 10 thereof, and I think it is the correct view.
It follows that the petitioner cannot claim to have his case judged by any other impartial tribu nal by virtue of article 21 or otherwise.
Mr. Nambiar, however, objected that, on this view, a law could authorise preventive detention for three months with out providing for review by any tribunal, and for even longer periods if Parliament passed an Act such as is con templated in sub clause (a) of clause (7).
That may be so, but, however deplorable such a result may be from the point of view of the person detained, there could be no remedy if, on a proper construction of clauses (4) and (7), the Consti tution is found to afford no higher protection for the personal liberty of the individual.
Turning next to the provisions of the impugned Act, whose constitutional validity was challenged, it will be necessary to consider only those provisions which affect the petitioner before us.
In the first place, it was contended that section 3, which empowers the Central Government or the State Government to detain any person if it is "satisfied" that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to (among other 212 things) the security of the State or the maintenance of public order, cannot be said to comply with the procedure established by law, as the section prescribes no objective and ascertainable standard of conduct to which it will be possible to conform, but leaves it to the will and pleasure of the Government concerned to make an order of detention.
TIm argument proceeds on the assumption that the procedure established by law is equivalent to the due process of law.
I have already endeavoured to show that it is not Apart from this, the argument overlooks that for the purposes of preventive detention it would be difficult, if not impossi ble to lay down objective rules of conduct failure to conform to which should lead to such detention.
As tim very term implies, the detention in such cases is effected with a view to prevent the person concerned from acting prejudi cially to certain objects which the legislation providing for such detention has in view.
Nor would it be practicable to indicate or enumerate in advance what acts or classes of acts would be regarded as prejudicial.
The responsibility for the security of the State and the maintenance of public order etc.
having been laid on the executive Government it must naturally be left to that Government to exercise the power of preventive detention whenever they think the occa sion demands it.
Section 12 came in for a good deal of criticism.
That section, which governs the duration of thepetitioner 's detention reads as follows : "Duration of detention in certain cases.
Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to: (a) the defence of India, relations of India with for eign powers or the security of India; or (b) the security of a State of the maintenance of public order.
213 (2) The case of every person detained under a detention order to which the provisions of sub section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State Government, by such Govern ment, and where the order was made by any officer specified in sub section (2)of section 3, by the State Government to which such officer is subordinate, in consultation with a person who is, or has been, or is qualified to be appointed as a Judge of a High Court nominated in that behalf by the Central Government or the State Government, as the case may be.
" It was urged that this did not comply with the require ments of clause (7) of article 22 as it merely repeated the "matters" or legislative topics mentioned in Entry 9 of List I and Entry 3 of List III of the Seventh Schedule to the Constitution.
What Parliament has to do under clause(7) of article 22 is to prescribe "the circumstances under which and the class or classes of cases in which" a person may be detained for a period longer than three months without obtaining the opinion of an advisory board.
It was said that clause (4) (a) provided for ordinary cases of preventive detention Where such detention could not continue beyond three months without obtaining the opinion of an advisory board, whereas clause (7) (a) made provision for special cases of detention for more than three months with out the safeguard of the advisory board 's opinion, for aggravated forms of prejudicial conduct.
In other words, clause (4) (a) laid down the rule and clause (7) (a) enacted an exception.
It was therefore necessary for Parliarnent to indicate to the detaining authority for its guidance the more aggravated forms of prejudicial activity, and mere mention of the subjects in respect of which Parliament is authorised under the legislative lists to make laws in respect of preventive detention could hardly afford any guidance to such authority and should not be regarded as sufficient compliance with the requirements of clause (7).
There is a two fold fallacy in 214 this argument.
In the first place, the suggested correla tion between clause (4) (a) and clause (7) (a) as enacting a rule and an exception is, as a matter of construction, without foundation.
Reading clauses (4) and (7) together it is reasonably clear that preventive detention could last longer in two cases: (1) where the opinion of an advisory board is obtained, subject however to a prescribed period [sub clause (a)of clause (4)] and (2) where a person is detained under a law made by Parliament under sub clauses (a) and (b) of clause (7) [sub clause (b) of clause (4)].
These are two distinct and independent provisions.
It is significant that sub clause (b) of clause (4) is not worded as a proviso or an exception to sub clause (a) of the same clause as it would have been if it was intended to operate as such.
The attempt to correlate clause (4)(a)and clause (7) (a) as a rule and an exception respectively is opposed both to the language and the structure of those clauses. 'Secondly, the argument loses sight of the fact that clause (7) deals with preventive detention which is a purely precautionary measure which "must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof" [ per Lord Atkinson in Rex vs Halliday (1) ].
The remarks I have ' already made with reference to the absence of any objective rules of conduct in section 3 of the impugned Act apply also to this criticism of section 12.
It would be difficult, if not impracticable, to mention the variouscircumstances, or to enumerate the various class es of cases exhaustively in which a person should be de tained for more than three months for preventive purposes, except in broad outline.
Suppose a person belongs to.
an organization pledged to violent and subversive activity as its policy.
Beyond his membership of theparty the person might have done nothing until he1 was arrested and detained.
But if released he might indulge in anything from the mild est form of prejudicial activity, like sticking an objec tionable handbill on a hoarding, to the most outrageous acts of sabotage.
(1) ; , 275. 215 How could the insertion in section 12 of a long series of categories of aggravated forms of prejudicial activities, or the enumeration of the various circumstances in which such activities are likely to be indulged in, be of any assist ance to the detaining authority in determining whether the person concerned should be detained for three months or for a longer period ? All that would be necessary and suffi cient for him to know for coming to a decision on the point is that the person is a member of such an organisation and will probably engage in subversive activities prejudicial to the security of the State or the maintenance of public order or, in other words, he belongs to class (b) in section 12.
While enumeration and classification in detail would un doubtedly help in grading punishment for offences committed, they would not be of much use in fixing the duration of preventive detention.
Sufficient guidance in such cases could be given by broadly indicating the general nature of the prejudicial activity which a person is likely to indulge in, and that in effect is what Parliament has done in sec tion 12.
Reference was made in this connection to Rule 34 of the Defence of India Rules framed under the Defence of India Act, 1939, where "prejudicial act" is defined by enumeration.
But it was also for the purpose of prohibiting such acts [ Rule 38 sub rule (1) ] and making them offences (sub rule 5).
And even there, the definition had to end in a residuary clause sweeping in acts likely "to prejudice the efficient prosecution of the war, the defence of British India or, the public safety or interest.
" In Lists I and III of the Seventh Schedule to the Constitution six topics are mentioned in respect of which Parliament could make laws providing for preventive detention, and section 12 of the impugned Act mentions five of them as being the classes of cases or the circumstances in which longer detention is authorised.
I fail to see why this could not be regarded as a broad classification of cases or a broad description of circumstances where Parliament considers longer detention to be justifiable.
A class can well be designated with refer ence to the end which one desires to secure, and the matters referred to as classes (a) 216 and (b) of sub section (1) of section 12 being clearly the objects which Parliament desired to secure by enacting the section, it seems to me that the classification with refer ence to such general aims does not contravene article 22 (7).
It was argued that Parliament did not, in enacting section 12, perform its duty of prescribing both the circumstances and the class or classes of cases where detention without obtaining the advisory board 's opinion could be for a period longer than three months.
The use of the disjunctive "or" between the word "circumstances" and the words "class or classes of cases" showed, it was said, that Parliament proceeded on the view that it need not prescribe both.
This was in contravention of article 22 (7) which used the con junctive "and" between those words.
There is no substance in this objection.
As I read article 22 (7) it means that Parliament may prescribe either the circumstances or the classes of cases or both, and in enacting section 12 Parliament evidently regarded the matters mentioned in clause (a) and (b) of sub section (1) as sufficiently indic ative both of the Circumstances under which and the classes in which a person could be detained for the longer period.
To say, for instance, that persons who are likely to act prejudicially to the defence of India may be detained beyond three months is at once to "prescribe a class of persons in which and the circumstances under which" a person may be detained for the longer period.
In other words, the classi fication itself may be such as to amount to a sufficient description of the circumstances for purposes of clause (7).
The circumstances which would justify precautionary deten tion beyond three months without recourse to an advisory board must be far too numerous for anything approaching an exhaustive enumeration, and it can, in my judgment, be no objection to the validity of section 12 that no circum stances are mentioned apart from the matters referred to in clauses (a) and (b) of sub section (1).
It would indeed be singular for the Court to strike down a parliamentary enact ment because in its opinion a 217 certain classification therein made is imperfect or the mention of certain circumstances is unspecific or inade quate.
Lastly, Mr. Nambiar turned his attack on section 14 which prohibits the disclosure of the grounds of detention communicated to the person detained and of the representa tion made by him against the order of detention, and debars the Court from allowing such disclosure to be made except for purposes of a prosecution punishable under sub section (2) which makes it an offence for any person to disclose or publish such grounds or representation without the previous authorisation of the Central Government or the State Government as the case may be.
The petitioner com plains that this provision nullifies in effect the rights conferred upon him under clause (5) of article 22 which entitles him to have the grounds of his detention communi cated to him and to make a representation against the order.
If the grounds are too vague to enable him to make any such representation, or if they are altogether irrelevant to the object of his detention, or are such as to show that his detention is not bona fide, he has the further right of moving this Court and this remedy is also guaranteed to him under article 32.
These rights and remedies, the petitioner submits, cannot be effectively excercised, if he is prevent ed on pain of prosecution, from disclosing the grounds to the Court.
There is great force in this contention.
All that the Attorney General could say in answer was that if the other provisions of the Act were held to be valid, it would not be open to the Court to examine the sufficiency of the grounds on which the executive authority was "satisfied" that detention was necessary, as laid down in Machindar Shivaji Mahar vs The King (1), and so the petitioner could not complain of any infringement of his rights by reason of section 14 which enacted only a rule of evidence.
The argument overlooks that it was recognised in the decision referred to above that it would be open to the Court to examine the grounds of detention in order to see whether they were relevant to the object which the legislature had (1) 218 in view, such as, for instance, the prevention of acts prejudicial to public safety and tranquillity, or were such as to show that the detention was not bona fide.
An examina tion of the grounds for these purposes is made impossible by section 14, and the protection afforded by article 22 (5) and article 32 is thereby rendered nugatory.
It follows that section 14 contravenes the provisions of article 22 (5) and article 32 in so far as it prohibits the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or the repre sentation made by him against the order of detention, and prevents the Court from examining them for the purposes aforesaid, and to that extent it must be held under article 13 (2) to be void.
This however, does not affect the rest of the Act which is severable.
As the petitioner did not disclose the grounds of his detention pending our decision on this point he will now be free to seek his remedy, if so advised, on the basis of those grounds.
In the result, the application fails and is dismissed.
MAHAJAN J.
The people of India having solemnly resolved to constitute India into a Sovereign Democratic Republic on the 26th day of November 1949 gave to themselves a Constitution which came into force on the 26th January 1950.
This is the first case in which this Court has been called upon to determine how far the Constitution has secured personal liberty to the citizens of this country.
A.K. Gopalan, the petitioner, who was already under the custody of the Superintendent, Central Jail, Cuddalore, was served with an order of detention under section 3 (1) of the (Act IV of 1950) on the 27th February 1950.
It was said in the order that the Governor of Madras was satisfied that it was necessary to make the order with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order.
On 20th March 1950 a petition was presented to this Court under article 32 219 of the Constitution praying for the issue of a writ of habeas corpus directing the State of Madras to produce him before the Court and to set him at liberty.
A writ was accordingly issued.
The return to the writ is that the detention is legal under Act IV of 1950, enacted by Parlia ment.
The petitioner contends that the Act abridges and infringes certain provisions of Part III of the Constitution and is thus outside the constitutional limits of the legis lature and therefore void and unenforceable.
The matter is one of great importance both be cause the legislative power expressly conferred by the 7th Schedule has been impugned and because the liberty of the citizen is seriously affected.
The decision of the question whether Act IV of 1950 takes away or abridges the rights conferred by Part III of the Constitution depends on a consideration of two points: (1) In what measure has the Constitution secured person al liberty to a citizen of India, and.
(2) has the impugned legislation in any way taken away or abridged the rights so secured and if so, to what extent ? Act IV of 1950 provides for preventive detention in certain cases and it has been enacted as a temporary meas ure.
It will cease to have effect on 1st April 1951.
It empowers the Central Government and the State Governments to make an order directing a person to be detained with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers or the security of India.
It also gives power to detain a person who acts in any manner prejudicial to the security of the State or the maintenance of public order or the maintenance of supplies and services essential to the community.
It came into force on 26th February 1950 and was enacted by virtue of the powers conferred on Parliament by article 22 clause (7) of Part III of the Constitution read with the entries in the 7th Schedule.
There can be no doubt that the legislative will expressed herein 220 would be enforceable unless the legislature has failed to keep within its constitutional limits.
It is quite obvious that the Court cannot declare a statute unconstitutional and void simply on the ground of unjust and oppressive provi sions or because it is supposed to violate natural, social or political rights of citizens unless it it can be shown that such injustice is prohibited or such rights are guaranteed or protected by the Constitution.
It may also be observed that an Act cannot be declared void because in the opinion of the Court it is opposed to the spirit supposed to pervade the Constitution but not so expressed in words.
It is difficult on any general principles to limit the omnipo tence of the sovereign legislative power by judicial inter position except in so far as the express words of a written Constitution give that authority.
Article 13 (2) of our Constitution gives such an authority and to the extent stated therein.
It says that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void.
Preventive detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of the democratic countries of the world.
It was stated at the Bar that no such law was in force in the United States of America.
In England for the first time during the first world war certain regulations framed under the Defence of the Realm Act provided for preventive detention at the satisfaction of the Home Secretary as a war measure and they ceased to have effect at the conclusion of hostilities.
The same thing happened during thesecond world war.
Similar regulations were introduced during the period of the war in India under the Defence of India Act.
The Government of India Act, 1935, conferred authority on the Central and Provincial Legislatures to enact laws on this subject for the first time and since then laws on this subject have taken firm root here and have become a permanent part of the statute book of this country.
Curiously enough, this subject has found place in the Constitution in the.
221 chapter on Fundamental Rights.
Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th Schedule mention the scope of legislative power of Parliament in respect of this topic.
The jurisdiction, however, to enact these laws is subject to the provisions of Part III of the Constitu tion.
Article 22 in this Part provides : "(1 ) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention: Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period pre scribed by any law made by Parliament under sub clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, commu nicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to, disclose facts which such authority considers to be against the public interest to disclose, (7) parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law provid ing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4).
" The question of the constitutional validity of the impugned statute has to be approached with great caution in view of these provisions of the Constitution and has to be considered with patient attention.
The benefit of reasona ble doubt has to be resolved in favour of legislative ac tion, though such a presumption is not conclusive It seems that the subject of preventive detention became the particu lar concern of the Constitution because of its intimate connection with deprivation of personal liberty to protect which certain provisions were introduced in the Chapter on Fundamental Rights and because of the conditions prevailing in the newly born Republic.
Preventive detention means a complete negation of freedom of movement and of personal liberty and is incompatible with both those subjects and yet it is placed in the same compartment with them in Part III of the Constitution.
223 Though the Constitution has recognized the necessity of laws as to preventive detention it has also provided certain safeguards to mitigate their harshness by placing fetters on legislative power conferred on this subject.
These are (1) That no law can provide for detention for a period of more than three months unless the sufficiency for the cause of the detention is investigated by an advisory board within the said period of three months.
This provision limits legislative power in the matter of duration of the period of detention.
A law of preventive detention would be void if it permits detention for a longer period than three months without the intervention of an advisory board.
(2) That a State law cannot authorize detention beyond the maximum period prescribed by Parliament under the powers given to it in clause (7).
This is a limitation on the legislative power of the State legislature.
They cannot make a law authorizing preventive detention for a longer period than that fixed by Parliament.
(3) That Parliament also cannot make a law authorizing detention for a period beyond three months without the intervention of an advisory board unless the law conforms to the conditions laid down in clause (7) of article 22.
Provision also has been made to enable Parliament to make laws for procedure to be followed by advisory boards.
This is a safeguard against any arbitrary form of procedure that may otherwise find place in State laws.
Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by clause (5) of article 22.
A person detained under a law of preventive detention has a right to obtain information as to the grounds of his detention and has also the right to make a representation protesting against an order of preventive detention.
This right has been guaranteed independently of the duration of the period of detention and irrespective of the existence or non existence of an advisory board.
No machinery, however, has been provided or expressly 29 224 mentioned for dealing with this representation.
It seems to me that when a constitutional right has been conferred as a necessary consequence, a constitutional remedy for obtaining redress in case of infringement of the right must be pre sumed to have been contemplated and it could not have been intended that the right was merely illusory and that a representation made may well find place in cold storage.
Consideration of the representation made by virtue of clause (5) by an unbiassed authority is, m my opinion, a necessary consequence of the guaranteed right contained herein.
The right has been conferred to enable a detained person to establish his innocence and to secure justice, and no jus tice can be said to be secured unless the representation is considered by some impartial person.
The interpretation that I am inclined to place on clause (5) of article 22 is justi fied by the solemn words of the declaration contained in the Preamble to the Constitution.
It is this declaration that makes our Constitution sublime and it is the guarantees mentioned in the chapter on Fundamental Rights that make it one of the greatest charters of liberty and of which the people, of this country 'may well be proud.
This charter has not been forced out of unwilling hands of a sovereign like the Magna Carta but it has been given to themselves by the people of the country through their Constituent Assem bly.
Any interpretation of the provisions of Part III of the Constitution without reference to this solemn declara tion is apt to lead one into error.
If the right of repre sentation given to a detained person by clause (5) of arti cle 22 is a guaranteed right and has been given for the purpose of securing justice, then it follows that no justice can be held secured to him unless an unbiassed person considers the merits of the representation and gives his opinion on the guilt or the innocence of the persons detained.
In my view, the right cannot be defeated or made elusive by presuming that the detaining authority itself will consider the representation with an unbiassed mind and will render justice.
That would in a way make the prosecu tor a judge in the case and such a procedure is repugnant.
to all notions 225 of justice.
The Constitution has further curtailed the rights given in clause (5) by providing in clause (6) a privilege on the detaining authority of witholding facts which the said authority considers not in public interests to disclose.
This privilege has been conferred for the security of the State and possibly for the security of the Constitution itself, but in view of these stringent provi sions no additional clogs can be put on the proper consider ation of the representation of the detained person by pre suming that the detaining authority itself will properly consider the representation.
It has also to be remembered in this context that a person subjected to the law of pre ventive detention has been deprived of the rights conferred on persons who become subject to the law of punitive deten tion [vide clauses (1) and (2) of article 22].
He has been denied the right to consult a lawyer or be defended by him and he can be kept in detention without being produced before a magistrate.
Having examined the provisions of article 22, I now proceed to consider the first question that was canvassed before us by the learned Attorney General, i.e., that arti cle 22 of the Constitution read with the entries in the 7th Schedule was a complete Code on the subject of preventive detention, and that being so, the other articles of Part III could not be invoked in the consideration of the validity of the impugne 'd statute.
It was conceded by the learned coun sel for the petitioner that to the extent that express provisions exist in article 22 on the topic of preventive detention those provisions would prevail and could not be controlled by the other provisions of Part III.
It was, however, urged that on matters on which this article had made no special provision on this topic the other provisions of Part III of the Constitution had application, namely, articles 10 and 21 and to that extent laws made on this subject were justiciable.
In order to draw the inference that the framers of the Constitution intended the provisions as regards preventive detention in article 22 to be self contained a clear indication of such an intention has to be gathered.
If the provisions embodied in this article have dealt 226 with all the principal questions that are likely to arise in matters of procedure or on questions of the reasonableness of the period of detention, the inference of such an indica tion would be irresistible.
Ordinarily when a subject is expressly dealt with in a constitution in some detail, it has to be assumed that the intention was to exclude the application of the general provisions contained therein elsewhere.
Express mention of one thing is an exclusion of the other.
Expressio unius est exclusio alterius.
I am satisfied on a review of the whole scheme of the Constitu tion that the intention was to make article 22 self con tained in respect of the laws on the subject of preventive detention.
It was contended that all the articles in the Constitution should be read in an harmonious manner and one article should not be read as standing by itself and as having no connection with the other articles in the same part.
It was said that they were all supplementary to one another.
In this connection it was argued that a law made under article 22 would not be valid unless it was in accord with the provisions of article 21 of the Constitution.
This article provides that no person shall be deprived of life or liberty ' except according to procedure established by law.
It was contended that in substance the article laid down that no person will be deprived of life or liberty without having been given a fair trial or a fair hearing and that unless a law of preventive detention provided such a hearing that law would be in contravention of this article and thus void.
Conceding for the sake of argument (but without expressing any opinion on it ) that this contention of the learned counsel is correct, the question arises whether there is anything in article 22 which negatives the application of article 21 as above construed to a law on preventive detention.
In my opinion, sub clause (5) of article 22 read with clauses (1) and (2) leads to the inference that the contention raised by the learned counsel is unsound.
Clause (5), as already stated, provides that notice has to be given to a detenu of the grounds of his detention.
It also provides a limited hearing inasmuch as it gives him an opportunity to 227 establish his innocence.
As, in my opinion, the considera tion of a representation made by a detained person by an unbiassed authority is implicit in clause (5) it gives to the detained person all that he is entitled to under the principles of natural justice.
The right to consult and to be represented by a counsel of his own choice has been denied in express terms to such a person by the Constitu tion.
He is also denied an opportunity of appearing before a magistrate.
When the Constitution has taken away certain rights that ordinarily will be possessed by a detained person and in substitution thereof certain other rights have been conferred on him even in the matter of procedure, the inference is clear that the intention was to deprive such a person of the right of an elaborate procedure usually pro vided for in judicial proceedings.
Clause (6) of article 22 very strongly supports this conclusion.
There would have been no point in laying down such detailed rules of proce dure in respect of a law of preventive detention if the intention was that such a law would be subject to the provi sions of article 21 of the Constitution.
In its ultimate analysis the argument of the learned counsel for the peti tioner resolves itself to this: that the impugned statute does not provide for an impartial tribunal for a considera tion of the representation of the detained person and to this extent it contravenes article 21 of the Constitution.
As discussed above, in ray opinion, such a provision is implicit within article 22 itself and that being so, the application of article 21 to a law made under article 22 is excluded.
It was next contended that a law of preventive detention encroaches on the right of freedom of movement within the territory of India guaranteed to a citizen under article 19 (1) (d) and that being so, by reason of the provisions of sub clause (5) of article 19 it was justiciable on the ground of reasonableness.
It is true, as already pointed out, that a law of preventive detention is wholly incompati ble with the right of freedom of movement of a citizen.
Preventive detention in substance is a negation of the freedom of locomotion guaranteed under article 19 (1) (d) but it cannot be said that it merely restricts it.
Be that as it may, the 228 question for consideration is whether it was intended that article 19 would govern a law made under the provisions of article 22.
Article 19 (5) is a saving and an enabling provision.
It empowers Parliament to make a law imposing reasonable restriction on the right of freedom of movement while article 22 (7) is auother enabling provision empower ing Parliament to make a law on the subject of preventive detention in certain circumstances.
If a law conforms to the conditions laid down in 'article 22 (7), it would be a good law and it could not have been intended that that law validly made should also conform itself to the provisions of article 19 (5).
One enabling provision cannot be considered as a safeguard against another enabling provision.
Article 13 (2) has absolutely no application in such a situation.
If the intention of the constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have trou bled itself by expressly making provision in article 22 about the precise scope of the limitation subject to which such a law could be made and by mentioning the procedure that the law dealing with that subject had to provide.
Some of the provisions of article 22 would then have been redun dant, for instance, the provision that no detention can last longer than three months without the necessity of such detention being examined by an advisory board.
This provi sion negatives the idea that the deprivation of liberty for a period of three months without the consultation of the advisory board would be justiciable on the ground of reason ableness.
Again article 22 has provided a safeguard that if an advisory board has to be dispensed with, it can only be so dispensed with under a law made by Parliament and that Parliament also in enacting such a law has to conform to certain conditions.
This provision would have ' been unnec essary in article 22 if a law on this subject was justicia ble.
In sub clause (b) of clause (7) of article 22 provision has been made enabling Parliament to fix the maximum period for which a person can be detained under a law on the sub ject of preventive detention.
Under 229 this express provision it is open to Parliament to fix any period, say, even a period of five to ten years as the maximum period of detention of a person.
Can it be said that in view of this express provision of the Constitution such a law was intended to be justiciable by reason of article 19 (5) ? Duration of detention is the principal matter in preventive detention laws which possibly could be examined on the touchstone of reasonableness under article 19 (5), but this has been expressly excluded by express provisions in article 22.
In my judgment, therefore, an examination of the provisions of article 22 clearly suggests that the intention was to make it self contained as regards the law of preventive detention and that the validity of a law on the subject of preventive detention cannot be exam ined or controlled either by the provisions of article 21 or by the provisions of article 19 (5) because article 13 (2) has no application to such a situation and article 22 is not subject to the provisions of these two articles.
The Consti tution in article 22 has gone to the extent of even provid ing that Parliament may by law lay down the procedure to be followed by an advisory board.
On all important points that could arise in connection with the subject of preventive detention provision has been made in article 22 and that being so, the only correct approach in examining the validi ty of a law on the subject of preventive detention is by considering whether the law made satisfied the requirements of article 22 or in any way abridges or contravenes them and if the answer is in the affirmative, then the law will be valid, but if the answer is in the negative, the law would be void.
In expressing the view that article 22 is in a sense self contained on the law of preventive detention I should not however be understood as laying down that the framers of the article in any way overlooked the safeguards laid down in article 21.
Article 21, in my opinion.
lays down sub stantive law as giving protection to life and liberty inas much as it says that they cannot be deprived except accord ing to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty 230 as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such depriva tion.
This article gives complete ' immunity against the exercise of despotic power by the executive.
It further gives immunity against invalid laws which contravene the Constitution.
It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty.
It negatives the idea of fantastic, arbitrary and oppressive forms of proceedings.
The principles there fore underlying article 21 have been kept in view in draft ing article 22.
A law properly made under article 22 and which is valid in all respects under that article and lays down substantive as well as adjective law on this subject would fully satisfy the requirements of article 21, and that being so, there is no conflict between these two articles.
The next question that arises for decision is whether there is anything in Act IV of 1950 which offends against the provisions of article 22 of Part III of the Constitu tion.
The learned counsel for the petitioner contended that section 3 of the Act was bad inasmuch as it made "satisfaction of the Government" as the criterion for de taining a person.
It was said that as section 3 laid down no objective rule of conduct for a person and as people were not told as to what behaviour was expected of them, the result was that it could not be known what acts a person was expected to avoid and what conduct on his part was prejudi cial to the security of the State or the maintenance of ' public order; in other words, it was argued that section 3 left the determination of the prejudicial act of a person to the arbitrary judgment of the Government and that even the officer who was to administer this law had been furnished no guide and no standard of conduct in arriving at his own satisfaction whether the conduct was prejudicial to the security of the State etc.
This criticism of the learned counsel, in my opinion, is not valid, It is no doubt true that a detention order depends on the satisfac tion of the ' 231 Government but this provision is in accordance with article 22 of the Constitution which to my mind contemplates detention on the satisfaction of the executive authority.
By its very nature the subject is such that it implies detention on the judgment of the authority entrusted with the making of the order.
The whole intent and purpose of the law of preventive detention would be defeated if satis faction of the authority concerned was subject to such an objective standard and was also subject to conditions as to legal proof and procedure.
In the 7th Schedule jurisdiction to make the law on this subject has been given for reasons connected with defence etc.
and the maintenance of public order.
These are subjects which concern the life and the very existence of the State.
Every citizen is presumed to know what behaviour is prejudicial to the life of the State or to its existence as an ordered State.
Considering that the State is presumed to have a government that conducts itself in a reasonable way and also presuming that its officers usually will be reasonable men, it cannot be said that in making "satisfaction of the government" as the standard for judging prejudicial acts of persons who are subject to the law of preventive detention section 3 in any way contravenes article 22 of the constitution.
Section 7 of the impugned Act gives full effect to the provisions of article 22 sub clause (5) and enacts that representation has to be made to the Central or State Gov ernment as the case may be.
It was impeached on the ground that no machinery has been provided herein to consider and adjudicate on the merits of the representation.
To this extent, as already indicated, the law is defective.
In the absence of a machinery for the investigation of the conten tions raised in the representation it may be open to the detenu to move this Court under article 32 for a proper relief.
It is, however, unnecessary to express any opin ion as to the precise remedy open to a detained person in this respect.
The absence of a provision of this nature in the statute however would not make the law wholly void.
Section 9 of the Act makes reference 30 232 to the advisory board obligatory in cases falling under sub clause (iii) of clause (a) or clause (b) of sub section (1) of section a within six weeks of the order.
The proce dure to be followed by the advisory board is laid down in section 10.
Parliament has been authorized to lay down such a procedure to be followed by an advisory board in sub clause (c) of clause (7).
It was contended that the law had not provided a personal hearing to the detenu before an advisory board, nor had it given him a right to lead evi dence to establish his innocence.
In my opinion, this criticism is not sound and does not in any way invalidate the law.
The advisory board has been given the power to call for such information as it requires even from the person detained.
It has also been empowered to examine the materi al placed before it in the light of the facts and arguments contained in the representation.
The opportunity afforded is not as full as a person gets under normal judicial proce dure but when the Constitution itself contemplates a special procedure being prescribed for preventive detention cases, then the validity of the law on that subject cannot be impugned on the grounds contended for.
Section 11 of the Act was also impugned on the ground that it offended against the Constitution inasmuch as it provided for preventive detention for an indefinite period.
This section in my opinion has to be read in the background of the provision in sub clause (3) of section 1 of the Act which says that the Act will cease to have effect on 1st April, 1951.
Besides, the words "for such period as it thinks fit" do not in any way offend against the provisions of article 22 wherein Parliament has been given the power to make a law fixing the maximum period for preventive deten tion.
It has to be noted that Parliament has fixed a period of one year as the maximum period for the duration of detention where detention has to be without reference to an advisory board.
In my opinion, there is nothing in section 11 which is outside the constitutional limits of the powers of the supreme legislature.
233 It is section 12 of the Act which was assailed by the learned counsel for the petitioner rather vehemently.
This section is of a very controversial character.
It has been enacted on the authority of clause (7) of article 22 and runs thus : "(1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceed ing one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to (a) the defence of India, relations of India with for eign powers or the security of India; or (b) the security of a State or the maintenance of public order.
(2) The case of every person detained under a detention order to which the provisions of sub section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State Government, by such Govern ment, and where the order was made by any officer specified in sub section (2) of section a, by the State Government to which such officer is subordinate, in consultation with a person who is, or has been, or is qualified to be appointed as, a Judge of a High Court nominated in that behalf by the Central Government or the State Government, as the case may be." The section purports to comply with the conditions laid down in clause (7) of article 22.
It was, however, argued that in substance and reality it has failed to comply with any of the conditions laid down therein; that it neither mentions the circumstances under which nor the classes of cases in which preventive detention without recourse to the machinery of an advisory board could be permitted.
The crucial question for consideration is whether section 12 mentions any circumstances under which or defined the class es of cases in which authority was conferred by clause (7) 234 to dispense with an advisory board.
So far as I have been able to gather from opinions of text book writers on the subject of classification, the rule seems clear that in making classification of cases there has to be some rela tionship to the classification to the objects sought to be accomplished.
The question for consideration therefore is what object was sought to be accomplished when the Constitu tion included clause (7) in article 22.
It seems clear that the real purpose of clause (7) was to provide for a contin gency where compulsory requirement of an advisory board may defeat the object of the law of preventive detention.
In my opinion, it was incorporated in the Constitution to meet abnormal and exceptional cases, the cases being of a kind where an advisory board could not be taken into confidence.
The authority to make such drastic legislation was entrusted to 'the supreme legislature but with the further safeguard that it can only enact a law of such a drastic nature provided it prescribed the circumstances under which such power had to be used or in the alternative it prescribed the classes of cases or stated a determinable group of cases in which this could be done.
The intention was to lay down some objective standard for the guidance of the detaining authority on the basis of which without consultation of an advisory board detention could be ordered beyond the period of three months.
In this connection it has to be remembered that the Constitution must have thought of really some abnormal situation and of some dangerous groups of persons when it found it necessary to dispense with a tribu nal like an advisory board which functions in camera and which is not bound even to give a personal hearing to the detenu and whose proceedings are privileged.
The law on the subject of preventive detention in order to avoid even such an innocuous institution could only be justified on the basis of peculiar circumstances and peculiar situations which had to be objectively laid down and that was what in my opinion was intended by clause (7).
If the peculiarity lies in a situation outside 'the control or view of a de tained person, then it may be said that the description of such a situation would 235 amount to a prescription of the circumstances justifying the detention for a longer period than three months by a law without the intervention of an advisory board '.
If, however, the abnormality relates to the conduct and character of the activities of a certain determinable group of persons, then that would amount to a class of cases which was contemplated to be dealt with under clause (7).
In such cases alone arbitrary detention could be held justifiable by law beyond a period of three months.
It was argued by the learned counsel for the petitioner that the phrase "circumstances under which, and the classes of cases in which" used in clause (7) had to be construed in a cumulative sense; on the other hand, the learned Attorney General contended that the word "and" had been used in this clause in the same sense as "or." He further argued that even if the word "and" is not given that meaning the true construction of the phrase was that Parliament could prescribe either the circumstances or the classes of cases for making a law on the subject of preventive detention authorizing detention for a longer period than three months without the machinery of an advisory board.
In Full Bench Reference No. 1 of 1950, Das Gupta J. of the Calcutta High Court held that the intention of the legislature in enacting the clause was that the law of preventive detention author izing detention for a longer period than three months with out the intervention of an advisory board had to fulfil both the requirements laid down in clause (7) and not only one of the requirements in the alternative.
The same view has been expressed by my brother Sir Fazl Ali.
I share this view with him.
I would, however, like to consider this matter from a different aspect on the assumption that the contention raised by the learned Attorney General is right.
Dealing first with the question whether section 12 mentions any circumstances, so far as I have been able to see, it does not prescribe any circumstances unless it can be said that the prejudicial acts for reasons connected with the security of State, maintenance of public order, etc.
are both the circumstances as well as 236 the classes of cases.
In my opinion, this line of approach cannot be held to be correct in the construction of clause (7) of article 22.
I am inclined to agree with the learned Attorney General that the phrase "circumstances under which" means some situation extraneous to the detenu 's own acts, in other words, it means some happening in the country with which the detenu is not concerned, such as a situation of tense communal feelings, an apprehended internal rebellion or disorder, the crisis of an impending war or apprehended war, etc.
In such a situation the machinery of an advisory board could be dispensed with because it may become cumber some or it may hamper the exercise of necessary powers.
In this view of the matter I have no hesitation in holding that no circumstances have been stated in section 12, though the section ostensibly says so.
If it was permissible to con jecture, it seems that the draftsman of section 12 ' repeated the words of clause ' (7) of article 22 without an applica tion of his mind to the meaning of those words and as the legislation was passed in haste to meet an emergent situa tion, it suffers from the defects which all hasty legisla tion suffer from.
I now proceed to consider whether section 12 has classi fied the cases in which detention for a longer period beyond three months could be suffered by a citizen without the benefit of the machinery of an advisory board.
The section has placed five subjects out of the legislative list within its ambit and these are described as the classes of cases.
The question is whether it can be said that a mere selection of all or any of the categories of the subjects for reasons connected with which a law of preventive detention could be ' made under the 7th Schedule amounts to a classification of cases as contemplated in clause (7) of article 22.
Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th Schedule lay down the ambit of legislative power of Parliament on the subject of preventive detention on the following six subjects : (1) Defence of India, (2) Foreign Affairs, (a) Security of India, (4) Security of the State, (5) Mainten 237 ance of public order, (6) Maintenance of supplies and serv ices essential to the community.
Clause (4) of article 22 enjoins in respect of all the six subjects that no law can provide for preventive deten tion for a longer period than three months without reference to an advisory board.
Clause (7) gives permission to make a law for dispensing with an advisory board by a prescription of the circumstances and by a prescription of the classes of cases in which such a dispensation can be made.
The legis lative authority under clauses (4) and (7)in my opinion, extends to all these six subjects.
The normal procedure to be followed when detention is intended to be beyond a period of three months in respect of the six subjects is provided in sub clause (4) The extraordinary and unusual procedure was intended, to be adopted in certain abnormal cases for which provision could be made by a parliamentary statute under clause (7).
It seems to me, however, that section 12 of Act IV of 1950 has reversed this process quite contrary to the intention of the Constitution.
By this section Act IV of 1950 has dispensed with the advisory board in five out of the six subjects above mentioned and the compulsory procedure of an advisory board laid down in clause (4) of article 22 has been relegated to one out of these six sub jects.
This has been achieved by giving a construction to the phrase "circumstances under which and the classes of cases in which" so as to make it co extensive and cotermi nous with the "subjects of legislation.
" In my opinion, this construction of clause (7) is in contravention of the clear provisions of article 22, and makes clause (4) of article 9,2 to all intents and purposes nugatory.
Such a construction of the clause would amount to the Constitution saying in one breath that a law of preventive detention cannot provide for detention for a longer period than three months without reference to an advisory board and at the same breath and moment saying that Parliament, if it so chooses, can do so in respect of all or any of the subjects mentioned in the legislative field.
If that was so, it would have been wholly unnecessary to provide such a safe guard in the Constitution on a matter 238 which very seriously affects personal liberty.
On the other hand, it would be a reasonable construction of the clause to hold that the Constitution authorized Parliament that in serious classes of cases or in cases of those groups of persons who are incorrigible or whose activities are secret the procedure of an advisory board may well be dispensed with, that being necessary in the interests of the State.
On the other construction as adopted by the framers of section 12, the Constitution need not have troubled itself by con ferring an authority on Parliament for making such a law.
Moreover, if that was the intention, it would have in very clear words indicated this by drafting article 22 clause (4) thus: "Unless otherwise provided by Parliament no law provid ing for preventive detention shall authorize detention for a longer period than three months unless an Advisory Board has investigated the sufficiency of the cause of such detention.
" The words "Unless otherwise provided for by Parliament" would have been in accord with the construction which the framers of section 12 have placed on article 22 clause (7).
I am further of the opinion that the construction placed by the learned Attorney General on clause (7) of article 22 and adopted by the framers of Act IV of 1950 creates a very anomalous situation.
The matter may be examined from the point of view of the law of preventive detention for reasons connected with supplies and services essential to the life of the community.
This subject has been put under section 9 in Act IV of 1950.
Suppose a tense situation arises and there is a danger of the railway system being sabotaged and it becomes necessary to pass detention orders against cer tain persons.
According to Act IV of 1950 in such a serious state of affairs the procedure of an advisory board is compulsory, while on the other hand, if there is an appre hension of disturbance of public order by reason of a wrong decision of an umpire at a cricket match or on account of conduct of persons celebrating the festival of Holi, then detention beyond three 239 months can be ordered without reference to an advisory board.
Could such an anomalous result be in the contempla tion of the framers of the Constitution ? The construction that I am inclined to place on the section is in accord with the scheme of the law of punitive detention.
Hurt is an offence under the Indian Penal Code and this is one of the subjects of punitive detention.
The cases on the subject have been classified in different groups, namely, simple hurt, grievous hurt, grievous hurt with dangerous weapons, grievous hurt to extort a confession, grievous hurt to restrain a public officer from doing his duty, grievous hurt by a rash act, and grievous hurt on provocation.
Even simple hurt has been classified in different categories.
The sub ject of assault has also been similarly dealt with.
Sections 352 to 356 deal with cases classified according to the gravity of the offence, i.e., cases of simple assault, assault on a public servant, assault on women, assault in attempt to 'commit theft, assault for wrongfully confining a person and assault on grave provocation have been separately grouped.
Another illustration is furnished by the Criminal Procedure Code in the preventive sections 107 to 110.
These deal with different groups of persons; vagrants are in one class, habitual offenders in another, bad characters in the third and disturbers of peace in the fourth.
It seems that it is on lines similar to these that it must have been contemplated by the Constitution that classes of cases would be prescribed by Parliament, but this has not been done.
The Constitution has recognised varying scales of duration of detention with the idea that this will vary with the nature of the apprehended act, detention for a period of three months in ordinary cases, detention for a longer period than three months with the intervention of an adviso ry board in more serious cases, while detention for a longer period than three months without the intercession of an advisory board for a still more dangerous class and for acts committed in grave situations.
It can hardly be said that all cases of preventive detention for reasons connected with the maintenance of public order stand on the same footing in the degree of gravity and deserve the same 240 duration of detention and all cases connected with the maintenance of supplies and services essential to the life of the community stand in the matter of their gravity on such a footing as to require a lenient treatment.
It is true that in a sense all persons who act prejudicially to the defence of India may be comprehensively said to form one group and similarly persons who act prejudicially to the maintenance of supplies and services essential to the life of the community may form another class but the question is, whether it was in this comprehensive sense that classifica tion was intended by the Constitution in clause (7) or was it intended in a narrower and restricted sense ? It has to be remembered that the law under clause (7) was intended to provide detention for a longer period and such a law very seriously abridges personal liberty and in this situation giving a narrower and restricted meaning to this expression will be in accordance with well established canons of con struction of statutes.
The wide construction of clause (7) of article 22 brings within the ambit of the clause all the subjects in the legislative list and very seriously abridges the personal liberty of a citizen.
This could never have been the inten tion of the framers of the Constitution.
The narrow and restricted interpretation is in accord with the scheme of the article and it also operates on the whole field of the legislative list and within that field it operates by demar cating certain portions out of each subject which requires severe treatment.
If I may say so m conclusion, section 12 treats the lamb and the leopard in the same class because they happen to be quadrupeds.
Such a classification could not have been in the thoughts of the Constitution makers when clause (7) was introduced in article 22.
For the reasons given above, I am of the opinion that section 12 of Act IV of 1950 does not fulfil the requirements of clause (7) of article 22 of the Constitution and is not a law which falls within the ambit of that clause.
That being so, this section of Act IV of 1950 is void and by reason of it the detention of the petitioner cannot be justified.
There is no other provision in 241 this law under which he can be detained for any period whatsoever.
It was argued that it was neither practicable nor possi ble to make a classification on any definite basis in the case of apprehended acts of persons whose activities are of a prejudicial character to the maintenance of public order or to the security of the State or to the defence of India.
This contention to my mind is not sound.
Such a classifica tion was made in the rules under the Defence of India Act by defining "a prejudicial act" in regulation 34.
Mere difficulty in precisely ascertaining the groups or in defin ing objectively the conduct of such groups is no ground for not complying with the clear provisions of the statute or for disobeying it.
I see no difficulty whatsoever if a serious effort was made to comply with the provisions of clause (7).
I cannot see that the compulsory requirement of an advisory board is likely to lead to such disastrous or calamitous results that in all cases or at least in five out of the six subjects of legislation it becomes necessary to dispense with this requirement.
The requirement of an advi sory board is in accordance with the preamble of the Consti tution and is the barest minimum that can make a law of preventive detention to some little degree tolerable to a democratic Constitution.
Such a law also may have some justification even without the requirement of an advisory board to meet certain defined dangerous situations or to deal with a class of people who are a danger to the State but without such limitation the law would be destructive of all notions of personal liberty.
The Constitution must be taken to have furnished an adequate safeguard to its citi zens when it laid down certain conditions in clause (7) and it could not be considered that it provided no safeguard to them at all and that the words used in clause (7) were merely illusory and had no real meaning.
Section 14 of Act IV of 1950 has been impugned on the ground that it contravenes and abridges the provisions of articles 22 (5) and 32 of the Constitution.
This section is in these terms: 242 "(1) No Court shall except for the purposes of a prose cution for an offence punishable under subsection (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order, and notwithstanding anything con tained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or repre sentation made, or the proceedings of an advisory board or that part of the report of an advisory board which is confi dential.
(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section (1): Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.
" This section is in the nature of an iron curtain around the acts of the authority making the order of preventive detention.
The Constitution has guaranteed to the detained person the right to be told the grounds of detention.
He has been given a right to make a representation [vide arti cle 22 (5)], yet section 14 prohibits the disclosure of the grounds furnished to him or the contents of the representa tion made by him in a Court of law and makes a breach of this injunction punishable with imprisonment.
Article 32 (1) of the Constitution is in these terms : "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
" 243 Sub section (4) says : "The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitu tion." Now it is quite clear that if an authority passes an order of preventive detention for reasons not connected with any of the six subjects mentioned in the 7th Schedule, this Court can always declare the detention illegal and release the detenu, but it is not possible for this Court to func tion if there is a prohibition against disclosing the grounds which have been served upon him.
It is only by an examination of the grounds that it is possible to say wheth er the grounds fall within the ambit of the legislative power contained in the Constitution or are outside its scope.
Again something may be served on the detenu as being grounds which are not grounds at all.
In this contingency it is the right of the detained person under article 32 to move this Court for enforcing the right under article 22 (5) that he be given the real grounds on which the detention order is based.
This Court would be disabled from exercis ing its functions under article 32 and adjudicating on the point that the grounds given satisfy the requirements of the sub clause if it is not open to it to see the grounds that have been furnished.
It is a guaranteed right of the person detained to have the very grounds which are the basis of the order of detention.
This Court would be entitled to examine the matter and to see whether the grounds furnished are the grounds on the basis of which he has been detained or they contain some other vague or irrelevant material.
The whole purpose of furnishing a detained person with the grounds is to enable him to make a representation refuting these grounds and of proving his innocence.
In order that this Court may be able to safeguard this fundamental right and to grant him relief it is absolutely essential that the detenu is not prohibited under penalty of punishment to disclose the grounds to the Court and no injunction by law can be issued to this Court disabling it from having a look at the grounds.
Section 14 creates a substantive offence if the grounds are disclosed and it also lays a duty on the Court not 244 to permit the disclosure of such grounds.
It virtually amounts to a suspension of a guaranteed right provided by the Constitution inasmuch as it indirectly by a stringent provision makes administration of the law by this Court impossible and at the same time it deprives a detained person from obtaining justice from this Court.
In my opin ion, therefore, this section when it prohibits the disclo sure of the grounds contravenes or abridges the rights given by Part III to a citizen and is ultra vires the powers of Parliament to that extent.
The result of the above discussion is that, in my opin ion, sections 12 and 14 of Act IV of 1950 as above indicated are void and the decision of the detenu 's case has to be made by keeping out of sight these two provisions in the Act.
If sections 12 and 14 are deleted from the impugned legislation, then the result is that the detention of the petitioner is not legal.
The statute has not provided for detention for a period of three months or less in such cases as it could have done under article22 (4) of the Constitu tion and that being so, the petitioner cannot be justifia bly detained even for a period of three months.
I would accordingly order his release.
In view of the decision above arrived at I do not con sider it necessary to express any opinion on the other points that were argued at great length before us, namely, (1)what is 'the scope and true meaning of the expression "procedure established by law" in article 21 of the Consti tution, and (2) what is the precise scope of articles 19 (1) (d) and 19 (5)of the Constitution.
MUKHERJEA J. This is an application under article 32 of the Constitution praying for a writ of habeas corpus upon the respondents with a view to release the petitioner who, it is alleged, is being unlawfully detained in the Central Jail, Cuddalore, within the State of Madras.
The petitioner, it is said, was initially arrested in Malabar on 17th of December, 1947, and prosecution was started against him on various charges for having 245 delivered certain violent speeches.
While these criminal cases were going on, he was served with an order of deten tion under the Madras Maintenance of Public Order Act on 22nd April, 1948.
This order of detention was held to be illegal by the Madras High Court, but on the same day that the judgment was pronounced, a second order of detention was served upon him.
On his moving the High Court again for a writ of habeas corpus in respect to the subsequent order, his application was dismissed on the ground that as he was not granted bail in one of the three criminal cases that were pending against him, the detention could not be said to be unlawful.
Liberty, however, was given to him to renew his application if and when his detention under the criminal proceedings ceased.
In two out of the three criminal cases the trial before the magistrate ended on February 23, 1949, and the petitioner was sentenced to rigorous imprisonment for 6 months in each of the cases.
These sentences, however, were set aside in appeal on 26th September, 1949.
As re gards the third case, he was tried by the Sessions Judge of North Malabar and sentenced to rigorous imprisonment for 5 years but this sentence was reduced to 6 months ' imprison ment by the Madras High Court on appeal.
The petitioner made a fresh application to the High Court praying for a writ of habeas corpus in respect of his detention under the Madras Maintenance of Public Order Act and this application, which was heard after he had served out his sentences of imprisonment referred to above, was dismissed in January, 1950.
On 25th February, 1950, the was passed by the Parliament and on the 1st of March follow ing, the the detention of the applicant under the Madras Maintainance of Public Order Act was cancelled and he was served with a fresh order of detention under section 3 (1) of the .
On behalf of the respondents the detention of the petitioner is sought to be justified on the strength of the of 1950.
The position taken up on behalf of the petitioner on the other hand is that the said Act is invalid and ultra vires the conStitution by reason of its being in conflict with certain 246 fundamental rights which are guaranteed by the Constitution.
It is argued, therefore, that the detention of the peti tioner is invalid and that he should be set at liberty.
The contentions that have been but forward by Mr. Nambi ar who appeared in support of the petition, may be classi fied under four heads.
His first contention is that as preventive detention is, in substance, a restriction on the free movements of a person throughout the Indian territory, it comes within the purview of article 19 (1) (d) of Part III of the Constitution which lays down the fundamental rights.
Under clause (5) of the article, any restriction imposed upon this right of free movement must be reasonable and should be prescribed in the interests of the general public.
The question as to whether it is reasonable or not is a justiciable matter which is to be determined by the Court.
This being the legal position, the learned Counsel invites us to hold that the main provisions of the impugned Act, particularly those which are contained in sections 3, 7, 10, 11, 12, 13 and 14 are wholly unreasonable and should be invalidated on that ground.
The second contention advanced by the learned Counsel is that the impugned legislation is in conflict with the provi sion of article 21 of the Constitution inasmuch as it pro vides for deprivation of the personal liberty of a man not in accordance with a procedure established by law.
It is argued that the word 'law ' here does not mean or refer to any particular legislative enactment but it means the gener al law of the land, embodying those principles of natural justice ' with regard to procedure which are regarded as fundamental, in all systems of civilised jurisprudence.
It is conceded by the learned counsel that the proce dure, if any, with regard to preventive detention as has been prescribed by article 22 of the Constitution which itself finds a place in the chapter on Fundamental Rights must override those general rules of procedure which are contemplated by article 21 but with regard to matters for which no provision is made in article 22, the general provi sion made in article 21 247 must apply.
He has indicated in course of his arguments what the essentials of such procedure are and the other point specifically raised in this connection is that the provision of section 12 of the is in conflict with article 22 (7) of the Constitution.
The last argument in support of this application is that the provisions of sections 3 and 14 of the Preventive Deten tion Act are invalid as they take away and render completely nugatory the fundamental right to constitutional remedies as is provided for in article 32 of the Constitution.
In discussing these points it should be well to keep in mind the general scheme of the Indian Constitution relating to the protection of the fundamental rights of the citizens and the limitations imposed in this respect upon the legis lative powers of the Government.
The Constitution of India is a written Constitution and though it has adopted many of the principles of the English Parliamentary system, it has not accepted the English doctrine of the absolute supremacy of Parliament in matters of legislation.
In this respect it has followed the American Constitution and other systems modelled on it.
Notwithstanding the representative charac ter of their political institutions, the Americans regard the limitations imposed by their Constitution upon the action of the Government, both legislative and executive, as essential to the preservation of public and private rights.
They serve as a check upon what has been described as the despotism of the majority; and as was observed in the case of Hurtado vs The People of California (1) "a government which holds the lives, the liberty and the property of its citizens, subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism.
" In India it is the Constitution that is supreme and Parliament as well as the State Legislatures must not only act within the limits of their respective legislative spheres as demarcated in the three (1) ; 32 248 lists occuring in the Seventh Schedule to the Constitution, but Part III of the Constitution guarantees to the citizens certain fundamental rights which the legislative authority can on no account transgress.
A statute law to be valid must, in all cases, be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is unconstitutional or not.
Article 13 (2) is imperative on this point and provides expressly that the State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contra vention of this clause shall, to the extent of the contra vention, be void.
Clause (1) of the article similarly invalidates all existing laws which are inconsistent with the provisions of this Part of the Constitution.
The fundamental rights guaranteed by the Constitution have been classified under seven heads or categories.
They are: (1) Right to equality; (2) Right to freedom; (3) Right against exploitation; (4) Right to freedom of religion; (5) Cultural and educational rights; (6) Right to property; and (7) Right to constitutional remedy.
The arrangement differs in many respects from that adopted in the American Constitution and bears a likeness on certain points to similar declarations in the Constitutions of other countries.
Of the different classes of fundamental rights spoken of above, we are concerned here primarily with right to freedom which is dealt with in four articles beginning from article 19 and also with the right to constitutional remedy which is embodied in article 32.
Article 10 enumerates certain forms of liberty or free dom, the protection of which is guaranteed by the Constitu tion.
In article 20, certain protections are given in cases of persons accused of criminal offences.
Article 21 lays down in general terms that no person shall be deprived of his life or personal liberty, except 249 according to procedure established by law.
Article 22 pro vides for certain additional safeguards in respect to arrest and detention and by way of exception to the rules so made, makes certain special provisions for the particular form of detention known as Preventive Detention.
The first contention advanced by Mr. Nambiar involves a consideration of the question as to whether Preventive Detention, which is the subject matter of the impugned legislative enactment, comes within the purview of article 19 (1) (d) of the Constitution, according to which a right to move freely throughout the territory of India is one of the fundamental rights guaranteed to all citizens.
If it comes within that sub clause, it is not disputed that clause (5) of article 19 would be attracted to it and it would be for the courts to decide whether the restrictions imposed upon this right by the Parliament are reasonable restric tions and are within the permissible limits prescribed by clause (5) of the article.
There is no authoritative definition of the term 'Pre ventive Detention ' in Indian law, though as description of a topic of legislation it occurred in the Legislative Lists of the Government of India Act, 1935, and has been used in Item 9 of List I and Item 3 of List III in the Seventh Schedule to the Constitution.
The expression has its origin in the language used by Judges or the law Lords in England while explaining the nature of detention under Regulation 14 (B) of the Defence of Realm Consolidation Act, 1914, passed on the outbreak of the First World War; and the same lan guage was repeated in connection with the emergency regula tions made during the last World War.
The word ' preventive ' is used in contradistinction to the word ' punitive. ' To quote the words of Lord Finlay in Rex vs Halliday(1), "it is not a punitive but a precautionary measure.
" The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it.
No offence is proved, nor any charge formulated; and the justification of such detention is suspicion (1) ; at p. 269.
250 or reasonable probability and not criminal conviction which can only be warranted by legal evidence (1).
Detention in such form is unknown in America.
It was resorted to in England only during war time but no country in the world that I am aware of has made this an integral part of their Constitution as has been done in India.
This is undoubtedly unfortunate, but it is not our business to speculate on questions of policy or to attempt to explore the reasons which led the representatives of our people to make such a drastic provision in the Constitution itself, which cannot but be regarded as a most unwholesome encroachment upon the liberties of the people.
The detention of a man even as a precautionary measure certainly deprives him of his personal liberty, and as article 21 guarantees to every man, be he a citizen or a foreigner, that he shall not be deprived of his life and personal liberty, except in accordance with the procedure established by law, the requirements of article 21 would certainly have to be complied with, to make preventive detention valid in law.
What these requirements are I will discuss later on.
Article 22 comes immediately after arti cle 21.
It secures to all persons certain fundamental rights in relation to arrest and detention, and as already said, by way of exception to the rights thus declared, makes certain specific provisions relating to preventive deten tion.
The subject of preventive detention is specified in and constitutes Item No. 9 in the Union legislative List and it also forms Item No. 3 in the Concurrent List.
Under article 246 of the Constitution, the Parliament and the State Legislatures are empowered to legislate on this sub ject within the ambit of their respective authorities.
Clause(3) of article 22 expressly enjoins that the protec tive provisions of clauses (1) and (2) of the article would not be available to persons detained under any law providing for preventive detention.
The only fundamental rights which are guaranteed by the Constitution in the matter of preven tive detention and which to that extent impose restraints upon the exercise of legislative powers in that respect are (1) Vide Lord Macmillan in Liversidge vs Anderson ; at p. 254.
251 contained in clauses (4) to (7) of article 22.
Clause (4) lays down that no law of preventive detention shall autho rise the detention of a person for a period longer than three months, unless an advisory board constituted in the manner laid down in sub clause (a) of the clause has report ed before the expiration of the period that there is suffi cient cause for such detention.
The period of detention cannot, in any event, exceed the maximum which the Parlia ment is entitled to prescribe under clause (7) (b).
The Parliament is also given the authority to prescribe the circumstances and the class of cases under which a person can be detained for a period longer than three months under any law of preventive detention without obtaining the opin ion of the advisory board.
There is one safeguard provided for all cases which is contained in clause (5) and which lays down that the authority making the order of detention shall, as soon as possible communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
But even here, the authority while giving the grounds of detention need not disclose such facts which it considers against public interest to disclose.
The question that we have to consider is whether a law relating to preventive detention is justiciable in a Court of law on the ground of reasonableness under article 19 (5) of the Constitution inasmuch as it takes away or abridges the right to free movement in the territory of India guaran teed by clause (1) (d)of the article.
It will be seen from what has been said above that article 22 deals specifically with the subject of preventive detention and expressly takes away the fundamental rights relating to arrest and detention enumerated in clauses (1) and (2) of the article from per sons who are detained under any law which may be passed by the Parliament or State Legislatures acting under article 246 of the Constitution read with the relevant items in the legislative lists.
I will leave aside for the moment the question as to how far the court can examine the reasonable ness or otherwise of the procedure that is prescribed by any law relating 252 to preventive detention, for that would involve a considera tion of the precise scope and meaning of article.
21; but this much is beyond controversy that so far as substantive law is concerned, article 22 of the Constitution gives a clear authority to the legislature to take away the funda mental rights relating to arrest and detention, which are secured by the 'first two clauses of the article.
Any legis lation on the subject would only have to conform to the requirements of clauses (4) to (7) and provided that is done, there is nothing in the language employed nor in the context in which it appears which affords any ground for suggestion that such law must be reasonable in its character and that it would be reviewable by the Court on that ground.
Both articles 19 and 22 occur in the same Part of the Con stitution and both of them purport to lay down the fundamen tal rights which the Constitution guarantees.
It is well settled that the Constitution must be interpreted in a broad and liberal manner giving effect to all its parts, and the presumption should be that no conflict or repugnancy was intended by its framers.
In interpreting the words of a Constitution, the same principles undoubtedly apply which are applicable in construing a statute, but as was observed by Lord Wright in James vs Commonwealth of Australia ( 1 ), "the ultimate result must be determined upon the actual words used not in vacuo but as occurring in a single complex instrument in which one part may throw light on the other." "The Constitution," his Lordship went on saying, "has been described as the federal compact and the construction must hold a balance between all its parts.
" It seems to me that there is no conflict or repugnancy between the two provisions of the Constitution and an exami nation of the scheme and language of the catena of articles which deal with the rights to freedom would be sufficient to show that what clause (1) (d) of article 19 contemplates is not freedom from detention, either punitive or preventive; it relates to and speaks of a different aspect or phase of civil liberty.
(1) at p. 613.
253 Article 19, which is the first of this series of arti cles, enumerates seven varieties or forms of freedom begin ning with liberty of speech and expression and ending ' with free right to practise any trade, profession or business.
The rights declared it articles 19 to 22 do not certainly exhaust the whole list of liberties which people possess under law.
The object of the framers of the Constitution obviously is to enumerate and guarantee those forms of liberty which come under well known categories recognised by constitutional writers and are considered to be fundamental and of vital importance to the community.
There cannot be any such thing as absolute or uncon trolled liberty wholly freed from restraint, for that would lead to anarchy and disorder.
The possession and enjoyment of all rights, as was observed by the Supreme Court of America in Jacobson vs Massachusetts (1), are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, general order and morals of the community.
The question, therefore arises in each case of adjusting the conflicting interests of the individual and of the society.
In some cases, restrictions have to be placed upon free exercise of individual rights to safeguard the interests of the society; on the other hand, social control which exists for public good has got to be restrained, lest it should be misused to the detriment of individual rights and liberties.
Ordinarily, every man has the liberty to order his life as he pleases, to say what he will, to go where he will, to follow any trade, occupation or calling at his pleasure and to do any other thing which he can lawfully do without let or hindrance by any other person.
On the other hand for the very protection of these liberties the society must arm itself with certain powers.
No man 's liberty would be worth its name if it can be violated with impunity by any wrong doer and if his property or possessions could be preyed upon by a thief or a marauder.
The society, therefore, has got to exercise certain powers for the protection of these liber ties and to arrest, search, imprison and (1) ; 254 punish those who break the law.
If these powers are ' prop erly exercised, they themselves are the safeguards of free dom, but they can certainly be abused.
The police may arrest any man and throw him into prison without assigning any reasons; they may search his belongings on the slightest pretext; he may be subjected to a sham trial and even pun ished for crimes unknown to law.
What the Constitution, therefore, attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social control.
To me it seems that article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law, so that they may not conflict with public welfare or general morality.
On the other hand articles 20, 21 and 22 are primarily concerned with penal enactments or other laws under which personal safety or liberty of persons could be taken away in the interests of the society and they set down the limits within which the State control should be exer cised.
Article 19 uses the expression ' 'freedom" and men tions the several forms and aspects of it which are secured to individuals, together with the limitations that could be placed upon them in the general interests of the society.
Articles 20, 21 and 22 on the other hand do not make use of the expression "freedom" and they lay down the restrictions that are to be placed on State control where an individual is sought to be deprived of his life or personal liberty.
The right to the safety of one 's life and limbs and to enjoyment of personal liberty, in the sense of freedom from physical restraint and coercion of any sort, are the inher ent birthrights of a man.
The essence of these rights consists in restraining others from interfering with them and hence they cannot be described in terms of "freedom" to do particular things.
There is also no question of imposing limits on the activities of individuals so far as the exer cise of these rights is concerned.
For these reasons, I think, these rights have not been mentioned in article 19 of the Constitution.
An individual can be deprived of his life or personal liberty only by action 255 of the State, either under the provisions of any penal enactment or in the exercise of any other coercive process vested in it under law.
What the Constitution does there fore is to put restrictions upon the powers of the State, for protecting the rights of the individuals.
The re straints on State authority operate as guarantees of indi vidual freedom and secure to the people the enjoyment of life and personal liberty which are thus declared to be inviolable except in the manner indicated in these articles.
In my opinion, the group of articles 20 to 22 embody the entire protection guaranteed by the Constitution in relation to deprivation of life and personal liberty both with regard to substantive as well as to procedural law.
It is not correct to say, as I shah show more fully later on, that article 21 is confined to matters of procedure only.
There must be a substantive law, under which the State is empow ered to deprive a man of his life and personal liberty and such law must be a valid law which the legislature is compe tent to enact within the limits of the powers assigned to it and which does not transgress any of the fundamental rights that the Constitution lays down.
Thus a person cannot be convicted or punished under an ex post facto law, or a law which compels the accused to incriminate himself in a crimi nal trial or punishes him for the same offence more than once.
These are the protections provided for by article 20.
Again a law providing for arrest and detention must conform to the limitations prescribed by clauses (1) and (2) of article 22.
These provisions indeed have been withdrawn expressly in case of preventive detention and protections of much more feeble and attenuated character have been substi tuted in their place;but this is a question of the policy adopted by the Constitution which does not concern us at all.
The position, therefore, is that with regard to life and personal liberty, the Constitution guarantees protection to this extent that no man could be deprived of these rights except under a valid law passed by a competent legislature within the limits mentioned above and in accordance with the procedure which such law lays down.
Article 19, on the other hand, 256 enunciates certain particular forms of civil liberty quite independently of the rights dealt with under article 21.
Most of them may be connected with or dependent upon person al liberty but are not identical with it; and the purpose of article 19 is to indicate the limits within which the State could, by legislation, impose restrictions on the exercise of these rights by the individuals.
The reasonableness or otherwise of such legislation can indeed be determined by the Court to the extent laid down in the several clauses of article 19, though no such review is permissible with regard to laws relating to deprivation of life and personal liber ty.
This may be due to the fact that life and personal freedom constitute the most vital and essential rights which people enjoy under any State and in such matters the pre cise and definite expression of the intention of the legislature has been preferred by the Constitution to the variable standards which the judiciary might lay down.
We find the rights relating to personal liberty being de clared almost in the same terms in the Irish Consti tution article 40 (1) (4) (1) of which lays down that "no citizen shall be deprived of his personal liberty save in accordance with law.
" In the Constitution of the Free City of Danzig, "the liberty of the person has been declared to be inviolable and no limitation or deprivation of personal liberty may be imposed by public authority except by virtue of a law" (vide article 74).
Article 31 of the Japanese Constitution is the closest parallel to article 21 of the Indian Constitution and the language is almost identical.
This is the scheme adopted by the Constitution in dealing with the rights to freedom described in the chapter on fundamental rights and in my opinion, therefore, the proper test for determining the validity of an enactment under which a person is sought to be deprived of his life and personal liberty has to be found not in article 19, but in the three following articles of the Constitution.
Article 20 of course has no application so far as the law relating to preventive detention is concerned.
Mr. Nambiar 's endeavour throughout has been to 257 establish that article 19 (1) (d) of the Constitution read with article 19 (5) enunciates the fundamental rights of the citizens regarding the substantive law of personal liberty, while article 21 embodies the protection as regards proce dural law.
This, in my opinion, would be looking at these provisions from a wrong angle altogether.
Article 19 cannot be said to deal with substantive law merely, nor article 21 with mere matters of procedure.
It cannot also be said that the provisions of article 19 (1) (d) read with clause (5) and article 21 are complementary to each other.
The con tents and subject matter of the two provisions are not identical and they proceed on totally different princi ples.
There is no mention of any "right to life" in article 19, although that is the primary and the most important thing for which provision is made in article 21.
If the contention of the learned counsel is correct, we would have to hold that no protection is guaranteed by the Constitution as regards right to life so far substantive law is con cerned.
In the second place, even if freedom of movement may be regarded as one of the ingredients of personal liberty, surely there are other elements included in the concept and admittedly no provision for other forms of personal liberty are to be found in article 19 (5) of the Constitution.
Furthermore article 19 is applicable to citizens only, while the rights guaranteed by article 21 are for all per sons.
citizens as well as aliens.
The only proper way of avoiding these anomalies is to interpret the two provisions as applying to different subjects and this would be the right conclusion if we have in mind the scheme which under lies this group of articles.
I will now turn to the language of article 19 (1) (d) and see whether preventive detention really comes within its purview.
Article 19 (1) (d) provides that all citizens shall have the right to move freely throughout the territory of India.
The two sub clauses which come immediately after sub clause (d) and are intimately connected with it, are in these terms: "(e) To reside and settle in any part of the territory of India; 258 (f) to acquire, hold and dispose of property." Clause (5)relates to all these three sub clauses and lays down that nothing in them shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clause either in the interests of the general public or for the protection of the interests of any scheduled tribe.
I agree with the learned Attorney General that in con struing article 19 (1) (d) stress is to be laid upon the expression "throughout the territory of India," and it is a particular and special kind of right, viz., that of free movement throughout the Indian territory, that is the aim and object of the Constitution to secure.
In the next sub clause, right tO reside and settle "in any part of the territory of India" is given and here again the material thing is not the right of residence or settlement but the right to reside or settle in any part of the Indian territo ry.
For an analogous provision, we may refer to article 301 which says that subject to the other provisions of this Part, commerce and intercourse throughout the territory of India shall be free.
The meaning of sub clause (d) of arti cle 19 (1) will be clear if we take it along with sub clauses (e) and (f), all of which have been lumped together in clause (5) and to all of which the same restrictions including those relating to protecion of the interest of any scheduled tribe have been made applicable.
It will be remembered that these rights are available only to citizens.
To an alien or foreigner, no guarantee of such rights has been given.
Normally all citizens would have the free right to move from one part of the Indian territory to another.
They can shift their residence from one place to any other place of their choice and settle anywhere they like.
The right of free trade, commerce and intercourse throughout the territory of India is also secured.
What the Constitu tion emphasises upon by guaranteeing these rights is that the whole of Indian Unian in spite of its being divided into a number of States is really one unit as far as the citizens of the Union are concerned.
All the 259 citizens would have the same privileges and the same facilities for moving into any part of the territory and they can reside or carry on business anywhere they like; and no restrictions either inter State or otherwise would be allowed to set up in these respects between one part of India and another.
So far as free movement throughout the territory is concerned, the right is subject to the provision of clause (5), under which reasonable limitation may be imposed upon these liberties in the interests of the general public or protection of any scheduled tribe.
The interests of the public which necessitates such restrictions may be of var ious kinds.
They may be connected with the avoidance of pestilence or spreading of contagious diseases; certain places 'again may be kept closed for military purposes and there may be prohibition of entry into areas which are actual or potential war zones or where disturbances of some kind or other prevail.
Whatever the reasons might be, it is necessary that these restrictions must be reasonable, that is to say, commensurate with the purpose for which they are laid down.
In addition to general interest, the Constitu tion has specified the protection of the interests of the scheduled tribes as one of the factors which has got to be taken into consideration in the framing of these restric tions.
The scheduled tribes, as is well known, are a back ward and unsophisticated class of people who are liable to be imposed upon by shrewd and designing persons.
Hence there are various provisions disabling them from alienating even their own properties except under special conditions.
In their interest and for their benefit, laws may be made restricting the ordinary right of citizens to go or settle in particular areas or acquire property in them.
The refer ence to the interest of scheduled tribe makes it quite clear that the free movement spoken of in the clause relates not to general rights of locomotion but to the particular right of shifting or moving from one part of the Indian territory to another, without any sort of discriminatory barriers.
This view will receive further support if we look to some analogous provisions ,in the Constitution of 260 other countries.
It will be seen that sub clauses (d) (e) and (f)of article 19 (1) are embodied in almost identical language in one single article, viz., article 75 of the Constitution of the Free City of Danzig.
The article runs as follows: "All nationals shall enjoy freedom of movement within the free city and shall have the right to stay and to settle at any place they may choose, to acquire real property and to earn their living in any way.
This right shall not be curtailed without legal sanctions.
" The several rights are thus mentioned together as being included in the same category, while they are differentiated from the "liberty of the person" which is "described to be inviolable except by virtue of a law" in article 74 which appears just previous to this article.
An analogous provi sion in slightly altered language occurs in article 111 of the Constitution of the German Reich which is worded in the following manner: All Germans enjoy the right of change of domicile within the whole Reich.
Every one has the right to stay in any part of the Realm that he chooses, t6 settle there, acquire landed property and pursue any means of livelihood.
" Here again the right to personal liberty has been dealt with separately in article 114.
A suggestion was made in course of our discussions that the expression "throughout the territory of India" occurring in article 19 (1) (d) might have been used with a view to save Passport Regulations or to emphasise that no rights of free emigration are guaran teed by the Constitution.
The suggestion does not seem to me to be proper.
No State can guarantee to its citizens the.
free right to do anything outside its own territory.
This is true of all the fundamental rights men tioned in article 19 and not merely of the right of free movement.
Further it seems to me that the words "throughout the territory of India" have nothing to do with rights of emigration.
We find that both in the Danzig as well as in the German Constitution, where similar words have been used with regard to the excercise of the right of free movement throughout the.
261 territory, there are specific provisions which guarantee to all nationals the free right of emigration to other coun tries (vide article 76 of the Danzig Constitution and arti cle 112 of the Constitution of the German Reich).
In my opinion, therefore, preventive detention does not come either within the express language or within the spirit and intendment of clause (1) (d) of article 19 of the Constitu tion which deals with a totally different aspect or form of civil liberty.
It is true that by reason of preventive detention, a man may be prevented from exercising the right of free movement within the territory of India as contemplated by article 19 (1) (d) of the Constitution, but that is merely incidental to or consequential upon loss of liberty resulting from the order of detention.
Not merely the right under clause (1) (d), but many of the other rights which are enumerated under the other sub clauses of article 19 (1) may be lost or suspended so long as preventive detention continues.
Thus a detenu so long as he is under detention may not be able to practise any profession, or carry on any trade or business which he might like to do; but this would not make the law providing for preventive detention a legislation taking away or abridging the rights under article 19 (1) (g) of the Constitution and it would be absurd to suggest that in such cases the validity of the legislation should be tested in accordance with the requirement of clause (6) of article 19 'and that the only restrictions that could be placed upon the person 's free exercise of trade and profession are those specified in that clause.
Mr. Nambiar concedes that in such cases we must look to the substance of the particular legis lation and the mere fact that it incidentally trenches upon some other right to which it does not directly relate is not material.
He argues, however, that the essence or substance of a legislation which provides for preventive detention is to take away or curtail the right of free move ments and in fact, "personal liberty" according to him, connotes nothing else but unrestricted right of locomotion.
The learned counsel refers in this connection to certain passages in Blackstone 's Commentaries on the Laws of Eng land, where 262 the author discusses what he calls the three absoluterights inherent in every Englishman, namely, rights of personal security, personal liberty and property.
"Personal security", according to Blackstone, consists in a person 's legal and uninterrupted enjoyment of his life, his limb, his body, his health and his reputation; whereas "personal liberty" consists in the power of locomotion, of changing of situation or moving one 's person to whatsoever place one 's own inclination may direct without imprisonment or restraint unless by due course of law (1).
It will be seen that Blackstone uses the expression "personal liberty" in a somewhat narrow and restricted sense.
A much wider and larger connotation is given to it by later writers on con stitutional documents, particularly in America.
In ordinary language "personal liberty" means liberty relating to or concerning the person or body of the individual; and "per sonal liberty" in this sense is the antithesis of physical restraint or coercion.
According to Dicey, who is an acknowledged authority on the subject "personal liberty" means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification(2).
It is, in my opinion, this negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory.
In this connection, it may not be irrelevant to.
point out that it was in accordance with the recommendation of the 'Drafting Committee that the word "personal" was inserted before "liberty" in article 15 of the Constitution which now stands as article 21.
In the report of the Drafting Commit tee it is stated that the word "liberty" should be quali fied by the insertion of the word "personal" before it; otherwise, it might be construed very widely so as to in clude even the freedoms already dealt with in article 13.
Article.
13, it should be noted, is the present article 19.
If the views of the Drafting Committee were accepted by the (1) Vide Chase 's Blackstone, 4th Edn, pp. 68, 73.
(2) Vide Dicey on Constitutional Law, 9th Edn, pp.
207 208.
263 Constituent Assembly, the intention obviously was to exclude the contents of article 19.
from the concept of "personal liberty" as used in article 21.
To what extent the meaning of words used in the Constitution could be discovered from reports of Drafting Committee or debates on the floor of the House is a matter not quite free from doubt and I may have to take up this matter later on when discussing the meaning of the material clause in article 21 of the Constitution.
It is enough to say at this stage that if the report of the Drafting Committee is an appropriate material upon which the interpretation of the words of the Constitution could be based, it certainly goes against the contention of the applicant and it shows that the words used in article 19 (1) (d) of the Constitution do not mean the same thing as the expression "personal liberty" in article 21 does.
It is well known that the word " 'liberty" standing by itself has been given a very wide meaning by the Supreme Court of the United States of America.
It includes not only personal freedom from physical restraint but the right to the free use of one 's own property and to enter into free contractual relations, In the Indian Constitution, on the other hand, the expression "personal liberty" has been deliberately used to restrict it to freedom from physical restraint of person by incarceration or otherwise.
Apart from the report of the Drafting Committee, that is the plain grammatical meaning of the expression as I have already explained.
It may not, I think, be quite accurate to state that the operation of article 19 of the Constitution is limited to free citizens only and that the rights have been described in that article on the presupposition that the citizens are at liberty.
The deprivation of personal liberty may entail as a consequence the loss or abridgement of many of the rights described in article 19, but that is because the nature of these rights is such that free exercise of them is not possible in the absence of personal liberty.
On the other hand, the right to hold and dispose of property which is in subclause (f) of article 19 (1) and which is not dependent on full possession of personal liberty by the owner may 264 not be affected if the owner is imprisoned or detained.
Anyway, the point is not of much importance for purposes of the present discussion.
The result is that, in my opinion, the first contention raised by Mr. Nambiar cannot succeed and it must be held that we are not entitled to examine the reasonableness or otherwise of the and see whether it is within the permissible bounds specified in clause (5) of article 19.
I now come to the second point raised by Mr. Nambiar in support of the application; and upon this point we had arguments of a most elaborate nature addressed to us by the learned counsel on both sides, displaying a considerable amount of learning and research.
The point, however, is a short one and turns upon the interpretation to be put upon article 21 of the Constitution, which lays down that "no person shall be deprived of his . . personal liberty, except according to procedure established by law.
" On a plain reading of the article the meaning seems to be that you cannot deprive a man of his personal liberty, unless you follow and act according to the law which provides for deprivation of such liberty.
The expression "procedure" means the manner and form of enforcing the law.
In my opinion, it cannot be disputed that in order that there may be a legally established procedure, the law which establish es it must be a valid and lawful law which the legislature is competent to enact in accordance with article 245 of the Constitution and the particular items in the legislative lists which it relates to.
It is also not disputed that such law must not offend against the fundamental rights which are declared in Part III of the Constitution.
The position taken up by the learned Attorney General is that as in the present case there is no doubt about the competency of that Parliament to enact the law relating to preventive detention which is fully covered by Item 9 of List I, and Item 3 of List III, and as no question of the law being reasonable or otherwise arises for consideration by reason of the fact that article 19 (1) (d) is not attracted to this case, the law must be held to be a valid piece of legisla tion and if the procedure 265 laid down by it has been adhered to, the validity of the detention cannot possibly be challenged.
His further argu ment is that article 22 specifically provides for preventive detention and lays down fully what the requirements of a legislation on the subject should be.
As the impugned Act conforms to the requirements of article 22, no further ques tion of its validity under article 21 of the Constitution at all arises.
The latter aspect of his arguments, I will deal with later on.
So far as the main argument is concerned,the position taken up by Mr. Nambiar is that article 21 refers to 'procedure only and not to substan tive law the procedure, however, must be one which is established by law.
The expression "law" in this context does not mean or signify, according to the learned counsel, any particular law enacted by the legislature in conformity with the requirements of the Constitu tion or otherwise possessing a binding authority.
It refers to law in the abstract or general sense in the sense of jus and not lex and meaning thereby the legal principles or fundamental rules that lie at the root of every system of positive law including our own, and the authority of which is acknowledged in the jurisprudence of all civilised coun tries.
It is argued that if the word "law" is interpret ed in the sense of any State made law, article 21 could not rank as a fundamental right imposing a check or limitation on the legislative authority of the Government.
It will be always competent to the legislature to pass a law laying down a thoroughly arbitrary and irrational procedure opposed to all elementary principles of justice and fairness and the people would have no protection whatsoever, provided such procedure was scrupulously adhered to.
In support of this argument the learned counsel has relied upon a large number of American cases, where the Supreme Court of America ap plied the doctrine of "due process of law" as it appears in the American Constitution for the purpose of invalidating various legislative enactments which appeared to that Court to be capricious and arbitrary and opposed to the fundamen tal principles of law.
266 It may be noted here that in the original draft of the Indian Constitution the words used in article 15 (which now stands as article 21) were "in accordance with due process of law." The Drafting Committee recommended that in place of the "due process" clause, the expression "according to procedure established by law" should be substituted.
The present article 21 seems to have been modeled on article 31 of the Japanese Constitution, where the language employed is "no person shall be deprived of 'life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law." Mr. Nambiar argues that the expression "procedure established by law" in article 21 of the Constitution bears the same meaning as the "due process" clause does in America, restricted only to this extent, viz., that it is limited to matters of procedure and does not extend to questions of substantive law.
To appre ciate the arguments that have been advanced for and against this view and to fix the precise meaning that is to be given to this clause in article 21, it would be necessary to discuss briefly the conception of the doctrine of "due process of law" as it appears in the American Constitution and the way in which it has been developed and applied by the Supreme Court of America.
In the history of Anglo American law, the concept of "due process of law" or what is considered to be its equiva lent "law of the land" traces its lineage far back into the beginning of the 13th century A.D.
The famous 39th chapter of the Magna Charta provides that "no free man shall be taken or imprisoned or disseized, or outlawed or exiled or in any way destroyed; nor shall we go upon him nor send upon him but by the lawful judgment of his peers and by the law of the land." Magna Charta as a charter of English liberty was confirmed by successive English monarchs and it is in one of these confirmations (28 Ed.
III, Chap.
3) known as "Statute of Westminster of the liberties of London", that the expression "due process of law" for the first time appears.
Neither of these phrases was explained or defined in any of the 267 documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning.
In substance, they guaranteed that persons should not be imprisoned without proper indictment and trial by peers, and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made (1).
These concepts came into America as part of the rights of Englishmen claimed by the colonists.
The expression in one form or other appeared in some of the earlier State Constitutions and the exact phrase "due process of law" came to be a part of the Federal Constitution by the Fifth Amendment which was adopted in 1791 and which provided that "no person shall. be deprived of life, liberty or property without due process of law.
" It was imposed upon the State Constitution in almost identical language by the Fourteenth Amendment in the year 1868.
What "due process of law" exactly means is difficult to define even at the present day, The Constitution contains no description of what is "due process of law" nor does it declare the principles by application of which it could be ascertained.
In Twining vs New Jersey (2) the Court ob served: "Few phrases in the law are so elusive of exact appre hension as this.
This COurt has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise.
" It is clear, however, that the requirement of "due process of law" in the United States Constitution imposes a limitation upon all the powers of Government, legislative as well as executive and judicial.
Applied in England only as protection against executive usurpation and royal tyranny, in America it became a bulwark against arbitrary legislation (3).
(1) Vide Willoughby on the Constitution of the United States, Vol.
III, p. 1087.
(2) (3) Vide Hurtando vs People of California, ; at p. 532.
268 As it is a restraint upon the legislative power and the object is to protect citizens against arbitrary and capri cious legislation, it is not within the competence of the Congress to make any process a "due process of law" by its mere will; for that would make the limitation quite nugato ry.
As laid down in the case cited above, "it is not any act legislative in form that is law; law is something more than mere will exerted as an act of power.
" It means and signifies the general law of the land, the settled and abid ing principles which inhere in the Constitution and lie at the root of the entire legal system.
To quote the words of Daniel Webster in a famous argument before.the Supreme Court (1): "By the law of the land is most clearly intended the general law a law which hears before it condemns, which proceeds upon enquiry and renders judgment only after trial.
The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.
" What these principles of general law are nobody has ever attempted to enumerate.
To a large extent they are the principles of English common law and modes of judicial pro ceedings obtaining in England, the traditions of which came along with the settlers in America.
Some Judges seem to have alluded to the principles of natural justice in ex plaining what is meant by general law or "law of the land," though the doctrine of a law of nature did not obtain a firm footing at any time.
In Wynehamer vs New York (2), Justice Hubbard declared himself opposed to the judiciary attempting to set bounds to the legislative authority or declaring a statute invalid upon any fanciful theory of 'higher law or first principles of natural right outside of the Constitu tion.
Coke 's dictum of a supreme fundamental law which obviously referred to principles of English common law cer tainly did exercise considerable influence upon the minds of the American Judges (3) and there are observations in some cases (1) Darmouth College case, 4 Wheaton p. 518.
(2) (3) Willis on Constitutional Law, p. 647.
269 which go to suggest that the principles of natural justice were regarded as identical with those of common law, except where the rules of common law were not considered to be of fundamental character or were not acted upon as being un suited to the progress of time or conditions of the American Society (1).
In the case of Loan Association vs Topeka (2), it was observed that there are limitations upon powers of Government which grow out of the essential nature of free Governments implied reservations of individual rights without which the social compact could not exist and which are respected by all Governments entitled to the name.
What is hinted at, is undoubtedly the old idea of a social com pact under which political institutions were supposed to come into being; and the suggestion is that when the Ameri cans formed themselves into a State by surrendering a por tion of their rights which they possessed at that time and which presumably they inherited from their English ancestors, there were certain rights of a fundamental character still reserved by them which no State could possibly take away.
As has been said already, "due process of law" has never been defined by Judges or Jurists in America.
The best description of the expression would be to say that it means in each particular case such an exercise of the powers of Government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs (3).
In the actual application of the clause relating to "due process of law" to particular cases the decisions of the Supreme Court of America present certain peculiar and unusu al features and there is total lack of uniformity and consistency in them.
Ever since the appearance of the clause in the Fifth Amendment and down to the middle of the 19th century, it was interpreted as a restriction on proce dure, and particularly the judicial procedure, by which the Government (1) Cooley 's Constitutional Limitations, Vol.
II, p. 73940.
(2) 20 Wall, p. 655.
(3) Cooley 's Constitutional Limita tions, Vol.
II, p. 741.
270 exercises its powers.
Principally it related to the proce dure by which persons were tried for crimes and guaranteed to accused persons the right to have a fair trial in compli ance with well established criminal proceedings.
The same principle applied to the machinery or proceeding by which property rights were adjudicated and by which the powers of eminent domain and taxation were exercised.
During this period it was not considered to have any bearing on substan tial law at all.
Change, however, came in and the period that followed witnessed a growing recognition of the doctrine that sub stantive rights of life, liberty and property are protected by the requirement of due process of law against any depri vation attempted at by legislative authority; and the polit ical and economic conditions of the country accounted to a great extent for this change in judicial outlook.
The close of the civil war brought in a new period of industrial development leading to accumulation of large capital in the hands of industrialists and the emergence of a definite labouring class.
New and important problems arose which the States attempted to deal with by various laws and regu lations.
Some of them seem to have been ill advised and arbitrary and there was a clamour amongst businessmen against what they described as legislative encroachments upon their vested private rights.
The Supreme Court now began to use the rule of due process of law as a direct restraint upon substantial legislation and any statute or administrative act, which imposed a limitation upon rights of private property or free contractual relations between the employers and employed, was invalidated as not being in accordance with due process of law (1).
What constituted a legitimate exercise of the powers of legislation now came to be a judicial question and no statute was valid unless it was.
reasonable in the opinion of the Court.
The question of reasonableness obviously depends largely upon the.
ideas of particular individuals and the Courts or rather the majority of Judges thus marshalled their own (1) Vide Encyclopaedia of the Social Sciences, Vol.
V, pp. 265 67.
271 views of social and economic policy in deciding the reasona bleness or otherwise of the statutes.
In the language of a well known writer, the Courts became a kind of negative third chamber both to the State Legislatures and the Con gress(1).
To what extent the Courts laid stress upon the doctrine of freedom of contract is illustrated in the case of Lochner vs New York(2).
In that case the question arose as to the validity of a labour legislation which prohibited the employment of persons in certain fields of activity for more than 60 hours a week.
Lochner was indicted for violat ing this law by employing a man in his Biscuit and Cake Factory who was to work more than 60 hours in a week.
The Court by a majority of 5 to 4 held the statute to be invalid on the ground that the "right to purchase or sell labour is part of the liberty protected by the Amendment unless there are circumstances which excluded the right.
" That decision has been criticized not merely on the ground that it rested upon an economic theory which to quote the language of Holmes J., who was one of the dissentient Judges "was not entertained by a large part of the country;" but it ignored that such regulation was necessary for protecting the health of the employees, that is to say, it was in substance an exercise of police powers with a view to accomplish some object of public interest(s).
It may be mentioned here that while the due process doctrine was being extended by judicial pronouncements, the doctrine of police power which operates to some extent as a check upon the "due process" clause was simultaneously gaining importance.
Roughly speaking, police power may be defined as "a right of a Government to regulate the conduct of its people in the interests of public safety, health, morals and convenience.
Under this authority, a Government may make regulations concerning the safety of building, the regulation of traffic, the reporting of incurable diseases, the inspection of markets, the sanitation of factories, the hours of work for women (1) Vide Kelley and Harbinson on the American Constitution, p. 539. 198 u.s. 45.
Vide Willoughby on the Constitution of the U.S., Vol.
III, p. 271.
272 and children, the sale of intoxicants and such other matters ,,(1).
Here again, the extent to which the Court can inter fere with exercise of police powers by the State has not been clearly defined by judicial pronouncements.
The doc trine generally accepted is that although any enactment by legislature under the guise of exercise of police powers would not necessarily be constitutional, yet if the regula tion has a direct relation to its proposed object which is the accomplishment of some legitimate public purpose, the wisdom or policy of the legislation should not be examined by the Courts.
The rule is not without its exceptions but it is not necessary to elaborate them for our present pur pose(2).
The later decisions, though not quite uniform, reveal the growing influence of the police power doctrine.
It may be said that since 1936 there has been a definite swing of the judicial pendulum in the other direction.
In the case of West Coast Hotel Company vs Parrish(3) which related to the legality of a Statute for regulating the minimum wages of women, Chief Justice Hughes, who delivered the opinion of the Court, observed as follows: "In each case the violation alleged by those attack ing minimum wage regulation for women is deprivation of freedom of contract.
What is the freedom? The Constitution does not speak of freedom of contract.
It speaks of liberty and prohibits the deprivation of liberty without due process of law.
In prohibiting that deprivation the Constitution does not recognise an absolute and uncontrol lable liberty.
Liberty in each of its phases has its histo ry and connotation.
But the liberty safeguarded is liberty in a social organisation which requires the protection of law.
against the evils which menace the health, safety, morals and welfare of the people.
" In the succeeding years the indications certainly are that the requirement of due process of law as a substantial restriction on Government control is becoming a thing of the past and the rule is being restricted more (1) Vide Munroe The Government of the U.S., p. 522.
(2) Vide Willoughby on the Constitution of the U.S. Vol.
III, pp.
1709 70.
(3) ; 273 and more to its original procedural meaning.
What will happen in future cannot certainly be predicted at this stage(1).
Thus it will be seen that the "due process" clause in the American Constitution came to be used as a potent in strument in the hands of the judiciary for exercising con trol over social legislation.
The judicial pronouncements are not guided by any uniform principle, and the economic and social ideas of the Judges, who form the majority in the Supreme Court for the time being, constitute, so to say, the yard stick for measuring the reasonableness or otherwise of any enactment passed during that period.
No writer of American Constitutional Law has been able uptil now to evolve anything like a definite and consistent set of prin ciples out of the large mass of cases, where the doctrine of "due process of law" has been invoked or applied.
It is against this background that we must consider how the constitution makers in India dealt with and gave final shape to the provisions, on an analogous subject in the Indian Constitution.
In the Draft Constitution, article 15 (which now stands as article 21) was apparently framed on the basis of the 5th and 14th Amendments in the American Constitution.
The article was worded as follows: "No person shall be deprived of his life or liberty without due process of law.
" The Drafting Committee in their report recommended a change in the language of this article.
The first sugges tion was that the word "personal" shall be inserted before the word "liberty" and the second was that the expression "in accordance with procedure established by law" shall be substituted for "due process of law," the reason given being that the former expression was more specific.
The learned Attorney General has placed before us the debates in the Constituent Assembly centering round the adoption of this recommendation of the Drafting Committee and he has referred us to the (1) Swisher The Growth of Constitutional Power in the United States, pp. 123 25.
274 speeches of several members of the Assembly who played an important part in the shaping of the Constitution.
As an aid to discover the meaning of the words in a Consti tution, these debates are of doubtful value. ' 'Resort can be had to them" ' says Willoughby, ' 'with great caution and only when latent ambiguities are to be solved.
The proceed ings may be of some value when they clearly point out the purpose of the provision.
But when the question is of ab stract meaning, it will be difficult to derive from this source much material assistance in interpretation"(1).
The learned Attorney General concedes that these debates are not admissible to explain the meaning of the words used and he wanted to use them only for the purpose of showing that the Constituent Assembly when they finally adopted the recommendation of the Drafting Committee, were fully aware of the implications of the differences between the old form of expression and the new.
In my opinion, in interpreting the Constitution, it will be better if such extrinsic evi dence is left out of account.
In matters like this, differ ent members act upon different impulses and from different motives and it is quite possible that some members accepted certain words in a particular sense, while others took them in a different light.
The report of the Drafting Committee, however,has been relied upon by both parties and there are decided authori ties in which a higher value has been attached to such reports than the debates on the floor of the House.
In Caminetti vs United States (2), it is said that reports to Congress accompanying the introduction of proposed law may aid the Courts in reaching the true meaning of the legisla tion in case of doubtful interpretation.
The report is extremely short.
It simply says that the reason for the suggested change is to make the thing more specific.
I have no doubt in my mind that if the "due process" clause which appeared in the original draft was finally retained by the Constituent Assembly, it could be safely presumed that the framers of the Indian (1) Vide Willoughby on the Constitution of the United States, p. 64.
(2) ; 275 Constitution wanted that expression to bear the same sense as it does in America.
But when that form was abandoned and another was deliberately substituted in its place, it is not possible to say that in spite of the difference in the language and expression, they should mean the same thing and convey the same idea.
Mr. Nambiar 's contention is that in view of the somewhat uncertain and fluidic state of law as prevails in America on the subject, the Drafting Committee recommended an alteration for the purpose of making the language more specific and he would have us hold that it was made specific in this way, namely, that instead of being extended over the whole sphere of law, substantive as well as adjective, it was limited to procedural law mere ly.
That is the reason, he says, why instead of the word "process" the expression "procedure" was adopted, but the word "law" means the same thing as it does in the "due process" clause in America and refers not to any State made law but to the fundamental principles which are inherent in the legal system and are based upon the immutable doctrines of natural justice.
Attractive though this argument might at first sight appear, I do not think that it would be possible to accept it as sound.
In the first place, it is quite clear that the framers of the Indian Constitution did not desire to intro duce into our system the elements of uncertainty, vagueness and changeability that have grown round the "due process" doctrine in America.
They wanted to make the provision clear, definite and precise and deliberately chose the words" procedure established by law," as in their opinion no doubts would ordinarily arise about the meaning of this expression.
The indefiniteness in the application of the "due process" doctrine in America has nothing to do with the distinction between substantive and procedural law.
The uncertainty and elasticity are in the doctrine itself which is a sort of hidden mine, the contents of which nobody knows and is merely revealed from time to time to the.
judicial conscience of the Judges.
This theory, the Indian Constitu tion deliberately discarded 276 and that is why they substituted a different form in its place which, according to them, was more specific.
In the second place, it appears to me that when the same words are not used, it will be against the ordinary canons of con struction to interpret a provision in our Constitution in accordance with the interpretation put upon a somewhat analogous provision in the Constitution of another country, where not only the language is different, but the entire political conditions and constitutional set up are dissimi lar.
In the Supreme Court of America, stress has been laid uniformly upon the word "due" which occurs before and quali fies the expression "process of law.
" "Due" means " what is just and proper" according to the circumstances of a particular case.
It is this word which introduces the varia ble element in the application of the doctrine; for what is reasonable in one set of circumstances may not be so in another and a different set.
In the Indian Constitution the word "due" has been deliberately omitted and this shows clearly that the Constitution makers of India had no inten tion of introducing the American doctrine.
The word "estab lished" ordinarily means "fixed or laid down" and if "law" means, as Mr. Nambiar contends, not any particular piece of law but the indefinite and indefinable principles of natural justice which underlie positive systems of law, it would not at all be appropriate to use the expression "established," for natural law or natural justice cannot establish anything like a definite procedure.
It does not appear that in any part of the Constitution the word "law" has been used in the sense of "general law" connoting what has been described as the principles of natural justice outside the realm of positive law.
On the other hand, the provision of ' article 31 of the Constitu tion, which appears in the. chapter on Fundamental Rights, makes it clear that the word "law" is equivalent to State made law and to deprive a person of his property, the au thority or sanction of such law is necessary.
As has been said already, the provision of article 21 of.
the Indian Constitution reproduces, save in one particular, the 277 language of article 31 of the Japanese Constitution and it is quite clear from the scheme and provisions of the Japa nese Constitution that in speaking of law it refers to law passed or recognised as such by the State.
In the Irish Constitution also, there is provision in almost similar language which conveys the same idea.
Article 40 (4) (1) provides that "no citizen shall be deprived of his personal liberty save in accordance with law," and by law is certain ly meant the law of the State.
Possibly the strongest argument in support of Mr. Nambi ar 's contention is that if law is taken to mean State made law, then article 21 would not be a restriction on legisla tion at all.
No question of passing any law abridging the right conferred by this article could possibly arise and article 13 (2) of the Constitution would have no operation so far as this provision is concerned.
To quote the words of an American Judge it would sound very much like the Constitution speaking to the legislature that the latter could not infringe the right created by these articles unless it chose to do so (1).
Apparently this is a plausible argument but it must be admitted that we are not concerned with the policy of the Constitution.
The fundamental rights not merely impose limitations upon the legislature, but they serve as checks on the exercise of executive powers as well, and in the matter of depriving a man of his personal liberty, checks on the high handedness of the executive in the shape of pre venting them from taking any step, which is not in accord ance with law, could certainly rank as fundamental rights.
In the Constitutions of various other countries, the provi sions relating to protection of personal liberty are couched very much in the same language as in article 21.
It is all a question of policy as to whether the legislature or the judiciary would have the final say in such matters and the Constitution makers of India deliberately decided to place these powers in the hands of the legislature.
Article 31 of the Japanese Constitution, upon which article 21 of our Constitution is modelled, also (1) Vide per Bronson 5.
in Taylor vs Porte 4 Hill 1<0.
278 proceeds upon the same principle.
The Japanese Constitu tion, it is to be noted, guarantees at the same.
time other rights in regard to arrest, detention and access to Court which might serve as checks on legislative authority as well.
Thus article 32 provides: "No person shall be denied the right of access to the Courts.
" Article 34 lays down: "No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel, nor shall he be detained without adequate cause; and upon demand of any person, such cause must be immediately shown in open Court in his presence and in the.
presence of his counsel.
" It was probably on the analogy of article 34 of the Japanese Constitution that the first two clauses of article 22 of the Indian Constitution were framed.
Article 22 was not in the original Draft Constitution at all; and after the "due process" clause was discarded by the Constituent Assem bly and the present form was substituted in its place in article 21, article 22 was introduced with a view to provide for some sort of ' check in matters of arrest and detention and the protection it affords places limitations upon the authority of the legislature as well.
These protections indeed have been denied to cases of preventive detention but that again is a question of policy which does not concern us as a Court.
My conclusion, therefore, is that in article 21 the word "law" has been used in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice.
The article presupposes that the law is a valid and binding law under the provisions.
of the Constitution having regard to the competency of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for.
In the view that I have taken, the question raised by Mr. Nambiar that the is invalid, by reason of the fact that the procedure it lays 279 down is not in conformity with the rules of natural justice, does not fall for consideration.
It is enough, in my opin ion, if the law is a valid law which the legislature is competent to pass and which does not transgress any of the fundamental rights declared in of the Constitution.
It is also unnecessary to enter into a discussion on the question raised by the learned Attorney General as to wheth er article 22 by itself is a self contained Code with regard to the law of Preventive Detention and whether or not the procedure it lays down is exhaustive.
Even if the procedure is not exhaustive, it is not permissible to supplement it by application of the rules of natural justice.
On the third point raised by Mr. Nambiar, the only question, therefore, which requires consideration is whether section 12 of the is ultra vires of the Constitution by reason of its being not in conformity with the provision of article 22 (7)(a).
Article 22 (7) (a) of the Constitution empowers the Parliament to prescribe the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an advisory board in accordance with the provisions of sub clause (a) of clause (4).
Section 12 of the which purports to be an enact ment in pursuance of article 22 (7) (a) of the Constitution provides as follows: "(1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an advisory board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to (a) the defence of India, relations of India with for eign powers or the security of India; or (b) the security of a State or the maintenance of public order.
" It will be noticed that there are altogether six 36 280 heads or subjects in the two Items in the legislative lists, namely, Item No. 9 of List I and Item No. 3 of List III which deal with preventive detention.
Item No. 9 of List I mentions reasons connected with defence, foreign affairs and security of India, while Item No. 3 of List III speaks of reasons connected with security of a State, the maintenance of public order and the maintenance of supplies and services essential to the community.
With the exception of the last head; all the remaining five have been listed in section 12 of the preventive Detention Act and they have been mentioned both as circumstances and classes of cases in which deten tion for more than three months would be permissible without the opinion of any advisory board.
Mr. Nambiar 's argument is that the mentioning_ of five out of the six legislative heads in section 12 does not amount to prescribing the circumstances under which, or the classes of cases in which, a person could be detained for more than three months as contemplated by article 22 (7) (a).
It is also contended that in view of the fact that the two items "circumstances" and "classes" are separated by the conjunction "and," what the Constitution really contemplated was that both these items should be specified and a statement or specification of any one of them would not be a proper compliance with the provisions of the clause.
It is further pointed out that the mentioning of the same matters as "circumstances" or "classes" is not warranted by article 22 (7) of the Consti tution and is altogether illogical and unsound.
I must say that section 12 has been drafted in a rather clumsy manner and certainly it could have been framed in a better and more proper way.
Under article 22(7)(a), the Parliament may specify the circumstances under which, and the classes of cases in which, the necessity of placing the cases of detention for examination by the advisory board could be dispensed with.
By "classes of cases" we mean certain determinable groups, the individuals comprised in each group being related to one another in a particular way which constitutes the determining factor of that group.
"Circumstances" on the other hand 281 connote situations or conditions which are external to the persons concerned.
Preventive detention can be provided for by law for reasons connected with six different ,matters specified in the relevant items in the legislative lists, and whatever the reasons might be, there is a provision contained in article 22 (4) (a) which lays down that deten tion for more than three months could not be permitted except with the sanction of the advisory board.
An alterna tive however has been provided for by clause (b) and Parlia ment has been given the option to take away the protection given by clause (a) and specify the circumstances and the cases when this rule will not apply.
I am extremely doubt ful whether the classification of cases made by Parliament in section 12 of the Act really fulfils the object which the Constitution had in view.
The basis of classification has been the apprehended acts of the persons detained described with reference to the general heads mentioned in the items in the legislative lists as said above.
Five out of the six heads have been taken out and labelled as classes of cases to which the protection of clause (4) (a) of the article would not be available.
It is against common sense that all forms of activities connected with these five items are equally dangerous and merit the same drastic treatment.
The descriptions are very general and there may be acts of various degrees of intensity and danger under each one of these heads.
Although I do not think that section 12 has been framed with due regard to the object which the Constitution had in view, I am unable to say that the section is invalid as being ultra vires the Constitution.
The Constitution has given unfettered powers to Parliament in the matter of making the classifications and it is open to the Parliament to adopt any method or principle as it likes.
If it chose the principle implied in the enumeration of subjects under the relevant legislative heads, it cannot be said that Parliament has exceeded its powers.
I am also unable to hold that both "circumstances" as well as "classes" have to be prescribed in order to 282 comply with the requirement of sub clause (a) of article 22 (7).
The sub clause (a) of the article lays down a purely enabling provision and Parliament, if it so chooses, may pass any legislation in terms of the same.
Where an optional power is conferred on certain authority to perform two separate acts, ordinarily it would not be obligatory upon it to perform both; it may do either if it so likes.
Here the classes have been specified and the classes apparently are composed of persons who are detained for the purpose of preventing them from committing certain apprehended acts.
I am extremely doubtful whether the classes themselves could be described as "circumstances" as they purport to have been done in the section.
"Circumstances" would ordinarily refer to conditions like war, rebellion, communal disturbances and things like that, under which extra precaution might be :necessary and the detention of suspected persons beyond the period of three months without the sanction of the advisory board might be justified.
It is said that the likelihood of these persons committing the particular acts which are specified might constitute "circumstances.
" In my opinion, that is not a plain and sensible interpretation.
But whatev er that may be, as I am of opinion that it is not obligatory on Parliament to prescribe both the circumstances and the classes of cases, I am unable to hold that section 12 is ultra vires the Constitution because the circumstances are not mentioned.
As I have said at the beginning, the draft is rather clumsy and I do not know why Parliament used the word "or" when in the Constitution itself the word "and" has been used.
In the fourth and last point raised by Mr. Nambiar the principal question for consideration is the validity of section 14 of the .
Subsection (1)of section 14 prohibits any Court from allowing any statement to be made or any evidence to be given before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or any representation made by him against such order.
It further provides that no Court shall be 283 entitled to require any public officer to produce before it or to disclose the substance of any such communication or representation made or the proceedings of an advisory board or that part of the report of an advisory board which is confidential.
Sub section (2) further provides that: "It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the ' case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section (1): Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.
" The provisions of this section are obviously of a most drastic character.
It imposes a ban on the Court and pre vents it from allowing any statement to be made or any evidence produced before it of the substance of any communi cation made to the detenu apprising him of the grounds upon which the detention order was made.
The Court is also incompetent to look into the proceedings before the advisory board or the report of the latter which is confidential.
Further the disclosure of such materials has been made a criminal offence punishable with imprisonment for a term which may extend to one year.
Mr. Nambiar 's contention is that these restrictions render utterly nugatory the provi sions of article 32 of the Constitution which guarantees to every person the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution.
It is not disputed that the petitioner has the right of moving this Court for a writ of habeas corpus, and unless the Court is in a position to look into and examine the grounds upon which the detention order has been made, it is impossible for it to come to any deci sion on the point and pass a proper judgment.
Though the right to move this 284 Court is not formally taken away, the entire proceedings are rendered ineffective and altogether illusory.
On behalf of the respondent, it is pointed out that article 32 guarantees only the right to constitutional remedy for enforcement of the rights which are declared by the Constitution.
If there are no rights under the Constitution, guaranteed to a person who is detained under any law of preventive deten tion, no question of enforcing such rights by an ap proach to this Court at all arises.
I do not think that this argument proceeds on a sound basis; and in my opinion, section 14 does take away and materially curtails some of the fundamental rights which are guaranteed by the Constitu tion itself.
Article 22, clause (5), of the Constitution lays down as a fundamental right that when a person is detained for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representa tion against the order.
Under clause (6), the authority need not disclose such facts as it considers to be against public interest to disclose.
But so far as the grounds are concerned, the disclosure is not prohibited under any cir cumstance.
It is also incumbent upon the detaining authori ty to afford a detenu the earliest opportunity of making a representation against the detention order.
It has been held in several cases, and in my opinion quite rightly, that if the grounds supplied to a detained person are of such a vague and indefinite character that no proper and adequate representation could be made in reply to the same, that itself would be an infraction of the right which has been given to the detenu under law.
In my opinion, it would not be possible for the Court to decide whether the provisions of article 22, clause (5), have been duly complied with and the fundamental right guaranteed by it has been made avail able to the detenu unless the grounds communicated to him under the provisions of this article are actually produced before the Court.
Apart from this, it is also open to.
the person detained to contend that the detention 285 order has been a main fide exercise of power by the detain ing authority and that the grounds upon which it is based, are not proper or relevant grounds which would justify detention under the provisions of the law itself.
These rights of the detenu would for all practical purposes be rendered unenforceable if the Court is precluded from look ing into the grounds which have been supplied to him under section 7 of the .
In my opinion, section 14 of the does materially affect the fundamental rights declared under of the Constitution and for this reason it must be held to be illegal and ultra vires.
It is not disputed, however, that this section can be severed from the rest of the Act without affecting the other provisions of the Act in any way.
The whole Act cannot, therefore, be held to be ultra vires.
Mr. Nambiar has further argued that section 3 of the Act also contravenes the provisions of article 32 of the Consti tution, for it makes satisfaction of the particular authori ties final in matters of preventive detention and thereby prevents this Court from satisfying itself as to the propriety of the detention order.
This contention cannot succeed as no infraction of any fundamental right is in volved in it.
As has been pointed out already, this Court cannot interfere unless it is proved that the power has been exercised by the authorities in a mala fide manner or that the grounds are not proper or relevant grounds which justify detention.
The provisions are undoubtedly harsh, but as they do not take away the rights under articles 21 and 22 of the Constitution, they cannot be held to be illegal or ultra vires.
The result, therefore, is that, in my opinion, the must be declared to be intra vires the Constitution with the exception of section 14 which is held to be illegal and ultra vires.
The present petition, however, must stand dismissed, though it may be open to the petitioner to make a fresh application if he so chooses and if the grounds that have been supplied to him under section 7 of the Act do furnish adequate reasons for making such application.
286 DAS J. I am likewise of opinion that this application should be dismissed.
The contention of learned counsel appearing in support of this application is that the provisions of the (Act IV of 1950), are extremely drastic and wholly unreasonable and take away or, in any event, considerably abridge the fundamental rights conferred on the citizens by the provisions of of the Constitution and that this Court should declare the Act wholly void under article 13 (2) of the Constitution and set the petitioner at liberty.
It is necessary to bear in mind the scope and ambit of the powers of the Court under the Constitution.
The powers of the Court are not the same under all Constitutions.
In England Parliament is supreme and there is no limitation upon its legislative powers.
Therefore, a law duly made by Parliament cannot be challenged in any Court.
The English Courts have to interpret and apply the law; they have no authority to declare such a law illegal or unconstitutional.
By the American Constitution the ' legislative power of the Union is vested in the Congress and in a sense the Congress is the supreme legislative power.
But the written Constitu tion of the United States is supreme above all the three limbs of Government and, therefore, the law made by the Congress, in order to be valid, must be in conformity with the provisions of the Constitution.
If it is not, the Supreme Court will intervene and declare that law to be unconstitutional and void.
As will be seen more fully hereafter, the Supreme Court of the United States, under the leadership of Chief Justice Marshall, assumed the power to.
declare any law unconstitutional on the ground of its not being in "due process of law," an expression to be found in the Fifth Amendment (1791) of the United States Constitution and the Fourteenth Amendment (1868) which related to the State Constitutions.
It is thus that the Supreme Court established its own supremacy over the executive and the Congress.
In India the position of the Judiciary is some where in 287 between the Courts in England and the United States.
While in the main leaving our Parliament and the State Legisla tures supreme in their respective legislative fields, our Constitution has, by some of the articles, put upon the Legislatures certain specified limitations some of which will have to be discussed hereafter.
The point to be noted, however, is that in so far as there is any limitation on the legislative power, the Court must, on a complaint being made to it, scrutinise and ascertain whether such limitation has been transgressed and if there has been any transgression the Court will courageously declare the law unconstitution al, for the Court is bound by its oath to uphold the Consti tution.
But outside the limitations imposed on the legisla tive powers our Parliament and the State Legislatures are supreme in their respective legislative fields and the Court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature.
Our Constitution, unlike the English Constitution, recognises the Court 's supremacy over the legislative authority, but such supremacy is a very limited one, for it is confined to the field where the legislative power is circumscribed by limitations put upon it by the Constitution itself.
Within this restrict ed field the Court may, on a scrutiny of the law made by the Legislature, declare it void if it is found to have trans gressed the constitutional limitations.
But our Constitu tion, unlike the American Constitution, does not recognise the absolute supremacy of the Court over the legislative authority in all respects, for outside the restricted field of constitutional limitations our Parliament and the State Legislatures are supreme in their respective legislative fields and in that wider field there is no scope for the Court in India to play the role of the Supreme Court of the United States.
It is well for us to constantly remember this basic limitation on our own powers.
The impugned Act has been passed by Parliament after the Constitution came into force.
Article 246 gives exclusive power to Parliament to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule and it gives exclusive power to 288 the State Legislatures to make laws with respect to any of the matters specified in List II of that Schedule.
It also gives concurrent power to Parliament as well as to the State Legislatures to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule.
Residuary powers of legislation are vested in parliament under article 248.
The first thing to note is that under Entry 9 of List I the parliament and under Entry 3 in List III both parliament and the State Legislatures are empowered to make laws for preventive detention for reasons connected with the several matters specified in the respective entries.
This legisla tion is not conditioned upon the existence of any war with a foreign power or upon the proclamation of emergency under Part XVIII of the Constitution.
Our Constitution has, there fore, accepted preventive detention as the subjectmatter of peacetime legislation as distinct from emergency legisla tion.
It is a novel feature to provide for preventive detention in the Constitution.
There is no such provision in the Constitution of any other country that I know of.
Be that as it may, for reasons good or bad, our Constitution has deliberately and plainly given power to Parliament and the State Legislatures to enact preventive detention laws even in peacetime.
To many of us a preventive detention law is odious at all times but what I desire to emphasise is that it is not for the Court to question the wisdom and policy of the Constitution which the people have given unto themselves.
This is another basic fact which the Court must not overlook.
The next thing to bear in mind is that, if there were nothing else in the Constitution, the legislative powers of Parliament and the State Legislatures in their respective fields would have been absolute.
In such circumstances the Court would have been entitled only to scrutinise whether Parliament or the State Legislature had, in making a partic ular law, over . stepped its legislative field and en croached upon the legislative field of the other legislative power, but could not have otherwise questioned the validity of any law made by the parliament or the State Legislatures.
289 Thus under Entry 9 of List I the Parliament and under Entry 3 of List III the Parliament and the State Legislature could make as drastic a preventive detention law as it pleased.
Such a law might have authorised a policeman, not to speak of a District Magistrate or Sub Divisional Magistrate or the Commissioner of Police, to take a man, citizen or non citi zen, into custody and keep him in detention for as long as he pleased.
This law might not have made any provision for supplying to the detenu the grounds of his detention or affording any opportunity to him to make any representation to anybody or for setting up any advisory board at all.
Likewise, under Entries 1 and 2 in List III the Parliament or the State Legislature might have added as many new and novel offences as its fancy might have dictated and provided for any cruel penalty ranging from the maiming of the limbs to boiling to death in oil or repealed the whole of the Code of Criminal Procedure and provided for trial by battle or ordeal or for conviction by the verdict of a sorcerer or a soothsayer.
Such law might have forbidden any speech criti cising the Government, however mildly, or banned all public meetings or prohibited formation of all associations under penalty of law.
Under Entry 33 of List I the Parliament might have made a law for acquiring anybody 's properties for the purposes of the Union without any compensation and under Entry 36 in List III the State Legislature could do the same subject to the provisions of Entry 42 in List III which empowers the making of a law laying down principles for payment of compensation which might be anything above noth ing.
Under Entry 81 Parliament could have made any law restricting or even prohibiting inter State migration so that a Bengali would not be able to move into and settle in Bihar or vice versa.
It is needless to multiply instances of atrocious laws which Parliament or the State Legislature might have made under article 246 read with the different lists if there were nothing else in the Constitution.
Our Legislatures, subject to the limitation of distribution of legislative powers, would have been as supreme in their respective legislative fields as the 290 English Parliament is and has been.
The Court in India, in such event, would have had to take the law duly made, inter pret it and apply it.
It would not have been entitled to utter a word as to the propriety of the particular law, although it might have shuddered at the monstrous atrocities of such law.
Our Constitution, however, has not accepted this abso lute supremacy of our Parliament or the State Legislature.
Thus by article 245 (1) the legislative power is definitely made "subject to the provisions of this Constitution.
" Turning to the Constitution, article 13 (2) provides as follows: "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
" This clearly puts a definite limitation on the wide legislative powers given by article 246.
It is certainly within the competency of the Court to judge and declare whether there has been any contravention of this limitation.
In this respect again the Court has supremacy over the Legislature.
From the provisions so far referred to, it clearly follows that there are two principal limitations to the legislative power of parliament, namely, (i) that the law must be within the legislative compe tence of parliament as prescribed by article 246; and (ii) that such law must be subject to the pro visions of the Constitution and must not take away or abridge the rights conferred by Part III.
There can be no question and, indeed, the learned Attorney General does not contend otherwise that both these matters are justiciable and it is open to the Courts to decide whether Parliament has transgressed either of the limitations upon its legislative power.
Learned counsel for the petitioner does not say that the impugned Act is ultra vires the legislative powers of Parliament as prescribed by article 246.
His contention is that the impugned Act is void 291 because it takes away or abridges the fundamental rights of citizens conferred by Part III of the Constitution.
It is, therefore, necessary to ascertain first the exact nature, extent and scope of the particular fundamental right insist ed upon and then to see whether the impugned Act has taken away or, in any way, abridged the fundamental right so ascertained.
Civil rights of a person are generally divided into two classes, namely, the rights attached to the person (jus personarum) and the rights to things, i.e., property (jus rerum).
Of the rights attached to the person, the first and foremost is the freedom of life, which means the right to live, i.e., the right that one 's life shall not be taken away except under authority of law.
Next to the freedom of life comes the freedom of the person, which means that one 's body shall not be touched, violated, arrested or imprisoned and one 's limbs shall not be injured or maimed except under authority of law.
The truth of the matter is that the right to live and the freedom of the person are the primary rights attached to the person.
If a man 's person is free, it is then and then only that he can exercise a variety of other auxiliary rights, that is to say, he can, within certain limits, speak what he likes, assemble where he likes, form any associations or unions, move about freely as his "own inclination may direct," reside and settle anywhere he likes and practise any profession or carry on any occupation, trade or business.
These are attributes of the freedom of the person and are consequently rights attached to the person.
It should be clearly borne in mind that these are not all the rights attached to the person.
Besides them there are varieties of other rights which are also the attributes of the freedom of the person.
All rights attached to the person are usually called personal liberties and they are too numerous to be enumerated.
Some of these auxiliary rights are so important and fundamental that they are re garded and valued as separate and independent rights apart from the freedom of the person.
Personal liberties may be compendiously summed up as the right to do as one pleases within the law.
I 292 say within the law because liberty is not unbridled licence.
It is what Edmund Burke called "regulated freedom." Said Montesquieu in Book III, Ch. 3, of his Spirit of the Laws: "In Governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will.
We must have continually present to our minds the difference between independence and liberty.
Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow citizens would enjoy the same power.
" To the same effect are the following observations of Webster in his Works Vol.
II, p. 393: "Liberty is the creation of law, essentially different from that authorised licentiousness that trespasses on right.
It is a legal and refined idea, the offspring of high civilization, which the savage never understands, and never can understand.
Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have.
It is an error to suppose that liberty consists in a paucity of laws . .
The working of our complex system, full of checks and restraints on legislative, executive and judicial power is favourable to liberty and justice.
These checks and restraints are so many safeguards set around individual rights and interests.
That man is free who is protected from injury.
" Therefore, putting restraint on the freedom of wrong doing of one person is really.
securing the liberty of the intended victims.
To curb the freedom of the saboteur of surreptitiously removing the fish plates from the railway lines is to ensure the safety and liberty of movement of the numerous innocent and unsuspecting passengers.
Therefore, restraints on liberty should be judged not only subjectively as applied to a few individuals who come within their opera tions but also objectively as securing the liberty of a far greater number of individuals.
Social interest in individu al 293 liberty may well have to be subordinated to other greater social interests.
If a law ensures and protects the greater social interests then such law will be a wholesome and beneficent law although it may infringe the liberty of some individuals, for it will enure for the greater liberty of the rest of the members of the society.
At the same time, our liberty has also to be guarded against executive, legislative as well as judicial usurpation of powers and prerogatives.
Subject to certain restraints on individuals and reasonable checks on the State every person has a varie ty of personal liberties too numerous to be cataloged.
As will be seen more fully hereafter, our Constitution has recognised personal liberties as fundamental rights.
It has guaranteed some of them under article 19 (1) but put re straints on them by clauses (2) to (6).
It has put checks on the State 's legislative powers by articles 21 and 22.
It has by providing for preventive detention, recognised that individual liberty may be subordinated to the larger social interests.
Turning now to the Constitution I find that Part III is headed and deals with "Fundamental Rights" under seven heads, besides, "General" provisions (articles 12 and 13), namely "Right to Equality" (articles 14 to 18), "Right to Freedom" (articles 19 to 22), "Right against Exploitation" (articles 23 and 24), "Right to Freedom of Religion" (articles 25 to 28), "Cultural and Educational Rights" (articles 29 and 30), "Right to Property" (article 31), "Right to Constitutional Remedies" (articles 32 to 35).
Under the heading "Right to Freedom" are grouped four arti cles, 19 to 22.
Article 19 (1) is in the following terms : " (1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property; and 294 (g) to practise any profession, or to carry on any occupation, trade or business.
" It will be noticed that of the seven rights protected by clause (1) of article 19, six of them, namely, (a), (b), (c), (d), (e) and (g) are what are said to be rights at tached to the person (jus personarum).
The remaining item, namely, (f) is the right to property (jus rerum).
If there were nothing else in article 19 these rights would have been absolute rights and the protection given to them would have completely debarred parliament or any of the State Legisla tures from making any law taking away or abridging any of those rights.
But a perusal of article 19 makes it abun dantly clear that none of the seven rights enumerated in clause (1) is an absolute right, for each of these rights is liable to be curtailed by laws made or to be made by the State to the extent mentioned in the several clauses (2) to (6) of that article.
Those clauses save the power of the State to make laws imposing certain specified restrictions on the several rights.
The nett result is that the unlimit ed legislative power given by article 246 read with the different legislative lists in the Seventh Schedule is cut down by the provisions of article 19 and all laws made by the State with respect to these rights must, in order to be valid, observe these limitations.
Whether any law has in fact transgressed these limitations is to be ascertained by the Court and if in its view the restrictions imposed by the law are greater than what is permitted by clauses (2) to (6) whichever is applicable the Court will declare the same to be unconstitutional and, therefore, void under article 13.
Here again there is scope for the application of the "intel lectual yardstick" of the Court.
If, however, the Court finds, on scrutiny, that the law has not overstepped the constitutional limitations, the Court will have to uphold the law, whether it likes the law or not.
The first part of the argument is put broadly, namely, that personal liberty is generally guaranteed by the Consti tution by article 19 (1) and that the , has imposed unreasonable 295 restrictions thereon in violation of the provisions of clauses (2) to (6) of that article.
The very first question that arises, therefore, is as to whether the freedom of the person which is primarily and directly suspended or de stroyed by preventive detention is at all governed by arti cle 19 (1).
If personal liberty as such is guaranteed by any of the sub clauses of article 19 (1) then why has it also been protected by article 21 ? The answer suggested by learned counsel for the petitioner is that personal liberty as a substantive right is protected by article 19 (1) and article 21 gives only an additional protection by prescrib ing the procedure according to which that right may be taken away.
I am unable to accept this contention.
If this argument were correct, then it would follow that our Consti tution does not guarantee to any person, citizen or non citizen, the freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the sub clauses of clause (1) of article 19.
It is retorted in reply that no constitution or human laws can guarantee life which is the gift of God who alone can guar antee and protect it.
On a parity of reasoning no Constitu tion or human laws can in that sense guarantee freedom of speech or free movement, for one may be struck dumb by disease or may lose the use of his legs by paralysis or as a result of amputation.
Further, what has been called the procedural protection of article 21 would be an act of supererogation, for when God takes away one 's life, whatever opportunity He may have had given to Adam to explain his conduct before sending him down, He is not likely in these degenerate days to observe the requirements of notice or fair trial before any human tribunal said to be required by article 21.
The fifth Amendment and the Fourteenth Amendment of the American Constitution give specific protection to life as a substantive right.
So does article 31 of the Japanese Constitution of 1946.
There is no reason why our Constitution should not do the same.
The truth is that article 21 has given that protection to life as a substan tive right and that, as will be seen hereafter, that article properly understood does not purport to prescribe any par ticular procedure at all.
The 38 296 further astounding result of the argument of counsel for the petitioner will be that the citizen of India will have only the rights enumerated in article 19, clause (1) and no other right attached to his person.
As I have already stated, besides the several rights mentioned in the several sub clauses of article 19 (1) there are many other personal liberties which a free man, i.e., a man who has the freedom of his person, may exercise.
Some of those other rights have been referred to by Harries C.J. of Calcutta in his unreported judgment in Miscellaneous Case No. 166 of 1950 (K.shitindra vs The Chief Secretary of West Bengal) while referring the case to a Full Bench in the following words : "It must be remembered that a free man has far more and wider rights than those stated in article 19 (1) of the Constitution.
For example, a free man can eat what he likes subject to rationing laws, work as much as he likes or idle as much as he likes.
He can drink anything he likes subject to the licensing laws and smoke and do a hundred and one things which are not included in article 19.
If freedom of person was the result of article 19, then a free man would only have the seven rights mentioned in that article.
But obviously the free man in India has far greater rights.
" I find myself in complete agreement with the learned Chief Justice on this point.
If it were otherwise, the citizen 's right to eat what he likes will be liable to be taken away by the executive fiat of the Civil Supply Depart ment without the necessity of any rationing laws.
The Government may enforce prohibition without any prohibition laws or licensing laws and so on.
I cannot accept that our Constitution intended to give no protection to the bundle of rights which, together with the rights mentioned in sub clauses (a) to (e) and (g) make up personal liberty.
In deed, I regard it as a merit of our Constitution that it does not attempt to enumerate exhaustively all the personal rights but uses the compendious expression "personal liber ty" in ' article 21, and protects all of them.
It is pointed out that in the original draft the word "liberty" only was used as in the American 297 Constitution but the Drafting Committee added the word "personal" to make it clear that what was being protected by what is now article 21 was not what had already been pro tected by what is now article 19.
If it were permissible to refer to the Drafting Committee 's report, it would be anoth er answer to the contentions of learned counsel for the petitioner that personal liberty as a substantive right was protected by article 19.
I do not, however, desire to base my judgment on the Drafting Committee 's report and I express no opinion as to its admissibility.
Whatever the intentions of the Drafting Committee might have been, the Constitution as finally passed has in article 21 used the words "personal liberty" which have a definite connotation in law as I have explained.
It does not mean only liberty of the person but it means liberty or the rights attached to the person (jus personarum).
The expressions "freedom of life" or "personal liberty" are not to be found in article 19 and it is strain ing the language of article 19 to squeeze in personal liber ty into that article.
In any case the right to life cannot be read into article 19.
Article 19 being confined, in its operation, to citizens only, a non citizen will have no protection for his life and personal liberty except what has been called the procedural protection of article 21.
If there be no substantive right what will the procedure protect ? I recognise that it is not imperative that a foreigner should have the same privileges as are given to a citizen, but if article 21 is construed in the way I have suggested even a foreigner will have equal protection for his life and personal liberty before the laws of our country under our Constitution.
I am unable, there fore, for all the reasons given above, to agree that person al liberties are the result of article 19 or that that article purports to protect all of them.
It is next urged that the expression "personal liberty" is synonymous with the right to move freely and, therefore, comes directly under article 19 (1) (d).
Reference is made to the unreported dissenting judgment of Sen J. of Calcutta in Miscellaneous Case No. 166 of 1950 while referring that case to a Full Bench.
298 In his judgment Sen J. quoted the following passage from Blackstone 's Commentaries : "Next to personal security the law of :England regards, asserts and preserves, the personal liberty of individuals.
This personal liberty consists in the power of locomotion, of changing situation, or moving one 's person to whatsoever place one 's own inclination may direct, without imprisonment or restraint, unless by due course of law." (Page 73 of George Chase 's Edition (4th Edition) of Blackstone, Book I, Chapter I.
On the authority of the above passage the learned Judge concluded that personal liberty came within article 19 (1)(d).
I am unable to agree with the learned Judge 's con clusion.
On a perusal of Chapter I of Book I of Black stone 's Commentaries it will appear that the]earned commen tator divided the rights attached to the person (jus person arum) into two classes, namely, "personal security" and "personal liberty.
" Under the head "personal security" Blackstone included several rights, namely, the rights to ' life, limb, body, health and reputation, and under the head "personal liberty" he placed only the right of free move ment.
He first dealt with the several rights classified by him under the head "personal security" and then proceeded to say that next to those rights came personal liberty which according to his classification consisted only in the right of free locomotion.
There is no reason to suppose that in article 21 of our Constitution the expression "personal liberty" has been used in the restricted sense in which Blackstone used it in his Commentaries.
If "personal liber ty" in article 21 were synonymous with the right to move freely which is mentioned in article 19 (1) (d), then the astounding result will be that only the last mentioned right has what has been called the procedural protection of arti cle 21 but none of the other rights in the other sub clauses of article 19 (1) has any procedural protection at all.
According to learned counsel for the petitioner the proce dure required by article 21 consists of notice and a right of hearing before an impartial tribunal.
Therefore, accord ing to him, a man 's right of movement cannot be taken away without giving him notice and a fair trial 299 before an impartial tribunal but he may be deprived of his freedom of speech or his property or any of his other rights without the formality of any procedure at all.
The proposi tion has only to be stated to be rejected.
In my judgment, article '19 protects some of the important attributes of personal liberty as independent rights and the expression "personal liberty" has been 'used in article 21 as a compen dious term including within its meaning all the varieties of rights which go to make up the personal liberties of men.
Learned counsel for the petitioner next contends that personal liberty undoubtedly means or includes the freedom of the person and the pith and substance of the freedom of the person is right to move about freely and consequently a preventive detention law which destroys or suspends the freedom of the person must inevitably destroy or suspend the right of free movement and must necessarily offend against the protection given to the citizen by article 19 (1)(d) unless it satisfies the test of reasonableness laid down in clause (5).
The argument is attractive and requires serious consideration as to the exact purpose and scope of sub clause (d) of article 19 (1).
There are indications in the very language of article 19 (1) (d) itself that its purpose is to protect not the gener al right of free movement which emanates from the freedom of the person but only a specific and 'limited aspect of it, namely, the special right of a free citizen of India to move freely throughout the Indian territory, i.e., from one State to another within the Union.
In other words, it guarantees, for example, that a free Indian citizen ordinarily residing in the State of West Bengal will be free to move from West Bengal to Bihar or to reside and settle in Madras or the Punjab without any let or hindrance other than as provided in clause (5).
It is this special right of movement of the Indian citizen in this specific sense and for this particu lar purpose which is protected by article 19 (1) (d).
It is argued on the authority of a decision of a Special Bench of the Calcutta High Court presided over by Sen J. in Sunil Kumar vs The Chief 300 Secretary of West Bengal (1) that the words "through .
out the territory of India" occurring in that sub clause only indicate that our Constitution does not guarantee to its citizens the right of free movement in or into foreign territory and that those words have been added to save passport restrictions.
I am unable to accept this interpre tation.
Our Constitution cannot possibly give to any of its citizens any right of free movement in a foreign country and it was wholly superfluous to specifically indicate this in the Constitution, for that would have gone without saying.
The words "throughout the territory of India" are not used in connection with most of the other sub clauses of clause (1) of article 19.
Does such omission indicate that our Constitution guarantees to its citizens freedom of speech and expression, say, in Pakistan ? Does it guarantee to.
its citizens a right to assemble or to form associations or unions in a foreign territory ? Clearly not.
Therefore, it was not necessary to use those words in sub clause (d) to indicate that free movement in foreign countries was not being guaranteed.
It is said that by the use of those words the Constitution makes it clear that no1 guarantee was being given to any citizen with regard to emigration from India without a passport and that the freedom of movement was restricted within the territory of India.
Does the omission of those words from article 19 (1) (a) indicate that the citizen of India has been guaranteed such freedom of speech and expression as will enable him to set up a broadcasting station and broadcast his views and expressions to foreign lands without a licences ? Clearly not.
Dropping this line of argument and adopting a totally new line of argument it is said that by the use of the words "throughout the territory of India" the Constitution indicates that the widest right of free movement that it could possibly give to its citizens has been given.
then, the omission of those words from the other subclauses indicate that the Constitution has kept back some parts of those rights even beyond the limits of the qualifying clauses that follow ? Do not those other rights prevail throughout the Indian territory ? (1) 301 Clearly they do, even without those words.
Therefore, those words must have been used in sub clause (d) for some other purpose.
That other purpose, as far as I can apprehend it, is to indicate that free movement from one State to another within the Union is protected so that Parliament may not by a law made under Entry 81 in List I curtail it beyond the limits prescribed by clause (5) of article 19.
Its purpose, as I read it, is not to provide protection for the general right of free movement but to secure a specific and special right of the Indian citizen to move freely throughout the territories of India regarded as an independent additional right apart from the general right of locomotion emanating from the freedom of the person.
It is a guarantee against unfair discrimination in the matter of free movement of the Indian citizen throughout the Indian Union.
In short, it is a protection against provincialism.
It has nothing to do with the freedom of the person as such.
That is guaranteed to every person, citizen or otherwise, in the manner and to the extent formulated by article 21.
Clause (5) of article 19 qualifies sub clause (d) of clause (1) which should, therefore, be read in the light of clause (5).
The last mentioned clause permits the State to impose reasonable restrictions on the exercise of the right of free movement throughout the territory of India as ex plained above.
Imposition of reasonable restrictions clearly implies that the right of free movement is not entirely destroyed but that parts of the right remain.
This reasona ble restriction can be imposed either in the interest of the general public or for the protection of the interests of any Scheduled Tribe.
The Scheduled Tribes usually reside in what are called the Scheduled Areas.
The provision for imposing restriction on the citizens ' right of free movement in the interests of the Scheduled Tribes clearly indicates that the restriction is really on his right of free movement into or within the Scheduled Areas.
It means that if it be found necessary for the protection of the Scheduled Tribes the citizens may be restrained from entering into or moving about in the Scheduled Areas, although they are left quite free to move about elsewhere.
This restraint may well be 302 necessary for the protection of the members of the, Sched uled Tribes who are generally impecunious and constitute a backward class.
They may need protection against money lenders or others who may be out to exploit them.
They may have to be protected against their own impecunious habits which may result in their selling or mortgaging their hearths and homes.
Likewise, the free movement of citizens may have to be restricted in the interest of the general public.
A person suffering from an infectious disease may be prevent from moving about and spreading the disease.
and regulations for his segregation in the nature of quarantine may have to be introduced.
Likewise, healthy people may be prevented, in the interests of the general public, from entering a plague infected area.
There may be protected places, e.g., forts or other strategic places, access where to may have to be regulated or even prohibited in the inter ests of the general public.
The point to be noted, however, is that when free movement is thus restricted, whether in the interest of the general public or for the protection of the Scheduled Tribes, such restriction has reference gener ally to a certain local area which becomes the prohibited area but the right of free movement in all other areas in the Union is left unimpaired.
The circumstance that clause (5) contemplates only the taking away of a specified area and thereby restricting the field of the exercise of the right conferred by subclause (d) of clause (1) indicates to my mind that subclause (d)is concerned, not with the freedom of the person or the general right of free movement but with a specific aspect of it regarded as an independent right apart from the freedom of the person.
In other words in sub clause (d)the real emphasis is on the words "throughout the territory of India.
" The purpose of article 19 (1) (d) is to guarantee that there shall be no State barrier.
It gives protection against provincialism.
It has nothing to do with the freedom of the person as such.
Finally, the ambit and scope of the rights protected by article 19 (1) have to be considered.
Does it protect the right of free movement and the other 303 personal rights therein mentioned in all circumstances irrespective of any other consideration ? Does it not postulate a capacity to exercise the rights ? Does its protection continue even though the citizen lawfully loses his capacity for exercising those rights ? How can the continuance of those personal rights be compatible with the lawful detention of the person ? These personal rights and lawful detention cannot go together.
Take the case of a person who has been properly convicted of an offence punish able under a section of the Indian Penal Code as to the reasonableness of which there is no dispute.
His right to freedom of speech is certainly impaired.
Under clause (2) the State may make a law relating to libel, slander, defama tion, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.
Any law on any of these matters contemplated by this clause certainly must have some direct reference to speech and expression.
It means that the law may directly curtail the freedom of speech so that the citizen may not talk libel or speak contemptuously of the Court or express indecent or immoral sentiments by speech or other forms of expression or utter seditious words.
To say that every crime undermines the security of the State and, therefore, every section of the Indian Penal Code, irrespective of whether it has any reference to speech or expression, is a law within the meaning of this clause is wholly unconvincing and betrays only a vain and forlorn attempt to find an explanation for meeting the argument that any conviction by a Court of law must necessarily infringe article 19 (1) (a).
There can be no getting away from the fact that a detention as a result of a conviction impairs the freedom of speech far beyond what is permissible under clause (2) of article 19.
Likewise a detention on lawful conviction impairs each of the other personal rights men tioned in sub clauses (b) to (e) and (g) far beyond the limits of clauses (8) to (6).
The argument that every section of the Indian Penal Code irrespective of whether it has any reference to any of the rights referred to in sub clauses (b) to (e) and (g) is a law imposing 304 reasonable restriction on those several rights has not even the merit of plausibility.
There can be no doubt that a detention as a result of lawful conviction must necessari ly impair the fundamental personal rights guaranteed by article 19 (1) far beyond what is permissible under clauses (2) to (6) of that article and yet nobody can think of questioning the validity of the detention or of the section of the Indian Penal Code under which the sentence was passed.
Why ? Because the freedom of his person having been lawfully taken away, the convict ceases to be entitled to exercise the freedom of speech and expression or any of the other personal rights protected by clause (1) of article 19.
On a parity of reasoning he cannot, while the detention lasts, exercise any other personal right, e.g., he cannot eat what he likes or when he likes but has to eat what the Jail Code provides for him and at the time when he is by Jail regulations required to eat.
Therefore, the conclusion is irresistible that the rights protected by article 19 (1), in so far as they relate to rights attached to the person, i.e., the rights referred to in sub clauses (a) to (e) and (g), are rights which only a free citizen, who has the freedom of his person unimpaired, can exercise.
It is pointed out, as a counter to the above reasonings, that detention as a result of a lawful conviction does not deprive a person of his right to acquire or hold or dispose of his property mentioned in sub clause (f).
The answer is simple, namely, that that right is not a right attached to the person (jus personrum) and its existence is not depend ent on the freedom of the person.
Loss of freedom of the person, therefore, does not suspend the right to property.
But suppose a person loses his property by reason of its having been compulsorily acquired under article 31 he loses his right to hold that property and cannot complain that his fundamental right under sub clause (f) of clause (1) of article 19 has been infringed.
It follows that the rights enumerated in article 19 (1) subsist while the citizen has the legal capacity to exercise them.
If his capacity to exercise them is gone, by reason of a lawful conviction with respect to the rights 305 in sub clauses (a) to (e) and (g), or by reason of a lawful compulsory acquisition with respect to the right in sub clause (f), he ceases to have those rights while his inca pacity lasts.
It further follows that if a citizen 's free dom of the person is lawfully taken away otherwise than as a result of a lawful conviction for an offence, that citizen, for precisely the same reason, cannot exercise any of the rights attached to his person including those enumerated in sub clauses (a) to (e) and (g) of article 19 (1).
In my judgment a lawful detention, whether punitive or preventive, does not offend against the protection conferred by article 19 (1) (a) to (e) and (g), for those rights must necessarily cease when the freedom of the person is lawfully taken away.
In short, those rights end where the lawful detention be gins.
So construed, article 19 and article 21 may, there fore, easily go together and there is, in reality, no con flict between them.
It follows, therefore, that the validi ty or otherwise of preventive detention does not depend on, and is not dealt with by, article 19.
To summarise, the freedom of the person is not the result of article 19.
Article 19 only deals with ' certain particu lar rights which, in their origin and inception, are attributes of the freedom of the person but being of great importance are regarded as specific and independent rights.
It does not deal with the freedom of the person as such.
Article 19 (1) (d) protects a specific aspect of the right of free locomotion, namely, the right to move freely throughout the territory of India which is regarded as a special privilege or right of an Indian citizen and is protected as such.
The protection of article 19 is co termi nous with the legal capacity of a citizen to exercise the rights protected thereby, for sub clauses (a) to (e) and (g) of article 19 (1) postulate the freedom of the person which alone can ensure the capacity to exercise the rights pro tected by those sub clauses.
A citizen who loses the free dom of his person by being lawfully detained, whether as a result of a conviction for an offence or as a result of preventive detention loses his capacity to exercise those rights and, therefore, has none of the rights which sub clauses (a) to (e) and (g) may protect.
306 In my judgment article 19 has no bearing on the question of the validity or otherwise of preventive detention and, that being so, clause (5) which prescribes a test of reasonable ness to be defined and applied by the Court has no applica tion at all.
Article 19 being thus out of the way, I come to article 20 which is concerned with providing protection against what are well known as ex post facto laws, double jeopardy and self incrimination.
This article constitutes a limitation on the absolute legislative power which would, but for this article, be exercisable by Parliament or the State Legisla tures under article 246 read with the legislative lists.
If the Legislature disobeys this limitation the Court will certainly prevent it.
Article 20 has no bearing on preven tive detention laws and I pass on.
Article 21 runs thus: "21.
No person shall be deprived of his life or person al liberty except according to procedure established by law.
" The contention of learned counsel for the petitioner is that by this article the Constitution offers to every per son, citizen or non citizen, only a procedural protection.
According to the argument, this article does not purport to give any protection to life or personal liberty as a sub stantive right but only prescribes a procedure that must be followed before a person may be deprived of his life or personal liberty.
I am unable to accept this contention.
Article 21, as the marginal note states, guarantees to every person "protection of life and personal liberty.
" As I read it, it defines the substantive fundamental right to which protection is given and does not purport to prescribe any particular procedure at all.
That a person shall not be deprived of his life or personal liberty except according to procedure established by law is the substantive fundamental right to which protection is given by the Constitution.
The avowed object of the article, as I apprehend it, is to define the ambit of the right to life and personal liberty which is to be protected as a fundamental right.
The right to life and 307 personal liberty protected by article 21 is not an absolute right but is a qualified right a right circumscribed by the possibility or risk of being lost according to procedure established by law.
Liability to deprivation according to procedure established by law is in the nature of words of limitation.
The article delimits the right by a reference to its liability to deprivation according to procedure estab lished by law and by this very definition throws a corre sponding obligation on the State to follow a procedure before depriving a man of his life and personal liberty.
What that procedure is to be is not within the purpose or purview of this article to prescribe or indicate.
The claim of learned counsel for the petitioner is that article 21 prescribes a procedure.
This procedure, accord ing to learned counsel, means those fundamental immutable rules of procedure which are sanctioned or well established by principles of natural justice accepted in all climes and countries and at all times.
Apart from the question whether any rule of natural procedure exists which conforms to the notions of justice and fair play of all mankind at all times, it has to be ascertained whether the language of article 21 will permit its introduction into our Constitu tion.
The question then arises as to what is the meaning of the expression "procedure established by law.
" The word "procedure" in article 21 must be taken to signify some step or method or manner of proceeding leading up to the depriva tion of life or personal liberty.
According to the language used in the article, this procedure has to be "established by law.
" The word "establish" according to the Oxford English Dictionary, Vol.
III, p. 297, means, amongst other things, "to render stable or firm ; to strengthen by materi al support; to fix, settle, institute or ordain permanently by enactment or agreement." According to Dr. Annandale 's edition of the New Gresham Dictionary the word "establish," means, amongst other things, "to found permanently; to institute; to enact or decree; to ordain; to ratify; to make firm.
" It follows that the word "established" in its ordi nary natural sense means, amongst other things, "enacted." "Established by law" will, 308 therefore, mean "enacted by law.
" If this sense of the word "established" is accepted, then the word "law" must mean State made law and cannot possibly mean.
the principles of natural justice, for no procedure can be said to have ever been "enacted" by those principles.
When section 124 A of the Indian Penal Code speaks of "Government established by law," surely it does not mean "Government set up by natural justice.
" Therefore, procedure established by law must, I apprehend, be procedure enacted by the State which, by its definition in article 12, includes parliament.
There is no escape from this position if the cardinal rule of construc tion, namely, to give the words used in a statute their ordinary natural meaning, is applied.
And this construction introduces no novelty or innovation, for at the date of the Constitution the law of procedure in this country.
both civil and criminal, was mainly if not wholly, the creature of statute.
The Hindu or Muhammadan laws of procedure were abrogated and replaced by the Code of Civil Procedure or the Code of Criminal Procedure.
Therefore, procedure established by law is quite compatible with procedure enact ed by law.
If, however, the word "established" is taken to mean "sanctioned" or "settled" or "made firm" then the question will arise as to the meaning of the word "law" in that context.
Reference is made to Salmond 's Jurisprudence, 10th Edition, p. 37, showing that the term "law" is used in two senses and it is suggested that the word "law" in the expression "established by law "means law in its abstract sense of the principles of natural justice.
It is "jus" and not "lex," says learned counsel for the petitioner.
It is pointed out that both the English and the Indian law in many cases, some of which have been cited before us, have recog nised and applied the principles of natural justice and that this Court should do the same in interpreting tim provisions of our Constitution.
I find it difficult to let in princi ples of natural justice as being within the meaning of the word "law," having regard to the obvious meaning of that word in the other articles.
Article 14 certainly embodies a principle of natural justice which ensures to.
309 every person equality before the law.
When natural jus tice speaks of and enjoins equality before the law, that law must refer to something outside natural justice, and must mean the State made laws.
It is only when the State law gives equality to every person that that law is said to be in accordance with natural justice.
There can be no doubt that the words "in accordance with law" in article 17 have reference to State law.
Likewise, the word "law" in article 20 (1) can mean nothing but law made by the State.
The same remark applies to the words "in accordance with law" in articles 23, 31 and 32.
Natural justice does not impose any tax and, therefore, the word "law" in articles 265 and 286 must mean State made law.
If this be the correct meaning of the word "law" then there is no scope for intro ducing the principles of natural justice in article 21 and "procedure established by law" must mcan procedure estab lished by law made by the State which, as defined, includes Parliament and the Legislatures of the States.
We have been referred to a number of text books and decisions showing the development of the American doctrine of "due process of law" and we have been urged to adopt those principles in our Constitution.
The matter has to be considered against its historical background.
The English settlers in different parts of America had carried with them the English common law as a sort of personal law regulating their rights and liberties inter se as well as between them and the State.
After the War of Independence the Constitu tions of the United States were drawn up in writing.
The majority of those who framed the Constitution were lawyers and had closely studied the Commentaries of the great Eng lish jurist Blackstone, who in his famous commentaries had advocated the separation of the three limbs of the State, namely, the executive, the legislature and the judiciary.
Montesquit 's Spirit of Laws had already been published wherein he gave a broader and more emphatic expression to the Aristotelian doctrine of separation of powers.
The experience of the repressive laws of Parliament had im pressed upon the framers of the American Constitution the 310 belief that it was the habit of all legislative bodies to grasp and exercise powers that did not belong to them.
The interference of the colonial governors with legislation and the judiciary was also real.
This sad experience coupled with the political philosophy of the time induced the fram ers of the American Constitutions to adopt safeguards not only against the executive but also against the legislature.
(See Munro on the Government of the United States, 5th Edition, Chapter IV, p. 53 et seq.).
Says Judge Cooley in his Constitutional Limitations, 6th Edition, Vol.
II, Chap ter XI, p. 755: "The people of the American States, holding the sover eignty in their own hands, have no occasion to exact any pledges from any one for a due observation of individual rights; but the aggressive tendency of power is such that they have deemed it of no small importance, that, in framing the instruments under which their governments are to be administered by their agents, they should repeat and re enact this guarantee, and thereby adopt it as a principle of constitutional protection.
" There can be little doubt that the people of the differ ent States in America intended not to take any risk as to their life, liberty or property even from the legislature.
As Munro puts it at pp.
58 61 : "The framers of the Constitution set boundaries to the powers of the Congress, and it was their intent that these limitations should be observed.
But how was such observance to be enforced by the Courts ? The statesmen of 1767 did not categorically answer that question.
" The Constitution was silent and there was no express provision as to who was to serve as umpire in case the Congress overstepped the limits of its legislative powers.
By the 5th Amendment what is now known as the "due process clause" was introduced in the Federal Constitution and by the 14th Amendment a similar clause was adopted in the State Constitutions.
Some of the State Constitutions used the words "due course of law," some repeated the words of Magna Charta, namely, "the law of the land" but most of 311 them used the expression "due process of law.
" All the expressions meant the same thing, namely, that no person should be deprived of his life, liberty or property except in due process of law.
The Constitution by this clause gave the Supreme Court an opportunity to take upon itself the function of declaring the national laws unconstitutional.
And the Supreme Court, under the leadership of Chief Justice John Marshall, seized this opportunity and assumed the right to say the last word on questions of constitutionality, and possesses that right to day: (Munro, p. 62).
The expression "due process of law" has been interpreted by the American Courts in different ways at different times.
Carl Brent Swisher in his book on the Growth of Constitutional Power in the United States at p. 107 says, with reference to the development of the doctrine of due procedure: "The American history of its interpretation falls into three periods.
During the first period covering roughly the first century of Government under the Constitution "due process" was interpreted "principally as a restriction upon procedure and largely the judicial procedure by which the Government exercised its powers.
During the second period,which, again roughly speaking, extended through 1936, "due process" was expanded to serve as a restriction not merely upon procedure but upon the substance of the activi ties in which the Government might engage.
During the third period extending from 1936 to date, the use of "due process" as a substantive restriction has been largely suspended or abandoned, leaving it principally in its original status as a restriction upon procedure.
" In the guise of interpreting "due process of law" the American Courts went much further than even Lord Coke ever thought of doing.
The American Courts gradually arrogated to themselves the power to revise all legislations.
In the beginning they confined themselves to insisting on a due procedure to be followed before a person was deprived of his life, liberty or property.
In course of time, "due process of law" came to be applied to personal liberty, to social control, to procedure 40 312 to jurisdiction and to substantive law: (Willis, p. 642).
In the words of Munro "due process of law" became a sort of palladium covering all manner of individual rights.
A_II the while the Supreme Court refused to define the phrase, but used it to enable it to declare unconstitutional any Act of legislation which it thought unreasonable: (Willis, p. 657).
In Holden vs Hardy (1) we find the following observa tions: "This Court has never attempted to define with precision the words ' due process of law . . .
It is suffi cient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.
"In Taylor vs Peter (2) Bronson J. observed: "The words 'by the law of the land ' as used in the Constitution, do not mean a statute passed for the purpose of working the wrong.
That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense.
The people would be made to say to the two Houses: ' You shall be vested with the legis lative power of the.
State, but no one shall be disenfran chised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose.
In other words you shall not do the wrong unless you choose to do it. '" It was thus that the Supreme Court of the United States firmly established its own supremacy over the other two limbs of the State, namely, the executive and the Congress.
In the words of John Dickinson quoted in Munro at p. 61, "The Judges of Aragon began by setting aside laws and ended by making them." And all this sweeping development could only be possible because of the presence of one little word "due" which, in its content, knows no bound and is not subject to any fixed definition.
Whenever a substantive law or some procedure laid down in any law did not find favour with the majority of the learned Judges of the Supreme Court it was not reasonableand, therefore, it was not "due." (1) ; at p. 389.
(2) 4 Hill 140, 145. 313 The very large and nebulous import of the word "due" was bound to result in anomalies, for what was not "due" on one day according to the Judges then constituting the Supreme Court became "due" say 20 years later according to the new Judges who then came to occupy the Bench, for the Court had to adapt the Constitution to the needs of the society which were continually changing and growing.
The larger content of due process of law, which included both procedural and substantive due process of law, had of necessity to be narrowed down, for social interest in personal liberty had to give way to social interest in other matters which came to be considered to be of more vital interest to the commu nity.
This was achieved by the Supreme Court of the United States evolving the new doctrine of police powers a pecul iarly American doctrine.
The police powers are nowhere exhaustively defined.
In Chicago B. & Q. Ry.
vs Drainage Commissioner (1) ,, police power" has been stated to "em brace regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety." Reference in this connection may be made to Cooley 's Constitutional Limitations, 8th Edition, Vol.
II, p. 1223 and to Chapter XXVI of Willis at p. 727.
The nett result is that the all inclusive and indefina ble doctrine of due process of law has in America now been brought back to its original status of a procedural due process of law by the enunciation and application of the new doctrine of police power as an antidote or palliative to the former.
Who knows when the pendulum will swing again.
Turning now to what has been called the procedural due process of law it will be found that the matter has been described in different languages in different cases.
In Westervelt vs Gregg (2) Edwards J. defined it thus: "Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules 204 u.s. 561,592.
(2) 314 and forms which have been established for the protection of private rights.
" A more specific definition of the expression "the law of the land" meaning procedural due process was given by Web ster appearing as counsel for the plaintiff in error in the Trustees of Dartmouth College vs Woodward (1): "By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial.
The meaning is that every citizen shall hold his life, liberty, property, and.
immunities, under the protection of the general rules which govern society.
Everything which may pass under the form of an enactment is not therefore to be considered the law of the land." Willis in Ch.
XXIII, p. 661, says: "The guarantee of due process of law as a matter of procedure means that no part of a person 's personal liberty, including ownership, shall be taken away from him except by the observance of certain formalities.
Hence its object is the protection of the social interest in personal liberty.
" At p. 662 Willis enumerates the requirements of the procedural due process of law as follows:(1) notice.
(2) opportunity to be heard, (3) an impartial tribunal, and (4) an orderly course of procedure.
In short, the procedural due process requires that a person who is to be deprived of his life, liberty or property shall have had "his day in Court.
" This according to Willough by p. 736, means: "(1) that he shall have had due notice, which may be actual or constructive, of the institution of the proceed ings by which his legal rights may be affected; (2) that he shall be given a reasonable opportunity to appear and defend his rights, including the right himself to testify, to produce witnesses, and to introduce relevant documents and other evidence, (3) that the tribunal in or before which his rights are adjudicated is so constituted as to give reasona ble assurance of its.
(1) ; at p. 579; 4 L. Edn. 629 at p. 645.
315 honesty and impartiality; and (4) that it is a Court of competent jurisdiction.
" It will be noticed that the fourth item of Willoughby is different from the fourth item of Willis.
Such, in short, are the history of the development of the doctrine of the process of law in the United States and the requirements of the procedural due process as insisted on by the Supreme Court of that country.
Learned counsel for the petitioner before us does not contend that we should import this American doctrine of due process of law in its full glory but that we should adopt the procedural part of it and insist that no person shall be deprived of his life or personal liberty except by the observance of the formalities which justice and fair play require to be observed.
The arguments of learned counsel for the petitioner are attractive and in the first blush certainly appeal to our sentiment but on serious reflection I find several insuperable objections to the introduction of the American doctrine of procedural due process of law into our Constitution.
That doctrine can only thrive and work where the legislature is subordinate to the judiciary in the sense that the latter can sit in judgment over and review all acts of the legislature.
Such a doctrine can have no application to a field where the legislature is supreme.
That is why the doctrine of "due process of law" is quite different in England where Parliament is supreme.
This difference is pointedly described by Mathews J. in Joseph Hurtado vs People of California (1) at p. 531: "The concessions of Magna Charta were wrung from the King as guarantees against oppression and usurpation of his prerogatives.
It did not enter into the minds of the barons to provide security against their own body or in favour of the commons by limiting the power of Parliament, so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates and other arbitrary Acts of legisla tion which occur so frequently in English history, were never regarded as inconsistent with the law of the land, for, notwithstanding what was attributed to Lord Coke in.
Bonham 's (1) ; 316 case, , 118 (a),] the omnipotence of Parliament over the Common Law was absolute, even against common right and reason.
The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons.
In this country written Constitutions were deemed essen tial to protect the rights and liberties of the people against the encroachments of power delegated to their gov ernments and the provisions of Magna Charta were incorporat ed in the bills of rights.
They were limitations upon all the powers of government, legislative as well as executive and judicial.
" This basic distinction between the two systems should never be lost sight of, if confusion of thought is to be avoided.
Although our Constitution has imposed some limita tions on the legislative authorities, yet subject to and outside such limitations our Constitution has left our Parliament and the State Legislatures supreme in their respective legislative fields.
In the main, subject to the limitations I have mentioned, our Constitution has preferred the supremacy of the Legislature to that of the Judiciary.
The English principle of due process of law is, therefore, more in accord with our Constitution than the American doctrine which has been evolved for serving quite a differ ent system.
The picturesque language of Bronson J. quoted above, while that is quite appropriate to the American Constitution which does not recognise the supremacy of the Congress, is wholly out of place in, and has no applica tion to, a Constitution such as ours, which, subject only to certain restrictions, recognises the supremacy of the Legis latures in their respective fields.
In the next place, it is common knowledge that our Constitution makers deliberate ly declined to adopt the uncertain and shifting American doctrine of due process of law and substituted the words ' "except in due process of law" that were in the original draft by the more specific expression "except in accordance with procedure established by law.
" To try to bring in the American doctrine, in spite of this fact, will be to stulti fy the intention of the Constitution as expressed in 317 article 21.
In the third place, in view of the plain meaning of the language of that article as construed and explained above it is impossible to let in what have been called the principles of natural justice as adopted in the procedural due process of law by the American Supreme Court.
Again, even the all pervading little word "due" does not find a place in article 21 so as to qualify the procedure.
It speaks of procedure and not "due" procedure and, therefore, "the intellectual yardstick" of the Court is definitely ruled out.
Finally, it will be incongruous to import the doctrine of due process of law without its palliative, the doctrine of police powers.
It is impossible to read the last mentioned doctrine into article 21.
It has also been suggested as a compromise that this Court should adopt a middle course between the flexible principles of natural justice as adopted by the American doctrine of due process of law and the unbending rigidity of mere State made laws.
h is said that we have our Code of Criminal Procedure which embodies within its provisions certain salutary principles of procedure and we must insist that those underlying principles should be regarded as procedure established or settled by our positive law.
But who will say what are those fundamental principles? What principles.
do I reject as inessential and what shall I adopt as fundamental ? What is fundamental to me today may not appear to be so to another Judge a decade hence, for principles give way with changing social conditions.
In America it was suggested that due process of law should be taken to mean the general body of common law as it stood at the date of the Constitution.
In Bardwell vs Collins (1) it was negatived in the following words: " 'Due process of law ' does not mean the general body of the law, common and statute, as it was at the time the Constitution took effect; for that would deny the legisla ture power to change or amend the law in any particular.
" The Court, however, brought in principles of (1) 318 natural justice under the due process clause.
To sanctify what I may to day regard as the basic principles underlying our Code of Criminal Procedure will be to make them immuta ble and to prevent the legislature even to improve upon them.
This is nothing but imposing on the legislature a limitation which the Constitution has not placed on it.
I do not think it is a permissible adventure for the Court to undertake.
It is a dangerous adventure, for it will bring about stagnation which means ruin.
We must accept the Con stitution which is the supreme law.
The Constitution has by article 21 required a procedure and has prescribed certain minimum requirements of procedure in article 22.
To add to them is not to interpret the Constitution but to recast it according to our intellectual yardstick and our unconscious predilections as to what an ideal Constitution should be.
Article 21, in my judgment, only formulates a substan tive fundamental right to life and personal liberty which in its content is not an absolute right but is a limited right having its ambit circumscribed by the risk of its being taken away by following a procedure established by law made by the appropriate legislative authority and the proximate purpose of article 21 is not to prescribe any particular procedure.
It is to be kept in mind that at the date when the Constitution came into effect we had the Indian Penal Code creating diverse offences and a conviction for any of them would deprive a person of his personal liberty.
Under article 246 read with Entry 1 of the Concurrent List, Par liament or any State Legislature could add more offences and create further means for taking away personal liberty.
But all this deprivation of personal liberty as a result of a conviction could only be done by following the procedure laid down by the Code of Criminal Procedure.
Again, at the date of this Constitution there were preventive detention laws in almost every province and a person could be deprived of his personal liberty under those laws.
Those laws, however, provided a procedure of a sort which had to be followed.
Therefore, before the Constitution came into force, personal liberty could be taken away 319 only by following the procedure enacted by the Criminal Procedure Code in the case of punitive detention or by the procedure enacted by the different Security Acts in case of preventive detention.
Power, however, has been given to Parliament and the State Legislatures under article 246 read with Entry 2 of the Concurrent List to make laws with re spect to Criminal Procedure.
If that article stood by itself the Parliament or the State Legislature could repeal the whole of the Criminal Procedure Code and also do away even with the skeleton procedure provided in the Security Acts.
If article 246 stood by itself then the appropriate legislative authority could have taken away the life and personal liberty of any person without any procedure at all.
This absolute supremacy of the legislative authority has, however, been cut down by article 21 which delimits the ambit and scope of the substantive right to life and person al liberty by reference to a procedure and by article 22 which prescribes the minimum procedure which must be fol lowed.
In this situation the only power of the Court is to determine whether the impugned law has provided some proce dure and observed and obeyed the minimum requirements of article 29.
and if it has, then it is not for the Court to insist on more elaborate procedure according to its notion or to question the wisdom of the legislative authority in enacting the particular law, however harsh, unreasonable, archaic or odious the provisions of that law may be.
It is said that if this strictly technical interpreta tion is put upon article 21 then it will not constitute a fundamental right at all and need not have been placed in the chapter on Fundamental Rights, for every person 's life and personal liberty will be at the mercy of the Legislature which, by providing some sort of a procedure and complying with the few requirements of article 22, may, at any time, deprive a person of his life and liberty at its pleasure and whim.
There are several answers to this line of argument.
Article 21 as construed by me will, if nothing else, cer tainly protect every person against the executive and as such will be as much a fundamental right deserving 411 320 a place in the Constitution as the famous 39th Chapter of the Magna Charta was and is a bulwark of liberty in English law.
It appears to me that article 21 of our Constitution read with article 32 also gives us some protection even against the legislative authority in that a person may only be deprived of his life and personal liberty in accordance with procedure which, although enacted by it, must at least conform to the requirements of article 22.
Subject to this limitation our parliament or any State Legislature may enact any law and provide any procedure it pleases for depriving a person of his life and personal liberty under article 21.
Such being the meaning of that article and the ambit and extent of the fundamental right of life and personal liberty which the people of this country have given unto themselves, any law for depriving any person of his life and personal liberty that may be made by the appropriate legislative authority under article 246 and in conformity with the requirements of article 22 does not take away or abridge any right conferred by article 21, for the very right conferred by that article is circumscribed by this possi bility or risk and, therefore, such law cannot be regarded as violating the provisions of article 13 (2).
Our Constitution is a compromise between Parliamentary supremacy of England and the supremacy of the Supreme Court of the United States.
Subject to the limitations I have mentioned which are certainly justiciable, our Constitution has ac cepted the supremacy of the legislative authority and, that being so, we must be prepared to face occasional vagaries of that body and to put up with enactments of the nature of the atrocious English statute to which learned counsel for the petitioner has repeatedly referred, namely, that the Bishop of Rochester 's cook be boiled to death.
If Parliament may take away life by providing for hanging by the neck, logi cally there can be no objection if it provides a sentence of death by shooting by a firing squad or by guillotine or in the electric chair or even by boiling in oil.
A procedure laid down by the legislature may offend against the Court 's sense of justice and fair play 821 and a sentence provided by the legislature may outrage the Court 's notions of penology, but that is a wholly irrelevant consideration.
The Court may construe and interpret the Constitution and ascertain its true meaning but once that is done the Court cannot question its wisdom or policy.
The Constitution is supreme.
The Court must take the Constitu tion as it finds it, even if it does not accord with its preconceived notions of what an ideal Constitution should be.
Our protection against legislative tyranny, if any, lies in ultimate analysis in a free and intelligent public opinion which must eventually assert itself.
The conclusion I have arrived at does not introduce any novelty, for in many other Constitutions the supremacy of the legislature is recognised in the matter of depriving a person of his life, liberty and property.
The English Democratic Constitution is one in point.
Take the Constitu tion of the Irish Free State.
Article 40 (4) (i) provides that no citizen shall be deprived of personal liberty save in accordance with law, and article 50 (5) guarantees that the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.
The words "in accordance with law" in both the above clauses must mean the same thing and I have no doubt in my mind, reading clause (5)that it means in accordance with the State made law, for we have not been referred to any rule prescribed by natural justice regulating searches of, or entry into, dwelling houses.
Article 107 (2) of the Czechoslovakian Constitution uses the words "in accordance with law" which, read with clause (1) of that article, obviously means the law to be made which will form part of the Constitution.
Take the Constitution of the Free City of Danzig.
Article74 of that Constitution which is in Part II headed "Fundamental Bights and Duties" provides as follows: "The liberty of the person shall be inviolable.
No limitation or deprivation of personal liberty may be imposed by public authority, except by virtue of a law.
" 322 The word" law" clearly cannot, in the context,mcan princi ples of natural justice Again, article 75 of that Consti tution protects the freedom of movement within the Free City and the right to stay and to settle at any place, to acquire real property and to earn a living.
It concludes by saying that this right shall not be curtailed without legal sanctions.
Legal sanctions, in this context, can only mean sanctions of the City laws.
Article 114 of the Weimar Constitution is on the same lines and expressed in almost the same language as article 74 of the Danzig Constitution.
Take the Japanese Constitution of 1946 from which our arti cle 21 is reputed to have been taken.
Article XXXI of that Constitution says: No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according to procedure established by law.
" Surely the words "except according to procedure established by law" in their application to the imposition of criminal penalty must mean State made law and the same words in the same sentence in the same article cannot, according to ordi nary rules of construction of statutes, mean a different thing in their application to deprivation of life or liber ty.
I am aware that it is not right to construe one Consti tution in the light of another and that is not my purpose when I refer to the other Constitutions; but I do think that after reading the relevant provisions of other written Con stitutions one sees quite clearly that there is no pressing special reason applicable to or inherent in written Consti tutions which requires the importation of the principles of natural justice or of the American doctrine of due process of law into our Constitution.
The several Constitutions referred to above have not adopted that American doctrine but have been content with leaving the life and liberty of their citizens to the care of the laws made by their legis latures.
It is no novelty if our Constitution has done the same.
For all these reasons, in spite of the very able and attractive arguments of the learned counsel for the peti tioner which I freely acknowledge, I am not convinced that there is any scope for the introduction into article 21 of our 323 Constitution of the doctrine of due process of law even as regards procedure.
I may or may not like it, but that is the result of our Constitution as I understand it.
The learned Attorney General has referred to certain debates in the Constituent Assembly on the original clause which has now become article 21, not as evidence to be used in interpreting the language of article 21 but as disclos ing the historical background.
His purpose, he says, is to show that the framers of our Constitution had the essential difference in the meaning of the phrases "due process of law" and "according to procedure established by law" clearly explained to them, that they knew that the former implied the supremacy of the judiciary and the latter the supremacy of the legislature and with all that knowledge they deliber ately agreed to reject the former expression and adopt the latter.
As, in my opinion, it is possible to interpret the language of article 21 on the ordinary rules of interpreta tion of statutes, I do not think it is at all necessary to refer to the debates.
As I do not propose to refer to, or rely on, the debates for the purposes of this case, I express no opinion on the question of the admissibility or otherwise of the debates.
I now pass on to article 22.
The contention of learned counsel for the petitioner is that article 21 by reason of the last few words, "according to procedure established by law" attracts the four requirements of the American proce dural due process of law as summarised by Willis to which reference has been made earlier, and that those require ments, except to the extent they have been expressly abro gated or modified by article 22, must be strictly followed before a person may be deprived of his life or personal liberties.
I have already stated for reasons set forth above, that there is no scope for introducing any rule of natural justice or the American procedural due process of law or any underlying principle of our Code of Criminal Procedure into that article.
This being the conclusion I have arrived at, the major premise assumed by learned coun sel for the petitioner is missing and this 324 line of argument does not begin and cannot be accepted.
The learned Attorney General, on the other hand.
has at one stage of his argument, urged that article 21 has nothing to do with preventive detention at all and that preventive detention is wholly covered by article 22 (4) to (7) which by themselves constitute a complete code.
I am unable to accede to this extreme point of view also.
The true posi tion, as I apprehend it, lies between the two extreme views.
Article 21, to my mind, gives protection to life and person al liberty to the extent therein mentioned.
It does not recognise the right to life and personal liberty as an absolute right but delimits the ambit and scope of the right itself The absolute right is by the definition in that article cut down by the risk of its being taken away in accordance with procedure established by law.
It is this circumscribed right which is substantively protected by article 21 as against the executive as well as the legislature, for the Constitution has conditioned its depri vation by the necessity for a procedure established by law made by itself.
While subclauses (2) to (6) of article 19 have put a limit on the fundamental rights of a citizen, articles 21 and 22 have put a limit on the power of the State given under article 246 read with the legislative lists.
Under our Constitution our life and personal liberty are balanced by restrictions on the rights of the citizens as laid down in article 19 and by the checks put upon the State by articles 21 and 22.
preventive detention deprives a person of his personal liberty as effectively as does punitive detention and, therefore, personal liberty, circum scribed as it is by the risk of its being taken away, re quires protection against punitive as well as preventive detention.
The language of article 21 is quite general and is wide enough to give its limited protection to personal liberty against all forms of detention.
It protects a person against preventive detention by the executive without the sanction of a law made by the legislature.
It prevents the legislature from taking away a person 's personal liberty except in accordance with procedure established by law, although such 325 law is to be by itself.
If, as contended by the learned Attorney General and held by me, article 19 only protects the rights of a free citizen as long as he is free and does not deal with total deprivation of personal liberty and if, as contended by the learned Attorney General, article 21 does not protect a person against preventive detention then where is the protection for life and personal liberty as substantive rights which the procedural provisions of arti cle 22 may protect ? What is the use of procedural protec tion if there is no substantive right ? In my judgment article 21 protects the substantive rights by requiring a procedure and article 22 gives the minimum procedural pro tection.
Clauses (1) and (2) of article 22 lay down the procedure that has to be followed when a man is arrested.
They ensure four things: (a) right to be informed regarding grounds of arrest, (b) right to consult, and to be defended by, a legal practitioner of his choice, (c) right to be produced before a magistrate within 24 hours and (d) freedom from detention beyond the said period except by order of the magis trate.
These four procedural requirements are very much similar to the requirements of the procedural due process of law as enumerated by Willis.
Some of these salutary protections are also to be found in our Code of Criminal Procedure.
If the procedure has already been prescribed by article 21 incorporating the principles of natural justice or the principles underlying our Code of Criminal Procedure what was the necessity of repeating them in clauses (1) and (2) of article 22 ? Why this unnecessary overlapping ? The truth is that article 21 does not prescribe any particular procedure but in defining the protection to life and person al liberty merely envisages or indicates the necessity for a procedure and article 22 lays down the minimum rules of procedure that even Parliament cannot abrogate or overlook.
This is so far as punitive detention is concerned.
But clause (3) of article 22 expressly provides that none of the procedure laid down in clauses (1) and (2) shall apply to an alien enemy or to a person who is arrested or detained under any law providing for preventive detention.
It is thus expressly 326 made clear that a detenu need not be produced before the magistrate and he is not to have the assistance of any lawyer for consultation or for defending him.
Such being the express provision of our Constitution nobody can question its wisdom.
So I pass on.
Clauses (4), (5), (6) and (7) of article 22 in terms relate to preventive detention.
Article 246 authorises the appropriate legislature to make a law for preventive deten tion in terms of Entry 9 in List I and/or Entry 3 in List III of the Seventh Schedule.
On this legislative power are imposed certain limitations by article 22 (4) to (7).
According to this the legislature, whether it be Parliament or a State Legislature, is reminded that no law made by it for preventive detention shall authorise the detention of a person for a longer period than three months except in two cases mentioned in sub clauses (a) and (b).
The proviso to sub clause (a) and sub clause (b) refer to a law made only by Parliament under clause (7).
Under clause (7) it is Parliament alone and not any State Legislature that may prescribe what are specified in the three subclauses of that clause.
Although a State Legislature may make a law for preventive detention in terms of Entry 3 in List III of the Seventh Schedule no such law may authorise detention for more than three months unless the provisions of sub clauses (a)and (b) of clause (4) sanction such detention.
Even a law made by Parliament cannot authorise detention for more than three months unless it is a law made under the provi sions of clause (7).
In short, clause (4) of article 22 provides a limitation on the legislative power as to the period of preventive detention.
Apart from imposing a limitation on the legislative power, clause (4) also pre scribes a procedure of detention for a period longer than three months by providing for an advisory board.
Then comes clause (5).
It lays down the procedure that has to be fol lowed when a person is detained under any law providing for preventive detention, namely, (a) the grounds of the order of detention must be communicated to the detenu as soon as may be, and (b) the detenu must be afforded the earliest opportunity of making a representation against 327 the order.
The first requirement takes the place of notice and the second that of a defence or hearing.
These are the only compulsory procedural requirements laid down by our Constitution.
There is nothing to prevent the Legislature from providing an elaborate procedure regulating preventive detention but it is not obliged to do so.
If some procedure is provided as envisaged by article 21 and the compulsory requirements of article 22 are obeyed and carried out nobody can, under our Constitution, as I read it, complain of the law providing for preventive detention.
Learned counsel for the petitioner concedes that the four requirements of procedural due process summarised by Willis will have to be modified in their application to preventive detention.
Thus he does not insist on a prior notice before arrest, for he recognises that such a require ment may frustrate the very object of preventive detention by giving an opportunity to the person in question to go underground.
The provision in clause (5) for supplying grounds is a good substitute for notice.
He also does not insist that the Tribunal to judge the reasonableness of the detention should be a judicial tribunal.
He will be satis fied if the tribunal or advisory board, as it is called in article 22 of the Constitution, is an impartial body and goes into the merits of the order of detention and its decision is binding on the executive government.
He insists that the detenu must have a reasonable and effective oppor tunity to put up his defence.
He does not insist on the assistance of counsel, for that is expressly taken away by the Constitution itself.
But he insists on what he calls an effective opportunity of being heard in person before an impartial tribunal which will be free to examine the grounds of his detention and whose decision should be binding alike on the detenu and the executive authority which detains.
The claim may be reasonable but the question before the Court is not reasonableness or otherwise of the provisions of article 22 (4) to (7).
Those provisions are not justicia ble, for they are the provisions of the Constitution itself which is supreme over everybody.
42 328 The Court can only seek to find out, on a proper construc tion, what protection has in fact been provided.
The Consti tution has provided for the giving of the grounds of deten tion although facts as distinguished from grounds may be withheld under clause (6) and the right of representation against the order of detention.
It has provided for the duration of the detention.
There the guaranteed fundamental procedural rights end.
There is no provision for any trial before any tribunal.
One cannot import the condition of a trial by any tribunal from the fact that a right of repre sentation has been given.
The right to make representation is nothing more than the right to "lodge objections" as provided by the Danzig Constitution and the Weimar Constitu tion.
The representations made will no doubt be considered by the Government.
It is said a prosecutor cannot be himself the judge.
Ordinarily, the orders of detention will in a great majority of cases be made by the District Magistrate or Sub Divisional Officer or the Commissioner of Police.
The representation of the detenu goes to the Government.
Why should it be assumed that a high government official at the seat of the government will not impartially consider the representation and judge the propriety of the order of detention made by local officials ? Clause (5) does not imperatively provide for any oral representation which a hearing will entail.
Indeed the exclusion of the provisions of clauses (1) and (2) negatives any idea of trial or oral defence.
The Court may not, by temperament and training, like this at all but it cannot question the wisdom or the policy of the Constitution.
In my judgment as regards pre ventive detention laws, the only limitation put upon the legislative power is that it must provide some procedure and at least incorporate the minimum requirements laid down in article 22 (4) to (7).
There is no limitation as regards the substantive law.
Therefore, a preventive detention law which provides some procedure and complies with the require ments of article 22 (4) to (7) must be held to be a good law, however odious it may appear to the Court to be.
329 Learned counsel for the petitioner contends that the impugned Act does not comply with even the bare requirements of article 22 (4) to (7).
It is pointed out that section 3 of the Act does not lay down any objective test but leaves it to the authority to define and say whether a particular person comes within the legislative heads.
In other words, it is contended that Parliament has not legislated at all but has delegated its legislative powers to the executive authorities.
I do not think there is any substance in this contention.
In the first place this is not an objection as to procedure but to substantive law which is not open to the Court 's scrutiny.
In the next place this contention over looks the basic distinction between the delegation of power to make the law and the conferring of an authority and discretion as to its execution to be exercised under and in pursuance of the law.
The impugned Act has specifically set forth an ascertainable standard by which the conduct of a particular person is to be judged by the detaining authori ty.
It is next urged that section 12 of the Act does not comply with the requirements of clause (7) of article 22 for two reasons, namely (i) that clause (7) contemplates a law prescribing the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months and then another law thereafter providing for preventive detention for a period longer than three months; and (ii) that under clause (7) Parliament must prescribe both the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months.
As regards the first point I do not see why Parliament must make two laws, one laying down the principles for longer detention and another for detention for such longer period.
It may be that a State cannot provide for longer detention until Parliament 330 has made the law, but I can see no reason why Parliament cannot do both by the same Act.
In fact, clause (4) (b) contemplates the detention itself to be in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7).
Therefore, the detention can well be under the very law which the Parliament makes under sub clauses (a) and (b) of clause (7).
As to the second point the argument is that Parliament has a discre tion under clause (7) to make a law and it is not obliged to make any law but when our Parliament chooses to make a law it must prescribe both the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months.
I am unable to construe clause (7) (a) in the way suggested by learned counsel for the petitioner.
It is an enabling provision empowering Parliament to prescribe two things.
Parliament may prescribe either or both.
H a father tells his delicate child that he may play table tennis and badminton but not the strenuous game of football, it obviously does not mean that tim child, if he chooses to play at all, must play both table tennis and badminton.
It is an option given to the child.
Likewise, the Constitution gives to Parliament the power of prescribing two things.
Parliament is not obliged to prescribe at all but if it chooses to prescribe it may prescribe either or both.
Clause 7 (a), in my opinion, has to be read distributively as follows: The Parliament may prescribe the circumstance under which a person may be detained for a period longer than three months and Parlia ment may prescribe the class or classes of cases in which a person may be detained for a period longer than three months.
That appears to me to be consonant with sound rules of construction.
Further, the circumstances and the class or classes of cases may conceivably coalesce.
Indeed the Full Bench case No. 1 of 1950 before the Calcutta High Court (Kshitindra Narayan vs The Chief Secretary) itself indicates that the same provision may be read as circumstances or as a classification.
In that case learned counsel conceded that section 12 had prescribed the circumstances but his com plaint was that it had not 331 prescribed the class or classes of cases.
The majority of the Court repelled this contention.
One learned Judge howev er, held that section 12 had prescribed the class or classes of cases but had not prescribed the circumstances.
It is, therefore, clear that the classification itself may indicate the circumstances.
Again, the classification may be on a variety of bases.
It may be according to provinces the detenus come from.
It may be according to the age of the detenus.
It may be according to the object they are supposed to have in view or according to the activities they are suspected to be engaged in.
In this case Parliament has taken five out of the six legislative heads and divided them into two categories.
The detenus are thus classified ac cording to their suspected object or activities endangering the several matters specified in the section.
I do not see why classification cannot be made on the footing of the objectives of the detenus falling in some of the legislative heads, for each legislative head has a specific connotation well understood in law.
If I am correct that there has been a classification then the fact that a person falls within one or the other class may well be the circumstances under which he may be detained for a period longer than three months.
I do not consider it right, as a matter of con struction, to read any further limitation in clause 7 (a) of article 22.
In my judgment Par]lament was not obliged under clause (7) to prescribe both circumstances and classes, and in any case has in fact and substance prescribed both.
I am conscious that a law made by Parliament under article 22 (7)will do away with the salutary safeguard of the opinion of an advisory board.
But it must be remembered that our Constitution itself contemplates that in certain circumstances or for certain class or classes of detenus even the advisory board may not be safe and it has trusted Parliament to make a law for that purpose.
Our preference for an advisory board should not blind us to this aspect of the matter.
It is true that circumstances ordinarily relate to extraneous things, like riots, commotion, 332 political or communal or some sort of abnormal situation and it is said that the framers of the Constitution had in mind some such situation when the advisory board might be done away with.
It is also urged that they had in mind that the more dangerous types of detenus should be denied the privi lege of the advisory board.
I am free to confess that prescription of specific circumstances or a more rigid and definite specification of classes would have been better and more desirable.
But that is crying for the ideal.
The Constitution has not in terms put any such limitation as regards the circumstances or the class or classes of cases and it is idle to speculate as to the intention of the Constitution makers, who, by the way, are the very persons who made this law.
It is not for the Court to improve upon or add to the Constitution.
If the law duly made by Parlia ment is repugnant to good sense, public opinion will compel Parliament to alter it suitably.
Finally, an objection is taken that section 14 of the impugned Act takes away or abridges the right of the detenu to move this Court by appropriate proceedings.
Both clauses (1) and (2) of article 32 speak of enforcement of rights conferred by Part III.
The right to move this Court is given to a person not for the sake of moving only but for moving the Court for the enforcement of some rights conferred by Part III and this Court has been given power to issue direc tions or orders or writs for the enforcement of any of such rights.
In order, therefore, to attract the application of article 32, the person applying must first satisfy that he has got a right under Part III which has to be enforced under article 32.
I have already said that article 19 does not deal with the freedom of the person.
I have also said that articles 21 and 22 provide for protection by insisting on some procedure.
Under article 22 (5) the authority making the order of detention is enjoined, as soon as may be, to communicate to the detenu the grounds on which that order has been made.
This provision has some purpose, name ly, that the disclosure of the grounds will afford the detenu the 333 opportunity of making a representation against the order.
Supposing the authority does not give any grounds at all as distinct from facts referred to in Clause (6).
Surely, the detenu loses a fundamental right because he is prevented from making a representation against the order.
of deten tion.
Suppose the authority hands over to the detenu a piece of paper with some scribblings on it which do not amount to any ground at all for detention.
Then also the detenu can legitimately complain that his right has been infringed.
He can then come to the Court to get redress under article 32, but he cannot show to the Court the piece of paper with the scribblings on it under section 14 of the Act and the Court cannot judge whether he has actually got the grounds which he is entitled to under article 22 (5).
such a case the detenu may well complain that both his substantive right under article 22 (5) ' as well as his right to constitutional remedies under article 32 have been in fringed.
He can complain of infringement of his remedial rights under article 32, because he cannot show that there has been an infringement of his substantive right under article 22 (5).
It appears to me, therefore, that section 14 of the Act in so far as it prevents the detenu from disclosing to the Court the grounds communicated to him is not in conformity with Part III of the Constitution and is, therefore, void under article 13 (2).
That section, howev er, is clearly severable and cannot affect the whole Act.
On this question the views of Meredith C.J. and Das J. of Patna in Criminal Miscellaneous No. 124 of 1950 (Lalit Kumar Barman vs The State) and the majority of the learned Judges of the Calcutta High Court in Full Bench Case No. 1 of 1950 (Kshitindra Narayan vs The Chief Secretary) appear to be correct and sound.
For the reasons I have given above, in my opinion, the impugned Act is a valid law except as to section 14 in so far as it prevents the grounds being disclosed to the Court.
The petitioner before us does not complain that he has not got proper grounds.
Further, the period of his detention under the impugned Act 334 has not gone beyond three months and, in the circumstances, this application should, in my opinion, stand dismissed.
Petition dismissed.
Agent for the petitioner: section Subrahmanyam.
Agent for the State of Madras and Union of India: P.A. Mehta. | The petitioner who was detained under the Preventive Detention Act (Act IV of 1950) applied under article 32 of the Constitution for a writ of habeas corpus and for his release from detention, on the ground that the said Act contravened the provisions of articles 13, 19, 21 and 22 of the Constitu tion and was consequently ultra rites and that his detention was therefore illegal: Held, per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ.
(FAZL ALI and MAHAJAN JJ.
dissentinq) that the preventive Detention Act, 1950, with the exception of Sec.
14 thereof did not contravene any of the Articles of the Constitution and even though Sec.
14 was ultra rites inas much as it contravened the provisions of article 9.9, (5) of the Constitution, as this section was severable from the remaining sections of the Act, the invalidity of Sec.
14 did not affect the validity of the Act as a whole, and the detention of the petitioner was not illegal.
FAZL ALl and MAHAJAN JJ.
Section 12, of the Act was also ultra vires, and since it contravened the very provi sion in the 89 Constitution under which the Parliament derived its compe tence to enact the law, the detention was illegal.
Held, by the Full Court (KANIA CJ., FAZL ALI, PATANJALI SASTRI, MAHAJAN, MUKHERJEA and DAS JJ.) Section 14 of the , contravenes the provisions of article 9.9.
(5) of the Constitution in so far as it prohibits a person detained from disclosing to the Court the grounds on which a detention order has been made or the representation made by him against the order of detention, and is to that extent ultra vires and void.
Per KANIA C.J., PATANJALI SASTRI, MAHAJAN, MUKHERJEA and DAS JJ.
(FAZL ALI J. dissenting).
Article 19 of the Consti tution has no application to a law which relates directly to preventive detention even though as a result of an order of detention the rights referred to in sub cls.
(a) to (e) and (g) in general, and sub cl.
(d) in particular, of cl.
(1) of article 19 may be restricted or abridged; and the constitution al validity of a law relating to such detention cannot therefore, be judged in the light of the test prescribed in el.
(5) of the said Article.
DAS J. Article 19 (1) postulates a legal capacity to exercise the rights guaranteed by it and if a citizen loses the freedom of his person by reason of lawful detention as a result of a conviction for an offence or otherwise he cannot claim the right s under sub cls.
(a) to (e) and (g) of article 19 (1); likewise if a citizen 's property is compulsorily ac quired under article 31, he cannot claim the right under sub el.
(f) of article 19 (1) with respect to that property.
In short the rights under sub cls.
(a) to (e) and (g) end where lawful detention begins and therefore the validity of a preventive detention Act cannot be judged by Arc.
19 (5).
MAHAJAN J. Whatever be the precise scope of article 19 (1) (d) and Art.19(5) the provisions of article 19(5) do not apply to a law relating to preventive detention, inasmuch as 'there is a special self contained provision in article 22 regulating it.
FAZL ALI.J.
Preventive detention is a direct infringe ment of the right guaranteed in article 19 (1) (d), even if a narrow construction is placed on the said sub clause, and a law relating to preventive detention is therefore subject to such limited judicial review as is permitted by article 19 (5).
Per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ.
(FAZL ALl J. dissenting).
The concept of the right "to move freely throughout the territory of India" referred to in article 19 (1) (d), of the Constitution is entirely differ ent from the concept of the right to "personal liberty" referred to in article 21, and article 19 should not, therefore, be read as controlled by the provisions of article 21.
The view that article 19 guarantees substantive rights and article 21 prescribes the procedure is incorrect.
DAs J. Article 19 protects some of the important attributes of personal liber ty as independent rights and the expression "personal liber ty" is used in article 21 as a compendious term 90 including within Rs meaning all varieties of rights which go to make up the personal liberties of men.
FAZL ALl J. Even if it be assumed that article 19 (1) (d) does not refer to " personal liberty" and that it bears the restricted meaning attributed to it,that is to say, R signi fies merely the right to move from one locality to another, preventive detention must be held to affect this limited right of movement directly and substantially.
One of the objects of preventive detention is to restrain a person detained from moving from place to place so that he may not spread disaffection or indulge in dangerous activities in the places he visits.
The same consideration applies to the cases of persons who are interned or externed.
Hence, externment, interment and certain other forms of restriction on movement have always been treated as kindred matters belonging to the same group or family, and the rule which applies to one must necessarily apply to the others.
Per KANIA C. J ,, PATANJALI SASTRI and DAS 35.
(MAHAJAN 3.
dissenting).
Article 22 does not form a complete code of constitutional safeguards relating to preventive detention.
To the extent that provision is made in article 9.9, it cannot be controlled by article 9,1; but on points of procedure which expressly or by necessary implication are not dealt with by article 22, article 9.1 will apply.
DAS J. article
21 protects substantive rights by requiring a procedure and article 9.9.
lays down the minimum rules of procedure that even the Parliament cannot abrogate or overlook.
MAHAJAN J. article
99. contains a self contained code of constitutional safeguards relating to preventive detention and cannot be examined or controlled by the provisions of article 21.
The principles underlying article 21 are however kept in view in article 22 and there is no conflict between these articles.
MUKHERJEA J. Even assuming that article 22 is not a self contained code relating to preventive detention and that article 21 would apply, it is .not permissible to supplement article 22 by the application of rules of natural justice.
FAZL ALI J. article
22. does not form an exhaustive code by itself relating to preventive detention.
Parliament can make further provi sions and if it has done so article 19 (5) may be applied to see if those provisions have transgressed the bounds of reasonableness.
Per KANIA C.J., MUKHERJEA and DAS JJ.
(FAZL ALI J. dis senting).
In article 9.1 the word 'law" has been used in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice; and "procedure established by law" means procedure established by law made by the State, that is to say, the Union Parliament or the Legislatures of the States.
It is not proper to construe this expression in the light of the meaning given to.the expression "due process of law" in the American Constitution by the Supreme Court of America.
FATANJALI SASTRI cl. "Law" in article 21 does not mean the jus naturale of civil law but means 91 positive or State made law.
"Procedure established by law" does not however mean any procedure which may be prescribed by a competent legislature, but the ordinary well estab lished criminal procedure, i.e., those settled.
usages and normal modes of procedure sanctioned by the Criminal Proce dure Code, which is the general law of criminal proce dure in this country.
The only alternative to this con struction, if a constitutional transgression is to be avoid ed is to interpret the reference to "law" as implying a constitutional 'amendment pro tanto, for it is only a law enacted by the procedure provided for such amendment that could modify or override a fundamental right without contra vening article 13 (2).
FAZL, ALI J.
There is nothing revolutionary in the view that "procedure established by law "must include the four principles of elementary justice which inhere in and are at the root of all civilized systems of law, and which have been stated by the American Courts and jurists as consisting in (1) notice, (2) opportunity to be heard, (3) impartial tribunal and (4) orderly course of procedure.
These four principles are really different aspects of the same right, namely, the right to be heard before one is condemned.
Hence the words "procedure established by law ", whatever its exact meaning be, must necessarily include the principle that no person shall be condemned without hearing by an impartial tribunal.
Per KANIA C.J., FAZL ALI, PATANJALI SASTRI, MAHAJAN and DAS JJ.
Section 3 of the , does not delegate any legislative power to an executive officer but merely confers on such officer a discretion to enforce the law made by the legislature, and is not there fore invalid on this ground.
The fact that the section does not provide an objective standard for determining whether the requirements of law have been complied with, is not a ground for holding that it is invalid.
FAZL ALI J. Section 3 is however a reasonable provision only for the first step, i.e., for arrest and initial detention and must be followed by some procedure for testing the so called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds.
Per KANIA C. J., MAHAJAN and DAS JJ.
Section 7 of the said Act is not invalid merely because it does not provide for an oral hearing or an opportunity to lead evidence but only gives right to make a representation.
Right to an oral hearing and right to give evidence are not necessarily implied in the right to make a representation given by article 22.
Per KANIA C.J., and MAHAJAN J.
The provision contained in Sec.
11 that a person may be detained for such period as the 12 A 92 State thinks fit does not contravene article 22 (7) and it is not therefore invalid.
Per KANIA.
C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ.
(FAZL ALI and MAHAJAN JJ.
dissenting).
Article 22 (7) means that Parliament may prescribe either the circumstances under which, or the class or classes of cases in which, a person may be detained for a period longer than three months without reference to an advisory board.
It is not necessary that the Parliament should prescribe both.
The matters referred to in clauses (a) and (b) of sub see.
(1) of Sec. 12 constitute a sufficient description of such circumstances or classes of cases and Section 12 is not therefore open to the objection that it does not comply with article 22 (7) DAS J. Parliament has in act and substance prescribed both in clauses (a) and (b) of sub sec.
(1) of Sec. 12.
FAZL ALI and MAJAN JJ.
Article 22 (7) Means that both the circumstances and the class or classes of cases (which are two different expressions with different meanings and connotations) should be prescribed, and the prescription of one without the other will not be enough.
The enumeration of the subjects for reasons connected with which a law of preventive detention could be made contained in els.
(a) and (b) of sub see.
(1) of Sec.12 does not amount to prescribing the circumstances under which, or the class or classes of cases in which, a person can be detained for more than three months.
Per KANIA C.J.
While it is not proper to take into consideration the individual opinions of members of Parlia ment or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted.
PATANJAYLI SASTRI J.
In construing the provisions of an Act, speeches made in the course of the debates on the bill should not be taken into consideration.
MUKHERJEA J.
In construing the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value may be placed on the report of the Drafting Committee. |
Civil Appeal No. 37 of 1968.
Appeal by special leave from the judgment and order dated 17 5 1966 of the Allahabad High Court in Special Appeal No. 640 of 1965.
R. K. Garg, section C. Agrawala and V. J. Francis, for the appellants.
B. D. Sharma, for respondents Nos. 4 and S The Judgment of V. R. Krishna Iyer and section Muataza Fazal Ali JJ. was delivered by Fazal Ali, J. R. section Sarkaria, J. gave a separate opinion.
FAZAL ALI J.
This is an appeal by special leave against the judgment of the Allahabad High Court dated May 17, 1966 by which the appeal against the decision of a Single Judge of the High Court rejecting the writ petition of the appellants had been dismissed.
An application for granting a certificate for leave to appeal to this Court was made by the appellant before the High Court which was also dismissed by order of the High Court dated August , 1967.
The case had a rather chequered career and the disputes between the parties were sometimes settled and sometimes reopened.
In order, however, to understand the point involved in the present appeal, it may be necessary to enter into the domain of the contending claims of the respective parties put forward before the Revenue Courts from time to time.
To begin with the admitted position is that one Lachman the last propitiator was the tenant and the tenure holder of the property in dispute which consists of 19.73 acres of land contained in Khatas Nos. 5 & 90 and 19.4 acres of land comprising Khatas Nos. 53 & 204.
Lachman died in the year 1948 leaving behind three daughters, namely, Musamat Tikia, Musamat Har Pyari and Musamat Ram Pyari.
Musamat Tikia was married during the life time of Lachman and the appellant No. 1 Kale is the son of Musamat Tikia.
Thus it would appear that after the death of Lachman the family consisted of his two unmarried daughters Har Pyari and Ram Pyari and his married daughter 's son Kale.
Under the U.P. Tenancy Act, 1939 which applied to the parties only unmarried daughters inherit the property.
The first round of dispute appears to have arisen soon after the death of Lachman in the year 1949 when Panchayat Adalat of the village was asked to decide the dispute between Prem Pal nephew of Lachman and the appellant Kale regarding inheritance to the property left by Lachman.
Har Pyari and Ram Pyari appear to have been parties to that dispute and the Panchayat Adalat after making local enquiries held that Har Pyari having been married had lost her right in the estate and Ram 205 Pyari was also an heir so long as she was not married and after her marriage the legal heir to the property of Lachman would be the appellant Kale.
In the year 1952 the U.P. Zamindari Abolition and Land Reforms Act, 1950 was made applicable to the tenure holders also.
This Act was further amended on October 10, 1954 by Act 20 of 1954 by which, amongst the list of heirs enumerated under the statute, "unmarried daughter" was substituted by ' 'daughter ' ' only.
According to the appellant in this Court as also in the High Court Ram Pyari respondent No. S was married on February 25, 1955 and thereafter the appellant filed a petition before the Naib Tahsildar, Hasanpur, for expunging the names of respondents 4 and 5 from the disputed Khatas because both of the daughters having been married ceased to have any interest in the property.
lt was therefore prayed that the appellant was the sole heir to the estate of Lachman under section 3 of the U.P. Tenancy Act, 1939, he alone should be mutated in respect of the`property of Lachman.
By order dated December S, 1955 the Naib Tahsildar, Hasaknpur, accepted the contention of the appellant and expunged the names of respondents 4 & 5 from the Khatas in dispute and substituted the name of the appellant Kale.
Soon thereafter on January 11, 1956, respondents 4 & 5, i.e. Musamat Har Pyari and Ram Pyari daughters of Lachman, filed an application before the Naib Tahsildar for setting aside his order dated December 5, 1955 which had been passed behind their back and without their knowledge.
While this application of respondents 4 & 5 was pending adjudication the Revenue Court was informed that talk of compromise was going on between the parties which ultimately culminated in a compromise or a family arrangement under which the appellant Kale was allotted, Khatas Nos.
5 90 whereas respondents 4 & 5 were allotted Khatas No. 53 & 204 as between them.
A petition was filed on August 7, 1956 before the Revenue Court informing it that compromise had been arrived at and in pursuance thereof the name of the parties may be mutated in respect of the khatas which had been allotted to them.
This petition was signed by both the parties and ultimately the Assistant Commissioner, 1 Class, passed an order dated March 31, 1957 mutating the name of the appellant Kale in respect of Khatas Nos. 5 & 90 and the names of respondents 4 & 5 in respect of Khatas Nos. 53 and 204.
Thereafter it is not disputed that the parties remained in possession of the properties allotted to them and paid land revenue to the Government.
Thus it would appear that the dispute between the parties was finally settled and both the parties accepted the same and that benefit thereunder.
This state of affairs continued until the year 1964 when proceedings for revision of the records under section 8 of the U.P. Consolidation of holdings Act, 1953 were started in the village Hasanpur where the properties were situated in the course of which respondents 4 & 5 were entered in Form C.H. 5 as persons claiming co tenure holders to the extent of 2/3rd share with the appellant Kale who was entered in the said form as having 1/3rd share in all the Khatas.
In view of this sudden change of the entries which were obviously contrary to the mutation made in pursuance of the family arrangement entered into between the parties in 1956, the appellant 206 Kale filed his objections before the Assistant Consolidation officer for changing the entries in respect of those Khatas.
As the Assistant Consolidation officer found that the dispute was a complicated one he by his order dated May 7, 1964 referred the matter to the Consolidation officer.
It might be mentioned here that when the proceedings for revision of the records were started, while the appellant filed his objections, respondents 4 & 5 seem to have kept quiet and filed no objections at all.
In fact under section 9 (2) of the U. P. Consolidation of Holdings Act, 1953, the respondents could have filed their objections, if they were aggrieved by the entries made on the basis of the compromise.
Sub section (2) of section 9 of the U.P. Consolidation of Holdings Act runs thus: "Any person to whom a notice under sub section (1) has been sent, or any other person interested may, within 21 days of the receipt of notice, or of the publication under sub section (1), as the case may be, file, before the Assistant Consolidation officer, objections in respect thereof disputing the correctness or nature of the entries in the re cords or in the extract furnished therefrom, or in the Statement of Principles, or the need for partition.
" This is a very important circumstance which speaks volumes against the conduct of the respondents which will be referred to in detail in a later part of our judgment and seems to have been completely brushed aside by all the Courts.
The Consolidation officer to whom the dispute was referred, by his order dated July 27, 1964, framed a number of issues, and after trying the suit, removed the name of the appellant Kale from Khatas 5 & 90 and substituted the names of appellant No. 2 Musamat Tikia and those of respondents 4 & 5.
We might also mention here that for the first time respondents 4 & 5 raised a dispute before the Consolidation officer denying that the appellant Kale was the grandson of Lachman.
The Consolidation officer framed an issue on this question and after taking evidence clearly found that the objection raised by respondents 4 & 5 was absolutely groundless and that the appellant Kale was undoubtedly the grandson of Lachman.
The Consolidation officer pointed out that even before the Panchayat Adalat as also in the mutation petition which was filed before the Naib Tahsildar respondents 4 & 5 never disputed that the appellant Kale was the grandson of Lachman being the son of his daughter Musamat Tikia who is appellant No. 2.
Thereafter the appellant and the respondents 4 & 5 filed an appeal before the Settlement officer who by his order dated November 28, 1964, restored the mutation made by the Naib Tahsildar on the basis of the compromise, namely the appellant was mutated in respect of Khatas Nos. 5 & 90 and respondents 4 & 5 in respect of Khatas Nos. 53 & 204.
Thereafter respondents 4 & 5 filed a revision petition before the Deputy Director of Consolidation who by his order dated January 22, 1965, reversed the order of the Settlement officer and expunged 207 the name of the appellant Kale from Khatas Nos.
S & 90 and recorded the name of respondent No. 5 Musamat Ram Pyari in respect of these Khatas on the ground that she was the sole tenure holder in respect of those Khatas.
Thereafter the appellant Kale and his mother Musama Tikia appellant No. 2 filed a writ petition in the Allahabad High Court against the order of the Deputy Director of Consolidation.
The writ petition was heard in the first instance by a Single Judge who dismissed the petition upholding the order of the Deputy Director of Consolidation The appellant then filed a special appeal to the Division Bench of the Allahabad High Court which also affirmed the judgment of the Single Judge and dismissed the appeal hence this appeal by special leave.
In support of the appeal Mr. Garg appearing for the appellants submitted two points of law before us.
In the first place he argued that the grounds on which the Courts below have not given effect to the family arrangement arrived at between the parties in 1956 culminating in the mutation in 1957 are not legally sustainable.
The High Court took an erroneous view of the law in rejecting the compromise on the ground that it was not registered.
It was argued that an oral family arrangement had already taken place earlier and application before the Naib Tahsildar was merely for the information of the Court for the purpose of mutation of the names of the parties in pursuance of the compromise and, therefore, no question of registration of the compromise in this case arose.
Secondly it was contended that even if the compromise was unregistered it would undoubtedly operate as a clear estoppel against the respondents 4 & 5 who having taken benefit thereunder and having remained in possession of the lands for E more than seven years cannot be allowed to revoke the compromise.
Mr. Sharma learned counsel appearing for the respondents raised the following contentions before us: (1) that the appellants never pleaded any oral family arrangement; (2) that the family arrangement relied upon by the appellants was not bona fide and was fraudulent as the on sent of respondents 4 & 5 was obtained by fraud or` undue influence; (3) that the appellants themselves gave a complete go bye to the family arrangement in the case which they made out before the Revenue Courts and have merely taken advantage of a stray observation made by the Deputy Director of Consolidation; (4) that the petition filed before the Naib Tahsildar embodied and as such the terms and conditions of the compromise was compulsorily registrable under the Registration Act, and being unregistered it was inadmissible in evidence; (5) that at any rate the family arrangement was not proved by the appellants as a fact; 208 (6) that the doctrine of estoppel would not apply because the family arrangement being compulsorily registrable there can be no estoppel against the statute; and (7) that the findings of the Revenue Courts being essentially findings of fact, this Court would not interfere, unless there was a sufficient error of law apparent on the face of the record.
Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all.
By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family.
The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made.
In this connection, Kerr in his valuable treatise "Kerr on Fraud" at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus; "The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements.
Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honesty made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to that their rights actually are, or of the points On which their rights actually depend.
" The object of the arrangement is to protect the family from long drawn litigation cr perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.
Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour.
A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administrating of social justice.
That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successions so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger 209 interest of the country.
The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds.
Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.
The law in England on this point is almost the same.
In Halsbury 's Laws of England, Vol. 17, Third Edition, at pp.
215 216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made: "A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.
The agreement may be implied from a long course.
Of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied.
Family arrangements are governed by principles which are not applicable to dealings between strangers.
The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which in dealing with transactions between persons not members of the same family, would not be taken into account.
Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements".
In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence: (3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only if the terms of the family arrangement are 210 reduced into writing.
Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum pre pared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation.
In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of section 17(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property 'It which is acknowledged by the parties to the settlement.
Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole 9 owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.
The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently.
In Lala Khunni Lal & Ors.
vs Kunwar Gobind Krishna Narain and Anr.(1) the statement of law regarding the essentials of a valid settlement was fully approved of by their Lordships of the Privy Council.
In this connection the High Court made the following observations , which were adopted by the Privy Council: The learned judges say as follows: "The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively.
It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that (1) L. R. 38 T. A. 87. 102.
211 it is the duty of the Courts to uphold and give full effect to such an arrangement.
" Their Lordships have no hesitation in adopting that view." This decision was fully endorsed by a later decision of the Privy Council in Mt. Hiran Bibi and others vs Mt. Sohan Bipi(1).
In Sahu Madho Das and others vs Pandit Mukand Ram and another(2) this Court appears to have amplified the doctrine of validity of the family arrangement to the farthest possible extent, where Bose, J., speaking for the Court, observed as follows: "It is well settled that compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively.
That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement.
It is assumed that the title claimed by the person receiving the property `, under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.
But, in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid in anticipation, future disputes which might ruin them all, and we have no hesitation in taking the next step.
(fraud apart) and upholding an arrangement under which.
One set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and, simple from him or her, or as a conveyance for consideration when consideration is present." In Ram Charan.
DAS vs Girjanandini Devi & Ors.
(3), this Court observed as follows: "Courts give effect to a family settlement upon the broad " and general ground that its object is to settle existing or future disputes regarding property amongst members of a family.
The word 'family ' in the content is not to be under stood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or (1) A.I.R. 1914 P.C.44.
(2) ; , 42 43.
(3) ; , 850 851. 212 having a claim to a share in the property in dispute.
The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another.
That consideration having been passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter.
" In Tek Bahadur Bhujil vs Debi Singh Bhujil and others(1) it was pointed out by this Court that a family arrangement could be arrived 4 at even orally and registration would be required only if it was reduced into writing.
It was also held that a document which was no more than a memorandum of what had been agreed , to did not require registration.
This Court had observed thus: "Family arrangement as such can be arrived at orally.
Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties.
The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded.
It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future.
It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights f in what properties the parties possess." Similarly in Maturi Pullaiah and Anr.
vs Maturi Narasimham and ors.(2) it was held that even if there was no conflict of legal claims but the settlement was a bona fide one it could be sustained by the Court.
Similarly it has also held that even the disputes based upon ignorance of the parties as to their rights were sufficient to sustain the family arrangement.
In this connection this Court observed as follows: "It will be seen from the said passage that a family arrangement resolves family disputes, and that even disputes based upon ignorance of parties as to their rights may afford a sufficient ground to sustain it.
* * * * * Briefly stated, though conflict of legal claims in praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so.
Even bona fide disputes, present or possible, which may not involve legal claims will suffice.
Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, (1) A.I.R. 1966 S.C. 292, 295.
(2) A.I.R. 1966 S.C. 1836.
213 enter into such a family arrangement.
If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts `will .
more readily give assent to such an arrangement than to avoid it.
" In Krishna Biharilal vs Gulabchand and others(1) it was pointed out that the word 'family ' had a very wide connotation and could not be confined only to a group of persons who were recognised by law as having a right of succession or claiming to have a share.
The Court then observed: "To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all , belong to one family.
As observed by this Court in Ram Charan Das vs Girjanandini Devi and ors.[1965] 3 SCR 841 at pp.
850 & 851 the word "family" in the context of a family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute.
If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement see Ramcharan Das 's case.
The courts lean strongly in favour of family arrangements to bring about harmony in a family and do Justice to its various members and avoid in anticipation future disputes which might ruin them all." In a recent decision of this Court in section Shanmugam Pillai and others vs K. Shanmugam Pillai & others(2) the entire case law was discussed and the Court observed as follows: "If in the interest of the family properties or family peace the close relations had settled their disputes amicably, this Court will be reluctant to disturb the same.
The courts generally lean in favour of family arrangements.
* * * * Now turning to the plea of family arrangement, as observed by this Court in Sahu Madho Das and others v Pandit Mukand Ram and Another ; the courts lean strongly in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all.
As observed in that case the family arrangement can as a matter of law be inferred from a long course of dealings between the parties.
In Maturi Pullaiah and Another vs Maturi Narasimham and Others AIR 1966 SC 1836 this Court held that although conflict of legal claims in praesenti or in future is (1) [1971] Supp.
SCR 27, 34.
(2) 214 generally condition for the validity of family arrangements, it is not necessarily so.
Even bona fide dispute present or possible, which may not involve legal claims would be sufficient.
Members of a joint Hindu family may to maintain peace or to bring about harmony in the family, enter into such a family arrangement.
If such an agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the courts would more readily give assent to such an agreement than to avoid it." Thus it would appear from a review of the decisions analysed above that the Courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it.
The central idea in the approach made by the Courts is that if by consent of parties a matter has been settled, it should not be allowed to be re opened by the parties to the agreement on frivolous or untenable grounds.
A full bench of the Allahabad High Court in Ramgopal vs Tulshi Ram and another(1) has also taken the view that a family arrangement could be oral and if it is followed by a petition in Court containing a reference to the arrangement and if the purpose was merely to inform the Court regarding the arrangement, no registration was necessary.
In this connection the full bench adumbrated the following propositions in answering the reference: " We would, therefore return the reference with a statement of the following general propositions: With reference to the first question: (1) A family arrangement can be made orally.
(2) If made orally, there being no document, no question of registration arises.
With reference to the second question: (3)If though it could have been made orally, it was in fact reduced to the form of a "document", registration (when the value is Rs. 100 and upwards) is necessary.
(4) Whether the terms have been "reduced to the form of a document" is a question of fact in each case to be determined upon a consideration of the nature and phraseology of the writing and the circumstances in which and the purpose with which it was written.
(5) If the terms were not "reduced to the form of a document", registration was not necessary (even though the value is Rs. 100 or upwards); and, while the writing cannot be used as a piece of evidence for what it may be worth, e.g. as corroborative of other evidence or as an admission of the transaction or as showing or explaining conduct.
(1) AIR 1928 All.
641, 649. 215 (6) If the terms were "reduced to the form of a document" and, though the value was Rs. 100 or upwards, it was not registered, the absence of registration makes the document inadmissible in evidence and is fatal to proof of the arrangement embodied in the document.
" Similarly in Sitala Baksh Singh and others vs Jang Bahadur Singh and other (1) it was held that where a Revenue Court merely gave effect to the compromise, the order of the Revenue Court did not require registration.
In this connection the following observations ' were made: "In view of this statement in para 5 of the plaint it is hardly open to the plaintiffs now to urge that exhibit 1, the com promise, required registration when they themselves admit that it was embodied in an order of the Revenue Court and that it was given effect to by the Revenue Court ordering mutation in accordance with the terms of the compromise.
* * * * We hold that as the Revenue Court by its proceeding gave effect to this compromise, the proceedings and orders of the Revenue Court did not require registration." Similarly in a later decision of the same Court in Mst.
Kalawati vs Sri Krlshna Prasad and others (2) it was observed as follows: "Applying this meaning to the facts of the present case, it seems to us that the order of the mutation court merely stated the fact of the compromise having been arrived at between the parties and did not amount to a declaration of will.
The order itself did not cause a change of legal relation to the property and therefore it did not declare any right in the property.
" The same view was taken in Bakhtawar vs Sunder Lal and others(3), where Lindsay, J., speaking for the Division Bench observed as follows: "It is reasonable to assume that there was a bona fide dispute between the parties which was eventually composed each party recognizing an antecedent title in the other.
I this view of the circumstances I am of opinion that there was no necessity to have this petition registered.
It does not in my opinion purpose to create, assign, limit, extinguish or declare within the meaning of these expressions as used in section 17(1)(b) of the Registration Act.
It is merely a recital of fact by which the Court is informed that the parties have come to an arrangement.
" Similarly the Patna High Court in Awadh Narain Singh and others vs Narain Mishra and others(4) pointed out that a compromise petition not embodying any terms of agreement but merely conveying in formation to the Court that family arrangement had already been (1) A.I.R 1933 Oudh 347, 348 349.
(2) I.L.R. 19 Lucknow 57, 67.
(3) A.I.R. 1926 All. 173.
(4) AIR 1962 Patna 400.
15 390SCI/76 216 arrived at between the parties did not require registration and can be looked into for ascertaining the terms of family arrangement.
This is what actually seems to have happened in the present case when the mutation petition was made before the Assistant Commissioner.
This Court has also clearly laid down that a family arrangement being binding on the parties to the arrangement clearly operates as an estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same.
We shall deal with this point a little later when we consider the arguments of the respondents on the question of the estoppel.
In the light of the decisions indicated above, we shall now try to apply the principles laid down by this Court and the other Courts to the facts of the present case.
It would be seen that when the name of appellant No. 1 Kale was mutated in respect of the Khatas by the Naib Tehsildar by his order dated December 5, 1955 which is mentioned at p. 4 of the Paper Book respondents 4 & 5 filed an application for setting aside that order on the ground that they had no knowledge of the proceedings.
Subsequently a compromise was entered into between the parties a reference to which was made in the compromise petition filed before the Revenue Court on August 7, 1956.
A perusal of this compromise petition which appears at pp.
15 to 18 of the Paper Book would clearly show two things (1) that the petition clearly and explicitly mentioned that a compromise had already been made earlier, and (2) that after the allotment of the Khatas to the respective parties the parties shall be permanent owners thereof.
The opening words of the petition may be extracted thus: "It is submitted that in the above suit a compromise has been made mutually between the parties.
" It would appear from the order of the Assistant Commissioner, 1st Class, being Annexure 4 in Writ Petition before the High Court, appearing at p. 19 of the Paper Book that the parties sought adjournment from the Court on the ground that a compromise was being made.
In this connection the Assistant Commissioner, Ist Class, observed as follows: "On 11th January 1956 Mst.
Har Piari and Ram Piari gave an application for restoration in the court of Naib Tahsildar on the ground that they were not informed of the case and they were aggrieved of his order passed on 5th December 1955.
On this application he summoned the parties and an objection was filed against the restoration application.
The parties sought adjournment on the ground that a compromise was being made.
The parties filed compromise before the Naib Tehsildar according to which two lists were drawn, one of these is to be entered in the name of.
Kale and the other in the name of Har Piari and Ram Piari.
" This shows that even before the petition was filed before the Assistant commissioner informing him that a compromise was being made, The 217 parties had a clear compromise or a family arrangement in contemplation for which purpose an adjournment was taken.
These facts coupled together unmistakably show that the compromise or family arrangement must have taken place orally before the petition was filed before the Assistant Commissioner for mutation of the names of the parties in pursuance of the compromise.
The facts of the present case are '` therefore clearly covered by the authorities of this Court and the other , .
High Courts which laid down that a document which is in the nature of a memorandum of an earlier family arrangement and which is filed before the Court for its information for mutation of names is not compulsorily registrable and therefor can be used in evidence of the family arrangement and is final and binding on the parties.
The Deputy Director of Consolidation respondent No. 1 as also the High Court were, therefore, wrong in taking the view that in absence of registration the family arrangement could not be sustained.
We might mention here that in taking this view, the High Court of Allahabad completely over looked its own previous decisions on this point which were definitely binding on it.
This, therefore, disposes of the first contention of the learned counsel for the respondents that as the family arrangement having been reduced into the form of a document which was presented before the Assistant Commissioner was unregistered it is not admissible and should be excluded from consideration.
It was then contended by the respondents that the family arrangement was not bona fide for two reasons: (1) that it sought to give property to the appellant No. 1 Kale who was not a legal heir to the estate of Lachman, because in view of the U.P. Land Reforms (Amendment) Act 20 of 1954 Mst.
Ram Piari even after being married could ? retain the property, and so long as she was there the appellant had no right; and (2) that the family arrangement was brought about by fraud or undue influence.
As regards the first point it appears to us to be wholly untenable in law.
From the principles enunciated by us and the case law discussed above, it is absolutely clear that the word 'family ' cannot he construed in a narrow sense so as to confine the parties to the family arrangement only to persons who have a legal title to the property.
Even so it cannot be disputed that the appellant Kale being the grand son of Lachman and therefore a reversioner at the time when the talks for compromise` took place was undoubtedly a prospective heir and also a member of the family.
Since respondents 4 & 5 relinquished their claims in favour of the appellant Kale in respect of Khatas 5 & 90 the appellant, according to the authorities mentioned above, would be deemed to have antecedent title which was acknowledged by respondents 4 & 5.
Apart from this there is one more important consideration , which clearly shows that the family arrangement was undoubtedly a bona fide settlement of disputes.
Under the family arrangement as referred to in the mutation petition the respondents 4 & 5 were given absolute and permanent rights in the lands in dispute.
In 1955 when the compromise is alleged to have taken place the Hindu Succession , was not passed and respondents 4 & 5 would have only a limited interest even if they had got the entire property which would ultimately pass to the appellant Kale after their death.
The respondents 4 & 5 thought that it would be a good bargain if by dividing the properties equally they could retain part of the properties as absolute owners.
At that time they did not know that the Hindu Succession p Act would be passed a few months later.
Finally the compromise sought to divide the properties between the children of Lachman, namely, his two daughters and his daughter 's son the appellant Kale in equal shares and was, therefore, both fair and equitable.
In fact if respondents 4 & 5 would have got all the lands the total area of which would be somewhere about 39 acres they might have to give away a substantial portion in view of the ceiling law.
We have, therefore to see the circumstances prevailing not after the order of the Assistant Commissioner was passed on the mutation petition but at the time when the parties sat down together to iron out their differences.
Having regard to the circumstances indicated above, we cannot conceive of a " more just and equitable division of the properties than what appears to have been done by the family arrangement.
In these circumstances therefore, it cannot be said that the family settlement was not bona fide Moreover respondents 4 & 5 had at no stage raised the issue before the Revenue Courts or even before the High Court that the settlement was not bona fide.
The High Court as also respondent No. 1 have both proceeded on the footing that the compromise was against the statutory provisions of law or that it was not registered although it should have been registered under the Registration Act.
There is yet one more intrinsic circumstance which shows that the compromise was an absolutely bona fide transaction.
It would appear that at the time of the compromise respondent 5 Ram Pyari was faced with a situation when her marriage in 1955 was not so far proved.
If she was absolutely certain that her marriage had taken place in 1955 she would not have agreed to the terms at all.
On the other hand if she thought that she might not be able to prove that her marriage took place in 1955 and if it was shown that she had married before 1955 then she would be completely disinherited and would get nothing at all with the result that the appellant Kale would get the entire property.
on the other hand the appellant must have similarly thought that a bird in hand is worth two in the bush.
So long as Ram Pyari was alive he would not be able to enjoy the property and would have to wait till her death.
It was, therefore, better to take half of the property immediately as a permanent tenure holder and give the half to the daughters of Lachman, namely, Har Pyari and Ram Pyari.
Thus under the terms of the compromise both the parties got substantial .
benefits and it was on the whole a very fair and equitable bargain.
In these circumstances, therefore, the parties struck a just balance and fair and beneficial settlement which put an end to their disputes.
Coming to the second plank of attack against the family settlement that it was brought about by duress or undue influence or fraud, there is not an iota of evidence or a whisper of an allegation by respondents 4 & 5 either in the Revenue Courts or in the High Court.
Even before respondent No. 1, where respondents 4 & 5 were the petitioners l, 219 they never questioned the compromise on the ground that it was fraudulent on a point of fact.
It is well settled that allegations of fraud or undue influence must first clearly be pleaded and then proved by clear and cogent evidence.
There was neither pleading nor proof of this fact by respondent 4 & 5.
Moreover, it may be mentioned that even in their objections before the Assistant Commissioner for setting aside the previous mutation made in favour of the appellant Kale the only ground taken by the respondents 4 & 5 was that the order was passed without their knowledge.
Lastly the petition filed before the Assistant Commissioner for mutating the lands in pursuance of the compromise was signed by both the parties who were major and who knew the consequences thereof.
In these circumstances, therefore, the argument of the learned counsel for the respondents that the compromise was fraudulent appears to be a pure after thought and is not at all justified by any evidence.
This contention must therefore be overruled.
It was also suggested by Mr. Sharma that before the Revenue Courts the appellant Kale tried to show by producing a false Kutumb Register that respondent No. 5 Ram Pyari was married before 1955 so that being a married daughter she may be deprived of her inheritance and the Revenue Courts found that this register was not proved to be genuine.
This, however, does not amount to a plea of fraud but is a matter of evidence.
On the other hand even the respondents 4 & 5 had taken the stand before the Revenue Courts when they filed their joint written statement in 1965 that the appellant was not the grandson of Lachman a fact which they admitted clearly before the Panchayat Adalt as also before the Assistant Commissioner when they filed the mutation petition.
The Revenue Courts clearly held that this plea was totally unfounded and was completely disproved.
thus even assuming the argument of Mr. Sharma to be correct, both parties being in pari delicto none of them could be allowed to take advantage of their wrong.
In fact Mr. Garg counsel for the appellants was fair enough to give up this plea and clearly conceded before the High Court as also in this Court that Musamat Ram Pyari was married in 1955 as found by the Revenue Courts.
Another contention that was advanced before us by counsel for the respondents was that an oral family arrangement was never pleaded before the Revenue Courts and that the appellants relied mainly on the mutation petition as embodying the terms and conditions of the compromise.
In our opinion this contention, apart from being untenable, is not factually correct.
The disputes between the appellant Kale and respondents 4 & 5 arose only after the Naib Tehsildar had, on the application of the appellant, mutated his name in respect of the Khata Numbers in dispute.
An application was filed by respondents 4 & 5 for setting aside that order.
Thereafter both the parties, namely, the appellant and respondents 4 & 5 obtained adjournment from the Court on the ground that they were going to compromise the dispute.
Subsequently the mutation petition was filed which was signed by both the parties.
In the Revenue Courts therefore it was the mutation petition alone which formed the pleadings of the parties and therefore it was obvious that the family arrangement was pleaded by 220 the appellant at the first possible opportunity The family arrangement was again relied upon before the Consolidation officer in Annexure 5 to the writ petition the relevant portion which appears at p. 25 of the Paper Book and runs thus: The parties contested the suit in the panchayat.
They contested it in tahsil also.
The plaintiff produced a copy thereof.
He produced a copy of a compromise in which the defendant gave half of the land to Kale, treating him as dheota of Lachman, although no party now remembers about that compromise." In the final Revenue Court i.e., before the Director of Consideration as also before the High Court the compromise was very much relied upon by the appellant and a finding against the appellant was given both by respondent No. 1 and by the High Court as a result of which this appeal has been filed before this Court.
It was suggested by the respondents that Respondent No. 1 had merely made a stray observation in his order.
This does not appear to be correct, because respondent No. 1 has proceeded on the footing that a compromise was there but it could not be given legal effect because it contravened some provisions of the law.
In this connection the order of respondent No. 1 reads thus: "Even the orders passed in the mutation proceedings on the basis of compromise could not maintain as since the mutation proceedings were of summary nature and the com promise of the parties, even if accepted, was against the pro visions of law, as either Smt.
Ram Pyari could succeed or Kale alone could be deemed to be the successor of Lachman, the last male tenant.
There was no question of both the parties sharing the land in between them on the basis of a compromise made against the provisions of law.
" Respondent No. 1 also indicated in his order that the compromise had taken place before the Naib Tehsildar as alleged by the appellant.
Lastly both the Single Judge and the Division Bench also have proceeded on the basis that there was in fact a compromise between the parties but have refused to give effect.
to the compromise because the same was not registered.
In these circumstances, therefore, the contention of the respondents 4 and 5 on this score must be overruled.
It was then argued that the appellants have adduced no evidence to prove that there was actually a family arrangement between the parties.
We are, however, unable to agree with thus contention There are four important circumstances from which the family arrangement can be easily inferred.
These are; (1) that the parties took adjournment from the Court intimating to it that a compromise was under contemplation; (2) that a petition for mutation was filed before the Court of Assistant Commissioner clearly alleging that a com promise or a family arrangement had already taken place and that mutation should be made accordingly; 221 (3) that in pursuance of the compromise both the parties A took benefit under the same and continued to remain in possession of the properties allotted to them for full seven years and did not raise any objection at any stage before any authority during this period regarding the validity of the compromise; and (4) that even though the U.P. Consolidation of Holdings Act, 1953 contained an express provision for filing of an objection under section 9 (2) when the proceedings for correction of the entries were taken respondents 4 & 5 filed no objection whatsoever and filed their additional written statement at a much later stage.
Thus from the actings and dealings of the parties in the course of several years a family arrangement can clearly be inferred in this case.
Finally the respondents never took any objection before any of the Courts that no family arrangement had as a matter of fact taken place between the parties.
The only objection centered round the admissibility of the document said to have embodied the terms of the compromise.
This contention, therefore, cannot be accepted.
It was then submitted that even the appellant had given a go bye to the compromise and seems to have forgotten all about it.
This is also factually incorrect.
As indicated earlier right from the Court of the Consolidation officer upto the High Court the appellant has always been relying mainly on the compromise entered into between the parties.
Another argument advanced by counsel for the respondents was that the family arrangement was not valid because the appellant had absolutely no title to the property so long as Mst.
Ram Pyari was in lawful possession of the property as the sole heir to Lachman, and if under the family arrangement any title was conveyed to the appellant, the said conveyance can only be by a registered instrument under the provisions of the Registration Act and the Transfer of Property Act.
This argument also, in our opinion, suffers from a serious misconception.
We have already pointed out that this Court has widened the concept of an antecedent title by holding that an antecedent title would be assumed in a person who may not have any title but who has been allotted a particular property by other party to the family arrangement by relinquishing his claim in favour of such a done.
In such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title.
In fact a similar argument was advanced before this Court in Tek Bahadur Bhujil 's case, (supra) relying on certain observations made by Bose, J., in Sahu Madho Das 's case, (supra) but the argument was repelled and this Court observed as follows: "Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the mother 's ' money, could not have legally entered into a family arrangement.
The observations ' are: It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent 222 title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it to the portions allotted to them respectively.
"These observations do not mean that some title must exist as a fact in the persons entering into a family arrangement.
They simply mean that it is to be assumed that the r parties to the arrangement had an antecedent title of some sort and that the agreement clinches and defines what that title is.
" The observations of this Court in that case, therefore, afford complete answer to the argument of the learned counsel for the respondents on this point.
Furthermore the Privy Council in somewhat identical circumstances P upheld the family settlement in Ramgouda Annagouda & others vs Bhausaheb and others(1).
In that case there were three parties to the settlement of a dispute concerning the property of the deceased person.
These were the widow of the deceased, the brother of the widow and the son in law of the widow.
It was obvious, therefore, that in presence of the widow neither her brother nor her son in law could be regarded as the legal heirs of the deceased.
Yet having regard to the near relationship which the brother and the son in law bore to the widow the Privy Council held that the family settlement by which the properties were divided between these three parties was a valid one.
In the instant case also putting the case of respondents 4 & 5 at the highest, the position is that Lachman died leaving a grandson and two daughters.
Assuming that the grandson had no legal title, so long as the daughters were there, still as the settlement was made to end the disputes and to benefit all the near relations of the family, it would be sustained as a valid and binding family settlement.
In the instant case also it would appear that the appellant Kale and Mst.
Har Piari had no subsisting interest in the property so long as Mst.
Ram Piari was alive.
Ram Piari in view of the amendment in law by the U.P. Land Reforms (Amendment) Act, 20 of 1954, continued to be an heir even after her marriage but Mst.
Har Piari ceased to be the heir after her marriage which had taken place before the amendment.
Nevertheless the three children of Lachman in order to bring complete harmony to the family and to put an end to all future disputes decided to divide the property each getting a share in the same.
The appellant Kale got Khatas Nos. 5 & 90 and Mst.
Har Pari 's share was placed along with Mst.
Ram Piari in the other Khatas.
This the appellant and Har Piari & Ram Piari also enjoyed full benevolence under the family arrangement.
We cannot think of a fairer arrangement than this by which not only the property was divided amongst the children of Lachman but even the spirit of the law, which wiped out the invidious distinction between the married and unmarried daughters by the U.P. Act 20 of 1954, was followed.
The facts of the present case, therefore, as we have already indicated, are (1) L.R. 54 I.A. 396.
223 on all fours with the facts in Ramgouda Annagouda 's case (supra).
The Privy Council further held in Ramgouda Annagouda 's case that Ramgouda being a party to benefit by the transaction was precluded from questioning any part of it.
On a parity of reasoning, therefore, the respondents 4 & 5 who were parties to the family arrangement and having been benefited thereunder would be precluded from assailing the same.
For these reasons, therefore, the contention of the learned counsel for the respondents on this point also must be over ruled.
We might mention here that the learned counsel for the respondents relied on two decisions of the Patna High Court in Brahmanath Singh Ors.
vs Chandrakali Kuer and another (1) and Mst.
Bibi Aziman and another vs Mst.
Saleha and others (2) for the proposition that unless a party to a settlement had an antecedent title the family settlement would not be valid.
In view, however, of the decisions of this Court and of the Privy Council the authority of the Patna High Court on this point is considerably weakened and cannot be treated as a good law.
The Patna High Court also held that where the document itself contains or embodies the terms of the family settlement it will be compulsorily registrable but not when it speaks of the past.
In view of our finding that the mutation petition before the Assistant Commissioner was merely a memorandum of the family arrangement, the authority of the Patna High Court does not appear to be of any assistance to the respondents.
Rebutting the arguments of the learned counsel for the appellant, Mr. Sharma for the respondents, contended that no question of estoppel would arise in the instant case inasmuch as if the document was to be compulsorily registrable there can be no estoppel against the statute.
In the first place in view of the fact that the family arrangement was oral and the mutation petition was merely filed before the Court of the Assistant Commissioner for information and for mutation in pursuance of the compromise, the document was not required to be registered, therefore, the principle that there is no estoppel against the statute does not apply to the present case.
Assuming, however, that the said document was compulsorily registrable the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it.
This principle has been established by several decisions of this Court as also of the Privy Council.
In Kanhai Lal vs Brij Lal and Anr.(3) the Privy Council applied the principle of estoppel to the facts of the case and observed as follows: "Kanhai Lal was a party to that compromise.
He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interests and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he (1) AIR 1961 Pat.
(2) AIR 1963 Pat.
(3) L.R. 45 I.A. 118, 124.
224 has hitherto enjoyed.
In their Lordships ' opinion he is bound by it, and cannot now claim as a reversioner.
This Court in Dhiyan Singh and Anr.
vs Jugal Kishore and Anr.
(1) observed as follows: "We do not think the fact that there was a voluntary com promise whereas here there was the imposed decision of an arbitrator makes any difference because we are not proceeding on the footing of the award but on the actions of the parties in accepting it when they need not have done so if the present contentions.
are correct.
Even if the arbitrator was wholly wrong and even if the had no power to decide as he did, it was open to both sides to accept the decision and by their acceptance recognise the existence of facts which would in law give the other an absolute estate in the properties they agreed to divide among themselves and did divide.
That, in our opinion is a representation of an existing fact or set of facts.
Each would consequently be estopped as against the other and Brijlal in particular would have been estopped from denying the existence of facts which would give Mst.
Mohan Dei an absolute interest in the suit property.
" In view of the principle enunciated in the aforesaid case it is obvious that respondents 4 & 5 would be estopped from denying the existence of the family arrangement or from questioning its validity.
In Ram Charan Das 's case (supra) while dwelling on the point of the family arrangement this Court observed as follows: "It seems to us abundantly clear that this document was in substance a familiar arrangement and, therefore, was binding on all the parties to it.
Moreover it was acted upon by them.
x x x x In our opinion the document on its face appears to effect a compromise of the conflicting claims of Gopinath on the one hand and the pre sent plaintiff Ram Charan Das and his brothers on the other to the estate of Kanhaiyalal.
" At p. 851 this Court pointed out that as the settlement consisted of recognition of the right asserted by each other none of the parties could be permitted to impeach it thereafter.
To the same effect is the decision of this Court in Krishna Bihari lal 's case (supra), where the doctrine of estoppel was discussed, and while referring to the previous cases of this Court, it was observed as follows: "In Dhyan Singh 's case [1952] SCR 478 this Court ruled that even if an award made is invalid, the persons who were parties to that award are estopped from challenging the (1) [1952] S.C.R. 478.
225 validity of the award or from going behind the award in a subsequent litigation.
In T. V. R. Subbu Chetty 's Family Charities vs M. Raghava Mudaliar and Ors. [1961] 3 SCR 624 this Court ruled that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponent at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually opens.
At the time of 1 the compromise Lakshmichand and Ganeshilal were the near est presumptive reversioners.
They must be deemed to have J known their rights under law.
Under the compromise they purported to give a portion of the suit properties absolutely to Pattobai, evidently in consideration of her giving up her claim in respect of the other properties.
They cannot be now permitted to resile from the compromise and claim a right inconsistent with the one embodied in the compromise.
" Finally in a recent decision of this Court in section Shanmugam Pillai case (supra) after an exhaustive consideration of the authorities on the subject, it was observed as follows: "Equitable principles such as estoppel, election, family settlement, etc.
are not mere technical rules of evidence.
The have an important purpose to serve in the administration of justice.
The ultimate aim of the law is to secure justice.
In the recent times in order to render justice between the parties, courts have been liberally relying on those principles.
We would hesitate to narrow down their scope.
As observed by this Court in T. V. R. Subbu Chetty 's Family Charities ' case (supra), that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open.
" In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against respondents 4 & 5.
Respondent` No. 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases.
The learned counsel for the respondents placed reliance upon a number of authorities in Rachcha vs Mt. Mendha,(1) Chief Controlling 6 Revenue Authority vs Smt.
Satyawati Sood and others(2) and some other authorities, which, in our opinion have no bearing on the issues to be decided in this case and it is therefore not necessary for us to refer to the same Finally it was contended by the respondents that this Court should not interfere because there was no error of law in the judgment of the High Court or that of Respondent No. 1.
This argument is only stat ed to be rejected.
(1) AIR 1947 All.
(2) AIR 1972 Delhi 171.
226 In view of our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in accordance with the law, the view of Respondent No. 1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained.
Similarly the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the Court.
The High Court further in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail i The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character o possession of the parties in pursuance of the family settlement and a o for the purpose of applying the rule of estoppel which followed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement.
In Shyam Sunder and others vs Siya Ram and another (1) it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title.
The High Court observed as follows: "The decision in Ram Gopal vs Tulshi Ram, AIR 1928 All.
641 (FB) is clear that such a recital can be relied upon as a piece of evidence.
It is clear, therefore, that the compromise can be taken into consideration as a piece of evidence.
x x x To sum up, therefore, we are of the view that the compromise could have been relied upon as an admission of antecedent title.
" On a careful consideration of the facts and the circumstances and the law discussed above, we are clearly of the opinion that the orders of the High Court as also that of Respondent No. 1 suffer from a substantial error of law resulting in serious injustice to the appellant by re opening a dispute which had been settled almost seven to eight years before the proceedings for re opening the same were started.
In not interfering to correct the clear error of law committed by Respondent No. 1, the High Court failed to exercise jurisdiction vested in it by law, and, therefore, the order of the High Court itself was legally erroneous and cannot be sustained.
The contentions raised by the appellant are well founded and must prevail, while the contentions advanced by the respondent fail.
In these circumstances, therefore, the appeal is allowed, the judgment of the High Court is set aside and by a writ of certiorari the order of Respondent No. 1 dated January 22, 1965 is hereby quashed.
The (1) AIR 1973 All. 382, 389.
227 order of the Settlement officer dated November 28, 1964 which actually gave effect to the compromise is hereby restored and the Revenue authorities are directed to attest the mutation in the names of the appellant and respondents 4 & 5 in accordance with the family arrangement entered into between the parties referred to in this case.
In the peculiar circumstances of the case there will be no order as to costs.
SARKARIA J. I am at one with my learned Brother, that this appeal should be allowed with no order as to costs and that the order dated January 22, 1965 of Respondent 1 quashed, the order dated November 28, 1964 of the Settlement officer restored, and the Revenue authorities directed to attest the mutation in accordance with the antecedent family arrangement which had been orally arrived at between the parties and acted upon for several years.
I further agree that the family settlement arrived at by the parties was oral, and the petition filed by them on August 7, 1956 before the Assistant Commissioner was merely an information of an already completed oral transaction.
In other words, the petition was only an intimation to the Revenue court or authority that the matters in dispute between the parties had been settled amicably between the members of the family and no longer required determination and that the mutation be effected in accordance with that antecedent family settlement.
Since the petition did not itself create or declare any rights in immovable property of the value of Rs. 100 or upwards, it was not hit by section 17(1)(b) of the Registration Act, and as such was not compulsorily registrable.
The rest of the reasoning in the judgment of my learned Brother has also my concurrence except that I will reserve my opinion with regard to the alternative proposition, whether this petition assuming it was compulsorily registrable under section 17(1) (b) of the Registration Act could be used to raise an estoppel against any of the parties hereto.
Decision of this point, in my opinion, is unnecessary for the disposal of this case.
P.B.R. Appeal allowed. | (A) The object of a family arrangement is to protect the family from long drawn litigation or perpetual strife which mars the unity and the solidarity of the family.
A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth, instead of concentrating tho same in the hands of a few, is a milestone in the ad ministration of social justice.
Where by consent of the parties a matter has been settled, the courts have learned in favour of upholding such a family arrangement instead of disturbing it on technical or trivial grounds.
Where the courts find that the family arrangement suffers from a legal lacuna or 1 formal defect, the rule of estoppel is applied to shut out the plea of the person who being a party to the family arrangement, seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.
1208 F H; 209 A B] (B) (1) The family settled must be bona fide so as to resolve family disputes.
(ii) It must be voluntary and not induced by fraud, coercion or undue influence; (iii) It may be even oral, in which case and registration is necessary; (iv) Registration is necessary only if the terms are reduced to writing but where the memorandum has been prepared after the family arrangement either for the purpose of record or for information of court, the memorandum itself do not create or extinguish any rights in immovable property and, therefore.
does not fall within the mischief of section 17(2) of the Registration Act and is not compulsorily registrable; (v) The parties to the family arrangement must have some antecedent title, claim or interest, even a possible claim in the property which is acknowledged by the parties to the settlement.
But, even where a party has no title and the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then, the antecedent title must be assumed and the family arrangement will be upheld by the courts; (vi) Where bona fide disputes are settled by a bona fide family arrangement.
such family arrangement is final and binding on the parties to settlement.
[209 G H; 21 0 A E] Lala Khunni Lal & Ors vs Runwar Gobind Krishna Narain and Anr.
L.R 38 I.A. 8,.
102: Mt. Hiran Bibi and others vs
Sohan Bibi, A.I.R. 1914 P.C 44.
Saltu Madho Das and others vs Pandit Mulkand Ram another ; , 42 43.
Ram Charan Das vs Girijanandini Devi & Ors.
; , 850 851.
Tek Bahadur Bhujil vs Devi Singh and others, A.I.R. 1966 S.C. 292, 295: Maruri Pullaiah and Anr.
vs Maturi Narasimham and Ors.
A.I.R ; Krishna Biharflal vs Gulabchand and others.
[1971] Supp.
SCR 27 34 and section Shanmugam Pillai and others vs K. Shanmugam Pillai and others,, , followed.
Ram Gopal vs Tulshi Ram and another, A.I.R. 1928 All. 641 649; Sitala Baksh Singh and others vs lang Bahadur Singh and others, A.I.R. 1933 Oudh 347, 348 349.
Kalawati vs Sri Krishna Prasad and others, I.L.R. 19 Lucknow 57.
Bakhtawar vs Sunder Lal and others.
A.I.R. 1926 All. 173, 175 and Awadh Narain Singh and others vs Narain Mishra and others, A.I.R. 1962 Patna 400, approved.
203 On the death of the father the family consisted of two unmarried daughters A respondents 4 and 5) and appellant No. 1 (son of the married eldest daughter, appellant No. 2).
After the marriage of respondents 4 and S the property left behind by the father was mutated in the name of appellant No. I who, under section 36 of the U.P. Tenancy Act; 1939, was the sole heir.
Eventually, however, the parties arrived at a family settlement allotting khatas 5 and 90 to the appellant No. 1 and khatas 53 and 204 to respondents 4 and section This family arrangement was not registered.
The revenue records were, how ever, corrected.
At the time of revision of records under the U.P. Consolidation of Holdings Act, ' 1953 appellant No. I found that he was shown as having ' one third share in all the properties.
The Consolidation officer removed his name from the records and substituted the names of the sisters namely appellant No. 2 and respondents 4 and 5.
On appeal the Settlement officer restored the names of appellant No. 1 in respect of khatas 5 and 90 and of respondents 4 and S in respect of khatas 53 and 204 which was in accordance with the family arrangement.
The Deputy Director of Consolidation reversed this finding.
The High Court dismissed the appellants ' appeal.
On further appeal to this Court, it was contended that (1) the High Court erred in rejecting the compromise on the ground that it was not registered but that in view of the oral family arrangement no question of registration of the compromise arose and (ii) even if the compromise was unregistered it would operate clearly as estoppel against respondents 4 and section Allowing the appeal, ^ HELD: The Deputy Director of Consolidation as well as the High Court was wrong in taking the view that in the absence of registration the family arrangement could not be sustained.
The High Court also erred in not giving effect to the doctrine of estoppel.
1217 Cl (1) (a) In the instant case the facts clearly show that a compromise or family arrangement had taken place orally before the petition was filed for mutation of the names of the parties.
(b) The word family cannot be construed in a narrow sense so as to be confined only to persons who have a legal title to the property.
When the talks for compromise took place appellant No.
I was a prospective heir and a member of the family.
Secondly respondents 4 and S relinquished their claims in favour of the appellant in respect of Khatas 5 and 90.
The appellant would, therefore, be deemed to have antecedent title which was acknowledged by respondents 4 and section [217G] (c) There can be no doubt that the family arrangement was bona fide.
At no state of the case had the respondents raised the issue of bona fides.
[218D] (d) The allegation of fraud and undue influence must first dearly be pleaded and then proved by clear and content evidence.
In the present case, there ,, was neither pleading nor proof of this fact by respondents 4 and 5.
Respondents Nos. 4 and 5 who were parties to the family arrangement and, who, having been benefited thereunder, would be precluded from assailing the same [219A] Ram Gouda Annagouda & others vs Bhausaheb and others, J.R. 54 I.A. 396.
referred to.
(2) Assuming that tho family arrangement was compulsorily registrable, a family arrangement being binding on the parties to it, would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it.
In the present case respondents Nos. 4 and 5 would be estoppel from denying the existence of the family arrangement or from questioning its validity.
[223 F] Kanhai Lal vs Brij Lal and Anr., L.R. 45 I.A. 118, 124.
Dhiyan Singh and Anr.
vs Jugal Kishore and Anr.[1952] S.C.R. 478.
Ram Charan Das vs Girja Nandini Devi & Ors, ; , 850 851.
Krishna Biharilal vs Gulab chand and others, [1971] Supp.
S.C.R. 27, 34 and section Shanmugam Pillai and others vs K. Shanmugam Pillai and others, referred to.
204 Rachcha V. Mt. Mendha A.I.R. 1947 All.
177 and Chief Controlling Revenue Authority vs Smt.
Satyawati Sood and others, A.I.R. 1972 Delhi 171, held inapplicable.
Mr. Justice Sarkaria concurred with majority view that the family arrangement was binding, but reserved his opinion with regard to the alternative proposition, that assuming the family arrangement was compulsorily regrettable under section 17 (1) (b) of the registration Act, it could be used to raise an estoppel against any of the parties to the suit.
[227 E] |
Civil Appeal No. 1148 of 1975.
Appeal by special leave from the judgment and order dated the 2 12 1974 of the Andhra Pradesh High Court in writ petition No. 2250 of 1973.
327 M. C. Bhandare and Miss A. Subhashini for the appellant.
P. Ram Reddy and P. P. Rao for the respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This is an appeal special leave against the judgment of the Andhra Pradesh High Court dated December 2, 1974 and arises under the following circumstances.
Itikala Kollayya and his brother in law Kovvuru Narasimhaiah constituted partnership firm dealing in foodgrains.
The firm carried on the business in the name and style of "Kovvuru Narasimhaiah and Ktikala Kollayya".
The firm, however, stood dissolved in 1963.
The firm appears to have been in serious financial difficulties and incurred debts to the tune of about Rs. 70,000/ .
The creditors filed an insolvency petition but the petition was ultimately dismissed because it was held that the firm had no means to discharge the debts.
Subsequently the business was started in the name of B. V. section Rao son of Bala Seshaiah.
After the death of Itikala Kollayya his son Bala Seshaiah and his son B. V. section Rao carried on joint Hindu family business.
In fact B. V. section Rao applied on May 8, 1966 for a certificate of registration to the Sales Tax Department of the State and was given the same.
B. V. section Rao who was a minor had applied for the certificate through his guardian Bala Seshaiah.
Thereafter the Sales Tax Department continued to make assessments in the name of B. V. section Rao.
Thus for the years 1966 67, 1967 68 and 1968 69 the provisional assessments were made in the name of B. V. section Rao the minor.
It is not disputed that during all these years the business was run in the name of B. V. section Rao the minor grandson of Kollayya.
There are also materials on the record to show that B. V. section Rao had informed the Sales Tax Department that the business was in fact carried on by the Joint Hindu family and yet no assessment was made in the name of the Joint Hindu family until 1971.
It is true that the High Court has held that B. V. section Rao was merely a benamidar for Kollayya who was the real proprietor of the firm and therefore the real dealer would be Kollayya and not B. V. section Rao.
The High Court also relied on the circumstance that KollayYa did not appear before the Sales Tax Department in obedience to the notices issued to him and therefore the High Court thought it was too late in the day for Kollayya to contend that he was not a dealer within the meaning of the Andhra Pradesh General Sales Tax Act.
Mr. Ram Reddy learned counsel for the respondent did not support this part of the reasoning of the High Court because the Sales Tax Department having itself issued the certificate of registration to B. V. section Rao and having recognised him as a dealer could not make a somersault and start assessing tax in the name of Kollayya who was not at all a registered dealer.
Furthermore, it would appear that B. V. section Rao had himself informed the Sales Tax Department that his business had come to an end and that the business was carried on by his grandfather and yet the Sales Tax Department did not choose to cancel the registration of B. V. section Rao or to issue fresh notice to Kollayya.
In these circumstances the ball was in the court of the Sales Tax Department which appears to have taken delayed action in the matter for assessing Kollayya as the manager of the 328 joint Hindu family for the first time in 1971.
Mr. Ram Reddy confined his arguments only to the question that in view of the circumstances of the case Kollayya must be deemed to have knowledge as the karta of the joint Hindu family that he had earned sales tag liability and from this alone an inference was sought to be raised that the trust was a fraudulent transaction.
We are, however, unable to press this inference too far in view of the reasons which we shall give hereafter.
It appears that on May 26, 1969 B. V. section Rao informed the Sales Tax Department that he had stopped the business with effect from August 1, 1968 and despite this fact the Sales Tax Department went on making assessment orders in the name of B. V. section Rao.
Further on January 17, 1968 the Deputy Commercial Tag officer while makeing the assessment order had stated that the business was being carried on as joint family business by Bala Seshaiah the father of B. V. section Rao.
It appears that on September 16, 1968 Itikala Kollayya and Kovvuru Narasimhaiah, i.e. the partners of the dissolved firm, executed a registered deed of trust by which the properties mentioned in Schedule 'B ' were vested in the trustees for the purpose of paying off the creditors who were named in Schedule 'A ' of the trust deed.
Thirteen persons were named in Schedule 'A '.
According to the assessees the creditors mentioned in Schedule 'A ' had obtained decrees against the settlors and it was for the purpose of discharging the previous debts of those creditors that the trust was executed.
Subsequently it appears that the assessments were made against the joint Hindu family on January 18, 19 and 24, 1971 and penalties were also imposed on the assessees for not paying the sales tax.
The sales tax authorities, therefore, made the assessment in the name of the joint Hindu family for the first time on January 18, 1971 and prior to that the assessments were made in the name of the minor B. V. section Rao.
The Sales Tax Department having found that the assessees had constituted a trust in respect of the properties and as the amounts could not be realised from the assessees notices were issued on the petitioners who were the trustees for payment of the amounts due under the various assessments made by the Sales Tax Department on the joint Hindu family.
The Sales Tax Department was of the view that the deed of trust dated September 16, 1968 was void and fraudulent and was brought about to defeat the debts of the Sales Tax Department in the shape of the assessments made against the joint Hindu family whose business was carried on by its karta Bala Seshaiah.
Demand notices under section 17(1) of the Andhra Pradesh General Sales Tax Act were served on the petitioners who filed a writ petition before the Andhra Pradesh High Court for quashing the notices, on the basis of which the amounts were sought to be recovered.
The High Court held that the deed of trust was fraudulent and had been executed to defeat the Sales Tax Department of its dues and the petitioners were, therefore, trustees of an invalid trust and being in possession of the properties held the same on behalf of the debtor assessees who were liable to pay the amounts.
On this finding the writ petition was dismissed by the High Court.
The petitioners moved the High Court for granting certificate of fitness for leave to appeal to this Court which having been 329 refused they obtained special leave from this Court and hence this appeal.
It is true that the Sales Tax Department as also the High Court have held in a very summary fashion that the trust deed was void and fraudulent and, therefore, it could be ignored by the Sales Tax Department.
Normally this should have been a finding of fact which could have settled the matter beyond any controversy.
But on a perusal of the facts and circumstances of the case we find that the real point of law which arose on the admitted facts does not appear to have been considered either by the sales tax authorities or even by the High Court.
Merely because the joint Hindu family had earned liability to pay sales tax it had been inferred by the High Court as also by the sales tax authorities that the registered deed of trust executed on September 16, 1968, about three years before the actual assessments were made in the name of the joint Hindu family was a colourable transaction.
Learned counsel for the appellants Mr. M. C. Bhandare submitted that the petitioners were merely trustees who were to discharge the debts of the creditors mentioned in Sch. 'A '.
The moment the trust deed was executed by Kollayya and Narasimhaiah the title to those properties vested in the trustees and thus put beyond the reach of the Sales Tax Department.
It cannot be said in the circumstances that the trustees were holding the properties either on account of or on behalf of the joint Hindu family, because they had acquired an independent title under the trust.
In our opinion, the contention put forward by the learned counsel for the appellants is sound and must prevail.
The learned counsel appearing for the respondent, however, submitted that the mere fact that the members of the joint Hindu family were aware that they had incurred the sales tax liability because they were dealers in foodgrains and had conducted a number of sales was sufficient to show that the trust deed was fraudulent and unlawful.
It was also submitted that under section 17(1) of the Andhra Pradesh General Sales Tax Act, the sales tax authorities could realise the sales tax dues even from the trustees and the execution of the trust deed would not stand in the way of the recoveries sought to be made against the petitioners.
We would first consider the question as to the nature of the trust deed executed by the settlors.
It is not disputed that the trust deed was a registered instrument and came into existence three years before the actual assessments were made in favour of the joint Hindu family.
Furthermore it is clearly stipulated in the trust deed that the object of the trust was to discharge the debts of the previous creditors of the settlors who had obtained decrees from the Courts.
The names of those creditors are mentioned in Schedule 'A ' arid there is no material before us to show that the creditors mentioned in Schedule 'A ' are fictitious persons.
It is true that in the cow of the trust deed printed in the paper book the names of the creditors are not mentioned but from the certified copy of the original trust deed it appears that the names are there which constitute of the following persons: 1.
Narendrakumar Manoharlal & Co. 2.
Devraj Dhanumal.
330 3.
Dhupaji Phoolchand.
Bhubutmal Chandumal.
Bhubutmal Bhoormal.
Kesarmal Mancharlal.
Taraohand Santilal.
Manrupji Nathumall.
Pokhraj Kantilal.
Pratapchand Kundanmal.
Ambapuram Bachu Pedda Subbiah & Sons.
Meda Krishnayya.
T. Nagalakshmidevamma Minor by guardian husband T. Sanjeeva Rao.
It is well settled that it is open to the settlors to create a trust for discharging the debts of their creditors.
Such an object cannot be said to be unlawful.
Section 4 of the , runs thus: "4.
A trust may be created for any lawful purpose.
The purpose of a trust is lawful unless it is (a) forbidden by law, or (b) is of such a nature that, if permitted, it would defeat the provisions of any law, or (c) is fraudulent, or (d) involves or implies injury to the person or property of another, or (e) the Court regards it as immoral or opposed to public policy.
* * * * *" The. Object of the trust is neither forbidden by law, nor does it defeat any legal provision, nor it can be said to be fraudulent ex facie.
In these circumstances.
the view taken by the High Court or the Sales Tax authorities that the trust executed in favour of the petitioners was fraudulent or unlawful cannot be accepted.
The other question raised by Mr. Ram Reddy learned counsel for the respondent was that the trust is hit by section 53 of the , the relevant portion of which runs thus: "53(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed." Before analysing the ingredients of the section mentioned above, it may be necessary to state the admitted facts: (1) that at the time when the trust was executed no assessment order against the joint Hindu family which was managed by one of the executants of the trust had been passed.
Thus there was no real debt due from one of the executants of the trust at the time when the trust was executed; 331 (2) that the trust did not have for its object any unlawful purpose; (3) that the names of the creditors were clearly mention ed in Schedule 'A ' of the trust as also the properties some of which had already been sold to liquidate debts of the settlors; (4) that under the trust the executants did not reserve any advantage or benefit for themselves; and (5) there is no material in the present case to show that the creditors mentioned in Schedule 'A ' had obtained collusive decrees or that they were aware of the debts owed by one of the executants to the Sales Tax Department before the execution of the trust deed.
In the facts and circumstances of this appeal therefore it cannot be said that the trust deed was executed to defraud the creditors namely the Sales Tax Department.
Under section 53 of the a person who challenges the validity `of the transaction must prove two facts (1) that a document was executed by the settlor; and (2) that the said document was executed with clear intention to defraud or delay the creditors.
How the intention is proved would be a matter which would largely depend on the facts and circumstances of each case.
It is well settled that the mere fact that a debtor.
chooses to prefer one creditor to the other, either because of the priority of the debt or otherwise, by itself cannot lead to the irresistible inference that the intention was to defeat the other creditors.
In Musahar Sahu and another vs Hakim Lal and Anr.(l) where the Privy Council observed as follows: "The transfer which defeats or delays creditors is not an instrument which prefers one creditor to another, but an instrument which removes property from the creditors to the benefit of the debtor.
The debtor must not retain a benefit for himself.
He may pay one creditor and leave another unpaid: Middleton vs Pollock (1876)2 Ch.
D. l04, l08.
So soon as it is found that the transfer here impeached was ` made for adequate consideration in satisfaction of genuine debts, and without reservation of any benefit to the debtor ` it follows that no ground for impeaching it lies in the fact that the plaintiff.
who also was a creditor was a loser by payment being make to this preferred creditor there being in the case no question of bankruptcy.
" This decision was endorsed by the Privy Council in Ma Pwa May and another vs section R. M. M. A. Chettiar Firm(2) where the Judicial Committee observed as follows: "A debtor is entitled to prefer a creditor, unless the transaction can be challenged in bankruptcy, and such a pre ference cannot in itself impeached as falling within section 53.
" (1) L.R. 43 I.A. 104.
(2) A.l.R. , 281.
332 The learned counsel for the appellants relied on a decision of the Gujarat High Court in Sampatraj Chhogalalji and others vs V. 5.
Patel, Sales Tax officer, and others(l) where a Division Bench of the High Court observed as follows : "The effect of the assignment is to create a valid title in the trustees and a valid and enforceable trust for the benefit of the creditors as soon as the deed has been executed and the creditors have assented to it.
It is thus clear under the said deed of arrangement, the petitioners as trustees became the legal owners of the properties assigned " to them, holding the trust premises upon trust to collect them in the first instance and after selling them to distribute the sale proceeds thereof rateably amongst the various creditors, a list of whom was annexed to Schedule II to the deed of arrangement.
It follows, therefore, that the trustees were not holding the sale proceeds which they deposited with the said bank in a separate account in their names as agents of the said firms or any one of them, nor were they the transferees of or successors to those businesses.
* * * * * It is also not possible to say that the bank '.
I) was a person from whom any amount of money was due ' to any one of the aforesaid firms who were the dealers in respect of the arrears of tax.
That being the position, the very first condition necessary for the application of section 39 is totally wanting in this case.
" The facts of the present case appear to be on all fours with the facts in the Gujarat case cited above.
The High Court clearly held that the fact of the assignment was to create a valid title in the trustees and once the title passed to the trustees on the registration of the trust deed, the trustees could not be said to hold the properties which vested in them either on behalf or on account of the settlors.
Mr. Ram Reddy relied on section 17(1) of the Andhra Pradesh General Sales Tax Act which runs thus: "17.
(1) The assessing authority, may at any time or from time to time, by notice in writing (a copy of which shall be forwarded to the dealer at his last address known to the assessing authority) require any person from whom money is due or may become due to the dealer, or any person who holds or may subsequently hold money for, or on account of the dealer, to pay to the assessing authority either forthwith if the money has become due or is so held within the time specified in the notice (but not before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the dealer in respect of arrears of tax, penalty or fee or the whole of the money when it is equal to or less than that amount.
" Particular reliance was placed on the words underlined in the section in order to contend that even if the trust was a valid document the (1) 17 S.T.C. 29, 34.
333 trustees would be deemed by virtue of section 17 to hold the money for A or on account of the dealer.
This contention is clearly negatived by the decision of the Gujarat High Court in Sampatrai Chhogaiaiji 's case (supra) which we have cited above and which, in our opinion, lays down the correct law on the subject.
It is obvious that the object of section 17 of the Andhra Pradesh General Sales Tax Act is to follow up the money due to the Sales Tax Department in the hands of either the assessee or any person who may be holding the money on behalf .
of the assessee.
The section, however, does not empower the Sales Tax Department to follow the money in the hands of a bona fide f transferee from the assessee even before the dues have accrued.
There 1 can be no doubt that the Sales Tax Authorities had the power to determine in a summary fashion as to whether or not the petitioners , were holding the monies on behalf of the assessee, but the enquiry would be limited to this question only and cannot be projected further.
Where a transfer is made by the assessee after the assessment order has been passed against him in favour of persons who are either relatives or friends of the assessee and the said transfer prima facie appears to be colourable or fraudulent, it is open to the Sales Tax Department to ignore such a transaction and proceed against the transferee on the basis that the transaction is a sham one and no section `title has in fact passed under the transfer.
But this is quite different from proceeding against a transferee who has acquired an independent title under the transfer even before the assessment is made against . the transferor.
The Sales Tax Authorities under section 17 of the Andhra Pradesh General Sales Tax Act can only determine the jurisdictional facts and cannot proceed beyond that.
In Katikara Chintamani Dora & Os.
vs Guntreddi Annamnaidu & Ors(1) it was ruled by this Court that a Tribunal possesses the power to determine a jurisdictional fact which gives the jurisdiction or empowers the Tribunal to try a certain issue.
This, however, does not empower the Tribunal to be a judg in its own cause and determine or decide complicated questions of title.
In the special and peculiar facts of the present case which have been catalogued above, in our opinion, this is not a fit case In which the sales tax authorities can be allowed to hold that the deed of trust executed by the settlors was hit by section 53 of the .
It may be noted that under section 53 of the if a transfer is made with intent to defeat or delay the creditors it is not void but only voidable.
If the transfer is voidable, then the ' sales tax authorities cannot ignore or disregard it but have to get it set aside through a properly constituted suit after impleading necessary parties and praying for the desired relief.
In Chutterput Singh & ors.
vs Maharaj Bahadoor and others,(2) the Privy Council observed as follows: "No issue was stated in this suit whether the transfers were or were not liable to be set aside at the instance of Dhunput under section 53 of the Transfer for Property Act, and no decree has been made for setting them aside.
Such an (1) ; (2) L.R. 32 I.A. 1.
7 L522SCI/76 334 issue could be raised and such a decree could be made only in a suit properly constituted either as to parties or other wise.
" To the same effect is the later decision of the Privy Council in Safer Hasan and others vs Farid Ud Din and others,(l) where Lord Thankerton made the following observations: "Further, under section 53 the wakfnama would only be voidable at the option of the "person so defrauded or delayed".
Until so voided the deed remains valid.
" Lastly it was contended by counsel for the respondent that the liability of the appellant arose as early as 1966 67 and the Trust Deed came into existence on September 16, 1968.
This being the case, it was stressed that Itikala Kollayya and the trustees could not be unaware of the tax liability or the amount due at that time when the trust deed was executed.
This tax liability was the first charge on the property and its sale proceeds.
Therefore, the creation of the deed and subsequent sale of the property on January 10, 1971, for liquidation of the supposed debts of the trustees and other creditors was merely a device to evade the payment of arrears of sales tax due to the Government.
Our attention has been invited in this connection v to the order dated November 13, 1972, of the Deputy Commercial Tax officer.
The contention is devoid of force.
As rightly pointed out by Mr. Bhandare, when the impugned notice dated July 20, 1970, was issued to M/s. Uma Traders with copy to Itikala Kollayya Setty by the respondent, the tax had not been quantified; the assessments.
were made subsequently.
So long as the tax had not been assessed and qualified, it could not be said that any specific debt due to the Revenue from the assessee had come into existence.
The question of such a non existent debt, being a first charge on the property at the date of the execution of the trust deed, did not arise.
The contention of the respondent on this scone is, therefore, overruled.
In this view of the matter, we feel that it cannot be said in the present case that the trust deed executed by the settlors is prima facie fraudulent or a colourable transaction.
It will, however, be open to the Sales Tax Authorities to avoid the document by bringing a properly constituted suit, if so advised.
We could also like to make it clear .
that any observation regarding the validity of the document that has l been made in this case by us will be confined only to the materials that have been placed before us and will not prejudice the merits of either party in a suitable action which may be brought.
For these reasons the appeal is allowed, the judgment of the High Court is set aside and the notices issued by the respondent against the appellants are hereby quashed.
We would ,however, direct that the sum of Rs. 31,100/ which has been deposited by the appellants in Union Bank.
Kurnool, under the directions of this Court, would not be refunded to the appellants before the expiry of three months from to day 's date.
In the circumstances of this case, we make no order as to costs in this Court.
P.H.P. Appeal allowed.
(I) A.I.R.1946 P.C. 177. | Kollayya and Narasimaiah carried on business in partnership.
The firm incurred huge losses and was dissolved in 1963.
Kollayya 's son Bala and Bala 's son B.V.S. Rao carried on joint Hindu Family business.
B.V.S. Rao applied, being a minor, through his father Bala, for registration which was granted by the Sales Tax Authorities.
There after, Sales Tax Authorities continued to make assessment in the name of B.V.S. Rao from the year 1966 to the year 1969.
Although B.V.S. Rao informed the Sales Tax Department that the business was in fact carried on by the Joint Hindu family yet no assessment was made in the name of Joint Hindu family until 1971.
Although B.V.S. Rao informed the Sales Tax Department that his business had come to an end and that the business was carried, on by his grand father Kollayya, yet the Sales Tax Department neither cancelled the registration of B.V.S. Rao nor issued fresh notice to Kollayya.
In September, 1968, Kollayya and Narasimiah the partners of the dissolved firm executed a registered deed of Trust by which certain properties were vested in the Trustees for the purpose of paying off the creditors mentioned in the Trust Deed who had obtained decrees against the settlors.
In the year , 1971 assessments were made against the Joint Hindu Family and penalties were also imposed for not paying the sales tax.
All the assessments prior to the year 1971, were made in the name of B.V.S. Rao.
Since the Sales Tax Authorities could not recover the monies from the assessees they issued noticed under section 17(1? of the Andhra Pradesh General Sales Tax Act to the appellants who were the trustees of the said trust on the ground that the trust was void and fraudulent.
A writ petition filed by the appellants in the High Court for quashing the said notices was dismissed by the High Court on the ground that the deed of trust was fraudulent and had been executed.
to defeat the sales tax dues.
On an appeal by special leave it was contended by the appellants: (1) The moment the trust deed was executed by Kollayya and Narasamaiah the title to those properties vested in the trustees and thus it was beyond tho reach of the Sales Tax Department.
(2) When the impugned notice was issued in 1970, tax had not been quantified since the assessments were made subsequently.
lt was contended by the respondents that (1) Kollayya must be deemed to have knowledge as the Karta of the Joint Hindu Family that he had incurred sales tax liability.
(2) Under section 17(1) of the Act.
the Sales Tax Authorities could realise the sales tax dues even from the trustees and the execution of the trust deed would not stand in the way of the recoveries.
(3) The trust is hit by section 53 of the Transfer of Property Act, being made with the intent to defeat or delay the creditors.
326 (4) The liability of the appellants arose as early as in 1966 67 and the trust deed came into existence in September, 1968.
Kollayya and trustees, therefore, could not be unaware of the tax liability.
The creation of the trust subsequently was, therefore, a device to evade the payment of arrears of sales tax.
Allowing the appeal by special leave, ^ HELD: (1) The Sales Tax Department as also the High Court have held in a very summary fashion that the trust deed was void and fraudulent without considering the real point of law which arose on the admitted facts.
[329 A] (2) The moment the trust deed was executed the trustees acquired an independent title under the Trust.
The trust deed clearly mentioned the names of the creditors to whom the money was to be paid.
Under the trust, the settlors did not reserve any advantage or benefit for themselves.
There is no material to how that the decrees obtained by the creditors were collusive and the trust deed was executed before the assessment orders against the Joint Family were made and, therefore.
there was no real debt due from the settlors when the trust was executed.
[329A D] (3) The present trust cannot be said to be unlawful within the meaning of section 4 of the Indian Trust Act, 1882, since the trust is neither forbidden by law nor does it defeat any legal provision nor can it be said to be fraudulent ex facie.
[330D E] Whether the trust deed has been executed with the intent to defeat or delay the creditors within the meaning of section 53(1) of the transfer of Property Act depends on the intention of the settlors depending mainly on the facts and circumstances of the case.
The mere preference of one creditor to another by itself does not lead to the irresistible inference that the intention was to defeat the other creditors.
[331C E] Musahar Sahu and another vs Hakim Lal and another L.R. 43 I.A. l04: Ma Pwa May and another vs section R. M. M. A. Chettiar Firm AIR 1929 P.C. 279, 281 and Sampatrai Chhogalalji and others vs V. section Patel, Sales Tax Officer and others 17 S.T.C. 2r9, 34, approved.
(4) once the trust is held to be valid the department cannot proceed against the trustees under section 17(1).
The section does not empower the Sales Tax Department to follow the money in the hands of a bonafide transferee from the assessee even before the dues are accrued.
The Sales Tax Authorities under section 17 can only determine the jurisdictional.
facts and cannot proceed beyond that.
The authorities cannot be a judge in its own cause and determine or decide complicated questions of.
title.
[333C E] Katilkara Chintamani Dora & ors.
vs Guntreddi Annamanaidu & Ors. ; followed.
In the present case the Sales Tax Authorities cannot be allowed to hold that the deed of trust executed by the settlors was hit by section 53 of the Transfer of Property Act.
Even if a transfer is made with intent to defeat or delay the credit ors it is not void but only voidable under section 53.
If the transfer is voidable the Sales Tax Authorities cannot ignore or disregard it but have to get it set aside through a properly instituted suit after impleading necessary parties and praying for the desired relief.
[333F G] Chutterput Singh & Ors.
vs Maharaj Bahadoor and others L.R. 32 I.A. I and Zafrul Hasan and others vs Farid Ud Din and others , approved.
(5) So long as the tax had not been assessed and quantified it could not be said that any specific debt due to the Revenue from the assessee had come into existence.
The question of such a non existent debt, being a first charg on the property at the date of the execution of the Trust Deed did not arise.
[334E F] |
Civil Appeal No. 292 of 1973.
(Appeal by special leave from the judgment and order dated the 25 4 1972 of the orissa High Court of Judicature at Cuttack in O.J.C. No. 82 of 1968).
section N. Andley and A. Subbarao for the appellant.
M. C. Bhandare and B. Parthasarathi for respondent No. 3.
M/s. section N. Prasad and Girish Chandra for respondent No. 4.
The Judgment of the Court was delivered by E UNTWALIA, J.
The appellant in this appeal by special leave is Shri D. D. Suri an erstwhile member of the Indian Administrative Service in the cadre of the State of Orissa.
Shri A. K. Barren, I.A.S. the Chief Secretary to the Government of orissa at the relevant time was impleaded as respondent No. 1.
He died during the pendency of this appeal.
Therefore, his name is directed to be expunged.
For the sake of convenience, however, he will be referred to hereinafter in this judgment as respondent No. 1.
Shri section K. Ghosh, l.
P.S. respondent No. 2 was at the relevant time Director of Vigilance and Additional Secretary to the Government of orissa in the Political and Services Department.
He has since retired and no notice of this appeal could be served on him.
Even so the appeal proceeded to hearing as for the disposal of this appeal, his appearance was not necessary.
The State of orissa is respondent No. 3, and the Government of India is respondent number 4.
Respondents 5 and 7 are other officers of the Government of Orissa.
It is an unfortunate protracted litigation with a chequered history.
Yet we do not find it possible to bring it to conclusion by our judgment.
The appellant was appointed to the Indian Administrative Service and joined as an Additional District Magistrate in the State of orissa in November, l950.
According to his case due to some actions which he took against some big political persons, he incurred their displeasure 352 in the year 1952.
Sometime after he came on deputation to the centre but went back to orissa in April, 1965.
At the relevant time in the year 1967 he was serving as Commissioner of Land Reforms orissa.
According to his case he had disputes, differences and animosity with respondent No. 1 and later with respondent No. 2 also.
The appellant by stating very many facts, which are not necessary to be enumerated in this judgment endeavoured to make out a case of male fides against respondents 1 and 2 and asserted that he was put to trouble and unwarranted and illegal actions were taken against him by or at the instance of respondents 1 and 2.
A First Information Report was lodged and Sambalpur Vigilance P.S. Case No. 23/1967 was instituted against the appellant on November 24, 1967 under section S(2) of the Prevention of Corruption Act, 1947.
An application for search warrant was made before the Additional District Magistrate, Sambalpur on the same date i.e. 24 11 1967 and a search warrant was issued.
The appellant 's house at Cuttack was searched on and after 27 11 1967.
An order of suspension was made against the appellant by the Government of orissa on the 28th November, 1967 under Rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955 hereinafter referred to as the Rules.
The appellant filed a writ petition (OJC 82/1968) in the orissa High Court in January, 1968 to challenge the order of suspension and the investigation made and proceeded against him.
The writ application was dismissed by the orissa High Court in limine.
Civil Appeal No. 679/70 filed by special leave against the order of the orissa High Court was allowed by this Court on 22 l0 1970.
The writ application was directed to be admitted and disposed of in accordance with law.
Certain subsequent developments and events are necessary to be noted.
The State Government moved the Central Government on November 23, 1968 after stating the facts in detail to accord sanction for prosecution of the appellant as the materials collected during investigation revealed a prima facie case in relation to the charges of cor ruption and misuse of his official position by the appellant.
In spite of reminders the Central Government neither accorded sanction for the prosecution of the appellant nor refused it.
Without sanction of the Central Government no Charge Sheet could be submitted against the appellant for his prosecution so long he remained in government ser vice.
It seems.
however, that the appellant was compulsorily retired by the appropriate government on June 9, 1971.
Thereafter on November 8, 1971 Charge Sheet was submitted against him in the Court of the Special Judge, Sambalpur.
In Transfer Petition No. 2/73 this Court transferred the case to the file of another Special Judge.
On the splitting up of the original case the trial of several cases proceeded against the appellant in the Court of the Special Judge.
The trial concluded but because of the stay order passed by this Court, judgment could not be delivered until the disposal of this appeal and LPA 3/73 pending in the Delhi High Court.
Against the order of compulsory retirement, the appellant fired a writ petition in the Delhi 353 High Court.
It was dismissed by a learned single Judge on November 16, 1972.
LPA 3/73 is directed against the said order of dismissal A Bench of the orissa High Court by its order dated the 25th April, 1972, the order under appeal, has again dismissed the writ petition (OJC 82/1968) as being infructuous.
It has taken the view that since the appellant has already retired from service he is no longer under suspension.
Therefore, the legality of the suspension order is not necessary to be examined.
Nor did the High Court think it necessary to examine the legality of the investigation against the appellant as Charge Sheet had already been submitted.
Mr. section N. Andley, learned counsel for the appellant asked us to quash the suspension order and strenously urged the following three grounds: (1) That it was passed without taking the various preliminary steps of prelirninary enquiry or investigation as was necessary to be done in view of the various governmental instructions.
D (2) That the order was not warranted by and was in violation of Rule 7(3) of the Rules.
(3) That the charges levelled against the `appellant were all baseless, frivolous and false.
They were levelled and the suspension order was made mala fide.
In support of the first submission our attention was drawn to the various executive instructions issued by the Central Government as also the State Government of orissa to show as to how and in what manner preliminary steps had to be taken and enquiry made by the governmental authorities concerned before putting a government servant and especially a member of the Administrative Service under suspension.
Counsel submitted that nothing was done in accordance.
with those instructions before the lodging of the First Information Report on November 24, 1967.
The action was taken male fide in all haste without observing the requirements of the law as contained in the executive instructions.
On the other hand, Mr. M. C. Bhandare, counsel for the Government of orissa pointed out that the Vigilance Department of the state Government had made preliminary enquiries and then taken action.
We do not consider it necessary to discuss in any detail or record any definite finding one way or the other in respect of this bone of contention between the parties.
We may only observe that all instructions contained in the various letters and circulars of the Central Government do not seem to have been strictly followed.
But that will not invalidate or nullify the order of suspension made under Rule 7(3) of the Rules.
In dealing with the. cases of high officers of the Administrative Service, care ought to have been taken to follow the instructions as far as possible.
Yet on the facts of this case we are not prepared to hold that failure to follow the instructions fully, per se, made the order of suspension invalid.
354 Sub rule 1 of Rule 7 of the Rules provides for the placing under suspension a member of the service against whom any disciplinary proceeding has been initiated.
Under that sub rule without the initiation of the disciplinary proceeding an order of suspension could not be made.
Under sub rule 2 a member of the service who is detained in official custody for a period longer than 48 hours is to be deemed to have been suspended by the government concerned.
We shall now read sub rule 3 of Rule 7.
"A member of the Service in respect of, or against whom.
an investigation, inquiry, or trial relating to a criminal charge is pending, may, at the discretion of the Government under which he is serving, be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude.
" Under the sub rule aforesaid it is clear that a member of the service can be placed under suspension if against him an investigation, inquiry or trial relating to criminal charges is pending.
The expression 'investigation ', 'inquiry ', or 'trial ' are well known in the realm of the criminal law under the Code of Criminal Procedure.
In the instant case when a First Information Report was filed against the appellant and steps were taken for obtaining a search warrant for the search of his house, investigation within the meaning of Rule 7(3) became pending on and from November 24, 1967.
The suspension order, therefore, made on November 28, 1967 was well within the ambit of the power of the government under the said provision of law.
Most of the charges levelled against the appellant, and at this stage, we do not know whether they were right or wrong, true or false, were in relation to his alleged acts of corruption and misuse of his official position.
In our view the making of the suspension order against the appellant under rule 7(3) of the Rules was legal and valid.
But did It come to an end, if so, when ? The rule provides that the suspension order may last "until the termination of all proceedings relating to" the charges.
Appellant 's counsel submitted that, as mentioned in one of the letters of the State Government to the Central Government, the investigation was complete on November 23, 1968, hence on the termination of the investigation the suspension order terminated.
We have no difficulty in rejecting this argument as unsound.
Under rule 7(3) the suspension order can be made to continue until the terminanation of all proceedings viz. investigation, inquiry or trial which may follow the investigation.
Strictly speaking, the investigation could not be said to be complete until the submission of the Charge Sheet.
Factual completion of the investigation in November, 1968 did not terminate all proceedings in relation to the charges levelled against the appellant.
But obviously the suspension order came to an end by the compulsory retirement of the appellant.
After retirement from ser vice he could no longer be deemed to be under suspension.
355 During the hearing of the appeal and in view of certain new stands A taken in the petition filed in this Court by the appellant, an interesting point cropped up and that is this.
What was the effect of the appellant 's compulsory retirement on his suspension ? He was not prosecuted before his retirement.
What is to be the effect of his retirement on the appellant 's pay and allowances for the period of his suspension viz. between November 28, 1967 and June 9, 1971.
Does rule 9 of the Rules cover the appellant 's case '? ' If so, is he entitled to an order in his favour for paying him full pay and allowances for the said period because he was made to compulsorily retire without any stigma and not by way of punishment ? We did not feel persuaded to decide this aspect of the matter for the first time in this appeal.
Since we are remitting the case back to the High Court, we permit the appellant to raise this point there, if necessary, by amendment of his writ petition.
We may, however, hasten to add that the counsel for the State of orissa assured us that if the appellant would be exonerated of the charges levelled against him and acquitted in the criminal proceedings, then the State Government will pay him his full pay and allowances for the period of his suspension.
Evidence at the trial is over and only the judgment has to be delivered.
Without the aid of the judgment in the criminal cases, we did not find it advisable or possible to decide the third point urged on behalf of the appellant.
On the materials in the records of this case, it will not be possible to say that the charges levelled against the appellant were false and that action was taken against him mala fide.
The two matters are so interwoven and interconnected that we think it expedient to leave the matter for a fresh decision by the High Court after the judgment is delivered at the criminal trial which is already concluded.
We vacate the order of stay made by this Court and direct the Trial Judge to deliver his judgment without any further delay.
The High Court, if necessary, will go into the question of mala fides when the case goes back to it on remand and it will do so taking note, inter alia, of the judgment in the criminal cases.
Nothing we have said in this judgment is meant to prejudice either party in the disposal of the letters patent appeal pending in the Delhi High Court in which the appellant is persuing his challenge to the order of his compulsory retirement.
But it will be desirable, may, necessary to dispose of LPA 3/1973 pending in the Delhi High Court at a very early date so that the judgment may be made use of by .
either party, if necessary, in the orissa High Court in aid of the disposal of the case being remitted back by us to that court.
In the result we allow this appeal, set aside the order of the High Court, remit the case back to it for fresh disposal in the light of this judgment.
We make no order as to costs.
P.H.P. Appeal allowed. | The appellant was an erstwhile member of the Indian Administrative Service in the cadre of the State of orissa.
At the relevant time in the year 1967, he was serving as Commissioner of Land Reforms, orissa.
According to the appellant he had disputes, differences and animosity with respondent No. 1, the Chief Secretary to the Government of orissa and respondent No. 2 who was at the relevant time Director of Vigilance and Additional Secretary to the Government of orissa.
The First Information Report was lodged against the appellant under section S(2) of the Prevention of Corruption Act, 1947, on 24 11 1967.
The appellant 's house was searched on 27 11 1967.
An order of suspension was made against the appellant by the Government of orissa on 28 11 1967 under rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955.
The Writ Petition filed by the appellant against his order of suspension and investigation was dismissed by the High Court in limine.
This Court allowed an appeal filed by special leave by the appellant against the High Court judgment and directed the High Court to admit and dispose of the petition in accordance with law.
The State Government approached the Central Government to accord sanction for prosecution of the appellant.
In spite of reminders, the Central Government neither accorded the sanction nor refused it.
Appellant was compulsorily retired by the Government in 1971.
Thereafter, charge sheet was submitted against him in the Court of the Special Judge, Sambalpur.
The trial concluded but because of the stay order passed by this Court judgment could not be delivered.
Against the order of the compulsory retirement, the appellant filed a writ petition in the Delhi High Court which was dismissed by a learned single Judge and against which a Letters Patent appeal is pending.
The orissa High Court dismissed the writ petition of the appellant on the ground of it having become infructuous since the appellant was no longer in suspension since he was compulsorily retired.
The High Court also did not think it necessary to examine the legality of the investigation against the appellant as chargesheet had already been submitted.
In an appeal by special leave the appellant contended: The suspension order may be quashed on the following grounds: (1) It was passed without following the various Governmental instructions on the point.
(2) The order was in violation of rule 7(3).
(3) The order was malafide.
^ HELD: (1) It is true that all the instructions contained in the circulars issued by the Central Government do not seem to have been strictly followed.
That would, however, not invalidate or nullify the order of suspension made under rule 7(3).
In dealing with the cases of high officers of the Administrative Service care ought to have been taken to follow the instructions as far as possible.
On the facts of the present case.
however.
failure to follow the instructions fully, does not render the order of suspension per se invalid.
[353GH] (2) Under rule 7(3) a member of the Service in respect of or against whom an investigation, enquiry or trial relating to a criminal charge is ponding, may at the discretion of the Government be Placed under suspension.
The 351 expression investigation, enquiry and trial are well known in the realm of the A criminal law under the Criminal Procedure Code.
In the present case, the First Information Report was lodged and the search warrants were issued before the suspension orders were passed.
Most of the allegations against the appellant were in relation to his alleged acts of corruption and misuse of his official position.
Whether the allegations are true or false is irrelevant.
Order under rule 7(3) was, therefore, legal and valid.
[354A E] (3) The suspension order came to an end by the compulsory retirement of the appellant.
After retirement from service he could no longer be deemed to be under suspension.
Since we are remitting the case back to the High Court we permit the appellant to raise the question of his salary and emoluments during the suspension period to be raised in the High Court.
The counsel for the appellant, however, assured this Court that if the appellant would be exonerated of the charges levelled against him and acquitted in the criminal proceedings the State Government would pay him his full pay and allowances for the period of suspension.
[354G H, 355B C] (4) We do not think it advisable to decide the point of malafide in the absence of the judgment in the criminal cases.
Since the two matters are so interwoven and interconnected that it would be expedient for the High Court to decide this issue after the judgment is delivered in the criminal trial.
[3 55D E] |
N: CRIMINAL APPEAL No. 253 of 1971.
Appeal by Special leave from the Judgment and order dated 11.2.1971 of the Allahabad High Court in Criminal Appeal No. 1285/70.
O. P. Rana, For the appellant Shiv Pujan Singh, for the respondent The Judgment of the Court was delivered by 381 GOSWAMI, J.
This appeal by special leave at the instance of the State of Uttar Pradesh is against the judgment of acquittal of the High Court of Allahabad.
Balram, Ram Khelawan and Rhuddi are three sons of one Ram Charan.
The injured Vishwanath (PWI), Shankar, Kankar and deceased Chhannu are sons of Balram.
Accused Sheo Murat, Ram Kishan, Shobha and Moti Lal are sons of Ram Khelawan.
Accused Shyam Lal is the son of accused Ram Kishan.
Shiv Nath (PW 2) e and Jagan Nath are sons of Bhuddi.
Thus all of them have branched off from Ram Charan and all the members have got share in their ancestral house at village Bhiwanipur.
In this ancestral house Vishwanath, Kankar, Chhannu, Jagan Nath and accused Ram Kishan along with his mother and married younger sister Bhagwantia resided.
All others along with the rest of the four accused lived in a nearby separate house.
on March 18, 1969, certain quarrel ensued between Bhagwantia and Kankar 's wife Patia.
Vishwanath tried to pacify both the quarrelling women.
Since Bhagwantia did not heed to Vishwanath 's words, the latter gave her one or two slaps.
Ram Kishan and his brothers were not in the village on that day but learning about this incident on the following day accused Sheo Murat, Ram Kishan, Shobha, Moti Lal and Shyam Lal went to Vishwanath 's place at about 7.00 or 8.00 P.M.
What followed may be described in the words of the in jured Vishwanath: "On the next day at 7 or 8 P.M.
I was sitting at the door of my osara.
My younger brothers, Kankar and Chhannu, were sitting at a short distance from me at the well.
Sheonath, my cousin, was also sitting near Kankar and Chhannu.
A burning lantern was hanging from a bamboo pole outside the osara; and there was sufficient light from it.
Ram Kishan, Shobha, Sheo Murat, Shyam Lal and Moti, accused present in the court, came there, Ram Kishan asked from me as to why I had slapped Bhagwantia and that I should come out and settle up.
I stood up and said, "Brother, what will you settle up".
At this Ram Kishan instigated his companions saying, "Beat the salas".
At once Shobha caught hold of my hand and Sheo Murat dealt knife blows to me.
Chhannu, my younger brother, came to save me, whereupon Shyam Lal and Moti caught hold of him and Sheo Murat started giving knife blows to him.
On hearing their instigation, Mohan, Phool Chand, Budhi and others came over there and began to forbid them.
Chhannu and I fell down on sustaining injuries.
Then all the five accused persons ran away with the knife.
" What has been stated above by Vishwanath has been repeated by Shiv Nath (PW 2), Hansla Prasad (PW 9).
Phool Chand (PW 10) and Sohan (PW 13).
The story given by these witnesses remains absolutely unshaken in the scanty cross examination by the defence.
Indeed there was little or no cross examination with regard to the incident itself.
10 L522SCI/76 382 Deceased Chhannu had the following external injuries on his person as stated by Dr. U. P. Singh who held the autopsy: (1) Incised stab wound 1/2X1/3", on right side chest, 1" medical to right nipple going into the chest cavity.
(2) Incised stab wound 1/2"x 1/4" x 1" to the right of left nipple and 1" below it, going into the chest cavity.
(3) Incised stab wound 1/2"x 1/4" abdominal cavity deep, on lower part of right side abdomen.
(4) Incised stab wound 1/2"x1/4"on lower part of abdomen, 3" above the joint of hip bones.
(S) Incised stab wound 1/2"x1/4" deep, on left hip.
(6) Incised stab wound 1/2"x1/4" chest cavity deep, on left side back, 6" below scapula.
(7) Abrasion 1/2"x 1/2" lateral aspect of right elbow.
(8) Abrasion 1/2"x1/2" on lateral aspect of right hand.
Internal examination revealed that the cartilage of fifth rib had been cut under injury No. (3).
There were punctured wounds ill the chest cavity in relation to injury Nos.
(1), (2) and (6).
Right vertrical of heart had a punctured wound 1/4"x1/4" and the pericardial cavity contained blood.
The upper lobe of left lung had a punctured wound 1/2" X 1/4" in relation to injury No. 2.
In the opinion of the Doctor death was due to shock and haemorrhage resulting from injuries to heart and lungs.
Another Doctor Siddiqui (PW 5) found the following injuries on the person of Vishwanath: (1) Incised wound 1/4"x1/8"x 1 1/2" deep, on front side of lower part of neck, directed downwards, backwards and leftwords.
The wound was in the middle of the neck and 1" above the bone.
On coughing air passed through the wound.
(2) Incised wound 1/2"x1/8"x3" or more than this, abdominal cavity deep, 1 1/2" above and to the left of umbilious.
Direction of wound was backwards, slightly upwards and towards centre of abdomen.
The injuries were fresh and described by the Doctor as dangerous.
All the five accused were charged under section 302/149 IPC for causing the death of Chhannu and also under section 307/149 IPC for attempting to murder Vishwanath.
While Sheo Murat was charged under section 149 IPC the other four accused were charged also under section 147 IPC.
The Sessions Judge convicted accused Sheo Murat under section 148, 307 and 302 IPC.
He was sentenced to death under section 302 IPC, to seven years rigorous imprisonment under section 307 IPC, and to two years rigorous imprisonment under section 148 IPC.
Accused Ram Kishan, Shobha, Moti Lal and Shyam Lal (the present respondents) were convicted under section 302/149 IPC, section 307 read with section 149 and section 383 147 IPC.
These four accused were sentenced to one year 's rigorous A imprisonment under section 147 IPC, to seven years ' rigorous imprisonment under section 307/149 IPC and to imprisonment for life under section 302/149 IPC.
The sentences of all the accused were to run concurrently.
The accused appealed to the High Court.
There was also a reference under section 374, Criminal Procedure Code, to the High Court for confirmation of the death sentence on Sheo Murat.
Both the matters were heard together by the High 1 Court and a common judgment was delivered on February 11, 1971.
The High Court maintained conviction and sentence of the accused Sheo Murat under section 307 IPC and also maintained his conviction under section 302 IPC but reduced the sentence to imprisonment for life.
The conviction and sentence of Sheo Murat under section 148 IPC were, however, set aside.
The conviction and sentence of the four other accused (the present respondents) were set C aside.
The State prayed for special leave against the rejection of the reference by reducing the death sentence to imprisonment for life but this Court rejected the same.
The State 's special leave application with regard to the respondents ' acquittal was, however, admitted on October 13, 1971 and non bailable warrants were issued against them.
We are, therefore, not concerned in this appeal with the conviction of accused Sheo Murat, who was the assailant of the deceased as well as of Vishwanath.
We have to consider whether the High Court has committed a grave and palpable error in acquitting the respondents resulting in miscarriage of justice.
It is well settled that in an appeal against acquittal this Court is slow to interfere with the decision of the High Court, even though it has interfered with the conviction by the trial court, where the same is reached after a proper appreciation of the entire evidence.
The possibility that it may just be reasonably feasible for this Court to take a different view of the evidence from that of the High Court is not the test in an appeal against acquittal.
Even so, we are unable in this case to sustain the order of the High Court for the reasons, which will presently follow.
We have already quoted the evidence of Vishwanath which is unerringly corroborated by all the other eye witnesses.
Both the trial court as well as the High Court believed the evidence.
Indeed the High Court has observed and, in our opinion, rightly that "there is no infirmity in the prosecution case".
We then find that the High Court has read the evidence in a rather unusual way which is at once obvious when we peruse the judgment.
We are not told wherefrom the High Court could describe the evidence as follows: "After reaching the house of Vishwanath they (the accused persons) entered into a conversation which became heated and ultimately ended in exchange of abuses".
The High Court also observed that "it is not at an clear from the prosecution evidence whether Shohha kept on holding Vishwanath till the very end i.e. 384 till both the knife injuries had been caused to him, or whether he let go his hold as soon as Sheo Murat started the attack".
The High Court further observed that "there is nothing in the prosecution evidence to indicate in what order those injuries were caused to Chhannu, and whether or not the injuries on the back were caused first".
The High Court further gave unusual importance to the statement of PW 13 when he deposed in cross examination to the following effects: "I cannot remember whether the two persons who had caught hold of Chhannu had held him from the front or from the back or from the side.
Further, I do not remember whether they were holding him each with both his arms or whether each of them held him only with one arm.
I do not re collect whether Sheo Murat had caused injuries to Chhannu from the front side or from the back side".
We are unable to appreciate how the evidence of PW 13, who could not remember certain details, could help the court in coming to any conclusion for the purpose of displacing the clear and unambiguous prosecution evidence.
The injuries on the two victims are res, ipso loquiter and tell tale.
Accused Shobha caught hold of Vishwanath 's hands and Sheo Murat gave him two stab blows, one on the neck and the other on the abdomen.
When deceased Chhannu advanced in order to save Vishwanath he was caught by accused Shyam Lal and Moti Lal and Sheo Murat gave as many as six stab injuries in quick succession.
None of these stab wounds are on any part of the hands or arms which would have necessarily been caused if the victims were not caught hold of by a person or persons while they were attacked with a knife.
It would be unnatural to expect that the victims would not have exercised their natural instinct of self preservation by trying to stave off the stab in juries by raising their hands.
And in that process if they were not caught hold of by some person or persons there would have been one or two injuries on the hands or arms.
This would clearly go to show that the story that Vishwanath was caught by Shobha and Chhannu was caught by Moti Lal and Shyam Lal, as deposed to by the PWs, stands corroborated by the medical evidence.
The High Court completely ignored this most relevant and important aspect in the prosecution case but felt satisfied to acquit the accused on the sole ground that there was no evidence to show whether Shobha caught Vishwanath all the time when the two blows were given and also whether Moti Lal and Shyam Lal were catching hold of deceased Chhannu during the entire period of the assault.
The High Court particularly felt in that direction because PW 13 being an independent witness could not re collect certain things to which we have already referred to above.
The injuries would clearly show that the victims were caught hold of by a Person or persons when these were inflicted upon them.
We are clearly of opinion that this is a completely erroneous view of the prosecution evidence adduced in this case resulting in failure of justice.
We are further satisfied that if the High Court had not read 385 the evidence by introducing an extraneous gloss for the purpose of its A conclusion it could not have acquitted the accused.
It is also evidence that the accused came in a body to challenge Vishwanath for the previous day 's incident.
Although the four respondents were unarmed, Sheo Murat had a knife with him.
There is nothing to show from the evidence that Vishwanath gave any provocation to the accused persons.
He only replied to the challenge by saying "Brother, what will you settle up" ? At this Ram Kishan instigated the other accused persons saying "beat the salas".
At once accused Shobha caught held of Vishwanath 's hands and Sheo Murat stabbed him twice with his knife.
Assunung the respondents had no earlier knowledge about Sheo Murat 's carrying a knife, from this moment they came to know that Sheo Murat had a knife with which he had already stabbed Vishwanath.
What did they then do when deceased Chhannu came to the aid of Vishwanath to save him from further assault ? Now Moti Lal and Shyam Lal caught hold of Chhannu and Sheo Murat inflicted several stab blows in quick succession.
It is, therefore, clear that Moti Lal and Shyam Lal shared the common intention with Sheo Murat in inflicting stab injuries to Chhannu by participating in the assault.
Sheo Murat has been convicted under section 302 IPC.
We may only give these two accused Moti Lal and Shyam Lal benefit of doubt with regard to participation with Sheo Murat in the common intention to cause death of Chhannu.
It is, however, absolutely impossible to relieve them of any liability whatsoever in connection with the stab injuries which were facilitated by their catching hold of Chhanu when Sheo Murat was inflicting the stab wounds.
There is no escape from the conclusion on this evidence that Moti Lal and Shyam Lal shared at least the common intention.
with Sheo Murat to cause grievous hurt under section 326 IPC.
A clear case has been established against both the accused persons under section 326/34 IPC.
They are, therefore, convicted under section 326/34 IPC and sentenced to four years ' rigorous imprisonment.
With regard to accused Ram Kishan he merely instigated by saying "beat the salas".
He is the person who started the affair by challenging Vishwanath and also instigating the other accused persons to beat.
From this alone it is not possible to attribute to him any common intention to cause more than simple assault.
He is, therefore, found guilty only under section 323/109 IPC.
He is, therefore, convicted under section 323/109 IPC and sentenced to rigorous imprisonment for one year.
Accused Shobha, who caught hold of Vishwanath to facilitate the two stab injuries on him by Sheo Murat, is also guilty under section 326/34 IPC.
We are prepared to give him the benefit of doubt only with regard to section 307 IPC but the evidence clearly establishes the case under section 326/34 lPC.
He is accordingly convicted under section 326/34 IPC and sentenced to four years ' rigorous imprisonment.
386 We should observe that no prejudice is caused to the accused by alteration of the conviction to section 326/34 although they had been originally charged under section 302/149 and section 307/149 IPC on the particular facts of the prosecution case which clearly pointed to participation by the respective accused in the two attacks and which they had to meet in the trial.
Since the respondents are detained in jail in pursuance of the non bailable warrants issued by this Court on October 13, 1971, at the time of granting special leave, they will be entitled to the benefit of section 438, Criminal Procedure Codes, and that period shall be set off against the sentences which we have passed in this apepal.
In the result the judgment of the High Court is set aside, the appeal is allowed and the four accused stand convicted and sentenced as aforesaid subject to the observations mentioned above.
S.R. Appeal allowed. | The accused and the deceased are close relatives, as per the following pedigree: Ramcharan (1) Ram Khelawan (2) Balram (3) Khuddi (4) Vishwanath Shankar Kanker Channu Shivnath Jagannath (PW)SI S2 S3 S4 (PW2) (Deceased) Sheo Murat Ram Kishan Shobha Moti Lal Bhagwantia (Acd) SI (Acd) S2 (Acd) S3 (Acd) S4 (Sister) Dl Shyam Lal (Acd) Vishwanath, Kanker, deceased Channu, Jagannath.
accused Ram Kishan along with his mother and sister Bhagwantia were living in the ancestral house at village Bhiwanipur, while the rest lived in a nearby separate house.
On March 18, 1969, Vishwanath tried to pacify the quarrel between his brother Kankar 's wife and Bhagwantia his cousin sister and when she refused to heed to his words, he gave one or two slaps to Bhagwantia.
The real brothers of Bhagwantia viz., Ram Kishan, Shobha, Moti Lal and Shyamlal s/o Ram Krishan all accused, went the next day to Vishwanath 's house and demanded an explanation for beating Bhagwantia and wanted a settlement.
Since Vishwanath said there was nothing in fact to be settled, Ram Kishan instigated the rest to beat Vishwanath.
Shobha caught hold of Vishwanath while Sheo Murat dealt knife blows which resulted in two grievous incised injuries.
Channu who came to the rescue was caught hold of by Shyam Lal and Moti and Sheo Murat dealt knife blows causing five fatal incised wounds and two abrasions to which he succumbed.
On the above version of the incident by the injured Vishwanath, PW 1 in the complaint and in evidence at the trial, which was unerringly corroborated by PWs 9. 10. 13 and unshaken in the cross examination, the Sessions Court convicted Sheo Murat under section 302/149 I.P.C. for causing the death of Channu and under section 307 /149 I P.C. for attempting to murder Vishwanath, though the charges were under section 302, 307 and 148, I.P.C. and sentenced him to death under section 302, I.P.C. seven years ' rigorous imprisonment under section 307 I.P.C. and to two years ' rigorous imprisonment under section 148.
I.P.C. Accused Ram Kishan.
Shobha.
Moti Lal and Shyamlal, the respondents in this Court were convicted under section 302/149 I.P.C., under section 307 read with section 149 I.P.C. and section 147 I.P.C. They were sentenced to one year 's rigorous imprisonment under section 147 T.P.C. to seven year 's rigorous imprisonment under section 307/149 I.P.C. and to imprisonment for life under section 307 /149.
The accused appealed to the High Court and there was a reference under section 374 Cr.
P.C. for the confirmation of death sentence.
By a common judgment, the High Court (i) set aside the conviction and sentences 380 of all the present respondents and also that of Sheo Murat under section 148, I.P.C.; (ii) maintained the convictions under section 307 I.P.C. and also under section 302 I.P.C. but altered the death sentence to one of life imprisonment and rejected the reference.
This Court rejected the State 's special leave petition against the alteration of the death sentence but granted special leave against the acquittal of the respondents alone and issued non bailable warrants.
Allowing the appeal, and convicting the accused and sentencing them to different terms with the benefit of set off under section 428, Cr.
P.C. (Act 2 of 1973), tho Court, ^ HELD: (1) It is well established that in an appeal against acguittal, this Court is slow to interfere under article 136 of the Constitution with the decision of the High Court.
The possibility that it may just be reasonably feasible for the Court to take a different vie v of the evidence from that of the High Court is not the test in an appeal against acquittal.
[383 D E] (2) In the instant case, the injuries on the two victims are "res ipso loquitor ' and tell tale.
The prosecution case that Vishwanath was caught by Shobha and Channu was caught hold of by Motilal and Shyamlal is corroborated by the medical evidence.
None of the stab wounds are on any part of the hands or arms which would have necessarily been caused.
if the victims were not caught hold of by a person or persons, while they were attacked with a knife.
It would be unnatural to expect that the victims would not have exercised their natural instinct of self preservation by trying to stave off the stab injuries by raising their hands.
And in that process if they were not caught hold of by some person or persons, there would have been one or two injuries on the hands or arms.
The High Court completely ignored this most relevant and important aspect in the prosecution, when it observed: "It is not at all clear from the prosecution evidence whether Shobha k kept on holding Vishwanath till the very end i.e. till both the knife injuries had been caused to him, or whether he let go his hold as soon as Sheo Murat started the attack".
"There is nothing in the prosecution evidence to indicate what order those injuries were caused to Channu and whether or not the injuries on the back were caused first".
This erroneous view taken by.
the High Court of the prosecution evidence adduceed in this case and the introduction by the High Court of an extraneous gloss for the purpose of its conclusion viz., "After reaching the house of Vishwanath they (the accused persons) entered into a conversation which became heated and ultimately ended in exchange of abuses".
resulted in failure of justice.
[383G H, 384C E] (3) No prejudice is caused in the instant case to the accused by alteration of the conviction to sections 326/34 although they had been originally charged under section 302/149 and sections 307/149, I.P.C.
On the particular fact of the prosecution case which clearly pointed to participation by the respective accused with tho two attacks and which they had to meet in the trial.
[385F G] |
Civil Appeal No. 2307 of 1969 (Appeal by Special leave from the Award dated the 1st April 1969 of the Addl.
Industrial Tribunal, Delhi in I. D. No. 83 of 1968) and Civil Appeals Nos.
1857 1859/70.
(Appeals by Special Leave from the Judgment and order dated the 17th November 1969 of the Addl.
Labour Court, Madras in claim Petition Nos.
627 and 629 of 1968).
M. K. Ramamurthi and Jitendra Sharma and Janardan Sharma, for the appellants in both the appeals.
371 section N. Andley, (Rameshwar Nath and B. R. Mehta in CAs 1857 A 59/70) for respondents in both the appeals.
The Judgment of the Court was delivered by UNTWALIA, J.
As the main question for determination in these appeals by special leave is common, they have been heard together and are being disposed of by this judgment.
Civil Appeal No. 2307 of 1969 The respondent company in this appeal has its Head office at Bombay.
It manufactures tyres at its Bombay factory and sells the tyres and other accessories in the markets throughout the country.
The company has a Distribution office at Nicholson Road, Delhi.
There was a strike in the Bombay factory from 3rd March, 1967 to 16th May, 1967 and again from 4th October, 1967.
As a result of the strike there was a short supply of tyres etc.
to the Distribution office.
In the Delhi office, there were 30 employees at the relevant time.
17 workmen out of 30 were laid off by the management as per their notice dated the 3rd February, 1968, which was to the following effect: "Management is unable to give employment to the following workmen due to much reduced production in the company 's factory resulting from strike in one of the factory departments.
These workmen are, therefore, laid off in accordance with law with effect from 5th February, 1968." The lay off of the 17 workmen whose names were mentioned in the notice was recalled by the management on the 22nd April, 1968.
The workmen were not given their wages or compensation for the period of lay off.
An industrial dispute was raised and referred by the Delhi Administration on the 17th April, 1968 even when the layoff was in operation.
The reference was in the following terms: "Whether the action of the management to 'lay off ' 17 workmen with effect from 5th Feb. 1968 is illegal and/or unjustified, and if so, to what relief are these workmen entitled? The Presiding officer of the Additional Industrial Tribunal, Delhi has held that the workmen are not entitled to any lay off compensation.
Hence this is an appeal by their Union.
We were informed at the Bar that some of the workmen out of the batch of 17 have settled their disputes with the management and their cases were not represented by the Union in this appeal.
Hence this judgment will not affect the compromise or the settlement arrived at between the management and some of the workmen.
The question which for our determination is whether the management had a right to lay off their workmen and whether the workmen are entitled to claim wages or compensation.
372 The simple dictionary meaning according to the Concise oxford Dictionary of the term 'lay off ' is "period during which a workman is temporarily discharged.
" The term 'lay off ' has been well known in the industrial arena.
Disputes were often raised in relation to the 'lay off ' of the workmen in various industries.
Sometime compensation was awarded for the period of lay off but many a time when the lay off was found to be justified workmen were not found entitled to any wages or compensation.
In Gaya Cotton & Jute Mills Ltd. vs Gaya Cotton & Jute Mills Labour Union(l) the standing order of the company provided that the company could under certain circumstances "stop any machine or machines or department or departments, wholly or partially for any period or periods without notice or without compensation in lieu of notice." In such a situation for the closure of the factory for a certain period, no claim for compensation was allowed by the Labour Appellate Tribunal of India.
We are aware of the distinction betwen a lay off and a closure.
But just to point out the history of the law we have referred to this case.
Then came an amendment in the hereinafter referred to as the Act by Act 43 of 1953.
In section 2 clause (kkk) was added to say: "lay off" (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the break down of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched Explanation Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid off for that day within the meaning of this clause: Provided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid off only for one half of that day: Provided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day. '" (1) [1952] II Labour Law Journal, 37.
373 By the same Amending Act, Chapter VA was introduced in the Act to provide for lay off and retrenchment compensation.
Section 25A excluded the Industrial Establishment in which less than 50 workmen on an average per working day had been employed in the preceding calendar month from the application of Sections 25C to 25E. Section 25 C provides for the right of laid off workmen for compensation and broadly speaking compensation allowable is 50% of the total of the basic wages and dearness allowance that would have been payable 13 to the workman had he not been laid off.
It would be noticed that the sections dealing with the matters of lay off in Chapter VA are not applicable to certain types of Industrial Establishments.
The respondent is one such Establishment because it employed only 30 workmen at its Delhi office at the relevant time.
In such a situation the question beset with difficulty of solution is whether the laid off workmen were entitled to any compensation, if so, what '? We shall now read section 25 J.
It says: "(1) The provisions of this Chapter shall have effect not withstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing orders) Act, 1946: Provided that where under the provisions of any other Act or Rules, orders or notifications issued thereunder or under any standing orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.
For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to layoff and retrenchment shall be determined in accordance with the provisions of this Chapter.
" The effect of the provisions aforesaid is that for the period of lay off in an Industrial Establishment to which the said provisions apply, compensation will have to be paid in accordance with section 25C.
But if a workman is entitled to benefits which are more favourable to him than those provided in the Act, he shall continue to be entitled to the more favourable benefits.
The rights and liabilities of employers and workmen in so far as it relate to lay off and retrenchment, except as provided in section 25J, have got to be determined in accordance with the provisions of Chapter VA.
The ticklish question which does not admit of an easy answer is as to the source of the power of management to lay off a workman.
The employer has a right to terminate the services of a workman.
Therefore, his power to retrench presents no difficulty as retrenchment means the termination by the employer of the service of a workman for any reason whatsoever as mentioned in clause (oo) of section 2 of the 374 Act.
But lay off means the failure, refusal or inability of employer on account of contingencies mentioned in clause (kkk) to give employment to a workman whose name is borne on the Muster Rolls of his Industrial Establishment.
It has been called a temporary discharge of the workman or a temporary suspension of his contract of service.
Strictly speaking, it is not so.
It is merely a fact of temporary unemployment of the workman in the work of the Industrial Establishment.
Mr. section N. Andley submitted with reference to the explanation and the provisions appended to clause (kkk) that the power to lay off a workman is inherent in the definition.
We do not find any words in the definition clause to indicate the conferment of any power on the employer to lay off a workman.
His failure or inability to give employment by itself militates against the theory of conferment of power.
The power to lay off for the failure or inability to give employment has to be searched somewhere else.
No section in the Act confers this power.
There are two small matters which present some difficulty in the solution of the problem.
In explanation (1) appended to sub section ( 2) of section 25B the words used are: "he has been laid off under an agreement or as permitted by standing order made under the Industrial Employment (Standing orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment.
" indicating that a workman can be laid off under the also.
But it is strange to find that no section in Chapter VA in express language or by necessary implication confers any power, even on the management of the Industrial Establishment to which the relevant provisions are applicable, to lay off a workman.
Clause (ii) of section 25E says: "No compensation shall be paid to a workman who has been laid off If he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day." This indicates that there is neither a temporary discharge of the work man nor a temporary suspension of his contract of service.
Under the general law of Master and Servants an employer may discharge an employee either temporarily or permanently but that cannot be without adequate notice.
Mere refusal or inability to give employment to the workman when he reports for duty on one or more grounds mentioned in clause (kkk) of section 2 is not a temporary discharge of the work man.
Such a power, therefore, must be found out from the terms of contract of service or the Standing orders governing the establishment.
In the instant case the number of workmen being only 30, there were no Standing orders certified under the Industrial employment (Standing orders) Act, 1946.
Nor was there any term of contract of service conferring any such right of lay off.
In such a situation the conclusion seems to be inescapable that the workmen were laid off without any authority of law or the power in the management under the contract of service.
In Industrial Establishments where there is a power in the management to lay off a workman and to which the 375 provisions of Chapter VA apply, the question of payment of compensation will be governed and determined by the said provisions.
Otherwise Chapter VA is not a complete Code as was argued on behalf of the respondent company in the matter of payment of lay off compensation.
This case, therefore, goes out of Chapter VA.
Ordinarily and generally the workmen would be entitled to their full wages but in a reference made under section 10(l) of the Act, it is open to the Tribunal or the Court to award a lesser sum finding the justifiability of the lay off.
` In The Management of Hotel Imperial, New Delhi & others vs Hotel Workers ' Union(l) in a case of suspension of a workman it was said by Wanchoo, J. as he then was, delivering the judgment on behalf of the Court at page 482: "Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work.
he will have to pay wages during the so called period of suspension.
Where, however.
there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that ` the servant is not bound to render service and the master is not bound to pay.
" The same principle was reiterated in V. P. Gindroniya vs State of Madhya Pradesh & Ors.(2) We have referred to the suspension cases because in our opinion the principles governing the case of lay off are very akin to those applicable to a suspension case.
In Veiyra (M. A.) vs Fernandez (C. P.) and another(3) a Bench of the Bombay High Court opined that under the general law the employer was free to dispense with the services of a workman but under the he was under an obligation to lay him off; that being so, the action of lay off by the employer could not .
be questioned as being ultra vires.
We do not think that the view expressed by the Bomby High Court is correct.
There is an important decision of this Court in Workmen of Dewan Tea Estate and ors.
vs The Management(4) on which reliance was placed heavily by Mr. M. K. Ramamurti appearing for the appellant and also by Mr. Andley for the respondent.
One of the question for consideration was whether section 25C of the Act recognises the common law right of the management to declare a lay off for reasons other than those specified in the relevant clause of the Standing order.
While considering this question, Gajendragadkar, J. as he then was.
said at page 554: "The question which we are concerned with at this stage is whether it can be said that s.25C recognises a common law (1) ; (2) [1970] 3 S.C.R. 448.
(3) [1956] I Labour Law Journal, 547.
(4) []964] S S.C.R. 548.
376 right of the industrial employer to lay off his workmen.
This question must, in our opinion, be answered in the negative.
When the laying off of the workmen is referred to in section 25C, it is the laying off as defined by section 2 (kkk) and so, workmen who can claim the benefit of section 25C must be workmen who are laid off and laid off for reasons contemplated by section 2 (kkk); that is all that section 25C means.
Then follows a sentence which was pressed into service by the respondent.
It says: "If any case is not covered by the Standing orders, it will necessarily be governed by the provisions of the Act, and layoff would be permissible only where one or the other of the factors mentioned by section 2 (kkk) is present, and for such lay off compensation would be awarded under section 25C." In our opinion, in the context, the sentence aforesaid means that if the power of lay off is there in the Standing orders but the grounds of lay off are not covered by them, rather, are governed by the provisions of the Act, then lay off would be permissible only on one or the other of the factors mentioned in clause (kkk).
Subsequent discussions at pages 558 and 559 lend ample support to the appellant 's argument that there is no provision in the Act specifically providing that an employer would be entitled to lay off his workmen for the reasons prescribed by section 2 (kkk).
Mr. Andley placed strong reliance upon the decision of this Court in Sanjhi Jeevraj Ghewar Chand & Ors.
vs Secretary, Madras Chillies, Grains Kirana Merchants Workers ' Union & Anr.(l) The statute under consideration in this case was the and it was held that the Act was intended to be a comprehensive and exhaustive law dealing with the entire subject of bonus of the persons to whom it should apply.
The Bonus Act was not to apply to certain Establishments.
Argument before the Court was that bonus was payable de hors the Act in such establishment also.
This argument was repe11ed and in that connection it was observed at page 381: "It will be noticed that though the confers substantive rights on workmen with regard to lay off, retrenchment compensation, etc., it does not create or confer any such statutory right as to payment to bonus.
Bonus was so far the creature of industrial adjudication and was made payable by the employers under the machinery provided under that Act and other corresponding Acts enacted for ,.
investigation and settlement of disputes raised thereunder.
There was, therefore, no question of Parliament having to delete or modify item S in the Third Schedule to or any such provision in any corresponding Act or its having to exclude any right to bonus thereunder by any categorical exclusion in the present case." And finally it was held at page 385: "Considering the history of the legislation, the background and the circumstances in which the Act was enacted, the (1) [1969] I S.C.C. 366.
377 object of the Act and its scheme, it is not possible to accept A the construction suggested on behalf of the respondents that the Act is not an exhaustive Act dealing comprehensively with the subject matter of bonus in all its aspects or that Parliament still left it open to those to whom the Act does not apply by reason of its provisions either as to exclusion or exemption to raise a dispute with regard to bonus through Industrial adjudication under the or other corresponding law.
" In a case of compensation for lay off the position is quite distinct and different.
If the term of contract of service or the statutory terms engrafted in the Standing orders do not give the power of lay off to the employer, the employer will be bound to pay compensation for the period of lay off which ordinarily and generally would be equal to the full wages of the concerned workmen.
If, however, the terms of r employment confer a right of lay off on the management, then, in the case of an industrial establishment which is governed by Chapter VA, compensation will be payable in accordance with the provisions contained therein.
But compensation or no compensation will be payable in the case of an industrial establishment to which the provisions of Chapter VA do not apply, and it will be so as per the terms of the employment.
In Kanhaiya Lal Gupta vs Ajeet Kumar Dey and others(l) a learned single Judge of the Allahabad High Court seem to have rightly held that in the absence of any term in the contract of service or in the statute or in the statutory rules or standing orders an employer has no right to lay off a workman without paying him wages.
A learned single Judge of the Punjab and Haryana High Court took an identical view in the case of Steel and General Mills Co. Ltd. vs Additional District Judge, Rohtak and others.
(2) The majority view of the Bombay High Court in K. T. Rolling Mills Private Ltd. and another vs M. R. Meher and other(8) that it is not open to the Industrial Tribunal under the Act to award lay off compensation to workmen employed in an 'Industrial Establishment ' to which section 25 C does not apply, is not correct.
The source of the power of the employer to lay off workmen does not seem to have been canvassed or discussed by the Bombay High Court in the said judgment.
In the case of the Delhi office of the respondent the Tribunal has held that the lay off was justified.
It was open to the Tribunal to award a lesser amount of compensation than the full wages.
Instead of sending back the case to the Tribunal, we direct that 75% the basic wages and dearness allowance would be paid to the workmen concerned for the period of lay off.
As we have said above this will not cover the case of those workmen who have settled or compromised their disputes with the management.
Civil Appeals 1857 1859 (NL) of 1970 In these appeals the facts are identical to those in the other appeal.
There were only 33 employees in the Madras office of the respondent company.
Certain workmen were laid off for identical reasons from the (1) [1967] II Labour Law Journal, 761.
(2) [1972] 1 Labour Law Journal, 284.
(3) A.I.R. 1963 Bombay, 146.
378 5th February, 1968.
The lay off was lifted on the 29th April, 1968.
The concerned workmen filed petitions under section 33C (2) of the Act for computation of their wages for the period of lay off.
Holding that the lay off was justified and valid the Presiding officer of the Additional Labour Court, Madras has dismissed their applications for salary and allowances for the period of lay off.
Hence these appeals.
In a reference under section 10 (1) of the Act it is open to the Tribunal or the Court to award compensation which may not be equal to the full amount of basic wages and dearness allowance.
But no such power exists in the Labour Court under section 33C (2) of the Act.
only the money due has got to be quantified.
If the lay off could be held to be in accordance with the terms of the contract of service, no compensation at all could be allowed under section 33C (2) of the Act, while, in the reference some compensation could be allowed.
Similarly on the view expressed above that the respondent company had no power to lay off any workmen, there is no escape from the position that the entire sum payable to the laid off workmen except the workmen who have settled or compromised, has got to be computed and quantified under section 33C(2) of the Act for the period of lay off.
For the reasons stated above all the appeals are allowed.
In Civil Appeal No. 2307/1969 in place of the order of the Tribunal, an order is made on the lines indicated above.
And in Civil Appeals 1857 to 1859/1970 the orders of the Labour Court are set aside and the cases of the appellants are remitted back to that Court for computation and quantification of the sums payable to the concerned workmen for the period of lay off.
There will be no order as to costs in any of the appeals.
S.R Appeals allowed: Orders in CA 2307/69 modified : CAs 1857 1859/70 remitted hock to the Tribunal. | The respondent company manufacturing tyres in Bombay, due to the general strike in its factory between the period 3rd March 1967 and 16th May 1967 and again from 4th October 1967 and due to the consequent short supply of tyres had to lay off 17 out of its 30 workmen in the Delhi distribution office and also some out of its 33 workmen in its Madras distribution office.
The workmen in the Delhi and Madras offices were called back to duty on 22nd April 1968 and 29th April 1968 respectively.
The workmen were not given their wages or compensation for the period of lay off.
An industrial dispute was raised and referred to the tribunal by the Delhi Administration even when the lay off was in operation.
The Presiding officer of the Additional Industrial Tribunal, Delhi held that the workmen were not entitled to any layoff compensation.
The workmen in Madras filed petitions under section 33C(2) of the for computation of their wages for the period of their lay off.
The Presiding officer of the Additional Labour Court, Madras, holding that the lay off was justified, dismissed their applications.
on appeal to this Court by special leave, ^ HELD: (I) The simple dictionary meaning according to the concise oxford Dictionary of the term "lay ofF ' is "period during which a workman is temporarily discharged".
Lay off means the failure, refusal or inability of employer on account of contingencies mentioned in cl.
(kkk) of section 2 of the , to give employment to a workman whose name is borne on the Muster Rolls of his Industrial Establishment.
It has been called a temporary discharge of the workmen or a temporary suspension of his contract of service.
Strictly speaking, it is not so.
It is merely a fact of temporary unemployment of the workman in the work of the lndustrial Establihment.
Mere refusal or inability to give employment to the workman when he reports for duty on one or more grounds mentioned in cl.
(kkk) of section 2 is not a temporary discharge of the workman.
[372A, 374A, B, G] Gaya Cotton & Jute Mills Ltd. vs Gaya Cotton & lute Mills Labour Union [1952] II Labour Law Journal 37, referred to.
(2)(i) That the power to lay off a workman is inherent in the definition in cl.
(kkk) of section 2 is not correct, since no words in the definition clause to indicate the conferment of any power on the employer to lay off a workman can be found.
His failure or inability to give employment, by itself militates against the theory of conferment of power.
No section in Chapter VA in express language or by necessary implication confers any power, even on the management of the Industrial Establishment to which the relevant provisions are applicable, to lay off a workman.
There is no provision in the Act specifically providing that an employer would be entitled to lay off his workmen 370 for the reasons prescribed by section 2 (kkk).
Such a power, therefore, must be found out from the terms of contract of service or the Standing orders governing the Establishment.
[374 B G] (ii) In the instant case, the number of workmen being only 3, there being no Standing orders certified under the Industrial Employment (Standing orders) Act (Act 20 of 1946), 1946, and there being no contract of service conferring any such right of lay off, the inescapable conclusion is that the workmen were laid off without any authority of law or the power in the management under the contract of service.
[374 G H] The Management of Hotel Imperial New Delhi & others vs Hotel Workers Union ; and V. P. Gindroniya vs State of Madhya Pradesh & ors.
[1970] 3 S.C.R. 448, referred to.
Veiyra (MA ) Fernandez (CP.) and another [1956] 1 Labour Law Journal.
547, reversed.
Workmen of Dewan Tea Estate and ors.
vs The Management [19641 S S.C.R. 548, applied.
Sanghi Jeevaraj Ghewar Chand & ors vs Secretary Madras Challies Grains Kirana Merchants Workers Union and Anr. , distinguished.
(3) If the terms of a contract of service or the statutory terms engrafted in the Standing orders do not give the power to lay off to the employer, the employer would be bound to pay compensation for the period of lay off which ordinarily and general would be equal to the full wages of the concerned V workman.
If, however, the terms of employment confer a right of lay off on the management then in the case of an Industrial Establishment which is governed by Chapter VA, compensation will be payable in accordance with the provisions contained therein.
But compensation or no compensation will be payable in the case of an Industrial Establishment to which the provisions of Chapter VA do not apply and it will be so as per the terms of employment.
[377 B D] Kanhaiya Lal Gupta vs Ajeet Kumar Dey and others [1967] II Labour Law Journal.
761 and Steel and General Mills Co. Ltd v Additional District judge Rohtak and others [1972] 1 Labour Law Journal, 2847 approved.
K. T Rolling Mills Private Ltd. and another vs M R Meher and others A.I.R. 1963 Bombay 146.
reversed.
(4) In a reference under section 10(l) of the Act.
it is open to the tribunal or court to award compensation which may not be equal to the full amount of basic wages and dearness allowance.
But no such power exists in the Labour Court under section 33C(2) of the Act.
Only the money due has to be quantified.
If the lay off could be held to be in accordance with the terms of contract of service.
no compensation at all could be allowed under section 33C(2) of the Act, while in the reference some compensation could be allowed.
[378 B Cl [In the instant case as regards the workmen in the Delhi case.
the court held 75% of the basic wages and dearness allowance would be the adequate compensation for the lay off period.] |
: Criminal Appeal No 188 of 1971.
Appeal by special leave from the judgment and order dated the 29 9 1970 of the Gujarat High Court in Criminal Appeal No. 410 304 D. Mookherjee, section K. Dholakia and M. N. Shroff, for the appellant.
K. J. Shethna and Vimal Dave and Miss Kailash Mehta, for the respondent.
The Judgment of the Court was delivered by GOSWAMl, J.
The accused Haidarali Kalubhai was convicted by the Sessions Judge, Mehsana, under section 304 Part II, Indian Penal Code, and was sentenced to rigorous imprisonment for seven years for causing death of Mahomadali Kasamali.
He was also convicted under sections 326 and 323 I.P.C. and sentenced to rigorous imprisonment for two years and to three months respectively in connection with injuries to two other persons.
On appeal to the High Court conviction was altered to one under section 304 A.I.P.C.
Only and the accused was sentenced to rigorous imprisonment for eighteen months and to a fine of Rs. 500/ , in default rigorous imprisonment for six months.
Briefly the facts are as Follows: It was usual for the deceased Mahomadali Kasamali, who was the sarpanch of village Nandasan, to spend some hours of the night from 8.00 P.M. to 11.P.M. near the Hotel Shanker Vijay which is situated by the side of the highway from Mehsana to Ahmedabad.
There is a big open space in front of the hotel towards the north and a kutcha road branches off from the highway towards Dangarwa.
This kutcha road is almost in the centre of the open space in front of the hotel measuring about 80 feet.
It is said that the portion immediately in front of the hotel is about two feet higher in elevation from the kutcha road.
On August 23, 1969, the accused came in a tractor and stopped the same on the highway.
He saw truck No. G.T.F. 904 which Was parked opposite to the aforesaid hotel of Vasudev (P.W. 7).
The owner of the truck had gone to the village leaving his conductor Usman Imamali (P.W. 11) in the truck.
It is said that the accused used to drive this truck earlier with permission of the truck owner.
This time he used the key of his tractor to start the truck and he drove the same by the open field in front of the hotel.
He drove the truck with the head lights on in full speed straight on the steel cot on which The deceased was resting with the result that the truck dashed against the cot and the deceased was thrown away to a distance of about ten feet from the cot.
Head Constable Revajit (PW 3) was sitting on the same cot with the deceased and he was also thrown away.
There was another wooden cot nearby where Constable Dalpat Singh (PW 4) and Vavdinmiya (PW 5) were sitting.
The Head Constable with the other Constable came to meet the Sarpanch in connection with the investigation of a certain case.
Since there was enmity between the accused and the deceased on account of Panchayat elections the prosecution case is that the accused willfully and deliberately drove the vehicle towards the cot with the intention of causing death to the A deceased Sarpanch.
The accused was originally charged under section 302 IPC and under section 326 and 323 IPC with the result mentioned above.
Hence this appeal by the State by special leave against the judgment of the High Court.
The question that arises for consideration is whether the facts that `are established against the accused fulfil the ingredients of section 304 305 Part II as submitted by Mr. Debabrata Mukherjee on behalf of the State.
According to the learned counsel this is a clear case under section 304 Part II and conviction under section 304A is unsustainable.
Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under section 299 IPC or murder under section 300 IPC.
If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide.
Each case will, therefore, depend upon the particular facts established against the accused.
The prosecution in this case wanted to establish a motive for committing the offence against the Sarpanch.
It was sought to be established that there was enmity between the Sarpanch and the accused ` and his relations on account of Panchayat elections.
Some evidence was led in order to prove that the accused and his relations were gunning against the Sarpanch for some time after the latter 's election as Sarpanch.
Even an anonymous letter was received by the Sarpanch threatening his life which was handed over to the police by the Sarpanch.
Both the Sessions Judge as well as the High Court did not accept the evidence appertaining to motive.
Mr. Mukherjee, therefore, rightly and very fairly did not address us with regard to that part of the case.
Even so, the learned counsel submits that the act per se and the manner in which the vehicle was driven clearly brought the case under section 304 Part II IPC.
The following facts are established.
The accused drove the truck at great speed with lights on.
He had the conductor with him in the truck.
Some time before driving the truck the accused had seen the Constables talking with the Sarpanch at the spot in question.
There is no evidence that the accused had a licence to drive the truck.
It, however appears from it.
70, which is a complaint in criminal case No. 160 of 1969 dated January 17, 1969 that the accused "had no licence. while driving his truck No. GTF 704.
" While the two Constables jumped from the cot and escaped the deceased could not do so in spite of being alerted by the Head Constable as he was in a Lying posture on the cot.
It appears from the map of the scene Ext.
9 that the truck while being driven by the field was trying to turn towards the kutcha road at a point near the cot shown in the map.
This would go to show that the accused was unable to control the vehicle in high speed while taking a turn to get into the kutcha road from the open field and in this process hit the cot throwing the deceased out of the cot by the impact resulting in injuries which ultimately led to his death.
Even the Constables, who jumped from the cot, received injuries.
There was no direct impact of the persons with the vehicle in speed.
The accused in his statement under section 342, Criminal Procedure Code, stated as follows: "I took the truck in reverse first and as there were other trucks lying round about, I took out my truck from the available way.
306 The accilator (sic) stuck down and hence the truck went in full speed and did not remain in control.
One truck was coming from opposite side with full light.
While driving with (sic) this way, I heard some noise, and the conductor Usman told me that the truck had struck with something then I heard some shouts and realised that some persons were injured but I did not stop the truck through fear of assault . truck through fear of assault . .
I presented myself at the Police Station".
Now this version is supported by Usman (PW 11) who, however, has been declared hostile by the prosecution.
He was cross examined by the prosecution in order to show that he made a wrong statement in the examination in chief when he stated that the accused drove the truck with the key of the truck whereas he had stated before the police that the accused came on his tractor and started the truck with his key.
He was also cross examined about a truck coming from the opposite side with full light that he had not stated to the police to that effect.
We do not think that the omission to mention before the police about another truck coming from the opposite direction can be a contradiction within the meaning of section 162, Criminal Procedure Code.
We also do not give much importance as to whether the accused drove the truck with his key or with the key of the tractor.
That has not much relevance in view of the fact that the accused admitted to have driven the truck.
Besides, it is admitted by the prosecution witnesses (PWs ' 2 and 6) that the conductor (PW 11 ) was in the truck when the accused drove the same.
PW11 is, therefore, a natural witness and we do not find any reason to disbelieve him when he stated that a truck was coming from the opposite direction with full lights on.
Besides, the owner of the truck having not found the truck in the place where he had parked had already telephoned to the Police Station about someone taking away the truck.
PW11, who is an employee of the truck owner, was, therefore, not even obliged to speak in favour of the accused.
The facts disclosed in the prosecution evidence, therefore, do not make out a case of any wilful or deliberate act on the part of the accused in order to cause the death of the Sarpanch by driving the truck in the way he did.
Besides, the presence of the Head Constable and another Constable with the deceased whom the accused had himself seen prior to his driving the truck would run counter to a theory of wilful and deliberate act on the part of the accused to cause the death not only of the Sarpanch but necessarily also of the Constables.
Section 304A by its own definition totally excludes the ingredients of section 299 or section 300 IPC.
Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a person 's death are ingredients of the offence of culpable homicide.
When intent or knowledge as described above is the direct motivating force of the act complained of, section 304 A has to make room for the graver 307 and more serious charge of culpable homicide.
Does this happen in A this case ? The tangential track of the speeding truck coming in contact with the corner of the steel cot throwing it over the wooden cot and thereby throwing the deceased out of it resulting in fatal injuries would not reveal the accused intention or any deliberate act with the requisite knowledge for an offence of culpable homicide.
The facts and circumstances disclosed in this case fit in more reasonably with the theory of loss of control by the accused of the vehicle in high speed trying to take a turn for the kutcha road.
There is, therefore, no error committed by the High Court in holding that the falls under section 304A IPC and not under 304 Part II IPC.
The appeal is accordingly dismissed.
C S.R. Appeal dismissed. | On August 23, 1969, the respondent accused came in a tractor and stopped it on the highway.
Seeing the parked truck GTF 904 which he used to drive previously, the accused used the key of his tractor to start the same and drove it with the head lights on in full speed.
The conductor of the truck owner was also in the tractor at that time.
The tractor while being driven by the field and while he was trying to turn towards the kutcha road hit against the cot in which the village Sarpanch who was resting on it and taking with three policemen.
The policemen jumped from the cot and sustained injuries, while the Sarpanch who was thrown away by the impact of the tractor to a distance of about ten feet from the cot, had grievous injuries to which he succumbed later.
Since there was enmity between the deceased and the accused over the Panchayat elections, the prosecution put up a case of deliberate and willful driving of the vehicle towards the cot with the intention of causing death of the deceased Sarpanch.
The Sessions Judge convicted the accused (i) under section 304 Part IT, I.P.C. for causing the death of the Sarpanch and (ii) under section 326 and 323, I.P.C. for causing injuries to the two other persons and sentenced him for rigorous imprisonment for seven years and two years respectively for the said offences.
On appeal to the High Court the conviction was altered to one under section 304A only and the respondent was sentenced to rigorous imprisonment for 18 months and to a fine of Rs. 500/ .
Dismissing the State 's appeal by special leave, the Court, ^ HELD .
(1) Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under section 299, I.P.C. or murder under section 300 I.P.C. Each case will depend on the particular facts established against the accused.
[305A B] (2) Section 304A, by its own definition totally excludes the ingredients of section 299 or section 300, I.P.C. Doing an act with the intent to kill a person or knowledge that doing of an act is likely to cause a person 's death are ingredients of the offence of culpable homicide.
When intent or knowledge is the direct motivating force of the act complained of, section 304A has to make room for the graver and more serious charge of culpable homicide.
[306 GH, 307A] (3) In the instant case, the tangential track of the speeding truck coming in contact with the corner of the steel cot throwing it over the wooden cot and thereby throwing tho deceased out of it resulting in fatal injuries, would not reveal the accused 's intention or any deliberate act with the requisite knowledge for an offence of culpable homicide.
The facts and circumstances disclosed in this case fit in more reasonably with the theory of loss of control by the accused of the vehicle in high speed trying to take a turn for the kutcha road.
The case falls under section 304A, I.P.C. and not under 3. 304 Part 11, I.P.C. [307 A C] |
Civil Appeals Nos. 356 and 357 of 1961.
Appeals by special leave and certificate from the judgment and orders dated October 16, 1959, and February 16,1960, of the Madhya Pradesh High Court in L. P. A. No. 93 of 1957 and Misc.
Petition No. 254 of 1959 respectively.
152 section T. Desai and N. H. Hingorani, for the appellant.
M. R. Nambiar, section N. Andley, Rameshwar Nath and P. L. Vohra, for respondent No. 1. 1960.
October 20.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
These two appeals by special leave have been filed by the Municipal Committee, Raipur, against two different respondents who carry on business of extraction of oil from oil seeds.
The case involves an interpretation of the Byelaws of the Municipal Committee and the determination of octroi duty which was payable by the respondents in the relevant years of assessment on sarso oil seeds brought by them within the area of the appellant Committee for purposes of their business.
The Municipal Committee demanded an ad valorem octroi duty Rs. 4 11 0 per cent from the respondents, claiming to levy it under item 44 of the Schedule of goods liable to octroi duty in the Raipur Municipality, appended to the Rules framed on June 4, 1951.
The respondents, on the other hand contended that a duty of 2 annas per maund was leviable under item 4 of the same Schedule, which covered the case of oil seeds.
The respondents made representations described as appeals, but were unsuccessful.
Their demand for refund of octroi duty paid by them was refused and they, therefore, filed petitions under article 226 of the Constitution in the High Court of Nagpur (later, of Madhya Pradesh) against the appellants alleging inter alia that this imposition of octroi duty ad valorem at Rs. 4 11 0 percent on sarso oil seeds as against other oil seeds was ultra vires the Municipal Committee under article 14 of the Constitution.
They also averred that octroi duty was properly leviable under item 4 and not under item 44.
In the High Court, the petition out of which Civil Appeal No. 356 of 1961 arises, was heard by a learned single Judge, who held that 153 sarso oil seeds were chargeable to duty under item 44 and not under item 4.
From the order of the learned single Judge, it does appear that the constitutional question was urged before him.
Against this order, a Letters Patent Appeal was filed, and the Divisional Bench, which heard the appeal, held, disagreeing with the learned single Judge, that duty was properly leviable only under item 4.
Before the Divisional Bench also, it does not appear that the constitutional question was argued.
The petition, out of which Civil Appeal No. 357 of 1961 arises was heard by a Divisional Bench, which, following the earlier decision, decided against the appellant Committee.
The entries in the Schedule of goods liable to octroi duty in the Raipur Municipality contain eight classes of goods.
Under them are grouped 67 items, the serial numbers running consecutively through all the classes.
Class I is headed "Articles of food or drink or use for men or animals".
Item 4, which is in that Class reads "Oil seeds of every description not specifically mentioned elsewhere".
Class V is headed "Drugs, spices and gums, toilet requisites and perfumes", and item 44 reads "Betel nuts, gums, spices, Indian herbs and Indian raw medicines and drugs, such as nuts, ilaichi, laung, jaiphal, jaipatri, dalchini., sont, katha, zeera, Dhania garlic, dry chillies, pepper, shahzeera, maithi, sarso, etc.
and known as kirana" (groceries).
Item 4 is chargeable to a duty of 2 annas per maund, and item 44 is chargeable ad valorem at Rs. 4 11 0 per cent.
In addition to these entries, there is item 17, which reads "Vegetable oils (not hydrogenated) not provided elsewhere such as Tilli Tel, Sarso Tel, Alsi Tel, Falli Tel, Narial Tel, Andi Tel ', which are chargeable to a duty of 4 annas per maund.
It is conceded on all hands that sarso is an oil seed, and if there was nothing more in the Schedule a duty of 2 annas per maund would be leviable on sarso as an oil seed.
The dispute arises, because 154 sarso is mentioned again in Item 44 with a very much higher duty, and it is contended by the appellant Committee that the words "not specifically mentioned elsewhere" in item 4 exclude sarso from that item, and that its specific mention in item 44 makes it liable to the higher duty indicated there.
The learned single Judge of the High Court held in favour of the Municipality.
According to him, this reason was sound and the higher duty demanded was the proper duty payable.
The Divisional Bench on the other hand, points out that the two classes (I and V) are entirely different.
Class 1 deals with articles of food or drink for use for men and animals while Class V deals with drugs, spices and gums, toilet requisites and perfumes.
The division indicates clearly that goods belonging to one category are not included in the goods belonging to the other.
The Divisional Bench also points out that item 4 must be read as it stood and the specific mention must be in the same manner in which that entry was framed.
Item 4 deals with "oil seeds", and the specific mention must be as "oil seeds" elsewhere in the Schedule.
It was also argued for the respondents that "elsewhere" meant elsewhere in the same Class.
But the appellant Committee pointed out that the serial numbers were all consecutive, and that the specific mention could be anywhere in the Schedule.
The two arguments are equally plausible, and nothing much, therefore turns upon them.
In our opinion, the Divisional Bench of the High Court was right when it said that the specific mention elsewhere must be as oil seeds and not as something else.
Class V deals with spices and groceries and the concluding words of item 44 known as "kirana" determine the ambit of that item.
Though sarso might be mentioned there, it must be taken to have been mentioned as a spice or as kirana and not as oil seed.
The extent of item 4, which deals with oil seeds of every descrip 155 tion, could only be cut down by a specific mention elsewhere of an item as an oil seed.
Item 44 contains fairly long list, out of which we have quoted a few illustrative items.
Each of these items is referable to the general heading either as a drug or a spice or gum, etc.
Sarso, it is admitted, is sold as kirana and as a spice.
The mention of sarso there is limited by the general heading to which it belongs, namely, a spice, drug or herb sold as kirana.
No doubt, sarso as an oil seed is the same article as sarso sold as kirana but we must take into account the intention behind the bye law and give effect to it.
If it was intended that sarso as an oil seed was to be taxed in a special way, it would be reasonable to expect that it would have be found a specific in mention as an oil seed with a different duty.
One would not expect that it would be included in a long list of articles of kirana and in this indirect way be taken out from a very comprehensive entry like item 4, where oil seeds of every description are mentioned.
Though the next argument is not conclusive because there is no logic behind a tax, still it is to be noticed that sarso oil (a maund of which, as the affidavit of the respondents shows, is expressed from three maunds of oil seed) bears only an octroi duty of 4 annas per maund, while three maunds of sarso oil seed under item 44, if it were applicable, bear a duty of Rs. 4 3 6 per maund, if the price of sarso is taken as Rs. 30 per maund as stated in the affidavit.
This leads to an anomaly, which, in our opinion, could hot have been intended.
Finally, it may be said that if there be any doubt, the Divisional Bench of the High Court very properly resolved it in favour of the taxpayer.
We, therefore, hold that the judgment of the High Court is correct, and dismiss these appeals with costs.
Appeals dismissed,. | The respondents carried on business of extraction of oil from oil seeds.
The appellant Municipality charged octroi duty at Rs. 4 11 0 percent ad valorem under item 44 of the schedule of goods attached to the Rules framed by the Municipality.
The respondent 's case was that they were liable to pay octroi under item 4 of the said Rules at the rate of 2 as.
per maund.
The schedule consisted of eight classes with 67 items of goods, the serial number running consecutively.
Class I was headed "Articles of food or drink or use for men or animals".
Item 4, which was in that class, read "oil seeds every description not specifically mentioned else where".
Class V was headed "Drugs, spices and gums, toilet requisites and perfumes" and item 44 which was in that class read "betel nuts, gums, spices, sarso etc.
and known as kirana" (groceries). 'I`he single Judge who heard the matter in the first instance held in favour of the appellant but the court of appeal held in favour of the respondent.
^ Held, that the view taken by the Court of appeal must be upheld.
The words not specifically mentioned elsewhere" in item 4 of the Schedule must mean mention as an oil seed.
The words "known as Kirana" in item 44 clearly indicated that sarso fell within its ambit only as a spice or as Kirana and not as an oil seed.
Although there could be no doubt that sarso as an oil seed was the same thing as Kirana, but the intention behind the bye law to charge oil seeds at a lesser rate was clear and must be given effect to. |
Civil Appeal No. 1203 of 1968.
From the order dated the 4 4 1967 of the Punjab and Haryana High Court in L.P.A. No. 104 of 1967.
O. P. Sharma, for the appellant.
H. K. Puri and M. C. Dhingra, for the respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by certificate of fitness granted by the Punjab and Haryana High Court is directed against the judgment dated April 4, 1967 of a Division Bench of that Court passed in Letters Patent Appeal No. 104 of 1967 whereby the judgment and order dated December 19, 1966 of Narula, J. (as he then was) in Civil Writ Petition No 298 of 1966 was affirmed.
361 It appears that the respondent joined the Punjab Education A Department (Class II) Service by direct recruitment as senior lecturer in 1933.
He was promoted to Punjab Education Service (Class l) on October 1, 1949.
He was given the selection grade with effect from February 15, 1956 and in due course rose to the position of Director of Public Instruction cum Secretary to the Government of Punjab, Education Department.
He proceeded on leave preparatory to retirement on March 18, 1958, on attaining the age of super annuation.
In June; 1961, he received a copy of letter No. 5137 ED I 60/9269 dated May 2, 1961 addressed by the Secretary to Government, Punjab, Education Department to the Director of Public Instruction, Punjab, Chandigarh, conveying the sanction of the Governor of Punjab to the grant to him i.e. the respondent of superannuation pension and death cun1 retirement gratuity of Rs. 417.02 np.
per mensem and Rs. 17,030.25 np in lump sum respectively under rules 5.27 and 6.13 of the Punjab Civil Service Rules, Vol.
II read with para 9(1) (a) of the New Pension Rules, 1951.
It was stated in the aforesaid letter that personal file of the respondent had been examined with reference to rule 6.4 of the Punjab Civil Service Rules, Vol.
II and Government were satisfied that his service record was not satisfactory and a cut of 10% had accordingly been made in the amount of pension and death cum retirement gratuity admissible to his.
On January, 28, 1962, the respondent submitted representations to the Chief Minister and Governor of Punjab against the aforesaid decision of the Government to apply 10% cut in his pension and death cum retirenment gratuity but the same proved abortive.
After the establishment of the Board set up to examine and remove the grievances in the matters of promotion and fixation of pension etc.
Of the Gazetted officers of the Government, the respondent addressed a representation to the said Board on September 14, 1964, against the.
aforesaid decision of the Government to apply a cut of l0% in his pension and gratuity.
On November l . 1965, the respondent received a copy of letter No. EDI 4(64) 65/22436 dated October 21, 1965, addressed by the Education Commissioner and Secretary to Government, Punjab, Education Department, to the Director of Public Instruction, Punjab, intimating that in supersession of the aforesaid letter dated May 2, 1961 of the Punjab Government, it had been decided to grant to the respondent a superannuation pension and death cum retirement gratuity of Rs. 440.18 np per mensem and Rs. 18,927.50 np in lump sum respectively under rules 5.27 and 6.13 of the Punjab Civil Service Rules, Vol.
II read with para 9(i) (a) of the New Pension Rules, 1951.
In para 3 of the letter, it was reiterated that a cut of 5% had been made in the pension admissible to the respondent as his service record which had been examined with reference to rule 6.4 of the Punjab Civil Service Rules, Vol.
II had not been satisfactory.
Aggrieved by this communication, the respondent filed in the Punjab and Haryana High Court at Chandigarh a petition under Articles 226 and 227 of the Constitution, being Civil Writ Petition No. 298 of 1966, challenging the aforesaid decision of the Punjab Government which was, as already stated, allowed by Narula, J. r(as he then was) by his judgment and order dated December 19, 1966, following the Full Bench Judgment of his Court dated October 362 25,1966,in Civil Writ Petition No. 504 of 1954 entitled Shri K. R. Erry, Retired.
Superintending Engineer, 45, Cecil Hotel, Simla vs
The State of Punjab(l).
Dissatisfied with this judgment and order, the appellants preferred a Letters Patent Appeal, being L. P. A. No. 104 of 1967 which did not meet with success.
Thereupon the appellants applied for a certificate under Article 133 of the Constitution which was granted to them.
This is how the matter is before us.
Although in the grounds of appeal, it has been urged by the appeIlants that the Full Bench decision of the High Court of Punjab and Haryana in K. R. Erry 's(l) case (supra) is not in accordance with law as superannuation pension is a bounty and is given only as an act of grace, that ground is no longer available to the appellants in view of the decision of this Court in Deokinandan Prasad vs The state of Bihar & Ors.
(2) where it was held that pension is not a bounty payable on the sweet will and pleasure of the Government and the right of a Government servant to receive it is property under Article 31(1) of the Constitution and the State cannot withhold the same by a mere executive order.
It was further held in that case that the claim to pension was also property under Article 19(1) (f) of the Constitution and was not saved by clause (S) thereof.
The learned counsel appearing for the appellants has, however, made a feeble attempt to urge that no opportunity to show cause was required to be given to the respondent before passing the order imposing the cut in his superannuation pension and death cum retirement gratuity under clauses (a) and (b) of rule 6.4 of the Punjab Civil Service Rules (Pension Rules), as the order was an administrative order and the case did not fall within the purview of Article 311 (2) of the Constitution.
It has been further contended by learned counsel for the appellants that it was the judgment of this Court in M. Narasimachar vs The State of Mysore(8), and not the judgment in State of Punjab vs The K. R. Erry & Sobhag Rai Mehta(4) which governed the present case.
We regret we are unable to accede to these contentions.
Though the impugned order imposing cut in pension and gratuity is not one of reduction in rank falling within the purview of Article 311 (2) yet there can be no doubt that it adversely affected the respondent and such an order could not have been passed without giving him a reasonable opportunity of making his defence.
Reference r in this connection may be made with advantage to the decision of this Court in K. R. Erry & Sobhag Rai Mehta 's case (supra) where after an exhaustive review of the case law bearing on the point, it was observed at page 413 as follows: "Where a body or authority is judicial or where it has to determine a matter involving rights judicially because of express or implied provision, the principle of natural justice audi alteram partem applies.
See: Province of Bombay, vs Kusaldas section Advani & Ors. ; (725), and Board of High School & Intermediate Education, U.P. (1) I.L.R. (1917) Punjab & Haryana 278.
(2) [1971] Supp.
S.C.R. 634.
(3) [1960] I S.C.R. 981: A.I.R. 1960 S.C. 247.
(4) ; 363 ALLahabad vs Ghanshyam Das Gupta & ors.
(1962) Suppl.
A (3) S.C.R. 36.] With the profiteration of administrative decisions in the welfare state it is now further recognised by Courts both in England and in this country, (especially after the decision of House of Lords in Ridge vs Baldwin ; that where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority affects, individual rights or interests, and having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard.
See: State of orissa vs Dr. (Miss) Binapani Dei & Ors.
[1967) 2 S.C.R. 625 and In re H. K. (An lnfant) In the former case it was observed as follows: C "An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay.
The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon.
He is however under a duty to give the person against whom an enquiry is held an opportunity to set up`his version or drefence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice.
For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet and the evidence in support thereof.
The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences.
It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers.
Duty to act judicially would therefore arise from the very nature of the function intended to be performed.
It need not be shown to be super added.
If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power.
If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity.
That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.
" These observations were made with reference to an authority which could be described as characteristically administrative.
At page 630 it was observed: "It is true that the order is administrative in character, but even an administrative order which involves civil 364 consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidenve in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence." "This case and the English case in re H.K. (An Infant) were spcifically referred to with approval in a decision of the constitutional bench of this Court in A. K. Kraipak & Ors. etc.
vs Union of India & Ors.
[1970] l S.C.R. 457".
The decision of this Court in M. Narasimachar 's case (supra) on which strong reliance has been placed on behalf of the appellants is of no assistance to them as the point as to whether an opportunity to show cause was to be afforded to a Government servant before applying a cut in his pension in view of the principle of natural justice embodied in the well known maxim audi alteram partem was never urged or gone into in that case.
Furthemore as pointed out by Palekar, J. while speaking for the Court in K. R. Erry & Sobhag Rai Mehta 's case (supra) the question whether pension is a bounty or property did not arise in the former case.
The present case is, in our , opinion, fully covered by the judgment of this Court in K. R. Erry & Sobha Rai Mehta 's case (supra).
For the foregoing reasons we are of the view that the impugned judgments do not suffer from any illegality and were rightly rendered.
In the result the appeal fails and is hereby dismissed with costs.
P.B.R. Appeal dismissed. | Purporting to act under r. 6.4 of the Punjab Civil Service Rules.
the State imposed a cut of 5 per cent on the pension and death cum retirement gratuity of the respondent.
who was a retired Government servant, on the ground that his service record was not satisfactory.
The High Court allowed the respondent 's writ petition challenging the decision of the Government.
Dismissing the appeal of the State.
^ HELD: The ground that superannuation pension is a bounty and is given as an act of grace is not available to the appellant.
In Deoki Nandan Prasad vs The State of Bihar, [1971] Supp.
S.C.R. 634, it was held by this Court (1) that pension is not a bounty payable on the sweet will and pleasure of the Government and the right of a Government servant to receive it is property under article 31 ( 1 ) of the Constitution.
and so the State cannot withhold the same by a mere executive order: and (2) the claim to pension is property under article 19 (1) (f) of the Constitution and is not saved by cl.
(5) of article 19.
[362C D] (2) Though the impugned order imposing the cut in pension and gratuity is not one of reduction in rank falling within the purview of article 311(2), yet there can be no doubt that it adversely affected the respondent and such an order could not have been passed without giving him a reasonable opportunity of making his defence.
[362G] State of Punjab vs K. R. Erry & Sobhag Rai Mehta [19731 2 S.C.R. 405, applied.
(3) M. Narasimachar vs The State of Mysore [1960] 1 S.C.R. 981, is inapplicable to this case because the point as to whether an opportunity to show cause was to be afforded to a retired Government servant before applying the cut in his pension in view of the principle of natural justice of audi alteram partem was never urged or gone into in that case, nor was the question whether pension was a bounty or property arose in that case.
[364 D E] |
ivil Appeal Nos. 850852 of 1988.
From the Order dated 23.10.87 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 830/83 B2 and C/3 105 & 3 105 of 87/B 2.
Order Nos.
2091 to 2093/87 B. A.N. Haksar, H.S. Anand and Mrs. M. Karanjawala for the Appellants.
G. Ramaswamy, Additional Solicitor General, Ashok K. Shrivastava and P. Parmeswaran for the Respondent.
283 The Judgment of the Court was delivered by RANGANATHAN, J.
The appellant, M/s Auto Tractors Limit ed, is a company manufacturing tractors.
For purposes of manufacture, the company imports certain parts and compo nents from abroad.
There are two notifications on the Government of India granting certain concessions from the levy of customs duty which are applicable to such goods as have been imported by.
the appellant.
The first of these, namely, Notification No. 200/79 dated 28.09.1979 (as amended from time to time) exempts components "required for the manufacture of heavy commercial motor vehicles . or of tractors" from so much of the customs duty as is in excess of 25 per cent ad valorem and the whole of the additional duty leviable there on.
The grant of the concession was subject to the fulfill ment of certain conditions specified in the notification.
The second notification was Notification No. 179/80 dated 4.9.1980 (as amended from time to time).
This notification confers an exemption in respect of parts of articles falling under specific headings in the First Schedule to the .
These admittedly included parts required for the purposes of the initial setting up or for the assem bly or manufacture of "tractors", this being an article falling under heading No. 87.01(1) of the First Schedule above referred to.
This exemption was in respect of so much of the customs duty as is in excess of the rate applicable to the said article (i.e. tractor) when imported complete.
This concession was again subject to a certificate and recommendation from certain specified authorities, one of whom is the Directorate General of Technical Development (DGTD) The relief available to the assessee under the first notification of 1979 is, apparently, larger than the one available under the second notification of 1980.
The appellant company imported three consignments.
Each of the consignments was cleared after production of a cer tificate from the DGTD in the following terms: "Certified that M/s Auto Tractors Ltd., Luc know are holding a valid Industrial Licence for the manufacture of agricultural tractors and have an approved manufacturing programme.
It is further certified that the above compo nents of agricultural tractors, which fall under ICT No. 87.01 (1) qualify for conces sional rate of import duty in terms of Cus tom 's Notification No. 179/F No. 370/99/79CUS.
I dated 4.9.1980." (underlining ours).
284 Apparently, since the certificates of the DGTD referred only to Notification No. 179/80, the appellant was granted the concession available under the said Notification.
The appel lant cleared the goods, availing itself of the said conces sion, in March, May and June 1981.
Subsequently, the appellant appears to have realised that it was entitled to the larger concession available under Notification No. 200 of 1979 and that it had erred in clearing the goods after payment of duty subject only to the smaller concession available under Notification No. 179 of 1980.
The appellant therefore filed three refund applica tions in August, September and October 1981 claiming refund to the extent of Rs. 1,55,342.50, Rs. 1,28,350.05 and Rs.6,46,415.44, being the difference between the entitle ments on concession under the two notifications in question.
It also appears that the appellant subsequently applied to the DGTD for an amendment of the original certificates to make it clear that the goods imported by the appellant were eligible for the concession under notification No. 200 of 79.
The DGTD on such application issued a certificate to the following effect: "Certified that M/s. Auto Tractors Ltd. Pra tapgarh are holding an Industrial Licence to manufacture Agricultural Tractors and have an approved manufacturing programme.
It is fur ther certified that the items listed above are components of agricultural tractors falling under ITC No. 87.01 (1) and are eligible for concessional rate of import duty under custom notification No. 200/79 and 52/81 as extended by Custom 's notification No. 81/81 and 82/81 both dated 28.3.
This supersedes the earlier duty concession certificate issued by this office vide Notifi cation No. 179/F No. 370/ 99/79 CUS.
I dated 4.9.1980 under this office letter No. DD II/5(49)/79 Ag dated 16.1.81.
" These amended certificates were also produced before the Customs authorities.
The assessee 's prayer for refund was however rejected by the Assistant Collector of Customs on the ground that the assessee had failed to produce "end use" certificates.
The assessee 's appeals to the Collector of Customs (Appeals) also failed.
There were further appeals to the CUstoms, Excise and Gold (Control) Appellate Tribunal, which by its order dated 23.10.1987, dismissed the appeals of 285 the Appellants and hence the present appeals.
The Tribunal disposed of the assessee 's claim by a short order.
It observed that the Notification No. 200/79 entitled an assessee to the concessions therein mentioned on the fulfillment of three conditions: (i) A manufacturing programme as duly approved by the Direc tor General of Technical Development (D.G.T.D.) should be produced at the time of clearance of the goods.
(ii) The list of components and goods should be produced duly certified by the D.G.T.D.; and (iii) An End use certificate from the same Directorate to be produced in clue course in regard to the consumption of goods in the manufacture of the motor vehicles or tractors, etc.
The Tribunal proceeded to observe: "The first statutory condition of the notifi cation that the manufacturing programme of the appellants as approved by the D.G.T.D. should have been produced before the Assistant Col lector at the time of clearance of the goods was not fulfilled by the appellants.
As a matter of fact at the time of clearance of the goods there was no claim even by the appel lants under Notification Nos. 200 and 201/79Cus.
Their claim at that time was under a different notification No. 179/80 Cus.
Which contained no requirement to produce an ap proved manufacturing programme.
Since the statutory wording of the notification made it imperative for the appellants that the ap proved manufacturing programme should have been produced at the time of clearance and since this condition was not fulfilled, the entitlement of the appellants to the exemption is not accepted.
The approved manufacturing programme was available all along with the appellants yet they did not produce it at the time of clearance before the Assistant Collec tor." (underlining ours) We have heard the learned counsel for the appellant as well as learned Additional Solicitor General and we are of the opinion that 286 the Tribunal has erred in denying the appellant the benefit of the Notification No. 200 of 1979.
This notification made the availability of the concession thereunder subject to three conditions of which one alone is relevant for our purposes.
The Tribunal thought that this condition was that the approved manufacturing programme should have been pro duced at the time of clearance and it has denied the asses see the benefit of the concession, even though satisfied that the approved manufacturing programme was all along available with the assessee, because such programme was not produced at the time of the clearance.
The Tribunal has committed an error in its reading of the relevant condition of the notification.
The condition is not that the manufac turing programme should be produced but that "the importer should produce evidence to the Assistant Collector of Cus toms at the time of clearance of the components or the goods that they have a programme duly approved by the Ministry of Industry and the Industrial Adviser or Additional Industrial Adviser of the Directorate General of Technical Development of the Ministry of Industry for the manufacture of such motor vehicles . . or of tractors".
In other words, the importer had only to satisfy the customs authorities that it had an approved industrial programme for the manufacture of tractors by production of a certificate from the DGTD.
It is indeed common ground before us that the second set of cer tificates issued by the DGTD constitutes sufficient evidence that would entitle the appellant to the concession under Notification No. 20)/1979.
But the argument is that the amended certificates were produced not at the time of the clearance of the goods but only much later and that there fore the appellant is not entitled to the concession under the said notification.
There is a fallacy in this approach, for, even ignoring the subsequent amendment of the certifi cates, we are of the opinion that the production of the original set of certificates at the time of clearance of the goods was sufficient compliance with the terms of the noti fication in question.
We have extracted the terms of this certificate earlier.
It is an unequivocal certificate by the DGTD that the appellant holds a valid industrial licence for the manufacture of agricultural tractors and that it also has an approved manufacturing programme.
That is all the second set also says.
There is therefore no doubt that the assessee had produced evidence, in the form of the said certificate, of the fact that the appellant had an approved industrial programme.
This was the only requirement of the notification and this requirement has, in our opinion, been complied with.
The further words in the first set of certif icates that the assessee was eligible for the concession under 1980 notification were mere surplusage.
The omission of the assessee to request the DGTD to refer to the asses see 's entitlement under the 287 1979 notification or the omission of the DGTD to refer to the assessee 's entitlement under the 1979 notification cannot take away the assessee 's rights.
The grant of conces sion depends on a certificate that the assessee had an approved manufacturing programme which is there and not the reference therein to the notifications that can be availed of by the assessee.
We are therefore of the opinion that the order of the Tribunal should be set aside and that the assessee should be held entitled, in respect of the three consignments referred to earlier, to the concession available under Notification No. 200 of 79.
We direct ac cordingly.
The appeals are allowed but having regard to the circumstances we make no order as to costs.
P.S.S Appeals allowed. | Customs Notification No. 200/79 dated 28.9.1979 exempts components required for the manufacture of heavy commercial motor vehicles or of tractors from customs duty in excess of 25 per cent ad valorem and whole of the additional duty leviable thereon.
Notification No. 179/ 80 dated 4.9.1980 exempts components required for the purpose of initial setting up or for the assembly or manufacture of tractors, an article falling under Heading No. 87.01(1) of the First Schedule of the Act from so much of the customs duty as is in excess of the rate applicable to the said article when imported complete.
The appellant company imported three consignments of components of agricultural tractors.
The Directorate General of Technical Development issued certificate in terms of notification No. 179/80 stating that the appellant company was holding a valid industrial licence for the manufacture of agricultural tractors and have an approved manufacturing programme.
The appellant cleared the goods availing itself of the said concession.
Having realised later that it was entitled to the larger concession available under Notifica tion No. 200 of 1979, it filed three applications in respect of the said consignments claiming refund to the extent of the difference between the entitlements to concession under the two notifications.
The DGTD issued certificates in terms of notification No. 200 of 1979 in its favour.
The Assistant Collector of Customs rejected assessee 's prayer on the ground that it had failed to produce end use certificate.
Its appeals before the Collector of Customs (Appeals) failed.
The Customs, Excise and Gold (Control) Appellate Tribunal dismissed the appeal on the ground that the appellant did not produce the approved manufacturing programme at the time of clearance of the goods as required under Notification No. 200 of 1979.
282 In these appeals it was contended for the respondents that since the amended certificates were not produced at the time of clearance but only much later the assessee was not entitled to the concession under Notification No. 200 of 1979.
Allowing the appeals, HELD: 1.
The assessee is entitled to the concession available under Notification No. 200 of 1979.
[287B C] 2.1 The grant of concession depends on production of evidence by the importer to the Assistant Collector of Customs at the time of clearance of the components or the goods that they have a programme duly approved by the Minis try of Industry and the Industrial Adviser or Additional Industrial Adviser of the Directorate General of Technical Development of the Ministry of Industry for the manufacture of such motor vehicles or of tractors and not on the refer ence in the certificates to the notifications that can be availed of by the assessee.
[286C D; 287B] 2.2 In the instant case, the assessee had produced unequivocal evidence in the form of original set of certifi cates from DGTD at the time of clearance of the goods of the fact that the appellant held a valid industrial licence for the manufacture of agricultural tractors and that it also had an approved manufacturing programme.
That was sufficient compliance with the terms of the notification in question.
The omission of the assessee to request the DGTD to refer to the assessee 's entitlement under the 1979 notification or the omission of the DGTD to refer to the assessee 's entitle ment under the 1979 notification cannot take away the asses see 's rights.
The order of the Tribunal is, therefore, set aside.
[286F H; 287A] |
Civil Appeal No. 1432 of 1968, (From the judgment and decree dated the 26 10 1959 of the Patna High Court in appeal from original decree No. 280 of 1953.) Sarjoo Prasad with D. Goburdhun, for the appellants.
V. section Desat with D. P. Mukherjee for respondents 3, 4, S, 6(a) 14 and is.
Ex parte, for respondents 1, 2, 6, 7 to 13 & 16 17.
The Judgment of the Court was delivered by KHANNA, J.
The plaintiff appellants field a suit in the Court of Subordinate Judge against 41 defendants for a declaration of their title to land measuring 142 bighas, 17 kathas described in the schedule to the plaint situated in village Shivpur Diar in District Shahbad.
Prayer was also made for delivery of possession of the land and for mesne profits amounting to Rs. 4,100.
The trial court dismissed the suit in respect of land measuring 28.36 acres out of plot No. 3863/ 41.
Suit in respect of the remaining land was decreed.
The plaintiffs were also held entitled to recover mesne profits from defendants who might be found in possession of the land decreed.
On appeal by defendants 3, 7, 12 and 14 the Patna High Court accepted the appeal and dismissed the suit in its entirety.
The plaintiffs have come up in appeal to this Court against the judgment and decree of the High Court on certificate granted under article 133 (1) (a) of the Constitution.
Village Shivpur Diar consists of five Mahals, Shivpuur Diar Nambari, Shivpur Diar Gangbarar Shurnali, Shivpur Diar Gangbarar Janubi, Shivpur Diar Sarju Barar and Shivpur Diar Naubarar.
Each of the two Mahals, Shivpur 'Diar Gangbarar Chummily and Shivpur Diar Nambari has 18 pattis.
Proprietorship rights in each patti were calculated as 16 annas.
One Brahmdeo Singh had a share of S annas 4 pies in patti Bhrighunath Singh in the above Mahals.
He also held different shares in the other pattis of the two Mahals.
Brahmdeo Singh mortgaged with possession his share in the said lands in favour of Sitaram Sahu and Sheogulam Sahu by means of several mortgage deeds.
As the mortgagees were dispossessed from some of the lands mortgaged in their favour, they filed a suit for recovery of the mortgage amounts.
Final decree was awarded in that suit on June 13, 1925.
In execution of that decree proprietary interest of Brahmdeo Singh in Mahal Shivpur Diar Nambari and Mahal Shivpur Diar Gangbarar Shumali were auctioned on June 15, 1932 and was purchased by Maine Kuer, widow of Sitaram Sahu mortgagee.
Sale certificate was granted to Maine Kuer auction purchaser on February 26, 1935.
She got delivery of possession of the land sold in her favour on March and 20, 1935.
On November 9, 1936 Shea Prasad Singh, who held general power of attorney from Maina Kuer, executed a patta (lease) for seven years in respect of 135 bighas, 15 kathas out of the land purchased by Maina Kuer in favour of Mahadeo Rai and others.
On September 27, 1940 Sheo Prasad Singh 557 executed on behalf of Maina Kuer a deed for perpetual lease of land measuring 134 bighas, 17 kathas out of the land purchased by her in favour of plaintiffs 1 to 9, 14, 16 to 18 and father of plaintiffs 10 to 13.
Three days later on September 30, 1940 Sheo Prasad Singh executed another deed for perpetual lease in respect of the remaining land measuring 8 bighas in favour of plaintiff No. 15.
On May 16, 1941 Mahadeo Rai and others, in whose favour lease deed of the land had been executed for seven years, relinquished their rights under the lease in favour of the plaintiffs.
On July 13, 1942 Maina Kuer sold her proprietary interest which she had acquired under the auction sale lo Rajendra Prasad Singh and others.
The plaintiffs in whose favour deed for perpetual lease of the land purchased by Maina Kuer had been executed filed the present suit in January 1950 against the defendants, on the allegation that defendants 1 to 18 had taken wrongful possession of the land.
Prayer was also made, as mentioned above, for recovery of Rs. 4,100 as mesne pretty.
It was also mentioned by the plaintiffs that proceedings under section 145 of the Code of Criminal Procedure in respect of the land in dispute had been initiated but as those proceedings were dropped the plaintiffs had to seek redress by means of the present suit.
The suit was resisted by the defendants who denied the title of the plaintiffs or Maina Kuer to the land in dispute.
It was also stated that the said land had not been partitioned.
Plea was also taken that the defendants had all along remained in possession of the land and the plaintiffs suit was barred by limitation.
The trial court dismissed the suit in respect of 28.36 acres of land on the ground that the defendants had built their houses on that land.
The plaintiffs suit was held to be barred in respect of that land on account of the doctrine of waiver and acquiescence.
The suit in respect of the remaining land, as already mentioned, was decreed.
on appeal the High Court held that the plaintiffs had failed to prove their title to the land in dispute.
The land in dispute, it was held, was not shown to be the same as had been purchased by Maina Kuer in auction sale.
The plaintiffs suit for possession of the land was also held to be barred by limitation.
In appeal before us Mr. Sarjoo Prasad on behalf of the appellants had made a number of contentions, but in our opinion, it is not necessary to go into all of them for the appeal is liable to be dismissed on the short ground that the plaintiff appellants have failed to establish that the land in dispute is the same as had been purchased in auction by Maina Kuer as per sale certificate dated February 26, 1935 and was thereafter leased on her behalf in favour of the appellants as per two lease deeds dated September 27 and 30, 1940.
It is not disputed that if on the above view of the matter the appellants are found to have not proved their title to the land in dispute, the question of going into other contentions would not arise.
Mr. Sarjoo Prasad, however, sub mist that the defendant respondents did not dispute in the trial court that the land in dispute was the same which had been purchased by Maina Kuer in auction sale and had been leased in favour of the 558 plaintiffs.
We find it difficult to accede to this submission.
In para 15 of their written statement defendants 2, 3, 12 and 14 stated as under: "That Maina Kuer was not ' at all auction purchaser of the property in dispute nor was she a proprietor nor Zamindar nor was she at any time in possession and occupation of the lands in dispute.
The allegation of the plaintiff in respect of these facts are altogether wrong." In the same language is couched para 15 of the written statement of defendant No. 7 who filed a separate written statement.
It was incumbent in view of the averments in para 15 of the written statements for the plaintiff appellants to establish by clear evidence that the land in dispute was the same which had been purchased in auction sale by Maina Kuer and had been subsequently leased by her in favour of the appellants.
The learned Judges of the High Court discussed the or and documentary evidence which had been adduced in the case and came to the conclusion that there was no cogent material to show that the land in dispute was the same which and been purchased by Maina Kuer and had been leased by her in favour of the appellants.
After hearing Mr. Sarjoo Prasad we find no sufficient ground to take a different view.
The land which had been purchased by Maina Kuer in the auction sale as per sale certificate dated February 26, 1935 was situated in Bihar district in the State o Uttar Pradesh on the left bank of the Ganges.
The land which is the subject matter of the present that land in situated in Shahbad district in the State of Bihar on the right bank of the Ganges.
Although the land is subject to river action, the onus to prove that the land in dispute in Shahbad district represents the land which got submerged as a result of the river action in Bihar district was upon the plaintiff appellants.
The appellants have failed as held by the High Court, to discharge this onus.
Mr. Sarjoo Prasad took us through the evidence of Ram Pachise Lall (DW 3) and Nanku Lall Singh (DW 5), but the evidence of these witnesses is far from proving that the land in dispute is the same as was purchased by Maina Kuer.
The evidence of Raghunath Prasad (PW 6), to which also passing reference was made, is not sufficient to connect the land in dispute with sale certificate dated February 26, 1935.
Prayer has also been made by Mr. Sarjoo Prasad for the remand of the case to the trial court as the plaintiff appellants were laboring under the impression that the defendant respondents had not disputed that the land in dispute was the same as had been purchased by Maina Kuer.
It is urged that because of that impression, material which could have clearly proved that the land in dispute was the same as had been purchased by Maina Kuer could not be brought on the record.
We find it difficult to accede to this prayer.
As already pointed out above, the contesting defendants clearly stated in their written state meets that Maina Kuer was not the auction purchaser of the land in dispute.
In view of that unequivocal averment, there was no vaIid 559 basis for the assumption or the impression under which plaintiff appeliants are stated to have labored.
Apart from that, we find that the suit out of which the present appeal has arisen was filed as long ago as January 1950.
From the title of the appeal we find that many of the original plaintiffs and defendants have during this period of more than a quarter of century departed and are no more in the land of the living, having bowed as it were to the inexorable law of nature.
They are now represented by their legal representatives.
To remand the suit to the trial court would necessarily have the effect of keeping alive the strife between the parties and prolonging this long drawn litigation by another round of legal battle in the trial court and thereafter in appeal.
It is time, in our opinion, that we draw the final curtain and put an end to this long meandering course of litigation between the parties.
If the passage of time and the laws of nature bring to an end the lives of men and women, it would perhaps be the demand of reason and dictate of prudence not to keep alive after so many years the strife and conflict started by the dead.
To do so would in effect be defying the laws of nature and offering a futile resistance to the ravage of time.
If human life has a short span, it would be irrational to entertain a taller claim for disputes and conflicts which are a manifestation of human frailty.
The courts should be loth to entertain a plea in a case like the present which would have the effect of con damning succeeding generation of families to spend major part of their lives in protracted litigation.
It may be appropriate in the above context to reproduce what was said in the case of Sant Narain Mafhur Ors.
vs Rama Krishna Mission & ors.(1): It is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its embers to shoulder for a further length of time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature.
one is tempted in this context to refer to the observations of Chief Justice Crete in a case concerning peerage claim made after the death without issue of the Earl of oxford.
Said the learned Chief Justice: Time hath its revolutions; there must be a period and an end to all temporal things an end of names, and dignities and whatsoever is terrne, and why not of De Vere? For where is Bohun? Where is Mortimer ? Where is Mortimer ? Why, which is more and most of all, where is Plantagenet ? They are all entombed in the urns and sepulchers of mortality.
" What was said about the inevitable end of all mortal beings, however eminent they may be, is equally true of the affairs of mortal beings, their disputes and conflicts, their ventures in the field of love and sport, their achievements and failures for essentially they all have a stamp of mortality on them." (1) A.T.R.1974 S.C.2241. 560 one feels tempted to add that if life like a dome of many colored glass stains the white radiance of eternity, so do the doings and conflicts of mortal beings till death tramples them down.
The appeal fails and is dismissed but in the circumstances without costs.
P.H.P Appeal dismissed. | The plaintiff appellants filed a suit against defendants for a declaration of their title to the land in question admeasuring 142 bighas.
The trial Court dismissed the suit in respect of land admeasuring 28 acres and decreed the suit in respect of the remaining land.
The plaintiffs ' suit was held to be barred in respect of that land on account of the doctrine of waiver and acquiescence.
The plaintiffs were also held entitled to recover mesne profits.
On an appeal filed by some of the respondents, the High Court accepted the appeal and dismissed the suit in its entirety.
The High Court held that it was not shown that the disputed land was the same as had been purchased by Mina Kuer in auction sale.
The High Court also held that the plaintiffs ' suit for possession was barred by limitation.
The appellants contended.
(1) The respondent did not dispute that the suit land was the same which was purchased by Mina Kuer as per sale certificate dated 26 2 1935.
(2) In any case the matter may be remanded for determining the above issdue.
Dismissing the appeal, ^ HELD: (1) The appellants have failed to establish that the land in dispute is the same as has been purchased in auction by Mina Kuer as per sale certificate dated 26 2 1935.
The contention of the appellant that the respondents did not dispute that the suit land is the same as the one purchased by Mina Kuer is not correct.
The respondents did deny this fact in their written statement.
The land which is the subject matter of the present litigation is situate in the State of Bihar on the right bank of the Ganges.
Although the land is subject to river action, the onus to prove that the land in dispute in Bihar State represents the land in U.P. which got submerged as a result of river action was upon the appellants.
The appellants have failed to discharge this onus.
[557F, H, 558A, E] (2) The prayer of the appellants for remand of the case is rejected because there was no valid basis for the assumption of the appellants that the appellants did not dispute the identity of the land.
The suit was filed as long ago as in January, 1950.
During the pendency of this litigation many of the original plaintiffs and defendants have died and are now represented by their legal representatives.
It is time that we draw the final curtain and put an end to this long course of litigation between the parties.
If the passage of time and laws of nature bring to an end the lives of men and women it would perhaps be the demand of reason and dictate of prudence not to keep alive after so many years the strife and conflict started by the dead.
To do so would in effect be defying the laws of nature and offering a futile resistance to the ravage of time.
If human life has short span, it would be irrational to entertain a taller claim for disputes and conflicts which are a manifestation of human frailty. 'the Courts should be loth to entertain a plea in a case like the present which would have the effect of condemning succeeding generation of families to spend major part of their lives in protracted litigation.
[558G H, 559A D] Sant Narain Mathur vs Rama Rrishna Mission ; reiterated. |
ivil Appeal Nos.
980 982 of 1971.
Appeals by Special Leave from the Judgment and Order dated the 9 2 70 of the Andhra Pradesh High Court in case Referred No. 1 of 1967.
R. Vasudev Pillai and P. K. Pillai for the Appellant.
R. M. Mehta and section P. Nayar, for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would disposed of three civil appeals Nos. 980 to 982 of 1971 which have been filed by special leave against the judgment of the Andhra Pradesh High Court on a reference under section 66 of the Indian Income tax Act, 1922 (hereinafter referred to as the Act) answering besides two other questions with which we are not concerned, the following question against the assessee appellant and in favour of the revenue: "Whether, on the facts and in the circumstances of the case, the sale proceeds were received from Government of India in British India?" The assessee company is a public limited company registered in what was at the relevant time the Nizam 's Dominion (hereinafter referred to as Hyderabad State) outside British India.
The matter relates to assessment years 1945 46, 1946 47 and 1947 48 for which the relevant accounting period ended on October 5, 1944, October 5, 1945 and October 5, 1946 respectively.
The assessee company had a textile mill at Warangal in Hyderabad State.
During the Second World War the company supplied textile goods to the Department of Supplies.
Government of India under what was known as "Panel System".
The Government used to place bulk purchase orders with the company for the supply to goods according to specifications.
The delivery of the goods used to be made by the company FOR Warrangal.
After the goods were despatched, the assessee company submitted bill in form W.S.B. 116 giving details of the supply.
The prescribed form contained the following receipt: "Received Payment One anna Please pay by Cheque to Self stamp on ============== original Bankers copy only.
on Bank at. . .
Treasury Contractor 's Signature Contractor 's signature " The assessee used to enter the words "Hyderabad (Dn)" in the blank space after the word "at".
On the back of the bulk purchase order form, there were instructions that the payment was to be made by the Controller of Supply Accounts Bombay.
The Government of India issued general instructions to all textile mills in the Indian States that all payments were to be made "by cheque on Government Treasury in British India, or alternatively on a branch in British India, which 647 transacts Government business of the Reserve Bank of India".
All payments were made on behalf of the Government of India by cheques, which were sent to the assessee by post.
Some of these cheques were drawn on banks in British India and the others on banks in Hyderabad State.
All the cheques received from the Government, including those drawn on banks in British India, were collected through the assessee 's bankers in Hyderabad State.
In making the assessment the Income tax Officer held that the sale proceeds in respect of cheques, which had been drawn on banks in British India, were received by the assessee in British India and as such the assessee was liable to tax under the Act.
In respect of cheques drawn on the banks in Hyderabad State, the Income tax Officer held that no income had accrued in British India and was, therefore, not subject to assessment under the Act.
The assessee took the matter in appeal to the Assistant Commissioner claiming that no portion of the income had been received in British India.
The Appellate Assistant Commissioner held that the entire sale proceeds had been received in British India and he, therefore, passed an order enhancing the assessed amount.
On further appeal by the assessee the Income tax Appellate Tribunal upheld the order of the Assistant Commissioner.
At the request of the assessee the question reproduced above along with two other questions relating to the power of the Appellate Assistant Commissioner to enhance the amount of assessable income as also the question of limitation were referred to the High Court.
The High Court answered the question reproduced above as well as the other two questions with which we are not concerned, in favour of the revenue and against the assessee.
So far as the question reproduced above is concerned, the High Court took the view that the matter was concluded by the decision of this Court in the case of Indore Malwa United Mills Ltd. vs Commissioner of Income tax(1).
In appeal before us Mr. Vasudev Pillai on behalf of the appellant has assailed the judgment of the High Court and has contended that on the facts and circumstances of the case, the sale proceeds should be held to have been received by the assessee from the Government of India not in British India but in Hyderabad State.
There is, in our opinion, no force in this contention.
It would appear from the resume of facts given above that all payments were made on behalf of the Government of India by cheques and those cheques were sent by post from British India to the assessee.
The facts of the case and the course of dealings show that it was the understanding between the Government of India and the assessee company that the payment would be made on account of the goods supplied by the assessee by cheques.
The cheques were in the very nature of things to be sent from British India by post as that is usual and normal agency for transmission of such articles.
As the cheques were sent to the assessee company on behalf of the Government of India by post from British India in pursuance of an understanding between the parties, the payment to the assessee shall be treated to have 648 been made in British India.
The post office in such cases is taken to be an agent of the assessee company.
The position in law is that in the absence of a request by the creditor or an agreement between the parties regarding the sending of money by cheque by post, the mere posting of cheque would not operate as delivery of the cheque to the creditor.
Where, however, a cheque is sent by post in pursuance of an agreement between the parties or a request by the creditor that the money be sent by cheque by post, the post office would be treated as the agent of the creditor for the purpose of receiving such payment.
The agreement or request need not, however, be express; it may also be implied to be spelt out from the facts and circumstances of the case.
The question of law arising in this case is not res integra and is concluded by three decisions of this Court.
In Commissioner of Income tax, Bombay South, Bombay vs Ogale Glass Works Ltd. the assessee, a non resident company carrying on business of manufacturing certain articles in the State of Aundh, secured some contract for the supply of goods to the Government of India.
The contract provided that "unless otherwise agreed between the parties payment for the delivery of the stores will be made on submission of bills in the prescribed form in accordance with instructions given in the acceptance of tender by cheque on a Government Treasury in India or on a branch of the Reserve Bank of India or the Imperial Bank of India transacting Government business.
" The assessee submitted the bill in the prescribed form and wrote on it as follows: "Kindly remit the amount by a cheque in our favour on any bank in Bombay.
" The assessee received cheques drawn on the Bombay branch of the Reserve Bank of India.
The assessee realised the amount of the cheques through the Aundh Bank.
It was held that the posting of cheques in Delhi in law amounted to payment in Delhi.
It was further observed that the circumstances of the case revealed an implied agreement under which cheques were accepted unconditionally as payment.
Even if the cheques, according to this Court, were taken conditionally the cheques having been not dishonoured, the payment related back to the dates of the receipt of the cheques and in law the dates of payment were the dates of the delivery of the cheques.
Income, profits and gains in respect of the sales made to the Government of India were accordingly held to have been received by the assessee in British India.
Dealing with the question of the understanding between the parties in that case, this Court observed: "According to the course of business usage in general to which, as part of the surrounding circumstances, attention has to be paid, under the authorities cited above, the parties must have intended that the cheques should be sent by post which is the usual and normal agency for transmission of such articles and according to the Tribunal 's findings they were in fact received by the assessee by post." The above case been sought to be distinguished by Mr. Pillai on the ground that in that case the assessee had written on the bill form the 649 words: "kindly remit the amount by cheque in our favour on any bank in Bombay.
" It is said that the bill submitted by the appellant contained no such writing.
A similar argument was advanced on behalf of the assessee company in the case of Shri Jagdish Mills Ltd. vs Commissioner of Income tax(1) and it was held that the absence of such an express request would not make material difference if the course of dealings between the parties showed an implied request by the assessee company to send the cheques by post.
In Jagdish Mills ' case the assessee company was incorporated in Baroda State outside British India.
The company accepted orders for the supply of goods F.O.R. Baroda to the Government of India.
The manufacture and delivery of goods took place at Baroda.
The company after effecting delivery of the goods submitted bills in the prescribed form which contained the sentence that "Government should pay the amount due to the company by cheque.
" There was, however, nothing in the bills to show in what way the payment by cheque was to be made.
The company thereafter received at Baroda, in payment of its bills, cheques through post from the Government drawn on a Government Treasury or on a branch of the Reserve Bank of India or the Imperial Bank of India transacting Government business.
The company endorsed the cheques and sent them either to Bombay or Ahmedabad in its banking account at such places.
It was held that according to the course of business usage in general which was followed in the case, the parties must have intended that the cheques should be sent by post which was the usual and normal agency for transmission of such articles.
An implied request by the company to send the cheques by post from Delhi was accordingly inferred.
The post office was held to have become the agent of the assessee for the purpose of receiving those payments.
This Court consequently came to the conclusion that the amounts of cheques were received by the assessee in British India and as such were liable to be taxed under section 4(1) (a) of the Act.
The facts of the case of Indore Malwa United Mills Ltd. vs Commissioner of Income tax (supra) were similar to those of the present case.
In that case the assessee, a non resident, carried on the business of manufacturing textile goods at Indore, outside British India.
The assessee supplied textile goods to the Stores Department of the Government of India under orders placed by the latter with the assessee at Indore.
The delivery of the goods was F.O.R. Indore.
The bills contained the following instruction for payment: "Please pay by cheque to self on a bank at Indore.
" The Government of India drew cheques in favour of the assessee for the amounts of the bills on the Reserve Bank of India, Bombay and sent them by post to the assessee at Indore.
The assessee deposited the cheques in its account with the Imperial Bank of India, Indore and on clearance, the amounts were credited to that account.
Question which arose for decision was whether the assessee company was liable to pay tax in the taxable territories on the ground that the sale proceeds, which included the profit element therein, were received in the taxable territories.
It was held that if by an agreement, express or implied, between the creditor and the debtor or 650 by request, express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque, and to send the cheque to the creditor by post, the post office becomes the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him.
It was also held that there was an implied agreement between the parties that the Government of India would send the cheque by post to the assessee.
The sale proceeds which included the profit element therein were, in the opinion of this Court, received in British India where the cheques were posted, and the profits in respect of the sales were taxable under section 4(1) (a) of the Act.
Mr. Pillai has referred to the case of Commissioner of Income tax, Bihar & Orissa vs Patney & Co. This case cannot be of much help because in that case the assessee had expressly required the commission to be paid at Secunderabad outside British India.
It was because of this circumstance that this Court found that the rule laid down in Ogale Glass Works ' case (supra) did not apply and the money was not received by the assessee in British India.
So far as the present case is concerned it has already been pointed out above, that the circumstances of the case and the course of dealings between the parties show that there was an implied agreement or understanding between the parties that the money would be sent to the assessee by cheques posted from British India.
The High Court, in our opinion, rightly decided the question reproduced above against the assessee appellant and in favour of the revenue.
The appeals consequently fail and are dismissed but in the circumstances without costs.
V.P.S. Appeals dismissed. | The Government of India was placing bulk purchase orders with the assessee company, a textile mill, which had, during the assessment years 1945 46, 1946 47 and 1947 48, its registered office in the Hyderabad State outside British India.
After the despatch of the goods, the assessee was submitting its bill in the prescribed form which also contained the receipt.
The receipt had the words 'Please pay by cheque to self/Banker on Bank/Treasury at. . ' and the assessee used to enter the words 'Hyderabad (Dn).
in the blank space after 'at '.
But on the back of the bulk purchase order form, there were instructions that the payment was to be made by the Controller of Supply Accounts, Bombay, and the Government of India had also issued general instructions to all textile mills in the Princely States that all payments were to be made 'by cheque on Government Treasury in Br.
India, or alternatively on a branch in Br.
India, which transacts Government business of the Reserve Bank of India.
All payments were made on behalf of the Government of India by cheques which were sent to the assessee by post.
Some of the cheques were drawn on banks in Br.
India and others on banks in the Hyderabad State.
^ HELD: The sale proceeds should be held to have been received by the assessee from the Government of India in British India and not in Hyderabad State, and hence were subject to Indian income tax.
[647F G] In the absence of a request by the creditor or an agreement between the parties regarding the sending of money by cheque by post, the mere posting of the cheque would not operate as delivery of the cheque to the creditor.
Where, however, a cheque is sent by post in pursuance of an agreement between the parties or a request by the creditor that the money be sent by cheque by post, the post office would be treated as the agent of the creditor for the purpose of receiving such payment.
Such an agreement or request need not be express and may be implied from the facts and circumstances.
[648A C] The facts of the case and the course of dealings show that it was the understanding between the Government of India and the assessee that the payment would be made on account of goods supplied by the assessee, by cheques.
The cheques were in the very nature of things to be sent from British India by post as that is the usual and normal agency for transmission.
As the cheques were sent to the assesseee on behalf of the Government of India by post from British India in pursuance of an understanding between the parties, the payment to the assessee shall be treated to have been made in British India to the agent of the assessee.
[647G 648A] Indo re Malwa United Mills Ltd. vs Commissioner of Income tax, ; Commissioner of Income tax, Bombay South, Bombay vs Ogale Glass Works Ltd. and Shri Jagdish Mills Ltd. vs Commissioner of Income tax, , followed.
Commissioner of Income tax, Bihar & Orissa vs Patney & Co. , distinguished. |
Civil Appeal No. 847 of 1974.
Appeal by Special Leave from the Judgment and Decree dated the 3 10 72 of the Mysore High Court in Regular Second Appeal No. 729 of 1967.
section section Javali and H. K. Puri, for the Appellant.
Narain Nettar, for the Respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is directed against the judgment and decree dated October 3, 1972, passed by a Single Judge of the Mysore High Court whereby allowing the respondent 's second appeal No. 729 of 1967, he set aside the appellate judgment and decree dated April, 18, 1967 passed by Civil Judge, Belgaum, declaring the order dismissing the appellant from service as illegal and ultra vires.
Facts material for the purpose of this appeal are: The appellant herein was a Police Constable attached to Khade bazar Police Station at Belgaum in 1960.
In the small hours of the morning of November 17, 1960, the Cantonment Police intercepted a tonga transporting smuggled illicit liquor in four tubes from Devi Temple to the cantonment area with the intention of disposing of the same to bootleggers.
After registering a case under section 66(b) of the Bombay Prohibition Act, the Cantonment P.S.I. proceeded against the tonga driver and another person who was found following the tonga, in a criminal court of competent jurisdiction and succeeded in securing their conviction for the aforesaid offence.
On November 18, 1960, the Cantonment P.S.I. submitted a confidential report about the incident to the Superintendent of Police, Belgaum, and brought to the notice of the latter 915 that some police constables including the appellant who were newly recruited and attached to different police stations in Belgaum were indulging in smuggling illicit liquor.
On receipt of this report, the Superintendent of Police directed the P.S.I. Khade bazar police station, to record the statements of three constables namely M. Y. Akki, Waman Mangesh, and Nishikant Shimaji Satyannawar.
Pursuant to these directions, the P.S.I. recorded the statements of the aforesaid police constables in the presence of the Superintendent of Police.
The statement of Nishikant and Akki, constables disclosed their own and six other police constables, complicity in the aforesaid smuggling activity.
The Superintendent of Police thereupon suspended the appellant and the other six constables and ordered the S.D.P.O. to hold a departmental enquiry against them.
The Superintendent of Police also transferred all the seven deliquents from Belgaum and directed that they would not leave their new stations without his permission except for purposes of or in connection with the department enquiry.
Though the appellant sought permission to stay at Belgaum during the period of his suspension, his request was refused.
As the appellant did not plead guilty to the charge framed against him, the Enquiry Officer proceeded to hold the enquiry against him in accordance with the rules contained in the Bombay Police Manual, 1950.
On the conclusion of the enquiry during the course of which a number of witnesses were examined both by the prosecution and the defence, the Enquiry Officer reported to the Superintendent of Police on November 10, 1961, that the charge against the appellant was not established.
He, however, recommended that the appellant should be administered a severe warning as he was convinced that he had been guilty of misconduct and dereliction of duty.
The Superintendent of Police did not agree with the findings of the Enquiry Officer and directed him to examine police constable Akki whose statement had been recorded before the charge was framed against the appellant.
Akki was accordingly examined but he resiled from his earlier statement.
The Enquiry Officer in the course of his second report dated November 30, 1961, submitted to the Superintendent of Police that no fresh evidence was forthcoming against the appellant.
He, however, stuck to his former recommendation regarding administration of severe warning to the appellant.
The Superintendent of Police again disagreed with the report of the Enquiry Officer and found that there was sufficient evidence against the appellant to prove his guilt.
Accordingly he issued a notice to the appellant on December 20, 1961, calling upon the latter to show cause why he should not be dismissed from service.
Not feeling satisfied with the explanation tendered by the appellant, the Superintendent of Police passed an order on February 9, 1962, dismissing the appellant from service.
Aggrieved by this order, the appellant went up in appeal to the D.I.G. of Police but was unsuccessful.
He also took the matter in revision to the Government but there also he failed.
Eventually he brought a suit in the Court of the IInd Additional Munsiff, Belgaum, challenging the aforesaid orders of his dismissal and claiming the arrears of his pay.
916 The principal contentions raised by the appellant were two fold: (1) That no reasonable opportunity was given to him to dedend himself and (2) that the Superintendent of Police was wrong in relying on the statements of the witnesses recorded before the charge was framed against him and in re assessing the evidence contrary to the conclusion arrived at by the Enquiry Officer who held that there was no evidence to substantiate the charge against him.
After a regular trial, the suit was dismissed by the Munsiff, Belgaum.
On appeal, the Civil Judge, Belgaum reversed the judgment of the Munsiff and decreed the suit.
Aggrieved by the decision of the Civil Judge, Belgaum, the State Government preferred an appeal to the High Court of Mysore which, as stated above, was allowed.
Counsel for the appellant has, while supporting the appeal, vehemently contended that the aforesaid judgment and decree of the High Court cannot be sustained as the appellant was deprived of a reasonable opportunity of defending himself during the course of the departmental enquiry.
Elaborating his submission, counsel has urged that as restrictions were placed on the movement of the appellant and he was not permitted to remain at Belgaum during the period of his suspension and evidence of some of the prosecution witnesses was recorded in his absence, there has been a gross violation of the provisions of Article 311 of the Constitution and the principles of natural justice.
Counsel has further contended that the impugned judgment and decree cannot also be sustained as there is no cogent and legal evidence to establish the charge against the appellant.
It is well settled that whether a delinquent had a reasonable opportunity of effectively defending himself is a question of fact depending upon the circumstances of each case and no hard and fast rule can be laid in that behalf.
In the instant case, the order restricting the movement of the appellant on which strong reliance has been placed on his behalf for assailing the impugned order of his dismissal was not such as can be said to have deprived him of a reasonable opportunity of making his defence.
The order, it would be noted, did not place any embargo on the appellant 's going to Belgaum for the purpose of and in connection with the departmental enquiry.
In fact the appellant fully participated in the enquiry held at that place.
He also made full use of the assistance of a police man (called police friend) provided to him to conduct the defence on his behalf.
The police friend appeared on his behalf before the Enquiry Officer and cross examined all the witnesses whom the prosecution examined or tendered for cross examination.
He was also furnished with copies of the statements of the three police constables recorded by the Cantonment P.S.I. and allowed an adequate opportunity of cross examining them.
There is also nothing to indicate that the appellant 's request for an opportunity to examine any witness in his defence was refused.
In fact, he did examine some witnesses in his defence.
In view of all this, it cannot be held that a reasonable opportunity of defending himself as contemplated by Article 311 of the Constitution was denied to the appellant.
917 Regarding the appellant 's contention that there was no cogent evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re examine and ressess the evidence adduced in domestic enquiries of the nature with which we are at present concerned.
Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark.
It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required.
It is true that in the instant case, reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act.
That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross examined all of them with the help of the police friend provided to him.
It is also significant that Akki admitted in the course of his statement that he did make the former statement before the P.S.I. Khade bazar police station, Belgaum, on November 21, 1961 (which revealed appellant 's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so.
The present case is, in our opinion, covered by a decision of this Court in State of Mysore vs Shivabsappa(1) where it was held as follows: "Domestic tribunals exercising quasi judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence.
They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedures which govern proceedings in court.
The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it.
What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation.
When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross examining him.
The position is the same when a witness is called, the statement given previously by him behind the back of the party is put 918 to him, and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross examine him.
To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance.
They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross examine them." Following the above decision, this Court held in State of U.P. vs Om Prakash(1) that the enquiry is not vitiated if the statements taken at the preliminary stage of enquiry are made available to the delinquent officer and he is given an opportunity to cross examine the witnesses in respect of those statements.
The decision of this Court in Ghanshyam Das Shrivastava vs State of Madhya Pradesh(2) on which strong reliance is placed is clearly distinguishable and is not at all helpful to the appellant.
In that case the appellant was deprived of the opportunity to defend himself by participating in the enquiry which was held at Jagdalpur, 500 kilometres away from Rewa where the appellant was residing on account of paucity of funds resulting from non payment of subsistence allowance during his suspension.
For the foregoing reasons, we do not find any force in the contention of counsel for the appellant that there was no evidence on the record which could justify the appellant 's dismissal from service.
Both the contentions raised on behalf of the appellant being without any substance, we find ourselves unable to interfere with the judgment and decree passed by the High Court.
The appeal accordingly fails and is dismissed but in the circumstances of the case without any order as to costs.
P.H.P. Appeal dismissed. | The appellant was a Police Constable.
Some persons were convicted for transporting smuggled illicit liquor under section 66(b) of the Bombay Prohibition Act.
The Police Sub Inspector submitted a Confidential report on that incident to the Superintendent of Police and pointed out that some Police Constables including the appellant were indulging in smuggling illicit liquor.
The Superintendent of Police directed the P.S.I. to record the statements of three constables, Akki, Waman and Nishikant.
The Police Sub Inspector, therefore, recorded the statements of those constables in the presence of the Superintendent of Police.
The statements of Akki and Nishikant disclosed their complicity as well as complicity of six other Police constables including the appellant D.S.P. ordered the S.D.P.O. to hold a departmental enquiry against them.
They were all transferred from Belgaum and directed not to leave their new station without the permission of the D.S.P. except for purposes of or in connection with departmental enquiry.
The appellant did not plead guilty.
The Enquiry Officer held enquiry.
A number of witnesses were examined both by the prosecution and the defence.
The Enquiry Officer made a report to the Superintendent of Police that the charge against the appellant was not established.
He, however, recommended that the appellant should be administered a severe warning since he was guilty of misconduct and dereliction of duty.
The Superintendent of Police did not agree with the finding of the Enquiry Officer and directed him to examine Police Constable Akki whose statement had been recorded before the enquiry was ordered against the appellant.
Akki was accordingly examined but he resiled from his earlier statement.
The Enquiry Officer again submitted a further report and struck to his former recommendation regarding administration of severe warning to the appellant.
The Superintendent of Police disagreed with the report of the Enquiry Officer and found that there was sufficient evidence against the appellant to prove his guilt.
Accordingly, he issued a notice to the appellant calling upon him to show cause why he should not be dismissed from service.
Not feeling satisfied with the explanation tendered by the appelant the Superintendent of Police passed an order dismissing the appellant from service.
An appeal filed to the D.I.G. was unsuccessful and so was a revision to the Government.
Thereafter, the appellant filed a suit challenging the order of dismissal and claiming arrears of pay.
The Trial Court dismissed the suit.
The Lower Appellate Court reversed the judgment of the Trial Court.
The High Court allowed the second appeal filed by the State.
In an appeal by Special Leave, the appellant contended: (1) The appellant was deprived of a reasonable opportunity of defending himself during the course of the departmental enquiry.
He was not permitted to remain at Belgaum during the period of his suspension.
Evidence of some of the prosecution witnesses was recorded in his absence.
(2) The impugned judgment and decree cannot be sustained as there is no cogent legal evidence to establish the charge against the appellant.
Dismissing the appeal, ^ HELD: (1) Whether a delinquent had a reasonable opportunity of effectively defending himself is a, question of fact depending on circumstances of each 914 case and no hard and fast rule can be laid in that behalf.
In the instant case, the order restricting his movement was not such as can be said to have deprived him of reasonable opportunity of making his defence.
The order did not place any embargo on the appellant going to Belgaum for the purpose of and in connection with the departmental enquiry.
In fact, the appellant fully participated in the enquiry held at that place.
He also made full use of the assistance of a policeman called Police friend, Provided to him to conduct the defence on his behalf.
He was furnished with the statements recorded of the 3 constables before the enquiry was ordered.
The witnesses examined by the prosecution were tendered for cross examination.
It, therefore, cannot be held that a reasonable opportunity as contemplated by Article 311 of the Constitution was denied to the appellant.
[916 D G] (2) Neither the High Court nor this Court can re examine and reassess the evidence in domestic enquiries of the instant nature.
Whether or not there is sufficient evidence agaiast a delinquent to justify his dismissal from service is a matter on which this Court cannot embark.
The departmental proceedings do not stand on the same footing as criminal proceedings in which high degree of proof is required.
The departmental proceedings are not covered by strict rules of evidence as contained in the Evidence Act.
A copy of the statement made by Akki earlier was furnished to the appellant and he examined all the 3 constables including Akki who made statements before the enquiry was ordered.
[916 H, 917 A C] State of Mysore vs Shivasappa, ; ; ; ; State of U.P. vs Om Prakash, A.I.R. followed; Ghanshyam Das Shrivastava vs State of Madhya Pradesh, A.I.R. 1973 S.C. 1183 distinguished. |
Civil Appeal No. 1101 of 1969.
From the Judgment and Order dated the 26th April 1968 of the Calcutta High Court in Wealth Tax Matter No. 421 of 1964.
section T. Desai, B. B. Ahuja, S P. Nayar and R. N. Sachthey, for the Appellant.
section K. Sen, A. K. Nag and D. P. Mukherjee for the Respondents.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by certificate has come before us as the question of law arising for decision is said to be of great importance.
The facts giving rise to the appeal are quite simple and may be shortly stated.
One Bireswar Chatterjee, who was admittedly governed by the Dayabhaga School of Hindu law, was assessed to income tax as an individual.
He died intestate on January 7, 1957, leaving his widow, sons and daughters.
The Wealth tax officer rejected their plea that on the death of Bireswar Chatterjee they held definite and determined shares in his properties and were liable to separate assessment, and assessed them as a Hindu undivided family for the assessment year 1958 59.
On appeal, the Appellate Assistant Commissioner held that since the assesses was governed by the Dayabhaga School of Hindu law, the properties could not belong to the Hindu undivided family and were to be taxed "in the hands of the co sharers separately.
" The department took an appeal to the Income tax Appellate Tribunal, 'B ' Bench, Calcutta.
There was difference of opinion between the members of the Tribunal, and in accordance with the opinion of the majority of the members it was ordered that "notwithstanding that there was no unity of ownership amongst members governed by the Dayabhaga School of Hindu law in respect of the family property and each member thereof had definite shares in it, such property, until partitioned, was assessable to wealth tax in the hands of the Hindu undivided family.
" The Tribunal however referred the following question of law to the Calcutta High Court for decision "Whether on the facts and in circumstances of the case, the Tribunal was right in holding that properties possessed jointly by the members governed by the Dayabhaga School of Hindu law were assessable to wealth tax jointly in the status of a Hindu undivided family?" 1098 The High Court accepted the contention that the question assumed that the property was owned jointly by the members of a Hindu undivided family governed by the Dayabhaga School of Hindu law, and reframed it as follows, "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the property possessed by the heirs of a Hindu male governed by the Dayabhaga School of Hindu law were assessable to wealth tax jointly in the status of a Hindu undivided family?" It took the view that the matter was covered by its earlier decisions including Commissioner of Wealth tax.
West Bengal vs Gouri Shankar Bhar where it had been held that on the death intestate of a Dayabhaga male, his heirs do not inherit his estate as members of a Hindu undivided family, and remain as co owners with definite and ascertained shares in the properties left by the deceased unless they voluntarily decide to live as members of a joint family.
The High Court also took notice of the fact that a suit for partition had been filed and a preliminary decree had been obtained on July 4, 1959, and answered the reframed question in the negative.
As has been stated, the High Court has certified this to be fit case for appeal to this Court.
Mr. section T. Desai appearing for the Commissioner of Wealth tax has challenged the view taken by the High Court and has argued that under the Dayabhaga School of Hindu law the property left by the father is taken by the sons jointly by descent, as coparceners, as their joint family comes into existence by operation of law.
He has accordingly argued that the father 's property is liable to be taxed under section 3 of the Wealth tax Act, hereinafter referred to as the Act, as a unit until it is partitioned amongst its members by metes and bounds.
Reference has in this connection been made to certain commentaries and judgments and we shall refer to them as and when necessary.
Section 3 of the Act is the charging section and the correctness or otherwise of the view taken by the High Court depends on its meaning and content.
The section provides for the charge of wealth tax in these terms. "3.
Subject to the other provisions contained in this Act, there shall be charged for every assessment year commencing on and from the first day of April, 1957, a tax (hereinafter referred to as Wealth tax) in respect of the net wealth on the corresponding valuation date of every individual Hindu undivided family and company at the rate or rates specified in the Schedule.
" The liability to wealth tax therefore arises in respect of the "net wealth" of the assessee, which expression has been defined as follows in section 2(m), "(m) "net wealth" means the amount by which the aggregate value computed in accordance with the provisions 1099 of this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owned by the assessee on the valuation date other than, . " The expression "belong" has been defined as follows in the Oxford English Dictionary. "To be the property or rightful possession of.
" So it is the property of a person, or that which is in his possession as of right, which is liable to wealth tax.
In other words, the liability to wealth tax arises out of ownership of the asset, and not otherwise.
Mere possession, or joint possession, unaccompanied by the right to, or ownership of property would therefore not bring the property within the definition of net wealth" for it would not then be an asset "belonging" to the assessee.
The question is whether the estate or property of Bireswar Chatterjee could be said to belong jointly to his heirs, after his death? It is not in controversy, and is in fact admitted, that the property in question belonged to Bireswar Chatterjee who was its sole owner in his life time and was assessed to income tax as an individual.
His family consisted of his widow, sons and daughters and was governed by the Dayabhaga School of Hindu law.
Bireswar Chatterjee 's property was therefore the heritage, or the wealth, which vested in his heirs on his death.
According to Jimuta Vahana, his wife or sons or daughters had no ownership in his property during his life time for "sons have not ownership while the father is alive and free from defect." (Hindu Law by Colebrooke, P.9) ownership of wealth is however vested in the heirs "by the death of their father" (page 54, supra) when they become coheirs and can claim partition.
It is on this basis that "Dayabhaga" (partition of heritage) has been expanded by Jimuta Vahana.
According to him, "since anyone parcener is proprietor of his own wealth, partition at the choice even of a single person is thence deducible." (page 16, supra).
The heritage does not therefore become the joint property of the heirs, or the joint family, on the demise of the last owner, but becomes the fractional property of the heirs in well defined shares.
This concept of fractional ownership has been stated as follows by Krishna Kamal Bhattacharya in his "Law relating to the Joint Hindu Family" (Tagore Law Lectures) with reference to the doctrine of negation of the son 's right by birth (page 168), "As a corollary of the doctrine set forth above, negativing the son 's right by birth, is another peculiar doctrine of the Bengal School, that of what is called the 'fractional ownership ' of the heirs, contrasted with the doctrine of 'aggregate ownership expounded by all other schools.
" That is why 'partition ' in Dayabhaga is defined as an act of "particularising ownership", and is not the act of fixing diverse ownerships on particular parts of an aggregate of properties as in Mitakshara.
The 1100 learned author has clarified the position in unmistakable terms as follows (pages 172 73), "From what has been said above, it is evident that there is no unity of ownership in Bengal joint family, although there may be something like a unity of possession." (Emphasis added) This is why Mitashara is designated as the School of "aggregate ownership", while Dayabhaga is known as the School of "fractional ownership.
" As has been stated in Gopalchandra Sarkar Sastri 's "Hindu law" (eighth edition page 465), while the joint family system prevails in Bengal, "there cannot be a real joint family consisting of father and sons during the father 's life time, inasmuch as joint property which is the essence of the conception of joint family, would be wanting to make them joint.
" This is why, according to the Bengal School, the sons become tenants in common and not joint tenants in respect of the estate inherited by them from their father.
The position of joint family under the Dayabhaga law has been stated as follows in Mayne 's Treatise on "Hindu Law and Usage" (eleventh edition, page 364), "It follows therefore that under the Dayabhaga law, a father and his sons do not form a joint family in the technical sense having coparcenary property.
But as soon as it has made a descent, the brothers or other co heirs hold their shares in quasi severalty.
Each coparcener has full powers of disposal over his share which is defined and not fluctuating with births and deaths as in the case of a Mitakshara family and his interest, while still undivided, will on his death pass on to his own heirs male or female or even to his legatees.
" That was stated to be the law in Sreemutty Soorjeemoney Dossee vs Denobundoo Mullick The position has been dealt with in Mulla 's "Principles of Hindu Law" (fourteenth edition, at page 348), as follows, "The essence of a coparcenary under the Mitakshara law is unity of ownership.
On the other hand, the essence of a coparcenary under the Dayabhaga law is unity of possession.
It is not unity of ownership at all.
The ownership of the coparcenary property is not in the whole body of coparceners.
Every coparcener takes a defined share in the property, and he is the owner of that share.
That share is defined immediately the inheritance falls in.
It does not fluctuate with births and deaths in the family.
Even before partition any coparcener can say that he is entitled to a particular share, one third or one fourth.
Thus if A dies leaving three sons, B, C, and D, each one will be the owner of his on third share.
The sons are coparceners in this sense that 1101 possession of the property inherited from A is joint.
It is the unity of possession that makes them coparceners.
So long as there is unity of possession, no coparcener can say that a particular third of the property belongs to him; that he can say only after a partition.
Partition then, according to the Dayabhaga law, consists in splitting up joint possession and assigning specific portions of the property to the several coparceners.
According to the Mitashara law, it consists in splitting up joint ownership and in defining the share of each coparcener.
" In fact we find that a case somewhat similar to the one before us arose when one Prafulla Chandra Bhar, a Hindu governed by the Dayabhaga School, died intestate.
His mother, widow, three sons and one daughter survived him.
Since the death took place before the came into operation, he was succeeded by his widow and three sons, each inheriting one fourth share in the estate.
Gouri Shankar Bhar, one of the sons, took out letters of administration and filed, a wealth tax return in his capacity as ad ministrator descrth the status of the assessee as a Hindu undivided family.
The Wealth Officer also treated the status as such, and made the assessment.
Gouri Shankar however filed an appeal and contended that the family being governed by the Dayabhaga School,the shares of the coparceners in the property of the deceased were definite and ascertained and the assessment should not have been made in their status as a Hindu undivided family and each member should have been assessed separately upon the value of his share in the inherited property.
The Appellate Assistant Commissioner overruled the contention and took the view that even though the shares of the coparcencrs were definite and ascertained, the income from the prperty of the family did not belong to the several members in specified shares but continued to belong to the Hindu undivided family as a whole.
On further appeal, the Tribunal held that as the coparcener under the Dayabhaga law had a definite share in the property left by the deceased and was legally the owner thereof, he had a defined share and that since the wealth tax was levied on the basis of ownership, it was proper that the assessment should have been made on the individual coparceners on their respective shares and assessment of the total wealth in the hands of the undivided family would be illegal.
The matter was referred to the High Court at the instance of the Commissioner of Wealth tax.
The High Court of Calcutta in Commissioner of Wealth tax case (supra) made a reference, inter alia, to the decision in Biswa Ranjan Sarvadhikari vs Income tax officer, F. Ward District, (2) Calcutta and upheld the view that where property is owned by two or more persons governed by the Dayabhaga School and their shares are.definite and ascertainable, then, although they are in Joint possession, the tax will be assessed on the basis of the share of the income in the hands of the assessee and not as of a Hindu undivided family.
It was held that the position was not different under the Wealth tax Act.
The matter was brought to this Court on appeal and it was conceded by Solicitor General appearing for the Commissioner of Wealth tax that as the property was the individual property of the 1102 deceased, it devolved on his heirs in severalty.
It was held that as each of them took a definite and separate share in the property, each of them was liable, in law, to pay wealth tax as an individual.
While upholding the decision of the High Court it was however observed by this Court that it was not necessary to decide, in that case, whether a Dayabhaga family could be considered as a Hindu undivided family within the meaning of section 3 of the Act.
That decision is Commissioner of Wealth tax, West Penal vs Gauri Shankar Bhar.
In the case before us, it is not in dispute that the property in question was the individual property of Bireswar Chatterjee and that it devolved on his heirs according to the provisions of the .
It will be recalled that a suit for partition was filed on June 21, 1957 and a preliminary decree was passed on July 4, 1959.
For reasons already stated, the coparcenary had unity of possession but not unity of ownership on the property.
Eac coparcener therefore took a defined share in the property and was the owner of his share.
Each such defined shar thus "belonged" the coparcener.
It was his "net wealth" within the meaning of section 2(m) of the Act and was liable to wealth tax as such under section 3.
The High Court was therefore right in answering the reframed question in the negative, and as we find no force in the argument of Mr. Desai, the appeal fails and is dismissed with costs. | Rejecting the respondents ' plea that as persons governed by the Dayabhaga School of Hindu Law they had held definite and determined shares in the properties inherited by them from their father and were liable to separate assessment of wealth tax, the Wealth Tax Officer assessed them as a Hindu Undivided Family.
On appeal the Appellate Assistant Commissioner held that the properties should be taxed in the hands of the co sharers separately.
On further appeal, the Appellate Tribunal held that notwithstanding that there was no unity of ownership amongst members governed by the Dayabhaga School of Hindu Law in respect of family property and each member thereof had no definite share in it, such property, until partitioned, was assessable to wealth tax in the hands of the Hindu Undivided Family.
On reference, the High Court held in favour of the assesses.
Dismissing the appeal to this Court, ^ HELD: Dayabhaga means partition of heritage.
A Dayabhaga male 's wife or sons or daughters have no ownership in his property during his lifetime.
Ownership of wealth is vested in the heirs by the death of their father, when they become co heirs and can claim partition.
The heritage of a Dayabhaga male does not become the joint property of the heirs or of the joint family on the demise of the last owner but becomes the fractional property of the heirs in well defined shares.
That is why partition in Dayabhaga is defined as an act of particularising ownership.
In Dayabhaga, the sons become tenants in common and not joint tenants in respect of the estate inherited by them from their father.
While Mitakshara is known as the School of "aggregate ownership", Dayabhaga is known as the school of "fractional ownership".
The essence of a coparcenary under the Mitakshara Law is unity of ownership; under the Dayabhaga it is unity of possession, not unity of ownership at all.
Under the Dayabhaga school every coparcener takes a definite share in the property and he is the owner of that share which is defined immediately the inheritance falls in.[1099D G: 1100B H] Sreemutty Soorjeemoney Dossee vs Denobundoo Mullick, 6 M.I.A. 526 at p. 553.
Hindu Law by Colebrooke p. 9. 2.
Law relating to the Joint Hindu Family (Tagore Law Lecrures) by Krishna Kamal Bhattacharya p. 168 and 3.
Principles of Hindu Law by Mulla (14th Edition) p. 348.
Hindu Law & Usage, by Mayne,11th Edition 364, approved.
(i) Under section 3, the liability of wealth tax arises in respect of the net wealth of the assesses.
The term "net wealth" means all the assets belonging to the assesses, on the valuation date.
The expression "belong" according to the Oxford Dictionary means "to be the property or rightful possession of".
[1098G H] (ii) The liability to wealth tax arises out of ownership of the asset and not otherwise.
Mere possession or joint possession unaccompanied by the right to or ownership of property would, therefore, not bring the property within the 1097 definition of "net wealth", for it would not then be the asset belonging to the assesses.
[1099C] In the instant case, the property in question was the individual property of the father of the respondents and it devolved on the heirs according to the provisions of the .
The coparcenary had unity of possession but not unity of ownership on the property.
Each coparcener took a defined share in the property and was the owner of his share.
Each such defined share thus belonged to the coparcener.
It was his net wealth within the meaning of section 2(m) of the Wealth Tax Act and was liable to wealth tax, as such, under section 3.
[1102C D] Commissioner of Wealth tax West Bengal vs Gouri Shankar Bhar, explained. |
Civil Appeals Nos.
1076 1079 of 1971.
Appeals by special leave from the judgment and order dated the 8th January, 1970 of the Allahabad High Court in special appeals Nos.
965 to 968 of 1964.
V. M. Tarkunde, E.C. Agarwala and Miss Manik Tarkunde, for the appellant.
G. N. Dikshit, Shivapujan Singh, advocate for O. P. Rana, for the respondents.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would dispose of four civil appeals Nos.
1076 to 1079 of 1971 which have been filed by special leave by Ratna Sugar Mills Ltd. against the judgment of Allahabad High Court affirming on appeal the decision of the learned single Judge 1063 whereby the appellant 's four petitions under article 226 of the Constitution of India to challenge the order dated December 18, 1963 of the Board of Revenue directing the levy of holding tax under the U.P. Large Land Holdings Act, 1957 (U.P. Act No. 31 of 1957) (hereinafter referred to as the Act) on the land of the appellant for the assessment years 1365, 1366, 1367 and 1368 Fasli had been dismissed.
In 1951 the appellant acquired land measuring 277.08 acres situated in village Argupur Kalan, tehsil Shahganj, district Jaunpur.
According to the appellant, the said land was acquired for the purpose of setting up a factory for the production of paper and pulp.
A licence was granted to the appellant in that connection.
The appellant filed an application under section 143 of the U.P. Zamindari Abolition and Land Reforms Act for treating its land situated in village Agrupur Kalan as industrial land.
In the course of those proceedings, the Tahsildar submitted a report on August 24, 1959 as under: "As regards Argupur Kalan the whole area is recorded as sirdari of Ratna Sugar Mills and they pay Rs. 1495/ as annual land revenue.
It is recorded in the Mills from before Zamindari Abolition and Mills Authorities continue to pay the recorded land revenue to Government.
The whole area is lying Banjir and lies on both the sides of the railway line and Belwai Station.
It has not at all been brought under cultivation nor the Mill has derived any benefit from it.
It is really meant for industrial purposes but due to financial difficulties, they could not use it as such.
" The Sub Divisional Officer, however, rejected the application filed on behalf of the appellant under section 143 of the U.P. Zamindari Abolition and Land Reforms Act.
The result was that the land in dispute could not be declared to be land for industrial purpose.
Appeal filed by the appellant against the order of the Sub Divisional Officer was dismissed by the Collector.
While the proceedings under section 143 of the U.P. Zamindari Abolition and Land Reforms Act were pending, the Commissioner held for assessment years 1365 and 1366 Fasli in an appeal filed by the appellant that the land in dispute was meant for industrial purposes and had on that account remained uncultivated.
The appellant was held not liable to pay holdings tax for the land in dispute for the assessment years 1365 and 1366 Fasli.
Two revisions were filed by the State against the above order of the Commissioner.
Subsequently for the years 1367 and 1368 Fasli the Commissioner held that the appellant was liable to pay holdings tax for the land in dispute under the Act.
The appellant filed two revisions to the Board of Revenue against that order of the Commissioner.
The four revisions, two filed by the State and two filed by the appellant, were decided by the Board of Revenue by a common order dated December 18, 1963.
The revisions filed by the State were accepted by the Board, while those filed by the appellant were rejected.
The 1064 Board held that as the land held by the appellant was sirdari and not Bhumidari land, it could not be declared to be meant for industrial purposes.
The appellant was held liable to pay holdings tax for the land in question.
Four petitions under article 226 of the Constitution were thereupon filed by the appellant to challenge the order of the Board of Revenue.
The learned single Judge held that the land in dispute constituted land as defined in the Act and the appellant was liable to pay holdings tax for the same.
The order of the learned single Judge, as already mentioned, was affirmed on appeal by the Division Bench.
Before dealing with the question involved in these appeals, it would be appropriate to refer to the relevant provisions as well as the objects and reasons.
The Act was published on November 1, 1957 but according to sub section (3) of section 1, it was to be deemed to have come in force on the first day of July 1957.
The objects and reasons which were mentioned in the Bill were as under: "For securing successful implementation of the Second Five Year Plan, it has become necessary to augment the revenues of the State.
The Agricultural Income Tax Act, which was enacted at a time when zamindari system was in force, has become out of date in the context of post war zamindari era.
The principle of social justice enshrined in our Constitution also demands that disparities between agricultural incomes be reduced.
More efficient exploitation of agricultural lands is essential for increasing the food production in the State.
Those big holders who do not fulfil their duty towards society will have to sell up, as they should, if they fail in making increased contribution to the exchequer in the form of holding tax under this legislation.
With these objects in view, the Agricultural Income Tax Act, 1948, is being replaced and this Bill is being introduced.
The Bill seeks to levy a holding tax on all land holdings the annual value of which exceeds Rs. 3,600.
A cultivator who does not cultivate more than 30 acres of land would be exempt from this tax.
The Bill is so designed as not to affect the small cultivator.
It is proposed to levy the tax on a graduated scale so that the larger the holding, the greater the incidence of the tax.
" Section 3 of the Act is the charging section.
According to sub section (1) of that section, there shall, save as hereinafter provided, be charged, levied and paid, for each agricultural year, on the annual value of each land holding, a tax called the holding tax at the rates specified in the Schedule provided that no such tax shall be charged on any land holding the area whereof does not exceed thirty acres.
Section 2(15) of the Act defines land as under: "(15) `land ' means land, whether assessed to land revenue or not, which is held or occupied for a purpose 1065 connected with agriculture, horticulture, animal husbandry, pisciculture or poultry farming and includes uncultivated land held by a landholder as such": The definition of land holder is given in section 2(16) and the same reads as under: "(16) 'land holder ' means (i) an intermediary, where the land is in his personal cultivation or is held as sir, khudkasht or grove, and (ii) any other person who holds or occupies land otherwise than as (a) an asami.
(b) a sub tenant.
(c) a tenant of sir, or (d) a sirtan.
and includes a manager or a principal officer, as the case may be: Explanation In this clause asami does not include an asami of Gaon Samaj:" The Act took the place of the U.P. Agricultural Income Tax Act, 1948 which stood repealed in pursuance of section 28 of the Act from the date the Act came into force.
It may also be pointed out that this Act has been itself subsequently repealed by section 45 of the U.P. Imposition of Ceilings on Land holdings Act, 1961 as from June 30, 1961.
In appeal before us Mr. Tarkunde on behalf of the appellant has argued that the land in question does not constitute land as defined in section 2(15) of the Act and as such the appellant is not liable to pay holding tax on the said land.
The land in question, according to the learned counsel, is held for industrial purposes and not for purposes of agriculture, horticulture, animal husbandry, pisciculture or poultry farming.
The above contentions have been controverted by Mr. Dikshit on behalf of the State and, in our opinion, the contentions are not well founded.
The land in dispute is shown to be Banjar land in the revenue records.
Although the appellant acquired the land in 1951 for the purpose of setting up a factory, somehow the factory could not be set up and the land remained uncultivated.
The appellant holds the land as a sirdr.
An application was filed by the appellant for permission to use the land in question for industrial purposes, but that permission was not granted, the order of the Sub Divisional Officer in this respect was affirmed on appeal by the Collector.
A sirdar under section 146 of the U.P. Zamindari Abolition and Land Reforms Act, has the right to the exclusive possession of the land and entitled to use it for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming.
It is, therefore, apparent that after the order which was 1066 made on the appellant 's application under section 143 of the U.P. Zamindari Abolition and Reforms Act, the appellant cannot be said to hold the land in dispute for industrial purpose.
The purpose for which the appellant could after that date use the land was agriculture, horticulture or animal husbandry including pisciculture and poultry farming.
The fact that the appellant did not cultivate the land in question would not warrant exemption from the liability to pay the holding tax.
The definition of the "land" includes uncultivated land held by a land holder as such.
The High Court held that the words "as such" did not pertain to the purpose for which the land is held but have reference to the land being held by the land holder in his capacity as a landholder.
We see no sufficient ground to take a different view.
In any case even if the words "as such" be construed to mean that the land should be held for the purpose of agriculture, horticulture, animal husbandry, pisciculture or poultry farming, the land in question should be taken to satisfy that requirement, because those are the only purposes for which the said land can now be used.
The word "lands" used in the Act, as mentioned in the case of Raja Jagannath Baksh Singh vs State of Uttar Pradesh & Anr., is wide enough to include all lands whether agricultural or not.
The object of the Act, as mentioned in the objects and reasons, is more efficiency exploitation of agricultural land for increased food production.
The appellant, in our opinion, cannot escape liability for payment of holding tax by keeping the land in question uncultivated.
There is no merit in these appeals and the same are dismissed with costs.
One hearing fee.
M.R. Appeals dismissed. | The appellant acquired some land in district Jaunpur, for setting up a factory, but did not use the land for such purpose.
Under the U.P. Large Land Holdings Act, 1957, he was required to pay holdings tax for the assessment years 1365 to 1368 Fasli.
The appellant 's application section 143 of the U.P. Zamindari Abolition and Land Reforms Act, for treating his land as industrial land was rejected by the Sub Divisional Officer.
On appeal, the Collector affirmed the order.
In further appeal to the Commissioner, the appellant succeeded as regards the years 1365 and 1366 Fasli.
The State filed revision petitions.
Subsequently the Commissioner held that the appellant was liable to pay holdings tax for the years 1367 and 1368 Fasli.
The appellant also preferred revision applications.
The Board of Revenue decided all the revision petitions in favour of the State, holding that the appellant 's land was "sirdari" and not bhumidari, and it could not be meant for industrial purposes.
The appellant 's petitions under Article 226 of the Constitution were rejected by a Single Judge of the High Court on the ground that the disputed land constituted "land as defined in the Act, and that he was liable to pay the tax.
On appeal, the Division Bench of the High Court affirmed the order.
It was contended before this Court that the land is held for industrial purposes, and is not "land" under sec.
2(15) of the Act.
Dismissing the appeals, the Court, ^ HELD: The appellant holds the land as a sirdar.
Permission to use the land in question for industrial purposes was not granted.
The word "lands" used in the Act is wide enough to include all lands whether agricultural or not.
The appellant cannot escape liability for payment of holding tax by keeping the land in question uncultivated.
[1065 G, 1066C D] Raja Jagannath Baksh Singh vs State of Uttar Pradesh and Another, ; , referred to. |
: Criminal Appeal No 219 of 1975 (Appeal by special leave from the judgment and order dated the 20th October, of the Andhra Pradesh High Court at Hyderabad in Criminal Misc.
Petition No 1890 of 1975) P B Basi Reddy, and AV V Nair for the appellants.
M R K Chaudhary and B K Kanta Rao for respondent No 1 525 P. Ram Reddy, and P Parameshwara Rao, for respondent Nos. 2 and 3 The Judgment of the Court was delivered by SARKARIA, J.
Whether in view of Clause (a) of the First Proviso to s, 22(1) of the Code of Criminal Procedure, 1973, a Magistrate who receives a complaint, disclosing an offence exclusively triable by the Court of Session, is debarred from sending the same to the police for investigation under section 156(3) of the Code, is the short question is that falls to be determined in this appeal by special leave.
The question arises in these circumstances: Respondent 1 herein made a complaint on July 26" 1975 before the Judicial Magistrate, First Class, Dharamavaram against the appellants herein alleging that.
On account of factions existing village Thippapalli the appellants formed themselves into an unlawful assembly, armed with deadly weapon, such as axes, spears and sticks, on the night of June 20" 1975 and entered the houses of several persons belonging to the opposite party, attacked the inmates and forcibly took way jewels, paddy, ground nuts and other valuables of the total value of two lakhs of rupees.
It was further alleged that the miscreants thereafter went to the fields and removed parts of machinery worth over Rs. 40,000/ , installed at the wells of their enemies.
On these facts it was alleged that the accused had committed offences under sections 147, 148, 149, 307, 395, 448, 378 and 342 of the Penal Code.
The offences under sections 307 and 395 are exclusively triable by the Court of Session.
The Magistrate on receiving the complaint forwarded ii to the Police for investigation with this endorsement: "Forwarded under section 156(3), Cr.
Procedure Code to the Inspector of Police, Dharmavaram for investigation and report on or before 5 8 1975.
" The appellants moved the High Court of Andhra Pradesh by petition under section 482 of the Code of Criminal Procedure, 1973 (which corresponds to section 561 A of the old Code) praying that the order passed by the Magistrate be quashed inasmuch as "it was illegal, unjust and gravely prejudicial to the petitioners".
The learned Judge of the High Court.
who heard the petition.
, dismissed it by an order dated October 20, 1975.
Hence this appeal.
Mr. Basi Reddy appearing for the appellants contends that the High Court has afield to appreciate the true effect of the changes brought by the Code of 1973.
According to the Counsel, under the new Code, is a complaint discloses an offence triable exclusively be court of Session, the Magistrate is bound to proceed with that complaint himself before issuing process to the accused.
The point pressed into argument is that clause (a) of the first Proviso to section 202(1), the new Code peremptorily prohibits the Magistrate, to direct investigation of such a complaint by the Police or any other person.
The cases, Gopal Da vs State of Assam(l),.
Jamuna Singh vs Bhadai She (2), referred to by the High Court are sought to be distinguished (1) (1961) A.I.R. 19(;1 section C. 986 (2) [1964] 5 S S.C.R. 37.
526 on the ground that they were decided under the old Code, section 21)2 of which did not provide for any such ban as has been expressly enacted in the 1st Proviso to section 202 of the new Code.
As against this, Mr. Ram Reddy, whose arguments have been adopted by Mr. Chaudahry, submits that the powers conferred on the Magistrate under section 156(3) of the Code are independent of his power to send the case for investigation under.
section 22 of the Code; that the power under section 156 (3) can be invoked at a stage when the Magistrate has not taken cognizance of the case while section 202 comes into operation after the Magistrate starts dealing with the complaint in accordance with the Provisions of Chapter XV.
It is urged that since in the instant case, the Magistrate had sent the complaint for police investigation without taking such cognizance section 202 including the ar enacted therein, was not attracted.
In the alternative, it is submitted that the ban in the 1st Proviso to section 202, becomes operative only when the Magistrate after applying his mind to the allegations in the com plaint and the other material" including the statement of the complainant and his witnesses, if any, recorded under section 200,, is prima facie satisfied that the offence complained of is triable exclusively by the Court of Session.
The point sough to be made out is that a mere allegation in the complaint that the offence committed is one exclusively triable by the Court of Session, does not oust the jurisdiction of the Magistrate to get the case investigated by the police or other person.
The word "appears" according to Counsel, imports a prerequisite or condition precedent, the existence of which must be objectively and judicially established before the prohibition in the 1st Proviso to section 202 becomes operative.
It is added that in the instant case,, the existance of this condition precedent was not, and indeed could not he established.
It appears to us that this appeal can be disposed of on the first ground canvassed by Mr. Ram Reddy.
Before dealing with the contention raised before us, it will be appropriate to notice the relevant provisions of the old and the new Code.
Section 156 of the Code of 1973 reads thus: "156(1).
Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case Which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate, (3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.
" 527 This provision is substantially the same as section 156 of the Code of A 1898, excepting that in sub section
(1) for the words "Chapter XV relating to the place of inquiry or trial," the words "Chapter XIII" have been substituted.
Sections 200 and 202 of the 1898 Code and the 1973 Code, placed in juxtaposition, read as follows: 1898 Code section 200: A Magistrate taking cognizance of an offence on complaint shall at once examine the complaint and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided as follows: (a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to .
examine the complainant before transferring the case under section 192; (aa) when the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties: (b) where the Magistrate is a Presidency Magistrate, such examination may be on oath or not as the Magistrate in each case thinks fit, and where the complaint is made in writing need not be reduced to writing.
but the Magistrate may, if he thinks fit, before the matter of the complaint is brought before him, require it to be reduced to writing; (c) when the case has been transferred under section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re examine the complainant.
202 Postponement of issue of Process: (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or 1973 Code section 200: A Magistrate taking cognizance of an offence on complaint shall ex.
mine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for enquiry or trial to another Magistrate under section 192; Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re examine them.
202 Postponement of Issue of process: (1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or 528 which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint; Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200.
(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a Police officer.
such person shall exercise all the powers conferred by this Code on an officer in charge of a Police station.
except that he shall not have the power to arrest without warrant.
(2A) Any Magistrate inquiring into a Case under this section may, if he thinks fit, take evidence of witnesses on oath.
(3) This section applies also to the police in the towns of Calcutta and Bombay.
which has been made over to him under sec.
192, may if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made: (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complaint and the witnesses present (if any) have been examined on oath under Section 200. ` (2) If any inquiry under sub section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath : Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainants to produce all his witnesses and examine them on oath.
(3) If an investigation under sub section (I) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer incharge of a police station except the power to arrest without warrant.
Before proceeding further, we may have a look at section 190 of the new Code.
This section is captioned "Cognizance of offences by Magistrates".
This section so far as it is material for our purpose, n provides: "Subject to the provisions of this Chapter, any Magistrate of the First Class and any Magistrate of the second class specially empowered in this behalf may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; 529 (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) . . . . . It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence.
This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with must take cognizance".
The word "may" gives a discretion to the Magistrate in the matter.
If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.
This raises the incidental question: What is meant by "taking cognizance of an offence` ' by a Magistrate within the contemplation of section 190? This expression has not been defined in the Code.
But from the scheme of the Code, the content and marginal heading of section 190 and the caption of Chapter XIV under which sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein.
The was in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1).
Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate.
Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of section 190(l)(a).
If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence.
This position of law has been explained in several cases by this Court.
the latest being Nirmaljit Singh Hoon vs The State of West Bengal and anr(1).
The position under the Code of 1898 with regard to the powers of a Magistrate having jurisdiction, to send a complaint disclosing a cognizable offence whether or not triable exclusively by the Court of (1) ; 36 833SCI/76 530 Session to the Police for investigation under section 156(3)" remains unchanged under the Code of 1973.
The distinction between a police investigation ordered under section 156(3) and the one directed under section 202, has also been maintained under the new Code; but a rider has been clamped by the 1st Proviso to section 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for in vestigation.
Section 156(3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while section 202 is in Chapter XV which bears the heading "Of complaints to Magistrates".
The power It order police investigation under section 156(3) is different from the power to direct investigation conferred by section 202(1).
The two operate in distinct spheres at different stages.
The first is exercisable at the pre cognizance stage, the second at the post cognizance stage when the Magistrate is in seisin of the case. 'That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under section 190(1)(a).
But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre cognizance stage and avail of section 156(3).
It may be noted further that an order made under sub section (3) of section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under section 156(1).
Such an investigation embraces the entire continuous process which begins with the collection of evidence under section 156 and ends with a report or chargesheet under section 173.
On the other hand section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure.
In such a situation, the Magistrate is empowered under section 202 to direct within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not here is sufficient ground for proceeding ".
Thus the object of an investigation under section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.
In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under section 156(3).
He did not bring into motion the machinery of Chapter XV.
He did not examine the complaint or his witnesses under section 200, Cr.
P.C., which is the first step in the procedure prescribed under that Chapter.
The question of taking the next step of that procedure envisaged in section 202 did not arise.
Instead of taking cognizance of the offence he has.
, in the exercise of his discretion, sent the complaint for investigation by police under section 156.
531 This being the position, section 202(1), 1st Proviso was not attracted.
A Indeed, it is not necessary for the decision of this case to express any final opinion on the ambit and scope of the 1st Proviso to section 202(1) of the Code of 1973.
Suffice it to say, the stage at which section 202 could become operative was never reached in this case.
We have therefore in keeping with the well established practice of the Court, decided only that much which was essential for the disposal of this appeal, and no more.
For the foregoing reasons, we answer the question posed" in the negative, and dismiss this appeal.
M.R. Appeal dismissed. | On receiving a complaint against the appellants, for allegedly Committing offences under sections 147, 148, 307, 395, 448, 378 and 342, I.P.C., the Judicial Magistrate, F.C. Dharmavaram., forwarded it to the police under section 156(3) Cr.
P.C. for investigation The appellants filed an application in the High Court under section , against the Magistrate 's order, hut the same was dismissed.
it was contended before this Court that the complaint included offences triable exclusively by the Sessions Court, and under section 202(1) Proviso l(a), 1973, the Magistrate was prohibited from directing the police to investigate it, that he was bound to proceed with it himself before issuing process to the accused.
The appeal was, inter alia, contested on the ground that .
the powers conferred on the Magistrate under section 156(3) of the Code are independent of his power to send the case for investigation under section 2021 af the Code.
Section 156(3) can be invoked before the Magistrate takes congnizace of the case but section 202 comes into operation only after he start; dealing with the com Plaint in accordance with the provisions of Chapter XV.
Dismissing the appeal of the Court, ^ HELD: (1) The power to order police investigation under , 156(3) different from the power to direct investigation conferred by section '202(1). 'The.` two operate in distinct spheres at different stages.
The first is exercisable at the re cognizance stage, the second at the post cognizance stage when the Magistrate is in seisin of the case.
An investigation under section 202 is "for the purpose or deciding whether or not there is sufficient ground for proceeding".
its not to initiate a fresh case on police report, but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.
The stage at which section 202 could become operative was never reached in this case.
[530 H; 531B] (2) When on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in chapter XV of the Code of 1973 he is said to have taken cognizance of the offence within the meaning of section 190(l)(a).
If instead of ' proceeding under Chapter XV.
he has in the exercise of his discretion, taken action of some other kind, he cannot be said to have taken cognizance of any offence.
[526D G] Nirmaljit Singh Hoon .
The State West Bengal ond Anr.
[1973] 3 section ,53, referred to. |
Civil Appeal No. 1370 of 1968.
Appeal by Special Leave from the Judgment and order dated the 6th March, 1967 of the High Court of Judicature at Allahabad in First Appeal No. Nil of 1965.
J. P. Goyal and section M. Jain, for the Appellants.
G.L. Sanghi, D. N. Misra and O. C. Mathur, for Respondent No. 1.
G. N. Dixit and O. P. Rna, for the State of U.P.
The Judgment of the Court was delivered by FAZAL ALI, J.
This is an appeal by special leave against the judgment of the Single Judge of the Allahabad High Court deciding 666 a court fee matter in connection with the memorandum of appeal filed by the appellants before the Allahabad High Court against a decree passed by the Tribunal appointed under the hereinafter referred to as 'the Act '.
The appellants had filed an application under section 13 of the Act before the Tribunal alleging that it was a partnership firm and claimed that an amount of Rs. 3,50,000/ by way of refund of security deposits and a sum of Rs. 55,000/ as commission was due from the respondents.
The application was tried by the Tribunal and the claim preferred by the appellants was ultimately dismissed by the Tribunal by its decree dated May 19, 1965.
Additional Civil Judge of Badaun was assigned as the Tribunal under the aforesaid Act.
The appellants then filed an appeal before the Allahabad High Court with a nominal court fee of Rs. 5/ but the Stamp Reporter of the High Court was of the opinion that the appellants should have paid ad valorem court fees on the total claim preferred by the appellants before the Tribunal which had been disallowed.
The matter was taken up by the Taxing Officer, who, in view of the substantial importance of the point raised, made a reference to the Taxing Judge for deciding the court fee payable on the memorandum of appeal in the instant case.
The plea of the appellants was that as the decision of the Tribunal did not amount to a decree as contemplated by section 2(2) of the Code of Civil Procedure 1908, ad valorem court fees were not payable and the appellants were entitled to pay court fees as prescribed in Sch.
11 article 11 of the Court Fees ' Act.
The stand taken by the revenue was that as the present appeal was against a decree, the case of the appellants squarely fell within the ambit of section 4 of the Court Fees ' Act and therefore ad valorem court fees were payable under Sch.
I article 1 of the Court Fees ' Act.
The matter was taken up by the Taxing Judge who went into the question of law raised before him and after considering some authorities, particularly those of the Allahabad High Court, agreed with the Stamp Reporter and came to the conclusion that the appellants should pay ad valorem court fees under Sch.
I article 1 of the Court Fees ' Act.
The Taxing Judge accordingly by his order dated October 11, 1965 directed the appellants to make up the deficiency in the payment of the court fees.
It was against this order that the appellants filed a petition for special leave to this Court which having been granted the appeal has now been placed before us for hearing.
This appeal involves a short but substantial question of law as to the interpretation, scope and ambit of Sch.
II article 11 of the Court Fees ' Act as applicable to appeals preferred against the orders or decrees passed by the Tribunal constituted under the Act.
The point is not free from difficulty and there appears to be a serious divergence of judicial opinion on the question as to whether in appeals like the present, Sch.
I article 1 or Sch.
II article 11 of the Court Fees ' Act would apply.
Mr. Goyal learned counsel appearing for the appellants raised two points before us.
In the first place he contended that as the proceedings before the Tribunal were not proceeding in a Civil Court nor was the Tribunal a Court, therefore, the decision of the Tribunal 667 even though loosely called as a decree is not a decree as contemplated by section 2(2) of the Code of Civil Procedure and therefore the case of the appellants clearly falls within the ambit of Sch.
II article II of the Court Fees Act.
It was next contended that as the Tribunal had disallowed the claim of the appellants by the order impugned before the High Court the order did not amount to any decree and, therefore, the question of payment of ad valorem court fees did not arise.
In this connection it was also submitted that the Act being a beneficial statute was designed to provide a cheap and expeditious remedy to displaced persons in certain circumstances and therefore the Parliament never intended that displaced persons who had lost all that they possessed in Pakistan should be made to pay ad valorem court fees without possessing the capacity to do so.
Mr. Dikshit appearing for the respondents sought to repel the arguments of Mr. Goyal on two grounds.
In the first place it was submitted that under the provisions of the Court Fees Act the order of the Taxing Judge was final and could not be re opened by this Court even in special leave.
Secondly, it was submitted that the Tribunal was nothing but a Civil Court and the provisions of the Act would show that the Tribunal was clothed with all the powers and incidents of a Civil Court.
In these circumstances it was contended that any decree which was passed by the Tribunal must be presumed to be a decree of the Court and was made appealable as such under section 40 of the Act.
Therefore, it was said, Sch.
II article 11 had absolutely no application and the view taken by the Taxing Judge was legally correct.
In order to understand the contentions raised by the counsel for the parties it may be necessary for us to trace the history of the Act and the circumstances in which it was passed.
To begin with, following the partition of the country there was an unprecedented rush of refugees from Pakistan to India and our country immediately after becoming independent had to face the colossal problem of rehabilitating the refugees or the displaced persons.
Most of these persons had left huge assets behind in Pakistan and had come to this country without a penny.
Others were creditors and were entitled to get their debts liquidated from the assets in this country or from the properties possessed by the Banks in this country.
Soon after independence there were stray and piecemeal legislations providing for some facilities for displaced debtors and creditors but there was no uniform law to cater to their growing needs in view of the situation faced by them following the partition of our country.
In these circumstances, therefore, the Government decided to bring out a uniform legislation so as to be a complete code in itself providing for a cheap and expeditious remedy for displaced debtors and creditors.
The matter was first entrusted to a Committee and then to Bind Basni Prasad, a retired Judge of the Allahabad High Court, who after taking evidence of a large number of displaced persons and examining the nature of the claims, submitted a report which formed the basis of the Displaced Persons (Debts Adjustment Act.
Introducing the Bill which preceded the Act, Mr. A. P. Jain, the then Minister of State for Rehabilitation, made a long speech in 668 Parliament dwelling on the various aspects of the Bill.
The Minister particularly highighted the fact that the condition of the displaced persons was pitable as they had left huge assets behind in Pakistan.
In this connection the Minister observed thus: "The condition of the displaced persons therefore today is that while their assets have been left behind in Pakistan and they have brought the titles of their property, at least in some cases.
In the provisions contained in this Bill, we have tried to strike a balance between the reduced capacity of the debtor to meet his obligations and at the same time we have taken sufficient care to see that a debtor who is in a position to pay may not deny payment to his creditor.
In this Bill, we have introduced what might be called a somewhat revolutionary principle, namely, that no debtor will be called upon to pay more than his paying capacity.
I shall later on define what the words 'paying capacity ' mean, but here it may be enough to mention that paying capacity of a debtor has been defined in a rather liberal manner after allowing fairly large assets which will not be capable of attachment.
Clause 13 deals with claims by displaced creditors against persons who are not displaced debtors.
That is not comparatively so important because it only gives relief in respect of court fees.
We felt that under the depressed economic condition of the displaced creditors, it is necessary that we must give them some relief against the huge amount of money which they have to pay as court fees etc.
I submit that these are all very necessary and humane considerations which take into account the actual paying capacity of the debtor.
We have maintained the existing procedure in the Courts but we have simplified it because a prolonged procedure and the complexities of the civil courts mean a lot of money.
We have provided only one appeal in clause 40.
" A perusal of the above observations will give a clear insight into the various objects of the Act and the main purposes which the legislation sought to achieve.
It will be noticed that the Minister laid particular stress on the paying capacity of the debtors which he called a humane consideration and also described the necessity of giving relief to the displaced persons against the huge amount of money which they may have to pay as court fees.
Thus it would appear that the intention of Parliament was to bring out a legislation which would provide for a cheep and expeditious remedy to the displaced persons and entrust the work to a Tribunal which may 669 be able to decide the claims quickly instead of leaving the displaced debtors or creditors to follow the dilatory and cumbersome process of the civil courts.
In order to shorten the litigation the Minister expressly stated that only one appeal had been provided in section 40 of the Act, to the High Court.
These matters will have a very important bearing on the interpretation of the provisions of the Court Fees Act as applicable to the decrees passed by a Tribunal under the Act.
Even apart from these considerations, it is well settled that in case of a fiscal statute the provisions must be strictly interpreted giving every benefit of doubt to the subject and lightening as far as possible the burden of court fees on the litigant.
Thus where an adjudication given by a Tribunal could fall within two provisions of the Court Fees Act, one of which was onerous for the litigant and the other more liberal, the Court would apply that provision which was beneficial to the litigant.
In A. V. Fernandez vs State of Kerala, while interpreting the provisions of a fiscal statute, viz., the Travancore Cochin General Sales Tax Act, this Court observed as follows: "It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law.
If the Reve nue satisfs the Court that the case falls strictly within the provisions of the law, the subject can be taxed.
If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter." Similarly in State of Maharashtra vs Mishri Lal Tara Chand Lodha and others, while interpreting some of the provisions of the Bombay Court Fees Act, Raghubar Dayal, J., speaking for the Court observed as follow: "The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject litigant.
" These observations manifestly show that the Courts have to interpret the provisions of a fiscal statute strictly so as to give benefit of doubt to the litigant.
The principles deducible from the decisions referred to above are well established and admit of no doubt.
We, therefore, propose to decide the question raised before us in the light of the principles enunciated above, but before doing that it may be necessary to give a brief survey of the scheme and structure of the Act in order to find out the real nature, scope and ambit of the statute.
670 To begin with, it may be necessary to extract the relevant portion of the statement of objets and reasons of the statute: "The Bill is designed mainly to give relief to displaced debtors in respect of liabilities incurred by them prior to their displacement from West Pakistan though remission of court fees has also been allowed to displaced creditors.
A certain amount of relief was afforded to them by Acts XLVII of 1948 and XXV of 1949, but this was found to be inadequate.
A thorough examination of the various problems involved had to be made with a view to affording displaced persons adequate and, at the same time, reasonable relief in the matter of their indebtedness, consistently with the needs of their rehabilitation.
A decree under the law will thus consist of two parts, the first part being equivalent to and recoverable from the 'paying capacity ' of the debtor, and the second part being equivalent to the balance of the total amount decreed and recoverable from the compensation, if and when received by the debtor.
The first part of the decree will, as a rule, be recoverable in instalments.
In respect of the second part of the decree, it has been accepted that the amount payable should be scaled down in the proportion in which the displaced debtor is able to obtain recompense in respect of his immovable property left behind in West Pakistan.
Where no recompense is received, there will be no recovery of the second part of the decree.
" Section 4 of the Act provides for constitution of Tribunals to exercise jurisdiction under the Act and empowers the State Government to designate any civil court or class of civil courts as the Tribunal or Tribunals and may also define the areas in which such Tribunal shall exercise jurisdiction.
It may be pertinent to note here that the statute deliberately does not entrust the functions of the Act to the civil court per se but to a Tribunal to be selected from amongst civil courts.
Section 5 of the Act provides for an application to be given by a displaced debtor for adjustment of his debts and gives the requirements of that application.
Section 6 authorises the Tribunal to reject the application under section 5, if it does not fulfil the requirements of section 5 and further gives it the power to grant time to comply with the requirements.
Sections 7 and 8 of the Act provide for issue of notices to the respondents and give right to the respondents to file their objections.
Section 9 provides for an inquiry into the application made under section 5.
The statute designedly uses the word "proceeding" in section 9 rather than a suit which clearly shows that the Legislature was aware of the distinction between a "proceeding" and a "suit".
Sub section (2) of section 9 authorises the Tribunal to decide the dispute and pass such decree in relation thereto as it thinks fit.
It is, therefore, clear that the decree which the Tribunal passes is not a decree of the Civil Court but a decree passed by a Tribunal in a proceeding under section 5 and section 9 of the Act.
Section 10 deals with claims by the creditors against 671 displaced debtors and section 11 regulates the procedure of a petition filed by the creditor.
Sub section (2) of section 11 further authorises the Tribunal to determine the claim and pass a decree in relation thereto.
Section 12 provides for objection by creditor to schedule of assets and section 13 refers to claims by displaced creditors against persons who are not displaced debtors.
Section 14 prescribes the procedure for displaced creditor 's petition filed under section 13 of the Act and authorises the Tribunal to pass a decree as it thinks fit.
Sub section (3) of section 14 authorities the Tribunal to pass a decree if no cause is shown or if no dispute exists.
A perusal of sub sections
(2) & (3) of section 14 clearly shows that the statute contemplates a decree which may be one of rejection of the claim put forward by the displaced creditor or one which amounts to allowing the claim.
Thus, in other words, whether claim is disallowed or allowed, the order passed by the Tribunal would be a decree in both cases.
We have purposely mentioned this fact because some of the High Courts have taken the view that where the Tribunal rejects the claim of a displaced creditor or debtor either on the ground that the petitioner is not a displaced debtor or creditor but not on merits, such an adjudication does not amount to a decree.
This distinction sought to be made by some of the courts does not appear to be consistent with the scheme and language of the statute.
Section 15 of the Act deals with the consequences of application by displaced debtor.
The next relevant provision is section 18 which regulates the procedure for claims against insurance companies, and sub section
(2) of this section provides for a decree to be passed by a Tribunal.
Section 23 provides for a simplified procedure in certain cases where the claim is below Rs. 5,000/ in which case the Tribunal is empowered to record only a memorandum of the substance of the deposition of the witnesses so as to given a short and summary decision.
Section 27 refers to the contents of the decree and section 28 provides for the forum and the Court in which the decree passed by the Tribunal is to be executed.
Section 32 of the Act provides the procedure for scaling down of debts by a displaced debtor.
Section 36 provides for extension of period of limitation.
Section 40 is the provision for appeals against any decree or final order of the Tribunal or against any order passed in the course of execution.
These are the relevant provisions of the Act in so far as the facts of the present case are concerned.
A close examination and a detailed analysis of the various provisions of the Act would clearly reveal that the Act is a beneficial statute meant for advancing the cause of the displaced debtors and creditors by conferring substantial benefits on them if they are able to prove their claims.
In these circumstances it is clear to us that the Legislature could never have intended that the claimants should have to pay heavy court fees either in getting, their claims adjudicated by the Tribunal or even in filing appeals against the decrees of the Tribunals.
That the displaced persons had been given such concessions and facilities has been held by this Court in Shri Ram Narain vs The Simla Banking & Industrial Company Ltd. where this Court observed as follows: "Now, the is one of the statutory measures meant for relief and rehabil 672 tation of displaced persons.
It is meant for a temporary situation brought about by unprecedented circumstances.
It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important national purpose.
It is by and large a measure for the rehabilitation of displaced debtors.
x x x There is no provision therein which compels either a displaced debtor or a displaced creditor to go to the Tribunal he is satisfied with the reliefs which an ordinary civil court can give him in the normal course.
It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal 's jurisdiction comes into operation.
x x x It is also desirable to notice that so far as a claim of a displaced creditor against a non displaced debtor is concerned the main facilities that seem to be available are (1) the claim can be pursued within one year after the commencement of the Act (presumably even though it may have been time barred), (2) a decree can be obtained on a mere application, i.e. without having to incur the necessary expenses by way of court fee which would be payable if he had to file a suit, (3) the creditor has the facility of getting his claim adjudicated upon by a Tribunal which has jurisdiction over the place where he resides, i.e., a place more convenient to him than if he had to file a suit under the ordinary law in which case he would have to file a suit at the place where the defendant resides or part of the cause of action arises.
There may also be a few other minor facilities.
" As pointed out above, the claim of the appellants in the present case before us was dismissed by the Tribunal on merits and the stand taken by the Revenue which found favour with the Taxing Judge of the High Court was that the appellants should pay ad valorem court fees as their claim was rejected on merits.
Counsel for the appellants has submitted that the present appeal would be governed clearly by Sch.
II article 11 of the Court Fees Act, This Article reads thus: "11.
Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree, and is presented.
(a) x x x (b) to a High Court or Chief Commissioner, or other Chief Controlling Executive or Revenue Authority.
Two rupees" In order to attract application of this article, the following conditions must be fulfilled: 673 (i) that the document sought to be stamped must be a memorandum of appeal; (ii) that the appeal should be presented to the High Court; and (iii)that the appeal should not be from a decree or an order having the force of a decree.
The third condition of the article is couched in a negative form thus implying that this provision would have no application to appeals against decrees.
The question that falls for determination is as to whether or not the decision given by the Tribunal under the Act could be said to be a decree within the meaning of Sch.
II article 11 of the Court Fees Act.
It was submitted by learned counsel for the appellants that the Court Fees Act and the Code of Civil Procedure being statutes complementary to each other should be read as one harmonious whole.
We think that the contention is well founded and must prevail.
The term "decree" as used in the Court Fees Act is a term of art and it must be deemed to have been used in the same sense as understood by the Code of Civil Procedure.
It may be pertinent to note here that neither the Court Fees Act nor the has defined the term "decree".
Nevertheless" as far back as 1859, by Act No. VIII of 1859 passed by the Governor General in Council the concept of a decree was clearly indicated, although no definition of a decree was given in that Act.
By sections 183 to 190 the manner in which the judgments were to be given and the decrees were to be prepared as also the contents of the same were clearly mentioned.
Section 189 which expressly dealt with decrees ran thus: "The decree shall bear date, the day on which the judgment was passed.
It shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, as stated in the Register of the suit, and shall specify clearly the relief granted or other determination of the suit.
It shall also state the amount of costs incurred in the suit and by what parties and in what proportions they are to be paid, and shall be signed by the Judge, and sealed with seal the Court.
" Thus when the Court Fees Act was passed in the year 1870 and used the term "decree" it must be intended to have used the word "decree" so as to bear the same connotation as the word "decree" as explained in section 189 of Act VIII of 1859.
In the Code of Civil Procedure Act XIV of 1882 "decree" appears to have been defined for the first time and the definition may be extracted as follows.
" 'decree ' means the formal expression of an adjudication upon any right claimed, or defence set up in Civil Court when such adjudication so far as regards the Court expressing it, decides the suit or, appeal.
An order rejecting a plaint, or directing accounts to be taken, or determining any question 674 mentioned or referred to in section 244, but not specified in section 588, is within this definition: an order specified in section 588 is not within this definition:" The Code of Civil Procedure of 1908 also gave a full and complete definition of "decree" in section 2(2) which runs thus: " 'decree ' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.
" It would be seen that an order rejecting a plaint was clearly mentioned as falling under the term "decree".
In view of this clear definition of the order rejecting a plaint, it became necessary to make a corresponding change in Sch.
II article 11 of the Court Fees Act and by Act V of 1908 the words "from an order rejecting a plaint or" used in Sch.
II article 11 before 1908 were expressly omitted for the simple reason that an order rejecting a plaint having been incorporated in the definition of a "decree" it was not necessary to retain it in the Court Fees Act.
This is the most important intrinsic evidence to show that the Legislature in enacting the Court Fees Act used the term "decree" in the same sense as it was used in section 2(2) of the Code of Civil Procedure, 1908 or in the code obtaining before that day.
This also shows that the Court Fees Act and the Code of Civil Procedure are more or less complementary to each other.
This matter was the subject matter of a decision of this Court in Mannan Lal vs Mst.
Chhotaka Bibi, where this Court observed as follows: "In our view in considering the question as to the maintainability of an appeal when the court fee paid was insufficient to start with but the deficiency is made good later on, the provisions of the Court Fees Act and the Code of Civil Procedure have to read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other.
Apart from the decisions bearing on the point, there can in our opinion, be no doubt that Section 4 of the Court Fees Act is not the last word on the subject and the court must consider the provisions of both the Act and the Code to harmonise the two sets of provisions which can only be done by reading Section 149 as a proviso to Section 4 of the Court Fees Act by allowing the deficiency to be made good within a period of time fixed by it.
" 675 There are a number of other decisions of the High Courts which have also taken the view that the word "decree" appearing in Sch.
II article 11 has to be read in the same sense as used in the Code of Civil Procedure.
In Ram Prasad vs Tirloki Nath a Division Bench of the Allahabad High Court observed as follows "The word 'decree ' has not been defined in the Courtfees Act or in the General Clauses Act; and it is safe to assume that the word has been used in the Court fees Act in the sense in which it is used in the Civil P.C., under which all the decrees are passed and which defines it as meaning "the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. " A Full Bench of the Hyderabad High Court in Dawood Karim Ashrafi vs City Improvement Board made a similar observation where the Court observed as follows: "To have the force of a decree, an order must possess all the characteristics of a decree.
It was further held that the word "decree" has not been defined in the Court fees Act or in the General Clauses Act, and it was safe to assume that the word has been used in the Court fees Act in the sense in which it is used in the Civil Procedure Code.
" A Division Bench of the Patna High Court also in Antala Gope vs Sarbo Gopain, while interpreting the word 'decree ' used in the Hindu Marriage Act, appears to have taken the same view and observed as follows: "The Act provides under section 21 that "all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908"; that is to say, the procedure to be adopted by the Court, in dealing with such proceedings will be akin to that provided for the trial of suits in a Civil Court.
But that does not make the proceeding a suit or the application a plaint.
x x x x x x x x Therefore, in our view, article 11 of Schedule II of the Court Fees Act will be applicable to all appeals coming under section 28 of the .
" The later Full Bench decision of the Allahabad High Court in Mrs. Panzy Fernandas vs Mrs. M. F. Cusoros & others appears to have endorsed its previous view and observed as follows: 676 "The same result would, however, follow from a perusal of the various provisions of the Code of Civil Procedure of 1859, as it stood in the year 1870.
The above provision of law, therefore, indicates that under the Code of Civil Procedure, 1859, a decree could only be passed in a proceeding which could be termed a suit.
Section 26 specified the particulars that are to be given in the plaint.
Section 27 laid down the manner in which the plaint was to be subscribed and verified.
Thus the scheme of the Code of Civil Procedure of 1859 as disclosed by the aforementioned provisions, also points to the conclusion that a decree marks the culmination of a proceeding which is described as a suit, and which, according to the said Code, is initiated by means of a plaint.
Proceedings for letters of administration under the Indian Succession Act (Act XXXIX of 1925) are not commenced by the institution of a plaint.
On the other hand, as section 278 of the said Act shows, they are commenced by an "application" or a petition.
For the above reasons we are of opinion that the decision of a Court in proceedings for letters of administration cannot be described as a decree.
If excitability was to be the invariable quality of all decrees, one would expect that the Legislature would incorporate this feature in the provisions which define the nature, scope and contents of a decree.
Further, if the Legislature wanted that Schedule II Article 11 should apply only to executable orders it could very easily have added the word "executable before "order".
" In the above case the order passed in a proceeding before a Probate Court was held not to be a decree.
In Dundappa vs
section G. Motor Transport Company the High Court of Mysore observed as follows: "In order to understand the expression "having the force of a decree" occurring in this article of the Court Fees Act, it would be useful to derive guidance from the definition of a "decree" contained in section 2(2) of the Code of Civil Procedure, according to the provisions of which, a decree is a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy before the Court.
" In Irshad Husain vs Bakhshish Husain the same view was taken by the Oudh High Court where the Court observed as follows: "The expression "decree" is not defined either in the Court Fees Act or in the General Clauses Act.
It may, 677 therefore, be safely assumed that this expression as used in Sch. 2, article 11, Court Fees Act, bears the meaning given to it by section 2(2) Civil P.C.
Nor can it be disputed that there is a vital difference between a "decree" and "order" in matters relating to appeals.
" In Harrish Chandra Chatterji vs Bhoba Tarini Debi the Calcutta High Court also appears to have taken the same view, where the Court observed as follows: "I do not think this was the "formal expression of an adjudication" so as to make the order a decree within the meaning of sec.
2 of the Code of Civil Procedure.
The fee payable, therefore, will be one leviable under article 11 of the second schedule of the Court fees Act." The Bombay High Court in Taxing officer, High Court, Appellate side vs Jamnadas Dharamdas which was a case under the , has clearly held that the term "decree" used in Sch.
II article 11 of the Court Fees Act must be held to Lave the same meaning as in section 2(2) of the Code of Civil Procedure.
Thus on a consideration of the authorities mentioned above the propositions may be summarised as follows: Firstly, that under the definition of a "decree" contained in section 2(2) of the Code of Civil Procedure, 1908, three essential conditions are necessary: (i) that the adjudication must be given in a suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii)that the adjudication must be formal and final and must be given by a civil or revenue court.
In the proceedings under the Act we have already pointed out that as the Legislature has created a special tribunal to inquire into the claims displaced debtors or creditors, the Tribunal cannot be called a Court in any sense of the term because the Legislature has made a clear distinction between a Tribunal and a Court.
Secondly, as the proceedings before the Tribunal start with an application and not with a plaint the other important ingredient of a decree is wholly wanting.
Thirdly, the Legislature has itself made a clear cut distinction between a suit and a proceeding and has described the claim before the Tribunal as a proceeding rather than as a suit.
In these circumstances, therefore, none of the requirements of a degree are to be found in the decision given by the Tribunal even though the Legislature may have described the decision as a decree A mere description of the decision of the Tribunal as a decree does not make it a decree within the meaning of 678 The Court Fees Act.
The term "decree" appears to have been used by the Legislature to convey a sense of finality regarding the decision of the Tribunal more particularly since the adjudication of the claim, but for the Act, would have been by a Civil Court and then it would have been a "decree".
Secondly, as pointed out, the object of the Act is to benefit displaced persons by providing them a cheap and expeditious remedy.
The argument of Mr. Sanghi for the respondent.
, the he Legislature wanted the claimants to pay heavy court fees if they lost before the Tribunal is totally inconsistent with the aim and object of the Act.
If the displaced claimants were given the right to have their claims determined on a nominal court fee and if only one right of appeal was provided it surpa, ses one 's comprehension why the Legislature should have.
intended that even if wrong orders were passed by the Tribunal, the claimants should have to pay heavy court fees if they wanted to file an appeal to the High Court.
If the intention of the Legislature was to provide a cheap and not expeditious remedy to the claimants, then the remedy would be incomplete if it was given only at the original stage and not at the appellate stage.
Having regard to these circumstances we are satisfied that the term "decree" used in Sch.
II, article 11, is referable to a decree as defined in section 2 (2) of the Code of Civil Procedure and as the decision of the Tribunal in the instant case does not fulfil the requirements of a "decree" as mentioned above, the said decision is not a decree within the meaning of Sch.
II, article 11 of the Court Fees Act and, therefore, the memorandum of appeal filed by the appellants squarely falls within the ambit of Sch.
II article 11 of the Court Fees Act and ad valorem court fees under Sch.
I article 1 are not leviale.
Apart from the above considerations, it is a well settled principle interpretation of statute, hat where the Legislature uses an expression bearin a well known legal contation it must be premised to have used the said expression in the sense in which it has been so understood.
Craies on "Statute Law" observes as follows: "There is a well known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears.
" In Barras vs Aberdeen Steam Trawling and Fishing Company Lord Buckmaster pointed out as follows: "It has long been a well establilshed principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial inter pretation, the subsequent statute which incorporates the same word or the samerphrase in a similar context must be construed so that the word or phrase is interpreted according the meaning that has previously been ascribed to it." 679 Craies further points out that the rule as to world judicially interpreted applies also to words with well known legal meanings, even though they have not been the subject of judicial interpretation.
Thus applying these principles in the instant case it would appear that when the Court Fees Act uses the word "decree" which had a well known legal significance or meaning, then the Legislature must be presumed to have used this term in the sense in which it has been understood, namely, as defined in the Code of Civil Procedure even if there has been no express judicial interpretation on this point.
There are a number of decisions which have taken the view that Sch.
II article 11 governs appeals against decisions of the Tribunal.
The matter was fully considered in a decision of the Bombay High Court in Jamnaudas Dharamdas ' case (supra) where Shah, J., observed as follos: "But the expression "decree" has not been defined in the Court fees Act.
The expression "decree" as used in the Court fees Act.,ppears to have the same connotation as that expression has in the Code of Civil Procedure.
The Court fees Act is intended to be a complementary piece of legisiation to the Code of Civil Procedure dealing with payment of court fees in matters which are tried by the civil Courts.
If the expression "decree" has the same connotation as that expression has in the Code of Civil Procedure, it would be difficult to regard an adjudication made by a Tribunal appointed under the as a decree within the meaning of the Court fees Act, even though it is so called under the .
In order that an adjudication should amount to a decree under the Code of Civil Procedure, it must be a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit.
The proceedings to be initiated by displaced persons for adjustment of their debts or by displaced creditors or displaces, debtors are by applications.
Such applications cannot be regarded as plaints in civil suits and are not required by law to bear ad valorem court fee under schedule 1, cl. 1 of the Court fees Act.
It is true that the provisions of the Code of Civil Procedure are made applicable to the proceedings which are commenced by applications.
But the proceedings under the Act cannot be called suits.
Again the Tribunal in dealing with an application under section 6 of the is not merely deciding a claim made by a debtor, but is dealing with an application for adjustment of his debts.
x x x x Even if the Legislature has chosen to call such an award a decree, it cannot amount to a decree within the meaning of sub section (2) of section of the Code of Civil Procedure and in my judgment the award cannot be regarded as a decree within the meaning of Schedule II cl. 11, of the Court fees Act.
" 680 We find ourselves in complete agreement with the aforesaid observations made by Shah, J. In Parmanand Lokumal and other vs Khudabadi Bhaibund Cooperative Credit Bank Ltd. and Others, while construing an almost identical question, the Calcutta High Court observed as follows: "It is to afford relief to displaced persons and that purpose may well be frustrated, if, in cases of preliminary dismissals of the applications the appeals are to be filed with ad valorem court fee on the disputed amount, even assuming that it is capable of ascertainment at the particular stage.
Beaning that in mind and having regard to the scheme and structure of the Act and the nature of the impugned decree, namely, of dismissal on the preliminary finding of the failure of the appellants to prove the necessary status, and, the propriety of that finding being the sole question for consideration in the appeal, so far as the appellant are concerned, we do not think that it would be improper to hold that the subject matter in dispute in the appeal is that question of status which plainly is incapable of money value.
The appeal thus would come under Schedule II, article 17, of the Court fees Act, provided, of course, the memorandum of appeal is in a 'suit ' as contemplated in the opening paragraph of the Article.
x x x Even if the subject matter in dispute in the appeal be held to be the relief of reliefs, claimed by the appellants in their original application, the decree, impugned being one of dismissal of the same, we do not think that any other view on the question of its valuation should be taken." The Calcutta High Court appears to have made a distinction between a decree passed by a Tribunal dismissing the claim of a petitioner on a preliminary ground that the claimant was not able to prove his status and therefore had no locus standi to file the claim and a case where the claim was dismissed or decreed on merits.
According to the High Court, in the former case a decision given by the Tribunal would be only an order, whereas in the latter case it would be a decree.
We, however, do not agree with this part of the observation because as pointed out by us the statute makes no distinction at all between the decision of the Tribunal which rejects the claim either on a preliminary point or on merits and one which allows the claim.
Both these kinds of decisions have been termed as decree passed by the Tribunal.
In these circumstances, therefore, there does not appear to be any warrant for the distinction which seems to have been drawn by the High Court between a decree passed by a Tribunal on a preliminary point or that passed on merits.
Even otherwise, according to the general scheme of the Code of Civil Procedure whether the suit culminates in the rejection of the claim of the plaintiff, and thereby in dismissal of the suit or in acceptance of the claim of the plaintiff, where the suit is decreed the final adjudication given by the Court is a decree whether it is one dismissing the claim or one allowing it.
681 The distinction between a decree which is one of dismissal of the suit or a decree which amounts to an acceptance of the claim of the plaint is too artificial to merit any consideration.
While, therefore, we do not agree with some of the observations of the Calcutta High Court, we fully agree with the other part of observations where the Calcutta High Court has held that ad valorem court fees are not payable.
Similarly, in Punjab National Bank Ltd. vs Firm Isardas Kaluram, a Full Bench of the Rajasthan High Court observed x x x x x x "We are therefore of opinion that the order passed in this case, though it finally determined the application of the appellant, was not a decree, because it did not a determine the claim which, in the circumstances in which that word has been used in section 11(2) must relate to the existence or the amount of the debt due to the creditor.
The creditor, therefore, if he has a right of appeal, has to pay court fee under Sch.
article 11 which mentions appeals which are not preferred from a decree or an order D. having the force of a decree.
Here the order, though it finally determined the application under section 10, was not a decree; nor did it have the force of a decree for it is not strictly in accordance with the terms of section 11(2).
x x x x x x We feel that this Act is an ameliorative measure for the benefit of displaced persons.
It should be strictly interpreted, and only those orders should be considered decrees, which come strictly within the terms of section 9, 11(2) and 14(2).
Where however the order does not come strictly within the terms of those provisions, it should not be tracted as a decree, but only as an order determining the application.
" Here also a distinction was sought to be drawn between a dismissal of the application on the ground that the claimant was not a displaced person and a decision which decreed the claim on merits.
Barring this disinction made by the High Court, which we do not approve, we are in agreement with the other observations made by the Full Bench which are to the effect that the order passed by the Tribunal not being a decree clearly falls within the ambit of Sch.
II, article 11, of the Court Fees Act.
In a later decision of the same High Court in The Punjab National Bank Ltd. vs The American Insurance Company Ltd. the Court observed as follows: 682 "On an analysis of section 18(2), it cannot be said that the order under appeal passed by the learned Civil Judge is a decree or order having the force of a decree.
The appellant was, therefore, not liable to pay ad valorem court fee as required under Schedule I, article 1, of the Court Fees Act.
The tribunal is competent to pass a decree only after submitting a report to the Insurance Claims Board and after receiving their proposal.
If this is not done and the application is rejected on the ground that the loss did not take place in the circumstances specified in section 18(1) that order cannot be said to be a decree.
The reasoning of the Full Bench case with regard to sec.
11(2) is applicable to the present case which is under sec.
" The Punjab High Court in section Sohan Singh vs Liverpool and London and Globe Insurance Co. Ltd. appears to have taken the same view and observed as follows: "Having regard to the general purpose of the Act, which is almost entirely intended to benefit displaced persons and relieve them from the hardships consequent on their displacement, I do not think there can be any doubt that the Act was intended to benefit all displaced persons who had property in West Pakistan which suffered loss or damage and which was covered by an insurance policy entered into before 15 8 1947 and in force at the time when the loss or damage was sustained, whether this occurred before or after the 15th of August.
x x x x x .
My own view is that it was certainly never anybody 's intention that displaced persons, whether debtors or creditors should have to pay 'ad valorem ' court fees on appeals against orders dismissing their applications, and I am inclined to share the view of Khosla, J., that an order dismissing an application, whether under section 5 or section 10 or 13, is merely a final order which does not necessitate the drawing up of any decree sheet or amount to a decree and more particularly so in the case where an application has been dismissed, as in the present case, on a preliminary point without going into the merits at all.
" We find ourselves in complete agreement with the observation made by Falshaw, J., in the decision referred to above.
Our attention was, however, drawn by the learned counsal for the respondents to three decisions of the High Court taking contrary view, namely, Kishandas vs Parasram; Nabh Raj Notan Das vs Sidhu Ram Mool Chand and Sita Ram vs Mool Chand.
These decisions have on doubt held that decision of the Tribunal under the 683 Act amounts to a decree and, therefore, does not fall within the ambit of Sch.
II article 11 and ad valorem court fee is payable under the Court Fees Act.
We are, however, unable to agree with the view taken by these Courts.
In the first place, these decisions have not taken into consideration the nature of the proceeding under the Act and the clear distinction made by the Act itself between a suit and a proceeding.
These decisions have also not considered the various aspects which we have discussed above relating to the essential conditions of a decree and finally these decisions have also overlooked the main purpose and object of the Act and seem to have also ignored the rule of strict interpretation of a fiscal statute.
For these reasons, therefore, that the court fee of Rs. 5/ paid by the appellants on the cannot be held to be good law and must, therefore, be over ruled.
On a consideration of the facts, circumstances and the law on the subject we are clearly of the view that the memorandum of appeal in the instant case falls within the ambit of Sch.
II, article 11, and the view of the Taxing Judge that ad valorem court fee was payable under Sch.
I, article 1, of the Court Fees Act was legally erroneous.
We hold, therefore, that the court fee of Rs. 5/ paid by the appellants on the memorandum of appeal was sufficient.
Before concluding we must notice an argument advanced by the learned counsel for the respondents.
It was submitted that under section 5 of the Court Fees Act a decision of the Taxing Judge as designated by the Chief Justice is final and cannot be reopened in any Court.
It was submitted by Mr. Dikshit that in view of this provision the appeal to this Court by special leave was not maintainable.
We are, however, unable to agree with this contention.
Even though an order of the Taxing Judge may be final under section 5 of the Court Fees Act, the power of this Court under article 136 granted by the Constitution will override any stamp of finality given by a statute or Act passed by Parliament.
The finality which may attach under section 5 of the Court Fees Act cannot derogate from the power conferred by the Constitution itself on the Supreme Court.
Reliance, however, seems to have been placed on a decision of this Court in section Rm.
section Sp.
Satheppa Chettiar vs section Rm.
Ramanathan Chattiar and particularly on the following observations made by this Court: "In our opinion, the decision of the Division Bench of the Madras High Court that the memorandum of appeal should be taxed for the purposes of Court fee under section 7(iv) (b) of the Act is final under the provisions of section 5 of this Act.
That is why we have not allowed the merits of this order to be questioned in the present appeal.
We must, therefore, deal with the appellant 's contention on the basis that the court fees on his memorandum of appeal must be levied under section 7(iv) (b) of the Act.
" These observations prima facia seem to support the contention of the respondents but on a closer scrutiny of the entire decision it seems 684 to us that this Court was not at all called upon to decide the question of the effect of section 5 of the Court Fees Act as overriding the provision of article 136 of the Constitution.
The observations relied upon by the respondents are prefaced by the observations of Gajendragadkar, J., who spoke for the Court, where he has clearly mentioned that the Court was not called upon to consider this point, thus: "We are, however, not called upon to consider the point as to whether section 7 (v) would apply to the present suit or whether the present suit would fall under section 7(iv) (b).
" Further more, it appears that as the appellant before the Supreme Court was satisfied with the observations made by the Court, he did not press for a decision on the question of court fees and confined his arguments only to the question as to whether the court fees should be levied under section 7(iv) (b) of the Court Fees Act.
In these circumstances, therefore, the identical question raised before us was neither argued nor decided in the case referred to above by the respondents.
For these reasons the contention raised by the respondents on this score must be overruled.
The result is that the appeal is allowed, the order of the Taxing Judge directing payment of the ad valorem court fees is set aside and the High Court is directed to hear and dispose of the appeal in accordance with the law on the court fee already paid by the appellants which, in our opinion, is sufficient.
In the peculiar circumstances of this case and in view of somewhat uncertain position of the state of law, we make no order as to costs.
P.B.R. Appeal allowed. | Schedule II, Article 11 of the Court Fees prescribes a sum of Rs. 2/ as court fees in the case of a memorandum of appeal presented to a High Court when the appeal is not from a decree or order having the force of a decree.
The Tribunal appointed under the dismissed the petition filed by the appellant claiming certain sums from the respondents.
In appeal to the High Court from the decision of the Tribunal did not amount to a decree within the meaning of section 2(2) of the Code of Civil Procedure.
The taxing Judge, to whom question of payment of court fees was referred, came to the conclusion that the appellant should pay ad valorem court fees under Schedule I, Article 1 of the Court Fees Act.
On the question whether the decision of the Tribunal was a decree within the meaning of section 2(2) C.P.C. Allowing the appeal to this Court, ^ HELD: The memorandum of appeal in the instant case falls within the ambit of Schedule II, Article 11 of the Court Fees Act and the view of the taxing Judge that ad valorem court fees were payable under Schedule I Article 1 was legally erroneous.
[683C] (1) (a) In the definition of "decree" contained in section 2(2) of the Code of Civil Procedure, three essential conditions are necessary: (i) that the adjudication must be given in suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii) that the adjudication must be formal and final and must be given by a civil or revenue court.
[677E F] Under the 1951 Act, special Tribunal was created to enquire into the claims of displaced debtors or creditors.
It cannot be called a court in any sense of the term because the legislature had made a clear distinction between a Tribunal and a courts.
Secondly, since proceedings before a Tribunal statute with an application and not with a plaint the other important ingredient of a decree is wholly wanting.
Thirdly the claim before the Tribunal had been described as a preceding rather than a suit.
Therefore, none of the requirements of a decree is to be found in the decision given by the Tribunal even though the legislature may have described the decision given by the Tribunal even though the legislature may have described the decision as a decree.
A mere description of the decision of the Tribunal as a decree does not make it a decree within the meaning of the Court Fees Act.
[677G H] (b) The term "decree" used in Schedule II, Article 11, is referable to a decree as defined in section 2(2) of the Code of Civil Procedure.
As the decision of the Tribunal in the instant case does not fulfil the requirements of a decree, 665 it is not a decree within the meaning of Schedule II, Article 11 of the Court Fees Act.
[678D] Mannan Lal vs Mst.
Chhotaka Bibi ; Ram Prasad vs Tirloki Nath, ; Dawood Karim Ashrafi vs City Improvement Board.
; Antala Gope vs Sarbo Gopain, AIR [1962] Pat. 489; Mrs. Panzy Fernadas vs Mrs. M. F. Cusoros & others AIR [1963] All. 153; Dundoppa vs
S G. Motor Transport Company.
AIR [1966] Mys,. 150; Irshad Husain vs Bakshish Hussain ; Harrish Chandra Chatteree vg.
Bhaoba Tarini Debi, 8 C.W.N. 321; Taxing Officer, High Court Appellate side vs Jamnadas Dharamdas ILR ; Barras vs Aberdeen Steam Trawling and Fishing Company ; 411; Parmanand Lokumal and others vs Khudabadi Bhaibund Co operative Credit Bank Ltd. and others, AIR [1958] Raj. 146; The Punjab National Bank Ltd. vs The American Insurance Company Ltd. ILR and section Sohan Singh vs Liverpool and London and Globe Insurance Co. Ltd. AIR , referred to.
Parmanand Lokumal and others vs Khudabadi Bhaibund Co opertive Credit Bank Ltd. and others, AIR [1958] Cal.
675; Punjab National Bank Ltd. vs Firm Isardas Kaluram AIR ; Kishandas vs Parasram AIR and Sita Ram vs Mool Chand, ,. not approved.
(c) Where a legislature uses an expression bearing a well known legal connotation it must be presumed to have used the said expression in the sense in which it has been so understood.
Therefore, when the Court Fees Act uses the word "decree" which had a well known legal significance, the legislature must be presumed to have use this term in the sense in which it is which it is understood in the Civil Procedure Code.[678F; 679B] Barras vs Aberdeen Steam Trawling and Fishing Company ; , 411.
referred to.
There is no force in the contention of the respondent that under section 5 of the Court Fees Act the decision of the taxing Judge was final and could not be re opened in any court and as such no appeal under Article 136 was maintainable.
Even though the order of the taxing Judge may be final under section 5, the power of this Court under Article 136 will over ride any stamp of finality given by a statute.
The finality under section 5 cannot derogate from the power conferred by the Constitution on the Supreme Court.
[683E] section Rm Ar.
section Sp.
Satheppa Chettiar vs section Rm.
Ramanathan Chettiar , held inapplicable. |
il Appeal No. 861 of 1975.
(Appeal by Special Leave from the Judgment and Order dated 1 3 1975 of the Allahabad High Court (Lucknow Bench) in writ petition No. 405 of 1974.) A.K. Sen and S.K. Bisaria, for the appellant.
C.P. Lal for respondents 1 3.
Yogeshwar Prasad and R.N. Trivedi, for respondents.
No. 8.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is di rected against the judgment and order dated March 31, 1975, of Lucknow Bench of 65 the Allahabad High Court dismissing the writ petition No. 405 of 1974 filed by the appellant challenging the recommen dation made by a Selection Committee of the Lucknow Univer sity (hereinafter referred to as 'the University ') for appointment of respondent No. 8 as Professor of Anthropology in the Faculty of Arts of the University.
The facts giving rise to this appeal are: towards the end of the year 1973, the University put up an advertisement inviting applications from candidates possessing the follow ing qualifications to fill up a vacant post of Professor of Anthropology : "Essential: First or high second class Master 's degree and Doctorate in the subject con cerned with a good academic record, experience of teaching post graduate classes not less than 7 years and/or having conducted and successfully guided research work for 7 year 's in recognised institution and having published work of high standard in the subject concerned.
" Preferential: High academic distinctions.
" The appellant and( respondent No. 8 were the only two candidates who applied for the post in response to the advertisement.
Their respective qualifications are as set out hereunder : S.No.
Name Age Qualifications & Experience 1.
Dr. G. Sarana, 38 years H.S. (U. P. Bd) 1949 1 Div.
Head of Deptt.
Inter (B.H.U.) 1951 1 Div.
of Anthropology, B.A. (L.U.) 1953 I Div.
Karnatak University, M.A. (L. U.) 1965 I Div.
Dharwar.
Ph. D. (Harvard (U) 1966.
Published 28 research papers and 3 books.
Worked as : (1) Temp.
Lecturer in Anthro pology L.U. July, 1955 April, 1962.
(2) Lecturer in Anthropol ogy Punjab U April August, 1962.
(3) Visiting Lecturer Univ.
of California at Santa Barbara July 1965 June 1966.
(4) Karnatak Univer sity (September 1966 upto date as Reader and since 27 June 1970) as Profes sor.
66 S.No.
Name Age Qualifications & Experience 2.Dr.
K.S. Mathur, 44 years H.S. (U. P. Bd) 1944 1 Divn.
Reader and Head of the Inter (U. P. Bd) 1946 I Divn.
Deptt.
of Anthropology, B. Com (L. U.) 1950 I Divn.
Lucknow University.
Ph.D. (Australian National U) 1960.
Published several research papers, Worked as: (1) Lecturer in Anthropology L.U. 1951 64.
(2)Reader in Anthropology L.U. 1964 continuing (3) Sociologist National Council of Appl.
Economic Research, New Delhi March ' September 1960.
On February 27, 1974,, a Selection Committee consisting of Shri A.K.K. Mustafi, Vice Chancellor of the University, Dr. K.N. Shukla, Dean, Faculty of Arts and Professor & Head of the Department of Hindi of the University, and three experts viz., Dr. S.C. Dube, Dr. S.R.K. Chopra and Dr. T.B. Mayak, respondents 3, 4, 5, 6 and 7 respectively met to interview the candidates and to make their recommendation to the Executive Council of the University.
After interviewing the aforesaid two candidates, the Selection Committee re solved to recommend respondent No. 8 herein for appointment to the aforesaid post of Professor of Anthropology.
On coming to know of the recommendation, the appellant filed the aforesaid petition 'under Article 226 of the Constitution challenging the recommendation mainly on the ground that two out of the aforesaid three experts viz., Dr. S.C. Dube and Dr. S.R.K. Chopra were biased against him and in favour of respondent No. 8.
It was alleged by the appel lant that the respondent had close relations with the afore said two.
experts as he was instrumental in obtaining many remunerative assignments for them.
It was.
further averred by the appellant that whenever Dr. Dube visited Lucknow, he stayed with respondent No. 8.
It was also averred by the appellant that Dr. Chopra had strained relations with him on account of straight election contest between him and the latter for the office of the President of Anthropology Section of the Indian Science Congress for 19574.
The appellant further averred that in 1968 when he was serving in the Punjab University as a Lecturer in the Department of Anthropology headed by Dr. Chopra, the latter stubbornly opposed his application for leave to avail of the offer of fellowship from Harvard University and stopped forwarding his salary bills to the Executive, Council with the ulterior object of depriving him of the opportunity to attain higher academic qualification and thereby better his future pros pects with the result that he was compelled to resign his job and surrender three months ' salary in lieu of notice to avail of the offer.
67 The petition was vigorously contested by respondent No. 8.
On consideration of the material placed before it, the High Court, however, dismissed the application holding that though respondent No. 8 was the head of the department of Anthropology, he was not the only person responsible for bestowing various assignments either on Dr. Dube or on Dr. Chopra and that it was the Executive Council and the Academic Council which were responsible for giving those assignments to Dr. Dube and Dr. Chopra.
It was further held by the High Court that there was nothing unusual in Dr. Dube and Dr. Chopra 's knowing and enjoying the hospitality of respondent No. 8.
The fact that the appellant had an elec tion contest with Dr. Chopra was also, in the opinion of the High Court, of no significance, as such like contests were very common and ' it could not be said that Dr. Chopra had developed such a degree of ill will and hostility against the appellant for the latter 's standing as a candidate against him so as to render him incapable of acting impar tially when the task of selecting the best candidate was assigned to him and that it was not possible to.
presume that Dr. Dube and Dr. Chopra were in a position to influence the decision of the entire Selection Committee by injection bias in the minds of the other members.
The High Court finally held that from the facts relied upon by the appel lant, bias could not be spelt out.
In arriving at its decision, the High Court relied upon the following observa tions made by Frank, J. of the United States of America in re. Linahan.(1) "If, however, "bias" and "partiality" be defined to mean the total absence of preconceptions in the.
mind of the Judge, then no one has ever had a. fair triaL,, and no one ever will.
The human mind, even at infancy, is no blank piece of paper.
We are born with predispositions and the processes of education, formal and informal, create attitudes which precede: reasoning in particular instances and which, therefore, by definition, are preju dices.
" The High Court also held that the appellant having submitted to the jurisdiction of the Selection Committee, he could not be permitted to turn round and denounce the con stitution of the Committee.
Counsel for the parties have reiterated before us the contentions raised on behalf of their clients before the High Court.
In addition, it has been contended by counsel for respondent No. 8 that the impugned recommendation being in the nature of an interlocutory proceeding,, neither the writ petition nor the appeal arising therefrom could be maintained.
It is needless to emphasize that the principles of natural justice which are meant to .prevent miscarriage of justice are also applicable to domestic enquiries and admin istrative proceedings (See A.K. Karipak vs Union of India(2).
It cannot also be disputed that one of the funda mental principles of natural justice is that in case of quasi judicial proceedings, the authority empowered to decide the dispute (t) [1943], 138F. 2nd 650 at 652.
(2) :[1970] 1 S.C.R. 457 :A.I.R. 1970 S.C. 150.
68 between opposing parties must be one without bias by which is meant an operative prejudice, whether conscious or uncon scious towards one side or the other in the dispute.
(See Nageswara Rao vs
A.P. State Road Transport Corporation(1) and Gullapalli Nageshwar Rao v State of A.P.(2).
It would be advantageous at this stage to refer to the following observations made by this Court in Manak Lal vs Prem Chand(3).
"Every member of a tribunal that sits to try issues in judicial or quasi judical proceedings must be able to act.
judicially; and the essence of judicial decisions and judicial administration is that judges should be able to act impartially, objectively and without any bias.
In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be wheth er a litigant could reasonably apprehend that a bias attributable 'to a member of the tribunal might have operated against him in the final decision of the tribunal.
It is in this sensethat it is often said that justice must not only be done but must also appear to be done." Again as held by this Court in A. K. Karipak 's case (supra), reiterated in section Parthasarthi vs State of Andhra Pradesh(4) and followed by the High Court of Jarainu & Kashmir in Farooq Ahmed Pandey and Ors.
vs Principal Regional Engineering College & Anr.(5) the real question is not whether a member of an administrative Board while exercising quasi judicial powers or discharging quasi judicial functions was biased, for it is difficult to prove the mind of a person.
What has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased.
In decid ing the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration.
In a group deliberation and decision like that of a Selection Board, the mem bers do not function as computers.
Each member of the group or board is bound to influence the oth ers, more so if the member concerned is a person with special knowledge.
His bias is likely to operate in a subtle manner.
At page 156 of "Principles of AdministratiVe Law" by J.A.G. Griffith and H. Street (Fourth Edition), the position with regard to bias is aptly and succinctly stated as follows : "The prohibition of bias strikes against factors which may improperly influence a judge in deciding in favour of one party.
The first of the three disabling types of bias is bias on the sub ject matter.
Only rarely will this bias invalidate proceedings.
"A mere general interest in the general object to be pursued would not disqualify," said Field J., holding that a magistrate who sub scribed to the Royal Society for the Prevention of Cruelty to Animals was not thereby disabed (1) [1959] Supp. 1 S.C.R. 319 :A.I.R. 1959 S.C. 308.
(2) ; (3) ; (4) (5) 69 from trying a charge brought by that body of cruel ty to a horse.
There must be some direct connec tion with the litigation.
If there is such preju dice, on the subject matter that ,the court has reached fixed and unalterable conclusions not founded on reason or understanding, so that there is not a fair hearing, that is bias of which the courts wilt take account, as where a justice an nounced his intention of convicting anyone coming before him on a charge of supplying liquor after the permitted hours . . .
Secondly, a pecuniary interest, however, slight will disqualify, even though it is not proved that the decision is in any way affected.
The third type of bias is personal bias.
A Judge may be a relative, friend or business associ ate of a party, or he may be personally hostile as a result of events happening either before or during the course of a trial.
The courts have not been consistent in laying down when bias of this type will.
invalidate a hearing.
The House of Lords in Frome United Brewering vs Bath Justices(1) approved an earlier test of whether "there is a real likelihood of bias.
" the House of Lords has since approved a dictum of Lord Hewart that "justice should not only be done,, but should manifestly and undoubtedly be seen to be done" al though it did not mention another test suggested by him in the same judgment: Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of jus tice.
" At page 225 of his Treatise on "Judicial Review of Administrative Action" (Third Edition), Prof. S.A. De Smith, has stated as follows with regard to Reports and Preliminary decisions : "The case law on the point is thin, but on principle it would seem that where a report or determination lacking final effect may nevertheless have a seriously judicial effect on the legally protected interests of individuals (e.g. when it is a necessary prerequisite of a final order) the person making the report or preliminary decision must not be affected by interest or likelihood of bias.
" From the above discussion, it clearly follows that what has to be seen in a case where there is an allegation of bias, in respect of a member of an administrative Board or body is whether there is a reasonable ground for believing that he was likely to have been biased.
In other words whether there is substantial possibility of bias animating the mind of the member against the aggrieved party.
We do not, however, consider it necessary in the present case to go into the question of the.reasonableness of bias or real likelihood or bias as despite the fact that, the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the (1) 70 interview raise even his little finger against the consti tution.
of the Selection Committee.
He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it.
Having done so, it is not.
now open to him to turn round and question the constitution of the Committee.
This view gains strength from a decision of this Court in Manak Lal 's case (Supra) where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him.
The following observations made therein are worth quoting: "It seems dear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.
" It is also difficult to understand how the writ petition or for that matter the present appeal before us is maintain able when the recommenlation of the Selection Committee has still to be scrutinzed by the Excutive Council of the Uni versity and either accepted or rejected by t and other remedies by way of representation to.
the Executive Council and an application for reference of the matter under section 68 of the Uttar Pradesh Universities (Reenactment and Amendment) Act, 1974, 0 the Chancellor are still open to the appellant and have not been.
exmusted.
For the foregoing reasons, we find ourselves unable to allow the appeal.
In the result, the appeal fails and is hereby dismissed but in the circumstances of the case with out any order as to costs.
M.R. Appeal dismissed. | The appellant and respondent No. 8 applied for the vacant post of Professor of Anthropology in the Faculty of Arts, in answer to an advertisement put up by the Lucknow University.
A selection committee of five persons including three experts, interviewed them and recommended respondent No. 8 for the post.
The appellant 's writ petition challeng ing the recommendation was dismissed by the High Court.
The appellant contended before this Court that two of the expert members of the selection committee were unduly biased against him and in favour of respondent No. 8.
The appeal was contested on two grounds.
Firstly, that by submitting to the jurisdiction of the selection committee, the appellant had waived his right to denounce its constitution and sec ondly, that the impugned recommendation being an interlocu tory proceeding against which remedies were available, the writ petition was not maintainable.
Dismissing the appeal, the Court, HELD: 1.
Despite the fact that the appellant knew all the relevant facts,he seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it Having done so it is no now open to him to turn round and question the constitution of the committee.[70 A B] Manak Lal vs Prem Chand ; 1957 S.C. 425, applied.
Linahan 650; A. K. Karipak vs Union of India ; Nageshwar Rao vs State of A.P. ; 1959 SC 1376; section Partha rarathi vs State of Andhra Pradesh ; Farooq Ahmad Bandey and Ors.
vs Principal Regional Engineering College & Anr.
[1975] I&K L.R. 427; Principles of Adminis trative Law by I.A.G. Griffith and H. Street (4th edition) and Judicial Review of Administrative Action ' (3rd Edition) by Prof. S.A. De Smith, referred to. 2.
The recommendation of the selection committee has still to be scrutinised by the Executive Council of the University and either accepted or rejected by and other remedies by way of representation to the executive council and an application for reference of the matter under section 68 of the Uttar Pradesh Universities (Reenactment and Amendment) Act, 1974, to the Chance or are till open to the appellant and have not been exhausted The writ petition or he present appeal before us is not maintainable.
[70 C D] |
Civil Appeals Nos.
36 to 54 of 1971.
Appeals by special leave from the judgment and order dated 25 8 1970 of the Labour Court, Hyderabad in Civil Misc.
Petitions Nos.
133 to 147 and 165 to 168 of 1970.
AND Civil Appeal No. 1153 of 1972.
Appeal by special leave from the judgment and order dated 20 10 71 of the Labour Court, Hyderabad in Misc.
Petition No. 64/71.
AND Civil Appeal No. 312 of 1973.
Appeal by special leave from the judgment and order dated 11 2 1972 of the Labour Court, Hyderabad in Misc.
Petition No. 239/70.
AND Civil Appeals Nos.
325 to 339 of 1973.
Appeals by special leave from the judgment and order dated 7th, 9th, 11th and 15th February, 1972 of the Labour Court Hyderabad in Misc.
Petitions Nos.
231 238/70, and 240 246/70.
L.N. Sinha, Sol.
General of India and B. Parthasarthy, for the appellants.
G. Narayana Rao and K.S. Ramanujacharyulu, for the respondents.
The Judgment of the court was delivered by BEG, J.
A number of appeals filed by the Andhra Pradesh State Road Transport Corporation are before us by grant of special leave under Article 136 of the Constitution of India, against orders of a Labour Court passed under section 33C(2) of the .
The facts of the first of these appeals may be stated to illus trate the kind of circumstances in which a common question of law involved in these appeals arises.
The respondent P. Venkateswara Rao, who was employed on 6th October, 1933, retired on 10th February, 1958, after putting in more than 34 years of service.
As he was a former employee of the Nizam 's State Railway, his service condi tions were governed by the provisions of the Government of Hyderabad, Railway Department Establishment Code of 1949 (hereinafter referred to as 'the Code ').
He claimed that he was entitled to receive a gratuity at a half month 's salary for 18 1003 SCI 76 250 each year of qualifying service subject to a maximum of 15 months ' salary as laid down in Rule 8.01 of the Code, which says: "8.01.
Condition of eligibility.
Gratuity is granted at the discretion of Government in the Railway Department as a reward for good, efficient, continuous, and faithful service to a permanent railway servant if he is not a subscriber to the Provident Fund or to the Guaranteed Provident Fund, on his quitting the service, or, in the event of his death before receipt of gratuity to his widow or widows and/or dependent children.
For pur poses of this rule a monthly paid railway servant borne on the temporary establishment whose pay is charged to open line capital and revenue works on which he is employed shall be deemed to be a perma nent railway servant only after he had rendered 4 years ' continuous service, ' railway servants be longing to the category of workshop staff, employed otherwise than in a supervisory capacity, shall also be considered as permanent railway servants only after they have rendered 4 years ' continuous service".
The other rules which seemed to have a bearing on the question before us are as follows: "8.02.
A gratuity cannot be claimed as of right.
No gratuity shall be granted to a railway servant who has been removed from service by reason of any misconduct on his part, save with the ex press sanction of the authority competent to sanc tion the gratuity.
Qualifying service.
Except where otherwise provided for in these rules, service must be con tinuous and must also, in the opinion of the Gener al Manager, be "good", "efficient" and "faithful" service to qualify for the gratuity.
A gratuity may be granted on the fulfilment of the following conditions : (i) Completion of thirty years ' service; or (ii) Attainment of the age of fifty five years, provided not less than fifteen years ' serv ice has been completed; or (iii) Retirement or resignation after fifteen years ' service, on grounds admitted by the authori ty competent to sanction the gratuity as good and sufficient from the point of view of the Adminis tration; or (iv)Retirement with less than fifteen years ' service, due to (a) permanent physical or mental 'incapacity, or (b) abolition of appointment if other suitable employment cannot be found for the railway servant.
251 8.12.
The maximum period of service qualifying for gratuity is thirty years.
A railway servant who is retired in service after he has attained the age of fifty five years may be permitted to count the whole of his service, subject to the limit of thirty years, as qualifying for, gratuity.
Service for which a railway servant has already received a retiring gratuity or special contribution to the provident fund or to the guaranteed provident fund counts as qualifying service for the purpose rule 8.05 but it shall be excluded in calculating the amount of gratuity admissible under rule 8.19.
When a railway servant is injured in the performance of his duty and is obliged to leave the service, he may be given the gratuity he had earned under these rules in addition to any compensation gratuity awarded to him on account of his injury.
Breaks in service. (i) Ordinarily, a break in the service of a railway servant entails forfeiture of his past service, but, in deserving cases, this rule may be relaxed under orders of the Government in the Railway Department, or in cases of breaks not exceeding fifteen days in respect of railway servants other than Class I or Class II under the orders of the General Manager, the period of break whether in permanent or temporary service or both being treat ed as dies non.
(ii) A railway servant who has been discharged from the service may, subject to the other conditions of these rules, on re employment on the Railway, be permitted to add the period of his former qualifying service to his future service for the purpose of determining the gratuity admissible to him.
Amount of gratuity.
The amount of gratuity admissible shall be as follows: (i) In cases of less than fifteen years ' qualify ing service falling under rule 8.05(iv) above, a gratuity limited ordinarily to half a month 's pay, and, in special cases, where circumstances warrant, to one month 's pay, for each year of qualifying service, subject to a maximum of six months pay in all.
(ii) In all other cases falling under the rules in this chapter half a month 's pay for each year of qualifying service, subject to a maximum of fifteen months ' pay" 252 The respondent claimed Rs. 3962.50 as gratuity.
The defence of the appellant was, inter alia, that a sum of Rs. 3962/ had already been paid to the respondent on 13th March, 1968, as a special con tribution to Provident Fund.
It was urged that no employee is entitled to any grant at all if he is a subscriber to Provident Fund.
It is pointed out that Rule 8.01 set out abOve made a claim of pay ment of gratuity admissible in those cases where the employee was not a subscriber to the Provident Fund.
On the face of it, this contention, which has been repeated before us, seems to be sound and unanswerable.
The Labour Court had, however, over ruled the main defence of the appellant on the strength of a previous proceeding under section 15(2) of the Payment of Wages Act, in which the respondent had claimed a payment out of his gratuity, to the extent of 2,000/ , on the ground that the gratuity claimable fell within the definition of "wages" under the Payment of Wages Act.
It had been held that he was entitled to such payment although he was a subscriber to a Provident fund.
In that case, the respondent had applied only for deducting Rs. 1256.79 due from him to the Co operative Credit Society of the appellant Corporation from the gratuity which would have become payable to him on retirement.
He was declared entitled to Rs. 1630/only.
The two issues framed in that case were as follows: 1.
Whether gratuity is wages within the meaning of payment of Wages Act ? 2.
Whether the Corporation had the discretion to refuse to pay the gratuity to the respondent and whether it cannot be questioned ? The case had gone up to the High Court of Andhra Pradesh in revision under Section 115 Civil Procedure Code.
The High Court, while rejecting the objection advanced on behalf of the appellant Corporation in a case arising out of the proceeding under the Payment of Wages Act, had observed that Rule 8.15 indicated that Rule 8.01 did not stand in the way of awarding gratuity to a person who is also entitled to the Provident Fund.
We are unable to read Rule 8.15 in the same way as the High Court had done it in the earlier case.
We think that Rule8.15 only explains how Rule 8.05 was to be applied in certain cases.
It lays down that the period for which gratuity of retirement or contribution to the Provident Fund had been received will count towards the qualifications laid down in Rule 8.05.
It then clarifies that this period will not, however, affect the calculation of the amount of gratuity under Rule 8.19.
The obvious intention of Rule 8.15 was that the amount already received either as gratuity or contribution to the Provident Fund will not be paid again to the employee.
The period for which payments had already been made, which may happen in certain cases, such as those of broken service or of anticipatory payments, like the one to satisfy debt of the respondent P. Venkates wara Rao, to the Cooperative Society, would, nevertheless, count towards the qualifying period prescribed by Rule 8.05.
253 On the strength of the judgment of the High Court, in the previous proceeding, which was the basis of the decision of the Labour Court, Learned Counsel for the respondent had put forward a preliminary objection that the matter cannot be reagitated.
It is clear that the provisions of Section 11 C.P.C. have no application to such a case.
The nature of the proceedings and of authorities before which the claims were made were different.
It is, however, urged that the principles of res Judicata should bar raising the same question once again in a subsequent proceeding.
It is true that the High Court had made observations which had a clear bearing on the question to be decided subsequently, but, it will be noticed that the question now before us was not directly the subject ,matter of the issues framed in the previous proceeding which have been set out above.
Nevertheless, an objection was taken on behalf of the appel lant.
that a basic condition for the eligibility of a claim for gratuity had not been satisfied inasmuch as the re spondent was a subscriber to a Provident Fund.
This objec tion had been over ruled.
It was held that the gratuity could be claimed as of right.
We do not know what direction was exactly given in that case.
The finding, however, that the petitioner was entitled to a payment of gratuity, as of right, to the extent of Rs. 1630/ , appears to have been given as a result of the decision that he was entitled to the payment of this much gratuity and no more for the purposes of the claim made in the proceedings under the Payment of Wages Act.
It seems to us that, when gratuity was awarded in a previous proceeding, as a part of Wages, in the teeth of the clear provision of Rule 8.01 imposing a condition precedent, which was not satisfied, to eligibility for it, it is diffi cult to hold that such a patently illegal view could or should be held to be binding on the parties in a subsequent claim for gratuity on the same footing, before the Labour Court.
We find that, even if we were to hold, as we think we must, as the matter was not taken further, that the declaration of entitlement to Rs. 1630/ in the previous proceeding should be held to be binding between parties, we cannot apply the same reasoning to the subsequent claim made before the Labour Court which is now before us.
The Labour Court had not even deducted the amount already awarded earlier from the amount awarded by its judgment now before us.
The most we can say is that the previous recog nition of a claim to gratuity, practically in excess of jurisdiction to do so, debars the Labour Court from going into the question whether the respondent was rightly paid that amount as gratuity in the past.
We have already set out the rule which disentitles him from being eligible for the award of gratuity when he contributes to a provident fund also.
We have also interpreted the rule which was misunderstood earlier by the High Court.
We need not here set out the relevant provident fund rules contained in Chapter 7 of the Code.
It is true that the whole idea of the Provident Fund, to which the employer also contributes, seems to be different from a gratuity to which "good, continuous, efficient and faithful servant" may entitle an employee, yet, we are unable to hold 254 that the employee is able to claim the benefit of ,both a ,guaranteed or other Provident Fund, to which the employer contributes, as well as to gratuity, as of right, in the face of the provisions of Rule 8.01 and 8.02 of the gratuity rules set out above.
Although we have held that a claim to gratuity, as of right, cannot be put forward, under the Code, by an employee who gets the benefit of a Provident Fund also, yet illegal payments of gratuity in the past will not affect legal claims .to
Provident Fund.
In Civil Appeal No. 1153 of 1972, the amount awarded to an employee was in respect of payment due towards the guaranteed Provident Fund which had nothing to do with a claim for gratuity.
This claim was, therefore rightly allowed.
Civil Appeals No. 36 to 54 of 1971 and Civil Appeals Nos.
325 to 339 of 1973 involve only claims to gratuity by persons who are entitled to Provident Fund.
These claims, according to the view taken by us, are not admissible under the law.
Similar is the position in Civil Appeal No. 312 of 1973.
For the reasons given above, we allow Civil Appeals Nos.
36 to 54 of 1971, and Civil Appeal No. 312 of 1973, and Civil Appeals Nos. 325 to 339 of 1973, and dismiss the claims under Section 33C (2) of the , of the respondents in these appeals.
We, however, dismiss the Civil Appeal No. 1153 of 1972.
The parties will bear their own costs.
S.R. C.As. 36 54/71, 312/73 and 329 339/73 allowed.
No. 1153/72 dismissed. | In APSRTC vs Rammohan Rao (Civil revision petition No. 1598/1968, dated April 25, 1969), the High Court of Andhra Pradesh held: (i) that wages under section 2(iv)(d) of the Payment of Wages Act included gratuity and (ii) that Rule 8.01 of the Hyderabad Government Railway Establishment Code, 1949, did not stand alone and read with Rule 8.15 it meant that an employee who has received the Provident Fund was not disentified to gratuity.
Following the said deci sion, the labour court in a11 the appeals allowed the claims of the respondents to gratuity in addition to Provident Fund vide its order dated August 25, 1970.
Dismissing the appeals by special leave the Court, HELD: (i) Rule 8.15 of the Hyderabad Government Railway Establishment Code, 1949, cannot be read in the same manner as the Andhra Pradesh High Court had done it in the earlier case.
Rule 8.15 only explains that the how Rule 8.05 was to be applied in certain cases.
Rule 8.05 lays down that the period for which gratuity on retirement or contribution to the provident Fund has been received will count towards the qualifications in Rule 8.05 and further clarifies that the period will not, however, affect the calculation of the amount of gratuity under Rule .8.19.
The obvious intention of Rule 8.15 was that the amount already received either as gratuity or contribution to the Provident Fund will not be paid again to the employee.
The periods for which payments had already been made which may happen in certain cases, would nevertheless count towards the qualifying period prescribed by Rule 8.05.
[242F H] (2) When gratuity was awarded in a previous proceeding as a part of wages in the teeth of the clear provision of Rules 8.01 imposing a condition precedent which was not satisfied to eligibility for it, the contention that such a patently illegal view could or should be held to be binding on the parties in a subsequent claim for gratuity on the same too.ting is unacceptable.
The most the court can say is that the previous recognition of a claim to gratuity, prac tically in excess of jurisdiction to do so, debars the labour court from, going into the question whether the respondent was rightly paid that amount as gratuity in the past.
In the instant ease, the provisions of section 11 of the C.P.C. have no application.
[253 D G] (3) It is true that the whole idea of the Provident Fund to which the employer also contributes, seems to be.
different from a gratuity to which "good.
continuous, effi cient and faithful" service may entitle an.
employee yet he cannot claim the benefit of both the guaranteed or other Provident Fund to which the 249 employer contributes as well as to gratuity as of right in the face of the provisions of Rule 8.01 and 8.02 of the Gratuity rules.
Illegal payments of gratuity in the past will not affect legal claims to Provident Fund.
[253 H. 254, A] Andhra Pradesh State Road Transport Corporation vs
M. Rammohan Rao (Civil) Revision Petition No. 1598/1968 decided on April 25, 1969), (A.P.), over ruled. |
Civil Appeal No. 1223 1975.
From the Judgment and Order dated 4 3 75 of the Calcutta High Court in I.,.
P.A. No. 74/74.
V.N. Tarkunde, and H.K. Puri, for the appellant.
V section Desai, 1).
N. Mukherjee and N.R. Choudhary, for respondent No. I. A.K. Sen and 5.
P. Nayar, for respondent No. 2.
The Judgment of the Court was delivered by GOSWAMI, J.
This is an appeal by the defendant tenant by certificate from the judgment of the Calcutta High Court.
The question that arises for decision is whether a landlord who is a co owner of the premises with others is "the owner" within the meaning of section 13(1)(f) of the West Bengal Premises Tenancy Act, 1956 (briefly the Act).
It will turn on the interpretation of the expression "if he is the owner" under section 13(1 )(f) of the Act.
Briefly the facts are as follows : The plaintiff respondent (hereinafter to be referred to as the plaintiff) is admittedly the landlord of one late Bhagat Ram Pasricha predecessor in interest of the present appellant and respondents 2 and 3 (hereinafter to be re ferred to as the defendants).
The tenancy was in respect of a part of the premises No. 221/1, Rash Behari Avenue, Cal cutta, being the entire second floor of the building.
The tenancy commenced some time in 1946 and Bhagat Ram Pasricha promised to vacate the said premises within March 31, 1947 and positively after March 31, 1948.
The plaintiff is only a co sharer owner of the suit premises being one of the heirs of his father late Motilal Sen who, originally owned the property.
The plaintiff instituted a .suit for eviction of the defendants in December 1962 on the twin pleas of default in payment of rent and reasonable requirement of the prem ises for his own occupation as well as for the occupation of the members of the joint family consisting of his mother and his married brother.
The suit was contested by the defendants.
The trial court decreed the suit on both the grounds.
On the question of reasonable 397 requirement the trial court held that the plaintiff being only a co sharer owner cannot be said to be the owner within the meaning of section 13(1)(1) of the Act.
The trial court, however, held that the plaintiff succeeded in proving the case of reasonable requirement of the members of the family "for whose benefit the premises were held by him" within the meaning of the second part of section 13(1) (f).
On appeal by the defendants the lower appellate court did not accept the plea of default but affirmed the finding of reasonable requirement although the learned Judge was not specific as to which the two material parts of section 13(1)(f) would govern the case.
In the second appeal by the defendants before the learned single Judge of the High Court the question of factual existence of reasonable requirement was not dis puted.
It was, however, contended before the learned single Judge that even though the actual reasonable requirement of the premises was established the plaintiff was not entitled to a decree for eviction being only a co sharer and as such not "the owner" of the premises within the meaning of section 13(1) (f).
It was submitted that a co owner was only a part owner and was not entitled to an order of evic tion under section 13(1)(f) of the Act.
The learned single Judge accepted the contention of the defendants and dis missed the suit observing : "it will not be sufficient if the reasonable requirement is of all members, of the family of the co owners but such co owners must again be the landlords who only are made entitled to a decree for recovery of the possession under section 13 (1) (f).
In the letters patent appeal before the Division Bench the High Court did not agree with the single judge and set aside the decision and decreed the suit for eviction.
Mr. Tarkunde, the learned counsel appearing on behalf of the appellant submits that the decision of the Division Bench is erroneous and we should accept the views of the single Judge.
He submits that a landlord in order to be able to evict a tenant under section 13(1)(f) must be an absolute owner of the premises from which eviction is sought.
A co owner landlord without impleading all the own ers of the premises is not entitled to ask for eviction under section 13 (1)(f) of the Act.
Mr. A.K. Sen, who ap pears on behalf of the sisters of the appellant (respond ents 2 and 3) also emphasised upon this part of the case while adopting the arguments of Mr. Tarkunde.
Mr. Desai, on the other hand.
contests this proposition and submits that the decision of the Division Bench is correct.
398 Mr. Tarkunde referred to certain decisions in support of the submission that a suit by one of the co sharers for eviction of a tenant has always been held to be incompe tent.
Counsel relied upon the decision in Bollye Satee and another vs Akram, Ally and other.
C) This was a case in which it was held that a lessee of a jalkar cannot be eject ed by a suit brought by one only of the several proprietors all of whom had granted the lease.
This case, with its own facts, is, therefore, of no aid in the present controversy.
In Kattusheri Pishareth Kanna Pisharody vs Vallotil Manakel Narayanan Somayajipad and others,(2) the suit was brought by the plaintiffs on behalf of an association (sabha) to recover certain lands demised by the sabha.
It was held that all the co owners must join in a suit to recover property unless the law otherwise provides.
This decision will again be of no assistance to the appellant.
In Balakrishna Sakharatm vs Moro Krishna Dabholkar(3) it was a case of one of the co sharer jagirdars who as a manag er filed a suit for recovery of Rs. 99/ being the balance due to him on account of the highest rate of assessment for the three years preceding the suit.
The defendant disputed the plaintiff 's right to demand the highest rate of assessment and contended that the plaintiff had no right to sue alone as he and his co sharers owned the jagir and the defendant cultivated the land in that village by paying the jagirdars something less than the full assess ment prior to the years in the suit.
It was in that context that the following observation appears in the judgment which is relied upon by counsel: "We must, therefore, treat it as settled law that a co sharer who is manager even with the consent of his co sharers can not maintain a suit by himself and in his own name to eject a tenant who has failed to comply with a notice calling on him to pay enhanced rent".
This proposition of law also purports to be in line with the two earlier decisions relied upon by counsel and is of little aid to him.
In Dwarka Nath Mitter and others vs Tara Prosunna Roy and others,(4) the objection of the defendant was to the form of the suit and it was pressed from the very commence ment by the defendant.
This was a suit by the plaintiffs for balance of arrears of rent making other co sharers as defendants.
The court held that unless the co sharers had refused to join in the suit or had otherwise acted prejudicially to their interests the plaintiffs were not entitled to sue alone.
In this view of the matter the suit was dismissed.
We do not see how this decision can come to the assistance of the appellant.
It is strenuously submitted by Mr. Tarkunde that unless the landlord is also the absolute owner of the premises, he cannot evict the tenant under section 13(1)(f).Argument
Landlord means landlords under the appropriate General Clauses Act and, therefore, since there are (1) Cal.
(2) Mad.
(3) Bom.
(4) Cal.
399 other co sharers the plaintiff alone could not file the suit for eviction.
There are two reasons for our not being able to accept the above submission.
Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non joinder of other plaintiffs.
Such a plea should have been raised, for what it is worth, at the earliest oppor tunity.
It was not done.
Secondly, the relation be tween the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction.
The tenant in such a suit it estopped from questioning the title of the landlord under section 116 of the Evidence Act.
The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy.
Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant.
It is, therefore, inconceivable to throw out the suit on account of non pleading of other co owners as such.
Being faced with this position counsel submits that since the requirements are found to be of the co owners, the suit cannot be decreed in their absence.
This is a repetition of the first submission in a different form.
Counsel relied upon Mclntyre and another vs Hardcastle(1).
The English rule laid down in that decision is that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence the suit would fail.
The re quirement, according to the decision, must be of all the landlords.
vs Amarendra Nath Roy Choudhuri and Ors,(2) Tarak Chandra vs Ratanlal Ghosal;(3) Taherbhai Hebtullabhai and another vs Ambalal Harilal Shah & Ant.(4).
Deb Ranjan Chatterjee vs Swaranarani Biswas & another(5).
Indeed the rule in Mclntyre 's case (supra) is abhorrent to the Indian conception and structure of social life of our country with its benign sensitivity and ties, which is not based on pure individualism.
A widowed sister, sud denly shipwrecked in the mid stream of married life, with no other help, returns to parental home or to her brothers ' where sympathetic and affectionate shelter is readily avail able to her.
In such a case the additional requirement of the widowed sister and her children may furnish a reasonable requirement of the father or the brothers for the purpose of eviction of their tenant.
It is enough if the requirements are of any one of the members of the family or of dependents to furnish a reasonable plea for eviction on the ground of personal requirement.
We endorse the parting of the ways from the English rule on this aspect of the matter by the High Courts.
This is in accord with healthy Indian tradi tion.
(1) (2) (3) (4) I.L.R. [1966] 7 Guj. 963 (5) 400 Keeping in the forefront the observations of the Bombay High Court in Vagha jesing vs Manilal Bhagilal Desai(1) (at page 252) where reference has been made to the land lords ' rights belonging jointly to several persons and hence warranting a suit by all the coowners, Mr. Tarkunde drew our attention to the admission of the plaintiff in his deposition regarding the death of his father in 1949 and that Bhagat Ram Pasricha was inducted by him as instructed by his father to do so.
From this he submitted that all the heirs of late Motilal Sen were the landlords and, there fore, they should have been impleaded as plaintiffs in the suit.`
We are unable to give effect to this submission taken for the first time in this Court in view of the clear ac knowledgement and admission of the defendants and concur rent findings of the courts that the plaintiff is their landlord.
Mr. Tarkunde also relied ' upon a Full Bench decision of the Gujarat High Court in Nanalal Girdharlal and another vs Gulamnabi Jamalbhai Motorwala and others(") and read to us the following passage at page 146: "It is, therefore, clear that the rule that a co owner may maintain an action to eject a tres passer without joining other co owners in such action can have no application where a co owner seeks to evict a tenant who is in possession of the property after determination of the lease.
Such a tenant can be evicted only by an action taken by all co owners" But this rule is not applicable in the present case as would appear from the decision itself.
The Gujarat decision at para 10 of the judgment excludes two categories described therein and the rule of estoppel applies to these two categories.
The present case, even according to this deci sion, fails under the excepted category.
Before we come to the real question at issue we may turn to section 13(1)(f) of the Act as it was at the mate rial time: Sec. 13.
protection of tenant against eviction (1) Notwithstanding anything to.
the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely (f) where the premises are reasonably re quired by the landlord either for purposes of building or rebuilding or for making thereto substantial additions or alterations or for his own 'occupation if he is the owner or for the occupa tion of any person for whose benefit the premises are held".
(1) 37 Born.
L.R. 249.
(2) A.I.R.1973 Guj. 131.
401 This is not a case attracting the second part of section 13(1)(f), that is to say, the clause providing for the occupation of any person for whose benefit the premises are held.
We will not, therefore, refer to the submission of the appellant and to the decisions relied .
upon by him with reference to that clause.
The present case, on the facts found, is covered by the first part of section 13(1 )(f), namely, where the premises are reasonably required by the landlord for his own occupa tion if he is the owner.
There is no dispute that the plaintiff is the landlord.
It is, however, found that he is one of the co owners of the premises the other co sharers being his mother and married brother, who reside in the Same premises along with him
The premises m suit, namely, the second floor of the building in occupation of the tenant is required by the plaintiff for occupation of the members of the joint family and for their benefit.
A major portion of the ground floor of the building accommodates the joint family business and the first floor is found by the court to be inadequate to the requirements of the large family of eighteen members including the widowed mother.
That the particular requirement is reasonable is no longer in controversy.
The only question is whether a decree can still be passed in favour of the plaintiff since he is not the absolute and full owner of the premises, sharing, as he does, the interest in the premises along with other co sharers.
The principal question, therefore, is whether the plain tiff being a co owner landlord can be said to reasonably require the premises for his own occupation within the expression "if he is the owner" in section 13 ( 1 ) (f).
Mr. V.S. Desai reads to us from Salmond on Juris prudence (13th edition) and relies on the following passage in Chapter 8 (Ownership), paragraph 46 at page 254: "As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible.
Two or more persons may at the same time have ownership of the same thing vested in them.
This may happen in several distinct ways, but the simplest and most obvious case is that of co ownership.
Partners, for example, are co owners of the chattels which constitute their stock in trade of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers.
It is not correct to say that property owned by co owners is divided between them, each of them owning a sepa rate part.
It is an undivided unity, which is vested at the same time in more than one person .
The several ownership of a part is a different thing from the co ownership of the whole.
So soon as each of two co owners begins to own a part of the thing instead of the whole of it, the co ownership has been dissolved into sole 402 ownership by the process known as partition.
Jurisprudentially it is not correct to say that a co owner of a property is not its owner.
He owns every part of the composite property along with others and it cannot he said that he is only a part owner or a fractional owner of the property.
The position will, change only when parti tion takes place.
It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co owner of the premises is not the owner of the premises within the meaning of section 13(1)(f).
It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13(1)(f) as long as he is a co owner of the property being at the same time the acknowledged landlord of the defendants.
Mr. Tarkunde also submitted that since the Calcutta High Court has held in Yogamaya Pakhira vs Santi Subha Bose(1) that a permanent lessee is not an owner within the meaning of section 13 (1)(f) a co owner would not be in a better position.
We are of opinion that a co owner is as much an owner of the entire property as any sole owner of a property is.
We, however, express no opinion about the case of a permanent lessee as this point does not arise in this ap peal.
As all the submissions of the appellant fail, the appeal is dismissed.
We will, however, make no order as to costs.
P.H.P. Appeal dis missed. | The plaintiff respondent is one of the co owners of the premises which were let out to the appellant tenant.
The plaintiff filed a suit for eviction under section 13(1)(f) of the West Bengal Premises Tenancy Act 1956.
The grounds for eviction were the non payment of the rent and the reasonable requirement of the premises for the landlord.
The trial court held that the plaintiff being only a co sharer cannot be said to be the owner within the meaning of section 13(1)(f).
The trial court, however, held that the plaintiff succeeded in proving the reasonableness of the requirement of the members of the family for whose benefit the premises were held by him and, therefore, granted a decree for eviction.
An appeal filed by the appellants failed.
In the second appeal filed by the appellants it was contended that al though reasonable requirement of the premises were estab lished, the respondent was not entitled to a decree for eviction since he was only a co sharer and, therefore, not the owner of the premises.
The single Judge of the High Court held that it will not be sufficient if the reasonable requirement is of all the members of the family of the co owners but such owners must again be the landlords who only are entitled to a decree for recovery of the possession under section 13(1)(f).
A Division Bench set aside the decision of the Single Judge on the ground that a co owner is as much as absolute owner as a sole owner.
In appeal by special leave, the appellant contended: A landlord to be able to evict a tenant under Section 13(1)(f) must be an absolute owner of the premises from which eviction is sought.
Dismissing the appeal, HELD: The contention of the appellant that the co sharer plaintiff must be the absolute owner and a co owner cannot without impleading all the owners of the premises ask for eviction cannot be accepted because the plea pertaining to the domain of the frame of the suit should have been raised at the earliest opportunity and it was not done.
Secondly, the relation between the parties being that of landlord and tenant only the landlord could terminate the tenancy and institute the suit for eviction.
The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act.
Under the general law, in a suit between the landlord and tenant, the question of title to the lease property is irrelevant.
The plaintiff is one of the co owners of the premises.
The other co sharers being his mother and married brother who reside in the same prem ises along with him.
Jurisprudentially, it is not correct to say that a co owner of a property is not an owner.
He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property.
The position will change when partition takes place.
It is, therefore, not possible to accept the submission that the plaintiff who is admitted ly the landlord and co owner of the premises is not the owner of the premises within the meaning of section 13(1)(f).
[399 A C. 401 B & 402 A B] Bollye Satee and Anr.
vs Akram Ally and Anr.
[1879] ILR (4) Calcutta 961; Kattusheri Pishareth Kanna Pisharody vs Vallotil Manakel Narayan Somayajipad and Ors., [1878] 81 ILR (3) Madras 234; Balkrishna Sakharam vs Moro Krishna 396 Dabholkar [1897] ILR (21) Bombay 154; and Dwarka Nath Mitter and Ors.
vs Tara Prosunna Roy & Ors.
[1890J/LR (27) Calcutta 160, distinguished.
Mclntyre and Anr.
vs Hardcctstle; [1848] (1) All England Law Reports 696; followed.
Kanika Devi and Ors.
vs Amarendra Nath Roy Choudhury and Ors; 65 Calcutta Weekly Notes 1078; Tarak Chandra Mukherjee vs Ralanlal Ghosal; ; Taherbhai Hebtullabhai and Anr.
vs Ambalal Harilal Shah and Anr.; 1966(7) Gujarat 963 LLR; and Deb Ranjan Chatterjee vs Swarnarani Biswas & Anr.
78 Calcutta Weekly Notes 1034; approved.
Nanalal Girdharlal and Anr.
vs Gulamnablti Jamalbhai Motorwala and Ors.
; distinguished. |
Appeals Nos.
207 to 209 of 1961.
Appeals from the judgment and decree dated August 23, 1957, of the Bombay High Court at Nagpur in First Appeals Nos. 105 to 107 of 1952 from Original Decree.
section T. Desai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants.
C. K. Daphtary, Solicitor General of India, N. section Bindra and R. H. Dhebar for P. D. Menon, for the respondent No. 1 Girish Chandra for sardar Bahadur, for respondents Nos. 3 and 8. 1963.
February 11.
The judgment of the Court was delivered by DAS GUPTA, J.
The appellant is a building contractor.
He constructed buildings for the Bai 982 Gangabai Memorial Hospital, Gondia, Kunwar Tilaksingh Civil Hospital, Gondia, and also for the Twynam Hospital, Tumsar, all within the district of Bhandara in Madhya Pradesh, in execution of three separate contracts in respect of the three hospitals which were concluded between him and Deputy Commissioner of Bhandara.
Though he received part payment in respect of each of these contracts he claims not to have received full payment of what was due to him.
On April 1, 1948 he brought the three suits out of which these three appeals have arisen for obtaining payments which he claims was due to him.
His averments in all the three plaints are similar, except that in respect of one of the suits, viz., the one in respect of the construction work done for the Bai Gangabai Memorial Hospital, he has also claimed the price of some furniture said to have been supplied by him at the request of the Deputy Commissioner.
The common case of the plaintiff in these three suits was that the Deputy Commissioner entered into these contracts ""as repre sentative of the Provincial Government" after having obtained previous sanction of that Government.
It was further his case that the Deputy Commissioner, Bhandara, as the administration head of the hospitals entered into these contracts and as such was liable to pay the amounts due on the contracts.
The plaint also averred that the Gondia Municipal Committee, Gondia, in the suit in respect of Bai Gangabai Memorial Hospital and the Dispensary Funds Committee in the other two suits were liable to satisfy plaintiff 's claim inasmuch as they had taken the benefit of the work done under the contract which was not intended to be done gratuitously.
On these averments the plaintiff impleaded the Provincial Government of the Province of Central Provinces and Berar as the first defendant, and the Deputy Commissioner of the Bhandara District, as the second defendant, in all the three suits.
The Gondia Municipal Committee was impleaded as the third defendant in 983 Suit No. 3 B of 1948, i. e., the suits in respect of Bai Gangabai Memorial Hospital.
The Dispensary Funds Committee was impleaded as the third defendant in the other two suits.
In both, the members of the Dispensary Funds Committee were also impleaded by name as defendants.
Mr. G. K. Tiwari, who as Deputy Commissioner, Bhandara, signed the argument was impleaded in his personal capacity in all the three suits (Defendant No. 4 in Suit No. 3 B, Defendant No. 9 in Suit No. 2 B and defendant No. 14 in Suit No. 1 B).
The State of Madhya Pradesh was later substituted for the Provincial Government of the Province of Central Provinces and Berar as the first defendant in all the three suits.
It was admitted in the plaint that the construction could not be completed within the time mentioned in the contracts but it was pleaded that the time was not the essence of the contract and further, that the delay was due to the Deputy Commissioner 's failure to supply the necessary materials in time and inclemency of weather and also that time was extended by the Deputy Commissioner.
In all the three suits the plaintiff made his claim at a higher rate than the contract rate on the plea that, the Deputy Commissioner had sanctioned these higher rates.
For the purpose of the present appeals in which we are concerned solely with a question of law it is unnecessary to mention the various other averments in the plaint.
It is necessary to mention however that in Suit No.3 B the plantiff asked for a decree of Rs. 21,281/ with costs and interest from the date of suit against defendants 1 to 3 and in the alternative, against defendant No. 4, i. e., Mr. G. K. Tiwari.
In suit No. 1 B, the plaintiff claimed a decree for Rs. 12,000/ with full costs and future interest from the date of suit against defendants 1 to 3 and/or defendant No. 14, i. e., Mr. G. K. Tiwari.
In Suit 984 No. 2 B, the plaintiff asked for a decree for Rs. 32,208/ with costs and future interest against defendants 1 to 3 and/or defendant No. 9, i. e., Mr. G. K. Tiwari.
The main contention of the State of Madhya Pradesh in resisting the suits was that the agreement for the construction of the buildings was not made on behalf of the State Government and also that the hospital was not government hospital and therefore it had no liability.
The same contentions were raised by the Deputy Commissioner, Bhandara and Mr. Tiwari, personally.
All of them further contended that even on merits the plaintiff was not entitled to any relief, for, though time was essence of the contract the work was not finished within the time agreed upon.
They also resisted the plantiff 's claim to increased rates on the ground that the previous sanction of the Deputy Commissioner had not been obtained.
Another contention raised in all the suits was that the plaintiff 's claim was barred by time.
The other defendants also contested the suits on grounds which it is unnecessary for the purpose of the present appeals to set out.
The Trial judge held that the agreements in question were made for and on behalf of the State and further, that the constructions had "beyond doubt benefited the State" and so the State was liable.
The learned judge also rejected the various objections raised by the defendants to the plaintiff 's claim on merits except that he disallowed part of the plaintiff 's claim and gave the plaintiff a decree for part of his claim against the State of Madhya Pradesh in all the three suits.
He also held that none of the other defendants were liable and dismissed the suits as against them.
Against the Trial Court 's decision in these suits the State of Madhya Pradesh preferred appeals to 985 the High Court of judicature at Nagpur.
During the pendency of these appeals the State of Madhya Pradesh was substituted by the State of Bombay.
In all these appeals the plaintiff Pannalal was impleaded as the first respondent; and all the other defendants were also impleaded as respondents.
Disagreeing with the Trial Court the High Court held that the contract entered into by the Deputy Commissioner was not binding on the State Government; that the Deputy Commissioner signed the contract at his own discretion; and further, the contracts not having been entered into in the form as required under section 175(3) of the Government of India Act, 1935, were not enforceable against the State Government.
The High Court also held that the Government could not be held to have ratified the action of the contracts entered into by the Deputy Commissioner.
The High Court also rejected the argument that the Government having received the benefit of the works must pay for them, on their finding that the hospitals were not government hospitals and Government "can in no sense be regarded as having benefited by anything done with respect to them".
On these findings the High Court set aside the decree passed by the Trial Court against the State Government and allowed the appeals with costs.
It appears that a prayer was made on behalf of the plaintiff respondent that the High Court should pass decrees against the Deputy Commissioner, Bhandara, under Or. 41, r. 33 of the Code of Civil Procedure.
That prayer was rejected by the High Court in these words : "Shri Phadke then prayed that under Order 41 rule 33 of the Code of Civil Procedure we should pass decrees against the Deputy Commissioner, Bhandara, who was indubitably, a party to the contracts.
Though the provisions of Order 41, 986 rule 33 are wide enough to permit this we do not see any reason why we should exercise our power when it was open to the respondent No. 1 to prefer a cross objection against the dismissal of his suits against those defendants, as well as against some other defendants.
" The High Court also rejected the Counsel 's prayer to grant him leave to file a cross objection at that stage.
In the result, all the three suits were dismissed by the High Court in their entirety.
The High Court however granted a certificate under article 133(1)(c) of the Constitution.
On the basis of that certificate these three appeals have been preferred by the plaintiff.
Two grounds were urged in support of the appeals.
The first was that the High Court was wrong in holding that the State Government was not liable.
The second ground urged was that, in any case, the High Court ought to have granted relief to the plaintiff against such of the other defendants as it thought fit under the provisions of Order 41, rule 33 of the Code of Civil Procedure.
There is, in our opinion, no substance in the appellant 's contention that the State Government was liable.
On the materials on the record, it appears clear to us that the Deputy Commissioner did not act on behalf of the State Government in signing the contracts.
Nor can it be said that the State Government derived benefit from the work done by the plaintiff.
In our opinion, the High Court was right in its conclusion that the State Government was not liable in respect of any of these contracts and rightly dismissed the suits as against the defendant No. 1.
This position was not seriously disputed before us.
There is however much force in.
the appellant 's contention that the High Court ought to have exercised its jurisdiction under Or. 41, r. 33 of the Code 987 of Civil Procedure in favour of the plaintiff.
The operative portion of that rule, which was for the first time introduced in the Civil Procedure Code in 1908, is in these words : "33.
The appellate court shall have power to pass any decree and make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.
" A proviso was added to this by Act 9 of 1922 which, however, does not concern us.
It is necessary however to set out the illustration to the rule which runs thus : "A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents.
The appellate court decides in favour of X. It has power to pass a decree against Y." Even a bare reading of Order 41, rule 33 is sufficient to convince any one that the wide wording was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent.
It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondent as "the case may require." In the present case, if there was DO impediment in law the High Court could 988 therefore, though allowing the appeal of the State by dismissing the plaintiff 's suits against it, give the plaintiff a decree against any or all the other defendants who were parties to the appeal as respondents.
While the very words of the section make this position abundantly clear the illustration puts the position beyond argument.
The High Court appears to have been in no doubt about its power to give the plaintiff relief by decreeing the suits against one or more of the other defendants.
But say the learned judges, "we do not think it proper to do so as the plaintiff could have asked for this relief by filing a cross objection under Or. 41, r. 22, C. P. C., but has not done so.
" The logic behind this seems to be that the cross objection under Or. 41, r. 22 could be filed only within the time as indicated therein and if a respondent who could have filed a cross objection did not do so, is given relief under Or. 41, r. 33, Or.
41, r. 22 is likely to become a dead letter.
The whole argument is based on the assumption that the plaintiff could, by filing a cross objection under Or. 41, r. 22, Civil Procedure Code,, have challenged the Trial Court 's decree in so far as it dismissed the suits against the defendants other than the State.
, We are not, at present advised, prepared to agree that if a party who could have filed a cross objection under Or. 41, r. 22 of the Code of Civil procedure has not done so, the appeal Court can under no circumstances give him relief under the provisions of Or. 41, r. 33 of the Code.
It is, however, not necessary for us to discuss the question further as, in our opinion, the assumption made by the High Court that the plaintiff could have filed a cross objection is not justified.
Whether or not a respondent can seek relief against any other respondent by a cross objection 989 under Or. 41, r. 22.
Civil Procedure Code, was a vexed question in Indian courts for a long time.
The present Order 41, r. 22 has taken the place of the former section 561 of the Code of 1882.
Indeed, the provision as regards raising an objection by a respondent without a separate appeal appears even in the Code of 1859 as section 348. 'The same provision in a little more detailed form was enacted in the Code of 1877 as section 561.
It was reproduced in the Code of 1882 also as section 561 with slight amendments in these words : "Any respondent though he may not have appealed against any part of the decree, may upon the hearing not only support the decree on any of the grounds decided against him in the court below, but take any objection to the decree which he could have taken by the way of appeal, provided he has filed a notice of such objection Dot less than seven days before the date fixed for the hearing of the appeal.
Such objection shall be in the form of a memo randum., and the provisions of section 541, so far as they relate to the form and contents of the memorandum of appeal shall apply thereto.
Unless the respondent files with objection a written acknowledgement from the appellant or his pleader of having received a copy thereof, the Appellate Court shall cause such a copy to be served, as soon as may be after the filing of the objection, on the appellant or his pleader, at the expense of the respondent.
" The question whether a respondent could by way of cross objection seek relief against another respondent under these provisions was first raised before the courts almost a century ago.
Both the Calcutta and the Bombay High Courts held in a number of cases that ordinarily it was not open to a respondent 990 to seek relief as against a co respondent byway of objection, though in exceptional cases this could be done.
(Vide Burroda Soundree Dossee vs Nobo Gopal Mullick (1), Maharaja Tarucknath Roy vs Tuboornnissa Chowdhrain (2), Ganesh Pandurang Agte vs Gangadhar Ramkrishna (3) , Anwar Jan Bibi vs Azmut Ali(4).
These decisions it is proper to mention were given under the Code of 1859 where section 348 provided that "Upon hearing of the appeal, the respondent may take any objection to the decision of the lower court which he might have taken if he had preferred a separate appeal from such decision.
" After this section was replaced by section 561 in the Code of 1877 and the Code of 1882 the question whether a respondent can file an objection against another respondent came up before the courts several times and the decision remained the same.
The Patna and the Allahabad High Courts also took the view that as a general rule the right of a respondent to urge cross objections should be limited to asking relief against the appellant only and it is only where the appeal opens up questions which cannot be disposed of properly except by opening up matters as between correspondents that relief against respondents can also be sought by way of objections.
The Madras High Court took a different view in Timmayya vs Lakshmanan (5), and held that the words of the section were wide enough to cover all objections to any part of the decree and it was open to a respondent seek relief under this section even against another respondent, and this view was reiterated by that Court even after the Code of 1908 made an important change in the provision by using the word "cross objection" in place of "objection".
Ultimately however in 1950 a Full Bench of the Madras High Court in Venkateshwarlu vs Rammama (1), considered the question again and decided overruling all previous decisions that on a proper construction of the language, Or. 41, r. 22 confers only a restricted (1) (2) (3) (1869) 6 Bom.
H.C. Rep. 244.
(4) (5) (6) L R. 991 right on the respondent to prefer objection to the decree without filing a separate appeal; that such objection should, as a general rule, be primarily against the appellant, though in exceptional cases it may incidentally be also directed against the other respondents.
The Lahore High Court which had earlier followed the former view of the Madras High Court also decided in Jan Mohamed vs P. N. Razden (1), to adopt the other view held by the High Courts of Allahabad, Bombay, Calcutta and Patna.
The Nagpur High Court has also adopted the same view.
(Vide Chandiprasad vs Jugul Kishore) (2).
In our opinion, the view that has now been accepted by all the High Courts that Order 41, r. 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re opened between the objecting respondent and other respon dents, that an objection under Or. 41, r. 22 can be directed against the other respondents, is correct.
Whatever may have been the position under the old section 561, the use of the word " 'cross objection" in Or.
41 r. 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant.
As Rajammannar C. J., said in Venkataswrlu vs Ramamma (3).
"The legislature by describing the objection which could be taken by the respondent as a "cross objection" must have deliberately adopted the view of the other High Courts.
One cannot treat an objection by a respondent in which the appellant has no interest as a cross objection.
The appeal is by the appellant against a respondent, the cross objection must be an objection by a respondent against the appellant".
We think, with respect, that these observations put (1) A.I.R. 1944 Lah.
(2) A.I.R. 1948 Nag.
(3) I.L.R. 992 the matter clearly and correctly.
That the legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a correspondent is indicated by the substitution of the word "appellant" in the third paragraph by the words "the party who may be affected by such objection.
" On the facts of the present case, we have come to the conclusion that it was not open to the plaintiff appellant before the High Court to file any cross objection directed against the other defendants who were correspondents.
The High Court was therefore wrong in refusing to consider what relief, if any, could be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code.
Learned Counsel who appeared for the Gondia Municipality in Civil Appeal No. 209 of 1961, relied on the decision of the Privy Council in Anath Nath vs Dwarka Nath (1), for his contention that rule 33 could not be rightly used in the present case.
In that case the plaintiff challenged a revenue sale as wholly void for want of jurisdiction and bad for irregularities and further contended that the respondent had been guilty of fraud or improper conduct to the prejudice of his co owners in the estate.
The Trial Court rejected the plaintiff 's case that the sale was void for want of jurisdiction and bad for irregularities but accepted the other contention and gave the plaintiff a decree.
On appeal, the High Court held that no fraud or improper conduct towards co owners in respect of the revenue sale had been proved against respondent No. 1.
The High Court refused to grant any relief to the plaintiff on the other ground which had been rejected by the Trial Court in the view that it was no longer open to the plaintiff who had not filed any cross objections to the decree of the Trial Court to maintain that the revenue (1) A.I.R. 1939 P.C. 86.
993 sale should be set aside for want of jurisdiction or irregularity.
In accepting this view of the High Court the Privy Council observed : "In their Lordships view the case came clearly within the condition imposed by the concluding words of sub r.
(1) of R. 22, " 'provided he has filed such objections in the Appellate Court, etc., etc".
It was contended however that the language of R. 33 of the same Order was wide enough to cover the case.
Even if their Lordships assume that the High Court was not wholly without power to entertain this ground of appeal an assumption to which they do not commit themselves they are clearly of opinion that Rule 33 could not rightly be used in the present case so as to abrogate the important condition which prevents an independent appeal from being in effect brought without any notice of the grounds of appeal being given to the parties who succeeded in the courts below.
" This decision is of no assistance to the respondents.
For the question which we have considered here, viz., how fir it is open to a respondent to seek relief against a co respondent by way of cross objection did not fall for consideration by the Privy Council.
The Privy Council based its decision on the view that it was open to the respondent before the High Court to file a cross objection under Or. 41, r. 22 against the appellant and had not to consider the question now before us.
We think it proper also to point out that the decision of the Privy Council in Anath Nath 's case (1), should not be considered as an authority for the proposition that the failure to file a cross objection where such objection could be filed under the law invariably and necessarily excludes the application of Or. 41, r. 33.
There their Lordships assumed, without deciding, that the (1) A.I.R. 1939 P. C. 86, 994 High Court was not wholly without power to entertain the other ground of appeal but in the special circumstances of the case they thought that it would not have been right to give relief under the provisions of Rule 33 to the appellant.
As the High Court has refused to exercise its powers under Or. 41, r. 33 of the Code of Civil Procedure on an incorrect view of the law the matter has to go back to the High Court.
We maintain the High Court 's order in so far as it dismisses the suits against the State of Bombay but set aside the order in so far as it dismisses the suits against the other defendants and send the case back to the High Court in order that it may decide, on an examination of the merits of the case, whether relief should be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code.
Costs incurred in this Court will abide the final result in the appeals before the High Court at Bombay.
Appeals allowed in part.
Case remanded. | The appellant brought three suits claiming full payment with interest in respect of three hospitals constructed by him in execution of three separate contracts between him and the Deputy Commissioner.
The trial Judge decreed the suits for part of his claim against the State of Madhya Pradesh and held that other defendants were not liable, and accordingly dismissed the suits against them.
On appeals preferred by the State of Madhya Pradesh, the High Court set aside the decree against the State Government ' and allowed the, appeals with costs.
The plaintiff at that stage prayed for leave of the High Court to file a cross objection and also for decrees to be passed against the Deputy Commissioner under O. 41, r. 33 of the Code Of Civil Procedure, which was rejected and all the suits were dismissed.
It was urged that (1) the State Government was liable in respect of all of these contracts and (2) the High Court ought to have granted relief against such of the other defendants as it thought fit under O. 41, r. 33 of the Code of Civil Procedure.
Held, that the State Government was not liable in respect of any of these contracts.
Held, further, that the wide wording of O. 41, r. 33 empowers the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent.
It could not be said that if a party who could have filed a cross objection under O. 41, r. 22 did not do so, the appeal court could under no circumstances give him relief under the provision of O. 41, r. 33.
Order 41, r. 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and 981 it is only in exceptional cases that an objection under O. 41, r. 22 can be directed against the other respondents.
On the facts of these cases the High Court refused to exercise its powers under O. 41, r. 33 on an incorrect view of the law and so the appeal must be remanded to the High Court for decision what relief should be granted to plaintiff under O. 41 r. 33.
Burroda Soundree Dasee v, Nobo Gopal Mullick, , Maharaja Tarucknath Boy vs Tuboorunissa Chowdhrain, , Ganesh Pandurang Agte vs Gangadhar Ramakrishna, (1869) 6 Bom.
H.C.Rep.
2244, AnwarJan Bibee vs Azmut Ali, , Tirmnama vs Lakshmanan, Venkateswarulu vs Rammama, I.L.R. , Jan Mohamed vs P. N. Razden, A.I.R. and Ghandiprasad vs Jugul Kishore, A.I.R. , referred to.
Anath Nath vs Dwarka Nath, A.I.R. (1939) P. C. 86, held inapplicable. |
Appeal No. 1367 of 1968.
(Appeal by Special Leave from the Judgment and Order dated 25 3 1965 of the Kerala High Court in A.S. No. 487 of 1961).
S.V. Gupte and K.M.K. Nair, for the appellant.
Mrs. Shyamla Pappu, B.B. Sawhney, Raju Ramachandran and Girish Chandra, for the respondent.
420 The Judgment of the Court was delivered by KHANNA, J.
This appeal by special leave by the State of Kerala is against the Full Bench decision of the Kerala High Court affirming on appeal the judgment and decree of the trial court whereby the suit for recovery of Rs. 28,208.70 filed by the appellant against the General Manager, Southern Railway respondent was dismissed.
The appellant booked 2,000 tons of rice in 21,310 bags from Bareilli railway station for being transported to Trivandrum central railway station as per 10 railway re ceipts during the period from June 25 to July 5, 1950.
According to the case of the appellant, the rice delivered at Trivandrum central railway station was short by 79,378 lbs.
It was also averred that the rice in 327 bags was found to be damaged.
The appellants accordingly claimed Rs. 28,208.70 as damages from the respondent.
The respondent resisted the claim of the appellant, inter alia, on the ground that the suit was not maintainable as the Union of India had not been impleaded as a defendant to the suit and that a suit by a State against the Union of India could be instituted only in the Supreme Court of India under article 131 of the Constitution.
It is not necessary to set out the other pleas of the respondent.
As many as nine issues were framed by the trial court.
Two of the issues, namely, issue Nos. 1 and 3, were treated as prelimi nary issues and arguments were heard on those issues.
Issue Nos. 1 and 3 read as under: "1.
Is the suit maintainable ? Can a decree be passed against the defendant as now impleaded ? 2.
Will the suit lie in this Court ? Is the suit barred by the provisions of the Constitution of India ?" On issue No. 3 it was held by the trial court that since the Union of India had not been made a party to the suit, clause (a) of article 31 of the Constitution had no application.
The suit was accordingly held to be not liable to be dis missed on that ground.
On issue No. 1 the trial court held that the Union of India was a necessary party to the suit and as the Union of India had not been impleaded as a party, the suit was incompetent.
As a result of its find ings on issue No. 1 the trial court dismissed the suit.
The decision of the trial court on issue No. 1 was affirmed in appeal by the High Court.
An application was also filed at the hearing of the appeal before the High Court for implead ing the Union of India as a party to the suit.
The High Court rejected that application on the ground that no useful purpose would be served by allowing that application.
It was observed that if the application was allowed and the Union of India was made a party, the suit would have to be dismissed as under article 131(a) of the Constitution a suit by one State against the Union of India could only lie in the Supreme Court.
In the result, the High Court dismissed the appeal filed by the appellant.
In appeal before us Mr. Gupte on behalf of the appel lant has invited our attention to the definition of "railway administration" in 421 section 3(6) of the Indian Railways Act, 1890 (Act 9 of 1890) (hereinafter referred to as the Act) which reads as under: "railway administration or 'administration ' in the case of a railway administered by the Government means the Manager of the railway and includes the Government and, in the case of a railway adminis tered by a railway company, means the railway company," He has further referred to sections 72, 74, 76 and 80 of the Act.
According to section 72, the responsibility of a railway administration for the loss, destruction or dete rioration of animals or goods delivered to the administra tion to be carried by railway shall, subject to other provi sions of the Act, be that of a bailee under sections 151, 152 and 161 of the .
Section 74 absolves the railway administration of any responsibility for the loss, destruction or deterioration of any luggage belonging to or in charge of a passenger unless a railway servant has hooked and given a receipt therefor.
Section 76 deals with burden of proof in suits for compensation against a railway administration for any delay, loss, destruction, deterioration or damage.
Section 80 at the relevant time read as under: "80.
Suits for compensation for injury to throughbooked traffic.
Notwithstanding anything in any agreement purporting to limit the liability of a railway administration with respect to traffic while on the railway of another administration, a suit for compensation for loss of the life of, or personal injury to, a passenger, or for loss, de struction or deterioration of animals or goods where the passenger was or the animals or goods were booked through over the railway of two or more railway administrations, may be brought either against the railway administration from which the passenger obtained his pass or purchased his tick et, or to which the animals or goods were deliv ered by the consignor thereof, as the case may be, or against the railway administration on whose railway the loss, injury, destruction or deteriora tion occurred.
" It is urged by Mr. Gupte that as, according to section 3 (6) of the Act, railway administration means a Manager of the railway and as some of the sections 72 to 80 make ex press reference to suits against railway administration, a suit against the General Manager of the railway concerned is competent.
The trial court and the High Court, according to the learned counsel, were in error in holding that the suit was not maintainable because of the Union of India having not been impleaded as a party to the suit.
The above argument has the quality of being ingenious, attractive and not lacking in apparent plausibility.
A closer examination, however, reveals its infirmity and after giving the matter our earnest 422 consideration, we find it difficult to accept it.
The Act deals with and specifies, inter alia, the rights and liabil ities which arise in case the goods consigned to the rail ways are not delivered to the consignee.
It likewise deals with short delivery of those goods as well as the cases in which the goods get damaged during transit.
Most of the railways in India are owned by the Union of India, but there were some minor railways which till recently were owned by railway companies.
The definition of "railway administra tion" as given in section 3(6) is comprehensive and deals with both types of railways.
i.e., railways administered by the Government as well as those administered by railway companies.
The words "railway administration" have been used in sections 72 to 80 because those sections pertain to rights and liabilities of the parties in both types of cases, i.e., cases where liability is incurred by Government administered railways as well as cases in which liability is incurred by railway administered by railway company.
The Act, however, does not deal with, the question as to who should be impleaded as a defendant when a suit is brought against the railway.
administration.
This is essentially a matter relating to the frame of suits, and is dealt with by the Code of Civil Procedure.
According to section 79 of the Code, in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be (a) in the case of a suit by or against the Central Government, the Union of India, and (b) in the case of a suit by or against a State Government, the State.
This section is in accordance with article 300 of the Constitu tion, according to which the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State.
It is not disputed that Southern Railway is owned by the Union of India.
As such, a suit dealing with the alleged liabili ty of that railway should have been brought against the Union of India.
Section 80 of the Code of Civil Procedure provides inter alia that no suit shall be instituted against the Government until the expiration of two months next after the notice in writing has been delivered to or left at the office of, in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway.
The above provision clearly contemplates institution of a suit against the Central Government even though it relates to a railway.
A suit against the Central Government in terms of section 79 of the Code would necessarily have to be brought against the Union of India.
The Act no doubt makes provision for the liability of the railway administration, but from that it does not follow that the railway administration is a separate legal entity having a juristic personality capable of being sued as such.
The definition of "railway administration" in section 3(6) of the Act that it would mean the Manager of the railway does not warrant the inference that a suit against the railway administration can be brought against the Manager of that railway.
We have to bear in mind the distinction between the owner of the railway, namely, the Union of India, and the authority which actually runs the railway and to whom duties have been assigned for 423 this purpose by the Act.
The manager of the railway under the Act is such authority.
When, however, liability is sought to be fastened on the railway administration and a suit is brought against it on that account, the suit, in our opinion, would have to be brought against the Union of India because it is the Union who owns the railway and who would have the funds to satisfy the claim in case decree is awarded in such suit.
The scheme of the Act, even though there are now hardly any company owned railways in India, is to treat different railway administrations as different units, although all of them may be owned by the Union of India.
Neither the defi nition of the "railway administration" in section 3(6) of the Act nor the language of sections 72 to 80 of the Act lends support for the view that the railway administrations are to be treated as separate personalities, entities or separate juridical persons as seems to have been observed in the case of Dominion India vs Firm Museram Kishunprasad(1).
Yet the treatment of the different railway administrations as different units for the purpose of fastening liability on the Union of India has got significance and relevance.
Viewed in that light, it would follow that the definition of the "railway administration" given in section 3(6) of the Act does not make the railway administration or its General Manager a legal entity or a corporate body or a juridical person to represent the railway administration as such in suits.
The claim in a suit for recovery of money under the Act against the different railway administrations owned by the Central Government in accordance with the general prin ciple of law contained in Order 1 Rule 3 of the Code of Civil Procedure has got to be made against the person against whom the right to relief is alleged to exist.
The significance of creating the various railway administra tions as separate units, even though they may be State owned, is to be found in section 80 of the Act, and section 80 of the Code of Civil Procedure.
For claiming a decree against the Union of India under the Act the plain tiff has got to specify the railway administration or admin istrations on account of which liability is sought to be fastened upon the Union of India, as contemplated by section 80 of the Act.
The institution of the suit has to be preced ed by service of notice under section 77 of the Act and section 80 of the Code to the appropriate authority which is the General Manager of the railway concerned.
The require ment of clause (b) of section 80 of the Code that a notice in the case of a suit against the Central Government where it relates to a railway must go to the General Manager of the concerned railway or railways is also based upon the assumption that it is primarily the liability of the railway administration of the said railway or railways to satisfy the claim of the suitor in accordance with section 80 of the Act.
The demarcation of the different State owned railways as distinct units for administrative and fiscal purposes cannot have the effect of conferring the status of juridical person upon the respective railway administrations or their General Managers for the purpose of civil suits.
(1) A.I.R. (1950) Nagpur 85.
11 1104SCI/76 424 The Bombay High Court in two cases, Sukhanand Shamlal vs Oud, h & Rohilkhand Railway(1) and Hirachand Succaram Gandhy & Ors.
G.I.P. Railway Co.(2) has held that a suit against a State railway should be brought against the Government.
Similar view was pressed by Patna High Court in Shaikh Elahi Bakhsh vs
E.I. Railway, Administration(3) and a Full Bench of Assam High Court in the case Chandra Mohan Saha & ,Anr.
vs Union of India & Anr.(4) The observations of a Division Bench of the Madras High Court in the case of P.R. Nara yanaswami lyer & Ors.
vs Union of India(5) also lend support to the above view.
It may be stated that the reasoning employed in the eases mentioned above was different and not identical, but whatever might be the nature of that reason ing the fact remains that the learned Judges deciding those cases were all at one on the point that such a suit should be brought against the Government, which means in the present case the Union of India.
Any contrary view would be against the well established practice and procedure of law, as evidenced by various decisions of the High Courts, and as such, must be rejected.
Submission has also been made on behalf of the appellant that the High Court should have allowed the appellant to amend the plaint.
We agree with the High Court that the present is not an appropriate case in which permission to amend the plaint should have been granted.
The appeal consequently fails and is dismissed but in the circumstances without costs.
M R. Appeal dismissed.
(1) A.I.R. 1924 Bombay 306.
(2) A.I.R. 1928 Bombay 421.
(3) A I.R. 1931 Patna 326.
(4) (5) A.I.R. 1960 Madras 58. | The appellant booked rice for being transported by train, from Bareilly railway station to Trivandrum railway station.
On delivery, the rice was found to be damaged and short in quantity.
The appellant claimed damages from the respondent, who resisted the claim on the grounds that the suit was not maintainable as the Union of India had not been impleaded as a defendant, and that a suit by a State against the Union of India could only be instituted in the Supreme Court under article 131 of the Constitution.
The suit was dismissed by the Trial Court, and an appeal from it was dismissed by the High Court.
Dismissing the appeal, the Court, HELD: The Southern Railway is owned by the Union of India.
As such, a suit dealing with the alleged liability of that railway should have been brought against the Union of India.
Section 80 of the C.P.C. contemplates institution of a suit against the Central Government even though it relates to a railway.
[422 E FI] Sukhanand Shamlal vs Oudh Rohilkhand Railway AIR 1924, Born.
306; Hirachand Succaram Gandhy & Ors.
G.I.P. Rail way Co., AIR 1928 Born.
421; Shaikh Elahi Bakhsh vs
E.I. Railway Administration, AIR 1941 Patna 326: Chandra Mohan Saha & Ant.
vs Union of India & Anr.
and P.R. Narayanaswami lyer & Ors.
vs Union of India AIR 1960 Madras 58, Approved.
(2) Neither the definition of the "railway administra tion" in Section 3(6) of the Indian Railways Act, nor the language of sections 72 to 80 of the Act, lends support for the view that the railway administrations are to be treated as separate personalities, entries or separate juridical persons.
[423 B C] Dominion of India vs Firm Musaram Kishunprasad AIR 1950 Nagpur 85.
overruled.
(3) The demarcation of the different State owned rail ways as distinct units for administrative and fiscal pur poses cannot have the effect of conferring the status of juridical person upon the respective railway administrations or their General Managers for the purpose of civil suits. |
Appeal No. 874 of 1975.
Appeal by Special Leave from the Judgment and Order dated 5 3 75 of the Rajasthan High Court in D.B. Civil Appeal No. 18 of 1975.
M.C. Bhandare, S.M. Jain, S.K. Jain and Mohd. Fasiuddin, for the Appellant.
P.C. Bhartari, for Respondent No. 3.
K.J. John, for Respondent No. 4.
The Judgment of the Court was delivered by GOSWAMI, J.
The appellant and the respondents 3 and 4 were the former existing stage carriage operators of Jaipur Sainthal route which was nationalised on January 25, 1973.
All of them applied for the grant of non temporary stage carriage permits of Jaipur Padampura route as alterna tive route permits.
The Regional Transport Authority, Jaipur (briefly the RTA) by it 's order of July 22, 1974, granted nontemporary permits to the appellant and respondent No. 4 and rejected the application of respondent No. 3.
That led to an appeal to the State Transport AppeLlate Tribunal at Jaipur, Rajasthan, by respondent 460 No. 3.
The notice of appeal was served upon the appellant but since he did not appear the appeal was heard ex parte and by its order dated December 17, 1974, the State Trans port Appellate Tribunal set aside the order of the RTA and granted the permit in favour of respondent No. 3.
The appellant filed a writ application under Article 226 of the Constitution before the Rajasthan High Court and the learned single Judge by a rather long speaking order dismissed the same summarily.
A further appeal by the appellant to the Division Bench met with the same fate.
The High Court also refused to grant certificate to appeal to this Court.
Hence this appeal by special leave.
Mr. Bhandare, the learned counsel on behalf of the appellant, submits that the order of the State Transport Appellate Tribunal (briefly the Tribunal) is invalid inas much as the appeal was heard in the absence of a proper notice of appeal as required under the law.
He draws our attention to rule 108(c) of the Rajasthan Motor Vehicles Rules.
1951, which reads as follows : "Upon receipt of an appeal preferred in accordance with sub rule (b) the Appellate Tribunal may appoint a date, time and place for hearing of the Appeal, giving the State Transport Authority, or the Regional Transport Authority, as the case may be, and the appellant.
not less than thirty days notice thereof".
Although the above rule does not contain any provision for service of notice on the respondent, it is, however, implic it that a notice similar to one intended under the rule for service on the appellant must also be served on the respondent.
Mr. Bhandare could not dispute the factual service of notice on the appellant in view of the Tribunal 's finding.
He however, submits that the notice which was served on the appellant did not recite the place for the hearing of the appeal although the date and time were noted therein.
It is true that the Tribunal could not, in law, hear the appeal without intimating the respondent.
about the date, time and place for hearing of the appeal but since the appellant had received the notice from the Tribunal indicat ing the date and time for hearing of the appeal, the omis sion in the notice to describe the place where the appeal is to be heard is not fatal enough to make the appeal proceed ing invalid before the Tribunal.
The appellant, admittedly, is a resident of Jaipur where also the office of the Tribu nal is situated.
He was also a stage carriage permit holder and not a stranger to the office of the Transport Authori ties.
Besides, although the notice of the appeal fixed the date of hearing on October 8, 1974, the appeal was adjourned on that day to October 21, 1974 and again to November 12, 1974 and it was only on December 12, 1974 that the final hearing of the appeal took place.
It is, therefore, clear that the appellant was duly notified about the hearing of the appeal and in view of the fact that he did not make any effort to be present during this entire period, when the appeal was pending, he could not be allowed to take advan tage of the mere omission of the place of hearing of the appeal in the notice.
Besides, the RTA was present as provided for under section 64(1) of the (briefly the Act) before the Tribunal to defend its own order.
The submission of the appellant is, therefore, of no avail.
461 Mr. Bhandare next submits that the Tribunal failed to comply with section 47 of the Act and did not at all consid er the relevant matters (a) to (f) provided therein.
It is well settled that in considering an application for a stage carriage permit the RTA shall have regard to the matters described in section 47.
Before we go to consider about the submission of the learned counsel with reference to the order of the Tribunal it is manifest, on the face of the order of the RTA, that Authority, even at the first in stance, did not make any reference to the relevant consider ations under section 47 of the Act.
The only reason given by the RTA in rejecting the application of respondent No. 3 is that "there is no other vacancy".
There is nothing to show that the case of respondent No. 3 was at all considered by the RTA on merits.
The Tribunal, on the other hand, has considered various aspects of the matter although without a reference to section 47 as such.
For example, the condition of the vehicles of the two parties was duly considered by the Tribunal.
The fact that the respondent 3 had a later model of vehicle being 1965 model whereas the appellant had only a 1962 model vehicle tilted the balance in favour of the respondent No. 3.
This aspect can well arise under clauses (a) and (b) of section 47.
We are unable to say that the relevant considerations under section 47, on the facts and circumstances of the grant of the particular permit, were not kept in view by the Tribunal in considering the appeal.
The Tribunal and the learned single Judge duly considered the whole matter and the Division Bench was justified in summarily rejecting the special appeal.
The second submission of the learned counsel also fails.
In the result the appeal is dismissed but we will make no order as to costs.
P.H.P. Appeal dismissed. | The appellant and respondents No. 3 and 4 applied for the grant of nontemporary stage carriage permits.
The Regional Transport Authority granted the permits to the appellant and respondent No. 4 and rejected the application of respondent No. 3.
Respondent No. 3 filed an appeal to the State Transport Appellate Tribunal.
The notice of appeal was served upon the appellant where the date and time were mentioned but the place was not mentioned.
Since the appellant did not appear the appeal was heard ex parte.
The Tribunal set aside the order of the Transport Authority and granted the permit in favour of respondent No. 3.
A writ petition filed by the appellant against the order of the Tribunal was dismissed summarily by the learned Single Judge by a long speaking order.
A Division Bench dismissed the appeal filed by the appellant.
In an appeal by Special Leave the appellant contended: 1.
The notice as required by rule 108(c) of the Rajasthan Motor Vehicles Rules, 1951 served on the appellant was not proper notice since it did not mention the place of the hearing of the appeal.
The Tribunal did not consider the relevant matters as mentioned in section 47(a) to (f).
HELD: 1.
The omission to mention the place is not fatal.
The appellant is a resident of Jaipur where also the office of the Tribunal is situated.
He was a Stage Carriage permit holder and not a stranger to the Transport authorities.
In fact, hearing of the appeal was adjourned twice even after the date mentioned in the notice.
[460 F] 2.
The Regional Transport Authority did not make any reference to the relevant considerations under section 47 of the Act.
The Tribunal on the other hand has considered various aspects of the matter as required by section 47 although without a reference to that section.
The Tribunal and the learned Single Judge duly considered the whole matter and the Division Bench was justified in summarily rejecting the special appeal.
[461 B D] |
Appeal No. 766 of 1976.
Appeal by Special Leave from the Order dated 29 11 75 of the Industrial Tribunal, Orissa in Industrial Dispute Case No. 5/75 and Special Leave Petitions (Civil) Nos. 1844A and 1845/76 L.N. Sinha, Sol.
Gen, Govind Das, (Mrs.) section Bhandare, M. section Narasimhan, A. K. Mathur and A.K. Sharma, for the Appel lant.
J. P. Goyal and Shree Pal Singh; for the Respondent.
Gobind Das, P.H. Parekh and (Miss) Manju Jatly; for the petitioner [In S.L.P. (Civil) Nos. 1844A and 1845/76].
The Judgment of the Court was delivered by GOSWAMI, J.
The Appellant, the Paradip Port Trust, is a major port governed by the provisions of the and is managed by Board of Trustees consti tuted under the provisions of the said Act.
Under section 5 of the said Act the Board of Trustees is a body corporate having perpetual succession and a common seal with power, subject to the provisions of the Act, to acquire, hold or dispose of property and may sue or be sued in the name of the Board.
An industrial dispute was raised by the Paradip Shramik Congress representing the workmen with regard to the termination of the service of one Nityananda Behera, a temporary teacher in the Paradip Port Trust High School.
The dispute was referred to the Industrial Tribunal (Cen tral) Bhubaneswar, Orissa, under section 10( 1 ) (d) of the (briefly the Act).
The respondents (hereinafter to be referred to as the Union) appeared before the Tribunal through the Adviser and General Secretary of Paradip Shramik Congress.
The appel lant sought to be represented before the Tribunal through Shri T. Misra, Advocate, who was a "Legal 539 Consultant" of the Trust.
The appellant filed their au thority in Form 'F ' under rule 36 of the Orissa Industrial Dispute Rules in his favour.
The appellant subsequently filed also a Power of Attorney executed by the Chairman of the Board of Trustees in favour of Shri T. Misra who was admittedly a practising Advocate of the Orissa High Court.
An objection was taken by the Union to the representa tion of the Paradip Port Trust (hereinafter to be described as the employer) by Shri T. Misra, Advocate, and the Union refused to give their consent to his representation as required under section 36(4) of the Act.
The Tribunal after hearing the parties upheld the objec tion of the Union.
The Tribunal examined the terms and conditions of the appointment of Shri T. Misra as Legal Consultant of the employer and held as follows : "His duties and the restrictions on his practice which have been extracted above and the terms as to his professional fees, etc. indicate that the relationship of the first party and Shri Misra is clearly that of a client and his lawyer and not that of employer and employee.
Hence, Shri Misra cannot be said to be Officer of the first party.
" The Tribunal further held: "Merely by execution of a power of attorney, the restrictions attached to a legal practitioner contained in sub section (4) of the Act cannot be circumvented.
I would accordingly bold that Shri Misra who is a legal practitioner cannot represent the first party before this Tribunal even if he holds a power of attorney executed in his favour by the first party? The appellant has obtained special leave of this Court against the above order of the Tribunal.
We have heard the Solicitor General on behalf of the appellant and Shri Goyal for the respondents.
Along with the above, appeal two Special Leave petitions Nos.
1844 A and 1845 of 1976 are also posted for hearing for admission and we have heard Mr. Gobind Das at great length.
The two Special Leave Petitions are by the management of Keonjhar Central Cooperative Bank Ltd. One application is relating to rejection by the Tribunal of the Bank 's prayer for representation before the Tribunal through its Advocate, Shri B.B. Rath, on the ground of objection by the Union under section 36(4) of the Act.
The second application relates to the, order of the Tribunal allowing Shri A.C. Mohanty, Advocate and Vice President of the Keonjhar Central Cooperative Bank Employees Union under section 36(1) of the Act notwithstanding the objection of the management.
Industrial law in India did not commence with a show of cold shoulder to lawyers as such.
There was an unimpeded entrance of legal practitioners to adjudication halls before tribunals when the Act first came into force on April 1, 1947.
Three years later when the Labour Appellate Tribu nals were constituted under the Industrial Disputes (Appel late Tribunal) Act 1950, a restriction was imposed on the parties 3 1234SCI/76 540 in engagement of legal practitioners before the Appellate Tribunal without consent of the parties and leave of the Tribunal.
When this was introduced in the appellate forum, the same restriction was imposed for the first time upon representation of parties by legal practitioners before the Industrial Tribunals as well [see Section 34 of the Indus trial Disputes (Appellate Tribunal) Act, 1950].
In view of the recent thinking in the matter of preferring legal aid to the poor and weaker sections of the people it may even be possible that the conditional embargo under section 36(4) may be lifted or its rigour considerably reduced by leaving the matter to the Tribunals permission as has been the case under the English law.
Restriction on parties in respect of legal representa tion before Industrial Courts is not a new phenomenon.
It was there in England in the Industrial Courts Act, 1919 (9 & 10 Geo 5 c 69) and.
does not appear to be altered even by the Industrial Relations Act, 1971.
Section 9 of the English Act provides that except as provided by rules, "no person shall be entitled to appear on any such proceedings by counsel or solicitor.
" However, rule 8 of the Industrial Court (Procedure) Rules 1920 allows persons to appear by counsel or solicitor with permission of the court.
The Act envisages Investigation and settlement of indus trial disputes and with that end in view has created various authorities at different levels all independent of one another.
The word adjudication occurs only with reference to labour courts, industrial tribunals and national tribu nals.
These bodies are manned by Judges of High Courts or by officers with appropriate Judicial and labour law experi ence.
The conciliation proceedings held by a Board or a Conciliation Officer are mainly concerned with mediation for promoting settlement of industrial disputes.
It is reason able to suppose that the presence of legal practitioners in conciliation may divert attention to technical pleas and will detract from the informality of the, proceedings imped ing smooth and expeditious settlement.
Legal practitioners entrusted with their briefs cannot be blamed if they bring forth their legal training and experience to the aid and benefit of their clients.
But labour law operates in a field where there are two unequal contestants.
The Act, there fore, takes care of the challenge of the situation in which the weaker party is pitted against the stronger before adjudicating authorities.
That appears to be one of the reasons for introducing consent of the parties for represen tation by legal practitioners.
Employers, with their purse, naturally, can always secure the services of eminent coun sel.
The question that arises for consideration will turn on the interpretation of section 36 of the Act which may be quoted: 36(1) A workman who is a party to a dispute shall be entitled to be represented in an proceed ing under this Act by (a) any member of the executive or other office bearer of a registered trade union of which he is a member; 541 (b) any member of the executive or other office bearer of a federation of trade unions to which the trade union referred to in clause (a) is affiliated; (c) where the worker is not a member of any trade union, by any member of the executive or other office hearer of any trade union connected with, or by any other workman employed in the industry in which the worker is employed and autho rised in such manner as may be prescribed.
(2) An employer who is a party to a dispute shall be entitled to be represented in any pro ceeding under this Act by (a) an officer of an association of employers of which he is a member; (b) an officer of a federation of associa tions of employers to which the association re ferred to clause (a) is affiliated; (c) where the employer is not a member of any association of employers by an officer of any association of employers connected with, or by any other employer engaged in, the industry in which the employer is engaged and authorised in such manner as may be prescribed.
(3)No party to a dispute shall be entitled to be represented by a legal practitioner in any concili ation proceedings under this Act or in any proceed ings before a Court.
(4) In any proceeding before a Labour Court, Tribunal or National Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be.
" Section 36 provides for representation of parties before the Tribunals and the Labour Court.
Under section 36(1) a workman who is a party to a dispute shall be entitled to be represented in any proceeding under the Act by three classes of officers mentioned m (a), (b) and (c) of that sub sec tion.
Similarly under section 36(2) an employer who is a party to a dispute shall be entitled to be represented in any proceeding under the Act by three classes of officers mentioned in (a), (b) and (c) of that sub section.
By sub section (3) a total ban is imposed on representation of a party to a dispute by a legal practitioner in any concili ation proceedings under this Act or in any proceedings before a Court of enquiry.
Then comes section 36(4) which introduces the requirement of prior consent of the opposite party and 542 leave of the Tribunals and of the Labour Court, as the case may be, for enabling a party to be represented by a legal practitioner.
Under the scheme of the Act the parties to an industrial dispute are employers and employers; employers and workmen; and workmen and workmen [section 2(K)].
The definition of "appropriate Government" under section 2(a) of the Act lays bare the coverage of industrial disputes which may be raised concerning, amongst others, several types of corporations, mentioned therein, companies, mine, oil field, cantonment board and major port.
The definition of employer under section 2(g), which is a purposive but not an exhaustive definition, shows that an industrial dispute can be raised in relation to an industry carried on even by the Government and by local authorities.
It need not be added that indus try is also carried on by private owners, private companies and partnerships.
Employers and workmen will, therefore, be drawn from numerous sources.
Leaving aside for the present industrial disputes between employers and employers and workmen and workmen, such disputes, almost, always are between employers and workmen.
Prior to the insertion of section 2A in the Act by the Amendment Act 35 of 1965 a dispute raised only by a single individual workman did not come under the category of an industrial dispute within the meaning of section 2(k).
Left to himself, no remedy was available to such an aggrieved individual workman by means of the machinery provided under the Act for adjudication of his dispute.
Such an individual dispute, for example, relating to the discharge or dismissal of a single workman, however, became an industrial dispute only if a substantial body of workmen or a union of workmen espoused his cause.
The trade union of workmen, therefore, comes to be recog nised as a live instrument under the Act and has an active role to play in collective bargaining.
Thus, so far as workmen are concerned, union is, alsmost, always involved in the dispute from the inception.
Since the dispute, itself, in a large number of cases takes the character of industri al dispute from participatory involvement of the trade union, the Act confers an unbartered right upon the workmen to be represented by a member of the executive or by an office bearer of a registered trade union.
It is, there fore, in the very scheme of things that a workman 's absolute right to be represented by an office bearer of the union is recognised under the Act.
Indeed it would have been odd in the entire perspective of an industrial dispute and the objects and purposes of the Act not to give due recognition to the union.
But for a provision like section 36(1 ) of the Act, there may have been difficulty under the general law in the way of the office bearers of the union represent ing workmen before the adjudicating authorities under the Act unless, perhaps, regulated by the procedure under sec tion 11 of the Act.
To put the matter beyond controversy an absolute right is created in favour of the workmen under section 36(1) in the matter of representation.
Having made such a provision for the workmen 's representation the employer is also placed at par with the workmen in similar terms under the Act and the employer may also be represented by an officer of the association of employers of which the employer is a member.
The 543 right is extended to representation by the office bearers of the federation of the unions and by the officers of the federation of employers.
The provisions of section 36(1) and 36(2) confer on the respective parties absolute rights of representation by persons respectively specified therein.
The rights of representation under section 36(1) and section 36(2) are unconditional and are not subject to the condi tions laid down under section 36(4) of the Act.
The said two sub sections arc independent and stand by themselves.
As stated earlier, section 36 deals with representation of the parties.
Neither the Act nor section 36 provides for appearance of the parties themselves when they are individu als or companies or corporations.
The Tribunals and the Labour Courts being quasi judicial authorities dealing with rights affecting the parties cannot adjudicate their dis putes in absence of the parties.
It is, therefore, incum bent upon the Tribunals and Labour Courts to afford reasona ble opportunity to the parties to appear before them and hear them while adjudicating industrial disputes.
This position is indisputable.
Section 36, therefore, is not exhaustive in the sense that besides the persons specified therein there cannot be any other lawful mode of appearance of the parties as such.
As indicated earlier section 36 does not appear to take count of companies and corporations as employers.
It is, however, common knowledge that industri al disputes are raised in a predominantly large number of cases where companies or corporations are involved.
Since companies and corporations have necessarily to appear through some human agency there is nothing in law to pre vent them from being represented in any lawful manner.
As Salmond says :, "Every legal person, therefore, has corresponding to it in the world of natural persons certain agents or representa tives by whom it acts . . . . "(Salmond on Jurispudence, 12th Edition, page 312.) It is not intended under the Act that companies and corporations are confined to representation of their cases only through the officers specified in section 36(2) of the Act.
They can be represented by their directors or their own officers authorised to act in that behalf in a lawful manner provided it is not contrary to any provision of the Act.
This would not, however, mean that the companies and corporations, and for the matter of that any party, are free to engage legal practitioners by means of a special power of attorney to represent their interests before the Tribunals without consent of the opposite party and leave of the Tribunal.
Again, although under section 36(2)(c) there is provi sion for the contingency of an employer not being a member of an association of employers, the device of representation provided therein would not fit in the case of a Government Department or a public corporation as an employer.
These categories of employers, known to the Act, will be put to the most unnatural exercise of enlisting the aid of an outside 544 association, albeit connected with the same type of indus try, to defend their cases before Tribunals.
Such an absurd intent cannot be attributed to the legislature in enacting section 36, which will be, if that section is the be all and end all of the types of representations envisaged under the Act.
The impossibility of the position indicated above a crucial pointer to section 36 being not exhaustive but only supplemental to any other lawful mode of represen tation of parties.
The parties, however, will have to conform to the conditions laid down in section 36(4) in the matter of representation by legal practitioners.
Both the consent of the opposite party and the leave of the Tribunal will have to be secured to enable a party to seek representation before the Tribunal through a legal practitioner qua legal practitioner.
This is a clear significance of section 36(4) of the Act.
If, however, a legal practitioner is appointed as an officer of a company or corporation and is in their pay and under their control and is not a practising advocate the fact that he was earlier a legal practitioner or has a legal degree will not stand in the way of the company or the corporation being represented by him.
Similarly if a legal practitioner is an officer of an association of employers or of a federation of such associations, there is nothing in section 36(4) to prevent him from appearing before the Tribunal under the provisions of section 36(2) of the Act.
Again, an office bearer of a trade union or a member of its executive, even though he is a legal practitioner, will be entitled to represent the workmen before the Tribunal under section 36(1) in the former capacity.
The legal practi tioner in the above two cases will appear in the capacity of an officer of the association in the case of an employer and in the capacity of an office bearer of the union in the case of workmen and not in the capacity of a legal practitioner.
The fact that a person is a legal practitioner will not affect the position if the qualifications specified in section 36(1) and section 36(2) are fulfilled by him.
It must be made clear that there is no scope for enquiry by the Tribunal into the motive for appointment of such legal practitioners as office bearers of the trade unions or as officers of the employers associations.
When law provides for a requisite qualification for exercising a right fulfilment of the qualification in a given case will entitle the party to be represented before the Tribunal by such a person with that qualification.
How and under what circumstances these qualifications have been obtained will not be relevant matters for consideration by the Tribunal in considering an application for representation under section 36(1) and section 36(2) of the Act.
Once the qualifications under section 36(1) and section 36(2) are fulfilled prior to appearance before Tribunals, there is no need under the law to pursue the matter in order to find out whether the ap pointments are in circumvention of section 36(4) of the Act.
Motive of the appointment cannot be made an issue before the Tribunal.
545 We may note here the difference in language adopted in section 36(1) and section 36(2).
While section 36(1) refers to "any member of the executive" or "other office bearer," section 36(2), instead, mentiones only "an officer." Now "executive" in relation to trade union means the body by whatever name called to which the management of the affairs of the trade union is entrusted section 2(gg).
"Office bearer" in relation to a trade union includes any member the executive thereof but does not include an auditor section 2(III).
So far as trade unions are concerned there is no difficulty in ascertaining a member of the executive or other office bearer and section 36(1) will create no difficulty in practical application.
But the word "officer" in section 36(2) is not defined in the Act and may well have been, as done under section 2(30) of the Companies Act.
This is bound to give rise to controversy when a particular person claims to be an officer of the association of employers.
No single test nor an exhaustive test can be laid down for determining as to who is an offi cer in absence of a definition in the Act.
When such a question arises the Tribunal, each individual case, will have to determine on the materials produced before it wheth er the claim is justified.
We should also observe that the officer under section 36(2) is of the association or of the federation of associations of employers and not of the company or corporation.
The matter of representation by a legal practitioner holding a power of attorney came up for consideration before the Full Bench of the Appellate Tribunal of India in the year 1951 (see Kanpur Hoisery workers ' Union vs
J.K. Hosiery Factor) ', Kanpur)(1).
The provision for representation which applied to the Appellate Tribunal was section 33 of the repealed Industrial Disputes Appeallate Tribunal) Act, 1950.
This section corresponds to section 36 of the with which are concerned.
Although the Appel late Tribunal rejected the claim of the party to be repre sented by the legal practitioner on the basis of a power of attorney, with which we agree, the reasons for its conclu sion based solely on the ground of section 36 being exhaus tive do not meet with our approval.
The Appellate Tribunal took the view that the Act intended to restrict the repre sentation of parties to the three clases of persons enumer ated in sub sections (1) and (2) of section 33.
The Appel late Tribunal was of the view that sub sections(1) and (2) of section 33 were intended to be exhaustive of the persons (other than the party himself) who might represent either of the party.
Since holding of a power of attorney is not one such mode the claim of the legal practitioner failed, ac cording to the Appellate Tribunal.
The Rajasthan High Court in Duduwala & Co. and others vs Industrial Tribunal and another(2) took the same view.
Our attention has been drawn to the decisions of the Calcutta and Bombay High Courts where in a contrary view has been taken with regard to the interpretation of section 36 as being exhaustive [see Hall & Anderson, Ltd. vs
S.K. Neogi and another(3) and Khadilkar (K. K.) General Secretary, Engineering Staff Union Bombay vs Indian Hume Pipe Company, Ltd.,Bombay, and another] (4).
For the reasons already given by us we are (1) [1952] I L.L.J. 384.
(2) A.I,R. (3) [1954] I.L.L.J. 629.
(4) [1967] I.L.L.J. 139 546 of opinon that the views of the Labour Appellate Tribunal and that of the Rajasthan High Court in this aspect of the matter are not correct and the Calcutta and Bombay High Courts are right in holding that section 36 is not exhaus tive.
The Solicitor General contends that "and" in section 36(4) should be read as "or" in which case refusal to con sent by a party would not be decisive in the matter.
The Tribunal will then be able to decide in each case by exer cising its judicial discretion whether leave, in a given case, should be given to a party to be represented by a lawyer notwithstanding the objection of the other party.
It is pointed out by the Solicitor General that great hardship will be caused to public corporations if the union is given a carte blanche to finally decide about that matter of representation by refusing to accord its consent to repre sentation of the employer through a legal practitioner.
It is pointed out that public corporations, and even Government running a transport organisation like the State transport, cannot be expected to be members of any employers ' associa tion.
In their case section 36(2) will be of no avail.
To deny them legal representation would be tantamount to denial of reasonable opportunity to represent their cases before the Tribunal.
It is submitted that since such injustice or hardship cannot be intended by law the final word with regard to representation by legal practitioners before the Tribunal should rest with the Tribunal and this will be effectively implemented if the word "and" in section 36(4) is read as "or".
This, it is said, will also achieve the object of the Act in having a fair adjudication of disputes.
We have given anxious consideration to the above submis sion.
It is true that "and" in a particular context and in view of the object and purpose of a particular legislation may be read as "or" to give effect to the intent of the Iegislature.
However, having regard to the history of the present legislation, recognition by law of the unequal strength of the parties in adjudication proceedings before a Tribunal, intention of the law being to discourage repre sentation by legal practitioners as such, and the need for expeditious disposal of cases, we are unable to hold that "and" in section 36(4) can be read as "or".
Consent of the opposite part is not an idle alternative but a ruling factor in section 36(4).
The question of hardship, pointed out by the Solicitor General, is a matter for the legislature to deal with and it is not for the courts to invoke the theory of injustice and other conse quences to choose a rather strained interpretation when the language of section 36 is clear and unambiguous.
Besides, it is also urged by the appellant that under section 30 of the , every advocate shall be entitled "as of right" to practise in all courts, and before only tribunal section 30(i) and (ii).
This right conferred upon the advocates by a later law will be properly safeguarded by reading the word "and" as "or" in section 36(4), says counsel.
We do not fail to see some difference in language in section 30(ii) from the provision in section 14(1) (b) of the , relating to the right of advocates to appear before courts and tribu nals.
For example, under section 14(1) (b) of the 547 Bar Councils Act, an advocate shall ;be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and tribunal.
There is, however, no reference to "any other law" in sec tion 30(ii) of the .
This need not detain us.
We are informed that section 30 has not yet come into force.
Even otherwise, we are not to be trammelled by section 30 of the for more than one reason.
First, the is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has been specifical ly provided for with a clear object in view.
This special Act will prevail over the which is a general piece of legislation with regard to the subject matter of appear ance of lawyers before all courts, tribunals and other au thorities.
The is concerned with.representation by legal practitioners under certain conditions only before the authorities mentioned under the Act.
Generalia Specialibus Non Derogant.
As Maxwell puts it: "Having already given its attention to the particular subject and provided for it, the legis lature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be main fested in explicit language . or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act.
In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one.
"(1) Second, the matter is not to be viewed from the point of view of legal practitioner but from that of the employer and workmen who are the principal contestants in an industrial dispute.
It is only when a party engages a legal practi tioner as such that the latter is enabled to enter appear ance before courts or tribunals.
Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may not arise.
In the appeal before us we find that the Tribunal, after considering the materials produced before it, held that Shri T. Misra could not claim to be an officer of the corpora tion simply because he was a legal consultant of the Trust.
The Tribunal came to this conclusion after examining the terms and conditions governing the relationship of Shri Misra with the Trust.
He was neither in pay of the company nor under its control and enjoyed freedom as any other legal practitioner to accept cases from other parties.
It is significant to note that one of the conditions of Shri Misra 's retainer is that "he will not appear in any suit or appeal against the Port until he has ascertained from the Chairman that his services on behalf of the Port will not be required.
" That is to say, although on a retainer and with fixed fees for appearance in eases there is no absolute ban to appear even (1) Maxwell on lnterpretation of Statutes 11th Ed. P. 169.
548 against the Port.
This condition is not at all consistent with the position of an officer of the Trust.
We agree with the opinion of the Tribunal that Shri Misra cannot be held to be an officer of the Trust.
A lawyer, simpliciter, cannot appear before an Industri al Tribunal without the consent of the opposite party and leave of the Tribunal merely by virtue of a power of attor ney executed by a party.
A lawyer can appear before the Tribunal in the capacity of an office bearer of a registered trade union or an officer of associations of employers and no consent of the other side and leave of the Tribunal will, then, be necessary.
In the result the appeal is dismissed with costs.
Necessarily the Special Leave Petitions also fail and stand dismissed. | The appellant is a major port.
An industrial Dispute was raised by the respondent workmen with regard to the termina tion of the services of one of the employees.
The dispute was referred to the Industrial Tribunal under section 10(1)(d) of the .
The appellant sought to be represented through Shri T. Mishra, Advocate, who was described as "Legal Consultant" of the appellant.
Mr. Misra admittedly is a practising advocate of the Orissa High Court.
An objection was taken by the respondent to the representation of the appellant by Mr. Misra.
The respond ents refused to give their consent as required by section 36(4) of the Act.
The Tribunal came to the conclusion that the relationship between the appellant and Mr. Misra is that of a client and his lawyer and not that of an employer and employee.
The Tribunal also held that merely by execution of a power of attorney the restrictions attached to a legal practitioner contained in subsection (4) by Section 36 cannot be circum vented.
Dismissing the appeal, HELD: 1.
The Industrial Law in India did not commence with a show of cold shoulder to lawyers.
For the first time restriction was imposed in the year 1950 on the engagement of legal practitioners before the Appellate Tribunal without consent of the parties and leave of the Tribunal.
The restrictions on legal representations before the Industrial Courts existed in England also.
The act envisages investi gation and settlement of industrial disputes and with that end in view has created various authorities at different levels all independent of one another.
It is reason,able to suppose that the presence of legal practitioners in concili ation may divert attention to technical pleas and will detract from the informality of proceedings impeding smooth and expeditious settlement.
Legal practioners entrusted with their briefs cannot be blamed if they bring forth their legal training and experience to the aid and benefit of their clients.
But Labour Law operation operates in a field where there are two unequal contestants.
The Act, therefore, appears to be taking care of the challenge of the situation in which a weaker party is pitted against the stronger before adjudicating authorities.
Under section 36 (1) a workman who is a party to a dispute is entitled to be represented in any proceeding under the Act by 3 classes of officers mentioned in sub clauses (a), (b) and (c) of that sub section.
By sub section (3) a total ban is imposed (a), (b) and (c) of a party to a dispute by legal practi tioners in any conciliation proceedings under the Act or in any proceedings before a Court of enquiry.
Under section 36(4) a parry who desired to be represented by a legal practitioner has to take prior consent of the opposite party and leave of the Tribunal.
[539G, H, 540A, E F, 541H, & 542A] 2.
The rules of representation under section 36(1) and (2) are unconditional and are not subject to the conditions laid down in section 36(4).
[543A] 3.
Section 36 deals with the representation of the parties.
Neither the Act nor section 36 provides for ap pearance of the parties themselves when they are individuals or Companies or.
Corporations.
The Tribunals and Labour Courts being quasi judicial authorities dealing with the rights affecting the parties cannot adjudicate their dis putes in the absence of the parties.
It is therefore, incum bent on the Tribunals and Labour Courts to afford reasonable opportunity to the parties to appear before them and hear them while adjudicating the industrial disputes.
[543B C] 538 Section 36 is not exhaustive.
It is not intended under the Act that Companies and Corporations are confined 10 representation of their cases only through the officers specified in section 36(2) of the Act.
They can be repre sented by the Director, their own officers.
However, they cannot engage legal practitioners by means of special power of attorney.
[543C, F] 4.
If a legal practitioner is appointed as an officer of a Company or Corporation and is.
in their pay and under their control and is not a practising advocate.
the fact that he was earlier a legal practitioner or has a legal degree will not stand in the way of the Company or the Corporation being represented by him.
Similarly, if a legal practitioner is an officer of an association of employers or an office bearer of a Trade Union, there is nothing in section 36(4) to prevent him from appearing before the Tribunal.
[544 C D] There is no scope for the enquiry by the Tribunal into the motive for the appointment of such legal practitioner as office bearer of the Trade Union or the Employers ' Associa tion.
[544 F] 5.
The contention that 'and ' should be read as 'or ' in section 36(4) is negatived.
Consent of the opposite party is not an idle alternative but a ruling factor in Section 36(4).
[546 E F] |
Appeal No. 258/76.
Appeal by Special Leave from the Judgment and Order dated 3 1 75 of the Allahabad High Court in Second Appeal No. 2261/66.
G.N. Dikshit and O.P. Rana, for the Appellant.
Promod Swarup and Manoj Swarup, for the Respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is directed against 464 the judgment and decree dated January 3, 1975, of the High Court of Judicature at Allahabad setting aside the judgment and decree dated July 27, 1965, of the Second Additional Civil Judge, Jhansi, whereby the latter affirmed the judg ment and decree of the trial Court dismissing the respond ent 's suit for declaration that order dated November 29, 1961, passed by the Superintending Engineer, Circle IV, Irrigation Works, Jhansi, U.P. terminating the services of the respondent was void and ineffective in law and he was entitled to recover a sum of Rs. 2147/ as arrears of pay and dearness allowance from the appellant.
The facts leading to this appeal are: The respondent herein was appointed as a temporary clerk in Gur Sarain Canal Division, Jhansi.
on May 16, 1954.
Seven years later, he was required to appear in a departmental examination which was held in July, 1961.
On July 12.
1961, an optional typewriting test was held by the Department.
In that test the Executive Engineer, Investigation and Planning Division, Jhansi, it is alleged, detected Gopal Deo Santiya, a clerk of Bhander Canal Division, attempting to personate and appear for the respondent.
He obtained the explanation of both the clerks and reported the matter to the Superintend ing Engineer of his Division.
Considering the explanations tendered by the clerks to be unsatisfactory, the Superin tending Engineer brought the matter to the notice of the Chief Engineer, Irrigation Department, Lucknow.
The Chief Engineer wrote back to the Superintending Engineer asking him to award suitable punishment to the aforesaid two clerks.
The Superintending Engineer thereafter issued orders terminating the services of both the clerks.
The order that was passed in respect of and served on the respondent ran as follows : "No. E 70/IV/259 Dated Jhansi, November 29, 1961 OFFICE MEMORANDUM Shri Ram Chandra Trivedi, Temporary Routine Grade Clerk is hereby served with one month 's notice to the effect that his services shall not be required after one month from the date of receipt of this Notice.
sd/ S.P. Sahni, Superintending Engineer.
" The respondent attempted to have the above order re scinded by making representations to the Chief Engineer, and the Minister of Irrigation, U.P. which proved abortive.
The respondent thereupon challenged the aforesaid order of termination of his services by instituting the aforesaid suit averring inter alia that the order not being an order of termination of his service simpliciter but being one passed by way of punishment, attracted the applicability of Article 311 of the Constitution which not having been com plied with rendered the order void and ineffective, in law.
The suit was resisted by the appellant on the ground that the respondent was only a temporary hand; that under the contract of service as also the rules applicable to tempo rary Government servants, the respondent was liable to be discharged any time even though an enquiry in respect of a charge of misconduct might have been insti 465 tuted against him; and that the impugned order not having been passed a measure of punishment but being a simple order of termination of the respondent 's services without casting any stigma on him or visiting him with evil conse quences, was valid both under the aforesaid rules and the contract of service.
The grounds of attack made against the impugned order did not find favour with the trial Court which dismissed the suit.
Aggrieved by the judgment and decree of the trial Court, the respondont took the matter in appeal to the Second Additional Civil Judge, Jhansi, who affirmed the judgment and decree of the trial Court.
Both the Courts found that the impugned order was valid in law as it was a simple order of termination of service and not having been passed by way of punishment, it did not attract the provisions of Article 311 (2) of the Constitu tion.
Dissatisfied with these judgments, the respondent preferred a second appeal to the High Court of Judicature at Allhabad, which as already stated was allowed by a learned Single Judge of that Court.
While oversetting the concurrent findings of fact ar rived at by the courts below and decreeing the respondent 's aforesaid suit, the learned single Judge went through the official correspondence preceding the passing of the im pugned order and observed that a close scrutiny of the facts on record showed that the order was passed by way of punish ment on the basis of the enquire proceedings and as a result of the recommendation made by the Executive Engineer fol lowed by the direction issued by the Chief Engineer that the respondent should be suitably punished.
It is against this judgment and decree that the present appeal has been pre ferred by the State of U.P. Mr. Dixit, learned counsel appearing on behalf of the appellant, has urged that the High Court acted illegally in reversing the concurrent findings of fact arrived at by the courts below and quashing the impugned order which was a simple order of termination of the respondent 's services and had been validly passed in accordance with the rules relat ing to temporary Government servants and the contract of service.
He has further contended that the learned Single Judge could not probe into the departmental files to support his finding that the impugned order was passed against the respondent by way of punishment.
He has.
in support of his submissions, relied upon a number of decisions of this Court.
As against this, it has been vehemently urged by Mr. Garg, learned counsel for the respondent, that the constitutional position in regard to orders of the impugned nature is not well settled in view of the conflicting decisions of this Court particularly in view of the observations made in State of U.P. & Ors.
vs Sughar Singh(1) and The State of Punjab vs
P.S. Cheema (2), Mr. Garg has further contended that the circumstances attending the issue of the impugned order clearly establish that it was passed by way of punish ment.
It would, in our opinion, be appropriate at the outset to refer to the I decisions of this Court which have an important bearing on the instant (1) ; =[1974] 1 S.C.C. 218.
(2) A.I.R 1975 S.C. 1096.
466 case and to dispel the doubts sought to be created by Mr. Garg with regard to the constitutional position in relation to the applicability of Article 311 (2) of the Constitution, resulting from the said decisions.
In Satish Chandra Anand vs The Union of India(1), it was held by this Court that any and every termination of service does not amount to dismissal or removal and a termination of service brought about by exercise of a contractual right is not per se dismissal or removal.
On the same reasoning, this Court laid down in Shyam Lal vs State of U.P.(2) that the termination of service by compulsory retirement in terms of specific rule regulating the conditions of service is not tantamount to the infliction of punishment and does not attract Article 311(2).
In Parshotam Lal Dhingra vs Union of India(3) which is regarded as the Magna Carta of the Indian Civil Servant Das, C.J. speaking for the majority made the following illuminat ing observations : "Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punish ment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto.
But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment.
One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post.
If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311.
In other words and broadly speaking, article 311 (2), will apply to those cases where the Government servant, had he been employed by a private employ er, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank.
To put it in another way, if the Government has, by contract, express or implied, or, under the rules,the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is prima facie and per se not a punishment and does not attract the provi sions of article 311.
It does not, however, follow that, except in the three cases mentioned above.
in all other cases.
termination of (1) ; (2) [1955]1 S.C. R. 26.
(3) section C. R. 828.
467 service of a Government servant who has no right to his post, e.g., where he was appointed to a post, temporary or permanent, either on probation or on an officiating basis and had not acquired a quasi permanent status, the termina tion cannot, in any circumstance, be dismissal or removal from service by way of punishment ' Cases may arise where the Government may find a servant unsuitable for the post on account of misconduct, negligence, inefficiency or other disqualification.
If such a servant was appointed to a post, permanent or temporary, either on probation or on an offciating basis, then the very transitory character of the employment implies that the employment was terminable at any time on reasonable notice given by the Government.
Again if the servant was appointed to a post, permanent or tempo rary, on the express condition or term that the employment would be terminable on say a month 's notice as in the case of Satish Chander Anand vs The Union of India (supra), then the Government might at any time serve the requisite notice.
In both cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment, express or implied, or under the rules regulating the conditions of service, if any be applicable, and ordinarily in such a situation the Government will take this course.
But the Government may take the view that a simple termination of service is not enough and that the conduct of the servant.
has been such that he deserves a punishment entailing penal consequences.
In such a case the Government may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, removal or reduction carrying with it the penal consequences.
In such a case the servant will be entitled to the protection of article 311 (2).
The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank.
A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand vs The Union of India (supra).
Likewise the termination of service by compulsory retire ment in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punish ment and does not attract article 311 (2), as has also been held by this Court in Shyam Lal vs The State of Uttar Pradesh (supra).
In either of the two above mentioned cases the termination of the service did not carry with it the panel consequences of loss of pay, or allowances under r. 52 of the Fundamental Rules.
It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a 468 right exists, under the contract or the rules, to termi ate the service the motive operative on the mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh vs Union of India(1) wholly irrelevant.
In short, if the termination of service is founded on the right flowing from contract of the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so article 311 is not attracted.
But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punish ment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of article 311 must be complied with.
As already stated if the Servant has got a right to continue in the post then, unless the contract of employment or the rules provide to the contrary, his services cannot be termi nated otherwise than for misconduct, negligence, ineffi ciency or other good and sufficient cause.
A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within article 311, for it operates a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances.
It puts an indelible stigma on the officer affecting his future career.
A reduction in rank likewise may be by way of punishment or it may be an innocuous thing.
If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he, will then lose the emoluments and privi leges of that rank.
If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment.
But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a tower post or rank cannot in any circum stances be a punishment.
The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences.
Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way (1) A.I.R. 1956 Bom.
469 of penalty.
The use of the expression 'terminate ' or 'discharge ' is not conclusive.
In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1 ) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as.
a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant." In Gopi Kishore Prasad vs Union of India(1), it was held by this Court that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment, but if instead of taking the easy course, the Government chose the more difficult one of holding an enquiry into his alleged miscon duct and branded him as a dishonest and incompetent officer, it would attract Article 311 (2) of the Constitution.
In The State (2) Orissa & Anr.
vs Ram Narayan Das(2) where July 28, 1954, a notice was served on the respondent who was appointed as a Sub Inspector on probation in the Orissa Police Force in the year 1950 to show cause why he should not be discharged from service for gross neglect of duties and unsatisfactory work and where the explanation tendered by him was considered to be unsatisfactory by the Deputy Inspector General of Police who passed an order discharging the respondent from service for unsatisfactory work and conduct and where the respondent contended that the order was invalid on two grounds: (i) that he was not given a reasonable opportunity to show cause against the proposed action within the meaning of Article 311 (2), and (ii) that he was not afforded an opportunity to be heard nor was any evidence taken on the charge, it was held that the order of discharge did not amount to dismissal and did not attract the protection of Article 311 (2) of the Constitution as the respondent was a probationer and had no right to the post held by him and his services were terminated in accordance with the rules which permitted his being discharged at any time during the period of probation.
The case of Madan Gopal V. State of Punjab(3) where the order terminating the employment of the appellant who was a temporary Government servant was qashed on the ground that it was in the nature of an order of punishment which had been passed without complying with the provisions of Article 311 (2) of the Constitution is clearly distinguishable.
In that case, the order of termination of the (1) A.I.R. 1960 S.C. 689.
(2) ; (3) [1963] 3 S.C.R. 716.
470 appellant 's service which was preceded by an enquiry into his alleged misconduct was based on the finding of miscon duct which amounted to casting a stigma affecting his future career.
In Rajendra Chandra Banerice vs Union of India(1) where the appellant was appointed as a probationer for one year (which was extended from time to time) on condition that his services might be terminated without any notice and cause being assigned during that period and he agreed and joined the service and where later on during the period of his probation, he was called upon to show cause why his services should not be terminated and he was finally in formed that the explanation given by him was not satisfacto ry and his services would stand terminated on a specified date, it was held by this Court that the termination of his service was not by way of punishment and could not amount to dismissal or removal within the meaning of Article 311.
In Champaklal Chimanlal Shah vs The Union of India(2) where the appellant, whose appointment being temporary, was liable to be terminated on one month 's notice on either side was informed without assigning any cause after the expiry of about five years that his services would be terminated with effect from a specified date but before the termina tion, he was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him and certain preliminary enquiries were also held against him in which he was not heard, but no regular departmental enquiry followed and the proceedings were dropped, it was held by this Court after considering the cases of Gopi Kishore Prasad vs Union of India (supra), State of Orissa vs Ram Narayan Das (supra).
Madan Gopal vs State of Punjab (supra) and Jagdish Mitter vs Union, of India(3) that such a regular departmental enquiry though contemplated was not held against the appellant and no punitive action was taken against him, there was no question of the case being gov erned by Article 311(2) or the Constitution.
It was fur ther held in that case that it is only when the Government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishment '; that the Government servant gets the protection of Article 311.
In State of Punjab & Anr.
vs Shri Sukh Raj Bahadur(4) where the Punjab Government reverted the respondent from his officiating appointment in the Punjab Civil Service (Executive Branch) to his substantive post in the Delhi Administrative after issuing him a charge sheet to which the respondent replied but the enquiry was not proceeded with, it was held by this Court that the respondent could not complain against the order reverting him to his former post because the order of reversion was not by way of punishment.
In that case, Mitter, J. who spoke for the Bench laid down the following propositions : (1) ; (2) (3) A.I R. (4) ; 471 "1.
The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without any thing more would not attract the operation of article 311 of the Constitution.
The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.
If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
An order of termination of service in unex ceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of article 311 of the Constitution.
If there be a fulI scale departmental enquiry envisaged by article 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, and order of termina tion of service made thereafter will attract the operation of the said Article.
" The principles laid down in Parshotam Lal Dhingra 's case (supra), Champaklal Chimanlal Shah 's case (supra), and Shri Sukh Raj Bahadur 's case (supra) were reiterated by this Court in Union of India & Ors.
R.S. Dhaba(1).
State of Bihar & Ors.
vs Shiva Bhikshuk Mishra(2) and R.S. Sial vs The State of U.P. & Ors.(3) where it was laid down that the test for attracting Article 311(2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee.
The form of the order, however, is not conclusive to its true nature.
The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the over riding test will always be whether the misconduct is a mere motive or is the very foundation of the order.
In R.S. Sial vs The ;State of U.P. & Ors.
(3) to which one of us (brother Khanna, J.) was a party, it was made clear in unambiguous terms that it may be taken to be well settled that even though misconduct, negligence, ineffi ciency or other disqualifications may be the motive or the inducing factor which influence the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under (1) ; (2) (3) 472 the contract or the rules to terminate the services the motive operating on the mind of the Governments is wholly immaterial.
The same rule would hold good if the order passed is not for termination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity.
The decision of this Court in State of Uttar Pradesh & Ors.
vs Sughar Singh (supra) where the order of the re spondent 's reversion held to have been passed by way of punishment to which our attention has been drawn by Mr. Garg and which has led to a certain amount of misunderstanding turned upon a clear statement made before the High Court by the Standing Counsel for the State that the foundation of the order of reversion was the adverse entry made in his confidential character roll.
The constitutional position has now been made crystal clear by a Bench of seven Judges of this Court in Shamsher Singh & Anr.
vs State Punjab(1) where the learned Chief Justice after an exhaustive review of the decisions of this Court observed : "No abstract preposition can be laid down that where the services of a probationer are termi nated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case.
If a probationer is discharged on the ground of misconduct, or ineffi ciency or for similar reason without a proper enquiry and without his getting a reasonable oppor tunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 (2) of the Con stitution.
Before a probationer is confirmed the author ity concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post.
In the absence of any Rules governing a probationer in this respect the authority may come to the conclu sion that on account of inadequacy for the job or for any temperamental or other object not involv ing moral turpitude the probationer is unsuitable for the job and hence must be discharged.
No punishment is involved in this.
The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry.
But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation.
If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inef ficiency or corruption, and if his services are terminated without following the provisions of Article 311 (2) he can claim protection . . (1) ; 473 The fact of holding an inquiry is not always conclusive.
What is decisive is whether the order is really by way of punishment .
A proba tioner whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 (2).
An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311.
Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unex ceptionable in form is made following a report based on misconduct.
" The Division Bench judgment of this Court in P.S. Chee ma 's case (supra) on which strong reliance has been placed by Mr. Garg is also clearly distinguishable and no help can be derived therefrom by the respondent.
In that case, both the trial Court and the first appellant Court had come to a concurrent finding of fact that the impugned order of termination was by way of punishment.
It would also be seen that in that case on a representation being made by the respondent to the then Chief Minister of the State, the latter after consideration of the matter had ordered that in view of the respondent 's previous good record, he did not deserve the "punishment of termination of service only on account of a few bad reports and that the respondent should continue in service and his case should be reviewed after he earned another report from the Excise and Taxation Commissioner for the year 1964 65".
In a recent decision of this Court in The Regional Manager & Anr.
vs Pawan Kumar Dubey(1) to which one of us was a party, Sughar Singh 's case (supra) which is the sheet anchor of Mr. Garg 's contention was also adverted to and it was explained therein that that case did not depart from earlier decisions on applicability of Article 311 (2) or Article 16 of the Constitution.
The following observations made in Pawan Kumar Dubey 's case (supra) should suffice to clear the doubts that may still be lurking in some quarters as to the ratio decidendi of Sughar Singh 's case (supra) : "We think that the principles involved in applying Article 311(2) having been sufficiently explained in Shamsher Singh 's case (supra) it should no longer be possible to urge that Sughar Singh 's case (supra) could give rise to some misapprehension of the law.
Indeed, we do not think that the principles of law declared and applied so often have really changed.
But the application of the same law to the differing cir cumstances and facts of various cases which (1) ; 474 have come up to this Court could create the impres sion sometimes that there is some conflict between different decisions of this Court.
Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood.
It is the rule deducible from the application of law to the facts and cir cumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar.
One addition al or different fact can make a world of differ ence between conclusions in two cases even when the same principles are applied in each case to simi lar facts.
This Court 's judgment in Sughar Singh 's case (supra) shows that it was only following the law on Article 311(2) of the Constitution as laid down repeatedly earlier by this Court.
It specif ically referred to the following cases: Parshottam Lal Dhingra vs Union of India (supra); State of Punjab vs Sukh Raj Bahadur (supra); State of Orissa vs Ram Narayan Das (supra); R.C. Lucy vs State of Bihar(1) Jagdish Mitter vs Union of India (supra);A. G. Benjamin vs Union 01 India(2); Ram Gopal Chaturvedi vs State.
of Madhya Pradesh(3); Union of India vs Galendra Singh(4); Divisional Personnel Officer vs Raghavendrachar(5); Union of India vs Joswant Ram(6); Madhav vs State of Mysore(7); State of Bombay vs
Abraham(8).
In Sughar Singh 's case (supra), this Court summarised the propositions of law deducible from the cases mentioned above; and, while considering the ap plicability of some of the propositions of law to the facts of the case, it did observe that, on the face of it, the action against Sughar Singh did not appear to be punitive.
Nevertheless, on a total consideration of all the facts, including the admission in the High Court before Verma, C.J. by the Standing Counsel appearing on behalf of the State, that the reversion order could not be ex plained except as a result of the adverse entry made two years earlier, it had finally applied the ratio decidendi of the State of Bihar vs Shiva Bhikshuk Mishra (supra), where this Court had affirmed the opinion of the High Court, on facts, that the reversion was not in the usual course or for administrative reasons but it was after the finding on an enquiry about some complaint against the Plaintiff and by way of punishment to him.
On this view of the case, it was not really necessary for this Court to consider whether the reversion of Sughar Singh was contrary to the provisions of Article 16 also.
C.A. No. 590 of 1962 decided on 23 10 1963 .
(2) (3) ; (4) [1972] 2 S .C.R. 660.
(5) ; (6) A.I.R.1958 s.c. 905. (7) [19621 1 S.C.R. 886. (8) [1962] Supp. 2 SC.R. 92. 475 We do not think that Sughar Singh 's case (supra) in any way, conflicts with what has been laid down by this Court previously on Article 311(2) of the Constitution or Article 16 of the Constitution." Thus on a conspectus of the decisions of this Court referred to above, it is obvious that there is no real conflict in their ratio decidendi and it is no longer open to any one to urge with any show of force that the consti tutional position emerging from the decisions of this Court in regard to cases of the present nature is not clear.
It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger bench es.
The proper course for a High Court in such a case, as observed by this Court in Union of India & Anr.
K.S. Subramanian(1) to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.
Keeping in view the principles extracted above, the respondent 's suit could not be decreed in his favour.
He was a temporary hand and had no right to the post.
It is also not denied that both under the contract of service and the service rules governing the respondent, the State had a right to terminate his services by giving him one month 's notice.
The order to which exception is taken is ex facie an order of termination of service simpliciter.
It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct.
In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311 (2) of the Constitution.
We, therefore, agree with the submission made on behalf of the appellant that the High Court was in error in arriv ing at the finding that the impugned order was passed by way of punishment by probing into the departmental correspond ence that passed between the superiors of the respondent overlooking the observations made by this Court in I.N. Saksena vs State of Madhya Pradesh(2) that when there are no express words in the impugned order itself which throw a stigma on the Government servant, the Court would not delve into Secretariat flies to discover whether some kind of stigma could be inferred on such research.
We also find ourselves in agreement with the contention advanced on behalf of the appellant that the High Court failed to appreciate the true legal and constitutional position and upset the concurrent findings of fact arrived at by the Courts below that the impugned order was not by way of punishment ignoring the well settled principle of law that a second appeal cannot be.
entertained on the ground of erroneous finding of fact, however gross the error might seem to be.
(See Paras (1) ; C2) ; 476 Nath Thakur vs Smt.
Mohani Dasi & Ors.(1); Sri Sinna Ramanu la Jeer & Ors.
vs Sri Ranga Ramanuja Jeer & Anr.
(2); R. Ramachandra Ayyar vs Ramalingam(3) and Madamanchi Ramappa & Anr.
vs Muthaluru Bojappa(4).
For the foregoing reasons, the contentions of Mr. Dixit are upheld and those of Mr. Garg are repelled.
In the result, we allow the appeal, set aside the judg ment and, decree of the High Court, restore the judgments and decrees of the Courts below and dismiss the respond ent 's suit.
In the circumstances of the case, the parties are, however, left to pay and bear their own costs of this appeal.
V.P.S. Appeal allowed. | The respondent was appointed as a temporary clerk in an engineering division of the Government.
The attempt of another clerk to impersonate and appear for him in a depart mental examination was detected.
The Executive Engineer obtained explanations from both the clerks and reported the matter to the Superintending Engineer, who brought the matter to the notice of the ChiefEngineer.
The Chief Engi neer wrote to the Superintending Engineer to award suitable punishment.
The Superintending Engineer passed the order that the respondent a "temporary clerk is hereby served with one month 's notice to the effect that his services shall not be required after one month from the date of receipt of this notice.
" The respondent filed a suit challenging the order on the ground that the termination was one passed by way of punishment and therefore attracted Art 311 of the constitution;.
and since the provisions of the Article had not been complied had not been complied with the order was void.
The Trial Court and the First Appellate Court dismissed the suit.
But the High Court went,through the official correspondence preceding the passing of the impugned order, and observing that a close scrutiny of the facts on record showed that the order was passed by way of punishment on the basis of the enquiry proceeding and as a result of the recommendation by the Executive Engineer followed by the direction issued by Chief Engineer, allowed the second appeal.
Allowing the appeal to this Court, HELD :(1) It is no longer open to any one to urge that the constitutional position in regard to cases of the present nature is not clear.
An examination of the deci sions of this Court shows that there is no real conflict in their ratio decidendi.
Even if there is a conflict, the proper course for a High Court is to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of this Court.
This practice is followed by those Court itself and has hardened into a rule of law.
[475B C] Union of India & Anr.
K.S. Subramanian; , , followed.
State of U.P. & Ors vs Sughar Singh [1974] 2 .S.C.R. 335: ; , The State of Punjab vs
P.S. Cheema A.I.R. 1975 S.C. 1096, Satish Chandra Anand vs The Union of India ; , Shyam Lal vs State of U.P. ; , Parshotam Lal Dhingra vs Union of India ; , Gopi Kishore Prasad vs Union of India AIR. , The State of Orissa & ,Anr.
vs Ram Narayan Das ; , Madan Gopal vs State of Punjab [1963] 3 S.C.R. 716, Rajendra Chandra Banerjee vs Union of India ; , Champakal Chimanlal Shah vs The Union of.
India , Jagdish Mitter vs Union of India A.I.R. 1964 S.C. 449, State of Punjab & Anr.
vs Shri Sukh Raj Bahadur ; , Union Of India 463 & Ors.
R.S. Dhaba , State of Bihar & Ors.
vs Shiva Bhikshuk Mishra R.S. Sial vs The State of U.P. & Ors. , Shamsher Singh & Anr.
vs State of Punjab ; and The Regional Manager & Anr.
vs Pawan Kumar Dubey [1976] 3 S.C.R. 540 referred to.
(2) Before it is held that an order terminating the services of a Government servant amounts to punishment the Court must hold that either of the two tests,namely, (a) that the servant had a right to the post or (b) that he had been visited with evil consequences such as forfeiture of pay etc., is satisfied.
Therefore, an order terminating the services of a temporary servant or probationer under the Rules of employment and without anything more will not attract article 311.
Where a departmental enquiry is contem plated but an enquiry is not in fact proceeded with, article 311 will not be attracted unless it can be shown that the order, though.
unexceptionable in form, is made following a report based on misconduct.
Even though misconduct, negli gence, inefficiency or other disqualification may be the motive for the order of termination, if a right exists under the contract or the rules to terminate his services, then article 311(2) is not attracted unless the misconduct or negli gence is the very foundation of the order.
Where there are no express words in the impugned order itself ' which throw a stigma on the Government servant, the Court would not delve into secretariat files to discover whether some kind of stigma could be inferred on such research.
[469 A B; 473 C; 471 H; 475 F] Parshotam Lal Dhingra vs Union of India [1958] S.C.R. 828, R.S. Sial vs The State of U.P. & Ors.
[1974] 3 S.C.R. 754, Shamsher Singh & Ant.
vs State of Punjab ; and 1.
N. Saksena vs State of Madhya Pradesh ; followed.
(3) The respondent was a temporary hand and had no right to the post.
Under the contract of service and the service rules applicable to him the State had the right to terminate his services by giving him one month 's notice.
The order ex facie is an order of termination of service sim pliciter.
It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct.
Therefore, the respondent could not invite the Court to go into the motive behind the order and claim the protection of article 311(2) of the Constitution.
[475 D E] (4) The High Court failed to appreciate the true legal .and constitutional position and upset the concurrent findings of fact arrived at by the Courts below, ignoring the well settled principle of law that a second appeal cannot be entertained on the ground of erroneous findings of fact, however, gross the error might seem to be.
[475 G H] Paras Nath Thakur vs Smt.
Mohani Das & Ors.
[1960] 1 S.C.R. 271.
Sri Ramanuja Jeer & Ors.
vs Sri.
Ranga Ramanuja Jeer & Anr. ; , P. Ramachandra Ayyar vs Ramalingam ; and Madamanchi Ramappa & . Anr.
vs Muthaluru Bojappa ; , referred to. |
iminal Appeal No. 287/ 71.
Appeal by Special Leave from the Judgment and Order dated 10 9 71 of the Delhi High Court in Criminal Revision No. 310 of 1970.
A.N. Mulla, (Miss) Uma Mehta, R.K. Mehta, S.K. Bagga and (Mrs.) section Bagga, for the Appellants.
S.N. Anand and R.N. Sachthey; for the Respondent.
D. Mookerjee, B.P. Maheshwari, Suresh Sethi and N.K. lain for the Intervener.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal, by special leave, is directed against a judgment of the High Court of Delhi confirming the conviction of 594 the appellants under section 7(i) read with section 16(1)(a)(i) of the .
The prosecution case was that all material times the 2nd appellant was the owner of a grocery shop situate at Maharani Bagh, New Delhi and the 1st appellant was employed as a salesman in the shop.
On 23rd June, 1969 Bhanot, a Food Inspector went to the shop of the 1st appellant and finding the 1st appellant there as a sales man, took from him a sample of mustard oil for analysis after paying its purchase price.
He divided the sample into three parts and sent one part to the Public Analyst for analysis, handed over the other part to the 2nd appellant and retained the 3rd part with him.
The Public Analyst reported that the sample was misbranded as it was of Lin Seed Oil and it was adulterated due to the presence of artificial dye.
On the strength of this report, the appellants were chargesheeted under section 7(i) read with section 16(1)(a)(i) before the Judicial Magistrate, Delhi.
The defence of the 1st appellant was that the 2nd appellant was at no time engaged by him as the salesman and no mustard oil was purchased by Bhanot from the 2nd appellant.
The 2nd appellant also claimed that he was never an employee of the l st appellant and while he was going to his house after pur chasing sarson oil for his personal use, he was caught by two or three persons near Maharani Bagh and a sample was taken from the oil which he was carrying and his signatures were obtained by threat on certain papers.
The learned Judicial Magistrate accepted the evidence led on behalf of the prosecution and rejected the defence version and held that the appellants were guilty of the offence of selling lin seed oil containing artificial dye which was an offence punishable under section 7(i) read with section 16(1)(a) (i).
The learned Judicial Magistrate accordingly convicted the appellants and sentenced each of them to suffer rigorous imprisonment for nine months and to pay a fine of Rs. 1000/ .
The appellants preferred an appeal, but the appeal was rejected by the learned Sessions Judge and the convic tion was confirmed with only a slight modification in the sentence.
The sentence was reduced from nine months to six months rigorous imprisonment.
This led to the filing of a revision application in the High Court by the appellants, but the revision application was also unsuccessful.
Hence the present appeal by special leave obtained from this Court.
The first contention raised on behalf of the appellant in support of the appeal was that the conviction was bad inasmuch as it rested solely on the evidence of Bhanot and one other Food Inspector, namely, Bhatnagar, who happened to come there at the tinge of taking the sample and there was no independent witness to support the prosecution case.
Now, it is true that the prosecution could not produce :my independent witness to depose to the taking of the sample by Bhanot from the 2nd appellant at the shop of the 1st appel lant but that by itself cannot be regarded as sufficient to warrant rejection of the prosecution case out of hand.
The sample was taken by Bhanot in the presence of one Keshav Dutt Sharma and a panchnama evidencing the transaction was prepared and signed by Keshav Dutt Sharma on the spot.
But in the witness box Keshav Dutt Sharma turned hostile and denied that he was present at the time of taking the sample.
Of 595 course.
he could not deny that the endorsement B to B on the Panchanama was in his hand writing and he had put his signa ture at the foot of it, but his explanation was that one Food Inspector came to the shop where he was working and asked him either to give a sample of the ice cream he was selling at the shop or to give his signature on the. pancha nama.
This explanation is palpably dishonest and cannot be accepted by any court.
Moreover, it does not explain how the endorsement B to B came to be made by Keshav Dutt Sharma in his handwriting.
There can be no doubt that Keshav Dutt Sharma was present at the time of taking of the sample and he wrote down the endorsement B to B on the panchanama and signed it as he was a witness to the transaction.
It is unfortunately not an infrequent occurrence to find that pancha witnesses turn hostile and go back upon what is stated in the panchanama in utter disregard of truth.
This betrays lack of character and absence of civic sense which not only result in the guilty escaping the punishment but lead to general deterioration in standards of honesty and integrity.
This is a highly reprehensible phenomenon which has to be curbed in the larger interest of the administra tion of justice.
Here, apart from the endorsement B to B in the panchanama and the signature at the foot of it showing that Keshav Dutt Sharma was a witness to the taking of the sample, we have the statement of Bhanot who said in his evidence that Keshav Dutt Sharma was taken by him to witness the taking of the sample and Keshav Dutt Sharma made the endorsement B to B on the panchanama and put his signa ture below it and this statement made by Bhanot was not challenged in the cross examination, nor was it even sug gested to Bhanot that Keshav Dutt Sharma was not present at the taking of the sample.
The prosecution case obviously cannot be thrown out merely because Keshav Dutt Sharma refused to support what had been stated by him, in his own hand writing in the panchanama and went back upon it to the utter dismay of the prosecution.
It is true that by reason of the defection of Keshav Dutt Sharma, the prosecution was left only with the evidence of Bhanot and Bhatnagar, but this evidence was regarded by the High Court as well as the learned Judicial Magistrate and the learned Sessions Judge sufficient to found the conviction of the appellants and we do not see why we should interfere with the concurrent view taken by them as regards the appreciation of this evidence.
There is no rule of law that conviction cannot be based on the sole testimony of a food Inspector.
It is only out of a sense of caution that the courts insist that the testimony of a food Inspector should be corroborated by some independ ent witness.
This is a necessary caution which has to be borne in mind because the food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law: if it were other wise, it would be possible for many guilty persons to escape punishment by resorting to the device of bribing punch witnesses.
The conviction of the appellants cannot, there fore, be assailed as infirm on the ground that it rested merely on the evidence of Bhanot and Bhatnagar.
The appellants then contended that on the opinion expressed by the Public Analyst, the offence committed by the appellants was one 596 under section 16(1)(a)(i) with respect to an article of food adulterated under clause (1) of section 2 and the Court had, therefore, discretion, under the proviso to section 16 (1 ) to impose a lesser sentence of imprisonment than six months for adequate and Special reasons.
The argument of the appellants was that this was a fit case in which the discre tion under the proviso to section 16(1) should have been exercised and the minimum sentence of six months imprison ment should not have been imposed on the appellants.
This was in substance a plea for reduction of the sentence of imprisonment and this plea raises the question as to which is the clause of section 2(i) in which the present case falls.
Does it fail within the clause (1) as claimed by the appellants or within clause (j) as contended on behalf of the prosecution or within both and, if it falls within both, what the effect ? Section 2(i) defines 'adulterated ' and says that an article of food shah be deemed to be adulterat ed if the article fails within the description given in any of the succeeding clauses (a) to (1).
Clause (j) provides that an article of food shall be deemed to be adulterated: "(j) if any colouring matter other than that prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article." and clause (1) deems an article of food to be adulterated: "(1) if the quality or purity of the article fails below the prescribed standard or if constitu ents are present in quantities which are in excess of the prescribed limits of variability.
" In the present case what was sold by the appellants was linseed oil which contained artificial dye.
The standard of quality of linseed oil is defined in Paragraph A. 17.04 of Appendix B to the Prevention of Food Adulteration Rules, 1955 as follows: "A l7.04.
Linseed oil (Tilli ka tel) means the oil obtained by process of expressing clean and sound linseed (Linum usitatissimum).
It shall be clear, free from rancidity, suspended or other foreign matter, separated water, added colouring or flavouring substances, or mineral oil.
It shall conform to the following standards: (a) Butyro refractometer reading at 40 deg.
C . 69.5 to 74.3 (b) Saponification value . . 188 to 195 (c) Iodine value . .
Not less than 170 (d) Unsaphnifiable matter . .
Not more than 1.5 per cent (e) Free fatty acid as Oleic acid not more than 2.0 per cent." The argument of the appellants was that the requirement of this paragraph that linseed oil shall be free from foreign matter or added colouring substances lays down a standard of quality of linseed oil and since the linseed oil sold by the appellants contained artificial dye, the quality of the linseed oil fell below the prescribed standard and 597 hence the case was covered by clause (i) of section 2(i).
The appellants contended that if clause (1) of section 2(i) was applicable in the present case, it excluded the applica bility of clause (j) and the linseed oil containing artifi cial dye could not be said to be adulterated under that clause.
It was also urged on behalf of the appellants that, in any event, no colouring matter was prescribed in respect of linseed oil and.
therefore, it could not be said that there was present in the linseed oil sold by the appellants artificial dye "other than that prescribed in respect there of and in amounts not within the prescribed limits 0f variability" so as to bring the case within the scope of clause (j) of section 2(i).
These contentions of the appellants, plausible though they may seem at first sight, are without merit and must be rejected.
Our reasons for saying so are as follows.
It may be made clear at the out set that the different clauses of section 2(i) are not mutually exclusive.
They overlap one another ,red, it is quite possible that an article of food may be found adulterated under two or more clauses of section 2(i).
Take for example a case where an article of food contains a foreign substance which affects injuriously the quality thereof and at the same time renders it unfit for human consumption.
Such a case would clearly fall within clauses (b) and (f) of section 2(i) and the article of food would be deemed to be adulterated under both these clauses.
So also, a case may arise where a colouring matter not permitted under the rules is added to an article of food and such colouring matter affects injuriously the quality of the article of food and in such a case too more than one clause of section 2(i) would be attracted, namely, clause (b) and (i).
These instances which we have given are merely by way of illustration and they show that merely because an article of food is covered by one clause of section 2(i), it does not exclude the applicability of another clause of the section an article of food may be deemed to be adulterated under more than one clauses of section 2(i).
It is, therefore, not a valid argument that because the present case falls under clause (1) of section 2(i), the applicability of clause (j) is ipso facto nega tived and the case cannot come within that clause.
That takes us to the question whether the present case falls within clause (i) of section 2(i), for if it does, it would be immaterial whethere it falls also within clause (1) of section 2 (i) and in so far as the linseed oil sold by the appellants is deemed to be adulterated under clause (j) of section 2(i), the proviso to section 16(1) would not be attracted.
Now, the ;report of the Public Analyst showed that the linseed oil sold by the appellants contained arti ficial dye and this was clearly prohibited under the Rules.
Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the Rules, shall be prohibited.
The only artificial dyes, which were permitted to be used in food, were those set out in Rule 28, and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule.
Linseed oil was admittedly not one of the arti cles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil.
It does not appear from the report of the Public Analyst 598 as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dye.
Even so, by reason of Rules 23 and 29, it could not be added to linseed oil.
In the circumstances, the, linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.
The argument of the appellants was that since colouring matter was prohibited in respect of linseed oil, it could not be said that any colouring matter was prescribed in respect of linseed oil by the Rules and hence the presence of artificial dye in linseed oil did not at tract the applicability of clause (j) of section 2(i).
It was said that clause (j) of section 2(i) would be attracted only if a colouring matter is prescribed in respect of an article of food and the article is found to contain a co louring matter different from that prescribed.
But if no colouring matter is prescribed, which would be the position where colouring matter is totally prohibited, it cannot be said that the article of food contains a colouring matter other than that prescribed in respect of it.
This argument has the merit of ingenuity but it has no force and cannot be sustained.
When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article.
Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter.
There is really no difference h3 principle between the two kinds of cases.
Both are equally reprehensible; in fact the latter may in conceivable cases be more serious than the former.
Where no colouring matter is permitted to be used in an article of food, what is prescribed in respect of the arti cle is that no coIouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it would clearly involve violation of cl.
(j) of section 2(i).
The words of clause (j) of section 2(i) "other than that prescribed in respect thereof recall to the mind similar words used in section 29(2) of the Limita tion Act which makes certain provisions of the Limitation Act applicable in cases where a special or local law pre scribes a period of limitation different from the period prescribed by the Schedule to the Limitation Act.
These words of section 29(2) of the Limitation Act came up for interpretation before this Court in Vidyacharan Shukla vs Khubchand Baghel.(1) It was contended in that case that on ,a true construction of these words, it is only where a period of limitation is specifically prescribed in the Schedule and a special or local law prescribes a different period of limitation, that section 29(2) would be attracted and that section would have no application where no time limit is prescribed by the Schedule.
This contention was negatived and it was held by this Court that where the Schedule does not specifically prescribe any period of limitation for an application but is silent and a special or local law prescribes a period of limitation for such an ; 599 application, it can appropriately be said that the special or local law has prescribed a period of limitation differ ent from that prescribed in the Schedule and section 29(2) would be applicable.
The analogy of this decision is very apt and it supports the construction we are inclined to place on the words "other than that prescribed in respect thereof" in clause (j) of section 2(i).
We take the view that even where the Rules prescribe that no colouring matter or artificial dye shall be used in respect of an article of food, clause (j) of section 2(i) would apply if it is found that some colouring matter or artificial dye is present in the article.
Here, the linseed oil sold by the appellants contained artificial dye despite the prohibition in the Rules and hence the case was dearly covered by clause (j) of section 2(i) and the linseed oil must be deemed to be adulterated under that caluse.
That would exclude the applicability of the provi so to section (1), since the offence in this view would be one with respect to an article of food deemed to be adul terated under clause (j) of section 2(i).
The appellants ' plea invoking the liberality of the provision enacted in the proviso to section 16(1) must, in the circumstances, be rejected and the minimum sentence of imprisonment for six months must be maintained.
The appellants then pleaded that in any event on the facts and circumstances of the present case the benefit of the should be given to them and they should not be consigned to the rigours of jail life.
This plea also does not impress us.
It is no doubt true and that was laid down by this Court in the first pronouncement made by it on the subject in Isher Das vs State(1) that the operation of the is not excluded in case of persons found guilty of offences under the Prevention of the Food Adulteration Act, 1954.
To quote the words of Krishna lyer, 3., in P.K. Tejani vs
M.R. Dange(2) "The rehabilatory purpose of the is pervasive enough technically to take within its wings an offence even under the Act".
But in the very same decision in Isher Das 's case (supra) this Court sounded a note of caution which must be borne in mind: "Adulteration of food is a menace to public health.
The has been enacted with the aim of eradicating that anti social evil and for ensur ing purity in the articles of food.
In view of the above object of the Act and the intention of the legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months and a fine of rupees one thou sand has been prescribed, the courts should not lightly resort to the provisions of the in the case of persons above 21 years of age found guilty of offences under the . ." The imperatives of social defence must discourage the applicability of the probation principle.
No chances can be taken by society with a man whose anti social activites, in the guise of a respectable trade, jeopardise the health and well being of numerous innocent consumers.
(1) (2) [1974] 2 S.C.R. 154.
600 The adulterator is a social risk.
It might be dangerous to leave him free to carry on his nefarious activities by applying the probation principle to him.
Moreover, it must be remembered that adulteration is an economic offence prompted by profit motive and it is not likely to lend itself easily to therapeutic treatment by the probationary measure.
It may be pointed out that the Law Commission also in its Forty Seventh Report recommended the exclusion of applicability of the probationary process in case of social and economic offences and presumably in response to this recommendation, the Legislature has recently amended the by introducing section 20AA providing that nothing contained in the or section 360 of the Code of Criminal Procedure, 1973 shall apply to a person convict ed of an offence under the Act unless that person is under eighteen years of age This amendment of course would not apply in the present case but it shows the legislative trend which it would not be right for the court to ignore.
We cannot, therefore, give the benefit of the to the appellants and release them on probation.
We accordingly confirm the conviction and sentence recorded against the appellants and dismiss the appeal.
P.H.P. Appeal dismissed. | The second appellant was the owner of a grocery shop and the first appellant was his salesman in the shop.
Food Inspector Bhanot purchased a sample from appellant No. 1 of mustard oil after complying with the formalities prescribed by the Act.
The Public Analyst reported that the sample was misbranded as it was of in seed oil and it was adulterated due to the presence of artificial dye.
The appellants were charge sheeted under section 16(1)(a)(i).
The learned Magis trate convicted the appellants and sentenced them to suffer rigorous imprisonment for 9 months.
On appeal, the learned Sessions Judge confirmed the conviction but reduced the sentence from 9 months to 6 months.
The High Court, in revision upheld the decision of the Sessions Judge.
On appeal of Special Leave the appellants contended: 1.
The conviction was bad since it rested solely on the evidence of Food: Inspector Bhanot.
The offence committed by the appellants on the opinion of the Public Analyst fell under sec tion 16(1)(a)(i) read with clause (1) of section 2 (i) and, therefore, the Court had discretion under the proviso to section 16(1) to impose a lesser sentence than the minimum of 6 months.
In any event, the benefit of the ,, should be given to the appel lants.
Dismissing the appeal, HELD: 1.
There is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector.
It is only out of a sense of caution that the courts insist that the testimony of a Food Inspector should be corroborated by some independent witness.
This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness.
But this cau tion is a rule of prudence and not a rule of law.
If it were otherwise it would be possible for many guilty persons to escape punishment by resorting to the device of bribing Panch witnesses.
In the present case, the sample was taken in the presence of witness Krishan Datt Sharma who has turned hostile.
His explanation is palpably dishonest and cannot be accepted.
There is also the evidence of another Food Inspector Bhatnagar.
The Courts below accepted their evidence and there is no reason to interfere with the con current view taken by the courts below.
[595A G] 2.
Section 2(1) defines "Adulterated" and says that an article of food shall be deemed to be adulterated if the article fails within the description given in my of the succeeding clauses (a) to (1).
Clause (j) provides that an article of food shall be deemed to be adulterated if any colouring matter other than 593 that prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article.
Clause (1) deems an article of food to be adulter ated if the quality or purity of the article fails below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability.
[596C D] 3.
It is wrong to contend that if an article fails within clause (1) it cannot fail under clause (j) or any other clause.
Different clauses of section 2(i) are not mutually exclusive; they, overlap one another and it is quite possible that an article of food may be found adulter ated trader two or more clauses of section 2(i).
[597A C] 4.
The report of the public analyst showed that the linseed oil contained artificial dye and this was clearly prohibited under rule 23.
The only artificial dyes which were permitted to be used in food were those set out in rule 28 and Rule 29.
prohibited the use of permitted coal tar dyes in or upon any articles of food other than those enu merated in that Rule.
Lin seed oil was not one of the arti cles of food enumerated in rule 29 and hence artificial dye, even if permitted coal tar dye could not be added to linseed oil.
[597G H, 598A] 5.
The contention of the appellants that clause (j) would be attracted only if colouring matter is prescribed and the article of food is found to con:sin a colouring matter different from that prescribed was negatived.
When no colouring matter is permitted to be used in respect of an article of food what is prescribed in respect of the article is 'nil ' colouring matter and if the article contains any colouring matter it would be "other than that prescribed in respect" of the article.
[597A C, 598B D] Vidyacharan Shukla vs KhubchandBaghel, ; , relied on.
The operation of the is not excluded in case of persons found guilty of offence under the .
Howev er, imperatives of social defence must discourage the ap plicability of the probation principle.
No chances can be taken by Society with a man whose anti social activities in the guise of a respectable trade jeopardise the health and well being of numerous innocent consumers.
The adulterator is a social risk; it might be dangerous to leave him free to carry on his nefarious activities by applying the probation principle to him.
Adulteration is an economic offence prompted by profit motive and it is not likely to lend itself easily to therapeutic treatment by probationary measure.
[599D, G H, 600A B] Isher Das vs State and 1.
K. Tejani vs
M.R. Dhange, [1974] 2 S.C.R. 154 followed. |
ION: Criminal Appeal No. 63 of 1960.
Appeal by special leave from the judgment and order dated October 9, 1959, of the Bombay High Court in Criminal Reference No. 94 of 1959.
A. V. Viswanatha Sastri, section N. Andley and Rameshwar Nath, for the appellant.
R. Ganapathy Iyer and R. H. Dhebar, for respondent.
October 27.
The Judgment of Kanpur an Dayal, JJ., was delivered by Dayal J. Subba Rao, J., delivered a separate Judgment.
RAGHUBAR DAYAL, J.
This appeal, by special leave, is directed against the order of the High Court of Bombay, rejecting, the reference made by the additional Sessions Judge, Nasik, and confirming the conviction of the appellant under section 92 of the factories Act, 1948 (Act LXIII of 1948), hereinafter called the Act.
The appellant is the owner and occupier of "Jay Parkash Sudhir Private Ltd., a factory which manufactures bidis.
Pandurang Trimbak Londhe, hereinafter called Pandurang, rolled bidis in that factory for a number of days in 1957.
He ceased to do that work from August 17, 1957.
It was alleged by the prosecution that the appellant terminated Pandurang 's services by a notice put up on August 12, 1957.
The appellant, however, admitted the putting up of such a notice, but denied that Pandurang, the labourer, had left his service of his own accord.
252 Inspector Shinde, P.W.I, visited this factory August on 22, 1957.
He found from the weekly register and the wages register of the Factory that Pandurang worked for 70 days and earned 4 days T. leave.
Pandurang, however, did not enjoy that leave and was therefore entitled to be paid wages for that period i.e., for 4 days ' leave.
He was not paid those wages, and therefore, the appellant contravened the provisions of section 79(11) of the Act.
He consequently submitted a complaint against the appellant to the Judicial Magistrate, First Class, Sinnar.
It was contended for the accused before the Magistrate that Pandurang was not a worker within the meaning of that expression, according to s.2(1) of the Act and that therefore no leave could be due to him and the appellant could not have committed the offence of contravening the provisions of s.79(11).
The learned Magistrate did not agree with the defence contention and held Pandurang to be a worker and convicted the appellant of the offence under 8.
92 read with section 79(11) of the Act and sentenced him to a fine of Rs. 10.
It may be mentioned that this case was a test case.
Similar cases against the appellant with respect to the non payment of leave wages to other workers were pending in the Court.
The appellant went in revision to the Court of the learned Additional Sessions Judge, Nasik.
The Sessions Judge was of the opinion that Pandurang was not a worker and that the conviction of the appellant was bad.
He accordingly referred the case to the High Court.
The High Court, however did not agree with the view of the Sessions Judge and, holding that Pandurang was a worker, rejected the revision and confirmed the conviction and sentence.
It is against this order that this appeal has been filed.
Two points have been raised on behalf of the appellant.
One is that Pandurang was not a 253 worker within the meaning of that expression in the Act.
The other is that even if Pandurang was a worker, he was not entitled to any leave wages under section 80 of the Act.
The first contention is based on the established facts of the case which, it is submitted, do not make out the relationship of master and servant between the appellant and Pandurang, inasmuch as they indicate that the appellant had no supervision and control over the details of the work Pandurang did in the factory.
The following are the established facts: (1) There was no agreement or contract of service between the appellant and Pandurang.
(2) Pandurang was not bound to attend the factory for the work of rolling bidis for any fixed hours of work or for any filed period.
He was free to go to the factory at any time he liked and was equally free to leave the factory whenever he liked.
Of course, he could be in the factory during the hours of working of the factory.
(3) Pandurang could be absent from work on any day he liked.
He could be absent up to ten days without even informing the appellant.
If he was to be absent for more than ten days he had to inform the appellant, not for the purpose of taking his permission or leave, but for the purpose of assuring the appellant that he had no intention to give up work at the factory.
(4) There was no actual supervision of the work Pandurang did in the factory.
(5) Pandurang was paid at filed rates on the quantity of bidis turned out.
There was however no stipulation that he had to turn out any minimum quantity of bidis in a day.
(6) Leaves used to be supplied to Panduarng for being taken home and cut there.
254 Tobacco to fill the bidis used to be supplied at the factory.
Pandurang was not bound to roll the bidis at the factory.
He could do so at his place, on taking permission from the appellant for taking tobacco homes.
The permission was necessary in view of Excise Rules and not on account of any condition of alleged service.
(7) At the close of the day, the bidis used to be delivered to the appellant and bidis not up to the standard, used to be rejected.
The second contention is based on the inapplicability of the provisions of sections 79 and 80 of the Act to the case of the appellant, inasmuch as it is not possible to calculate the number of days he worked or the total full time earnings for the days on which he worked during the relevant period mentioned in section 80.
On behalf of the respondent State, it is submitted that the appellant had the right to exercise such supervision and control over the work of Pandurang as was possible with respect to the nature of Pandurang 's work which was of a very simple kind and that therefore Pandurang was a worker.
It is further urged that there is no difficulty in calculating the number of working days or the total full time earnings contemplated by section 80 of the Act.
We have given very anxious consideration to this case, as the view taken by the Court below in this case had been stated to be the right view in the decision of this Court in Shri Birdhichand Sharma.
The first Civil Judge, Nagpur (1), on which reliance is placed by the respondent.
The fact of that case are distinguished and only some of the facts of that case are similar to some of the facts of this class.
The similar facts are only these: Pandurang as well as the workers in that case could go to the factory (1) ; 255 at any time and leave it at and time, within the filed hours of work and they were paid at piece rates and the bidis below the standard were rejected.
It is to be noticed that the decision in that case is based on facts which do not exist in the present case.
That decision, therefore, is distinguishable and the opinion about the view of the High Court in the present case to be correct, appears to have been expressed without noticing that the facts of this case are different in material respects from the facts of the case this court was deciding.
The decision of that case it based really on the following facts: (1) The alleged workers had to work at the factory.
(2) Their attendance was notes.
(3) If they came to the factory after mid day, they were not given any work and they thus lost wages.
(4) The management had the right to remove them if them stayed away for a continuous period of eight days.
In the present case, Pandurang could work at the house if the appellant permitted tobacco to be taken home.
There is nothing on record to show the attendance is noted.
Of course, the days Pandurang worked could be found out from the work register.
It is not the case here that no work was to be given to Pandurang if he want to the factory after mid day.
There is no allegation that the appellant had the power to remove him, as a result of continued absence for a fixed number of days.
We are therefore of opinion that the decision in Birdhichand 's Case (1) is distinguishable on facts and cannot be applicable to the facts of this (1)[1961] 3 section C.K. 161.
256 The one essential ingredient which should exist to make a person come within the definition of 'worker ' in cl.
(1) of section 2 of the Act is that he be employed in one of the processes mentioned in that Clause.
There is no dispute that the work which Pandurang did came within one of such processes.
The sole question for determination then is whether Pandurang can be said to be employed by the appellant.
This Court, in Shri Chintaman Rao vs The State of Madhya Pradesh (1), said: "The concept of employment involves three ingredients: (1) employer (2) employee and (3) the contract of employment,.
The employs is one who employs, i.e., one who engaged the services of other persons.
The employee is one who works for another for hire.
The employment is the contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervision.
" Employment brings in the contrast of service between the employer and the employed.
We have mentioned already that in this case there was no agreement or contract of service between the appellant and Pandurang.
What can be said at the most is that whenever Pandurang went to work, the appellant agreed to supply him tobacco for rolling bidis and that Pandurang agreed to roll bidis on being paid at a certain rate for the bidis turned out.
The appellant exercised no control and supervision over Pandurang.
Further section 85 empowers the State Government to declare that certain provisions of the Act would apply to certain places where a manufacturing process is carried on, notwithstanding the persons therein are not employed by the owner (1) ; , 1346,1349,1350, 1351.
257 thereof but are working with the permission of or under agreement with such owner.
This provision draws a distinction between the person working being employed by the owner and a person working, with the permission of the owner or under agreement with him.
We are of opinion that the foots of this case strongly point to Pandurang 's working with the permission of or under agreement with the owner and not on any term of employment by the owner.
Further, the facts of the case indicate that the appellant had no control and supervision over the details of Pandurang 's work.
He could not control his hours of work.
He could not control his days of work.
Pandurang was free to absent himself and was free to go to the factory at any time and to have it at any time according to his will.
The appellant could not insist on any particular minimum quantity of bidis to be turned out per day.
He could not control the time spent by Pandurang on the rolling of a bidi or a number of bidis.
The work of rolling bidis may be a simple work and may require no particular supervision and direction During the process of manufacture.
But there is nothing on record to show that any such direction could be given.
In this connection reference may again be made to the observation at page 1349 in Shri Chintaman Rao 's Case.
The Court was considering whether the Sattedars were workers or were independent contractors Sattedars used to receive tobacco from the management and supply them rolled bidis.
They could manufacture bidis outside the factory and should also employ other labour.
It was in these facts, that it was said: "The management cannot regulate the manner of discharge of his work.
" In the present case too, Pandurang used to be supplied tobacco.
He could turn out as many bidis (1)[1958] section C. R. 1340, 1346, 1349, 1350, 1351.
258 as he liked and could deliver them to the factory when he wanted to cease working.
During his period of work, the management could not regulate the manner in which he discharged his work.
He could take his own time and could roll in as many bidis as he liked.
His liability under the daily agreement was discharged by his delivering the bidis prepared and the tobacco remaining with him unused.
The appellant could only order or require Pandurang to roll the bidis, using the tobacco and leaves supplied to him, but could not order him as to how it was to be done.
We are therefore of opinion that the mere fact that the person rolling bidis has to roll them in a particular manner can hardly be said to give rise to such a right in the management as can be said to be a right to control the manner of work.
Every worker will have to turn out the work in accordance with the specifications.
The control of the management, which is a necessary element of the relationship of master and servant, is not directed towards providing or dictating the nature of the article to be produced or the work to be done, but refers to the other incidents having a bearing on the process of work the person carries out in the execution of the work.
The manner of work is to be distinguish.
ed from the type of work to be performed.
In the present case, the management simply says that the labourer is to produce bidis rolled in a certain form.
How the labourer carries out the work is his own concern and is not controlled by the management, which is concerned only with getting bidis rolled in a particular style with certain contents.
Further, this Court, in Shri Chintaman Rao 's Case (1)examined the various provisions of the Act and then said: "The scheme of the aforesaid provisions indicates that the workmen in the factory are under the direct supervision and control of the management.
The conditions of service (1) , 1346, 1349, 1350, 1951.
259 are statutorily regulated and the management is to conform to the rules laid down at the risk of being penalised for dereliction of any of the statutory duties.
The management obviously cannot fix the working hours, weekly holidays, arrange for night shifts and comply with other statutory requirements, if the persons like the Sattedars, working in their factories and getting their work done by others or through coolies, are workers within the meaning of the Act.
It is well high impossible for the management of the factory to regulate their work or to comply with the mandatory provisions of the Act.
The said provisions, therefore, give a clear indication that a worker under the definition of the Act is a person who enters into a contract of service under the management and does not include an independent contractor or his coolies or servants who are not under the control and supervision of the employer.
" It can be said, in the present case too, that the appellant could not fix the working hours or weekly holidays or asked arrangements for night shifts and comply with other statutory requirements, if Pandurang be held to be a worker within the meaning of the Act.
We are therefore of opinion that Pandurang was not a worker.
It is true, as contended for the State, that persons engaged to roll his on job work basis could be workers, but only such persons would be workers who work regularly at the factory and are paid for the work turned out during their regular employment on the basis of the work done.
Piecerate workers can be workers within the definition of 'worker ' in the Act, but they must be regular workers and not workers who come and work according to their sweet will.
It is also true, as urged for the State that a worker, within the 260 definition of that expression in the Act, need not be a whole time worker.
But, even then, the worker must have, under his contract of service, an obligation to work either for a fixed period or J. between fixed hours.
The whole conception of service does not fit in well with a servant who has full liberty to attend to his work according to his pleasure and not according to the orders of his master.
We may say that this opinion further finds support from with we hold on the second contention.
If Pandurang was a worker, the provisions about leave and leave wages should apply to him.
We are of opinion that they do not and what we may in that connection reinforces our view that Pandurang was not a worker as the three criteria and conditions laid down in Shri Chintaman Rao 's Case (1) for constituting him as such are not fulfilled in the present case.
Before discussing the provisions of ss.79 and 80 of the Act.
which deal with leave and wages for leave, we would like to state that the terms on which Pandurang worked, did not contemplate any leave.
He was not in regular employ.
He was given work and paid according to the work he turned out.
It was not incumbent on him to attend to the work daily or to take permission for absence before absenting himself.
It was only when he, had to absent himself for a period longer than ten days that he had to inform the management for administrative convenience, but not with a view to take leave of absence.
Section 79 provides for annual leave with wages and section 80 provides for wages during leave period.
It is on the proper construction of the provision of these sections that it can be said whether the appellant contravened the provisions of sub section
(11) of 8. 79 of the Act and committed the offence under s.92 of the Act.
(1) ; , 1346, 1349,1350, 1351.
261 Sub section (1) of section 79 reads: "(1) Every worker who has worked for a period of 240 days or more in factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of (1) if an adult, one day for every twenty days of work performed by him during the previous calendar year; (ii) if a child, one day for every fifteen days of work performed by him during the previous calendar year.
Explanation 1.
For the purpose of this sub section (a) any days of lay off, by agreement or contract or as permissible under the standing orders, (b) in the case of a female worker, maternity leave for any number of days not exceeding twelve weeks; and (c) the leave earned in the` year prior to that in which the leave is enjoyed; shall be deemed to be days on which the worker has worked a factory for the purpose of computation of the period of 240 days or more, but shall not earn leave for these days.
Explanation 2.
The leave admissible under this sub section shall be exclusive of all holidays whether occurring during or at either end of the period of leave.
" It is clear that this applies to every worker.
If it does not apply to any type of person working in the factory, it may lead to the conclusion that the person does not come within the definition of the word 'worker '.
262 The worker is to get leave in a subsequent year when he has worked for a period of 240 days or more in the factory during the previous calendar year.
Who can be said to work for a period of J. 240 days? According to cl.
(e) of 8. 2, 'day ' means a period of twenty fore hours beginning at mid night.
Section 51 lays down that no adult worker shall be required or allowed to work in a factory for more than forty eight hours in any week, and, according to section 54, for not more than nine hours in any day.
Section 61 provides that there shall be displayed and correctly maintained in every factory a notice of periods of work for adults showing clearly for every day the periods during which adult worker may be required to work and that such periods shall be fixed beforehand and shall be such that workers working for those periods would not be working in contravention of any of the provisions of sections 51, 52, 54, 55, 56 and 58.
Section 63 lays down that no adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory.
A 'day ', in this context, would mean a period of work mentioned in the notice displayed.
Only that worker can therefore be said to work for a period of 240 days, whose work is controlled by the hours of work he is required to put in, according to the notice displayed under section 61.
Pandurang was not bound to work for the period of work displayed in the factory and therefore his days of work for the purpose of section 79 could not be calculated.
It is urged for the State that each day on which Pandurang worked, whatever be the period of time that he worked, would count as one day of work for the purpose of this section.
We do not agree with this contention.
When the section provides for leave on the basis of 263 the period of working days, it must contemplate a definite period of work per working day and not any indefinite period for which a person may like to work on any particular day.
Section 80 provides for the wages to be paid during the leave period and its sub s.(1)reads: "For the leave allowed to him under section 79, a worker shall be paid at a rate equal to the daily average of his total full time earnings for the days on which he worked during the month immediately preceding his leave, exclusive of any overtime and bonus but inclusive of dearness allowance and the cash equivalent of the advantage accruing through the confessional sale to the worker of foodgrains, and other articles.
" The question is how the daily average of his total full time earnings for the days on which he worked during the month immediately preceding his leave is to be calculated.
It is necessary for the calculation of the rate of wages on leave, to know his, total 'full time earnings, ' for the days he had worked during the relevant month.
What does the expression 'total full time earnings ' mean? This expression is not defined in the Act.
It can only mean the earnings he earns in a day by working full time of that day, full time to be in accordance with the period of time given in notice displayed in the factory for a particular day.
This, is further apparent from the fact that any payment for overtime or for bonus is not included in computing the total full time earnings Full time ', according to Webster 's International Dictionary, means the amount of time considered the normal or standard amount or working during a given period, as a day? week or month '.
264 In Words & Phrases, Permanent Edition, published by West Publishing Co., Vol. 17, with regard to the expression 'Full time ' it is stated: In an industrial community, term 'full time ' has acquired definite significance recognized by popular usage.
Like terms 'part time ' and 'over time ' it refers to customary period of work; and all these terms assume that a certain number of hours per day or days per week constitute respectively a days or week 's work within a given industry or factory.
" It is also stated at page 791: " 'Full time ' as basis for determination of average weekly wages of injured employee means time during which employee is offered employment, excluding time during which he has no opportunity to work.
" We are therefore of opinion that there can be no basis for calculating the daily.
average of the worker 's total full time earnings when the terms of work be as they are in the present case and that therefore the wages to be paid for the leave period cannot be calculated nor the number of days for which leave with wages can be allowed be calculated in such a case.
It does not appear from the record, and it is not likely, that any period of work is mentioned in the notice displayed under section 61, with respect to such workers who can come at any time they like and go at any time they like and turn out as much work as they like.
For the reasons stated above, we are of opinion that the conviction of the appellant for an offense under section 92; read with section 79(11) of the Act is wrong.
We accordingly set aside the order of the Court below and acquit the appellant.
Fine, if paid, will be refunded.
265 SUBBA RAO, J. I have had the advantage of perusing the judgment Prepared by my learned brother day, J. I regret my inability to agree.
The question raced in this appeal is directly covered by the judgment of this Court in Birdhi Chand, Sharma vs First Civil Judge, Nagpur (1).
As my learned brother has taken a different view, I propose to give reasons for my conclusion.
This appeal by special leave is directed against the judgment of the High Court of Bombay in Criminal Reference No. 94 of 1955 made by the Additional Sessions Judge.
Nasik, under section 438 of the Code of Criminal Procedure, and it raises the question of interpretation of some of the provisions of the (63 of 1948), (hereinafter referred to as the Act).
The appellant is the owner of a factory named ' 'Jay Parkash Sudhir Private Ltd." engaged ill the manufacture of bidis.
He engaged 60 persons for the work of rolling bidis in his factory.
On August 12, 1267, the appellant issued a notice to the said persons terminating their services with effect from August 17, 1957.
On August 22, 1957, the Inspector of Factories paid a visit to the factory found that one of the said persons by name Pandurang Trimbak had worked for 70 days in the factory and had earned leave for 4 days which he had not enjoyed nor was he paid wages in lieu of the leave before his discharge.
It is not disputed that the position in regard to the other 59 persons is also similar.
The Inspector of Factories filed 60 complaints against the appellant in the Court of the Judicial Magistrate, First Class, Sinnar, For infringing the provisions of section 79(2) of the Act.
The Magistrate found to appellant guilty and convicted and sentenced him to pay a fine of Rs. 10 On revision, the learned Additional Sessions Judge, Nasik, taking the view that the convection should be quashed.
referred the matter (1) ; 266 to the High Court under section 438 of the Code of Criminal Procedure.
A division bench of the a High Court, on a consideration of the facts found the material provisions of the Act and the relevant decisions cited, come to the conclusion that a person rolling bidis in a factory is a "worker" within the meaning of B. 2(1) of the Act and on that basis upheld the order of conviction and sentence passed by the learned Magistrate.
Hence this appeal.
Learned counsel for the appellant contends that the persons rolling bidis in the factory are not "workers" within the meaning of the Act, as the said persons can come any day they like, work as they like and, therefore, they cannot be said to by employed by the manufacturer under the Act.
Alternatively he argues that even if they were ' 'workers", section 79 of the Act, which deals with the question of leave with wages, cannot apply to a worker who is paid wages according to the quantity of work done by him and not per day or par week.
At the outset it would be convenient to ascertain exactly how these persons rolling bidis are engaged by the appellant and how they work ill the factory.
Admittedly, Pandurang Trimbak and other 59 persons were engaged by the appellant for rolling bidis in his factory.
The registers maintained by the factory, namely, weekly register and wages register, had on their rolls the names of the said persons as labourers for doing the said work.
It is also common case that the said persons attend the factory and roll bidis in the premises of the factory during the working hours of the factory.
Leaves are supplied to the labourers on the previous day, which they cut in their houses after dipping them in water, and on the neat day, when they go to the factory, tobacco is given to them.
After they make the bidis the matter verifies whether they are according to the sample.
Those that are not according to the sample are rejected.
Thereafter the quantity of 267 bidis rolled by each labourer is entered in the bidi map register maintained by the factory.
D. W. 1 is a gumasta and general supervisor in the factory.
He supervises the work of the man who supplies tobacco.
He enters the quantity of bidis rolled by each labourer against his name in the register and if a labourer is absent, his absence is noted against his name in the said register.
The labourers are paid at the rate of Rs. 2 2 O, or such other rate as agreed by them, per thousand bidis rolled.
So far there is no difference between a labourer working in the appellant 's factory and a labourer working in any other factory.
Just like any other manufacturer, the appellant engages the labour, allots work for them and extracts work from them and pays them wages for the work so done.
Now let us look at the differences between the labourers in a bidi factory and those in other factories on which much emphasis is laid by learned counsel for the appellant.
P. W. 1, the Inspector of Notified Factories, says that during their working in the factory, there, is no supervision over them.
P. W. 2, Pandurang Trimbak, admits in the cross examination that during the factory hours he used to work in the factory of the appellant at any time and go at any time.
He further states that they can sit at any compartment of the factory and there is no compulsion on the labourer to do a minimum quantity of work every day and that the permission of the master is required only if a labourer wants to absent for more than ten days or when he wants to bind bidis in his house.
D. W. 1, the gumasta and supervisor in the factory, also says that a labourer can leave the factory in the midst of work after giving the finished product and after returning the tobacco.
He says that at the time of receiving the finished goods, he verifies whether the goods are according to sample and then makes the requisite entries in 268 the register.
What emerges from this evidence is that there in no supervision in the sense that nobody regulary watches their work from start to finish giving directions, if and when required.
But the labourers understand that the bidis to be rolled in by them shall accord with the sample and, therefore, they roll the bidis to accord with that sample.
The names of persons that are absent, the quantity of tobacco issued to each of the labourer, and the number of bidis rolled by each of them are entered in the appropriate registers.
The rejected bidis are given way to the labourers; it cannot obviously mean that dereliction of duty is rewarded but it only shows that the rejected bidis are insignificant in number.
In short, the appellant engages a labourer, extracts work from him, pays him wages in accordance with the quantity of bidis rolled by him, and exercises a right of supervision as the nature of the work requires.
With this background let us look at the definition of "worker ' in section 2(1) of the act ' 'Worker" is defined to mean ' 'a person employed, directly or through agency, whether for wages or not in any manufacturing process.
"Under this definition, a person employed in a manufacturing process in a worker.
The question raised in this case turns upon the interpretation of the word 'employed" in the definition.
This Court in Chintaman Rao vs State of Madhya Pradesh ( '1A) defined the word ' 'employed" thus: "The concept of employment involves three ingredients: (1) employer (2) employee and (3) the contract of employment.
The employer is one who employs, i.e., one who engages the services of other persons.
The employee is one who works for another for hire.
The employment is the contract of (1A) ; , 1346.
269 service between the employer and the employee whereunder the employee agrees to s serve the employer subject to his control and supervision.
" In making out the distinction between an employer and an independent contractor, this court in the above case quoted the following observations of Bhagwati J, in Dharangadhara Chemical Works Ltd .
vs State of Saurashtra (1): "The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done.
" The some view was reiterated.
by this Court in The State of Kerala vs V.M. Patel (2).
That was a case where 23 persons were employed in the process of garbling pepper and packing them in bags.
Hidayatullah, J."speaking for the Court stated: "It was observed that, to determine whether a person was a '"worker", the proper test was to see whether or not the "employer" has control and supervision over the manner in which the work was to be done".
Adverting to the distinction between an independent contractor and a servant, the learned Judge proceeded to state: "An independent contractor is charged with a work and has to produce a particular result; but the manner in which the result is to he achieved left to him.
A servant, on the other hand may also be charged with the work and asked to produce a particular result, but is subject to the directions of the matter as to the manner in which tho result is to be achieved." (1) [1957] S.C.R.152,157.
(2) Criminal Appeal No. 42 of 1959 decided on 12 10 60.
270 This decision also emphasized that a right to control or supervise is one of the tests for determining the relationship of master and servant.
In this context a judgment of the Madras High Court in Palaniappa vs Court of Additional First Class Magistrate, Kulitalai (1) is strongly relied upon on behalf of the appellant.
There, the petitioner was the owner of a weaving concern at Karur.
He had put up a thatched shed where he had installed a certain number of handlooms and where towels and bed sheets were manufactured.
His office consisted of only two clerks, who were this permanent members of his establishment.
Some of the residents of the village, most of whom were agriculturists, but who knew waving used to go to the petitioner 's shed when they had e, and when they felt inclined to do to and they were supplied with yarn.
These, they wove into bed sheets and towels and they were paid at certain rates for the articles they wove.
These persons came in and went out when they liked.
On those facts, Balakrishna Ayyar, J., held that they were not "workers" within the definition of the word '"worker" in the .
After considering the relevant decisions cited and after distinguishing the cases arising under the Industrial Disputes Act, the learned Judge proceeded to state thus: "An examination of these decision confirms what one was inclined to suspect at the outset, viz., that "employed" is a word with a varying content of meaning and that it signifies different things in different places . . .
On the other hand, when we say that X is employed by Y we ordinarily imply that Y remunerates X for his services and that he has a certain measure of control over his time and skill and labour.
But the degree and extent of conrlto may be nominal or extensive . . . . (1) I.L.R. , 1009, 1010.
271 In between lie infinite grades of control and supervision.
But a certain amount of supervision or control is necessarily implied in the connotation of the word `employed '.
" Having said that, the learned Judge graphically describes the relationship between the parties thus: "The worker can come any day he likes, work as long as he likes or as short as he likes and go away.
He may work fact or he may work slow.
The petitioner cannot tell him that he should work on towels and not on bed sheets or vice versa. . . .
And, more important of all the petitioner cannot prevent anybody from working for a competing manufacturer.
Come when you like, go when you like, work when you like, stop when you like, work as fast as you like, work as slow as you like, work on what you like or not at all, that the position of the workers vis a vis the petitioner.
Such persons cannot, in my opinion, be said to be 'employed ' by the petitioner within the meaning of clause (1) of section 2 of the .
" It is not necessary to express our opinion whether the conclusion of the learned Judge on the facts of that case is correct or not.
But the principle accepted by him, namely, that a certain amount of supervision or control is necessarily implied in the connotation of the word "employed", has been accepted by this Court in earlier decisions and this decision is only an application of that principle to a different set of facts.
The present case falls to be decided on its peculiar facts.
As we have pointed out, though there is some laxity in the matter of attendance, it cannot be said that the appellant has no right of supervision or control over the labourers working in the factory or does not supervise to the extent required having regard to the nature of the 272 work done in the factory.
All the necessary 'ingredients of the word "employed" are found in the case.
The appellant engages the labourers, he entrusts them with work of rolling bidis in accordance with the sample, insists upon their working in the factory, maintains registers giving the particulars of the labours absent, amount of tobacco supplied and the number of bidis rolled by each one of them, empowers the gumasta and supervisor, who regularly attends the factory, to supervise the supply of tobacco and leaves and the receipt of the bidis rolled.
The nature and pattern of bidis to be rolled is obviously well understood, for it in implicit in requirement that the rolled in bidis shall accord with the sample.
The rejection of bidis found not in accord with the sample is a clear indication of the right of the employer to dictate the manner in which the labourers shall manufacture the bidis.
Supposing a worker uses more quantity of tobacco than a bidis is, expected to contain, it cannot be suggested that the supervisor cannot tell him that he shall not do to.
If he spoils the leaves, which he in not expected to do, it cannot be said that the labourer cannot be pulled up in the direction.
So too, the supervisor can certainly compel the labourers to work in a specified portion of the factory or direct them to keep order a rid discipline in the course of the discharge of their duties.
The fact that they cannot take the tobacco outside the factory without the leave of the management shows that they are subject to the supervision of the management.
The circumstance that they cannot absent them selves for more than 10 days without the permission of the appellant also is a pointer in that direction.
That a labourer is not compelled to work throughout the working hours is not of much relevance, because, for all practical purpose, a labourer will not do so since his wage depends upon the bidis he rolls, and, as he cannot roll them outside the factory, necessarily 273 he will have to do so in the factory.
If he absents himself, it is only at his own risk.
For all the aforesaid reasons I hold that all the ingredients of the word " 'employed", as laid down by this Court are present in this case, and therefore the labourers are workers within the meaning of section 2(1) of the Act.
The next contention of learned counsel for the appellant was that even if the labourers in the factory were workers within the meaning of the Act, section 79 thereof would not apply to them and, therefore, there could not have been any contravention of that section.
The material part of section 79 of the Act reads: "Every worker who has worked for a period of 240 days or more in a `factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of (1) if an adult, one day for every twenty days of work performed by him during the previous calendar year;. ".
Section 80 says, (1) "For the leave allowed to him under section 79,a worker shall be paid at a rate equal to the daily average of his total full time earnings for the days on which he worked during the month immediately preceding his leave, exclusive of any overtime and bonus but inclusive of dearness allowance and the cash equivalent of the advantage accruing through the concessional sale to the worker of foodgrains and other articles " The argument is that SS. 79 and 80 have to be read together and that 8. 79 cannot be applied to a worker to whom section 80 does not apply.
Section 80, the argument proceeds, entitles a worker for 274 leave allowed to him under section 79 to be paid at a rate equal to the daily average of his total full time earnings for the days for which he worked during the month immediately preceding his leave and that as the workers in question had the option to work for the full day or part of the day, the words "full time earnings" would not apply to them.
This argument, though at first blush appears to be plausible, on a deeper scrutiny reveals that it is unsound.
The following words stand out in section 80(1) full time earning and (ii) days.
"Day" has been defined in section 2(e) to mean '"a period of twenty four hours beginning at midnight".
It cannot be suggested, and it is not suggested, that " 'full time earnings" for a day means earnings made during all the twenty four hours.
Such a contention cannot be raised for the reason that the provision of the restrict the number of hours of work during the day of twenty four hours.
Under section 51 of the Act, '"No adult worker shall be required or allowed to work in a factory for more than forty eight hours in one week", and under a 54, "Subject to the provisions of section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day".
A combined reading of these two sections indicates that subject to the maximum period of working hours fixed for a week, no worker shall be allowed to work for more than a hours a day.
For the purpose of calculation of wages during the leave period under section 80, the full time earnings for a day can be taken to mean the amount earned be a worker for the daily hours of work field for a factory.
In the instant case it is admitted that the working hour for the factory are filed and the workers are entitled to work throughout the working hours, though they can leave the factory during those hours if they choose to do so.
But they cannot be prevented from working for all the hours fixed for the factory and they are entitled 275 to be paid their wages on the basis of the number of bidis rolled by them.
The wages earned by them during the working hours of the factory would be their full time earnings for the day.
If so, there cannot be any difficulty for the management to ascertain the rate under B. 80 of the Act for the payment of wages during the leave period, for under that section the management would have to pay at a rate equal to the daily average of their total full time earnings for the days they worked.
The factory registers would show the total full time earnings of each worker for the days during the month immediately preceding his leave.
The average shall be taken of the earnings of those days and the daily average of those earnings would be the criterion for fixing the wages during the leave period.
I cannot, therefore, say that section 79 of the Act by its impact on section 80 thereof makes it inapplicable to a worker of the category with which we are now concerned.
This argument, therefore, is rejected.
No other question was raised before us.
In the result, the appeal fails and is dismissed.
By Court.
In accordance with the opinion of the majority the appeal is allowed, the order of the Court below set aside and the appellant acquitted.
Fine, if paid, will be refunded.
Appeal allowed. | The appellant was the owner of a factory manufacturing bidis and one P along with other labourers used to roll bidis in the factory with tobacco and leaves supplied to him by the factory.
The following were established facts: (1) There was no contract of service between the appellant and P.(2) He was not bound to and the factory for rolling biding for any fixed hours or period; he was free to go to the factory at any time during working hours and leave the factory at any time he liked.
(3) He could be absent from the work any day he liked and for ten days without even informing the appellant.
He had to take the permission of the appellant if he was to be absent for more than I O days.
(4) He was not bound to roll the bidies at the factory.
He could do so at home with the permission of the appellant for taking home the tobacco supplied to him.
(5) There was no actual supervision of the work done by him in the factory and at the close of the day rolled bidis were delivered to the appellant.
Bidis not up to the standard were rejected.
(6) He was paid at fixed rates on the quantity of bidis turned out and there was no stipulating for turning out any minimum quantity of bidis.
The Inspector of Factories found that he was not paid the wages for 4 days ' leave which he had earned after having worked for a certain period.
The appellant was fined Rs. 101 for contravening the provisions of section 79(11) of the .
The questions which arose for decision were whether P was a worker within the meaning of that expression under the Act and whether he was entitled to any leave wages under section 80 of the Act.
^ Held (per Kapur and Raghubar Dayal, JJ.), that the decision of this Court in Birdhi Chand 's Case was distinguishable on facts and could not be applicable to the facts of the present case.
The appellant exercised no control and supervision over P. He was not a worker as the three criteria and conditions laid down by this Court in Chintaman Rao 's 250 case for constituting him as such were not fulfilled in the present case.
Biardhi Chand Sharma vs The First Civil Judge, Nagpur ; , distinguished.
Chintaman Rao vs The State of Madhya Pradesh, ; , applied.
Whether the appellant contravened the provisions of sub .(1) of section 79 depended on the proper construction of sections 79 and 80 of the Act.
With the terms of the work as they were in the present case there could be no basis for calculating the daily average of the worker 's "total full time earnings" which means the earnings he earns in a day by working full time on that day, the full time to be in accordance with the period of time given in the notice displayed in the factory for a particular day and.
therefore the wages to be paid for the leave period could not be calculated nor the number of days for which leave with wages could be allowed be calculated in such a case.
The conviction of the appellant under section 92 read with section 79(1) of the Act was wrong.
Per Subba Rao, J., dissenting, The question raised in the appeal was directly covered by the judgment of this Court in Birdhi, Chand Sharma case.
It could not be said that the appellant had no right of supervision or control over the labourers ill the factory or did not supervise to the extent required having regard to the nature of the work done in the factory.
Under section 2(1) of the Act "worker" meant a person employed, directly through any agency whether for wages or not in any manufacturing process.
All the ingredients of the word "employed" as laid down by this court were present in this case and therefore the labourers were workers within the meaning of section 2(1) of the Act.
Birdhi Chand Sharma vs First Civil Judge, Nagpur.
; , Chaintaman Rao vs State of M.P.[1958] section C. R. 1340, Dharangadhara Chemical Works vs State of Saurashtra, ; , State of Kerala vs V. M. Patel, and palaiappa vs Court of Additional First Class Magistrate, Kulitalai I. L. R. , considered.
For the purpose of calculation of wages during the leave period under section 80, the full time earnings for a day could be taken to mean the amount earned by a worker for the daily hours of work fixed for a factory.
In the instant case the workers were entitled to work throughout the fixed working hours of the factors though they could leave the factory at any time during those hours and hey 251 were entitled to be paid their wages on the basis of the number of the bidis rolled by them.
The wages earned by them during the working hours of the factory would be no their full time earning for the day.
There could, therefore, be no difficulty in ascertaining the rate under section 80 of their wages during, the leave period, for under that section the workers would have to be paid at a rate equal to the daily average of their total full time earnings for the days they worked. |
: Criminal Appeal No. 291 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 19 1 1971 of the Allahabad High Court in Crl.
Case No. 412/ 70).
D.P. Uniyal and O.P. Rana, for the Appellant.
S.N. Singh, for the Respondent.
617 The Judgment of the Court was delivered by KRISHNA IYER, J.
Some cases, apparently innocent on their face and this appeal is one such may harbour beneath the surface profoundry disturbing problems concerning freedoms, the unfettered enjoyment of which is the foundation for a democracy to flourish.
The present appeal, by special leave, relates.
to the forfeiture of a book captioned 'Ramayan: A True Reading ' in English and its translation in Hindi, by the late political figure and leader of the Rationalist Movement, Periyar EVR, of Tamii Nadu, by an order of the State Government of Uttar Pradesh, purporting to be passed under section 99A of the Code of Criminal Procedure.
In the view of the appellantgovernment this book was sacrilegiously, outrageously objectionable, being 'deliberately and maliciously intended to outrage the religious feelings of a class of citizens of India, viz., Hindus by insulting their religion and religious beliefs and the publication whereof is punishable under section 295A IPC '.
This notification contained an appendix setting out in tabular form the particulars of the relevant pages and lines in the English and Hindi versions which, presumably, were the materials which were regarded as scandalizing.
Thereupon an 'application was made by the respondent who was the publisher, under section 99C of the Code, to the High Court which, by its special Bench, allowed the application and quashed the notification.
The aggrieved State has ap pealed to this Court, by special leave.
and counsel for the appellant has urged before us that the Government notifica tion does not suffer from the vice which, according to the High Court, invalidated it and that the impugned book makes a foul assault on the sacred sentiments of the vast Hindu population of the State since the author anthematised in unvarnished language the great incarnations like Sree Rama and disdainfully defiled the divinely epic figures like Sita and Janaka all of whom are worshipped or venerated by the Hindu commonalty.
Sidestepping this issue the High Court, by majority judgment, struck down the order on the short ground that 'the State Government did not state the grounds of its opinion as required in section 99A o[ the Code.
For that reason alone the petition has to be allowed and the order of forfeiture set aside in Court '.
The anatomy of section 99A falls to be studied at the thresh old so that the pathology, if any, of the impugned order may be discovered.
Shorn of phraseological redundancies (from the point raised in this case) the pertinent components of the provision, empowering forfeiture of materials manifest ing written expression by citizens, are threefold, as flow from a reproduction of the relevant parts: "99 A(1) Where (a) any newspaper, or book . or (b) any document, wherever printed, appears to the 'State Government to contain any . or any matter which promotes or is intended to promote feelings of enmity or hatred between different 618 classes of the citizens of India or which is delib erately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter the publication of which is punishable under section 124 A or Sec tion 153 A or Section 295 A of the Indian Penal Code, the State Government may, by notification in the official Gazette, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government. " The triple facets of a valid order therefore are: (i) that the book or document contains any matter; (ii) such matter promotes or is intended to promote feelings of ' enmity or hatred between different classes of the citizens.
of India; and (iii) a statement of the grounds of Government 's opinion.
Thereupon the State Government may, by notifica tion, declare every copy of the issue containing such matter to be forfeited.
Does the present notification fulfil the third requisite of legal viability or is it still born, being mortally wounded by absence of the statement of grounds ? The High Court holding this vital ingredient missing, has voided the order, but Sri Uniyal, counsel for the State, submits that though there is no express enunciation of the grounds for ' Government 's opinion, the appendix makes up for it.
He argues that the numbers of the pages and lines of the of fending publication supply both the 'matter ' and the 'grounds ', the latter being so patent that the.
omission is inconsequential.
More explicitly, the contention is that a mere reference to the matter, sufficiently particularised, functionally supplies, by implicit reading or necessary implication, the legal requirement of statement of grounds.
The office of furnishing the reason or foundation for the governmental conclusion is substantially, though not formal ly, fulfilled where the appendix, an integral part of the order, sets out self speaking materials.
When the grounds are self evident, silence is whispered speech and the law does not demand their separate spelling out as a ritualistic formality.
The counter contention is that express condi tions for barricading the fundamental freedoms of expression designedly imposed by the Code cannot be whittled down by the convenient doctrine of implication, the right being too basic to be manecled without strict and manifest compli ance with the specific stipulations of the provision.
After.
all fundamental rights are fundamental in a free Republic, except in times of national emergency, where rigorous restraints, constitutionally sanctioned, are clamped down.
We are dealing with the Criminal Procedure Code and Penal Code and these laws operate at all times.
We have therefore to interpret the law in such a manner that liberties have plenary play, subject of course to the secu rity needs of the nation, as set out in the Constitution and the laws.
619 Even so, counsel for the appellant contends that the references in the forfeited book, as indicated in the appen dix to the order, are so loudly repulsive and malevolently calumnous of Sree Rama, Sita and Janaka that the court must vicariously visualize the outraged feelings of the Hindus of Uttar Pradesh and hold that the grounds are written in the order in invisible ink.
When we assess the worth of this submission we have to notice (a) the constitutional per spective, i.e., whether the basic freedoms are sought to be legally handcuffed; and (b) the existence of alternative possibilities of popular understanding of the prescribed publication which necessitate some statement of the circum stances and the reasons which induced the government in the given conditions of ethos and otherwise to reach the opinion it has recorded.
The State, in India, is secular and does not take sides with one religion or other prevalent in our pluralistic society.
It has no direct concern with the faiths of the people but iS deeply obligated not merely to preserve and protect society against breaches of the peace and violations of public order but also to create conditions where the sentiments and feelings of people of diverse or opposing beliefs and bigotries are not so molested by ribald writings or offensive Publications as to provoke or outrage groups into possible violent action.
Essentially, good government necessitates peace and security and whoever violates by bombs or books societal tranquillity will become target of legal interdict by the State.
We propose to view the issue before us both from the textual angle and from the larger standpoint and are led to the conclusion, by an interaction of both, that the High Court was not wrong and the appeal must fail.
The various High Courts in India have had occasion to consider this question but have come to divergent conclusions.
as will presently appear.
A drastic restriction on the right of a citizen when imposed by statute, calls for a strict construction, especially when quasi penal consequences also ensue.
The imperial authors of the Criminal Procedure Code have drawn up section 99A with concern for the subject and cautionary man dates to government.
The power can be exercised only in the manner and according to the procedure laid down by the law.
Explicitly the section compels the government to look at the matter which calls for action to consider it as to the clear and present danger it constitutes in the shape of promoting feelings of enmity and hatred between different segments of citizens or as to its strong tendency or intendment to outrage the religious feelings of such segments (there are other proclivities also stated in the section with which we are not concerned for the present purpose) and, quite impor tantly, to state the grounds of its opinion.
We are con cerned with the last ingredient.
When the section says that you must state the grounds it is no answer to say that they need not be stated because they are implied.
you do not state a thing when you are expressively silent about it.
To state 'is to declare or to set forth especially in a precise, formal or authoritative manner; to say (something), especially in an emphatic way to assert ' (Random House Dictionary).
The conclusion is inescapable 8 1234SCI/76 620 that a formal authoritative setting forth of the grounds is statutorily mandatory.
If you laze and omit, the law visits the order with voidness and this the State Government must realize especially because forefeiture of a book for a penal offence is a serious matter, not a routine act to be executed with unconcern or indifference.
The wages of neglect is invalidity, going by the text of the Code.
These considerations are magnified in importance when we regard the changeover from the Raj to the Republic and the higher value assigned to the great rights of the people.
Where there is a statutory duty to speak, silence is lethal sin for a good reason disclosed by the scheme of the fasciculus.
of sections.
For section 99C enables the aggrieved party to apply to the High Court to set aside the prohibitory order and the Court examines the grounds of Government given in the order and affirms or upsets it.
The Court cannot make a roving enquiry beyond the grounds set forth in the order and if the grounds are altogether left out what is the Court to examine ? And, by this omission, careless or calculated, the valu able right of appeal to the Court is defeated.
A construc tion of the section, fraught with such pernicious conse quence and tampering with the basic structure of the statu tory remedy, must be frowned upon by the Court if the liber ty to publish is to be restricted only to the limited extent the law allows.
This reasoning is reinforced by Harnam Das vs State of U.P.(1) wherein this Court observed: "What then is to happen when the Government did not state the grounds of its opinion ? In such a case if the High Court upheld the order, it may be that it would have done so for reasons which the Government did not have in contemplation at all.
If the High Court did that, it would really have made an order of forfeiture itself and not upheld such an order made by the Government.
This, as already stated, the High Court has no power tO do under section 99 D.
It seems clear to us, therefore, that in such a case the High Court must set aside the order under section 99 D, for it cannot then be satisfied that the grounds given by the Government justified the order.
You cannot be satisfied about a thing which you do not know.
" We do not mean to say that the grounds or reasons link ing the primary facts with the forfeiter 's opinion must be stated at learned length.
That depends.
In some cases, a laconic statement may be enough, in others a longer ratioc ination may be proper but never laches to the degree of taciturnity.
An order may be brief but not a blank.
This conclusion establishes a constitutional rapport between the penal section 99A and the fundamental right article 19.
To relieve the State from the duty to state grounds of forfeiture, in the face of the words of section 99A, is to permit raptorial opportunity for use of such power over people 's guaranteed liberty.
Why do we say so ? Surely, security of the State and peace of society demand restrictions on indi vidual rights and we are the slaves of the law that we may be free.
(1) ; , 1666.
621 The fighting faith of our founding fathers respected Mills ' famous statement and Voltaire 's inspired assertion.
We quote: "If all mankind minus one were of one opin ion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind." (Mill in his essay 'on Liberty ', pp. 19 20: Thinker 's Library ed.
, Watts) "I disapprove of what you say, but I will defend to the death your right to.
say it." (Attributed to Voltaire in S.G. Tallentyre, The Friends of Voltaire, 1907) Rights and responsibilities 'are a complex system and the framers of our COnstitution, aware of the grammar of anarchy; wrote down reasonable restrictions on libertarian exercise of free doms.
Dr. Ambedkar, in the Constituent Assembly, argued that it is incorrect to say that fundamental rights are absolute and quoted from Gitlow vs New York two self speaking passages: "It is a fundamental principle, long estab lished, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever.
one may choose, or an unrestricted and unbridled licence that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom." X X X X X "That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, invite to crime or dis turb the public peace, is not open to question . . " Section 99A of the Code, construed in this candescent constitutional conspectus, bears out our interpretation.
In the interests of public order and public peace, public power comes into play not because the heterodox few must be suppressed to placate the orthodox many but because every one 's cranium must be saved from mayhem before his cerebrum can have chance to simmer.
Hatred, outrage and like feel ings of large groups may have crypto violent proneness and the State, in its well grounded judgment, may prefer to stop the circulation of the book to preserve safety and peace in society.
No enlightened State, would use this power to suppress advanced economic views, radical rational criti cisms or fearless exposure of primitive obscurantism but ordered security is a constitutional value wisely to 622 be safeguarded if progressives and regressives are to peace fully coexist.
This is the spirit of section 99A of the Code.
The actual exercise will depend not on doctrinnaire logic but practical wisdom.
While the American theory of clear and present danger as the basis of restriction on fundamen tal rights does not necessarily apply in India, the illumi nating observations of Holmes J., serve to educate the administrator and Judge.
In Scheneck vs U.S.(1) Holmes J drove home the true test: "We admit that in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights.
But the character of every act depends upon the circumstances in which it is done.
The law 's stringent protection of free speech, would not protect a man in falsely shouting 'fire ' in a theatre, and causing panic.
It does not even protect a man from an injunction against uttering words that may have all the effect of force.
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent.
It is a question of proximity and degree.
" Developing this theory in a famous passage in Abrains vs U.S.(2) he said: "Persecution, for the expression of opinions, seems to me perfectly logical.
If you have no doubt of your pre mises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.
To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises.
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ulti mate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the compe tition of the market; and that truth is the only ground upon which their wishes safely can be carried out.
That at any rate, is the theory of our Constitution.
It is an experiment, as all life is an experiment.
" Again in Bowmen vs Secular Society Ltd.,(2) Lord Summer underscored the dynamism of liberty and safety at once luminous and, elegant, in a purple passage: (1) (1918)249 U.S.47.52=63 L.E.d.470.473 474.
(2) ; , 629=63 L. ed.
1173, 1180.
(3) , 466 7. 623 "The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault.
In the present day meetings or processions are held lawful which a hundred and fifty years ago would have been deemed seditious and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before.
In the present day reasonable men do not apprehend the dissolution or downfall of society because religion is publicly assailed by methods not scandalous.
Whether it is possible that in the future irreligious attacks, designed to undermine fundamental institutions of our society, may come to be criminal in themselves, as constituting a public danger, is a matter that does not arise.
The fact that opinion grounded on experience has moved one way does not in law pre clude the possibility of its moving on fresh expe riences in the other; nor does it bind succeeding generations, when conditions have again changed.
After all, the question whether a given opinion is a danger to society is a question of the times and is a question of fact.
I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the moment, whatever that right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to blasphemy and irreligion. which prevents us from varying their application to the particular circumstances of our time ni accordance with that experience.
" Such is our constitutional scheme, such the jurispruden tial dynamics and philosophical underpinnings of freedom and restraint, a delicate area of fine confluence of law and politics which judges by duty have to deal with.
The journey 's end has now arrived.
Government has the power and responsibility to preserve societal peace and to forfeit publications which endanger it.
But what is thereby prevented is freedom of expression, that promoter of the permanent interests of human progress.
Therefore, the law (section 99A) fixes the mind of the Administration to the obliga tion to reflect on the need to restrict and to state the grounds which ignite its action.
To fall here is to fault the order.
That is about all.
Before concluding, we clarify that we express no view on the merits of the book or its provocative vitriol.
It depends on a complex of factors.
What offends a primitive people may be laughable for progressive communities.
What is outrageous heresay for one religion or sect or country or time may be untouchably holy for another.
Some primitive people may still be outraged by the admonition of Swami Vivekananda : 'Our religion is in the kitchen, our 624 God is the cooking pot, and our religion is don 't touch me, I am holy ' (quoted at p. 339 by Jawaharlal Nehru in Discov ery of India).
The rule of human advance is free thought and expression but the survival of society enjoins reasonable curbs where public interest calls for it.
The balance is struck by governmental wisdom overseen by judicial review.
We speak not of emergency situations nor of constitutionally sanctified special prescriptions but of ordinary times and of ordinary laws.
A parting thought which we put to appellant 's counsel may be stated here.
If the State Government, judging by current circumstances, feels impelled to invoke section 99A against the book in question it is free to do so, subject of course to fulfilment of the requirement to state the grounds of its opinion and the operation of section 99C of the Code.
Our detailed discussion disposes of the question of law and resolves the conflict immanent or apparent in the rul ings of the various High Courts ranged against each other.
They are: Arun Ranjan Ghose vs The State of West Bengal(1); and Jwalamukhi vs State of A.P. (2) which support the view propounded by the appellant; and Mohammad Khalid vs Chief Commissioner(3); China Annamalai vs State(4) and Bennet Coleman & Co. Ltd vs State of J & K(5) which held with the Allahabad judgment under appeal.
Perhaps there is no need to discuss the ratio in each of the above cases as the rival points of view have been already covered in the earlier part of this judgment.
The possible invocation of the powers under section 99A of the Code of Criminal Procedure by various State Governments on several occasions induces us to enter a caveat.
Basic unity amidst diversity notwithstanding, India is a land of cultural contrarities, co existence of many religions and anti religions, rationalism and bigotry, primitive cults and materialist doctrines.
The compulsions of history and geography and the assault of modern science on the retreat ing forces of medieval ways a mosaic like tapestry of lovely and unlovely strands have made large and liberal tolerance of mutual criticism, even though expressed in intemperate diction, a necessity of life.
Governments, we are confident, will not act in hubris, but will weigh these hard facts of our society while putting into operation the harsh directives for forfeiture.
From Galileo and Darwin, ThOreau and Ruskin to Karl Marx, H.G. Wells, Barnard Shaw and Bertrand Russel, many great thinkers have been objected to for their thoughts and statements avoiding for a moment great Indians from Manu to Nehru.
Even today, here and there, diehards may be found in our country who are offended by their writings but no Government will be antediluvian enough to invoke the power to seize their great writings because a few fanatics hold obdurate views on them.
(1)I.L.R. (2) I.L.R. (3) AIR 1968 Delhi 18 (F.B.).
(4) AIR 1971 Madras 448 (FB).
(5) 625 A well known Mao thought aptly expresses the liberalist approach to divergent schools of philosophy: "Letting a hundred flowers blossom and a hundred schools of thought contend is the policy for promoting the progress of the arts and sciences.
" Haroll Laski, who influenced many Indian progres sives, in his 'A Grammar of Politics ' states a lasting truth: "There is never sufficient certitude in social matters to make it desirable for any govern ment to denounce it in the name of the State.
American experience of the last few years has made it painfully clear that there will never be present in constituted authority a sufficient nicety of discrimination to make R certain that the opinion attacked is one reasonably certain to give rise to present disorder.
" x x x x x x "It is no answer to this view to urge that it is the coronation of disorder.
If views which imply violence have a sufficient hold upon the State to disturb its foundations, there is some thing radically wrong with the habits of that State.
" x x x x x x x "Almost always there are rare cases in which persecution has proved successful the result of free expression is such a mitigation of the condi tion attacked as to justify its use; almost always, ' also, to prohibit free speech is to drive the agitation underground.
What made Voltaire dangerous to France was not his election to the Academy, but his voyage to England.
Lenin was infinitely more dangerous to.
Czarist Russia in Switzerland than he would have been in the Dume.
Freedom of speech, in fact, with the freedom of assembly therein implied, is at once the kathersis of discontent and the condition of necessary re form.
A government can always learn more from the criticism of its opponents than from the eulogy of its supporters.
To stifle that criticism is at least ultimately to prepare its own destruction.
" A note of circumspection.
In the current context of constitutionally proclaimed emergency, the laws have perforce to act in the narrow limits inscribed in the Emergency provisions and this decision relates to the pre Emergency legal order.
We dismiss the appeal. | The appellant Government passed an order under Section 99 A of the Cr.
P.C., for the forfeiture of a book entitled 'Ramayan: A true Reading ' in English and its translation in Hindi, by Periyar EVR, of Tamil Nadu, on the ground that the book intended to outrage the religious feelings of a class of citizens of India, namely, the Hindus.
Thereupon, an application was made by the respondent publisher of the book.
under Section 99 C of the Code to the High Court, which by its special Bench, allowed the application and quashed the notification on the ground that the State Gov ernment had failed to state the grounds of its opinion as required in Section 99 A of the Code.
The appellant contended that a specific statement of grounds by the Government, is not a mandatory requirement under Section 99 A of the Cr.
P.C., & that it can be made by implication.
Dismissing the appeal, the Court HELD: To relieve the State from the duty to state grounds of forfeiture, is to permit raptorial opportunity for use of such power over people 's guaranteed liberty.
Section 99 A says that you must state the ground and it is no answer to say that they need not be stated because they are implied.
An order may be brief but not a blank.
A formal authoritative setting forth of the grounds is statu torily mandatory.
Section 99 C .enables the aggrieved party to apply to the High Court to set aside the prohibitory order and the Court examines the grounds of Government given in the order.
The Court cannot make a roving enquiry beyond the grounds sefforth in the order and if the grounds are altogether left out, the valuable right of appeal to the Court is defeated.
[610G H, 620B C, G H] Harnam Das vs State of U.P.A.I.R. , 1666 dictum applied.
Scheneck vs
U.S. ; , 527_ 63 L.ed.
470, 473 474: Abrams vs U.S. ; , 629=63 Led.
1173, 1180; Bowmen vs Secular Society Ltd. , 466 7; Arun Ranjan Ghosh vs State of West Bengal (I.L.R. , Jwalamukhi vs State of A.P. (I.L.R. referred to.
Mohammad Khalid vs Chief Commissioner (A.I.R. 1968 Delhi 18 FB) Chinna Annamalai vs State (A.I.R. 1971 Madras 448 F.B.), Bennet Coleman & Co. vs State of J & K (1974 J & K .L.R. 591) approved. |
Appeal No. 799 of 1975.
From the Judgment and Order dated 31 1 75 of the Gauhati High Court, Imphal Bench in Election Petition No. 2/74.
Janardhan Sharma and Jitendra Sharma; for the appellant.
section V. Gupte Naunit Lal and (Miss) Lalita Kohli, for Respondent No. 1. 574 The Judgment of the Court was delivered by KHANNA, J.
In the mid term poll to Manipur Legislative Assembly held in February 1974, respondent No. 1 (hereinaf ter referred to as the respondent) was declared ' elected from the Patsoi Assembly constituency.
The appellant, who was one of the rival candidates, filed an election petition to challenge the election of the respondent.
The election petition was dismissed by the Gauhati High Court.
The appellant has now come up in appeal against the judgment of the High Court.
The respondent, who was a candidate sponsored by the Manipur people 's Party secured 5,033 votes, while the appellant who was Iris nearest rival secured 2,473 votes.
There were some other candidates, but we are not concerned with them.
The respondent was the Speaker of Manipur Legislative Assem bly at the relevant time.
The Assembly was dissolved in 1973.
The respondent, however continued to hold the office of the Speaker fill March 8, 1974.
The appellant chal lenged the election of the respondent on two main grounds.
One of the grounds was that the respondent being Speaker of the Assembly held an office of profit in the State Govern ment and as such was disqualified to seek election.
The other ground was that the election expenses of the respondent exceeded the prescribed limit of Rs. 2,500.
It was also stated that some of the expenses incurred by the respondent for the purpose of election had not been shown by him in the return filed by him, and as such, he was guilty of corrupt practice.
The High Court repelled all the grounds, and in the result dismissed the election peti tion.
In appeal before us Mr. Sharma on behalf of the appellant has not challenged the finding of the High Court insofar as it has held that the respondent was not disqualified from seeking election because of the fact that he held the office of the Speaker.
The appellant indeed could not challenge this finding as we find that the Manipur Legislature has now passed the Manipur Legislature (Removal of Disqualifica tions , (Amendment) Act, 1975 (Manipur Act 1 of 1975).
As a result of this amendment, a person holding the office of Speaker of Manipur Legislative Assembly shall not be dis qualified from seeking election to the Legislative Assembly of that State because of his holding that office.
The amend ing Act, according to clause (2) of section 1, shall be deemed to have come into force on February 6, 1973.
The fact that the legislature is competent to enact such a law with retrospective operation is now well established (see Kanta Kathuria v.and Smt Indira Nehru Gandhi vs Shri Rat Manak Chand Surana(1) above amending Act the respondent Narain(2).
In view of.
the above from seeking election to the respondent cannot be held to be disqualified on account of his having held the office of the Speaker of the Legis lative Assembly of Manipur on account of his having held the office of the Speaker of the Legislative Assembly.
(1) [1970] 2S.C.R. 830.
(2) 575 Mr. Sharma has assailed the finding of the High Court inso far as it has held that the election expenses of the re spondent did not exceed the prescribed limit of Rs. 2,500.
According to the return filed by the respondent, he incurred a total expense of Rs. 2,160 in connection with his elec tion.
It is urged.
by Mr. Sharma that though the respondent paid Rs. 500 to the Manipur People 's party for securing a ticket of that party, he did not show that amount in the return filed by him.
Adding that sum of Rs. 500 to the amount of Rs. 2,160 would take the expenses beyond the prescribed limit of Rs. 2,500.
The said amount of Rs. 500, we find, was paid by the respondent to Manipur People 's party on December 5, 1973.
According to an amendment made in section 77 of the Representation of the People Act, 1951 by Act 40 of 1975, every candidate at an election will either by himself or by his election agent, keep a separate and correct account of all the expenditure in connection with the election, incurred or authorised by him or by his election agent between the date on which he has been nomi nated and the date of the declaration of the result thereof, both dates inclusive.
The respondent admittedly filed his nomination on January 23, 1974.The amount of Rs. 500 was paid by the respondent on December 5, 1973 long before the date on which the respondent filed his nomination.
The said amount of Rs. 500 consequently need not have been shown in the return of expenses filed by the respondent, nor could the said amount be taken into consideration in calculating the total expenses of the respondent with a view to judge as to whether his expenses exceeded the prescribed limit.
It has not been disputed that Act 40 of 1975 by which amendment was made in section 77 of the Representation of the People Act, 1951 has a retrospective effect and was in operation at the time the election with which we are concerned was held.
Mr. Sharma has next contended before us that an amount of Rs.101/55 paise was spent for the purchase of petrol and mobil oil by the respondent in addition to the amount of Rs. 586 which was shown by the respondent to have been spent by him on the purchase of petrol and mobil oil.
According to Mr. Sharma, petrol and mobil oil worth Rs. 101/55 were purchased by the respondent from Singh & Co., Imphal during the dates January 18 to 23, 1974.
In this respect, we find that the evidence adduced by the appellant is not at all satisfactory.
Two witnesses were examined by the appellant in this connection.
One of them was the appellant himself, who came into the witness box as PW 1.
It is apparent that this witness has no personal knowledge in the matter.
The other witness examined by the appellant is R.B. Shukla, PW 21.
The evidence of Shukla shows that he sold petrol and mobil oil.
worth Rs. 101/55 paise for vehicle bearing number 194.
The respondent undoubtedly used jeep NLM 194 during the elections.
There is nothing in the record of Singh & Co. or in the evidence of PW Shukla to indicate that the petrol and mobil oil worth Rs. 101/55 paise were sup plied for jeep NLM 194 and not for another vehicle beating that number.
The respondent in the course of his deposition has denied having purchased petrol and mobil oil from Singh & Co. 576 Mr. Sharma has also assailed the finding of the High Court regarding the expenses incurred by the respondent.
on microphones.
According to the retrun filed by the respond ent, he spent Rs. 720 on that account.
The case of the appellant is that the respondent paid Rs. 1,130 to Sena Yaima Sarma, Rs. 1,180 to Lockey Sound Equipment and Rs. 1,000 to Hijam Iboton Singh for use of microphones in connection with his election.
As against that, the case of the respondent is that he hired microphone from Lockey Sound Equipment and paid Rs. 720 only to that concern in that connection.
There is no cogent evidence on the record to indicate that respondent paid anything over and above Rs. 720 on account of the use of microphones.
The High Court found that the representatives of the firms from which the microphones were alleged by the appellant to have been taken on hire by the respondent, were not examined as wit nesses and that evidence adduced in this behalf was of a most unsatisfactory character.
We find no cogent ground to take a different view.
Emphasis has been laid by Mr. Sharma upon the fact that in the return filed by the re spondent, the date of payment of Rs. 720 has been mentioned to be February 26, 1974 while according to the evidence of the respondent in the witness box, the said payment was made on March 24, 1974.
In this connection, we find that the bill of Lockey Sound Equipment for the hire charges of microphones is dated February 26, 1974.
It seems that the respondent mentioned the date of the bill in connection with that payment.
No inference adverse to the respondent, in our opinion, can be drawn from the above crepancy regarding the date of payment.
Lastly, it has been argued on behalf of the appellant that the respondent also used jeep MNS 7343 in addition to jeep NLM 194.
It is stated that the expenses incurred by the respondent on account of petrol and mobil oil for jeep MNS 7343 were not shown by him in his return.
In this respect we find there was no allegation in the election petition as originally field regarding the use of jeep MNS 7343 by the respondent.
This allegation was introduced by the appellant only as a result of the amendment of the election petition.
No documentary evidence was placed on the file by the appellant to show that the respondent used jeep MNS 7343 for the purpose of his election.
Oral evi dence was however, adduced by the appellant for this pur pose.
The High Court found the evidence adduced in this conection by the appellant to be wholly unreliable.
After hearing Mr. Sharma, we find no cogent reason to take a contrary view.
It is well established that this Court should not normally interfere in an election appeal with the High Court 's appraisement of oral evidence of witnesses unless such appraisement is vitiated by some glaring infirmity.
No such infirmity has, been brought to our notice.
Reference has been made by Mr. Sharma to first information report dated February 23, 1974 which was al leged to have been made by the respondent to the police.
No attempt was made by the appellant to bring on record the original first information report or to prove the same.
The High Court in the circumstances held that the appellant could not rely upon a copy of the said first information report.
577 Mr. Sharma then contends that the appellant in any case can rely upon the oral deposition of the respondent when he came into the witness box.
We have been taken through that deposition, and we find no warrant for the conclusion that jeep MNS 7343 was used by the respondent in connection with his election.
All that has been stated by the respondent in the course of his deposition is that on February 23, 1974 he came to know of some untoward incident at a distance of a few hundred yards away from the place of his residence.
He went in jeep MNS 7343 towards that spot and thereafter returned in that jeep from that spot.
Such stray and solitary use of the jeep for visiting the place of incident a few hundred yards away from the residence of the respond ent cannot, in our opinion be held to tantamount to the use of the jeep for election purpose.
There is no cogent evi dence to show that the jeep was used otherwise by the re spondent for attending his election meetings or for other election purposes.
As a result of the above, we dismiss the appeal.
Considering the fact that the first ground which constituted the principal weapon of attack of the appellant against the validity of the respondent 's election is not available because of the change made in law during the pendency of the appeal, we direct that the parties should bear their own costs of the appeal.
P.H.P. Appeal dismissed. | Respondent No. 1 was declared elected to Manipur Legis lative Assembly.
The appellant who was one of the rival candidates filed an Election Petition on two grounds (1) Respondent No. 1 was holding office of profit inasmuch he was the speaker of the Assembly; and (2) the Respondent No, 1 incurred election expenses in excess of what is permissi ble.
The High Court negatived both the contentions and dismissed the Election Petition.
In an appeal filed by the Election Petitioner to this Court in view of the change in law with retrospective effect the first ground was not available to the appellant in this Court.
The appellant contended (1 ) The sum of Rs. 500 paid to his party by respondent No. 1 has been wrongly excluded by the High Court from the total expenditure.
(2) The sum of Rs., 101.50 spent for the purchase of petrol and mobil oil was not shown by respondent No. 1 in his return.
(3) Respondent No. 1 spent Rs. 1180/ on the microphone.
He has, however, shown Rs. 720 only in the return.
(4) Respondent No. 1 used Jeep No. 7343 in addi tion to Jeep No. 194 and the expenses incurred on that jeep are not known.
Dismissing the appeal, HELD: It is well settled that this Court does not nor mally interfere in an election appeal with the High Court 's appraisement of oral evidence of witnesses unless such appraisement is vitiated by some glaring infirmity.
In the present case no such infirmity is shown.
The evidence led by the Election Petitioner is not cogent and sufficient to come to the conclusion that various amounts mentioned.
by him were actually spent by Respondent No. 1.
As far as the payment of Rs. 500/ is concerned, the same is admitted by respondent No. 1, but that was paid before the filing of the nomination and what the Statute requires is the expenses incurred from the date of nomination till the date of the declaration of the result.
[575 B C, 576G] Stray and solitary use of a jeep for visiting a place a few hundred yards away from the residence of the respondent where some untowards incident had taken place cannot be held tantamount to the use of the jeep for election purposes.
[577B C] |
Appeal No. 366 of 1976 (From the Judgment and Order dated 2.12.1974 of the Karnataka High Court in Civil Writ Appeal No. 171/73).
K.N. Bhatta and M. Rangaswamy for the Appellant Mrs. Shyamla Pappu and Girish Chandra for Respondent No. 3 B.R.G.K. Achar for Respondents Nos. 1 and 2.
666 The Judgment of the Court was delivered by BEG J.
This appeal by special leave raises the question whether the State Government could, by a general direction given under Section 43(1) of the (hereinafter referred to as 'the Act ') fix the charges to be imposed upon operators of stage carriages for carrying mails as conditions of their permits.
Section 48 of the Act lays down the power of the Region al Transport Authority to grant stage carriage permits with conditions annexed thereto.
The first stage of exercise of this power is preceded by ' the quasi judicial enquiry, under Section 47 of the Act, into the matters affecting the interests of public in general.
Section 48, sub. section (1), subjecting the power to grant stage carriage permits to provisions of section 47 of the.
Act, includes what may be ' correctly characterised as the "quasi judicial" power either to grant or refuse to grant a permit after consideration of matters stated in Section 47 of the Act.
After that, we come to the power to attach conditions laid down in Sec tion 48(3), and we find: "49(3) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a service of stage carriages of a specified description or for one or more particular stage carriages, and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely: . . " Out of a number of kinds of conditions which may be imposed, the xvth, given below, is relevant: "(xv) that mails shall be carried on any of the vehi cles authorised by the permit subject to such conditions (including conditions as to the time in which mails are to be carried and the charges which may be levied) as may be specified".
Now, it is contended on behalf of the appellants, that the power to attach conditions under.
Section 48(3) is also quasi judicial with which the State Government neither has nor ought to have any concern.
The conditions of permits are prescribed by statute.
It is for the authority, exer cising the power quasi judicially to grant or not to grant permits, to decide what conditions to attach or not to attach to each permit.
It is.
not, it is submitted, for the State Government to dictate any conditions to be attached.
Hence, the challenge to the Government notification dated 30th May, 1968, which directed the State Transport Authori ty, to impose the charge of certain uniform rates of freight upon operators carrying mails or postal goods in stage carriages owned by operators other than State Transport Undertakings throughout the State.
The State Transport Authority had, in its turn, issued a direction to the Re gional Transport Authorities all over the State under Section 44 (1 ) of the Act to impose, 667 duty of carrying the postal goods upon rates fixed by the Government as a condition annexed under Section 48(3) (xv) to permits.
The relevant part of Section 43 (1) of the Act enacts: "43 (1) A State Government having regard to (a) the advantage 's offered to the public, trade and industry by the above development of motor transport, and (b) the desirability of co ordinating road and rail transport, and (c) the desirability of preventing the deterio ration of the road system, and (d) the desirability of preventing uneconomic competition among motor vehicles, may, from time to time, by notification in the Official Gazette, issue directions to the State Transport Authority (i) regarding the fixing of fares and freights for stage carriages, contract carriages and public carriers;" Learned Counsel for the appellant contends that the power of the Government to issue directions relating to "freights" does not include imposition of charges for carry ing postal goods as conditions permits which the Regional Transport Authority grants in exercise of its quasi judicial powers.
The attack on the validity of the Government direc tion is thus two fold: firstly, that it falls outside the scope of Section 43(1) of the Act as charges for carrying mail are not "freight" on goods carried; and, secondly, that no directions could be given to a quasi judicial au thority as to how it should perform its functions.
So far as the first argument is concerned, we do not find much substance in it.
The term "charge" is a broad one.
As used here, it is not a technical term and has not been defined by the Act.
It has, therefore, its ordinary dic tionary meaning.
It means any amount which may be demanded as a price for the rendering of some service or as price of some goods.
The argument of the learned Counsel for the appellant that the Act uses the term "freight" to.
indicate the charge made on carriage of goods, whereas the term "fare" is used for the charge made for carrying passengers, itself rests on the assumption that the term charge is a wide one.
It includes both freights and fares.
It is true that the term "fare" is used in relation to charges made for carriage of passengers and the term freight is used for charges made for the carriage of goods.
Nevertheless, both are charges.
It may be that stage carriages are meant for the carriage of passengers.
But, as is a matter of common knowledge, they also carry the luggage of passengers.
In other words, they also carry some goods incidentally.
The mail bags in which the postal goods are sent are only a type of goods which are not so bulky as to require trucks 11 l234SCI/76 668 Or special vans.
It is possible to carry them in stage carriages together with the luggage of the passengers.
In any case, this is a condition which is probably imposed only in those areas where mail vans of the State are not found to be necessary or economical to run.
In the villages in the interior of some rural areas, there may not be so much mail to carry as to justify sending a mail van.
Therefore, power is given to the Regional Transport Authori ty to attach the condition that postal goods should be carried in stage carriages at rates fixed by the Govern ment.
The real grievance of the operators is not that they have to carry postal goods as a condition of their permits but that the rates fixed are too low.
The proper remedy for such a grievance is, as the High Court rightly pointed out, to apply to the Government for revision of rates fixed.
Coming to the second submission, we may observe that, although, there is ample authority for the proposition that the grant of stage carriage permits is a quasi judicial function, with which the State Government cannot interfere by giving directions which may impede the due performance of such functions, yet, when Section 48(3) speaks of the power to attach conditions after the decision to grant the permit, it really deals with what lies past the quasi judi cial stage of decision to grant the permit.
At that stage, the decision to grant the permit is already there and only conditions have to be attached to the permit, such as the necessity to carry postal goods on certain routes at rates fixed by the Government.
On the face of it, these rates cannot be properly determined by the Regional Transport Authority.
They have to be uniform throughout the State.
A decision on what they should be must rest on considerations of policy and on facts which are not quite relevant to the grant of stage carriage permits.
In any case, it is the State Government which has the data and the legal power, under Section 43(1).of the Act, to fix freights for carriage of postal goods in various types of carriages, mentioned there, including stage carriages.
We 'think that such charges are merely a species of freight on postal goods about which the State Government can issue appropriate directions to the State Transport Authority.
The Regional Transport Authority has only to.
annex the condition auto matically in areas where such a condition may be required to be annexed to the permits granted.
A reference to Section 59, sub.
section (3)(c) would show that acceptance of the fixed rates of fares and freights, after their notification under Section 43, becomes a condi tion which has to be automatically attached to a permit.
The Regional Transport Authority has no option on this matter.
This is what this Court held in section Srikantiah & Ors.
vs The Regional Transport Authority, Anantapur & Ors.(1) In other words, the Regional Transport Authority has to act mainly mechanically after considering matters on which it has to form an opinion and take a decision quasi judicially.
We think that there is no scope for argument that there is any interference here with the quasi judicial functions of the Regional Transport Authority.
The (1) [1971] Supp.
S.C.R. 816.
669 annexation of a condition like this is a part of the purely executive Activities of the Regional Transport Authority.
By Civil Miscellaneous Petition No. 4023 of 1976, learned Counsel for the appellant sought to add two further grounds of appeal.
These were: that, the special provisions of Section 49(3)(xv) over ride the general provisions of Section 43(I)(d) (i) on the principle of interpretation 'generalia specialibus non derogant ' : and, that, in view of the special provision of Section 48(3)(xv), the impugned notification of the State Government was ultra vires.
The second ground is what follows if the first is good.
But as we have already explained above, the first ground itself is not sound.
There is no question of any special provision over riding the general.
The provisions are complementary.
Section 48(3)(xv) is really meant to carry out the direction which can legally be given under section 43(1)(d)(i) of the Act.
Therefore, although we allow the miscellaneous applica tion and have permitted the grounds to be argued, we reject them as untenable.
For the reasons given above, we agree with the views contained in the judgment of the Karnataka High Court against which this appeal has been filed.
We hold that the impugned direction and notification by the Government was not invalid and that the Regional Transport Authority had not acted illegally in attaching the required condition to the permit.
Consequently, we dismiss this appeal with M.R. Appeal dismissed. | The State Government issued a notification u/s 43(1) , directing the State Transport Authority to impose the charge of certain uniform rates of freight upon the operators of stage carriages other than State Transport undertakings, carrying mails or postal goods.
The S.T.A. then directed the Regional Transport Authority, u/s 44(1) of the Act, to impose the duty of carrying the postal goods upon rates fixed by the Government as a condition annexed u/s 48(3)(XV) to permits.
The appellant contended that the power of the Government u/s 43(1) to issue directions relating to "freights", does not include imposition of charges for carrying postal goods as conditions of permits granted by the Regional Transport Authority.
in exercise of its quasi judicial powers.
Dis missing the appeal the Court, HELD: The State Government has the data and the legal power under Section 43(1) of the Act to fix freights for carriage of postal goods in various types of carriages mentioned there, including stage carriages.
Such charges are merely a species of freight on postal goods about which the State Government can issue appropriate directions.
[668 E] (2) Section 48(3) deals with what lies past the quasi judicial stage of decision to grant the permit.
At that stage, the decision to grant the permit is already there and only conditions have to be attached to the permit.
The Regional Transport Authority has, at this stage to act mainly mechanically after considering matters on which it has, acting quasi judicially, formed an opinion and taken a decision.
There is no interference with the quasi judicial functions as the annexation of a condition like.
this is a part of the purely executive duties of the Regional.
Trans port Authority.
[668 D E, 669 A] section Srikantiah & Ors.
vs The Regional Transport Author ity, Anantapur & Ors followed.
(3) There is no question of any special provision over riding the general.
The provisions are complementary.
Section 48(3)(XV) is really meant to carry out the direc tions which can legally be given under section 43( 1 )(d)(i) of the Act.
[669 B C] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.